UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Gift  of 
Professor  C.  G.  Haines 


-^>-/  r 


CASES 

ON 

CONSTITUTIONAL    LAW 

SELECTED  FROM  DECISIONS  OF 

STATE  AND  FEDERAL  COURTS 

BY 

JAMES  PARKER  HALL 

FROFESSOR  OF  LAW  AND  DEAN  OF  THE  LAW  SCHOOL  IN 
THE  UNIVERSITY  OF  CHICAGO 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL   EDITOR 


ST.  PAUL 

WEST  PUBLISHING  COMPANY 

1913 


COPYBIGHT,  1913 
BY 

WEST  PUBLISHING  COMPANY 
(Hall  Const.L.) 


To  the  Memory 

op 

JAMES  BRADLEY  THAYER 

(iii)» 


THE  AMERICAN  CASEBOOK 
SERIES 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory;  it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
poses previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it ;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operate? 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analvsis. 
the  comparison  of  many  cases  establishes  a  general  principle,  and 

(v) 


the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  thev  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  tli is  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly ;   principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Insurance. 

Agency.  International  Law. 

Bills  and  Notes.  Jurisprudence. 

Carriers.  Mortgages. 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 

Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  r>     i  -n  ( lst  Y<*ar. 

n  ■    ■     ,  tj        j  Real  Propertv.  { 2d      - 

Criminal  Procedure.  r  1 3d 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 

Evidence. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


and  as  the  cases  are  generally  interesting,  it  is  thought  that  the 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
have  written  or  are  at  present  actively  engaged  in  the  preparation  of 
the  various  casebooks  on  the  indicated  subjects: 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Law. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law- 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject,  Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Lazu  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Eilwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.  Sub- 
ject, Agency. 

Howard  L-  Smith.  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes.    (Co-author  with  Wm.  Underhill  Moore.) 

Wm.  Underhill  Moore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Bills  and  Notes.    (Co-author  with  Howard  L.  Smith.) 

Edward  S.  Thurston.  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilniore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Law. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Conflict  of  Laivs. 

Frederic  C.  Woodward,  Dean  of  the  Stanford  University  Law  School. 
Subject,  Sales. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Law;  General  Jurisprudence; 
Equity. 

James  Brown  Scott, 
Washington,  D.  C,  September,  1913.  General  Editor. 


Following  are  the  books  of  the  Series  now  published,  or  in  press: 

Administrative   Law  Damages 

Agency  Partnership 

Bills  and  Notes  Persons 

Carriers  Pleading 

Conflict  of  Laws  Sales 

Constitutional  Law  Suretyship 

Corporations  Trusts 

Criminal  Law  Wills  and  Administration 
Criminal  Procedure 


PREFACE 


It  is  peculiarly  difficult  adequately  to  cover  the  subject  of  Constitu- 
tional Law  by  selected  cases  within  the  compass  of  a  single  manage- 
able volume.  The  principles  of  many  legal  topics  may  be  stated  or  ex- 
emplified with  a  definiteness  denied  to  those  of  Constitutional  Law. 
The  reasons  for  this  are  two-fold:  Certain  brief  general  provisions 
in  our  constitutions  purport  to  limit  the  powers  of  government  over  a 
wide  and  indefinite  field,  and  our  dual  federal  system  compels  a  de- 
limitation of  the  spheres  of  state  and  nation  throughout  an  ever-shift- 
ing "twilight  zone."  While  it  is  by  no  means  true,  as  is  sometimes 
stated,  that  our  country  alone  imposes  judicially  administered  re- 
straints upon  legislative  action,  yet  it  is  true  that  our  restraints  are 
more  sweeping  and  more  vague  than  those  in  other  countries  (e.  g., 
Canada  and  Australia)  whose  courts  also  ignore  unconstitutional  leg- 
islation. It  is  impossible  effectively  to  state  in  tabloid  form  the  mean- 
ings of  due  process  and  equal  protection  of  law,  of  the  separation  of 
the  powers  of  government,  or  of  the  division  of  governmental  powers 
between  the  states  and  the  United  States,  as  they  are  recognized  in  our 
constitutions  and  enforced  by  our  courts.  Government  is  not  a  simple 
matter,  and  the  doctrines  that  would  limit  it  form  a  fascinating  com- 
plex of  history,  law,  and  politics.  Every  word  of  the  most  carefully 
phrased  abstraction  must  be  made  flesh  in  a  hundred  concrete  examples 
before  the  living  principle  is  revealed.  Here,  as  in  other  fields  of  prac- 
tical judgment,  there  is  "an  intuition  of  experience  which  outruns  anal- 
ysis and  sums  up  many  unnamed  and  tangled  impressions."  To  secure 
a  sound  basis  for  such  an  intuition  in  the  student's  mind  nothing  can 
take  the  place  of  the  consideration  of  a  multitude  of  instances  and 
much  and  varied  reasoning  and  discussion. 

To  present  the  requisite  amount  of  material  within  the  desired 
space,  the  names  and  arguments  of  counsel  have  been  uniformly  omit- 
ted, most  statements  of  facts  have  been  rewritten,  and  all  irrelevant 
or  merely  repetitious  matter  has  been  excluded.  Important  judicial 
reasoning  and  discussions  of  authorities  have  been  reproduced  at 
length,  and  the  leading  cases  have  been  rather  fully  annotated  with 
references  to  significant  decisions  developing  or  limiting  their  scope. 
Where  similar  constitutional  problems  have  arisen  in  the  self-govern- 
ing British  colonies,  references  to  their  decisions  are  also  made,  espe- 
cially to  those  of  Canada  and  Australia.  Some  present  tendencies  in 
government,  such  as  the  delegation  of  large  powers  to  commissions, 
the  newer  forms  of  social  legislation,  and  the  rapid  extension  of  fed- 
eral activities,  have  been  accorded  a  relatively  fuller  treatment  than 

(xl) 


some  of  the  older  topics.  The  division  of  the  book  into  short  chapters 
or  sections  facilitates  its  re-arrangement  to  meet  the  wishes  of  teachers 
or  the  demands  of  courses  of  varying  lengths,  and  the  material  in 
Chapter  XX  may  be  used,  if  desired,  as  the  basis  for  a  short  separate 
study  of  the  Federal  Courts. 

Matter  in  the  text,  rewritten  or  inserted  by  the  editor,  is  placed  in 
brackets.  Omissions  are  indicated  by  asterisks.  All  judicial  quota- 
tii  ms  are  from  the  opinion  of  the  court  unless  otherwise  indicated, 
and  all  notes  are  by  the  editor  unless  credited  to  other  sources.  Cases 
in  the  United  States  Supreme  Court  are  included  through  October 
Term,  1912-13  (vols.  230  U.  S.,  33  Sup.  Ct,  and  57  L.  Ed.). 

University  of  Chicago  Law   School,  JaxiES  Parker  Hali,. 

October  22    1013. 


TABLE  OF  CONTENTS 


PART  I 

Preliminary  Topics 

chapteb  i 

Page 
Making  and  Ciianoing  Constitutions 1 

CHAPTER  II 

Function  of  Judiciary  in  Enforcing  Constitutions 
Section 

1.  Power  to  Declare  Statutes  Unconstitutional 2J 

2.  Effect   of    Unconstitutionality 4-1 

CHAPTER  III 

Separation  and  Delegation  of  Powers  or  Government 

1.  Separation  of  Powers 54 

2.  Delegation  of  Powers 114 

PART  II 
Fundamental  Rights 

chapter  iv 

Political  Rights 

1.  Citizenship  and  Naturalization 1-^ 

2.  Suffrage    140 

3.  Miscellaneous   Political  Rights 150 

CIlAl'l  ER    V 

Personal  and  Religious  Liberty 101 

CHAPTER  VI 

Protection  to  Persons  ACCUSED  of  ("rime 

1.  Ex  Post  Facto  Laws— Bills  of  Attainder 164 

2.  Self-Crimination— Searches  and  Seizures 184 

3.  Jury  Trial — Procedure  and  Punishment 193 

Hall  Const.L.  ixiiii 


TABLE  OF   CONTENTS 


CHAPTER  VII 

Page 
Interstate  Privileges  and   Immunities  of  Citizens 197 


CHAPTER  VIII 

Operation  or  Fourteenth  Amendment  in  Securing  Civil  Rights 
Section 

1.  In    General 213 

2.  Application  to  Corporations 248 

CHAPTER  IX 
Due  Process  and  Equal  Protection  of  Law:    Procedure 

1-    Due    Process 262 

2.    Equal  Protection  of  La  w 314 

CHAPTER  X 

Due  Process  and  Equal  Protection  of  Law:   Protective  and  Regula- 
tive Power  (Police  Power) 

1.  In    General. 31S 

2.  Classification    (Equality) 3^9 

3.  Administrative  Regulations  and  Discretion : . .  379 

4.  Validity  of  Legislative  Object 393 

5.  Regulation  Incidental  to  Power  of  Prohibition 531 

CHAPTER  XI 
Due  Process  and  Equal  Protection  of  Law:    Taxation 

V     Jurisdiction    535 

2.  Public    Purpose 573 

3.  Classification   605 

CHAPTER  XII 
Eminent  Domain 

1.  Nature  of  Power 660 

2.  Public    Use 676 

3.  Taking  and  Injuring  Property 711 

1.  Compensation    771 

CHAPTER  XIII 

Retroactive  Laws  in  Civil  Cases 

V.     State  Laws  Impairing  Obligations  of  Contracts 7SS 

'I.     Otber  Retroactive  Laws 878 


TABLE  OF  CONTENTS  XV 

PART    III 

The  Federal  Government 

CHAPTKR  XIV 

Page 

General  Scope  of  Federal  Powers 016 

(Including  also  Money,  Banking,  Postal,  and  Military  Powersj 

CHAPTER  XV 
Foreign  Relations,  Indians,  and  Aliens 9G4 

CHAPTER  XVI 
Territories,  Dependencies,  and  New  States 985 

CHAPTER  XVII 
Federal  Taxation 1024 

CHAPTER  XVIII 
Regulation  of  Commerce 

Section 

1.  Duties  on  Imports,  Exports,  and  Tonnage 1039 

2.  Interstate  and  Foreign  Commerce:   General  Conceptions 1053 

3.  State  Legislation  Discriminating  against  National  Commerce 10S3 

4.  Non-discriminatory  State  Taxation 1090 

I.    Taxes  Affecting  Transportation  or  Communication 1090 

II.    Taxes  Affecting  Sales 1130 

5.  Non-discriminatory   State   Regulation 1144 

6.  Power   of   Congress 1208 

7.  Federal   Maritime   Authority 1261 

CHAPTER  XIX 
Intergovernmental  Rf.lations 

1.  P.ctween  States — Between  States  and  other  Domestic  Territory V277 

2.  Between  States  and  United   States 1L'T:> 

CHAPTKR  XX 

Jurisdiction  of  Federal  Courts 

1.  In    General 1321 

2.  Administration  of  State  Law 1344 

.'{.     Immunity  of  Sovereign  from  Private  Suit — Eleventh  Amendment 1366 

4.     Suits  by  or  between  States  and  United  Suites 1386 

APPKMHX 
Constitution  of  Unitf.d  States  and  Amendments 1  (05 


TABLE     OF  CASES 


[CASES  CITED  IN  FOOTNOTES  ABE  INDICATED  BY   ITALICS.      WHERE   SMALL  CAPITALS 
ARE    USED,    THE   CASE   IS   BEFERBED    TO    IN    THE   TEXT] 


Page 

Ableman   v.    Boora 952 

Achison  v.   Huddleson 1214 

Adair  v.   United    States 473,  1250 

Adams   v.   Brenan 477 

Adams  v.  Chicago,  13.  &  N.  R.  Co.  752 
Adams  v.   New   York   (192  U.   S. 

585)     1S9 

Attains   v.    New    York   (192    TJ.    S. 

085)     3S3 

A<l<niii>  Exp.  Co.  v.  Kentucky. ..  .1192 

Adams  Exp.  Co.  v.  Ohio 55S 

Adams  Exp.  Co.  v.  Ohio  State  Au- 
ditor        551 

Agens  v.   Mator,  etc.,   of  New- 
ark     G51 

Aikens    v.    Wisconsin 465 

Albright  v.    Sussex   County   Lake 

&   Park  Commission 70S 

Allen    v.    Armstrong 906 

Allen    v.    Pullman's    Palace    Car 

Co 1110 

Allen    v.   Riley 1312 

Allgeyer  v.  Louisiana 232,  40S 

Allison   v.    Corker 51 

Ambrosini  v.  United  States 1297 

American  B.  N.  Co.  v.  New  York 

Elevated    It.   R 7S2 

American  Ins.  Co.   v.  Canter  (1 

Pet.    511) 991 

Amencan   Ins.   Co.   v.    Canter    (1 

Pet.    511) 1323 

American    Print    Works    v.    Law- 
rence      669 

American     Refrigerator     Transit 

Co.   v.  Hall 543 

American     Smelting     &     Refining 

Co.  v.  Colorado  ex  rel.  Lindsley  S52 
American    Sugar   Refining  Co.    v. 

Louisiana     614 

Ames   v.   Kansas 1331 

Anderson  v.    Dunn 65 

Anderson  v.   Myers 147 

Anderson  v.  United  States 1219 

Angle  v.  Chicago,  etc.,  Ry S97 

Application  of  Senate  of  State.  .     LI 

Arrowsmith    v.    Earmomng 239 

Arthur  v.    Oakes 163. 

A  sh  ley  v.  Ryan 1097 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Mat- 
thews       338 


Page 
AtUin   v.   Kansas 422 

Atlantic  Coast  Line  R.  Co.  v.  Riv- 
erside   Mills 512,  1240 

Atlantic  &   l'ac.    Co.   v.   Philadel- 
phia     1102 

Attorney  General  v.  Tool 108 

Attorney  General  v.  Williams....  705 
Attorney  General  of  N.   S.   Wales 

v.    Collector 1316 

Aticater   v.    H asset t 146 

Austin    v.    Tennessee    (179    U.    S. 

343)    2:;o 

Austin    v.    Tennessee    (179    U.    S. 

343)     1046 

Ayers,   In    re 1371 

Union   v.    Boston 726 

llacon   v.   Illinois 1074,  1131 

Bailey  v.   Alabama 15S 

Baker  v.  Boston  Elevated  Ry.... 

708,  772,  776 

Baldwin   v.    Franks 906 

Baldwin    v.    Hale S03,  sor, 

Baldwin  v.  Washington  County.  .  502 
Baltimore    v.    Baltimore   Trust 

&   G.   Co 873 

Baltimore,  etc.,  Ry.  v.  Neshit....  879 
Baltimore  d  O.  Ry.  v.  liaugh... .1350 
Baltimore  d  O.  Ry.  v.  Interstate 

Commerce    Commission 1249 

Baltimore  &  P.  R.  R.  v.  Fifth  Bap- 
tist Church  U0S  TJ.  S.  317).  .723,  726 
Baltimore  &   I'.   R.   R.   v.   Fifth 

Baptist  Church  (108  TJ.  S.  317)  724 
Bangor   &    Piscataquis  R.   Co.   v. 

McComb    771 

Banker     Bros.     Co.     v.     Pennsyl- 
vania      1142 

Bank  of  Augusta  v.  Earle 1277 

Bank     op     Commerce      v.     New 

York    1288 

Bank  of  Commerce  v.  Tennessee...  S34 

Bunk  of  Toronto  v.  Lambe 12S4 

Bank  of  United   States  v.   De- 

veaux    1341 

Bank   of    United   States   v.    Don- 

natty    SHJ 

Bank   Tax  Case 1288 

Barbier    v.    Connolly 332 

Barone  v.   Fox 373,  443 

Barron  v.  Burnside 255 


Hall  Const. L. 


(xvi) 


TA1SLG    OF    CASES 


XV11 


Page 

Matron  r.  City  of  Baltimore 2t3 

Darto    v.   Jlimrod 116 

Bauer  v.   O'Donnell 1312 

Bauman  v.  Ross  (107  U.  S.  54S).. 

664,  788 
Bauman  v.  Hoss  (107  U.  s.  848). .  77:; 

Ba    ter  v.  Com'rs 88,  1284 

Becker  v.  Metropolitan  Elevated 

Ry 782 

Bedford  v.   United  States 721 

Beer  Co.  v.   Massachusetts 8S7 

Beers  v.  Arkansas  (20  How.  527)  810 
Beebs     v.     Arkansas     (20     How. 

B27)     1370 

Belfast,    The 1266 

Belknap   v.    Sobild 1880 

Bell's  Gap  Ry.  v.  Pennsylvania..  Oil 

Bcmcnt  v.  Vat.  Harrow  Co 1219 

Berea    College   v.    Commonwealth  309 

Bernheimer  v.  Converse 810 

.if  v.  0'Reaiy..3Q,  235,  508,  535 

Baseman  v.  Venn.  R.  It 72:! 

BlUlngs    v.    Illinois 635 

Binghampton  Bridge,  The.  ...829,  833 
Biselwff  v.  New  Ymk  Elevated  It. 

R 782 

Blackburn  v.  Portland  Co 1337 

Blackstone  v.   Miller 565 

Blair  v.  Chicago 834,  1340 

Blake  v.  McClung 202,  253 

Blesch  v.  Chicago  if  A'.  W.  Ry...  772 

Bllnn  v.  Nelson 862 

Bloomfli  hi  v.   Btate 365 

Board  of  Assessors  v.  New  York 

Life    Ins.    Co 547 

Hoard  of  Education  v.  Blodgett..  883 
Board  of  Health  v.  Van  Hoesen.  .  687 
Board     of     Liquidation     v.     Me- 

Comb    861,  1378 

Bolim    v.    Metropolitan    Elevated 

R.    Co 779 

Boise  Artesian  Water  Co.  v.  Boise 

City    842 

Bonaparte  v.  Appeal  Tax  Court .  .1277 

BoNATARTE    V.     STATE 563 

Bonnet t  v.   Vallier 422 

Booth   V.   Illinois .1(12 

Borghart  v.  Cedar  Rapids 750 

Borgnls   v.  Fall;  Co.  (147  N.   W. 

327)     88,  363 

Bnrgnis   V.   Falk    Co.   (147  N.    \V. 

•"27i    849,  517 

Bars  v.   Preston 1880 

Bostock    v.    Sams 400 

Boston    v.   Talbot 675 

B08<on   Chamber  of   Commerce  v. 

Boston    77:: 

Botoditch  v.    Boston 461 

Bowman    v.   Chicago   ft   N.   W.   B. 

Co 1188 

Boini  v.  a labama 857 

Boyd  r.  Nebraska  em  rel.  Thar. 
Hall  const.!,. — b 


Boyd  v.  United  States 188 

Boyle,  In  re 105 

Boyle  v.  Zacharie 804 

Bradley  v.  Bander 

Bradley  v.  City  of  Richmond....  313 
Brakken  v.  Minneapolis  <£   HI.   L. 

Ry 756 

Brass    v._  North    Dakota    ex    rel. 

Btolser'  485 

Brearley  School  v.   Ward 

810,  815,  915 

Brennan   v.    TitUSVille 1137 

Brevoort  v.  Grace 4.;.j 

/■"  per  Brick  Co.  v.  Brewer.... 
Brewster  v.  Rogers  Co.  (169  N.  Y. 

73)     710 

Brewster  v.  Rogers  Co.  (loo  x.  Y. 

r.w  

Brickett    v.    Haverhill    Aqueduct 

Co 786 

Bridge    Proprietors    v.    Hoboken 

Co.  (1  Wall.  116) 829 

Bridge    Proprietors    v.    Hoboken 

Co.  (1  Wall.  116) 833 

Briscoe  v.  Bank  of  Kentucky....  936 
Bristol  v.   Washington  County  54 v- 

Brodbinc  v.   Revere 127 

Branson.    Matter    of 569 

Bronson    v.    Kinzie 806 

Bronson   v.    Rodes 936 

Brown  v.  Gerald 697 

Brown    v.    Houston 1130 

Brown  v.  Maryland 1039,  1062 

Brown  v.  r  ussel see 

Brown    v.    Walker 185 

Bucher  v.  Cheshire  R.  Co 1351 

Buck  v.   Beach r,4  i 

Buckner    v.    Finley 1277 

Budd   V.    New    York 304,  485 

Buffalo  East  Side  R.  R.  v.  B 

lo  St.  R.   R 856 

Burgess   v.    Sellgman 1857 

Burlcy  v.  United  States 1803 

Burlington  v.   Beaslcy 590 

Burrows  o.  Superior  court 710 

Butchers'  Union  Slaughter-House, 

etc.,  Co.  v.  Crescent  City,  eta, 

Slaughter-House    Co 863 

Butler  v.  Boston  ft  9.  S.  S.  Co 

(130  U.  S.  527) 1265 

Butler  v.   Boston  <t  S.  S.   S.   Co. 

(180  U.  s.  .-,27) 1275 

Butte  Crr*  Water  Co.  v.  Bakeb  124 

Buttflcld    v.   Stranahan 300,   1235 

Byers  v.  Meridian  Printing  ( 

Calder  v.  Bull 164 

Caldwell  V.   North    Carolina 1187 

California  v.  Central  Pac.  R.  Co. 

(127  r.  s.  i) eia  1:1 1 

Califobnia   v.   Central    Pac.    B, 

Co.  (127  U.  S.  1) 1216 


xvm 


TABLE    OF    CASES 


Page 
California  v.  Southern  Pac.  Co.. . 

1340,  1402 
California  Reduction  Co.  v.  Sani- 
tary   Reduction    Works 450 

Callahan  v.   Woodbridge 569 

Callan    v.    Wilson 991 

Callen  v.   Columbus  Edison  Co...  761 

( 'allt  nder  v.  Marsh 740,  743 

Campbell    v.    Holt    (115    JJ.    S. 

620)     882 

Campbell  v.  Holt  (115  U.  S.  620)  SSG 
Canada,  etc..  Ry.  v.  Gebhard. . . .  805 

Cannon  v.  Nat-  Orleans 1051 

Capital  Traction  Co.  v.  Hof 196 

Carew  v.  Rutherford 481 

Carroll  v.   Greenwich   Inn.  Co....  355 

Carter  v.   Commonwealth 76 

Carthage  v.   Frederic/; 657 

Cedar   Rapids   Gas   Light    Co.    v. 

Cedar    Rapids 493 

Central  Land  Co.  v.  Laidley 1356 

Central  Lumber  Co.  v.  South  Da- 
kota      473 

Central  of  Ga.  Ry.  v.  Murphey.  .1185 
Chae     Chan     Ping     v.     United 

States     978 

Chambers  v.  Baltimore  &  O.  Ry.  209 

Chambers   v.    Church 207 

Chandler   v.   Dix 1380 

Chaplin  v.   Commissioner 12SS 

Chapman,    In  re 67 

Charles  River  Bridge   v.   Warren 

Bridge     830 

Charlotte,    C.    &    A.    R.    Co.     v. 

Gibbes     342 

Charlton  v.   Kelly 96S 

Chenango  Bridge  Co.  v.  Paige.  . .  737 
Cheney  v.  Boston  Consol.  Gas  Co.  763 
Cherokee    Nation    v.     State    of 

Georgia    974 

Cherokee  Tobacco,  The 960 

Chesapeake    &    O.    Ry.    v.    Ken- 
tucky     1166 

Chew  Heong  v.   United  States...  878 

Chicago  v.  Blair 657 

Chicago    v.    Neteher 462 

Chicago  v.  O'Brien 657 

Chicago  v.  Sturges 507 

Chicago,  B.  &  Q.  R.  Co.  v.  City  of 

Chicago  (166  U.   S.  226) 239 

Chicago,  B.  &  Q.  R.  Co.  v.  City  of 

Chicago   (166  U.   S.  226) 666 

Chicago,  B.  <£  Q.  R.  Co.  v.  Cram  505 
Chicago,  B.  &  Q.  R.  Co.  v.  Illinois 
ex    rel.    Grimwood    (200    U.    S. 

561)    734 

Chicago,  B.  <£  Q.  R.  Co.  v.  Illinois 

ex  rel.  Grimioood  (200  U.  S.  561)  860 
Chicago,   B.   &  Q.   R.   Co.   v.   Mc- 

Guire    518 

Chicago,   B.  d   Q.   R.    Co.  v.   Ne- 
braska       870 


Page 

Chicago,  B.  £  Q.  R.  Co.  v.  United 

States    500 

Chicago  Dock  Co.  v.  Fraley 360 

Chicago,  etc.,  Ry.  v.  Sturm S10 

Chicago  Flour  Co.  v.  Chicago....  770 
Chicago,   M.   &   St.   P.    R.   Co.   v. 
Minnesota    ex    rel.    Railroad    & 

Warehouse    Commission 300 

Chicago,    M.   &  St.    P.  R.   Co.   v. 

Solan    1183 

Chicago,  R.  I.  &  I'.  R.  Co.  v.  Ar- 
kansas     349,  11S1 

Chicago  &  G.  T.  R.  Co.  v.  Well- 
man    42 

Chiles    v.    Chesapeake    &    0.    R. 

Co 369,  1166 

Chin  Yoio  v.  United  States 300 

Chirac     v.     Chirac     (2     Wheat. 

259)    13S,  964 

Chirac  v.  Chirac  (2  Wheat.  259) . .  919 

Chisiiolm   v.    Georgia 1367 

Choate  v.  Trapp S37,  897,  976 

Christian  v.  Atlantic  &  N.  C   R. 

Co 1378 

Chy  Lung  v.  Freeman 1152 

Cincinnati     v.     Louisville    £     N. 

Ry 664,  1023 

Cincinnati  St.  R.  Co.  v.  Snell....  319 
ns'  Nat.  Bank  v.  Kentucky..  65S 
Citizens'  St.  Ry.  v.  Common  Coun- 
cil      624 

City  of  Chicago  v.  Neteher 462 

City  of  Chicago  v.  Sturges 507 

City    of    Knoxville    v.    Knoxville 

Water    Co 492 

City  of  Madison  v.  Madison   Gas 

&   Electric   Co 101 

City  of  New  York,  Matter  of  (190 

N.   Y.   350) 775 

City  of  Neii)  York,  Matter  of  (190 

N.   Y.   350) 775 

City  of  Passaic  v.  Paterson  Bill 
Posting,     Advertising     &     .Sign 

Painting    Co 400 

City  of  Seattle  v.  Kelleher 655 

Civil  Rights  Cases 151,  240 

Claflin   v.  Houseman 952 

Clark  v.  Clark 906 

Clark  v.  Nash 687 

Claybrook  v.  Owensboro 614 

Clcland  v.  Anderson 356 

Cleveland,  etc.,  Ry.  v.  Backus. ..  .1115 

Clinton  v.  Engelbrccht 996 

Coe  v.  Errol 1070 

Cohens     v.     Virginia     (6     Wheat. 

204)     1321 

Cohens     v.     Virginia     (6     Wheat 

264)     1330 

Cole   v.    Cunningham 20S 

Collector,  The,  v.  Day 1295 

Collins  v.  New  Hampshire 1197 

Collins  v.  Texas 456 


TAIM.i:    or    CASES 


Page 
Colonial    Sugar    Co.   v.   Attorney 

Gent  ral    70 

(  olumbia  Trust  Co.  v.  Lincoln  In- 
stitute of  Kentucky 464 

Commissioned  v.  O'Sullivan.  . .  774 

lOnwealtb   v.   Alger 318 

Commonwealth  v.  Boston  Adver- 
tising Co 403 

Commonwealth  v.  Fisher 4:;i 

Commonwealth  v.  Getchell 179 

Commonwealth  v.  Gilbert :;si 

ONWEAlTH    v.    GBIEST 14 

Commonwealth  v.   Hana 364 

Commonwealth  v.  Sisson 805 

Commonwealth  v.   Strauss 470 

Commonwealth  v.  Tewksbury....  450 

Commonwealth  v.  Vrooman 459 

com  put/nil-  Francaise,  etc.,  v.  La. 

lid.  of  Health 1153 

Connecticut     Riveb    R.     R.     v. 

Franklin   Com'bs 783 

Connolly  v.  T'nion  Sewer  Pipe  Co.  349 

Conway  v.  Taylor's  Ex'r 1141 

Cook  t\  Marshall  County 1050 

I  'ook  v.  Moffat 805 

Cooley   v.   Hoard  of  Wardens   of 

Philadelphia    1079 

r,  In  re 82 

orfleld  v.  Coryell 197 

Cornell  v.  Coyne 104<; 

Carry  v.  Baltimore 560 

Cottlng    v.    Kansas    Cltv    Stock 

Yards  Co.  (1S3  U.  S.  79) 846 

Cotting     r.     Kansas    Citu     Stock 

Yards  Co.  (183  TJ.' S.  79) 485 

m.man  v.  Hitchcock 1S5 

County  of  San  Mateo  v.  Southern 

Pac.   R.  Co 248 

Covell  v.  Jlcyman l.'i'JT 

:ton  v.   Kentucky 842 

•  •ton  Bdg.  Co.  v.  Kentucky.  .1054 
Ington    Turnpike   Co.   v.    Han- 
ford    841 

Covington  &  C.  Bridge  Co.  v.  Ken- 
tucky     1172 

OovingtondL.  Turnpike  Road  Co. 

v.    Sandford 250 

Cowley  v.  Northern  Vac.  Ry 1326 

Coyle  v.    Smith 1020 

Craig  v.    Missouri 9:10 

Craig  v.  railroad ~r,n 

Chan-hat, i,  v.  Nevada  (C  Wall.  35)  222 

■'all  v.  Nevada  (6  Wall.  35).. 1094 

Crandall  v.  Nevada  (6  Wall.  35).. 1307 

Oranmer  v.  Thorson 10 

Crenshaw   V.    Arkansas 1138 

Cromwell   v.    MncLean 900 

Gross    v.     Harrison     (1C     How. 

164)    1002 

Cross  r.  Harrison  (16 How.  164).. 1012 

Crow  v.  Shepherd 80 

Crowley  v.  Christensen :;s7 


Orutcher  v.  Kentucky  (141  U.   S. 

47)    1109 

Crutches  v.    Kentucky   (141   U. 

S.    47) U46 

i  v.  County  Board  of  Ed- 
ucation       369 

■uri 168,   183 

!iiam  v.  Macon,  etc..  Ry..  .  i:;7'j 
Cunningham    v.    North     Western 

Imp.   Co 517 

Cunuius  v.  Reading  School  Diet..  ■  285 

Curtis  V.   Lcavitt 881 

Danforth  v.  Groton  Water  Co....  882 

Daniel   Ball,  The 1069,  12U1 

Dartmouth  College  v.  Woodward..  *15 

Dash  v.   Van  Kleeck 878 

r,    In   a 157 

Davidson   v.   New  Orleans 226 

Davit  s,    Haiti  r    of 61 

Davis  v.   Gray 1374 

Davis  v.  Massachusetts 391 

Davis-Smith  Co.  v.  I  517 

Day.  In  re 82 

Dcakin   v.    Webb 12S  I 

D<    Bary  <(•  Co.  v.  Louisiana 1202 

Debs,  In  re  (15S  U.  S.  564) 81,  1066 

Debs,  In  re  (158  U.  S.  564) 1211 

D.  S.  5t!4) 1387 

Delamater  v.  South  Dakota L205 

Dclaylniiic  v.  Chicago  <(•  V.  IV.  Ry.  Tl~ 
Delaware.    L.    &    W.    R.    Co.    v. 

Pennsylvania    

I)e  Lima  v.  Bidwell 1012 

De  Lovio  v.  Boit 1267 

.i  r.   Pi  dder 1284 

Den  ex  dem.  Murray  v.  Tloboken 

Land  &  Improvement  Co 262 

Denny  v.  Bennett 805 

Denl    v.  West  Virginia 154 

Detroit  v.  Detroit,  <ic.  By..  .851,  856 

Detroit  v.  Osborne 1348 

I'lhn  v.  Hutchinson 1345 

Dewey  v.  Des   Moines 571 

Dickey  v.  Maysvitte,  etc..  Road.  .  959 

Dingley    v.    Boston 6SG 

District  of  Columbia  v.  Brooke.  . .   380 
v.     Commissioners    of 

Erie  County 1295 

Dobbins  v.  Los  Angeles 404 

Doctor  v.  Harrington 1342 

Untie,/  r.  Abilene  Nat.  Bant: 33 t 

Donahue  v.  Keystone  Gas  Co..  .  . 

Donnelly  r.  United  States 977 

Dooley  v.  United  States  (182  D.  S. 

222 1012 

DODley  V.  United  Stales  (183  D.  S. 

151)   1046,  1061 

Dorr  v.  United  States 1013 

Douglas,  In   re 906 

Douglass  v.  Pike  county 1357 

-    v.    P.idwell !lss 

Doyle  v.  Continental  Ins.  Co..  .  254 


XX 


TABLE    OF    CASES 


Page 

Dozier  v.  Alabama 1138 

Drcyer  v.  Illinois 96 

Dunbar  v.  Boston  &  P.  R.  Corp.. .  8S4 

1) it n< an   v.  Missouri 178 

Dynes  v.  Hoover 942 

Eakin    v.  Ratio 31 

Eastern   R.   Co.  v.  Boston  &  M. 

R.  R 665 

Eaton  v.  Boston,  C.  &  M.  R.  R..  .  711 

Eckerson  v.  Ues  Moines 122 

Eden  v.  People 358 

Edwards  v.  Keargey 808 

Eels  v.  American  Telephone  &  Tcl- 

egraph  Go 760 

Eilenbecker  v.  Plymouth  Co 275 

Eiwjartner  v.  Illinois  Steel    Co... 8S3 

Eldridge  v.  Trezevaut 670 

Elk  v.  Wilkins 131 

Ellinghani  v.  Dye 11 

Ellis  v.  Davis 1325 

Ellis  v.   Thorne 72 

Ellis  r.  United  States 003 

Emi  it  v.  Missouri 1132 

Employers'  Liability  Cases 1254 

Emj,  I  v.  O'Malley 349 

El'.l!  v.  Moeasch 1180 

Erickson     v.     Crookston     Water- 
works   Co 740 

ESCANABA  CO.   V.   CHICAGO  (107  U. 

S.  678) 1022 

Eseanalia  Co.  v.  Chicago  (107  U. 

S.    678) 1151 

Etrhisun  Drilling  Co.  v.  Flournoy    52 

Etheridge  v.  Sperry 1354 

l.t i  \r  v.   Tacoma S96 

Eubank  v.  Richmond 402 

Eudora,    The 125S 

Evergreen     Cemetery     Ass'n     v. 

Beecher    686 

Ewell   v.   Daggs S84 

Evcing  v.  Leavenworth 1061,  1107 

Exchange,  The 135 

Fairbank  v.  United  States..  1034,  1046 

Fairchild  v.  St.  Paul 673 

Fallbrook  Irr.  Disk  v.  Bradley. .. 

291,  595 

FALL8BURG   POWER  &  MFG.    Co.   V. 

Alexander 695 

Falls    Mfg.    Co.    v.    Oconto    Imp. 

Co 1263 

Fargo  v.  Hart 555 

Farist  Steel  Co.  v.  Bridgeport. .. .  707 

Farmers'  Bank  v.  Dealing 1294 

Farmers'  &  M.  Ins.  Co.  v.  Dobney  340 

Farrington  v.  Mensching 611 

Federalist    The 25 

Federated  Govt.  Ry.  Ass'n  v.  New 

South  Wales  Ry.  Ass'n. .  .125S.  1316 

Felsenheld  v.  United  States 954 

Fertilizing  Co.  v.  Hyde  Park S58 


Ficklen  v.  Shelbv  County  Taxing 

Dist 1138 

Fidelity  Mut.  Life  Ass'n  v.  Mcttler  340 

Field  v.  Barling 75C 

Finlayson  v.  Peterson 894 

Finley    v.    California 344 

First  Municipality  v.  Orleans  The- 
atre  Co 5S5 

First  Nat.  Bank  v.  Covington....  658 

First  Nat.  Bank  v.  Tyson 757 

Fischer  v.  St.  Louis  (194  U.  S.  361)  334 
Fischer  v.   St.  Louis  (194  U.  S. 

361)    392 

Fisher   v.    Blight 933 

Fitts    v.     McGiiee 13S4 

Fleming  v.  Page  (9  How.  603).  ..1002 

Fleming  v.  Page  (9  How.  603) 1012 

Fletcher  v.  Peck  (6  Cranch.  87)..  32 
Fletcher  v.  Peck  (6  Cranch.  87) . .  811 
Flint  v.  Stone  Tracy  Co.  (220  U. 

S.  107) 634,  1035,  1292 

Flint  v.   Stone  Tracy  Co.  (220  U. 

S.    107) 1316 

Flint  v.  Webb 12S4 

Florida  v.  Georgia 1336 

Fobes  v.  Rome,  W.  &  O.  R.  Co. . .  750 
Foil'.;  Yue  Ting  v.  United  States.  .  978 

Foppiano  v.  Speed...' 571,  1202 

Forbcll  v.  New  York 740 

Ford  v.  Delta  &  Pine  Laud  Co.  (164 

U.    S.    662) 834 

Ford  v.  Delta  &  Pine  Land  Co.  (43 

Fed.   181) 903 

Forster  v.  Forster 903 

Forstcr   v.    Scott 402 

Forsyth  v.  Hammond 640 

Ft.  Leavenworth  It.  R.  Co.  v.  Loive 

947,  1305 

Foster  v.  Ncilson 907 

Fourth  Nat.  Bank  v.  Francklyn. .  132') 

4Sth  St.,  Matter  of 778 

Fox  v.  McDonald 59 

Francis  v.  United  States 1054 

Frantz  v.  Autry 11 

Freeland   v.    Williams 897 

Freeman  v.  Howe 1327 

Frceport  Water  Co.  v.  Freeport. .  834 

French  v.  Barber  Asphalt  Co 655 

Frisbie  v.  United  States 425 

Frost    v.    Chicago 427 

Frothingham  v.  Shaw 509 

Gaines  v.  Fdentes 1328 

Galveston,  IT.  &   S.  A.  R.   Co.  v. 

Texas    1118 

'in,  tln<  r,  In  re 344 

Garland,  In  re 1S4 

Garnett,  In  re 1204 

Beer  V.  Connecticut 524,  1192 

Gelpcke  v.  Dubuque 1354 

General  Oil  Co.    v.   Crain 1074 

Genesee   Chief,    The 1207 


TABLE    OF    CASES 


ill 


Page 

Geo f rey  v.  Rings 06B 

i  v.  Stanton 106 

a  v.  Tennessee  Copper  Co..  1393 
Gibbous    v.    Ogden    (9   Wheat.    1) 

910,  1063 
Gibbons  v.  Ogdcn  (9  Wheat.  1)...   958 

Gibson  v.  united  States 721 

lie  v.   People 236 

Oilman  v.   Philadelphia  (3   Wall. 

718)    919 

Gllman   v.   Philadelphia   (3   Wall. 

713)    1148 

Oladson  r.  Minnesota 1187 

Gloucester  Ferry   Co.  v.   Pennsyl- 
vania     1098,  1208 

Qm  tales  v.  Williams 140 

Gordon   v.  Comes 646 

Gordon   v.    United    States 40 

Gould  v.  Gould 437 

Graham  v.  Roberts 123 

Grand  Lodge  v.  Hew  Orleans. ...  828 
Grand   Trunk  Western   U.  Co.  v. 

South   Pond   871 

Grant  v.  United  States 193 

Gray  v.  Taylor 38,  349 

On  at  Fulls   Power  Co.  v.  Great 

Foils,  etc,  R.  Co 701 

Green,  In  re 149 

Green  v.  Biddle  (8  Wheat  1)...  806 
i.nru    v.    Biddle    (8    Wheat.    1) 

S14,  127S 

Green  v.  Neal'e  Lessee 1844 

Greenwood  v.  Freight  Co 844 

Grenada    Unrobe*    Co.    v.    Missis- 
sippi     407 

Griffin  v.  Brooklyn 646 

Grim  r.  \v<  issenberg  School  Dist.  889 
Cramer  v.  Standard  Dredging  Oo.  1301 
Gulf.  C.  &  B.  F.  R.  Co.  v.  Ellis.  ..  334 

Gulf,  etc.,  Oo.  r.   Heices 843 

Gulf,  etc,  By.  v.  Texas 1171 

i.ng    v.   Chicago 391 

Cunii.    In   re 106 

Hodden  H.    Merrill 936 

Hagar    v.    Reclamation    Pist.    No. 

108  275 

Saqood   v.   Southern 1375 

Hairston  v.  Danville  &  W.Ry.Co.  690 

Hale  v.  Henkel 184,  1236 

Hall  v.  P>e  Cuir 1163 

ff  alio  well  v.  United  States 977 

Halter   v.   "Nebraska 464 

Hamilton,  r.    Brown 286 

Hamilton  Gas  Oo.  v.  Hamilton...  846 
Haul,  i,  v.  k.  o.  R I/...  1053,  1001,  1171 
Hannibal    &    St.    J.    R.    Co.    v. 

IlrsKN    1153 

Sane  v.  Louisiana 1366 

Harriman  r.  Northern  Securities 

<   ■    1228 

Harris    v.    People 196 


Pago 
Hartford  Ins.  Co.  v.  Chicago,  etc.. 

By 1354 

Hartman  v.    Trcsise 710 

Hartung  v.  People  (22  X.  V.  95). .  169 
Hartung  v.  People  (26  N.  Y.  167). .  179 
Batch  v.  Beardon  (204  U.  s.  152) 

570    1067 
Hatch  v.  Reardon  (1*4  N.  Y.  431) 

Hauenstein  v.   I.ynhain 964 

Hauser  v.   North   British  if  Mer- 
cantile lux.  Oo 464 

Hawaii   v.   Mankichi 1018 

Hawes  v.  Contra  Costa  Co 42 

Haters  r.  Oakland 1340 

Hawker  v.   New   York  (170  U.   S. 

189)    180 

Hawker  v.  yew  York  (170  U.  S. 

189)    456 

Amosl  eag  Mfg.  Co 526 

Head  Mone:  Cases  (1 12  D.  8.  580)  966 
Head    Money    Cases    (112    D.    8. 

580)    1235 

IIeai.y  Lr/UBEB  Co.  v.  Morris...  698 
Heckman  v.  Untti  d  States 1404 

Ilcff,   In  re 973 

Heine  v.  Levee  Com'rs 809 

Henderson  v.  New  York  (02  U.  S. 

259)    

Henderson  v.  New  York 

S.  259)   1152 

Henderson    Rridi/e    Co.    v.    Ken- 
tucky   551,  1311 

Bennington   v.  Georgia 4io 

Henry  v.  Dick  <'o 1B12 

Hepbttrn  v.   f.u./xy 990,  1339 

Hepburn   v.   GriSwold 934,  936 

Herndon  v.  Chicago,  R.  I.  <C  /'.  />'. 

Co 261 

Bibernia  Sue.  v.  San  Francisco.  .  ,l-'.'7 

Bijo   v.  United  States 967 

Hildkktii    v.    Mc  Inure 47 

Ilipolite  Egg  Co.  v.  United 

1064,   1247 

Hobart  v.  Railroad  Co 758 

Hodg<  »,    F.r  parte 4 10 

Hodges  v.  Failed  states 163 

Hoke  v.  Unit*  d  states 123  I 

Holden  v.  Hardy 409 

Hollingsworth  v.  Virginia  (3  Dall. 
878)    14 

SWOBTB      V.      VlBQIKIA     (3 

Hall,   378)   

H oilman,  Ex  parte 162 

i   v.  Jennison 071 

Holmgren  v.  United  States 953 

I  ns.  i  :o.  v.  Morse 254 

Home  Ins.  Co.  v.  New  York 1290 

Home  of  Friendloss  r.  Bouse....   v-'- 
Home  Say.  Bank  v.  1'cs  Moines.  .1288 
I.,  etc.  Co.  o.  '  •'"  of  Los 
Angeles  (211  U.  S.  265) 


TABLE    OF    CASES 


Pago 

Home    Tel.    Co.    v.    City   of   Los 

Angeles  (227  U.  S.  278) 239 

Ilooe  v.  Jaruieson 1338 

Hooper  v.  California 235 

Hopkins  v.  United  States 1216 

Hopson's  Appeal 84 

Hopt  v.   Utah 175 

Horace  Waters  &  Co.  v.  Gerard,. .  512 

Horan  v.  Byrnes 4G9 

Horn  Silver  Min.  Co.  v.  New  York  619 

Houston  v.  Moore 919,  912,  953 

Houston  &  T.  C.  R.  Co.  v.  Mayes.. 1186 
Houston,  etc.,  R.  Co. V.Texas.. 812,  936 

Huddart  c£-  Co.  v.  Moorehead 75 

Hudson  County  Water  Co.  v.  Mc- 

Carter    524,  855,  1192,  1397 

Hunter  v.   Pittsburg 123,  261 

Huntington  v.   Attrill 953,  1351 

Hurtado  v.  California 231,  270 

Huse  v.   Glover 1051 

Hyde  v.  Minn.,  etc.  Ry 718,  767 

Hylton  v.  United  States 1027 

Illinois  Cent.  R.  Co.  v.  Decatur...  834 

Illinois  Cent.  R.  Co.  v.  Illinois 
(146  U.  S.  3S7) 874 

Illinois  Cent.  R.  Co.  v.  Illinois 
(163  U.  S.  142) 1187 

Inhabitants  of  Goshen  v.  Inhab- 
itants of  Stonington 87S 

Ininan  S.  S.  Co.  v.  Tinker 1050 

Insurance  Co.  v.  Dunham 1267 

International  Postal  Supply  Co.  v. 
Bruce    1380 

International  Text-Book  Co.  v. 
Pigg    1064,  1146 

Interstate  Commerce  Commis- 
sion v.   Baird 1S9 

Interstate  Commerce  Commission 
v.  Brimson  (154  U.  S.  447) 70 

Interstate  Commerce  Commission 
v.  Brimson  (154  U.  S.  447) 290 

Interstate  Commerce  Commission 
v.  Goodrich  Transit  Co 1240 

Interstate  Commerce  Commission 
v.  Humboldt  8.  S.  Co 1239 

Interstate  Commerce  Commission 
v.  Illinois  Cent.  Ry 1239 

Interstate  Commerce  Commission 
v.  Louisville  &  N.  R.  Co 2S9 

Iowa  Cent.  Ry.  v.  loxoa 275 

Ives    v.    South    Buffalo    R.     Co. 

44S,  520,  534 

Jack  v.   Kansas 1S6 

Jackson,  Ex  parte 959 

Jackson,  In  re 193 

Jaokson  v.  The  Magnolia 1267 

Jacobs,  Matter  of 421 

Jacobson    v.    Massachusetts    (197 

U.   S.   11) 444 

Jacobson  v.  Massachusetts  (197  U. 

S.    11) 938 


Page 

James  v.  Bowman 248 

Janvrin,   In  re 96 

Japanese  Immigrant  Case 300 

Jaremillo  v.  Romero 161 

J.  E.  Rumbcll,  The 1271 

Jetton  v.  University  of  South 834 

Johanncsscn  v.  United  Stales.... 

1S4,  80S 

Johnson,  In  re 6] 

Johnson  v.  Southern  Pae.  Ry 124H 

Joline  v.  Willcox 100 

Jones  v.  Brim 506 

Jones  v.   United   Status   (137  U. 

S.    202) 1001 

Jones  v.  United  States  (137  U.  S. 

202)     1012 

Jordan  v.  Massachusetts 293 

Jordan  v.  State 425 

Josma   v.    Western    Steel    Car   & 

Foundry    Co 357 

Juilliard  v.   Greenman  (110  U.  S. 

421)    924 

Juilliard  v.  Ureenman  (110  U.  S. 

421)     935 

Julia  Bldg.  Ass'n  v.  Bell  Tel.  Co.  761 

Kansas    v.    Colorado    (1S5    U.    S. 

125)     1391 

Kansas    v.    Colorado    (206    U.    S. 

46)    93S,  1321 

Kansas    v.    Colorado    (206    U.    S. 

46)     1394 

Kansas  v.  United  States 1404 

Kansas  Pac.  Ry.  v.  Atchison,  etc., 

Ry 1343 

Kaukauna    Water    Power    Co.    v. 

Green  Bay  &  M.  Canal  Co.  (142 

U.   S.   254) 696 

Kaukauna  Water  Power  Co.  v. 

Green    Bay    &    M.   Canal   Co. 

(142  U.  S.  254) 733 

Kawananakoa  v.  Polyblanl: 1371 

Kay  v.  Penn.  Ry 897 

Kehrer  v.  Stewart 1140 

Keller  v.  United  States 9S2 

Kelley  v.  Rhoads 1071 

Kellinger  v.   Railroad   Co 751 

Kelly  v.  Pittsburgh (!37 

Kendall  v.   Stockton  &   Stokes  110 

Kent  v.  Gray 910 

Kentucky  v.  Dennison 953 

Keokuk,  etc..  R.  R.  v.  Missouri. . .  841 

Kidd  v.  Alabama 606 

Kidd   v.   Pearson 398,  1068,  1193 

kllbourn  v.  thompson 65 

Kimmish  v.  Ball 1154 

King  v.  Associated  Northern  Col- 
lieries     1227 

Kingman  v.  Brockton 60 1 

Kipp  v.  Daly-Davis  Copper  Co 768 

klrtland  v.  hotchkiss 545 

Klinger  v.  Missouri 790 

Knapp,  etc.,  Co.  v.  McCaffrey.  ..  .1272 


TABI.K    OF    CASE3 


Kncrdlcr  v.    Lane 942 

Knights  of  Pythias  v.  Meyer 810 

Knights  Templar,  etc.,  Co.  v.  Jar- 
man    ~,J~ 

Knovlton    v.    Moore    (178    U.    S. 

41)    509,  629,  630,  6S4 

Knowlton    v.    Moore    (ITS    U.    S. 

41)    1036 

Knowlton   v.   Moore   (178   U.   S. 

41)     1309 

Knoxville  v.  Knoxville  Water  Co.  492 
Knoxyii.i.e  Iron  Co.  v.  HARBISON  425 
Knoxville  Water  Co.  v.  Knoxville  833 

Koebler  v.   Hill 17 

Kohl   v.   United   States CGI,  953 

Krino  v.  Missouri 174 

Krveger  v.    Wis.  Tel.   Co 7G0 

Kulm   v.  Fairmont  Coal  Co.   (215 

1.    S.   349) 1361 

Kuhn  v.  Fairmont  Coal  Co.  (179 
Fed.    191) 1365 

La  Crosse  City  R.  Co.  v.  Higbee. .  757 
Lake  Shore  St  M.  S.  R.  Co.  v.  Ohio 

ex  rel.  Lawrence  (173  U.  S.  2S5)  324 
Lake  shore  &  M.  S.  R.  Co.  v.  Ohio 

ex    rel.    Lawrence    (173    V.    S. 

285)    HS7 

Lake    Bhore   <&   M.    8.    R.    Co.  v. 

Prentice    1350 

Lambert  v.  Norfolk 769 

I  ..i in-  v.  Nelson 892 

Lane  county  v.  Oregon.  .920,  936,  1287 

Lang  v.  liayonne 50 

Laramie  County  v.  Albany  Coun- 
ty      817 

Laugel  v.  Bushnell 400 

Laurel  Hill  Cemetery  v.  city  and 

County  of  San  Francisco 448 

Lawton  v.  Steele -•'•"' 

Leavitt   v.   Morris 441 

Legal    Tender     Cases    (12     Wall. 

457)     721,  930 

Legal  Tender  Cases  (12  Wall.  457)  930 
Lehigh  Yal.  Ru.  v.  Pennsylvania..  1107 

Leisy  v.  Hardin 1  L93 

Leloup  v.  Port  of  Mobile 1107 

Lemieuw  v.   Young :!('..",.  462 

Lemmon  v.   People 205 

Lennon.   In   re 163 

Lewis  Pub.  Co.  v.  Morgan 959 

L'Hote  v.  New  Orleans 440 

License  Cases  (5  How.  504).  .323,  loir, 
License  Cases  (5  How.  504).  .538,   1041 

License  'tax   Cases 102 1 

LiebermoM   v.    Van   De  Can-   (199 

U.   S.   5521 334 

Lleberman  v.   Van   De  Can   (199 

U    S    552) 389 

Light   v.    United   state* 1803 

Lincoln  v.   United  States 1012 

Lincoln  County  v.  Luning 1371 


Page 

Lindsay  £  P.  Co.  v.  Mullen 512 

Lindsley  v.  Natural  Carbonic  Gas 

Co 376 

Livingston  v.  Livingston 898 

\-.soe.  v.  Tope&a 582 

Lochner  v.  New   fork  (19S  U.  S. 

45)     235 

Lochner  v.  New   Yorl;   (19s   I".    S. 

45)    414 

Loewe  v.  Lawlor 1226 

Logan  v.  United  States. 948 

Londoner  v.   City  and   County  of 

Doner    279 

Lom  ;i.  In  re 917,  950 

Lo:ig   Island  Water  Supply  Co.   v. 

Brooklyn   661 

Looker  v.  Maynard 8J5 

Lord  v.  Steamship  Co 1061 

Los  Angeles  v.  City  Water  Co....  829 
I.nVl'AU  A.N.NA,     The 1265,   1269 

Lottery  Case  (188  U.  S.  321) 

Lottery  Case  (188  U.  S.  321) 1230 

Loughborough  v.  Blake 990 

Louisiana  v.  Jumel 1376 

Louisiana  v.  Mayor 815 

Louisiana  v.  Texas  (176  D.  8.  1)..1156 
Louisiana  v.  Texas  (176  T".  S.  1).  .1386 
Louisville  v.  Cumberland  Tel.  Co.  841 
i  le,    C.   &   C.   R.   Co.    v. 

Letson     1842 

Louisville,  de.,  Ry.v.  Mississippi..  1166 
Louisville  Gas  Co.  v.  Citizens'  Co.  843 
Louisville  Water  Co.  v.  Clark....  852 
Louisville    &    J.    Ferry    Co.    v. 

Kentucky    539 

Louisville  cf  .v.  Ru.  v.  Eubank  — 1172 
Louisville  <t  X.  B.  Co.  v.  Kentucky  *77 
Louisville  &  N.  R.  Co.   v.   Melton 

(218  r.  S.  36) 372 

Louisville  &  N.   R.   Co.  v.   Melton 

(218  U.  S.  36) 1332 

Louisville   £    y.    R.    Co.   v.    Mot- 

iley   '--■  856 

Low  v.  Austin 1045 

Loir  v.  Rees  Printing  Co 419 

Lotce  v.  Conroy 454 

Lowell  v.  Boston 573 

Luinticvviiic  Bridge  Co.  v.  Asses- 
sors     624 

:  v.    BOBDEN  (7  How.  1)....       18 

Luther  v.  Borden  (7  How.  l) lei 

Luther  v.  Borden  (7  How.  1) 942 

Lux  ton    v.    North    River    Bridge 

Co 1214 

Lynch  v.  Clarke 1"" 

Lyons  v.  Hank  of  Discount 947 

McCabe  v.  Atchison,  T.  it  S.  F.  p. 

Co 369 

McCall   v.    California    (136    U.    S. 

104)     1109 

McCall  v.  California  (136  U.  S. 

104)     1128 


TAI5LE    OF    CASES 


McCardlc,  Ex  parte 178,  1323 

MeChord  v.  Louisville  &  N.  R.  Co.  113 

Mi  Glurg  v.  Powell 24 

MeOord  v.  Sullivan 002 

McCracken  v.  IIayward 806 

Mc<  iray  v.  United  States 030 

McCready  v.   Virginia IOCS 

McCulloch  v.   Maryland 921,  1279 

McCune  v.  Essig 1307 

Mel  lermott  v.  Wisconsin 1211 

McDevitt  v.  People's  Natural  Gas 

Co 7G2 

McDonald  v.  Keeler 05 

McDonald  v.  Massachusetts.  .171,  345 
McFaddin    v.    Evans-Snidcr-Bucl 

Co 890 

McGahey  v.  Virginia. .  .703,  909,  1371 

McGlone  v.  Womack 535 

McHcnnj  v.  Afford 1122 

Machine  Co.  v.  Gage 1132 

McKeon  v.  X.  Y.  d  N.  H.  R..  Co. . .  327 
McLean  v.   Arkansas   (211   U.   S. 

539)    349 

McLean   v.   Arkansas   (211   U.   S. 

539)    424 

McPherson,  Matter  of 010 

McPherson  v.  Blacker 149 

Madison  v.  Madison  Gas  <£  Electric 

Co 101 

Madisonville   Co.   v.   St.   Bernard 

Co 1346 

Magnolia,  The 1267 

Magoun  v.  Illinois  Trust  &  Sav- 
ings  Bank G29 

Maguiar   v.   Henry 904 

Maine  v.  Grand  Trunk  R.  Co 1115 

Mallctt  ik  North  Carolina 178 

Manigault  v.   Springs 720,  854 

Marburv   v.    Madison    (1    Cranch, 

137)    28 

Marhnry  v.   Madison   (1   Cranch, 

137)     1324,  1331 

Marshall  v.  Baltimore  &  O.  It. 

Co 1342 

Marshall  Field  &  Co.  v.  Clark 18 

Martin  v.  District  of  Columbia.  . .   655 

Martin  v.  Hunter's  Lessee 1323 

Martin  v.  Ingham 112 

Mabtin  v.  Mott  (12. Wheat.  19)..  103 

Martin  v.  Mott  (12  Wheat  19) 942 

Martin  r.    West 1271 

Marvin  v.  from 50S 

Marx  v.  Banthorn 905 

Mason  v.  Missouri  ex  rel.  McCaf- 
frey      349 

Maximum  Rate  Cases 1239 

Maxwell  v.  Dow 225 

May  v.  New  Orleans 1047 

Mavnard  v.  Hill  (125  U.  S.  190i.  . 

58,  434 
Mavnard  v.  Bill  (125  U.  S.  190). .  817 

Mayor.  The,  v.  Cooper 1335 

Mayor  of  New  York  v.  Miln 1079 


Mechanics'  Far.  Bank  v.  Allen. .. .  883 

Medley,  In  re 171 

Meigs  v.  Rob<  rts 902,  909 

Memphis  Bank  v.   Tennessee... .  840 

Merchants'  Bank  v.Ballou.. 890 

Merrill  v.  Sherburne 54 

Merryman,  Ex  parte 105 

Metropolitan  L.  Ins.  Co.  v.  New 

Orleans 540 

Metropolitan      St.      Ry.     v.      Tax 

Com'rs   623 

Meyer  v.   Richmond 756 

Meyers  v.  Baker 463 

Miantinomi,  The 937 

Michigan  Cent.  Ry.  v.  Powers 

611,  645 
Michigan  Cent.  Ry.  v.  Vreeland..  .1255 

Mill  v.   Brown 435 

Miller  v.  llorton  (152  Mass.  540).  .  296 
Miller  v.  Horton  (152  Mass.  540).  .   452 

Miller  v.  Johnson 11 

Miller  v.  United  States 942 

Milligan,  Ex  parte 105,  942 

Mills  v.  United  States 720 

Milwaukee    Inddstbial    School 

v.  Supervisors 432 

Minneapolis  v.  Minneapolis  St.  Ry.  80!) 
Minneapolis  Mill  Co.  v.  Board  of 

Water  Com'rs  of  St.  Paul 738 

Minnesota    v.   Barber    (130    U.   S. 

313)    10S6 

Minnesota   v.   Barber   (136   U.   S. 

313)    H63 

Minnesota  Canal  Co.  v.  Koochich- 
ing Co 701 

Minnesota  Rate  Cases 400,  1174 

Minor   v.   Happersett 140 

Mississippi  v.  Johnson 109 

Missouri  v.    Illinois  (180  U.  S. 

20S)    1391 

Missouri    v.    Illinois    (200    U.    S. 

5211   1397 

Missouri  v.  Lewis 329 

Missouri,  K.  &  T.  R.  Co.  v.  Ha- 

ber    1155 

Missouri,  K.  &  T.  R.  Co.  of  Texas 

v.   May 359 

Missouri   Pae.  Ry..  v.   Castle 11S7 

Missouri  Pae.  R.  Co.  v.  Humes.  . .  .  505 
Missouri  Pae.  R.  Co.  v.  Nebraska  0ti7 
Missouri  Pae.  R.  Co.  v.  Tucker..  50S 

Missouri  Rate  Cases 501 

Mitchell  v.  Clark 896,  1335 

Mobile  v.  Yuille 4S1 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Tur- 

nipseed   3S1 

Monongahela  Xav.  Co.  v.  United 

States  (14S  U.  S.  312) 734.  1070 

Monongahela  Nay.   Co.  v.  United 

States  (14S  U.  S.  312) 955 

Monroe  v.  Endclman 659 

Montello,   The 1262 

Mooee   v.    Sanford 0S5 


TAl-.Li;    OF    CASUS 


xxv 


Page 

Morgan  v.  King 734 

Morgan'*  S.   8.   Co.  v.  Louisiana 

Board  of  Health 1156 

Morley  v.  Lake  Shore  &  M.  s.  R. 

815 

Taylor,  The 1326 

Mover  v.   I'eabodg 105 

Mugler  v.  Kansas 393 

Muhlker  v.  New  York  &  II.  R.  /.'..  . 

J26,  1359 

Mailer  v.   Oregon :;7o 

Munn  v.  Illinois  (94  1".  S.  113) 34 

Mann  v.  Illinois  (94  U.  S.  113) 479 

Murdoch  v.  Memphis 1332 

Murphy   v.   California 363 

Murphy  v.  Commonwealth 171 

Hurray  v.  Charleston 1297 

Murray  v.  Hobokea  Land  &  Im- 
provement Co 262 

Muskrat  v.  United  States 30 

Mutual   Loan  Co.  v.  Martell  (222 

U.    S.    225) 322 

Mutual  Loan  Co.  v.  Martell  (222 
U.  S,225) 3C2 

yahant  v.  United  States 1305 

Nolle   V.  Austin 60 

Nathan   v.   Louisiana 1068 

National  Hank  v.  Commonwealth.  .1Z02 

Neagle,    In  he 9 19 

Neeltl  v.  Eenkel  (ISO  U.  S.  1091.. 

'."•7.  987 
Neely  v.  Henkel  (ISO  U.  S.  109).. 103  1 

Neilson  v.  Garza 1109 

Nesbit  v.  People 24 

Nevins  v.  Peoria 740 

New  England  Telephone  &  Tele- 
graph  Co.   v.   Boston  Terminal 

Co 764 

New  Hampshire  v.  Louisiana...  .1389 

New  Jt  rsey  v.  Wilson 837 

New  Jersey  v.   Van! 843 

.\  i  ivman  v.  Metropolitan  Elevated 

Ry 7S2 

Mexico  v.  Denver  &  R.  O.  R. 

Co 10S9.  11G2  j 

\  •  a-  Orleans  v.  Clark 907 

New  Orleans  v.  Houston 022 

New    Orleans  v.   Stempel 517 

New  Orleans  V.  Winter 1339 

New  Orleans  Gaslight  Co.  v. 
Drainage  Commission  (197  U.  S. 

453)    73G 

New  Orleans  Gas  Light  Co.  v. 
Drainage  Commission  (197  U.  S. 

153)    SCO 

New  Orleans  Gas  Litjht  Co.  v. 
Louisiana  Light  if  Heat  Produc- 
ing tt  Mfg.  Co.  in.",  r.  s  i 

I 
New    Orleans    Gas    Light    Co.    v. 
Louisiana  Liu-ht  &  Heat  Produc- 
ing &  Mfg.  Co.  (115  U.  S.  650)..  SC5 


Page 

New  Orleans  Water  Co.  v.  Rivers  829 
New  Orleans  Waterworks  Co.   v. 

Louisiana  Sugar   I: 

Newton  v.  Commissioners 876 

Nt  w    York,  Matter  of   (190  N.   V. 

640,  775 

New   York,   Matter  of  (190  N.   Y. 

350) 775 

New  York  v.  Comp.  Grit.  Trans.. 

New  York  v.  Hesterberg 12m 

New  York  v.  Wells 

New  York  Cent.  It.  Co.  v.  Lock- 
wood  (17  Wall.  357) 117^ 

\  ■  "■    York   r,  nt.  I:.   Co.   1 . 

I  (11  Wall.  357) 1350 

New  York  Cent.  <(•  //.  R.  R.  Co.  v. 

Uniti  d  states 506 

New  York  Cent.  &  H.  It.  It.  Co.  v. 

Williams  (199  X.  Y.  108) 531 

New  York  Cent,  d  II.  I;.  R.  Co.  v. 

Williams  (199  N.  Y.  10S) 

Now    Yo  k  ex  ret.  Hatch  v.  Rear- 

don  (204  D.  S.  152) 570,  10G7 

New    York   ex  rci.  Lieberman    0. 

Van  Dc  Carr  (199   U.   S.  552)..  334 
New   York   ex   rel.   Lieberman    v. 

Van  De  Carr  (199  U.  S.  552)..  , 
New  York  ex  rel.  New  York  Cent 

&  11.  It.  It.  Co.  v.  Miller 541 

New  York  ex  rel.  Pennsylvania  It. 

Co.    v.    Knight 1127 

New    York  ex  rel.  Sil~  v.  Hi  stt  r- 

berg  3S1 

.Yen-   York.  L.  E.   d   W.  R.  Co.  v. 

Pennsylvania  (153  U.  S.  628)...  854 
Is,   L.  E.  d  W.  R.  Co.  v. 

Pennsylvania  0158  D.  S.  431)...  1107 
New  York  Life  Ins.  Co.  r. 

ens  1068 

2Veic  York,  N.  H.  d-  U.  Ry.  Co.  v. 

,Y<  10   York 1181 

Niagara  Falls  &  Whirlpool  I!.  Co., 

Matter    of   702 

Nickerson  v.  Boston 449 

Nicol  r.  Ames 1033 

NisniMUEA      Ekiu      v.      United 

States   97S 

Noble  State  Bank  v.  Haskell  (219 

U.   S.    104) 323 

Noble  State  Bank  v.  Haskell  (219 

U.   S.   104) 509 

Norfolk    d    S.     Turnpike    Co.    v. 

Commonwealth  of  Virginia....  490 

Norfolk  d  W.  Ry.  v.  Sim's 1137 

North  American  Cold  Storage  Co. 

v.  Chicago 

North   Dakota   v.    Hanson 1293 

.  Mart/land .  .    843 

Northern  I'ae.  /,'.  Co.  >.  Washing- 
ton (222  U.  S.  370) 1249 

Northern  Pao.  R.  Co.  v.  Washing- 
ton (222  U.  S.  370) 1259 


XXVI 


TABLE    OF    CASES 


Page 

Northern  Securities  Co.  v.  United 

States  (193  U.  S.  197) 468 

Northern  Securities  Co.  v.  United 

States  (193  U.  S.  197) 1220 

Northwestern    Fertilizing    Co.    v. 

Hyde  Park 398 

Norton  v.  Shelby  County 44 

Norwalk  St.  R.  Co.,  Appeal  of...     81 

Norwood   v.    Baker 649 

V  v.  Massachusetts 235 

Oceanic  Steam  Nav.  Co.  v.  Stran- 

ahan  29S 

Offleld  v.  New  York,  N.  U.  &  H. 

R.    R 692 

Ogden  v.  Saunders 795 

Ohio  v.  Thomas 1294 

Ohio  ex  rel.  Lloyd  v.  DoUison. ...  360 

Ohio  Oil  Co.  v.  Indiana 521 

Ohio  R.  R.  Commission  v.  Worth- 

ington   1171 

Ohio  &  M.  R.  Co.  v.  Wheeler 1340 

Oklahoma  v.  Atchison,  T.  &  S.  F. 

R.  Co 1397 

Oklahoma  v.  Gulf,  C.  &  S.  F.  R. 

Co 1398 

Old  Dominion  S.  S.  Co.  v.  Gilmore  1274 

Oldknow  v.  Atlanta 373 

Omaha    Horse    R-    Co.    v.    Cable 

Tramway  Co.  (32  Fed.  727)....  769 
Omaha    Horse    R.    Co.    v.    Cable 

Tramway  Co.  (32  Fed.  727)....  1332 
Opinion   of  Justices  (150  Mass. 

592)    602 

Opinion  of  Justices  (155  Mass. 

598)    602 

Opinion    of    Justices    (160    Mass. 

586)    114 

Opinion    of   Justices    (163    Mass. 

589)    427 

Opinion    of    Justices    (166    Mass. 

589)    366 

Opinion   of  Justices  (1S2  Mass. 

605)  602 

Opinion   of  Justices   (204   Mass. 

607)    603 

Opinion    of    Justices    (204    Mass. 

607)    684 

Opinion    of    Justices    (207    Mass. 

601)    369 

Opinion    of    Justices    (208     M;iss. 

619)    419 

Opinion    of    Justices    (209    Mass. 

607)    517 

opinion    of    Justices    (211    Mass. 

605)    1204 

Opinion    of    Justices    (211    Mass. 

618)    356 

Opinion    of    Justices    (211    Mass. 

620)    473 

Opinion    of    Justices    (211    Mass. 

624)    601 


Page 
Osborn  v.  President,  etc.,  of  Bank 

of  United  States  (9  Wheat.  73S)  1329 
Osbobn    v.    President,    etc.,    of 
Bank    of    United    States    (9 

Wheat.  738)  1373 

Osborne  v.   Florida 1111 

Oshkosh  Waterworks  Co.  v.  Osh- 
kosh     809 

Otis  v.  Parker  (187  U.  S.  606) 358 

Otis  v.  Parker  (187  U.  S.  606) 460 

Otis  Co.  v.  Ludlow  Mfg.  Co 787 

Ouachita  Packet  Co.  v.  Aiken. . .  .1162 
Owensboro  v.  Cumberland  Tel.  Co. 

841,  851 
Owensboro  Nat.  Bank  v.  Owens- 
boro   1290 

Oioensboro     Waterworks     Co.     v. 

Owensboro   240 

Ozan  Lumber  Co.  v.  Union  County 
Nat.  Bank  361 

Pacific  R.  R.  Removal  Cases 1305 

Palairet's   Appeal 686 

Palmer  v.  Larchmont  Electric  Co. 

(158  N.  Y.  231) 760 

Palmer  v.  Larchmont  Electric  Co. 

(158  N.  Y.  231) 764 

Parmelce  v.  Lawrence 881 

Parsons  V.  Disti-ict  of  Columbia.  .   654 
Passaic  v.  Paterson  Bill  resting, 

Advertising  &  Sign  Painting  Co. 

400,  726 

Passaic  Bridges,  The 1151 

Passenger   Cases 1079.  1094 

Patapsco     Guano     Co.     v.     North 

Carolina  Board  of  Agriculture..  1157 
Patterson  v.  Colorado  ex  rcl.  At- 
torney General 292 

Patterson  v.  Kentucky 1312 

Patterson  v.   The  Eudora 125.8 

Patton  v.  Brady 1034 

Paul  v.  Virginia 200,  1067 

Payne  v.  Hook 1327 

Pcarsall  v.  Great  Northern  R.  Co. 

(161  U.  S.  646) 825 

Pearsall  v.  Great  Northern  R. 

Co.  (161  U.  S.  646) S73 

Pedersen  v.   Delaware,   L.   <&    W. 

Ry 1254 

Peel  v.  Atlanta 76.8 

Peerce  v.  Kitsmiller 879,  897 

Pembina    Consol.    Silver    Min.    & 

Mill.    Co.   v.    Pennsylvania   (125 

U.  S.  181) 251 

Pembina    Consoi.    Silver    Min.    & 

Mill.   Co.  v.   Pennsylvania    (125 

U.  S.   181) 1148 

Pennoyer  v.  McConnaughy.  .1374,  1377 

Pennouer  v.  Neff 803 

Pennsylvania  v.    Standard   Oil 

Co 1100 


TABLE    OF    CASKS 


XXUI 


Page' 
Pennsylvania  v.   Wheeling  £   Bel- 
mont Bridge  Co.  (18  How.  518) 

107G,  1181,  1397 
Pennsylvania     v.     Wheeling    & 
Belmont  Bridoe  Co.  (18  How. 

4l'li  720 

Pennsylvania  R.  Co.  v.  ncGnESll84 
Prnsacola    Tel.     Co.    v.     Western 

Union  Tel.  Co 1061,  1060 

People  v.  Adirondack  R.  Co.  (100 

X.  Y.   225) 600 

People  v.  Adirondack  />'.  Co.  (100 

X.    Y.  225) 788 

People    v.    Cannon 3S3 

People  v.  Collin* 116 

People  v.  Oompao.  Qen.  Tran»....  1162 

People   v.   Ever l:;" 

People  v.   Gallagher 309 

428,  1204 

People  v.  Hayes 171 

People  v.  Bill 512 

People  o.  Mara 40^ 

People  v.  O'Brien 840 

People  v.  Raynes 614 

People  v.  Salem 585,  676 

People  v.  Turner 905 

People  v.   Williams 872 

People  v.  Wisconsin  Cent.  R.  Co.  898 
People  ex  rel.  Attorney  General  v. 

Tool  108 

People  ex  rel.  Haronc  v.  Fox  373,  443 
People     ex     rel.     Farrington     v. 

Monsching    611 

People  ex  rel.  Griffin  v.  Brooklyn  646 
People  ex  rel.  Hatch  v.  Reunion 

(184  X.  Y.  431) 569,  605 

People  em  rel.  Hatch  v.  Reardon 

(204  U.  S.  152) ".70,  1007 

People  ex  rel.  Joline  v.  Willcox.  .  100 
People  ex  rel.   Lit  barman  v.  Van 

De  Carr  (199  U.  S.  552) 334 

People  ex  rel.  Lieberman  v.  Van 

I  le  Carr  (199  D.  S.  552) 3S9 

People  ex  rel.  McDonald  v.  Keeler    65 
People    ex    rel.    Metropolitan    St. 

It!/,  v.  Tax  Com'rs 02M 

People  ex  rel.  Sutherland  V.  Gov- 
ernor       112 

People  ex  rel.  United  States  Alum, 

etc,  Go.   r.    Knight 623 

Perry   v.   Keene 58S 

PeNt  v.   Minnesota 858 

Philadelphia,  B.  <&  W.   R.  Co.  v. 

Schubert   1256 

Philadelphia  Co.  v.  Btimson 1210 

Philadelphia    Fire    Ass'n    v.    Xew 

York   252 

Philadelphia  ft  Southern  Mall  S. 

S.  Co.  v.  Pennsylvania 1104 

Phoenix  Hat,  Bank  v.  Batcheller..   805 
PlOKABD    V.     PlLlMAN     Soi  rilERN 

CAB    Co 1110 


Page 

Pierce  o.  Drew 763 

Pinney  v.  Nelson 7i»7 

Plqua   Branch   of   State  Bank   of 

Ohio  v.   Snoop 825 

Pleasant  Tp.  v.Xtnalns.Co 1855 

Plessy  v.  Ferguson 887 

Plumley  v.  Massachusetts 1202 

Plummer  v.  Coler  (178  U.  S.  115)..  1292 
Plummer  v.  Coler  (178  U.  S.  115) 
Plummer  v.  North*  rn  Pae.  i;y..  . .  881 
Pollock  v.  Farmers'  Loan  d-  Trust 

CO.  (157  T".   8.  420i 42,  1287 

Pollock  v.  Farmers'  Loan  &  Trust 

Co.  (157  U.  S.   429) 1020 

Pollock  v.  Fanners'  Loan  &  Trust 

Co.  (158  V.  8.  601) 52 

Pope  V.  Williams 14:'. 

Postal  Tel  Cabh   Co.  v.  Adams.  .1117 
Pi  /.  Cable  Go.  v.  Taylor...  344 

Powell  v.  Pennsylvania 405 

786 

Powers  v.  Detroit,  G.   H.  &  M.  R. 

Co 854 

Prairie  nil  £  Gas  Co.  v.    United 

States    485 

Prentis  v.  Atlantic  Coast  Line  Co. 

(211  U.  S.  210) •■'-,.  1329 

Prentis  v.  Atlantic  Coast  Lane  Co. 

(211  D.  S.  210i 309 

Prigs;   v.  Pennsylvania 12,  8 

Prize  Cases  942 

Providence  Bank  v.  Billings.  .825,  833 
Provident  Inst,  for  Sav.  in  Town 

of  Boston  v.  Malone 362 

Provident  Sav.  Life  Assur.  Soc.  v. 

Ford    1337 

Pullman  Co.  v.  Adams 1112 

Pullman  Co.  v.  Kansas 1126 

Pullman's  Palace  Car  Co.  v.  Penn- 
sylvania     1113 

Pumpelly  v.  Green  Bap  Co 719 

Purity    Extract    <&    Tonic    Co.    P. 

Lynch    381 

Quarlrs.   In  re 950 

Questions  and  Answers,  Inre.. 403,  525 

Quong  Wing  v.  Kirkcndall 617 

Qnong  Wo,   Ex  parte 398 

RadeiifPs  Ex'rs  v.  Mayor 740 

Rahrer,  In  re  (140  r.  s.  .-,  151 52 

Rahrer,  In  re  (140  D.  S.  545) 1197 

Railroad  Com  mixtion  Cases BS  I 

Railroad  Co.  v.  Ifusen 1153 

Railroad  Co.  v.  Maryland 1094 

Railroad  Go.  v.  National  Bowie. ..1350 

Railroad  Co.  v.  Otoe 594 

Railroad  Co.  T.  Fenlston 1296 

Railroad  (o.  v.  Tennessee si>7 

Railroad  Co.  v.  Whitton 1824 

Rapid  Transit  R.  R.  Com'rs,  Mat- 
ter of  74S 


xxv  in 


TABLE    OF    CASES 


Page 

Rapier,    In  re 327,957 

Rusnius.ii  »  v.  Idaho 115G 

IJassiuussen  v.   United   States.  ..  .1015 
Ratterman  v.  Western  Union  Tel. 

Co 1107 

Rauenstein  v.  Xew  York,  L.  d-  W. 

/,'.   Co 749 

Rawlins  v.  Georgia 317 

Raymond  v.  Chicago  Union  Trac- 
tion Co 239,  387,  61S 

Raymond  v.  Fish 454 

Reagan  v.  Farmers'  Loan  d  Trust 

Co.  (154  U.  S.  362) 239 

Reagan  v.  Farmers'  Loan  &  Trust 

Co.  (154  U.  S.  362) 4S6 

Rcarick  v.  Pennsylvania 1137 

Fanes  v.  Ainsirorth 276,  942 

Reetz  v.  Michigan 2S9 

Reining  v.  New  York,  L.  &  W. 

R.   Co 749 

Reitler  v.  Harris 897 

Rcymann  Brewing  Co.  v.  Brister 

(179  U.  S.  445) 360 

Revinann  Brewing  Co.  v.  Brister 

(179  U.  S.  445) 1088 

Rhode  Island  v.  Massachusetts  (12 

Pet.  657)   1394 

Rhode  Island  v.  Massachusetts 

(12  Pet  657) 1400 

Rhodes  v.  Iowa 1201 

Rice  v.  Parkman 435 

Rich  v.  Flanders 914 

Richey  v.  Smith 457 

Richmond,  F.  &  P.  R.  Co.  v.  Rich- 
mond   358 

Richmond  d  A.  R.  Co.  v.  Patter- 
son  Co 1185 

Rideout  v.   Knox 469 

Rigney   v.    Chicago 765 

Ritchie  &  Co.  v.  Wayman. . .  .357,  372 

Road  Co.  v.  Sandford 490 

Roanoke,   The   1271 

Pa>l 'bins  v.  Shelby  County  Taxing 

Dist 1132 

Robert  W.  Parsons,  The...  1262,  1267 

Roberts  v.    Boston 367 

Roberts  v.  Lewis 1357 

Robertson   v.  Baldwin 154 

Robinson,  Ex  Parte 79 

Robinson  v.   Swope 702 

Robison   ».   Wayne  Circuit  Judges  432 

Rochester  v.  West 402 

Rochester  R.  Co.  v.  Rochester 836 

Rockingham  Light  &  Power  Co. 

v.  Hobbs 700 

Rogers  Park  Co.  v.  Fergus 834 

Roller  v.    Holly 2S5 

Roqney  v.   Xorth   Dakota 171 

Rosenthal  v.  New  York 360 

Ross.   In  re 985 

Ross  v.   Oregon 168 

Rowan  v.  Runnels 1357 


Page 

Roy  all.  Ex  parte 952 

Rutgers  r.  Wadding  ton 27 

Ryerson  v.  Brown C94 

St.  Anthony  Falls  Co.  v.  St.  Paul 

Com" is    727 

St.     clair    County    v.    Interstate 

Transfer  Co 1145 

St.  John  v.  New  York...'. 379 

St.  Louis  v.  Hill 402 

Sf.    Louis   v.   Western    Union   Tel. 

Co 1101,  1305 

St.  Louis  Consolidated  Coal  Co.  v. 

Illinois    348 

St.  Louis  Gunning  Advertising  Co. 

v.  St.  Louis 402 

St.  Louis,  I.  M.  &  St.  P.  R.  Co. 

v.    Paul 532 

St.  Louis,  I.  M.  d  S.  R.  Co.  v.  Tay- 
lor      506 

St.  Louis  Southwestern  R.  Co.  v. 

Arkansas    1 179 

St.  Louis  £  S.  F.  R.  Co.  v.  James. .  .13  l:i 
St.  Louis  d  s.  F.  R.  Co.  v.  Math- 
ews       507 

SalliOtte  v.  King  Bridge  Co 729 

Sanborn.  In  re 40 

San  Diego   Land   d   Town   Co.   v. 

Jasper 49S 

San  Dieco  Land  &  Town  Co.  v.  Na- 
tional City  (174  D.  S.  739) 4S9 

San  Diego   Land  d   Town   Co.  v. 

National  City  (174  U.  S.  739)...   497 
San    Mateo    County    v.    Southern 

Pac.  R.  Co 24S 

Santa   Clara   County  v.   Southern 

Pac.  R.  Co 249 

Satterlee  v.  Matthewson 810 

Sauer  v.  New   York 742 

Savage  v.  Jones 1245 

Savings  &  L.  Soc.  v.  Multnomah 

County  548 

Sawyer  v.  Davis 722 

Schick  v.  United  States 196 

Sch  in idinger  v.  Chicago 381 

Schollenberger  v.  Pennsylvania. .  .1197 

Scott  v.  Donald 10SS,  1201 

Scott  v.  McXeal 239 

Scott  v.  Sand  ford 133 

Scranton   v.   Wheeler 721 

Seaboard  Air  Line  Ry.  v.  Seegers  341 

Sears  V.  Boston 657 

Sears  v.  Crocker 749 

Seattle  v.   Kelleher 655 

Second  Employers'  Liabilitv  Cases 

32S,  950.  1250 
Security   Mut.   Life   Ins.    Co.    v. 

Prewitt 254 

Sclliger  v.  Kentucky 551 

Scntell  v.  New  Orleans  &  C.  R. 

Co 451,  535 

Sharp,  In  re 43.1 


TABLE   OF   CASES 


XXIX 


Page 
Sharpless  v.  Philadelphia  (21  Pa. 

147)    32 

Sharpless  v.  Philadelphia  <21  Pa. 

147)    595 

Shaw   v.  Roboins bU5 

Shaicnce  Mill  Co.  v.  Temple 328 

Shelby  v.  Guy 1347 

Shelby  Co.  v.  Union  Bank 834 

Shepbard  v.  Wheeling 50 

Shepherd  v.  People 168 

Sherlock  v.  Ailing 1208,  1263 

n/i>  rhn-Carpcnter  Co.  v.  Minneso- 
ta (21S  U.  S.  57) 327 

Shevlin-Carpenter  Co.  v.  Minne- 
sota (218  U.  S.  67) 504 

Siiivlt.y  v.  Bowluy 727 

Shonk  v.  Brown 891 

I,   Ex  parte 942 

■in    v.   spiny   &   Hutchinson 

Co 404 

Sinking    Fund    Cases    (99    D.    S. 

700)   55.  7S8 

Sinking   Fund   Cases  (99  V.   S. 

700) 850 

Sinnot  v.   Davenport 1148 

Slaughter-House  <  iasea 216,  329 

Sloeum  v.  New  York  Life  Ins.  Co.  275 

Smith  v.  Alabama 1178 

Smith  v.  Janesville 116 

Smith  v.  Reeves 1870 

Smith  v.  Rochi  iter 740  I 

Smith  v.  St.  Louis  &  S.  W.  R.  Co.  .11. ".2 

Smith  v.  Strother 55 

Smith  v.  Worcester 856 

Smyth  v.  Ames 4S9 

Snyder  v.  Bettman 1308 

Soon  Ring  r.  Crowley 833 

South  Buffalo  Ry.  v.  Kirkover...  7.2 

South  Carolina  v.  Georgia 1394 

South  Carolina  v.  United  States..  1312 
South  Dakota  v.  North  Carolina.  .1390 
Southern  Pac.  Co.  v.  Kentucky.  ..  543 
Southern  I'ac.  Co.  v.   Portland.. 

S52,  874 
Southern  Pac.  R.  Co.  v.  Califor- 
nia    1332 

Southern  Pac.  Terminal  Co.  v.  In- 
terstate Commerce  Commis- 
sion     1236 

Southern  R.  Co.  v.  Greene 823 

Southern  It.  Co.   t.  King 1179 

Southern  R.  Co.  v.  United  States.  .1247 

Southern  Ry.  v.  Reid 1200 

South  Ottowa   V.   Perkins 1348 

South    Park    Com'rs    v.    "Ward    <£ 

Co 663 

Spencer  v.  Merchant 840 

Spencer    v.   Point    l'ltasunt    <t   O. 

R.  R 751 

Spinney,  Ex  parte 809 

Spokane   v.    ilacho 357 

SiuiNuEB  v.  United  States 1028 


Page 
Spring  Valley  Watericorks    Co.  v. 

San   Francisco 4!>s 

Sjiroule    r.    I  rcderickS 10 

Standard  Oil  Case  (221  U.  S.  1).-1228 
Standard  Oil  Co.  v.  United  Slat's 

(221  U.  S.  1) 1225 

Standard    Oil    Co.   of  Indiana   v. 

M  issouri  508 

Standard  Sanitary  Co.  v.    United 

States    1219 

Stanislaus  County  v.  Sn,i  Joaquin 

&  K.  River  Canal  d-  Irr.  Co 498 

Stanley  v.  Schwaloy 1335,   L380 

Starin  v.  New  York H4."> 

Starr  v.   Stale 196 

state  v.  Canty 198 

State  v.    Carroll 4"< 

State  v.  De  liary  d-  Co L052 

State  v.  Englewood 652 

State  v.  Fairmont  Creamery  Co.  of 

Nt  braska 37,  47.'. 

State  v.  Favre 10 

State  v.  Feilcn 439 

State  v.  Frear 634 

stale  v.  Hogan 345 

State  v.  Loomis  (115  Mo.  307)..  335 

State  v.  Loomis  (115  Mo.  'Ml'i 42? 

State  v.  Montgomery 364 

State  v.  O'Xcil 168 

State  v.  Parker 116 

State  v.  Poiiiin 

State  v.  Richcrcck 212 

State  v.    Scoloal 459 

state  v.  Shozey 42:1 

.    Simons SO 

State  v.  Young 116,  807 

State  Assessors  v.  Comi'toir  Na- 
tional IVEscompte 547 

State  cjt  inf.  Crow  v.  Shepherd.  .     BO 

State  kx  rel.  v.  GuiLBEBI 516 

State  ex  rel.  Burrows  v.  Superior 

Court  710 

State  ex  rel.  Cranmcr  v.  Thorson  16 
State  ex  rel.  Davis-Smith   Co.  v. 

Clausen  517 

State  ex  rel.  Ellis  0.  Thome 72 

State  ex  rel.  McCUtrg  v.  Powell..  2i 
state  ex  rel.  RUshey  v.  Smith....  457 
state  ex  rel.  Simpson  v.  Spcrry  <£ 

Hutchinson  Co 4i'>4 

State   ex    rel.   Tacoma    Industrial 

Co.  v.  White  River  Power  Co..  .  892 
State  ex  rel.  Thompson  v.  wimieit  24 
State  ex  EEL.  Ward  v.  Hi  bbabd  516 
State  ex  rel.  witter  v.  Forkner. . .  123 
state  ex  rel.  Xople  v.  Creamer...  .".12 

State  Freight  Tax.  Cast-  of 1090 

state  Journal  Printing  Co.  v.  Mad- 
ison Oas,  etc.,  Co 

state  of  Georgia  v.  Stanton 106 

State  of  Mississippi  v.  Johnson.  .  109 
state  Railroad  Tax  Cases.  ..  ..".. 


XXX 


TABLE    OF   CASES 


Page 

State     Tax    on     Foreign-Held 

Bonds  (15  Wall.  300,  324) 549 

State  Tax  on  Ry.  Gross  Re- 
ceipts (15  Wall.  284) 1105 

State  Tonnage  Tax  Cases 1051 

Shunts  v.  Minnesota 1024 

Stearns  V.    Richmond 741 

stn  nerson  v.  Great  Northern  R. 

Co 89 

Steger  v.  Traveling  Men's  Bldg.  & 

Loan  Ass'n 8S7 

Stephens  v.  Cherokee  Nation S97 

Sterling's    Appeal 703 

\rt  v.  Kahn 1335 

Stoclcard  v.  Morgan 1140 

Stone    v.    Mississippi    (101    U.    S. 

sili     825 

Stone    v.    Mississippi    (101    U.    S. 

814)     860 

Story   v.  New   York   Elevated   R. 

Co.  (90  N.  Y.  122) 719 

Story  v.  New  York  Elevated  R. 

Co.  (90  N.  Y.  122) 746 

Stoutenburgh  v.  Hennick.  ..  .122,  1061 

Strauder  v.  West  Virginia 314 

Strawbridge  v.  Curtiss 1339 

Stuart  v.  Palmer 279 

Sturges     v.     Crowninsiiield     (4 

Wheat.    117) 795 

Sturges  v.  Crowninsiiield  (4  Wheat 

117)    918 

S a  Hi  ■  rland  v.  Governor 112 

Sweet  v.  Rechel  (159  U.  S.  380)..  37 
Sweet  v.  Rechel  (159  U.  S.  380)...   7S3 

Swift  v.  Calnan 532 

Swift  v.  Tyson 1348 

Sniffs  Estate,  Matter  of 569 

Swift  &  Co.  v.  United  States 1225 

Taeoma   Industrial  Co.   v.   White 

River  Power  Co 692 

Taft  v.  Commonwealth 772 

Talbot  v.  Hudson 678 

Talbot  V.  New  York  &  H.  R.  Co.  749 

Talcott  v.  Des  Moines 719,  741 

Talton  v.  Mayes 976,  9S7 

Tappan   v.  Merchants'  Nat  Bank  559 

Warble's    Case 918 

Taylor  v.  Commonwealth 11 

Taylor  v.  Morton 968 

Taylor  v.  Place 57 

nph  Co. j}.  Texas 1284 

Templar  v.  State  Board  of  Exam- 
iners of  Barbers 365 

Tennessee  v.  Davis 1324 

Tennessee  v.  Whitirorth 622 

Terminal  Co.  v.  LelVyett 723 

Texas  v.    White 920 

Texas  &  N.  O.  R.  Co.  v.  Miller. . .  869 
Texas     d     Par.     Ry.    v.     United 

States    1176 

Thomas  v.  Board  of  Trusters.  . .  .1343 


Page 

Thomas  v.  United  States 1034 

Thomas  Jefferson,   The 1267 

Thompson  v.  Kentucky 292 

Thompson  v.  Missouri 174 

Thompson  v.  Utah 172,  193 

Thompson  0.  Winnett 24 

Thomson    v.     Pacific    R.    R.    (9 

Wall.   579) 1299 

Thomson  v.  Pacific  R.  R.  (9  Wall. 

579)     1302 

Th readout  v.  Cross 4fi 

Tidewater  R.  Co.  v.  Shartzer 768 

Tiger  v.   Western  Investment,  Co.  977 

Toone  v.  State 657 

Towns  v.  Klamath  County 701 

Townsend  v.  State 521 

Trade-Mark    Cases 1209 

Trageser  v.   Gray 365 

Train    v.    Boston    Disi.ni  i 

Co 308,  452 

Tramp.  Co.  v.  Chicago 734 

Trcvett  v.  Weedcn 27 

Trinity  College  v.  Hartford 776 

Trustees  of  Dartmouth  College  v. 

Woodward 815 

Turner  v.  Maryland .  .1090.  1162,  1103 

Turner  v.  New  York 909 

Turpiii  v.   Lemon 279 

Tuthill,  Matter  of 532,  692 

Twining  v.  New  Jersey  (211  TJ.  S. 

78)     228 

Twining  v.  New  Jersey  (211  U.  S. 

.78) 280 

Tyler  v.   Pomeroy 942 

Union     Bridge    Co.     v.     United 

States  (204  U.  S.  364) 126 

Union  Bridge  Co.  v.  United  States 

(204  U.  S.  304) 733,  1216 

Union  Refrigerator  Transit  Co.  v. 

Kentucky    535 

United  States  v.  American  Tooac- 

co  Co.  (221  U.  S.  100) 468,  1225 

United  Strtes  v.  American  Tobac- 
co Co.  (221  U.  S.  106) 1227 

United  States  v.  Arjona 968 

United  States  v.  Bromley 959 

United  States  v.  Celestine. .  .977.  1061 
United  States  v.  Chandler-Dunbar 

Water  Power  Co.  (229  U.  S.  53)  726 
United  States  v.  Chandler-Dunhar 
Water  Power  Co.  (229  U.  S.  53)  957 

United  States  v.  Coombs 1208 

United  States  v.  Cruikshank 916 

United  Slates  v.  Delaware  tC-  Hud- 
son   Co 46,  468,  1240 

United  States  v.  De  Witt 953 

United  States  v.  Evans 43 

United   States  v.   Pox   (94   U.  S. 

315)  630 

United   States   v.   Fox   (94    U.    S. 
315)     3309 


TAIH.r    OF   CASES 


XXXI 


Page 

United  States  v.  Oeorge 126 

United  Slates  v.  Gettysburg  Elec- 
tric B.  Co.  (ICO  r.  s.  668) 0 JO 

United  States  v.  Gettysburg  Elec- 
tric B.  Oo.  (160  D.  B.  668) 1305 

United  Statos  v.  Grlmand 122 

United  States   r.  Harris 248 

United  states  v.  Heinseen v!>i 

I  nited  States  v.  Holliday...VtSt  1001 

United  States  v.  Hudson 1178 

United     States    v.    Joint    Traffic 

'n   468,  1219 

United  States  v.  Jones 933 

United  States  v.  Ju  Toy  UOS  U.  S. 

26S)     285 

United  States  v.  Ju  Toy  (19S  U.  S. 

263)    981 

United  slates  v.  Kagama 973 

United  States  v.  Knight  Co 

IOCS,   1219 
United   States  v.  Lee  (100   U.   S. 

190)    112,  1370 

United  States  v.  Lee  (106  U.  S. 

196)    1374 

United  States  v.  Lehigh  Vol.  7?.n...l2l0 

United  States  v.  Ltnah 720 

United  States  v.  Marigold .1055 

United  Slates  v.  Michigan 1401 

United   STATES    v.    N'ortii   Caro- 
lina      1401 

t  nited  States  v.  O'Keefe 1370 

United  States  v.  Perkins 130S 

United      States      v.      Railroad 

Bridge  Co 1304 

United  States  v.  Railroad  Co... 1305 

United  si'ites  v.  Rauscher 970 

United  States  v.  Reading  Co 1226 

United  slates  v.  Realty  Co... COS,  904 

United   States  v.  R<  089 149 

United  States  v.  Rice 135 

United  States  v.  Rogers 975 

United  States  v.  Sandoval 

978,  1023,  1001 

United  States  v.  Snyder 1293 

United  States  v.  Terminal  Ry 1230 

United  States  v.  Texas 1400 

United  States  v.  Union  Pac.  Ry..  ,1325 

United  States  v.  Williams B82 

United  States  v.  Winslow 1219 

United  States  v.  Wong  Kim  Ark. .  128 
United   States  Alum,   etc.,    Co.  v. 

Knight    G23 

United  States  Express  Co.  v.  Min- 
nesota     1121 

United   States  ex  rcl.   Dunlap  v. 

Black    110.  112 

Upshur  Co.  v.  Rich 1829 

Van  Allen  v.  Assessors 1289 

Van  Antwerp,  Matter  of 644 

Van  Brot-klin  v.  Tennessee.' 1303 


Psge 
Vance  v.    W.   A.   Vandcrcook   Oo. 

(170  U.  S.  438) 1163,  1201 

Vance  v.  \V.  A.  Vandebcook  Co. 

(170  U.  S.  488) 1313 

VABNXB    v.    Martin 69S 

Veazie  Bank  v.  Fenno.  . .  .961,  1.117 
Vicksburg    v.     Vicksburg     Wat     - 

works    Co 533,  851 

I  icksburg,  etc.,  Ry.  v.  Dennis.  ..  . 

YiEUEi.sTEit  v.  White 447 

Village  of  Norwood  v.  Baker 649 

Virginia,  Ex  parte 286 

Virginia,    In   re 317 

Virginia  17.  Biv<  s 237 

Virginia  v.   Tennessee 1278 

Virginia     v.    West     Virginia     (11 

Wall.    39) 1394 

Virginia  v.  West  Virginia  (220  I  - 

S.  1) ' 1390 

Virginia  Coupon  Oases 810,  1371 

Von  Hoffman  v.  Quincy 805 

Wabash,  St  L.  &  P.  R.  Co.  v.  Illi- 
nois     1106 

WoZI,  In  re 276 

Watting  v.  Michigan 1086 

Wallmon    v.  Connor  Co 702 

Wabd  v.   Hubbard 516 

Ward  v.  Maryland  (  12  Wall.  418)  204 
Ward  V.  Maryland  (12  Wall.  418)..  1086 

Ward  v.  Race  Horse 

Ware  v.  llylton  (3  Dall.  199) 920 

Wabe  v.  Hyi.ton  (3  Dall.  199) 964 

Ware  V.  Mobile  Co 1086 

Waking  v.  Clarke  (5  How.  4  11).  .1267 
Waring  v.  Clarke  (5  How.  441). ..1270 

Warren  v.   Charlestown 52 

Washington  v.  Fairehiid ::t;: 

Washington  University  v.  Rum: 

Water   Power  Cases 402,  696,  7::i 

Waters-Pierce   Oil   Co.   v. 

(177  U.  S.  2S) 261,   1127 

Waters-Pierce  Oil   Co.   v.    Texas 

(212  U.  S.  86) 508 

Watson   v.   Maryland 360 

Watson  v.  Mercer S7'.> 

Wayman  v.   Sot  tiiakd 124 

v.  Fegely 936 

Webb,   Ft  parte 1(122 

r   i'.   Virginia 1312 

Weed  v.  Bergb r.7 

Weeks  v.  Milwaukee 585 

Welch  v.  Swasey 40:: 

Wellington,    In    Re 51 

Wells  v.   Rain 7 

Wells  v.   Xirklcs 950 

Welsh    r.   Slate 212 

Welton  v.  Missouri  (91  r.  s.  275)..1053 
Wei  ton  v.  Missouri  (91  U.  S.  275)..  1083 
West  v.  Kansas  Natural  Gas  Co. 

10S8,  109S,  1192 


xx  xa 


TABLE    OF    CASES 


Page 
West  Chicago  St.   Ry.  v.  Illinois 

733,  860 

West  River  Co.  v.  Dix 829 

Western  Turf  Ass'n  v.  Orcenbera  251 
Western    Union   Tel.   Co.   v.    Call 

Pub.  Co 1177 

Western   Union  Tel.  Co.  v.  Com- 

mercial  Mill.  Co.  (218  U.S.  406)  1179 
Western   Union   Tel.  Co.   v.   Com- 
mercial Mill.  Co.  (21S  U.  S.  40G)  11S2 
Western     Union     Tel.     Co.     v. 

James    1184 

Western  Union  Tel.  Co.  v.  Kansas 

256,  1122 
Western  Union  Tel.  Co.  v.  Massa- 
chusetts   1129 

Western   Union   Tel.    Co.   v.   Mis- 
souri ex  rel.  Gottlieb 557 

Western  Union  Tel.  Co.  v.  Myatt..     86 
Western  Union  Tel.  Co.  v.  Pen- 
dleton     HS2 

Weston      v.      City      Council      of 

Charleston   1284 

Wheaton  v.  Peters 117S 

Wheeler  v.  Denver 1340 

Wheeling  Bridge  &   T.  R.  Co.  v. 

Paull  60 

White  v.  nart 108,  920 

Whiting,  Matter  of 509 

Whiting  v.  Sheboygan,  etc.,  R.  Co.  593 
Wiggins    Ferry    Co.    v.    East    St. 

Louis    1052 

Wight  v.  Davidson 657 

Willamette    Bridge   Co.   v.   Hatch 

1151,  1178 

Willard  v.  Harvey 914 

Willcox  v.   Consolidated   Oas  Co. 

of  New  York 49S 

Williams  v.   Arkansas 356 

Williams  v.  Bruffy 791 


Pnge 

Williams  v.  Egaleston 045 

Williams  v.  Fears H2S 

Williams  v.  Mississippi 145.  387 

Williams  v.  Talladega 1127 

Willis  v.  Winona 744 

Willson  v.  Blackbird  Creek  Marsh 

Co 1075 

Wilson  v.  Eureka  Citt 391 

Wilson  v.  Shaw 1215 

Wilson  v.   United  States 193 

Winchester  &  S.  R.  Co.  v.   Com- 
monwealth    95,  313 

Winnebago,    The 46 

Wisconsin  v.  Duluth 1397 

Wisconsin  v.  Pelican  Ins.  Co..  .1398 
Wisconsin     Cent.     Ry.     v.     Brier 

County     1307 

Wisconsin  &  M.  R.  Co.  v.  Pow- 
ers     1119 

Withey  v.  Bloem 357 

Witter  v.  Forlener 123 

WOART    V.    WlNNICK 91" 

Wong   Wing  v.   United  States 9S1 

Wood,  In  re 314 

Woods'  Appeal 1 

Woodruff  v.  Parham 1046 

Worcester  v.  Georgia 971 

Worcester  v.  Street  Ry 817 

Workman  v.  Mayor,  etc.,  of  City 

of  New  York 1268 

Wurts  v.  Hoagland 530 

W.  W.  Cargill  Co.  v.  Minnesota.  ..   :\o'J 
Wynehamer  v.  People 398 

Yaple  v.  Creamer 512 

Yarbrough,  Ex  parte 145 

Yick  Wo  v.  Hopkins 383 

Young,  Ex  parte  (209  U.  S.  123) .  .   304 
Young,  Ex  parte  (209  U.  S.  123)..  1382 


CASES 

ON 

CONSTITUTIONAL    LAW 


PART  I 
PRELIMINARY  TOPICS 


CHAPTER  I 
MAKING  AND  CHANGING  CONSTITUTIONS 


W<  >ODS'  APPEAL. 

(Supreme  Court  of  Pennsylvania,  1874.    75  Pa.  59.) 

[Appeal  from  the  Allegheny  County  Court  of  Common  Pleas. 
An  act  of  the  legislature,  June  2,  1871,  submitted  to  the  people  the 
question  of  "calling  a  convention  to  amend  the  Constitution  of  Penn- 
sylvania." The  popular  vote  being  in  the  affirmative,  an  act  of  April 
11,  1872,  provided  for  the  election  of  delegates  to  such  a  convention, 
which  was  to  meet  in  November,  1872,  and  was  empowered  to  pro- 
pose to  the  citizens  "a  new  Constitution  or  amendments  to  the 
present  one,  or  specific  amendments  to  be  voted  for  separately," 
subject  to  certain  limitations  indicated  in  the  opinion  below.  The 
act  required  the  election  for  passing  on  the  work  of  the  convention 
to  be  held  according  to  the  general  election  law  of  the  state.  The 
convention  prepared  a  new  Constitution  that  violated  certain  of  the 
limitations  imposed  upon  its  powers  by  the  legislature,  mentioned 
in  the  opinion  below,  and  also  passed  an  ordinance  providing  for  the 
submission  of  the  Constitution  to  the  voters  according  to  the  gen- 
eral election  law  of  the  state,  except  in  Philadelphia,  where  dif- 
ferent provisions  were  made.  Plaintiffs,  citizens  and  local  taxpayers, 
sought  an  injunction  in  the  above-mentioned  court  to  prevent  various 
state  officers  from  holding  an  election  tinder  the  convention  ordi 
nance,  alleging  the  illegality  of  the  convention  and  its  acts.  The 
bill  was  dismissed  on  demurrer,  in  the  following  opinion:] 
Hall  Coxst.L. — 1 


2  PRELIMINARY   TOPICS  (Part    1 

Stowe,  J.  *  *  *  I  have  no  difficulty  in  concluding  that  if  the 
Acts  of  Assembly  in  question  are  unconstitutional  and  void,  the  con- 
vention was  an  illegal  body,  and  its  acts  revolutionary,  and  that  in 
such  case  it  would  be  the  duty  of  courts  to  exercise  all  their  author- 
ity to  prevent  its  mandates  being  carried  into  effect  to  the  injury  of 
any  individual ;  that  the  legislature  would  be  bound  to  enact  such 
laws  as  might  be  necessary  to  punish  any  attempt  to  force  upon  the 
people  its  revolutionary  work,  and  the  executive  officers  of  the  state 
to  use  all  their  power,  civil  and  military,  to  suppress  it. 

If,  however,  in  the  face  of  all  this,  such  force,  moral  or  physical, 
was  brought  to  bear  as  to  overawe  or  compel  the  submission  of  the 
legal  authorities  of  the  state,  then,  indeed,  the  arm  of  the  law  would 
be  paralyzed,  and  the  proposed  Constitution  would  become  effective, 
not  by  the  law,  but  by  that  higher  right  of  revolution  which  is  above 
all  law,  but  is  nowhere  recognized  by  it.  Courts  can  know  nothing 
by  anticipation.  They  are  bound  to  determine  the  law  as  it  is  pre- 
vious to  the  successful  accomplishment  of  revolution,  as  though  such 
a  fact  were  impossible ;  but  when  accomplished  and  duly  recognized 
by  the  political  powers  of  the  government,  the  courts  have  no  alter- 
native but  to  accept  the  fact  without  question  and  act  accordingly. 

While,  then,  courts  must  recognize  the  powers  that  be,  though  the 
product  of  revolution,  they  are  bound  to  use  all  their  legitimate  au- 
thority to  suppress  acts  actually  or  ostensibly  revolutionary,  as  though 
they  were  simply  rebellious  and  could  never  become  legitimate. 

Coming,  then,  to  the  question  of  the  constitutionality  of  the  act 
to  authorize  a  popular  vote  upon  the  question  of  calling  a  convention 
to  amend  the  Constitution,  approved  June  2d,  1871,  and  also  the  act 
passed  subsequent  to  the  election,  held  in  pursuance  of  the  same,  en- 
titled "An  Act  to  provide  for  calling  a  convention  to  amend  the  Con- 
stitution," approved  April  11th,  1872,  raised  by  the  2d,  3d,  4th,  5th, 
6th,  and  7th  sections  of  complainants'  bill,  it  is  claimed  that  they  are 
both  unconstitutional  and  invalid,  because: 

1.  There  is  no  power  given  by  the  present  Constitution  to  the  legis- 
lature authorizing  such  a  proceeding. 

2.  There  is  a  different  method  provided  by  the  Constitution,  by 
which  it  may  be  amended,  and,  therefore,  upon  well-recognized  prin- 
ciples of  law,  the  legal  conclusion  arises  that  no  other  exists. 

It  cannot  be  claimed  that  the  authority  for  the  legislation  and  pro- 
ceedings taken  in  reference  to  calling  this  convention  are  expressly 
set  out  in  the  Constitution,  but  it  is  argued  that  the  power  arises  un- 
der the  second  section  of  the  Declaration  of  Rights,  which  declares 
that  "all  power  is  inherent  in  the  people  and  all  free  governments  are 
founded  on  their  authority,  and  instituted  for  their  peace,  safety, 
and  happiness.  For  the  advancement  of  these  ends  they  have  at  all 
times  an  inalienable  and  indefeasible  right  to  alter,  reform,  or  abolish 
their  government  in  such  a  manner  as  they  may  think  proper,"  all 


Ch.  1)  MAKING   AND    CHANGING    CONSTITUTIONS  3 

of  which  is,  inter  alia,  excepted  out  of  the  general  powers  of  gov- 
ernment, and  is  "forever  to  remain  inviolate." 

It  is  difficult  to  see  how  the  withnolding  of  power  from  the  govern- 
ment can,  strictly  speaking,  create  a  right  in  the  legislature  from 
which  it  is  thus  withheld,  to  exercise  that  power;  but  if  it  should  ap- 
pear that  such  power  exists  above  and  before  the  Constitution  as  a 
great  natural  and  indefeasible  right,  and  has  been  so  recognized  and 
acted  upon  frequently  as  a  fundamental  principle  underlying  all  free 
government,  this  provision  will  sufficiently  appear  to  be  a  solemn 
declaration  of  the  existence  of  such  a  right,  and  may  in  ordinary 
parlance  fairly  be  said,  without  any  great  breach  of  legal  accuracy, 
to  confer  a  power  under  the  Constitution. 

Before,  however,  entering  into  a  consideration  of  this  question,  it 
will  be  necessary  to  examine  whether  there  is  anything  in  the  Con- 
stitution, as  urged  in  the  second  proposition,  which  directly  or  by 
necessary  legal  implication  takes  away  such  a  fundamental  right  as 
we  have  suggested,  in  case  it  existed,  where  there  is  no  constitutional 
restriction. 

It  is  urged,  and  with  much  apparent  force,  that  because  the  Con- 
stitution in  the  tenth  article  "of  amendments"  provides  a  certain  and 
carefully  denned  way  for  amending  the  fundamental  law,  the  well- 
recognized  legal  maxim  ordinarily  applied  to  the  construction  of 
deeds  and  written  instruments,  as  well  as  acts  of  legislation,  "Ex- 
pressio  unius  est  exclusio  alterius,"  leads  to  the  fixed  legal  presump- 
tion that  no  amendment  can,  under  the  Constitution,  be  made  to  it, 
except  in  the  way  thus  especially  provided. 

This  rule  enunciates  one  of  the  first  principles  to  the  construction 
of  any  ordinary  instruments  between  parties.     *     *     * 

Mr.  Jameson,  in  his  work  on  Constitutional  Conventions,  p.  573, 
says,  with  great  force,  upon  this  question :  "Viewed  upon  principle, 
were  there  no  authority  upon  the  point,  it  would  be  doubtful  whether, 
dealing  in  great  questions  of  politics  and  government,  the  same  maxim 
ought  to  prevail'  which  regulates  the  construction  of  contracts  be- 
tween man  and  man.  As  a  matter  of  speculation  it  may  be  admitted 
that  the  rule  expresses  the  weight  of  probability  equally  in  cases  of 
great  and  small  magnitude.  But  there  is  always  a  doubt ;  and  be- 
tween the  cases  indicated  there  is  the  wide  difference,  that  in  ordi- 
nary contracts  it  is  possible  to  enforce  the  construction  which  the 
courts  shall  pronounce  the  true  one,  whilst  in  the  case  of  constitu- 
tional provisions  regulating  great  organic  movements,  to  hold  such 
a  maxim  applicable  would  be,  by  presenting  barriers  to  the  attainment 
of  what  the  people  generally  desire,  to  make  that  revolutionary  which 
perhaps  was  not  so.  Where  the  intention  of  the  framers  of  a  Con- 
stitution is  doubtful,  the  people  assuming  power  under  the  broader 
construction  should  have  the  benefit  of  the  doubt ;  and  that  all  the 
more  because  in  opposition  to  them  our  courts  are  comparatively 
powerless.     It  is  infinitely  better  where  no  principle  is  violated,  tha* 


4  PRELIMINARY    TOPICS  (Part    1 

a  Constitution  should  be  so  construed  as  to  make  their  action  legal 
rather  than  illegal." 

So  far  as  judicial  opinion  is  concerned,  it  has  been  said  by  the  Su- 
preme Court  of  New  York  that  the  maxim  is  to  be  applied  to  or- 
dinary contracts  rather  than  constitutional  provisions :  Barto  v. 
Himrod,  4  N.  Y.  483,  59  Am.  Dec.  506;  while  the  judges  of  the 
Supreme  Court  of  Massachusetts  have  expressed  a  different  opinion 
(6  Cush.  573),  holding  that  under  the  Constitution  of  Massachusetts, 
containing  a  provision  substantially  like  our  own,  no  power  existed 
to  amend,  except  as  provided  in  the  article  of  Amendments.1  As  a 
matter  of  history,  however,  a  convention  was  called  by  the  legislature 
in  1853,  twenty  years  after  this  opinion  was  given,  to  propose  a  Con- 
stitution ;  and  while  the  question  was  raised  as  to  the  legality  of 
such  convention,  it  was  ably  vindicated  by  the  best  lawyers  in  the 
state,  among  them  Choate,  Parker,  and  Morton,  the  latter  one  of  the 
judges  of  the  court  at  the  time  the  opinion  was  given;  and  a  Con- 
stitution prepared  and  submitted  to  the  people. 

Turning  now  to  the  history  of  the  government  of  the  various 
states,  for  the  purpose  of  discovering  what  the  usage  in  such  cases 
has  been,  we  find  the  practice  has  been  so  frequent  and  uniform  as 
clearly  to  indicate  what  the  common  understanding  of  the  people, 
lawyers  and  laymen,  has  been  in  regard  to  this  question. 

So  far  as  I  am  able  to  learn,  there  had  been,  in  1865  (throwing 
out  of  consideration  the  rebel  states  during  1861,  and  afterwards 
while  undergoing  reconstruction),  twenty-five  constitutional  conven- 
tions called  by  the  legislatures  of  the  various  states,  without  any 
special  authorization  in  their  Constitutions.  In  Georgia,  January  4th, 
1789,  May  4th,  1789,  and  1838;  in  South  Carolina,  1790;  in  New 
Hampshire,  1791;  in  New  York,  1801,  1821,  and  1846;  in  Con- 
necticut, 1818;  in  Massachusetts,  1829,  1853;  in  Rhode  Island,  1824, 
1834,  1841,  and  1842;  in  Virginia,  1829,  1854,  and  1864;  in  North 
Carolina,  1835;  in  Pennsylvania,  1837;  in  New  Jersey,  1844;  in. 
Missouri,  1845,  1861,  and  1865;   in  Indiana,  1S50. 

Mr.  Webster  stated  in  1848,  in  his  argument  before  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Luther  v.  Borden,  "that 
of  the  old  thirteen  states,  their  Constitution  with  but  one  exception 
contained  no  provision  for  their  own  amendment,  yet  there  is  hardly 
one  that  has  not  altered  its  Constitution,  and  it  has  been  done  by  con- 
ventions called  by  the  legislature,  as  an  ordinary  exercise  of  power." 
If  this  is  true,  and  my  own  examination,  so  far  as,  with  the  limited 
time  and  opportunity  since  the  argument  of  this  case,  I  have  been 
able  to  make  it,  has  verified  it,  as  well  as  shown  the  continuation  of 
the  same  practice  to  the  present  day, — it  would  seem  as  though  the 
question  as  to  whether  the  calling  of  a  constitutional  convention  was 
a  legal  exercise  of  power  by  the  legislature,  should  now  be  consid- 

i  Accord :    In  re  the  Const  Convention,  14  R.  I.  G49  (1SS3). 


Ch.  1)  MAKING   AND    CHANGING    CONSTITUTIONS  5 

ered  by  all  judicial  tribunals  as  settled  so  firmly  as  a  part  of  the  com- 
mon law  of  our  governments,  that  any  attempt  to  disturb  it  at  this 
day  would  savor  more  of  revolution  than  legitimacy.  He  would  be 
bold,  indeed,  who  would  now  assert  that  all  these  conventions  were 
usurpations,  and  that  all  the  Constitutions  proposed  by  them  and 
adopted  by  the  people  were  revolutionary. 

The  conclusion  that  I  have  drawn  from  all  this  is,  that  there  is 
underlying  our  whole  system  of  American  government  a  principle  of 
acknowledged  right  in  the  people  to  change  their  Constitutions,  ex- 
cept where  especially  prohibited  in  a  Constitution  itself,2  in  all  cases 
and  at  all  times,  whether  there  is  a  way  provided  in  their  Constitu- 
tion or  not,  by  the  interposition  of  the  legislature,  and  the  calling 
of  a  convention,  as  was  done  in  the  case  in  hand. 

The  offspring  of  revolution  originally,  but  restrained  and  modified 
by  the  necessity  arising  out  of  the  new  principle  established  in  this 
country,  by  the  accomplishment  of  our  national  independence,  that 
the  people  are  the  government,  and  not  the  king,  and  the  source  of 
all  political  power, — it  has  become  legitimated,  and  without  mention 
in  our  Constitutions,  is  as  much  the  law  of  the  land  as  if  specifically 
set  out  in  them ;  and  that  as  a  solemn  recognition  of  this,  and  not  as 
a  revolutionary  right,  the  section  of  the  Declaration  of  Rights  in  our 
own,  and  similar  clauses  in  other  state  Constitutions,  were  inserted. 

The  somewhat  similar  expression  contained  in  the  Declaration  of 
Independence  was  clearly  revolutionary  and  so  intended  to  be;  but 
thai  was  a  paper  published  to  the  world  to  justify  our  refusal  to  sub- 
mit longer  to  governmental  authority,  and  spoke  of  the  rights  of  the 
people,  as  against  the  oppression  of  constituted  authorities;  but  in 
all  instruments  established  by  the  people  themselves  for  their  own 
government,  the  only  rational  view  is  to  consider  it  as  above  stated, 
— the  introduction  of  a  constitutional  and  legal  revolution,  by  the 
consent  of  the  constituted  authorities  of  the  state.  This  last  is  ab- 
solutely indispensable,  as  is  now  admitted  by  all.  To  give  the  force 
and  effect  of  the  law  to  the  proceeding,  it  must  emanate  from  the 
legislative  authority,  and  be  the  result  of  its  permission  or  direction. 
The  only  way  the  people  can  legally  act  under  a  Constitution  such 
as  ours,  is  through  their  representatives,  and  therefore,  no  matter 
how  many  may  favor  a  convention  to  change  the  Constitution,  if  one 
should  be  called,  and  convene  without  proper  authority  from  the  ex- 
isting government,  its  action  would  be  clearly  illegal,  and  the  result 

-  Compare  the  Institution  of  government  under  the  present  federal  Constitu- 
tion with  tlio  cousent  of  11  states,  despite  ArtA  of  Confed.  art.  XI 11,  pro 
for  the  perpetuity  of  the  latter  ami  their  non-alteration  save  by  unanimous 
of  the  state  legislatures.  The  Brsl  Constitutions  of  Delaware  and 
Maryland  restricted  the  power  of  making  constitutional  changes  to  the  legis- 
latures only,  but  iu  both  states  the  legislatures  cal  resulting 
In  the  adoption  of  new  Constitutions  (Delaware,  1792;  Maryland,  iv. 
three  of  these  proceedings  are  regarded  as  revolutionary  in  Jameson,  Const 

Conventions,  S§  5r>.'!-,~ii!l   i-ltli   Ed.),  as   is  al80,   for  similar  reasons,   the  Conven 

tiou  resulting  in  the  Pennsylvania  Constitution  of  lTtio.    Id.  SS  -"-'.  --"-.  825 


6  PRELIMINARY    TOPICS  (Part    1 

of  illegitimate  power.*  It  follows,  then,  that  the  action  of  the  legis- 
lature in  authorizing  a  vote  of  the  people  on  the  question  of  the 
amendment  of  their  Constitution,  and  subsequently  by  another  act  au- 
thorizing the  election  of  delegates,  was  a  legal  exercise  of  legislative 
power,  and  constitutional,  unless  something  in  the  acts  themselves  is 
in  conflict  with  some  constitutional  provision.     *     *     * 

The  8th,  9th,  and  10th  paragraphs  of  the  bill  complain  of  illegal 
acts  done  by  the  convention :  First,  in  refusing  a  separate  submission 
to  a  popular  vote  of  the  fifth  article,  relating  to  the  judiciary,  the 
contingency  having  arisen,  under  which,  by  an  act  of  the  legislature, 
they  were  bound  to  do  so;*  and  second,  in  altering  several  of  the 
provisions  of  the  Bill  of  Rights  contrary  to  the  limitations  imposed 
in  the  fourth  section  of  the  Act  of  April  11th,  1872;  and  third,  in 
disregarding  the  Act  of  Assembly,  under  which  the  convention  was 
called,  in  regard  to  submitting  the  amended  Constitution  to  a  vote 
of  the  people,  and  ordaining  a  different  method.5 

These  objections  are  all  consistent  with  the  conclusions  already 
arrived  at,  and  if  valid  would  raise  further  questions  under  the  bill, 
notwithstanding  what  has  already  been  said,  and  should  therefore  be 
considered. 

In  examining  these  questions,  the  first  and  second  may  be  taken 
together. 

Looking  upon  general  principles  at  the  real  question  involved,  which 
is  how  far,  if  at  all,  a  constitutional  convention  regularly  called  may 
legally  disregard  limitations  imposed  upon  its  actions  by  the  legisla- 
ture, I  have  no  difficulty  in  arriving  at  what  seems  to  me  to  be  the 
correct  rule.  A  convention  to  amend  the  Constitution,  without  there 
is  an  express  limitation  as  to  the  extent  of  their  power,  passed  upon 
by  the  people  in  determining  the  question  of  amendment,  has  in- 
herently, by  the  very  nature  of  the  case  under  the  great  principle 
peculiarly  American,  and  quasi  revolutionary  in  its  character  hereto- 
fore mentioned,  absolute  power,  so  far  as  may  be  necessary  to  carry 
out  the  purpose  for  which  they  were  called  into  existence,  by  the 
popular  will.  Unless  prohibited  or  restricted  in  the  manner  specified 
by  the  people,  the  convention  has  a  right,  untrammelled  by  mere  legis- 
lative limitations,  to  propose  to  the  people  for  their  consideration  and 
adoption  any  plan  they  may  see  fit.  In  saying  this,  we  are  not  to 
be  understood  as  saying  that  the  convention  is  in  any  respect  the  su- 

»  Accord:  Luther  v.  Borden,  7  How.  1,  34-40,  12  L.  Ed.  581  (1849) ;  Jame- 
son, Const.  Conventions,  §§  226-246  (full  commentary  upon  the  revolutionary 
Rhode  Island  convention  of  1S41-42).  The  Constitutions  for  new  states  pro- 
posed by  several  unauthorized  territorial  conventions  have  acquired  validity 
by  congressional  confirmation.  Jameson,  supra,  §§  1SS-216.  See  especially 
the  case  of  Michigan,  §§  198-209.  where  there  was  a  series  of  irregularities. 

*  See  the  negation  of  this  objection  in  Wells  v.  Bain,  75  Pa.  39,  55,  56,  15 
Am.  Rep.  563  (1873). 

»  See  note  6,  this  case.  This  different  method,  being  for  Philadelphia  only, 
was  held  not  to  affect  the  present  case. 


Cll.  1)  MAKING   AND    CHANGING    CONSTITUTIONS  7 

preme  power  of  the  state.  We  take  it  to  be  simply  the  attorney  for 
the  people,  with  plenary  power  to  do  what  is  required  of  it,  but 
nothing  beyond. 

Subject  to  the  limitation  just  mentioned,  a  constitutional  conven- 
tion, in  the  language  of  Mr.  Wilson,  in  the  federal  convention  of 
1787,  has  the  power  to  conclude  nothing,  but  to  propose  anything. 

Such,  too,  is  the  inevitable  result  of  the  views  already  expressed 
as  to  the  purpose  and  effect  of  the  second  section  of  the  Declaration 
of  Rights.  If  it  be  taken  as  a  constitutional  recognition  of  the  prin- 
ciple of  legal  revolution  (so  to  speak),  and  of  a  popular  power  a; 
we  believe,  the  obvious  result  follows,  that  when  once  called  into 
operation  by  proper  authority,  it  cannot  be  subverted  nor  restrained 
by  the  legislature. 

If  this  is  correct,  the  convention  was  right  in  disregarding  the  lim- 
itations sought  to  be  imposed  upon  its  power,  both  as  to  what  it 
should  propose  to  change  in  the  present  Constitution,  and  how  the 
proposal  should  be  submitted  to  the  people  for  their  adoption  or  re- 
jection.    *     *     * 

Demurrer  sustained. 

[The  plaintiffs  appealed,  and  the  state  Supreme  Court  gave  thc 
following  opinion  :] 

AgnEWj  C.  J.  The  change  made  by  the  people  in  their  political 
institutions,  by  the  adoption  of  the  proposed  Constitution  since  this 
decree,  forbids  an  inquiry  into  the  merits  of  this  case.  The  question 
is  no  longer  judicial,  but  in  affirming  the  decree  we  must  not  seem 
to  sanction  any  doctrine  in  the  opinion,  dangerous  to  the  liberties 
of  the  people.  The  claim  for  absolute  sovereignty  in  the  convention, 
apparently  sustained  in  the  opinion,  is  of  such  magnitude  and  over- 
whelming importance  to  the  people  themselves,  it  cannot  be  passed 
unnoticed.  In  defence  of  their  just  rights,  we  are  bound  to  show 
that  it  is  unsound  and  dangerous.  Their  liberties  would  be  suspended 
by  a  thread  more  slender  than  the  hair  which  held  the  tyrant's  sword 
over  the  head  of  Damocles,  if  they  could  not,  while  yet  their  exist- 
ing government  remained  unchanged,  obtain  from  the  courts  pro- 
tection against  the  usurpation  of  power  by  their  servants  in  the  con- 
vention. When  they  become  complainants,  the  convention  must  de- 
fend and  show  their  authority. 

It  was  contended  in  the  case  of  Francis  Wells  et  al.  v.  James  Bain 
et  al.,6  involving  the  legality  of  an  ordinance  of  the  convention,  ar- 

•75  Pa.  39,  15  Am.  Rep.  503  (1873),  holding  Invalid  an  ordinance  of  the 
convention  providing  special  election  commissioners  in  Philadelphia  to  take 
charge  of  the  balloting  at  the  submission  of  the  Constitution  ;  the  act  of  the 
legislature  calling  the  convention  having  provided  for  a  submission  under  the 
general  election  laws  of  the  state.  The  court  argued  that  the  prior  popular 
vote  for  calling  a  convention  in  effect  delegated  to  the  legislature  power  to 
decide  upon  the  terms  of  the  call.  See  the  criticism  of  this  view  in  Dodd,  Re- 
vision and  Amendment  of  State  Constitutions,  74-77.  As  to  how  Ear 
tutlonal  conventions  may  exercise  incidental  legislative  powers,  with  or  witl» 


8  PRELIMINARY    TOPICS  (Part    1 

gued  at  Philadelphia  in  December  last,  that  the  convention  had  the 
power  to  ordain  ordinances  having  the  present  force  of  law ;  and  the 
instant  power  to  proclaim  a  Constitution,  binding  without  ratifica- 
tion, irrespective  of  the  matter  adopted  by  the  people  to  exercise 
their  right  to  alter  or  amend  their  frame  of  government.  This  im- 
puted sovereignty  in  a  convention  called  and  organized  under  a  law, 
as  the  very  means  adopted  by  the  people  to  exercise  their  reserved 
right  of  amendment,  owing  to  the  briefness  of  the  time,  was  not  dis- 
cussed in  that  case  with  the  fulness  the  importance  of  the  question 
to  the  people  demanded. 

There  is  no  subject  more  momentous  or  deeply  interesting  to  the 
people  of  this  state  than  an  assumption  of  absolute  power  by  their 
servants.  The  claim  of  a  body  of  mere  deputies  to  exercise  all  their 
sovereignty,  absolutely,  instantly,  and  without  ratification,  is  so  full 
of  peril  to  a  free  people,  living  under  their  own  instituted  government, 
and  a  well-matured  Bill  of  Rights,  the  bulwark  and  security  of  their 
liberties,  that  they  will  pause  before  they  allow  the  claim  and  inquire 
how  they  delegated  this  fearful  power,  and  how  they  are  thus  ab- 
solutely bound  and  can  be  controlled  by  persons  appointed  to  a  spe- 
cial service.  Struck  by  the  danger,  and  prompted  by  self-interest, 
they  will  at  once  distinguish  between  their  own  rights  and  the  pow- 
ers they  commit  to  others.  These  rights  it  is,  the  judiciary  is  called 
in  to  maintain.  The  very  rights  of  the  people  and  freedom  itself 
demand,  therefore,  that  no  such  absolute  power  shall  be  imputed  to 
the  mere  delegates  of  the  people  to  perform  the  special  service  of 
amendment,  unless  it  is  clearly  expressed,  or  as  clearly  implied,  in 
the  manner  chosen  by  the  people  to  communicate  their  authority. 

A  convention  has  no  inherent  rights;  it  exercises  powers  only. 
Delegated  power  defines  itself.  To  be  delegated  it  must  come  in 
some  adopted  manner  to  convey  it  by  some  defined  means.  This 
adopted  manner,  therefore,  becomes  the  measure  of  the  power  con- 
ferred. The  right  of  the  people  is  absolute,  in  the  language  of  the 
Bill  of  Rights,  "to  alter,  reform,  or  abolish  their  government  in  such 
manner  as  they  may  think  proper."  This  right  being  theirs,  they 
may  impart  so  much  or  so  little  of  it  as  they  shall  deem  expedient. 
It  is  only  when  they  exercise  this  right,  and  not  before,  they  deter- 
mine, by  the  mode  they  choose  to  adopt,  the  extent  of  the  powers 
they  intend  to  delegate.  Hence  the  argument  which  imputes  sov- 
ereignty tO"  a  convention,  because  of  the  reservation  in  the  Bill  of 
Rights,  is  utterly  illogical  and  unsound.  The  Bill  of  Rights  is  a  res- 
ervation of  rights  out  of  the  general  powers  of  government  to  them- 
selves, but  is  no  delegation  of  power  to  a  convention.  It  defines  no 
manner  or  mode  in  which  the  people  shall  proceed  to  exercise  their 
right,  but  leaves  that  to  their  after  choice.     Until  then  it  is  unknown 

out  submission  to  popular  vote,  see  Id.  10S-117;  Ex  parte  Birmingham  &  A. 
Ry.  Co.,  145  Ala.  514,  42  South.  118  (1905)  (cases) :  Frantz  v.  Autry,  IS  OkL 
561,  612-626,  91  Pac.  193  (1907)  (territorial  convention). 


Ch.  1)  MAKING  AND    CHANGING    CONSTITUTIONS  9 

how  they  will  proceed,  or  what  powers  they  will  confer  on  their 
delegates.  Hence  we  must  look  beyond  the  Bill  of  Rights  to  the 
mode  adopted  by  the  people,  to  find  the  extent  of  the  power  they 
intend  to  delegate.  These  modes  were  stated  and  discussed  in  the 
opinion  in  Wells  et  al.  v.  Bain  et  al.,  supra.7  If,  by  a  mere  deter- 
mination of  the  people  to  call  a  convention,  whether  it  be  by  a  vote 
or  otherwise,  the  entire  sovereignty  of  the  people  passes  ipso  facto 
into  a  body  of  deputies  or  attorneys,  so  that  these  deputies  can,  with- 
out ratification,  alter  a  government  and  abolish  its  Bill  of  Rights  at 
pleasure,  and  impose  at  will  a  new  government  upon  the  people  with- 
out restraints  upon  the  governing  power,  no  true  liberty  remains. 
Then  the  servants  sit  above  their  masters  by  the  merest  imputation, 
and  a  people's  welfare  must  always  rest  upon  the  transient  circum- 
stances of  the  hour,  which  produce  the  convention  and  the  accidental 
character  of  the  majority  which  controls  it.  Such  a  doctrine,  how- 
ever suited  to  revolutionary  times,  when  new  governments  must  be 
formed,  as  best  the  people  can,  is  wholly  unfitted  when  applied  to 
a  state  of  peace  and  to  an  existing  government,  instituted  by  the  peo- 
ple themselves  and  guarded  by  a  well-matured  Bill  of  Rights. 
*     *     * 

The  people  have  the  same  right  to  limit  the  powers  of  their  dele- 
gates that  they  have  to  bound  the  power  of  their  representatives. 
Each  are  representatives,  but  only  in  a  different  sphere.  It  is  simply 
evasive  to  affirm  that  the  legislature  cannot  limit  the  right  of  the  peo- 
ple to  alter  or  reform  their  government.  Certainly  it  cannot.  The 
question  is,  not  upon  the  power  of  the  legislature  to  restrain  the  peo- 
ple, but  upon  the  right  of  the  people,  by  the  instrumentality  of  the 
law,  to  limit  their  delegates.  Law  is  the  highest  form  of  a  people's 
will  in  a  state  of  peaceful  government.  When  a  people  act  through 
a  law  the  act  is  theirs,  and  the  fact  that  they  used  the  legislature  as 
their  instrument  to  confer  their  powers  makes  them  the  superiors 
and  not  the  legislature.  The  idea  which  lies  at  the  root  of  the  fallacy, 
that  a  convention  cannot  be  controlled  by  law  is,  that  the  convention 
and  the  people  are  identical.  But  when  the  question  to  be  deter- 
mined is  between  the  people  and  the  convention,  the  fallacy  is  obvious. 
Such  a  metonymy  may  do  for  a  flourish  of  rhetoric,  but  not  for  grave 
argument.  The  parties  to  the  question  are  the  people  on  the  one 
hand  and  the  convention  on  the  other.  The  people  allege  an  usurpa- 
tion of  power  in  this,  that  the  convention  seeks  to  bind  them  without 
their  ratification.  The  question  then  is,  what  power  was  conferred? 
The  judiciary  sits  to  decide  between  them.  The  people  having  chal- 
lenged their  power  to  set  a  government  over  them  at  will,  the  agents 

»  They  are  stated  to  be  (75  Pa.  at  page  -i~.  15  Am.  Rep.  563): 
"1.  The  mode  provided  In  the  existing  Constitution. 

"•J.  A  law,  as  the  Instrumental  process  of  raising  the  body  for  revision  and 
Conveying  to  It  the  powers  of  the  people. 
"3.  A  revolution." 


10  PRELIMINARY    TOPICS  (Part    1 

must  show  their  authority  to  do  this.  The  latter  put  in  evidence  the 
Act  of  1871  as  their  authority.  Then  the  issue  is,  does  the  Act  of 
1871,  simply  ordering  a  convention  to  be  called,  confer  this  absolute, 
extraordinary,  and  dangerous  power  upon  a  body  of  men  not  yet 
called  into  being,  and  which  can  have  neither  being  nor  power  except 
by  the  further  act  of  the  people  through  the  instrumentality  of  a  law? 
To  make  the  law  odious,  it  is  assumed  that  the  legislature  is  or  may 
be  corrupt.  But  this  is  aside  from  the  true  question  of  power.  In  a 
governmental  and  proper  sense,  law  is  the  highest  act  of  a  people's 
sovereignty,  while  their  government  and  Constitution  remain  un- 
changed. It  is  the  supreme  will  of  the  people  expressed  in  the  forms 
and  by  the  authority  of  their  Constitution.  It  is  their  own  appointed 
mode  through  which  they  govern  themselves,  and  by  which  they 
bind  themselves.  So  long  as  their  frame  of  government  is  unchanged 
in  its  grant  of  all  legislative  power,  these  laws  are  supreme  over  all 
subjects  unforbidden  by  the  instrument  itself.  The  calling  of  a  con- 
vention, and  regulating  its  action  by  law,  is  not  forbidden  in  the  Con- 
stitution. It  is  a  conceded  manner,  through  which  the  people  may 
exercise  the  right  reserved  in  the  Bill  of  Rights.  It  falls,  therefore, 
within  the  protection  of  the  Bill  of  Rights  as  a  very  manner  in  which 
the  people  may  proceed  to  amend  their  Constitution,  and  delegate  the 
only  powers  they  intend  to  confer,  and  as  the  means  whereby  they 
may,  by  limitation,  defend  themselves  against  those  who  are  called 
in  to  exercise  their  powers.  The  legislature  may  not  confer  powers 
by  law  inconsistent  with  the  rights,  safety,  and  liberties  of  the  peo- 
ple, because  no  consent  to  do  this  can  be  implied,  but  they  may  pass 
limitations  in  favor  of  the  essential  rights  of  the  people.  The  right 
of  the  people  to  restrain  their  delegates  by  law  cannot  be  denied, 
unless  the  power  to  call  a  convention  by  law,  and  the  right  of  self- 
protection  be  also  denied.  It  is,  therefore,  the  right  of  the  people 
and  not  of  the  legislature  to  be  put  by  law  above  the  convention,  and 
to  require  the  delegates  to  submit  their  work  for  ratification  or  dis- 
approval. *  *  * 
Decree  affirmed.8 

s  The  prevailing  American  practice  of  submitting  Constitutions  and  amend- 
ments to  the  people  tor  ratification  is  indicated  by  the  discussion  in  Jameson, 
Const.  Conv.  §§  479-495  (4th  Ed.).  Nearly  50  conventions,  however,  have  fol- 
lowed a  contrary  procedure,  and  have  given  effect  to  their  work  without  such 
a  submission.  Most  of  these  were  before  1S00,  or  in  the  South  during  the 
period  of  secession  and  reconstruction.  Recent  instances,  however,  have  oc- 
curred in  Mississippi  (1S90),  South  Carolina  (1S95),  Delaware  (1S97),  Louisiana 
(1S9S).  Virginia  (1902),  and,  in  effect,  in  Kentucky  (1S91).  The  Louisiana  con- 
vention was  expressly  authorized  to  do  this  by  a  previous  popular  vote.  State 
v.  Favre,  51  La.  Ann.  434,  25  South.  93  (1899) ;  and  the  Mississippi  convention 
had  legislative  authority  to  "enact"  a  new  Constitution,  Sproule  v.  Fredericks, 
69  Miss.  S98,  11  South.  472  (1892).  The  South  Carolina  convention  was  unin- 
strueted  by  either  legislature  or  people,  and  in  Delaware  the  legislature  rec- 
ommended to  the  convention  the  popular  submission  of  its  work.  The  Ken- 
tucky and  Virginia  conventions  were  expressly  instructed  by  their  legislatures 
to  submit  their  proposed  Constitutions  to  popular  vote.     The  Kentucky  con- 


Ch.  1)  MAKING   AND    CHANGING    CONSTITUTIONS  11 

ELLINGHAM  v.  DYE. 

(Supreme  Court  of  Indiana,  1912.    99  N.  E.  1.) 

[Appeal  from  Marion  County  Circuit  Court.  In  1911  the  Indiana 
Legislature  passed,  with  the  formalities  of  ordinary  legislation,  and 
the  Governor  approved,  an  act  (Laws  1911,  c.  118)  termed  a  "pro- 
posed new  Constitution,"  which  was  a  copy  of  the  existing  Constitu- 
tion with  23  amendments,  with  a  provision  that  it  should  be  submit- 
ted to  the  voters  at  the  general  election  of  November,  1912,  and,  if 
adopted,  should  take  effect  January  1,  1913.  Dye,  a  citizen,  voter, 
and  taxpayer  of  Marion  county,  on  behalf  of  himself  and  all  other 
citizens,  voters,  and  taxpayers  of  the  state,  sued  to  enjoin  Ellingham. 
as  Secretary  of  State,  and  the  state  board  of  election  commissioners 
(of  whom  the  governor  was  one),  from  performing  certain  ministerial 
duties  devolving  upon  them  under  said  act  in  preparing  ballots  and 
conducting  the  election  for  the  submission  of  the  proposed  Constitu- 

vention  did  so,  and,  after  Its  adoption,  the  convention  reassembled,  amended 
the  Constitution  in  various  substantial  particulars,  and  promulgated  it  without 
further  submission.  The  political  departments  of  the  state  government  recog- 
nized the  validity  of  these  changes,  and  the  courts  accepted  them.  Miller  v. 
Johnson,  92  Ky.  589,  IS  S.  W.  522,  15  L.  B.  A.  521  (1892).  The  Virginia  con- 
vention promulgated  a  Constitution  in  defiance  of  instructions,  but  the  gov- 
ernor and  members  of  the  legislature  swore  allegiance  to  it,  and  the  courts 
upheld  it  as  the  existing  frame  of  government.  Taylor  v.  Commonwealth.  101 
Va.  S29,  44  S.  E.  754  (1903).  See  an  account  of  most  of  the  above  proceed- 
ings in  Lobingier,  The  People's  Law,  301-325  (1909). 

"The  better  view  would  seem  to  be  that  the  convention  is  a  regular  organ 
of  the  state  (although  as  a  rule  called  only  at  long  intervals) — neither  sov- 
ereign nor  subordinate  to  the  legislature,  but  independent  within  its  proper 
sphere  Under  this  view  the  legislature  cannot  bind  the  convention  as  to 
what  shall  be  placed  in  the  Constitution,  or  as  to  the  exercise  of  its  proper 
duties.  If,  then,  we  say  that  the  convention  is  independent  of  the  regular 
legislature  in  the  exercise  of  its  proper  duties,  it  will  be  necessary  to  disi  uss 
for  a  moment  what  are  its  proper  functions.  These  are  simply  to  propose  a 
new  Constitutinii  or  to  propose  constitutional  amendments  to  the  people  for 
approval ;  or.  in  states  where  the  submission  of  Constitutions  is  not  required. 
to  frauie  and  adopt  a  Constitution  if  they  think  proper.  In  this  sphere,  and 
in  the  exercise  of  powers  incidental  to  its  proper  functions,  it  would  seem 
that  constitutional  conventions  should  not  be  subject  to  coutrol  by  legislative 
acts.  •  *  *  As  a  rule,  tbeu,  constitutional  conventions  are  subject  only 
to  the  following  restrictions:  (1)  Those  contained  in  or  implied  from  provi- 
sions in  the  existing  state  and  federal  Constitutions;  and  (2)  in  the  absence 
of  constitutional  provisions,  those  derived  or  implied  from  the  limited  func- 
tions of  conventions.  To  these  restrictions  Jameson  and  others  would  add  those 
imposed  by  legislative  acts  under  which  conventions  are  called,  but  such  re- 
strictions are  certainly  not  .Net  recognized  as  of  absolute  binding  force,  ex- 
cept in  Pennsylvania,  and  should  not  be  so  recognized  if  the  convention  is  to 
be  an  instrument  of  great  usefulness."  Dodd,  Revision  and  Amendment  of 
State  Constitutions,  mi,  82  (1910). 

The  principal  judicial  utterances  in  favor  of  these  views  are  quoted  in 
Frantz  v.  Autry,  is  OkL  561,  588-603,91  Pac.  193  (1907).  As  to  how  far  con- 
ventions may  be  limited  by  an  express  or  Implied  popular  assent  to  the  terms 
of  the  legislative  call,  see  Dodd,  supra,  74-77  (cases).  Some  stale  Constitu- 
tions make  the  constitutional  convention,  within  its  sphere,  independent  of 
both  legislative  authorization  and  control.  Carton  v.  Sec'v  of  State,  151 
Mich.  337,  115  N.  W.  429  U90S) ;   N.  Y.  Const  art  14,  j  2  (1S94). 


12  PRELIMINARY    TOPICS  (Part    1 

tion,  on  the  ground,  among  others,  of  the  Legislature's  lack  of  power 
to  submit  such  a  proposal.  The  extra  expense  involved  in  such  sub- 
mission was  under  $2,000,  of  which  plaintiff's  share  would  be  less 
than  three  cents.  The  Circuit  Court  granted  the  injunction  and 
defendants  appealed.] 

Cox,  C.  J.  *  *  *  The  underlying  question  involved,  out  of 
which  all  the  others  presented  grow,  is  simply  whether  the  act  printed 
as  chapter  118  is  a  valid  exercise  of  legislative  power  by  the  Gen- 
eral Assembly.  On  this  question  the  appellants  contend  that  the  act 
involves  the  submission  of  a  new  Constitution  to  the  people  for  adop- 
tion or  rejection,  and  that  the  General  Assembly  is  clothed  with 
power  to  initiate,  draft,  and  submit  a  new  Constitution  to  the  people 
in  such  form  and  manner  as  to  enable  them  to  adept  it  as  the  organic 
law  of  the  state.  This  power,  it  is  asserted,  is  included  in  the  gen- 
eral grant  of  the  legislative  power  of  the  government  instituted  by 
the  existing  Constitution  which  is  made  to  the  General  Assembly  by 
section  1  of  article  4  of  that  instrument,  which  provides  that  "the 
legislative  authority  of  the  state  shall  be  vested  in  the  General  As- 
sembly." The  appellee,  on  the  contrary,  in  support  of  the  conclusion 
of  the  trial  court  that  the  act  in  question  is  unconstitutional  and  void, 
contends  that  the  power  to  initiate,  frame,  and  submit  to  the  people 
fundamental  law  is  not  legislative  power  in  the  sense  in  which  the 
General  Assembly  is  vested  with  legislative  power  by  that  provision. 
But  the  making  of  fundamental  law  being  essentially  different  from 
ordinary  legislation,  the  power  of  the  General  Assembly  in  relation 
to  it  is  measured  by  the  special  and  limited  grant  of  power  to  it,  made 
by  article  16  of  the  present  Constitution,  to  initiate,  frame,  and  sub- 
mit amendments  in  the  mode  and  manner  therein  provided ;  and  that 
this  by  necessary  implication  withholds  the  right  of  the  broader  and 
more  comprehensive  exercise  of  the  power  to  so  participate  in  funda- 
mental legislation  involved  in  initiating,  preparing,  and  submitting  a 
new  Constitution.  Appellee  also  contends  that  the  draft  embodied 
in  chapter  118  is  not  that  of  a  new  Constitution,  but  that  it  is  in  sub- 
stance, truth,  and  fact  merely  proposed  amendments  of  the  existing 
Constitution,  and  that  therefore  it  cannot  be  lawfully  submitted  to 
the  people  for  their  action  because  of  noncompliance  with  the  re- 
quirements of  article  16.     *     *     * 

The  General  Assembly  of  our  state  is  clothed  with  legislative  au- 
thority in  the  words  of  section  1  of  article  4  quoted  above.  That  the 
General  Assembly  is  supreme  and  sovereign  in  the  exercise  of  the 
lawmaking  power  thus  conferred  upon  it,  subject  only  to  such  lim- 
itations as  are  imposed,  expressly  or  by  clear  implication,  by  the 
state  Constitution  and  the  restraints  of  the  federal  Constitution  and 
the  laws  and  treaties  passed  and  made  pursuant  to  it,  has  been  uni- 
formly declared  by  an  unbroken  line  of  decisions  of  this  court  from 
the  beginning  of  the  judicial  history  of  the  state  to  the  present.  But 
this  general  grant  of  authority  to  exercise  the  legislative  element  of 


Ch.  1)  MAKING    AND    CHANGiMQ    CONSTITUTIONS  13 

sovereign  power  has  never  been  considered  to  include  authority  over 
fundamental  legislation.  It  has  always  been  declared  to  vest  in  the 
legislative  department  authority  to  make,  alter,  and  repeal  laws,  as 
rules  of  civil  conduct  pursuant  to  the  Constitution  made  and  or- 
dained by  the  people  themselves  and  to  carry  out  the  details  of  the 
government  so  instituted.     *     *     * 

To  erect  the  state,  to  institute  the  form  of  its  government,  is  a 
function  inherent  in  the  sovereign  people;  to  carry  out  its  purpose 
of  protecting  and  enforcing  the  rights  and  liberties  of  which  the  or- 
dained Constitution  is  a  guaranty  by  enacting  rules  of  civil  conduct 
relating  to  the  details  and  particulars  of  the  government  instituted, 
is  the  function  of  the  Legislature  under  the  general  grant  of  au- 
thority. It  needed  no  reservation  in  the  organic  law  to  preserve  to 
the  people  their  inherent  power  to  change  their  government  against 
such  a  general  grant  of  legislative  authority ;  and  yet  we  find  in  the 
first  section  of  the  first  article  of  the  Constitution  this  statement  of 
the  purpose  of  the  government  which  they  had  builded,  and  the  dec- 
laration of  their  power  over  it:  "We  declare  that  all  men  are  created 
equal ;  that  they  are  endowed  by  their  Creator  with  certain  inalien- 
able rights ;  that  among  these  are  life,  liberty,  and  the  pursuit  of 
happiness ;  that  all  power  is  inherent  in  the  people ;  and  that  all  free 
governments  are,  and  of  right  ought  to  be,  founded  on  their  au- 
thority, and  instituted  for  their  peace,  safety,  and  well-being.  For 
the  advancement  of  these  ends,  the  people  have,  at  all  times,  an  inde- 
feasible right  to  alter  and  reform  their  government." 

With  knowledge  of  the  tendency  of  vested  power  to  broaden  and 
exalt  itself,  the  people  have  declared  their  abiding  power  over  the 
framework  of  the  government,  while  in  section  1  of  article  4  they 
gave  into  the  hands  of  an  agency  the  authority  to  exercise  all  their 
power  to  make  laws  to  carry  out  the  declared  purpose  of  the  govern- 
ment, save  such  as  they  had  withheld  by  express  or  implied  limita- 
tions, or  had  surrendered  to  the  federal  government.     *     *     * 

[Continuing  a  quotation  from  Jameson,  Const.  Conventions  (4th 
Ed.)  359,  concerning  the  general  powers  of  a  state  legislature :] 

"To  this  general  statement  of  the  extent  of  the  power  of  our  Leg- 
islatures, the  proviso  must  be  appended  that  the  measures  passed  by 
those  bodies  must  not  be  of  the  character  denominated  fundamental. 
*  *  *  Saving  the  single  case,  to  be  noted  in  a  subsequent  chap- 
ter, in  which  by  express  constitutional  provision  they  act  in  conven- 
tional capacity,  in  the  way  of  recommending  specific  amendments  to 
their  Constitutions,  they  have  no  power  whatever  to  amend,  alter,  or 
abolish  those  instruments.  *  *  *  The  formation  and  establish- 
ment of  the  fundamental  law  is,  in  all  the  American  Constitutions, 
regularly  the  work  of  conventions  acting  in  conjunction  with  the 
electors.  On  the  other  hand,  no  fact  is  better  settled  than  that,  be- 
yond the  province  thus  specially  set  apart  for  them,  neither  conven- 
tions nor  the  bodies  of  electors  have  any  legislative  power.     They 


14  PRELIMINARY    TOPICS  (Part    1 

can  neither  of  them  pass  any  law  comprised  within  the  sphere  of  or- 
dinary legislation."     *     *     * 

[After  quoting  from  cases  in  Arkansas,  Illinois,  California,  Idaho, 
and  Missouri  statements  that  the  proposing  of  constitutional  amend- 
ments is  not  an  exercise  of  ordinary  legislative  power:] 

In  the  case  of  Commonwealth  v.  Griest,  196  Pa.  396,  46  Atl.  505, 
50  L.  R.  A.  568,  the  Supreme  Court  of  Pennsylvania  directed  a  writ 
of  mandamus  to  issue  to  compel  the  Secretary  of  State  to  perform 
his  statutory  duties  in  submitting  an  amendment  which  he  had  re- 
fused to  discharge  because  the  Governor  had  vetoed  the  amendment, 
and  the  court  held  that  neither  veto  nor  signing  by  the  Governor 
could  affect  such  proposed  amendment,1  as  amending  the  Constitu- 
tion was  not  lawmaking.  It  was  said  that  the  article  of  their  Con- 
stitution, similar  to  ours,  which  vested  generally  the  legislative  au- 
thority in  the  General  Assembly,  did  not  cover  fundamental  legisla- 
tion. *  *  *  And  it  was  said  of  the  provision  which  empowered 
the  Legislature  to  frame  and  submit  amendments  of  the  Constitution  : 
"It  is  Constitution-making;  it  is  a  concentration  of  all  the  power  of 
the  people  in  establishing  organic  law  for  the  commonwealth. 
*  *  *  It  is  not  lawmaking,  which  is  a  distinct  and  separate  func- 
tion, but  it  is  a  specific  exercise  of  the  power  of  a  people  to  make 
its  Constitution."     *     *     * 

[Here  follow  quotations  to  the  same  effect  from  Jameson,  and  a 
reference  to  article  16  of  the  Indiana  Constitution,  which  empowers 
the  legislature,  by  a  majority  vote  of  each  house  chosen  at  two  suc- 
cessive general  elections,  to  submit  constitutional  amendments  to  the 
voters  of  the  state,  and  requires  the  submission  of  two  or  more 
amendments,  if  made  at  the  same  time,  to  he  in  such  a  manner  that 
they  can  be  voted  upon  separately.] 

The  presence  of  this  article  in  the  Constitution  fights  against  the 
contention  that  the  general  grant  of  legislative  authority  bears  in 
its  broad  arms  by  implication  any  power  to  formulate  and  submit 
proposed  organic  law  whether  in  the  form  of  an  entire  and  complete 
instrument  of  government  to  supersede  the  existing  one  or  single 
amendment.  For  if  the  General  Assembly  have  the  greater  power, 
unfettered  power,  under  the  general  grant,  what  necessity  could  there 
have  existed  for  giving  the  lesser,  special  power,  which  the  checks  and 

i  Accord  (assent  of  Governor  unnecessary  to  legislatively  proposed  constitu- 
tional amendment):  State  ex  rel.  Morris  v.  Secretary  of  State,  43  La.  Ann. 
590,  9  South.  776  (1S91) ;  Warfield  v.  Vandiver,  101  Md.  78,  116-121,  60  Atl. 
538,  4  Ann.  Cas.  692  (1905)  (cases).  Likewise,  the  President's  assent  is 
unnecessary,  to  congressionally  proposed  amendments  to  the  federal  Consti- 
tution. Hollingsworth  v.  Virginia,  3  Dall.  378,  1  L.  Ed.  644  (1798).  Nor  do 
other  constitutional  requirements  for  the  processes  of  ordinary  legislation 
govern  the  proposal  of  amendments,  unless  expressly  made  applicable  thereto. 
Julius  v.  Callahan,  63  Minn.  154,  65  N.  W.  267  (1895).  As  to  how  far  one 
legislature  may  bind  its  successors  in  such  matters,  see  Murphy  Chair  Co- 
v.  Attorney  General,  14S  Mich.  563,  112  N.  W.  127  (1907);  State  ex  rel. 
Galusha  v.  Davis.  20  Nev.  220,  19  I'ac.  894  (1888). 


Ch.  1)  MAKING   AND    CHANGING    CONSTITUTIONS  15 

limitations  accompanying  it?  That  both  the  general  grant  of  legis- 
lative authority  and  the  special  authorization  to  act  in  relation  to 
amendments  were  deemed  necessary  by  the  framers  of  the  Con- 
stitution arises  from  the  obvious  fact  that  each  involved  a  different 
subject-matter;  the  one,  of  ordinary  lawmaking,  and,  the  other,  the 
change  of  organic  law.  The  one  involved,  necessarily,  a  broad  dis- 
cretion while  the  other  merely  gave  a  narrow,  limited  power,  under 
guard,  to  aid  the  people  in  the  exercise  of  their  sovereign  power  over 
the  structure  of  their  government.     *     *     * 

[After  an  exhaustive  review  of  the  history  of  Constitution  making 
and  amending  in  Indiana  :1 

If  the  power  to  draft  and  submit  to  the  people  organic  law  is  em- 
braced in  the  broad  bestowal  of  "the  legislative  authority  of  the 
state"  made  in  section  1  of  article  4,  where  is  the  limitation  on  it, 
save  that  of  the  Constitution  of  the  United  States?  What  check 
is  laid  upon  the  use  of  the  power?  There  is  none,  for  all  the  checks 
and  limitations  which  the  people  in  their  Constitution  have  placed 
upon  the  Legislature  are  upon  the  exercise  of  the  power  over  ordi- 
nary legislation,  and  have  no  relation  to  fundamental  legislation.  The 
Legislature  being  supreme,  and  sovereign  in  the  exercise  of  the  legis- 
lative authority,  save  only  as  it  is  limited  by  the  Constitution  of  the 
I  'nited  States,  the  laws  and  treaties  made  under  it,  and  the  limita- 
tions stated  in  our  state  Constitution^  if  its  general  authority  includes 
the  subject-matter  of  organic  legislation,  why  submit  the  "new  Con- 
stitution" to  the  people  at  all  ?  For  the  federal  Constitution  or  laws 
do  not  prohibit  doing  so,  and  no  limitation  is  found  in  article  4  of 
our  own  Constitution  which  places  a  ban  upon  the  action.     *     *     * 

Sound  legal  and  political  principles,  the  history  of  our  political 
life  as  a  state,  and  the  authority  of  judicial  and  commentatorial  opin- 
ion, all  unite  in  forcing  the  conclusion  that  the  act  of  1911  is  invalid 
for  want  of  power  in  that  body  to  draft  an  entire  Constitution  and 
forthwith  submit  it  to  the  people  under  its  general  legislative  author- 
ity, if  the  instrument  be  conceded  to  be  a  new  Constitution  and  not 
merely  amendments ;  and  that,  if  it  be  considered  as  merely  a  series 
of  amendments,  it  is  a  palpable  evasion  and  disregard  of  the  require- 
ments and  checks  of  article  16,  and  is  for  that  reason  void.  This 
conclusion  renders  unnecessary  any  consideration  of  the  other  ob- 
jections raised  against  the  validity  of  the  act.     *     *     * 

The  further  contention  of  counsel,  that  the  court  is  without  juris- 
diction for  the  reason  that  courts  may  not  interfere  with  legislative 
action,  has  for  its  basis  the  claim  that,  using  the  words  of  counsel, 
the  writ  of  injunction  in  this  case,  if  it  docs  anything,  restrains  the 
enactment  of  a  law  which  is  upon  its  passage  and  which  may  not,  of 
course,  be  done.  Much  of  the  argument  of  counsel  is  based  upon 
the  assumption  that  in  doing  the  thing  sought  to  be  done  through 
chapter  118  the  General  Assembly  was  acting  within  its  power,  and 
it  falls  to  the  ground  with  the  determination  to  the  contrary.     Since 


1G  PRELIMINARY    TOPICS  (Part    1 

the  act  incorporating  the  proposed  organic  law  was  passed  in  the 
form  of  and  in  accordance  with  the  prescribed  rules  of  ordinary  en- 
actments, and  since  it  provided  rules  of  conduct  for  the  action  of 
certain  officials,  it  must  be  subject  to  interpretation  and  construction 
of  the  courts.  The  work  of  the  Legislature  in  relation  to  it  is  at  an 
end ;  it  has  passed  beyond  any  further  action  of  that  body — so  far 
as  the  Legislature  is  concerned  it  is  a  complete  enactment.  If  the 
Legislature  was  without  power  to  formulate  and  present  the  pro- 
posed organic  law  to  the  people,  as  we  have  seen  it  was,  chapter  118 
is  void,  and  the  mandate  of  that  body  that  the  ballot  shall  be  incum- 
bered with  the  question  of  its  adoption  is  of  no  more  force  than  that 
of  any  citizen  without  authority  under  the  Constitution.  The  ques- 
tion involved  is  no  more  than  whether  ministerial  acts  threatened  to 
be  done  in  carrying  out  the  provisions  of  an  unconstitutional  act  may 
be  enjoined.  This,  as  we  have  seen,  may  be  done.  And  there  is  also 
authority  for  the  intervention  of  the  courts  before  proposed  consti- 
tutional changes  have  been  passed  upon  by  the  votes  of  the  electors 
and  the  result  declared.2     *     *     * 

[Here  follows  the  citation  of  various  cases,  only  two  of  which 
are  in  point — Livermore  v.  Waite,  102  Cal.  113,  36  Pac.  424,  25  L. 
R.  A.  313;   Holmberg  v.  Jones,  7  Idaho,  752,  65  Pac.  563  (semble).] 

Judgment  affirmed. 

[Morris,  J.,  gave  a  dissenting  opinion  (Spencer,  J.,  concurring) 
upon  the  grounds  that  no  injunction  could  issue  against  the  governor, 
nor  against  a  political  act  like  the  submission  of  a  constitutional 
amendment,  quoting  largely  from  State  v.  Thorson  (see  note  below).] 

*  In  the  following  cases  the  submission  to  the  voters  of  proposed  constitu- 
tional changes  was  enjoined  by  the  courts  on  the  ground  of  their  invalidity: 
Livermore  v.  Waite,  102  Cal.  113,  36  Pac.  424,  25  L.  R.  A.  312  (1S94)  (defective 
substance) ;  Holmberg  v.  Jones,  7  Idaho,  752,  758,  65  Pac.  503  (1901)  (defec- 
tive method  of  proposal — semble).  In  Wells  v.  Bain.  75  Pa.  39,  15  Am.  Rep. 
563  (1S73)  a  particular  mode  of  submission,  invalid  in  form,  was  enjoined. 
See,  also,  the  arguments  in  Mayor,  etc.,  of  Citv  of  Macon  v.  Hughes,  110  Ga. 
795,  S04-806,  36  S.  E.  247  (1900) ;  De  Kalb  County  v.  City  of  Atlanta,  132  Ga. 
727,  740,  65  S.  E.  72  (1909) ;  Tolbert  v.  Long,  134  Ga.  292,  294,  295,  67  S.  E. 
820,  137  Am.  St  Rep.  222  (1910) — all  cases  of  ordinary  "local  option"  legisla- 
tion. 

In  the  following  cases  courts  refused  to  enjoin  the  submission  to  the  voters 
of  proposed  constitutional  changes,  on  the  ground  of  their  alleged  invalidity: 
State  ex  rel.  Cranmer  v.  Thorson,  9  S.  D.  149,  68  N.  W.  202,  33  L.  R.  A.  582 
(1896)  (defective  substance) ;  Frantz  v.  Autry,  18  Okl.  561,  603-011,  91  Pac. 
193  (1907)  (same)— see  Threadgill  v.  Cross,  26  Okl.  403,  109  Pac.  558,  13S  Am. 
St.  Rep.  904  (1910)  (mandamus  granted  to  compel  submission) ;  People  ex  rel. 
O'Reilly  v.  Mills,  30  Colo.  202,  70  Pac.  322  (1902)  (defective  method  of  pro- 
posal)— see  People  ex  rel.  Elder  v.  Sours,  31  Colo.  369,  74  Pac.  167,  102  Am. 
St.  Rep.  3*  (1903). 

In  Wells  v.  Bain,  above,  and  Frantz  v.  Autry,  above,  the  changes  were  pro- 
posed by  constitutional  conventions.  In  all  of  the  other  cases  they  were  pro- 
posed by  legislatures. 

In  State  ex  rel.  Cranmer  v.  Thorson,  9  S.  D.  149,  154,  155,  68  N.  W.  202, 
33  L.  R.  A.  5S2  (1S96)  the  court  refused,  at  the  suit  of  a  taxpayer,  to  enjoin 
the  Secretary  of  State  from  certifying  to  the  proper  election  officials  a  consti- 
tutional amendment  proposed  in  the  proper  legislative  method,  but  alleged  to 


Cll.  1)  MAKING   AND    CHANGING    CONSTITUTIONS  IT 

KOEHLER  v.  KILL. 

(Supreme  Court  of  Iowa,  1883.    60  Iowa,  543,  14  N.  W.  738,  15  N.  W.  BOS  I 

[Appeal  from  Scott  County  District  Court.  The  Constitution  of 
Iowa  provided  that  proposed  amendments  thereto  should  be  agreed 
to  by  two  successive  sessions  of  the  General  Assembly  and  then  sub- 
mitted to  the  people  for  ratification,  and  should  become  a  part  of  the 
Constitution  when  approved  by  a  majority  of  the  qualified  electors 
voting  thereon.     A   proposed   amendment,   which   purported  to  have 

be  Ineffectual  In  substance.    Ilancy,  J.,  said  (after  holding  relator's  pecuniary 
interest  as  a  taxpayer  to  be  too  trifling): 

"There  is  another  view,  which  involves  the  structure  of  the  state  govern- 
ment ; 1 1 id  the  relation  of  its  several  departments.  Should  it  be  conceded  thai 
the  relator  lias  such  an  Interest  in  the  mi  Her  as  entitles  him  to  be  beard,  or 
that  the  action  involves  a  question  of  such  public  concern  as  would  wan-  nl  an 
attempt  by  Hie  Attorney  General  to  obtain  an  injunction,  could  this  court 
issue  it'/  .Vo  precedent  fur  such  action  has  been  presented  by  counsel  or  dis- 
covered by  the  court.  In  discussing  ibis  phase  "f  the  case  it  will  be  assumed 
an  amendment  of  the  Constitution  was  intended  requiring  the  concurrent  ac- 
tion of  the'  Legislature  and  electors.  The  former  lias  acted.  Its  actum 
will  be  communicated  to  the  latter  by  means  of  defendant's  certificate.  Un- 
til the  latter  shall  have  expressed  their  approval,  the  proceeding  is  incom- 
plete, and  the  Constitution  will  remain  unchanged.-  The  proposed  amend- 
ment is  on  its  way  to  the  electors.     Can  this  court,  at  this  time,  impede  its 

!SS?  Can  it  be  called  upon  to  anticipate  conditions  which  may  never 
exist?  Can  it  interpose  its  process  between  the  legislature  and  electors, 
who  are  alone  with  power  to  modify  the  fundamental  law,  before  both  have 
acted,  and  while  the  matter  is  pending  and  incomplete?  The  powers  of  the 
state  government  are  divided  into  three  distinct  departments — the  legislative, 
executive,  and  judicial.  The  powers  and  duties  of  each  are  prescribed  by 
the  Constitution.  Const,  art.  2.  Power  to  amend  the  Constitution  belongs 
exclusively  to  the  Legislature  and  electors.  It  is  legislation  of  the  most 
important  character.  This  court  has  power  to  determine  what  such  legisla- 
tion is,  what  the  Constitution  contains,  but  not  what  it  should  contain.  It 
lias  power  to  determine  what  statutory  laws  exist,  and  whether  or  not  they 
conflict  with  the  Constitution;  but  it  cannot  say  what  laws  shall  or  Shall  not 
be  enacted.  It  has  the  power  and  it  is  its  duty,  whenever  the  question  ;i  rises 
in  the  usual  course  of  litigation,  wherein  the  substantial  rights  of  any  actual 
litigants  are  involved,  to  decide  whether  any  statute  has  been  legally  enacted, 
or  whether  any  change  in  the  Constitution  has  been  legally  effected;  but  it 
will  hardly  he  contended  that  it  can  interpose  in  any  case  to  restrain  the 
enactment  of  an  unconstitutional  law.  Mississippi  v.  Johnson.  4  Wall.  500 
[18  L.  Ed.  437].  If  the  Legislature  cannot  be  enjoined  when  engaged  in  the 
enactment  of  unconstitutional  statutes,  it  and  the  electors  cannoi  !»•  enjoined 
when  engaged  in  an  unwarranted  attempt  to  amend  the  Constitution.  To 
issue  an  injunction  in  this  action  would  he  to  enjoin  the  Legislature  and  elec- 
tors in  Die  exercise  of  their  legislative  duty.  Suppose  a  hill,  having 
the  Legislature,  is  in  possession  of  the  Governor,  or,  to  make  the  analogs 
more  nearly  complete,  suppose  it  is  being  conveyed  to  the  executive  by  an 
otlicer  of  the  Legislature;  would  any  one  imagine  the  progress  "i  the  mes- 
senger could  be  arrested  by  an  injunction?  The  Inquiry  answers  itself.  Is 
there  any  distinction  in  principle  ur  reason  between  such  a  case  mid  the 
case  under  discussion}  Clearly  none.  An  injunction  cannot  be  granted  to 
prevent  a  legislative  act  by  a  municipal  corporation.  Comp.  Laws  I 
4c,r.i>.  The  Code  expresses  the  settled  doctrine  in  this  respect.  Spell.  Kxtr. 
Relief,  §  688.  If  courts  cannot  interfere  with  the  legislative  proceedings  ol 
a  city  council,  they  certainly  cannot  with  lilie  proceedings  In  the  Legislature 

Hall  Const. L. — '2 


18  PRELIMINARY    TOPICS  (Part    1 

been  agreed  to  by  the  Eighteenth  General  Assembly,  appeared  en- 
rolled and  signed  as  follows:  "No  person  shall  manufacture  for  sale, 
or  sell,  or  keep  for  sale,  as  a  beverage,  any  intoxicating  liquor  what- 
ever, including  ale,  wine,  and  beer."  This  proposed  amendment  was 
also  agreed  to  by  the  Nineteenth  General  Assembly  and  was  rati- 
fied by  a  majority  of  30.000  of  the  electors.  It  appeared  from  the 
journals  of  the  senate  of  the  Eighteenth  General  Assembly  that  the 
resolution  actually  agreed  to  by  that  body  contained  the  words  "or 
to  be  used"  after  the  word  "beverage,"  though  the  enrolled  resolu- 
tion signed  by  the  president  of  the  senate  omitted  these  words.  In 
an  action  by  plaintiffs  to  recover  for  beer  sold  and  delivered  to  de- 
fendant, it  was  held  that  the  senate  journals  might  be  examined  to 
contradict  the  enrolled  resolution,1  and  that  the  proposed  amendment 
never  legally  became  a  part  of  the  Constitution.  The  defendant  ap- 
pealed, and  the  state  Supreme  Court  affirmed  the  decision  (Beck,  J., 
dissenting).  On  a  petition  for  rehearing  the  following  opinion  was 
given :] 

Day,  C.  J.  *  *  *  It  is  asserted  in  the  petition  for  rehearing 
that  "the  judicial  department  of  the  state  has  no  jurisdiction  over 
political  questions,  and  cannot  review  the  action  of  the  Nineteenth 
General  Assembly,  and  of  the  people,  in  the  matter  of  the  adoption  or 
amendment  of  the  Constitution  of  the  state."  This  position  practically 
amounts  to  this :  that  the  provisions  of  the  Constitution  for  its  own 
amendment  are  simply  directory,  and  may  be  disregarded  with  im- 
punity ;  for  it  is  idle  to  say  that  these  requirements  of  the  Constitu- 
tion must  be  observed,  if  the  departments  charged  with  their  ob- 
servance are  the  sole  judges  as  to  whether  or  not  they  have  been 
complied  with.  This  proposition  was  advanced  for  the  first  time 
upon  the  petition  for  rehearing,  and,  if  correct,  it  is  of  course  an 
end  of  the  controversy.  Upon  this  branch  of  the  case  counsel  cite 
Luther  v.  Borden,  7  How.  1,  12  L.  Ed.  581.  As  this  case  has  prin- 
cipally been  relied  upon  by  the  advocates  of  the  theory  now  under 
consideration,  and  has  been  given  great  prominence  in  the  discus- 
sions which  have  taken  place,  we  desire  to  present  its  facts  with  a 
degree  of  fullness  which,  under  ordinary  circumstances,  would  per- 
haps be  considered  unnecessary,  to  the  end  that  the  degree  of  its  ap- 
plicability to  the  present  case  may  be  fully  understood. 

itself.  If  they  cannot  prevent  the  Legislature  from  enacting  unconstitutional 
laws,  they  cannot  prevent  it  and  the  electors  from  making  ineffectual  efforts 
to  amend  the  Constitution." 

The  legislative  proposal  of  a  constitutional  amendment,  though  not  ordi- 
nary legislation,  is  yet  the  exercise  of  a  legislative  function.  People  ex  rel. 
Attorney  General  v.  Curry,  130  Cal.  82,  62  Pac.  516  (1900). 

i  Upon  this  question  the  authorities  in  all  the  states  are  collected  in 
Marshall  Field  &  Co.  v.  Clark,  143  U.  S.  649,  661  ff.,  12  Sup.  Ct.  495,  36  L. 
Ed.  294  (1S92)  ;  23  L.  R.  A.  340,  note ;  and  40  L.  R.  A.  (X.  S.)  1,  note.  Where 
not  governed  by  special  statutory  or  constitutional  provisions,  the  better  au- 
thority gives  preference  to  the  enrolled  act  over  the  evidence  of  legislative 
journals. 


Ch.  1)  MAKING   AND    CHANGING    CONSTITUTIONS 


11) 


In  1841,  the  state  of  Rhode  Island  was  acting  under  the  form  of 
government  established  by  the  charter  of  Charles  II  in  1663.  In  this 
form  of  government  no  mode  of  proceeding  was  pointed  out  by  which 
amendments  could  be  made.  It  authorized  tire  legislature  to  prescribe 
the  qualification  of  voters,  and  in  the  exercise  of  this  power  the  right 
of  suffrage  was  confined  to  freeholders.  In  1841,  meetings  were  held 
and  associations  were  formed  by  those  who  were  in  favor  of  a  more 
extended  right  of  suffrage,  which  finally  resulted  in  the  election  of  a 
convention  to  form  a  new  Constitution,  to  be  submitted  to  the  people 
for  their  adoption  or  rejection.  The  persons  chosen  came  together 
and  framed  a  Constitution  by  which  the  right  of  suffrage  was  ex- 
tended to  every  male  citizen  of  twenty-one  years  of  age  who  had  re- 
sided in  the  State  for  one  year.  Upon  a  return  of  the  votes,  the  con- 
vention declared  that  the  Constitution  was  adopted  and  ratified  by  a 
majority  of  the  people  of  the  state,  and  was  the  paramount  law  and 
Constitution  of  Rhode  Island.  The  charter  government  did  not  ad- 
mit the  validity  of  the  proceedings,  nor  acquiesce  in  them.  On  the 
contrary,  in  January,  1842,  when  this  new  Constitution  was  com- 
municated to  the  governor  and  by  him  laid  before  the  legislature,  it 
passed  resolutions  declaring  all  acts  done  for  the  purpose  of  impos- 
ing that  Constitution  upon  the  state,  to  be  an  assumption  of  the  pow- 
ers of  government,  in  violation  of  the  rights  of  the  existing  govern- 
ment and  of  the  people  at  large,  and  that  it  would  maintain  its  au- 
thority and  defend  the  legal  and  constitutional  rights  of  the  people. 
Thomas  W.  Dorr,  who  had  been  elected  governor  under  the  new  Con- 
stitution, prepared  to  assert  the  authority  of  that  government  by- 
force,  and  many  citizens  assembled  in  arms  to  support  him.  The 
charter  government  thereupon  passed  an  act  declaring  the  state  un- 
der martial  law,  and  at  the  same  time  proceeded  to  call  out  the  mili- 
tia to  repel  the  threatened  attack,  and  to  subdue  those  who  were  en- 
gaged in  it.  The  plaintiff,  Luther,  was  engaged  in  supporting  the 
new  government,  and,  in  order  to  arrest  him,  his  house  was  broken 
and  entered  by  the  defendants,  who  were  enrolled  in  the  military 
force  of  the  old  government,  and  in  arms  to  support  its  authority. 
The  government  under  the  new  Constitution  had  but  a  short  and  ig- 
noble existence.  In  May,  1842,  Dorr  made  an  unsuccessful  attempt, 
at  the  head  of  a  military  force,  to  get  possession  of  the  state  arsenal 
at  Providence,  which  was  repulsed.  In  June  following,  an  assem- 
blage of  some  hundreds  of  armed  men,  under  his  command  at 
Chepatchet,  dispersed,  upon  the  approach  of  the  troops  of  the  old 
government,  and  no  further  effort  was  made  to  establish  the  new 
government.  In  January,  1842,  the  charter  government  took  meas- 
ures to  call  a  convention  to  revise  the  existing  form  of  government. 
and  a  new  Constitution  was  formed,  which  was  ratified  by  the  peo- 
ple, and  went  into  operation  in  May,  1843,  at  which  time  the  old  gov- 
ernment  formally  surrendered  all  its  powers.     Under   this  govern- 


20  PRELIMINARY    TOPICS  (Part    1 

merit  Dorr  was  tried  for  treason,  and  in  June,  1844,  was  sentenced 
to  imprisonment  for  life.  In  October,  1842,  Luther  brought  an  ac- 
tion in  the  Circuit  Court  of  the  United  States,  against  Borden  and 
others,  to  recover  damages  for  the  breaking  and  entering  of  his  house 
in  June,  1842.  The  defendants  justified,  alleging  that  there  was  an 
insurrection  to  overthrow  the  government,  that  martial  law  was  de- 
clared, that  plaintiff  was  aiding  and  abetting  the  insurrection,  that 
defendants  were  enrolled  in  the  militia  force  of  the  state  and  were 
ordered  to  arrest  the  plaintiff.  The  plaintiff  relied  upon  the  fact 
that  the  Dorr  government,  to  which  he  adhered,  was  the  legal  gov- 
ernment of  the  state,  and,  as  the  new  Constitution  had  never  been 
recognized  by  any  department  of  the  old  government,  he  offered  to 
prove  at  the  trial,  by  the  production  of  the  original  ballots,  and  the 
original  registers  of  the  persons  voting,  and  by  the  testimony  of  the 
persons  voting,  and  by  the  Constitution  itself,  and  by  the  census  of 
the  United  States  for  the  year  1840,  that  the  Dorr  Constitution  was 
ratified  by  a  large  majority  of  the  male  people  of  the  state,  of  the 
age  of  twenty-one  and  upwards,  and  also  by  a  majority  of  those  who 
were  entitled  to  vote  for  general  officers  under  the  then  existing  laws 
of  the  state.  The  Circuit  Court  rejected  the  evidence,  and  instructed 
the  jury  that  the  charter  government,  and  laws  under  which  the  de- 
fendants acted,  were,  at  the  time  the  trespass  was  alleged  to  have 
been  committed,  in  full  force  and  effect,  and  constituted  a  justifica- 
tion of  the  acts  of  the  defendants.  The  correctness  of  this  ruling 
involved  the  only  question,  which  was  taken  to  the  Supreme  Court 
of  the  United  States  for  review.  The  Supreme  Court  held  that  the 
evidence  was  properly  rejected.  Of  the  correctness  of  that  decision 
no  one  can  entertain  the  shadow  of  a  doubt.  But  the  differences 
between  that  case  and  this  are  so  many  and  so  evident  as  to  deprive 
it  of  all  force  as  an  authority  in  the  present  controversy.  In  that 
case  an  entire  change  in  the  form  of  government  was  undertaken ; 
in  this,  simply  an  amendment,  in  no  manner  affecting  the  judicial 
authority  of  those  acting  under  the  existing  government,  is  sought 
to  be  incorporated  into  the  existing  Constitution.  In  that  case  the 
charter  provided  no  means  for  its  amendment;  in  this,  the  mode  of 
an  amendment  is  specifically  provided.  In  that  case  the  authority  of 
the  court  was  invoked  for  the  admission  of  oral  evidence  to  over- 
throw the  existing  government  and  establish  a  new  one  in  its  place ; 
in  this,  that  authority  is  invoked  simply  to  preserve  the  existing  Con- 
stitution intact. 

It  is  evident,  from  an  examination  of  the  entire  case  of  Luther  v. 
Borden,  "that  the  question  which  the  court  was  considering  pertained 
to  the  power  of  the  federal  courts  to  determine  between  rival  con- 
stitutions in  the  states.  The  power  is  not  denied  to  the  state  courts, 
unless  one  of  the  constitutions  involved  in  the  controversy  be  the  one 
under  which  the  court  is  organized.  This  is  fully  apparent  from 
the  whole  opinion.     *     *     * 


Ch.  1)  MAKING  AND   CHANGING    CONSTITUTIONS  21 

The  language  of  the  court  which,  it  is  claimed,  asserts  the  doctrine 
that  the  question  of  a  change  of  Constitutions  is  a  political  one,  with 
which  courts  have  nothing  to  do,  was  clearly  employed  with  reference 
to  the  peculiar  facts  of  the  case.  This  is  apparent  from  the  follow- 
ing language  of  the  opinion,  which  is  found  upon  pages  39,  40:  "In- 
deed, we  do  not  see  how  the  question  could  be  tried  and  judicially 
decided  in  the  state  court.  Judicial  power  presupposes  an  established 
government,  capable  of  enacting  laws  and  enforcing  their  execution, 
and  of  appointing  judges  to  expound  and  administer  them.  The  ac- 
ceptance of  the  judicial  office  is  a  recognition  of  the  authority  of  the 
government  from  which  it  is  derived,  and  if  the  authority  of  that 
government  is  annulled  and  overthrown,  the  power  of  its  courts  and 
other  officers  is  annulled  with  it,  and  if  a  state  court  should  enter 
upon  the  inquiry  proposed  in  this  case,  and  should  come  to  the  con- 
clusion that  the  government  under  which  it  acted  had  been  put  aside 
and  displaced  by  an  opposing  government,  it  would  cease  to  be  a 
court,  and  be  incapable  of  pronouncing  a  judicial  decision  upon  the 
question  it  undertook  to  try.  If  it  decides  at  all  as  a  court,  it  neces- 
sarily affirms  the  existence  and  the  authority  of  the  government  un- 
der which  it  is  exercising  judicial  power."  That  this  reasoning  is 
eminently  sound  no  one  can  doubt.  A  court  which,  under  the  cir- 
cumstances named,  should  enter  upon  an  inquiry  as  to  the  existence 
of  the  Constitution  under  which  it  was  acting,  would  be  like  a  man 
trying  to  prove  his  personal  existence,  and  would  be  obliged  to  as- 
sume the  very  point  in  dispute,  before  taking  the  first  step  in  the 
argument.  It  is  apparent  that  the  reasoning  employed  in  that  case 
can  have  no  application  whatever  to  an  amendment  to  a  constitution, 
which  does  not  affect  the  form  of  government,  or  the  judicial  powers 
of  existing  courts.  The  case  of  Luther  v.  Borden  gives  no  counte- 
nance whatever  to  the  doctrine  that  the  sovereignty  of  the  people 
extends  rightfully  to  the  overturning  of  Constitutions  and  the  adop- 
tion of  new  ones,  without  regard  to  the  forms  of  existing  provisions. 
It  is  true  that  right,  under  our  form  of  government,  exists,  but  it  is 
a  revolutionary  and  not  a  constitutional  right.  When  that  right  is 
invoked,  a  question  arises  which  is  above  the  Constitution,  and  above 
the  courts,  and  which  contending  factions  can  alone  determine  by 
appeal  to  the  dernier  resort.  In  such  a  case  as  that,  might  makes 
right.  That  there  are  questions  of  such  a  character  as  to  admit  of 
no  adjustment  but  through  an  appeal  to  arms,  we  freely  admit.  This 
arises  out  of  the  imperfections  of  human  government.  A  govern- 
ment which  could  provide  for  the  peaceful  adjustment  of  all  ques- 
tions would  be  more  than  human.  But  surely  no  sagacious  states- 
man or  wise  jurist  will  seek,  by  a  narrow  construction  of  judicial 
power,  to  extend  the  questions  which  are  beyond  the  domain  of  the 
courts,  and  capable  of  solution  only  by  an  appeal  to  arms.  Happily 
for  the  permanency  and  security  of  our  institutions,  the  present  case. 
as  we  believe,  involves  no  such  question. 


22  PRELIMINARY  topics  (Part   1 

It  has  been  said  that  changes  in  the  Constitution  may  be  introduced 
in  disregard  of  its  provisions ;  that,  if  the  majority  of  the  people  de- 
sire a.  change,  the  majority  must  be  respected,  no  matter  how  the 
change  may  be  effected,  and  that  the  change,  if  revolution,  is  peace- 
ful revolution.  But  the  revolution  is  peaceful  only  upon  the  assump- 
tion that  the  party  opposed  surrenders  its  opposition  and  voluntarily 
acquiesces.  If  it  objects  to  the  change,  then  a  question  arises  which 
can  be  determined  only  in  one  of  two  methods,  by  the  arbitrament  of 
the  courts,  or  by  the  arbitrament  of  the  sword.     *     *     * 

Counsel  have  drawn  an  appalling  picture  of  the  wreck  in  which 
our  political  institutions  would  be  involved,  if  the  courts  should  con- 
clude to  decide  that  the  Constitution  of  1857,  under  which  they  are 
organized,  had  not  been  properly  adopted.  The  courts  of  this  state 
possess  no  such  power,  and  they  could  not  assume  such  a  jurisdiction. 
The  reason  why  a  court  could  not  enter  upon  the  determination  as  to 
the  validity  of  a  Constitution  under  which  it  is  itself  organized,  is 
forcibly  set  forth  in  the  case  of  Luther  v.  Borden,  supra,  upon  which 
appellant  relies.  The  distinction  between  such  a  case  and  one  in- 
volving merely  an  amendment,  not  in  any  manner  pertaining  to  the 
judicial  authority,  must  at  once  be  apparent  to  the  legal  mind.  The 
authorities  recognize  the  distinction.  We  are  at  a  loss  to  know  why 
appellant's  counsel  ignore  and  disregard  it. 

Appellant's  counsel  cite  and  rely  upon  section  2,  article  1,  of  the 
Constitution  of  the  state.  This  section  is  a  portion  of  the  Bill  of 
Rights,  and  is  as  follows :  "All  political  power  is  inherent  in  the 
people.  Government  is  instituted  for  the  protection,  security,  and 
benefit  of  the  people,  and  they  have  the  right,  at  all  times,  to  alter 
or  reform  the  same,  whenever  the  public  good  may  require."  Ab- 
stractly considered,  there  can  be  no  doubt  of  the  correctness  of  the 
propositions  embraced  in  this  section.  These  principles  are  older 
than  Constitutions,  and  older  than  governments.  The  people  did  not 
derive  the  rights  referred  to  from  the  Constitution,  and,  in  their  na- 
ture, they  are  such  that  the  people  cannot  surrender  them.  The 
people  would  have  retained  them  if  they  had  not  been  specifically 
recognized  in  the  Constitution.  But  let  us  consider  how  these  rights 
are  to  be  exercised  in  an  organized  government.  The  people  of  this 
state  have  adopted  a  Constitution  which  specifically  designates  the 
modes  for  its  own  amendment.  But  this  section  declares  the  people 
have  the  right  at  all  times  to  alter  or  reform  the  government,  when- 
ever the  public  good  may  require  it.  If  the  people  unanimously 
agree  respecting  an  alteration  in  the  government,  there  could  be  no 
trouble,  for  there  would  be  no  one  to  object.  Suppose,  however,  a 
part  of  the  people  conclude  that  the  public  good  requires  an  altera- 
tion or  reformation  in  the  government,  and  they  set  about  the  adop- 
tion of  a  new  Constitution,  in  a  manner  not  authorized  in  the  old  one. 
Suppose,  also,  as  would  most  likely  prove  to  be  the  case,  that  a  part 
of  the  people  are  content  with  the  existing  government,  and  will  not 


Ch.  1)  MAKING  AND    CHANGING    CONSTITUTIONS  23 

consent  to  the  change,  and  that  the  governor,  who,  under  the  Con- 
stitution, is  the  "commander-in-chief  of  the  militia,  the  army  and 
navy  of  the  state,"  determines  to  maintain  the  existing  government 
by  force.  It  is  evident  that  the  people  who  think  the  public  good 
requires  a  change,  can  establish  these  changes  only  by  superior  force. 
If  they  are  powerful  enough  to  succeed,  well.  They  will  have  al- 
tered or  reformed  the  government.  But  if  they  are  not  powerful 
enough,  to  succeed,  their  attempt  to  overthrow  the  government  is 
treason,  and  they  are  liable  to  punishment  as  traitors.  They  have 
the  right  to  alter  their  government,  in  a  manner  not  recognized  in 
the  Constitution,  only  when  they  can  maintain  that  right  by  superior 
force.  It  follows,  then,  after  all,  that  the  much  boasted  right  claimed 
under  this  action,  is  simply  the  right  to  alter  the  government  in  the 
manner  prescribed  in  the  existing  Constitution,  or  the  right  of  revolu- 
tion, which  is  a  right  to  be  exercised,  not  under  the  Constitution,  but 
in  disregard  and  independently  of  it.     *     *     * 

[Quoting  from  Cooley,  Constitutional  Limitations,  p.  30:]  "In 
the  original  states,  and  all  others  subsequently  admitted  to  the  Un- 
ion, the  power  to  amend  or  revise  their  Constitutions  resides  in  the 
great  body  of  the  people  as  an  organized  body  politic,  who,  being 
vested  with  ultimate  sovereignty,  and  the  source  of  all  state  author- 
ity, have  power  to  control  and  alter  the  law  which  they  have  made 
at  their  will.  But  the  people  in  the  legal  sense  must  be  understood 
to  be  those  who,  by  the  existing  Constitution,  are  clothed  with  politi- 
cal rights,  and  who,  while  that  instrument  remains,  will  be  the  sole 
organs  through  which  the  will  of  the  body  politic  can  be  expressed. 
But  the  will  of  the  people  to  this  end  can  only  be  expressed  in  the 
legitimate  modes  by  which  such  a  body  politic  can  act,  and  which 
must  either  be  prescribed  by  the  Constitution  whose  revision  or 
amendment  is  sought,  or  by  an  act  of  the  legislative  department  of 
the  state,  which  alone  would  be  authorized  to  speak  for  the  people 
upon  this  subject,  and  to  point  out  a  mode  for  the  expression  of  their 
will,  in  the  absence  of  any  provision  for  amendment  or  revision  con- 
tained in  the  Constitution  itself."     *     *     * 

[The  court  here  discusses  Collier  v.  Frierson,  24  Ala.  108;  State 
v.  McBride,  4  Mo.  303,  29  Am.  Dec.  636;  State  v.  Swift,  69  Ind. 
505;  Westinghausen  v.  People,  44  Mich.  265,  6  N.  W.  641;  Pro- 
hibitory Amendment  Cases,  24  Kan.  700;  State  ex  rel.  Hudd  v. 
Timme,  54  Wis.  318,  11  N.  W.  785;  and  Trustees  v.  Mclver,  72  X. 
C.  76.] 

It  is  true  that  in  the  last  five  cases  the  question  of  jurisdiction  was 
not  raised  by  counsel.  But  the  courts  could  not  have  entered  upon 
an  examination  of  the  cases  without  first  determining  in  favor  of 
their  jurisdiction.  If  they  entertained  doubts  respecting  their  juris- 
diction, it  was  the  duty  of  the  courts  to  raise  the  question  themselves. 
We  have  then  seven  states,  Alabama,  Missouri,  Kansas,  Michigan, 
North    Carolina,   Wisconsin,   and    Indiana,    in   whicb   the   jurisdiction 


24  preliminary  topics  (Part  1 

of  the  courts  over  the  adoption  of  an  amendment  to  a  Constitution 
has  been  recognized  and  asserted.  In  no  decision,  either  state  or 
federal,  has  this  jurisdiction  been  denied.  We  may  securely  rest 
our  jurisdiction  upon  the  authority  of  these  cases.     *     *     * 

Petition  overruled.2 

[Beck,  J.,  gave  a  dissenting  opinion.] 

*  Accord:  State  ex  rel.  McClurg  v.  Powell,  77  Miss.  543.  27  South.  927,  43 
L.  R.  A.  652  (1900) ;  Ellingham  v.  Dye  (Ind.)  99  N.  E.  1,  21  (1912)— both  col- 
lecting the  later  cases.  Neither  the  declaration  of  the  legislature  that  an 
amendment  is  part  of  the  Constitution,  State  ex  rel.  McClurg  v.  Powell, 
above;  nor  that  of  the  governor,  Bott  v.  Wurts,  63  N.  J.  Law,  289.  43  Atl. 
744,  881.  45  L.  R.  A.  251  (1899);  McConaughy  v.  Secretary  of  State.  106 
Minn.  392,  119  N.  W.  408  (1909),  binds  the  courts. 

In  a  number  of  states  unimportant  deviations  from  the  prescribed  method 
of  submitting  constitutional  amendments  are  held  not  to  invalidate  them. 
State  ex  rel.  Thompson  v.  Winnett,  78  Neb.  379,  110  N.  W.  1113,  15  Ann.  Cas. 
781  (1907),  annotated  in  10  L.  R.  A.  (N.  S.)  149.  In  a  few  states  the  local  Con- 
stitution expressly  confers  upon  certain  officials  or  tribunals  the  duty  of  decid- 
ing whether  a  proposed  amendment  has  been  adopted  by  the  requisite  vote 
or  not,  and  this  decision  will  bind  the  courts;  but  otherwise  this  question  is 
a  judicial  one  also.     State  ex  rel.  McClurg  v.  Powell,  above  (cases). 

As  to  what  constitutes  the  "majority"  commonly  required  for  the  popular 
adoption  of  constitutional  amendments,  see  the  annotation  in  22  L.  R.  A.  (N. 
S.)  478,  to  State  ex  rel.  Blair  v.  Brooks,  17  Wyo.  344,  99  Pac.  874  (1909). 

Where  a  constitutional  amendment,  even  though  irregularly  adopted,  affects 
an  important  part  of  the  framework  of  government  and  has  been  acted  upon 
so  long  that  to  annul  it  would  create  great  public  embarrassment,  it  will  be 
judicially  upheld.  Nesbit  v.  People,  19  Colo.  441,  452-456,  36  Pac.  221  (1S94) 
(power  of  legislature  for  past  10  years).  See,  also,  Weston  v.  Ryan,  70  Neb. 
211,  97  N.  W.  347,  6  Ann.  Cas.  922  (1903),  and  Pease  v.  Peck,  18  How.  595,  15 
L.  Ed.  518  (1856)  [but  compare  Hulburt  v.  Merriam,  3  Mich.  144  (1854)]. 

Amendment  of  Federal  Constitution. — See  TJ.  S.  Const,  art.  5.  Can  the 
Constitution  be  amended  in  any  other  way  than  as  here  prescribed?  May  a 
state  revoke  its  ratification  of  a  proposed  amendment,  before  three-fourths  of 
the  states  have  ratified?  May  Congress  recall  an  amendment  once  submitted 
to  the  states?  How  long  are  submitted  amendments  open  to  ratification? 
For  a  discussion  of  these  questions,  see  Jameson,  Const.  Conv.  §§  575-S6 
(4th  Ed.) 


Ch.  2)          FUNCTION  OF  JUDICIAIIY  IN  ENFOUCING  CONSTITUTIONS  25 


CHAPTER  II 

FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITU- 
TIONS 


SECTION    1.— POWER   TO   DECLARE   STATUTES   UNCON- 
STITUTIONAL 


THE  FEDERALIST.1 

The  complete  independence  of  the  courts  of  justice  is  peculiarly 
essential  in  a  limited  Constitution.  By  a  limited  Constitution,  I  un- 
derstand one  which  contains  certain  specified  exceptions  to  the  legis- 
lative authority ;  such,  for  instance,  as  that  it  shall  pass  no  bills  of 
attainder,  no  ex  post  facto  laws,  and  the  like.  Limitations  of  this 
kind  can  be  preserved  in  practice  no  other  way  than  through  the 
medium  of  courts  of  justice,  whose  duty  it  must  be  to  declare  all 
acts  contrary  to  the  manifest  tenor  of  the  Constitution  void.  With- 
out this,  all  the  reservations  of  particular  rights  or  privileges  would 
amount  to  nothing. 

Some  perplexity  respecting  the  rights  of  the  courts  to  pronounce 
legislative  acts  void,  because  contrary  to  the  Constitution,  has  arisen 
from  an  imagination  that  the  doctrine  would  imply  a  superiority  of 
the  judiciary  to  the  legislative  power.  It  is  urged  that  the  authority 
which  can  declare  the  acts  of  another  void,  must  necessarily  be  su- 
perior to  the  one  whose  acts  may  be  declared  void.  As  this  doctrine 
is  of  great  importance  in  all  the  American  Constitutions,  a  brief  dis- 
cussion of  the  ground  on  which  it  rests  cannot  be  unacceptable. 

There  is  no  position  which  depends  on  clearer  principles,  than  that 
every  act  of  a  delegated  authority,  contrary  to  the  tenor  of  the  com- 
mission under  which  it  is  exercised,  is  void.  No  legislative  act,  there- 
fore, contrary  to  the  Constitution,  can  be  valid.  To  deny  this,  would 
be  to  affirm,  that  the  deputy  is  greater  than  his  principal;  that  the 
servant  is  above  his  master;  that  the  representatives  of  the  people 
are  superior  to  the  people  themselves ;  that  men  acting  by  virtue  of 
powers  may  do  not  only  what  their  powers  do  not  authorize,  but 
what  they  forbid. 

If  it  be  said  that  the  legislative  body  are  themselves  the  constitu- 
tional judges  of  their  own  powers,  and  that  the  construction  they 
put  upon  them  is  conclusive  upon  the  other  departments,  it  may   he 

i  The  passages  here  reprinted  are  taken  from  The  Federalist  (Ford's  Ed.), 
a  collection  of  papers  published  in  1787  ss.  chiefly  bj  Hamilton  and  Madison, 

urging  the  adoption  hy  the  states  of  the  Ihou  proposed  federal  Constitution. 


26  preliminary  topics  (Part  1 

answered,  that  this  cannot  be  the  natural  presumption,  where  it  is 
not  to  be  collected  from  any  particular  provisions  in  the  Constitution. 
It  is  not  otherwise  to  be  supposed,  that  the  Constitution  could  intend 
to  enable  the  representatives  of  the  people  to  substitute  their  will  to 
that  of  their  constituents.  It  is  far  more  rational  to  suppose,  that 
the  courts  were  designed  to  be  an  intermediate  body  between  the  peo- 
ple and  the  legislature,  in  order,  among  other  things,  to  keep  the 
latter  within  the  limits  assigned  to  their  authority.  The  interpreta- 
tion of  the  laws  is  the  proper  and  peculiar  province  of  the  courts.  A 
Constitution  is,  in  fact,  and  must  be  regarded  by  the  judges,  as  a 
fundamental  law.  It  therefore  belongs  to  them  to  ascertain  its  mean- 
ing, as  well  as  the  meaning  of  any  particular  act  proceeding  from  the 
legislative  body.  If  there  should  happen  to  be  an  irreconcilable  vari- 
ance between  the  two,  that  which  has  the  superior  obligation  and 
validity  ought,  of  course,  to  be  preferred ;  or,  in  other  words,  the 
Constitution  ought  to  be  preferred  to  the  statute,  the  intention  of  the 
people  to  the  intention  of  their  agents. 

Nor  does  this  conclusion  by  any  means  suppose  a  superiority  of 
the  judicial  to  the  legislative  power.  It  only  supposes  that  the  power 
of  the  people  is  superior  to  both ;  and  that  where  the  will  of  the 
legislature,  declared  in  its  statutes,  stands  in  opposition  to  that  of  the 
people,  declared  in  the  Constitution,  the  judges  ought  to  be  governed 
by  the  latter  rather  than  the  former.  They  ought  to  regulate  their 
decisions  by  the  fundamental  laws,  rather  than  by  those  which  are 
not  fundamental. 

This  exercise  of  judicial  discretion,  in  determining  between  two 
contradictory  laws,  is  exemplified  in  a  familiar  instance.  It  not  un- 
commonly happens,  that  there  are  two  statutes  existing  at  one  time, 
clashing  in  whole  or  in  part  with  each  other,  and  neither  of  them 
containing  any  repealing  clause  or  expression.  In  such  a  case,  it  is 
the  province  of  the  courts  to  liquidate  and  fix  their  meaning  and  op- 
eration. So  far  as  they  can,  by  any  fair  construction,  be  reconciled 
to  each  other,  reason  and  law  conspire  to  dictate  that  this  should  be 
done ;  where  this  is  impracticable,  it  becomes  a  matter  of  necessity 
to  give  effect  to  one,  in  exclusion  of  the  other.  The  rule  which  has 
obtained  in  the  courts  for  determining  their  relative  validity  is,  that 
the  last  in  order  of  time  shall  be  preferred  to  the  first.  But  this  is 
a  mere  rule  of  construction,  not  derived  from  any  positive  law,  but 
from  the  nature  and  reason  of  the  thing.  It  is  a  rule  not  enjoined 
upon  the  courts  by  legislative  provision,  but  adopted  by  themselves, 
as  consonant  to  truth  and  propriety,  for  the  direction  of  their  con- 
duct as  interpreters  of  the  law.  They  thought  it  reasonable,  that  be- 
tween the  interfering  acts  of  an  equal  authority,  that  which  was  the 
last  indication  of  its  will  should  have  the  preference. 

But  in  regard  to  the  interfering  acts  of  a  superior  and  subordinate 
authority,  of  an  original  and  derivative  power,  the  nature  and  reason 
of  the  thing  indicate  the  converse  of  that  rule  as  proper  to  be  fol- 


Cll.  2)         FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  27 

lowed.  They  teach  us  that  the  prior  act  of  a  superior  ought  to  be 
preferred  to  the  subsequent  act  of  an  inferior  and  subordinate  au- 
thority ;  and  that  accordingly,  whenever  a  particular  statute  con- 
travenes the  Constitution,  it  will  be  the  duty  of  the  judicial  tribunals 
to  adhere  to  the  latter  and  disregard  the  former. 

It  can  be  of  no  weight  to  say  that  the  courts,  on  the  pretence  of 
a  repugnancy,  may  substitute  their  own  pleasure  to  the  constitutional 
intentions  of  the  legislature.  This  might  as  well  happen  in  the  case 
of  two  contradictory  statutes;  or  it  might  as  well  happen  in  every 
adjudication  upon  any  single  statute.  The  courts  must  declare  the 
sense  of  the  law ;  and  if  they  should  be  disposed  to  exercise  will  in- 
stead of  judgment,  the  consequence  would  equally  be  the  substitution 
of  their  pleasure  to  that  of  the  legislative  body.  The  observation, 
if  it  prove  anything,  would  prove  that  there  ought  to  be  no  judges 
distinct  from  that  body. — Federalist,  No.  78  (Hamilton)  (Ford's  Ed.) 
520-523.2 

There  ought  always  to  be  a  constitutional  method  of  giving  ef- 
ficacy to  constitutional  provisions.  What,  for  instance,  would  avail 
restrictions  on  the  authority  of  the  state  legislatures,  without  some 
constitutional  mode  of  enforcing  the  observance  of  them?  The 
states,  by  the  plan  of  the  convention,  are  prohibited  from  doing  a 
variety  of  things,  some  of  which  are  incompatible  with  the  interests 
of  the  Union,  and  others  with  the  principles  of  good  government. 
The  imposition  of  duties  on  imported  articles,  and  the  emission  of 
paper  money,  are  specimens  of  each  kind.  No  man  of  sense  will 
believe,  that  such  prohibitions  would  be  scrupulously  regarded,  with- 
out some  effectual  power  in  the  government  to  restrain  or  correct  the 
infractions  of  them.  This  power  must  either  be  a  direct  negative  on 
the  state  laws,  or  an  authority  in  the  federal  courts  to  overrule  such 
as  might  be  in  manifest  contravention  of  the  articles  of  Union. 
There  is  no  third  course  that  I  can  imagine.  The  latter  appears  to 
have  been  thought  by  the  convention  preferable  to  the  former,  and, 
I  presume,  will  be  most  agreeable  to  the  states. — Federalist,  No.  80 
(Hamilton)  (Ford's  Ed.)  531. 

2  Before  the  framing  and  adoption  of  the  United  States  Constitution  tn 
17S7-8S  there  had  been  a  number  of  decisions  or  dicta  in  state  courts  upon 
the  poiut,  chiefly  to  the  effect  that  an  unconstitutional  act  of  the  legislature 
might  be  disregarded  by  the  courts.  See  Holmes  v.  Walton,  4  Anier.  Hist. 
Review  456  (N.  J.  1780) ;  Comm.  v.  Caton,  4  Call,  5  (Va.  1782) ;  Rutgers  v. 
Waddington,  Pamphlet,  1784  and  I860  (N.  Y.  1784);  Trevett  v.  Weeden,  2 
Chand.  Crim.  Trials.  269  (R.  I.,  1786) ;  perhaps  a  Massachusetts  case,  7 
II.ii-v.  I,.  Bey.  415  (1786-87);  Bayard  v.  Singleton,  1  Mart  42  M  X.  0.  51  (1787). 
These  cases  and  others  arising  before  Marbury  7.  Madison,  below,  are  collected 
and  discussed  try  Wm.  M.  Meigs,  in  19  Amer.  Law  Rev.  175-190,  and  40  Amer. 
L.  Rev.  619-054,  and  in  Coxe,  Judic  Pow.  and  Unconst.  Legislat.,  219-269. 
All  but  the  first  and  fifth  of  them  are  printed  tn  1  Thayer,  Cas.  on  Const 
Law,  55-80. 


28  preliminary  Tories  (Part  1 

MARBURY  v,  MADISON. 
(Supreme  Court  of  United  States,  1803.    1  Cranch,  137,  2  L.  Ed.  60.) 

[Original  mandamus  proceeding.  William  Marbury  and  others 
moved  for  a  rule  to  James  Madison,  Secretary  of  State,  to  show 
cause  why  a  mandamus  should  not  issue  commanding  the  delivery 
to  applicants  of  their  commissions  as  justices  of  the  peace  of  the 
District  of  Columbia,  which  had  been  previously  signed  by  President 
Adams  just  before  the  expiration  of  his  term  of  office.  The  Ju- 
diciary Act  of  1789  authorized  the  Supreme  Court  "to  issue  writs 
of  mandamus  *  *  *  to  any  courts  appointed  or  persons  holding 
office  under  the  authority  of  the  United  States."  After  deciding  that 
the  applicants  had  a  legal  right  to  the  commissions,  that  mandamus 
was  a  proper  remedy,  but  that  the  power  to  issue  it  was  not  within 
the  original  jurisdiction  of  the  Supreme  Court,  under  article  III, 
§  2,  par.  2,  of  the  Constitution,  the  court  proceeded  as  follows:] 

Mr.  Chief  Justice  Marshall.  *  *  *  The  authority,  therefore, 
given  to  the  Supreme  Court,  by  the  act  establishing  the  judicial 
courts  of  the  United  States,  to  issue  writs  of  mandamus  to  public 
officers,  appears  not  to  be  warranted  by  the  Constitution ;  and  it  be- 
comes necessary  to  inquire  whether  a  jurisdiction  so  conferred  can  be 
exercised. 

The  question  whether  an  act  repugnant  to  the  Constitution  can  be- 
come the  law  of  the  land,  is  a  question  deeply  interesting  to  the 
United  States;  but,  happily,  not  of  an  intricacy  proportioned  to  its 
interest.  It  seems  only  necessary  to  recognize  certain  principles,  sup- 
posed to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their  future 
government,  such  principles  as,  in  their  opinion,  shall  most  conduce  to 
their  own  happiness,  is  the  basis  on  which  the  whole  American  fabric 
has  been  erected.  The  exercise  of  this  original  right  is  a  very  great 
exertion;  nor  can  it  nor  ought  it  to  be  frequently  repeated.  The 
principles,  therefore,  so  established,  are  deemed  fundamental.  And 
as  the  authority  from  which  they  proceed  is  supreme,  and  can  seldom 
act,  they  are  designed  to  be  permanent.  This  original  and  supreme 
will  organizes  the  government,  and  assigns  to  different  departments 
their  respective  powers.  It  may  either  stop  here,  or  establish  certain 
limits  not  to  be  transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined  and  limited ;  and  that  those 
limits  may  not  be  mistaken,  or  forgotten,  the  Constitution  is  written. 
To  what  purpose  are  powers  limited,  and  to  what  purpose  is  that  lim- 
itation committed  to  writing,  if  these  limits  may,  at  any  time,  be 
passed  by  those  intended  to  be  restrained?  The  distinction  between 
a  government  with  limited  and  unlimited  powers  is  abolished,  if  those 
limits  do  not  confine  the  persons  on  whom  they  are  imposed,  and  if 


Ch.  2)          FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  29 

acts  prohibited  and  acts  allowed  are  of  equal  obligation.  It  is  a 
proposition  too  plain  to  be  contested,  that  the  Constitution  controls 
any  legislative  act  repugnant  to  it;  or,  that  the  legislature  may  alter 
the  Constitution  by  an  ordinary  act.  Between  these  alternatives  there 
is  no  middle  ground.  The  Constitution  is  either  a  superior  para- 
mount law,  unchangeable  by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other  acts,  is  alterable  when  the 
legislature  shall  please  to  alter  it.  If  the  former  part  of  the  alterna- 
tive be  true,  then  a  legislative  act  contrary  to  the  Constitution  is  not 
law  ;  if  the  latter  part  be  true,  then  written  constitutions  are  absurd 
attempts,  on  the  part  of  the  people,  to  limit  a  power  in  its  own  nature 
illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  contem- 
plate them  as  forming  the  fundamental  and  paramount  law  of  the 
nation,  and,  consequently,  the  theory  of  every  such  government  must 
be,  that  an  act  of  the  legislature,  repugnant  to  the  Constitution  is 
void.  This  theory  is  essentially  attached  to  a  written  constitution. 
and  is  consequently  to  be  considered,  by  this  court,  as  one  of  the 
fundamental  principles  of  our  society.  It  is  nut,  therefore,  to  be  lost 
sight  of  in  the  further  consideration  of  this  subject  If  an  act  of  the 
legislature,  repugnant  to  the  Constitution,  is  void,  does  it,  notwith- 
standing its  invalidity,  bind  the  courts,  and  oblige  them  to  give  it 
effect?  Or,  in  other  words,  though  it  be  not  law,  does  it  constitute 
a  rule  as  operative  as  if  it  was  a  law?  This  would  be  to  overthrow 
in  fact  what  was  established  in  theory ;  and  would  seem,  at  first 
view,  an  absurdity  too  gross  to  be  insisted  on.  It  shall,  however,  re- 
ceive a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  department 
to  say  wdiat  the  law  is.  Those  who  apply  the  rule  to  particular  cases. 
must  of  necessity  expound  and  interpret  that  rule.  If  two  laws  con- 
flict with  each  other,  the  courts  must  decide  on  the  operation  of  each. 
So  if  a  law  be  in  opposition  to  the  Constitution;  if  both  the  law  and 
the  Constitution  apply  to  a  particular  case,  so  that  the  court  must  ei- 
ther decide  that  case  conformably  to  the  law,  disregarding  the  Con- 
stitution, or  conformably  to  the  Constitution,  disregarding  the  law, 
the  court  must  determine  which  of  these  conflicting  rules  governs 
the  case.  This  is  of  the  very  essence  of  judicial  duty.  If,  then,  the 
courts  are  to  regard  the  Constitution,  and  the  Constitution  is  su- 
perior to  any  ordinary  act  of  the  legislature,  the  Constitution,  and 
not  such  ordinary  act,  must  govern  the  ease  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  Constitution  is 
to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to  the 
necessity  of  maintaining  that  courts  must  close  their  eyes  on  the  Con- 
stitution, and  see  only  the  law.  This  doctrine  would  subvert  the  very 
foundation  of  all  written  constitutions,  it  would  declare  that  an  act 
which,  according  to  the  principles  and  theory  of  our  government,  is 
entirely  void,  is  yet,  in  practice,  completely  obligatory.     It  would  de- 


30  PRELIMINARY    TOPIC8  (Part    1 

dare  that  if  the  legislature  shall  do  what  is  expressly  forbidden,  such 
act,  notwithstanding  the  express  prohibition,  is  in  reality  effectual. 
It  would  be  giving  to  the  legislature  a  practical  and  real  omnipotence, 
with  the  same  breath  which  professes  to  restrict  their  powers  within 
narrow  limits.  It  is  prescribing  limits,  and  declaring  that  those  lim- 
its may  be  passed  at  pleasure.  That  it  thus  reduces  to  nothing  what 
we  have  deemed  the  greatest  improvement  on  political  institutions,  a 
written  Constitution,  would  of  itself  be  sufficient,  in  America,  where 
written  Constitutions  have  been  viewed  with  so  much  reverence,  for 
rejecting  the  construction.  But  the  peculiar  expressions  of  the  Con- 
stitution of  the  United  States  furnish  additional  arguments  in  favor 
of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  Constitution.  Could  it  be  the  intention  of  those 
who  gave  this  power,  to  say  that  in  using  it  the  Constitution  should 
not  be  looked  into  ?  That  a  case  arising  under  the  Constitution  should 
be  decided  without  examining  the  instrument  under  which  it  arises? 
This  is  too  extravagant  to  be  maintained.  In  some  cases,  then,  the 
Constitution  must  be  looked  into  by  the  judges.  And  if  they  can 
open  it  at  all,  what  part  of  it  are  they  forbidden  to  read  or  to  obey? 

There  are  many  other  parts  of  the  Constitution  which  serve  to  il- 
lustrate this  subject.  It  is  declared  that  "no  tax  or  duty  shall  be  laid 
on  articles  exported  from  any  state."  Suppose  a  duty  on  the  export 
of  cotton,  of  tobacco,  or  of  flour;  and  a  suit  instituted  to  recover  it. 
Ought  judgment  to  be  rendered  in  such  a  case?  ought  the  judges  to 
close  their  eyes  on  the  Constitution,  and  only  see  the  law?  The  Con- 
stitution declares  "that  no  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed."  If,  however,  such  a  bill  should  be  passed,  and  a  person 
should  be  prosecuted  under  it,  must  the  court  condemn  to  death  those 
victims  whom  the  Constitution  endeavors  to  preserve?  "No  person," 
says  the  Constitution,  "shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court."  Here  the  language  of  the  Constitution  is  addresssed 
especially  to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of 
evidence  not  to  be  departed  from.  If  the  legislature  should  change 
that  rule,  and  declare  one  witness,  or  a  confession  out  of  court,  suf- 
ficient for  conviction,  must  the  constitutional  principle  yield  to  the 
legislative  act? 

From  these,  and  many  other  selections  which  might  be  made,  it 
is  apparent  that  the  framers  of  the  Constitution  contemplated  that 
instrument  as  a  rule  for  the  government  of  courts,  as  well  as  of  the 
legislatufe.  Why  otherwise  does  it  direct  the  judges  to  take  an 
oath  to  support  it?  This  oath  certainly  applies  in  an  especial  man- 
ner to  their  conduct  in  their  official  character.  How  immoral  to  im- 
pose it  on  them,  if  they  were  to  be  used  as  the  instruments,  and  the 
knowing  instruments,  for  violating  what  they  swear  to  support!  The 
oath  of  office,  too,  imposed  by  the  legislature,  is  completely  demon- 


Ch.  2)         FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  31 

strative  of  the  legislative  opinion  on  this  subject.  It  is  in  these 
words :  "I  do  solemnly  swear  that  I  will  administer  justice  without 
respect  to  persons,  and  do  equal  right  to  the  poor  and  to  the  rich ; 
and  that  I  will   faithfully  and  impartially   discharge   all  the   duties 

incumbent  on  me  as ,  according  to  the  best  of  my  abilities  and 

understanding,  agreeably  to  the  Constitution  and  laws  of  the  United 
States."  Why  does  a  judge  swear  to  discharge  his  duties  agreeably 
to  the  Constitution  of  the  United  States,  if  that  Constitution  forms 
no  rule  for  his  government — if  it  is  closed  upon  him,  and  cannot  be 
inspected  by  him?  If  such  be  the  real  state  of  things,  this  is  worse 
than  solemn  mockery.  To  prescribe,  or  to  take  this  oath,  becomes 
equally  a  crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  Constitution  itself  is 
first  mentioned;  and  not  the  laws  of  the  United  States  generally,  but 
those  only  which  shall  be  made  in  pursuance  of  the  Constitution,  have 
that  rank.  Thus,  the  particular  phraseology  of  the  Constitution  of 
the  United  States  confirms  and  strengthens  the  principle,  supposed  to 
be  essential  to  all  written  constitutions,  that  a  law  repugnant  to  the 
Constitution  is  void;  and  that  courts,  as  well  as  other  departments, 
are  bound  by  that  instrument 

Rule  discharged.1 

'  The  federal  Circuit  Court  for  Pennsylvania  declared  an  act  of  Congress 
unconstitutional  in  Haybum's  Case  (1792),  not  reported.  See  13  Am.  Hist. 
Rev.  281  (1908),  by  M.  Farrand. 

"So  far  as  the  grounds  for  this  remarkable  power  are  found  in  the  mere 
fact  of  a  constitution  being  in  writing,  or  in  Judges  being  sworn  to  support 
it,  they  are  quite  inadequate.  Neither  the  written  form  nor  the  oath  of  the 
Judges  necessarily  involves  the  right  of  reversing,  displacing,  or  disregarding 
any  action  of  the  legislature  or  the  executive  which  those  departments  are 
constitutionally  authorized  to  take,  or  the  determination  of  those  departments 
that  they  are  so  authorized.  It  is  enough,  in  confirmation  of  this,  to  refer  to 
the  fact  that  other  countries,  as  Prance,  Germany,  and  Switzerland,  have  writ- 
ten Constitutions,  and  that  such  a  power  is  not  recognized  there.  'The  re- 
strictions,' says  Dicey,  in  his  admirable  Law  of  the  Constitution  [page  127, 
3d  Ed.],  'placed  on  the  action  of  the  legislature  under  the  French  Constitu- 
tion are  not  in  reality  law;s,  since  they  are  not  rules  which  in  the  last  resort 
will  be  enforced  by  the  courts.  Their  true  character  is  that  of  maxims  of 
political  morality,  which  derive  whatever  strength  they  possess  from  being 
formally  inscribed  In  the  Constitution,  and  from  the  resulting  support  of 
public  opinion.'"    J.  B.  Thayer.  Legal  Essays,  2  (also  in  7  Harv.  L.  Rev.  130). 

"It  is  almost  necessary  to  the  working  of  a  federal  system  that  the  gen- 
eral government,  and  each  of  its  departments,  should  be  free  to  disregard 
acts  of  any  department  of  the  local  states  which  may  be  inconsistent  with  the 
federal  Constitution.  And  so  In  Switzerland  and  Germany  the  federal  courts 
thus  treat  local  enactments.  But  there  is  not  under  any  written  Constitu- 
tion in  Europe  a  country  where  a  court  deals  In  this  way  with  the  act  of 
Its  co-ordinate  legislature.  In  Germany,  at  one  time,  this  was  done,  under 
the  Influence  of  a  study  of  our  law,  but  It  was  soon  abandoned.  Coxe.  Jud. 
Power,  95-102;  Thayer's  Cases  on  Constitutional  Law,  L  140-149." — Thayer, 
John  Marshall,  61-62. 

But  see  6  Am.  Pol.  Scl.  Rev.  456  (1912),  mentioning  a  recent  case  in 
Rouuiania  declaring  unconstitutional  an  act  of  the  Roumanian  Parliament. 

In  Lakin  v.  Raub,  12  Serg.  &  R.  330,  345-358  (Pa.,  1825)  is  a  strongly  rea- 
soned dissent  by  Gibson,  J.,  from  the  doctrine  of  the  principal  case,  a  view 


32  preliminary  topics  (Part  1 

SHARPLESS  v.  MAYOR  OF  PHILADELPHIA. 
(Supreme  Court  of  Pennsylvania,  1853.    21  Pa.  147,  59  Am.  Dec.  759.) 

[Original  bill  in  equity.  Acting  under  authority  of  a  Pennsylvania 
statute,  defendants,  officials  of  the  city  of  Philadelphia,  were  about 
to  subscribe  for  $1,000,000  of  the  stock  of  two  railway  companies, 
paying  therefor  in  city  bonds,  in  order  to  secure  the  construction  of 
certain  lines  of  railroad  that  would  connect  Philadelphia  with  other 
parts  of  the  state.  Plaintiffs,  residents  and  owners  of  real  and  per- 
sonal property  in  the  city  that  would  be  subject  to  taxation  for  the 
payment  of  said  bonds,  sought  to  enjoin  said  proposed  subscription 
as  one  not  validly  authorized  under  the  state  Constitution.] 

Black,  C.  J.  *  *  *  It  is  important,  first  of  all,  to  settle  the 
rule  of  interpretation.  This  can  be  best  done  by  a  slight  reference  to 
the  origin  of  our  political  system.  In  the  beginning  the  people  held 
in  their  own  hands  all  the  power  of  an  absolute  government.  The 
transcendant  powers  of  Parliament  devolved  on  them  by  the  Revolu- 
tion. Bonaparte  v.  Camden  &  A.  R.  Co.,  1  Bald.  220,  Fed.  Cas.  No. 
1,617;  Johnson  v.  Mcintosh,  8  Wheat.  584,  5  L.  Ed.  681;  Wilkinson 
v.  Leland,  2  Pet.  656,  7  L.  Ed.  542.     Antecedent  to  the  adoption  of 

which  this  distinguished  judge  abandoned  twenty  years  later.  See  Menges 
v.  Wertuian,  1  Pa.  218,  222  (1845) ;   Norris  v.  Clynier,  2  Pa.  277,  281  (1845). 

If  an  unconstitutional  act  of  Congress  may  be  disregarded  by  the  courts, 
a  fortiori  an  act  of  a  state  legislature  in  violation  of  the  federal  Constitution 
will  fail.  This  results,  not  only  from  the  reasoning  of  the  principal  case,  but 
from  the  express  language  of  article  VI,  par.  2.  Eakin  v.  Kaub,  above,  12 
Serg.  &  R.  330,  at  356-357.  A  state  law  was  first  held  void  as  in  conflict  with 
the  Constitution  in  Fletcher  v.  Peck,  6  Cranch,  87,  3  L.  Ed.  162  (1810).  Of 
course  the  federal  courts,  in  any  case  properly  before  them,  may  pass  upon 
the  validity  of  state  legislation  under  state  Constitutions  to  the  same  extent 
that  a  state  court  might  Van  Home's  Lessee  v.  Dorrance,  2  Dall.  304,  1  L. 
Ed.  391  (1795) ;  Loan  Ass'n  v.  Topeka,  20  Wall.  655,  22  L.  Ed.  455  (1875) ; 
Concord  v.  Portsmouth  Sav.  Bk.,  92  U.  S.  625,  23  L.  Ed.  628  (1S76) ;  Knignt 
v.  Shelton  (C.  C.)  134  Fed.  423,  440,  441  (1905)  (validity  of  amendment  of 
state  Constitution). 

For  valuable  discussions  of  the  historical  basis  of  the  doctrine  of  the  prin- 
cipal case,  see  Thayer,  Legal  Essays,  1  (also  In  7  Harv.  L.  Rev.  129)  (1893) ;  A. 
I.  Clark,  in  17  Harv.  L.  Rev.  1  (1903) ;  McLaughlin,  The  Courts.  Constitutions 
and  Parties,  3-107,  267-275  (1912).  In  Beard,  The  Supreme  Court  and  the 
Constitution  (1912)  (also  in  27  Pol.  Sci.  Quar.  1),  is  an  elaborate  study  of  the 
personal  views  of  the  framers  of  the  Constitution  upon  this  subject.  The 
researches  of  these  writers  seem  clearly  to  establish  the  historical  correctness 
of  Marbury  v.  Madison.  For  references  to  some  contrary  views,  see  27  Pol. 
Sci.  Quar.  1,  note.  For  a  criticism  of  Marshall's  argument,  see  Thayer,  John 
Marshall,  95-101,  quoted  in  Thayer,  Legal  Essays,  15-16,  note. 

The  power  and  duty  of  courts  in  the  ordinary  discharge  of  the  judicial 
function  "to  disregard  enactments  of  legislatures,  of  whatever  rank,  which 
violate  limitations  imposed  by  some  paramount  authority,  is  recognized 
In  every  English-speaking  jurisdiction  where  the  question  has  arisen.  In 
addition  to  cases  in  the  courts  of  the  United  States  and  of  every  Ameri- 
can state,  see:  Canada — Woodruff  v.  Atty.  Gen.  for  Ontario,  (1908)  A.  C. 
SOS  (provincial  legislation) ;  Atty.  Gen.  for  Ont.  v.  Atty.  Gen.  for  Canada, 
(1890)  A.  C.  348  (Dominion  legislation) ;  Re  Provincial  Fisheries,  26  Can. 
S.   C.   444   (1896)    (same),   affirmed  (1S98)   A.  C.   700.     See,   also,   for   general 


Ch.  2)         FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  33 

the  federal  Constitution,  the  power  of  the  states  was  supreme  and 
unlimited.  Farmers'  &  Mechanics'  Bank  v.  Smith,  3  Serg.  &  R.  68. 
If  the  people  of  Pennsylvania  had  given  all  the  authority  which  they 
themselves  possessed  to  a  single  person,  they  would  have  created  a 
despotism  as  absolute  in  its  control  over  life,  liberty,  and  property 
as  that  of  the  Russian  autocrat.  But  they  delegated  a  portion  of  it 
to  the  United  States,  specifying  what  they  gave,  and  withholding  the 
rest.  The  powers  not  given  to  the  government  of  the  Union  were 
bestowed  on  the  government  of  the  state,  with  certain  limitations 
and  exceptions,  expressly  set  down  in  the  state  Constitution.  The 
federal  Constitution  confers  powers  particularly  enumerated ;  that  of 
the  state  contains  a  general  grant  of  all  powers  not  excepted.  The 
construction  of  the  former  instrument  is  strict  against  those  who 
claim  under  it ;  the  interpretation  of  the  latter  is  strict  against  those 
who  stand  upon  the  exceptions,  and  liberal  in  favor  of  the  govern- 
ment itself.  The  federal  government  can  do  nothing  but  what  is  au- 
thorized expressly  or  by  clear  implication ;  the  state  may  do  what- 
ever is  not  prohibited. 

The  powers  bestowed  on  the  state  government  were  distributed 
by  the  Constitution  to  the  three  great  departments:  the  legislative, 
the  executive,  and  the  judicial.    The  power  to  make  laws  was  granted 

Ions,  Queen  v.  Chandler,  12  N.  Br.  556  (1869);  L'Union  St.  Jacques 
v.  Belisle,  20  L.  C.  Jur.  20  (1872,  Quebec  Q.  B.) ;  Brophy  v.  Atty.  Gen.  for 
Manitoba,  (18&>)  A.  C.  202.  217.  Australia — Cooper  v.  Commissioner,  4  Conim. 
L.  B.  1304  (1907)  (state  act  violating  state  Constitution)  [although  the  state 
Constitution  itself  was  subject  to  alteration  by  the  legislature] ;  Baxter  v. 
Comnirs,,  4  C.  L.  R.  His?  (1907)  (state  act  violating  Commi  owes  I 
tion);  Federated,  etc.,  Ass'n  v.  New  S.  W.  Ass'n,  4  C.  L.  R.  4S8  (1906)  (fed- 
eral act  tolating  Commonwealth  Constitution).  Veto  Zealand — lu  re  Award. 
etc.,  26  N.  Z.  S.  C.  394,  404  ft.  (1906). 

In  Baxter  v.  Coi  above,  Griffith,  C.  J.,  said  (4  C.  L.  B»  1125) :    "The  ob- 

servation that   the  American  Union  has  erected  a   tribunal  which  possesses 
jurisdiction  to  annul  a  statute  on  the  ground  that  it  is  unconstitutional  seems 
to  be  founded  on  the  supposition  that  the  Supreme  Court  of  the  United  States 
was  endowed  with  special  powers  in  this  respect  different  from  those  po 
by  other  courts.     *     *     •     The  power  of  the  Supreme  Court  of  the  United 
States  to  decide  whether  an  act  of  Congress  or  of  a  state  is  in  conformity 
with  the  Constitution  depends  upon  and  follows  from  the  Constitution  Itself, 
which  is,  by  section  2  of  article  VI,  declared  to  be  the  supreme  law  of  th 
laud,  as   the  Australian  Constitution  is  declared  to   be  by   section  5  of  the 
Constitution  Act.     Such  questions  must  certainly  arise  under  a  federal  Con- 
stitution, and  must  be  determined  by  the  courts  before  which  they  are  raise.! 
•     »     *     English  jurisprudence  has  always   recognized  that   tl 
legislature  of   limited  jurisdiction  (whether  the  limits  be  as   to  territory  or 
sutrject-matter)  may  be  examined  by  any  tribunal  before  whom  the  point   is 
properly  raised.    The  term  •unconstitutional.'  used  in  this  connection, 
no  more  than  'ultra  vires.'     The  analogy  between  the  two  systems  of  juris- 
prudence Is  therefore  perfect." 

Cor  t  lie  meaning  of  "unconstitutional"  as  applied  to  a  statute  of  the  British 
Parliament,  see  Webb  v.  Outritn  (1907)  A.  C.  SI,  SO  (P.  C.)  ;  and  for  a  strik- 
ing illustration  of  the  British  doctrine  of  the  supremacy  of  the  ordinary  law 
of  private  rights  over  acts  of  the  Crown,  see  Walter  v.  Balrd  (1S92)  A.  C. 
401.  See,  also,  Smith,  J.,  in  Baton  v.  Boston,  etc..  By.,  post.  p.  717:  "Parlia- 
ment *  *  *  is  at  once  a  legislature  and  a  constitutional  convention." 
Hall  Const. L. — 3 


;54  PRELIMINARY    TOPICS  (Part    1 

in  section  1  of  article  1,  by  the  following  words:  "The  legislative 
power  of  this  commonwealth  shall  be  vested  in  a  General  Assembly, 
which  shall  consist  of  a  Senate  and  House  of  Representatives."  It 
is  plain  that  the  force  of  these  general  words,  if  there  had  been 
nothing  elsewhere  to  qualify  them,  would  have  given  to  the  Assembly 
an  unlimited  power  to  make  all  such  laws  as  they  might  think  proper. 
They  would  have  had  the  whole  omnipotence  of  the  British  Parlia- 
ment. But  the  absolute  power  of  the  people  themselves  had  been 
previously  limited  by  the  federal  Constitution,  and  they  could  not 
bestow  on  the  legislature  authority  which  had  already  been  given  to 
Congress.  The  judicial  and  executive  powers  were  also  lodged  else- 
where, and  the  legislative  department  was  forbidden  to  trench  upon 
the  others  by  an  implication  as  clear  as  words  could  make  it.  The 
jurisdiction  of  the  Assembly  was  still  further  confined  by  that  part 
of  the  Constitution  called  the  "Declaration  of  Rights,"  which,  in 
twenty-five  sections,  carefully  enumerates  the  reserved  rights  of 
the  people,  and  closes  by  declaring  that  "everything  in  this  article  is 
excepted  out  of  the  general  powers  of  the  government,  and  shall  re- 
main for  ever  inviolate."  The  General  Assembly  cannot,  therefore, 
pass  any  law  to  conflict  with  the  rightful  authority  of  Congress,  nor 
perform  a  judicial  or  executive  function,  nor  violate  the  popular 
privileges  reserved  by  the  Declaration  of  Rights,  nor  change  the 
organic  structure  of  the  government,  nor  exercise  any  other  power 
prohibited  in  the  Constitution.  If  it  does  any  of  these  things,  the 
judiciary  claims,  and  in  clear  cases  has  always  exercised,  the  right 
to  declare  such  acts  void. 

But  beyond  this  there  lies  a  vast  field  of  power,  granted  to  the 
legislature  by  the  general  words  of  the  Constitution,  and  not  reserved, 
prohibited,  or  given  away  to  others.  Of  this  field  the  General  As- 
sembly is  entitled  to  the  full  and  uncontrolled  possession.  Their  use 
of  it  can  be  limited  only  by  their  own  discretion.  The  reservation  of 
some  powers  does  not  imply  a  restriction  on  the  exercises  of  others 
which  are  not  reserved.  On  the  contrary,  it  is  a  universal  rule  of  con- 
struction, founded  in  the  clearest  reason,  that  general  words  in  any 
instrument  or  statute  are  strengthened  by  exceptions,  and  weakened 
by  enumeration.  To  me,  it  is  as  plain  that  the  General  Assembly 
may  exercise  all  powers  which  are  properly  legislative,  and  which 
are  not  taken  away  by  our  own,  or  by  the  federal  Constitution,  as  it 
is  that  the  people  have  all  the  rights  which  are  expressly  reserved*1 

i  See,  also,  People  v.  Draper,  15  N.  Y.  532,  543,  514  (1857) ;  R.  It.  Co.  v. 
Otoe  County.  16  Wall.  667,  672-673,  21  L.  Ed.  375  (1S73) ;  Cooley,  Const. 
Lim.  241  (7th  Ed.). 

"The  governments  of  the  states  possess  all  the  powers  of  the  Parliament 
of  England,  except  such  as  have  been  delegated  to  the  United  States  or  re- 
served by  the  people.  The  reservations  by  the  people  are  shown  in  the  pro- 
hibitions of  the  constitutions." — Waite,  C.  J.,  In  Munn  v.  Illinois,  94  U.  S. 
113,  124,  24  L.  Ed.  77  (1S7C). 

Compare  Bridgeport  Public  Library  &  Reading  Room  v.  Burroughs  Home, 
65  Conn.  309,  82  Atl.  582.  5S5  (1912). 


Ch.  2)  FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS 


35 


We  are  urged,  however,  to  go  further  than  this,  and  to  hold  that 
a  law,  though  not  prohibited,  is  void  if  it  violates  the  spirit  of  our 
institutions,  or  impairs  any  of  those  rights  which  it  is  the  object  of 
a  free  government  to  protect,  and  to  declare  it  unconstitutional  if 
it  be  wrong  and  unjust.  But  we  cannot  do  this.  It  would  be  assum- 
ing a  right  to  change  the  Constitution,  to  supply  what  we  might  con- 
ceive to  be  its  defects,  to  fill  up  every  casus  omissus,  and  to  inter- 
polate into  it  whatever  in  our  opinion  ought  to  have  been  put  there 
by  its  framers.  The  Constitution  has  given  us  a  list  of  the  things 
which  the  legislature  may  not  do.  If  we  extend  that  list,  we  alter 
the  instrument,  we  become  ourselves  the  aggressors,  and  violate  both 
the  letter  and  spirit  of  the  organic  law  as  grossly  as  the  legislature 
possibly  could.  If  we  can  add  to  the  reserved  rights  of  the  people, 
we  can  take  them  away;  if  we  can  mend,  we  can  mar;  if  we  can 
remove  the  landmarks  which  we  find  established,  we  can  obliterate 
them ;  if  we  can  change  the  Constitution  in  any  particular,  there  is 
nothing  but  our  own  will  to  prevent  us  from  demolishing  it  entirely. 

The  great  powers  given  to  the  legislature  are  liable  to  be  abused. 
But  this  is  inseparable  from  the  nature  of  human  institutions.  The 
wisdom  of  man  has  never  conceived  of  a  government  with  power 
sufficient  to  answer  its  legitimate  ends,  and  at  the  same  time  in- 
capable of  mischief.  No  political  system  can  be  made  so  perfect 
that  its  rulers  will  always  hold  it  to  the  true  course.  In  the  very 
best  a  great  deal  must  be  trusted  to  the  discretion  of  those  who  ad- 
minister it.  In  ours,  the  people  have  given  larger  powers  to  the  legis- 
lature, and  relied,  for  the  faithful  execution  of  them,  on  the  wisdom 
and  honesty  of  that  department,  and  on  the  direct  accountability  of 
the  members  of  their  constituents.  There  is  no  shadow  of  reason 
for  supposing  that  the  mere  abuse  of  power  was  meant  to  be  cor- 
rected by  the  judiciary. 

There  is  nothing  more  easy  than  to  imagine  a  thousand  tyrannical 
things  which  the  legislature  may  do,  if  its  members  forget  all  their 
duties ;  disregard  utterly  the  obligations  they  owe  to  their  constitu- 
ents, and  recklessly  determine  to  trample  upon  right  and  justice. 
But  to  take  away  the  power  from  the  legislature  because  they  may 
abuse  it,  and  give  to  the  judges  the  right  of  controlling  it,  would 
not  be  advancing  a  single  step,  since  the  judges  can  be  imagined  to 
be  as  corrupt  and  as  wicked  as  legislators.  *  *  *  What  is  worse 
still,  the  judges  are  almost  entirely  irresponsible,  and  heretofore 
they  have  been  altogether  so,  while  the  members  of  the  legislature, 
who  would  do  the  imaginary  things  referred  to,  "would  be  scourged 
into  retirement  by  their  indignant  masters." 

I  am  thoroughly  convinced  that  the  words  of  the  Constitution  fur- 
nish the  only  test  to  determine  the  validity  of  a  statute,  and  that  all 
arguments,  based  on  general  principles  outside  of  the  Constitution, 
must  be  addressed  to  the  people,  and  not  to  us.     *     *     * 

[After  referring  to  various  dicta  to  the  contrary:]    On  the  other 


36  PRELIMINARY    TOPICS  (Part    1 

side,  the  weight  of  authority  is  overwhelming.  I  am  not  aware  that 
any  state  court  has  ever  yet  held  a  law  to  be  invalid,  except  where 
it  was  clearly  forbidden.  Certainly,  no  case  of  a  different  character 
has  been  cited  at  the  bar.  In  the  many  cases  which  affirm  the  valid- 
ity of  state  laws,  this  principle  is  uniformly  recognized,  either  tacitly 
or  expressly.  The  Supreme  Court  of  the  United  States  has  adhered 
to  it  on  every  occasion  when  it  has  been  questioned  there.  In  Satter- 
lce  v.  Matthewson  (2  Pet.  380,  7  L.  Ed.  458),  an  act  of  the  Pennsyl- 
vania legislature  was  censured  as  unwise  and  unjust ;  but,  because  it 
came  within  no  express  prohibition  of  the  Constitution,  it  was  held 
to  be  binding  on  the  parties  interested ;  and  in  Fletcher  v.  Peck,  6 
Cranch,  87,  3  L.  Ed.  162,  it  was  declared  that,  while  the  legislature 
was  within  the  Constitution,  even  corruption  did  not  make  its  acts 
void.2  In  Calder  v.  Bull,  3  Dall.  3S6,  1  L.  Ed.  648,  Mr.  Justice  Ire- 
dell said:  "If  a  state  legislature  shall  pass  a  law,  within  the  general 
scope  of  their  constitutional  powers,  the  court  cannot  pronounce  it 
to  be  void,  merely  because  it  is,  in  their  judgment,  contrary  to  the 
principles  of  natural  justice.  The  ideas  of  natural  justice  are  reg- 
ulated by  no  fixed  standard,  the  ablest  and  the  purest  men  have  dif- 
fered upon  the  subject;  and  all  the  court,  in  such  an  event,  could 
say,  would  be  that  the  legislature  (possessed  of  an  equal  right  of 
opinion)  had  passed  an  act,  which,  in  the  opinion  of  the  judges,  was 
contrary  to  abstract  principles  of  right."     *     *     * 

Judge  Baldwin  in  Bennett  v.  Boggs,  1  Bald.  74,  Fed.  Cas.  No.  1,319, 
[said]  :  "  *  *  *  We  cannot  declare  a  legislative  act  void  because  it 
conflicts  with  our  opinion  of  policy,  expediency,  or  justice."  8    *     *    * 

There  is  another  rule  which  must  govern  us  in  cases  like  this ; 
namely,  that  we  can  declare  an  Act  of  Assembly  void,  only  when 
it  violates  the  Constitution  clearly,  palpably,  plainly;  and  in  such 
manner  as  to  leave  no  doubt  or  hesitation  on  our  minds.  This  prin- 
ciple is  asserted  by  judges  of  every  grade,  both  in  the  federal  and 
in  the  state  courts;    and  by  some  of  them  it  is  expressed  with  much( 

2  Accord  (legislation  not  invalid  for  improper  motives  of  legislators):  New 
Orleans  v.  Warner,  175  U.  S.  120,  145,  146.  20  Sup.  Ct.  44,  44  L.  Ed.  96 
(1899)  (municipal  ordinance);  McCray  v.  TJ.  S.,  195  U.  S.  27,  53-59,  24  Sup. 
Ct.  769,  49  L.  Ed.  78,  1  Ann.  Cas.  5G1  (1904)  (act  of  Congress),  post,  p.  9G0  ff.; 
Boston  v.  Talbot,  206  Mass.  82,  91,  91  N.  E.  1014  (1910)  (acts  of  rapid  transit 
commission). 

a  "The  theory  that  laws  may  be  declared  void  when  deemed  to  be  opposed 
to  natural  justice  and  equity,  although  they  do  not  violate  any  constitutional 
provision,  has  some  support  in  the  dicta  of  learned  judges,  but  has  not  been  ap- 
proved, so  far  as  we  know,  by  any  authoritative  adjudication,  and  is  repudi- 
ated by  numerous  authorities.  *  *  *  No  law  can  be  pronounced  invalid, 
for  the  reason  simply  that  it  violates  our  notions  of  justice,  is  oppressive 
and  unfair  in  its  operation,  or  because,  in  the  opinion  of  some  or  all  of  the 
.citizens  of  the  state,  it  is  not  justified  by  public  necessity,  or  designed  to 
promote  the  public  welfare.  We  repeat,  if  it  violates  no  constitutional  provi- 
sion, it  is  valid  and  must  be  obeyed." — Andrews,  J.,  in  Bertholf  v.  O'Reilly, 
71  N.  Y.  509,  514,  516.  30  Am.  Rep.  323  (1878).  Compare  Loan  Ass'n  v.  To- 
peka,  20  Wall.  655,  663,  22  L.  Ed.  455  (1875),  and  Giozza  v.  Tiernan,  148  U. 
S.  057,  061,  13  Sup.  Ct.  721,  37  L.  Ed.  599  (1S93). 


Ch.  2)         FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS 


:',: 


solemnity  of  language.  Fletcher  v.  Peck,  6  Cranch,  87,  3  L.  Ed.  162; 
Cooper  v.  Telfair,  4  Dall.  14,  1  L.  Ed.  721 ;  Moore  v.  Houston,  3 
Serg.  &  R.  178;  Eakin  v.  Raub,  12  Serg.  &  R.  339;  Com.  ex  rel. 
O'Hara  v.  Smith,  4  Bin.  123.  A  citation  of  all  the  authorities  which 
establish  it  would  include  nearly  every  case  in  which  a  question  of 
constitutional  law  has  arisen.  I  believe  it  has  the  singular  advantage 
of  not  being  opposed  even  by  a  dictum.4 

We  are  to  inquire  then,  whether  there  is  anything  in  the  Constitu- 
tion which  expressly  or  by  clear  implication  forbids  the  legislature  to 
authorize  subscriptions  by  a  city  to  the  capital  stock  of  a  company  in- 
corporated for  the  purpose  of  making  a  railroad.     *     *     * 

[Here  follows  a  discussion  upholding  taxation  to  pay  such  sub- 
scriptions as  being  in  fact  for  a  public  purpose  and  not  within  any 
specific  prohibition  of  the  state  Constitution.  Cases  to  this  effect 
from  other  states  are  cited.]  These  cases  are  entitled  to  our  highest 
respect.  In  most  of  them,  and  especially  the  later  ones,  the  subject 
is  very  ably  discussed,  and  they  are  a  manifest  triumph  of  reason  and 
law  over  a  strong  conviction  in  the  minds  of  the  judges  that  the  sys- 
tem they  sustain  was  impolitic,  dangerous,  and  immoral.     *     *     * 

Injunction  refused.0 

[Woodward  and  Knox,  JJ.,  gave  concurring  opinions.] 

*  The  earlier  authorities  to  this  effect  In  the  older  states  are  collected  in 
Thayer,  Legal  Essays,  H'.-.".:'.  (7  Haxv.  U  Rev.  140-152),  with  some  obsen 
upon  the  rule  itself.  See,  also,  the  comment  of  an  Australian  writer  in  'i 
Comm.  L.  Rev.  204,  205  (1900):  and  Varner  v.  Martin.  21  W.  Va.  534,  542  543 
(1883)  (unconstitutionality  need  not  be  as  free  from  doubt  as  evidence  of 
guilt  necessary  to  convict  a  criminal). 

"In  determining  whether  the  legislature,  in  a  particular  enactment,  has 
passed  the  limits  of  Its  constitutional  authority,  every  reasonable  presump- 
tion must  he  indulged  in  favor  of  the  validity  of  such  enactment.  It  must  be 
regarded  as  valid,  unless  it  can  be  clearly  shown  to  be  in  conflict  with  the 
constitution.  It  is  a  well-settled  rule  of  constitutional  exposition  that,  if  a 
statute  may  or  may  not  be,  according  to  circumstances,  within  the  limits  of 
legislative  authority,  the  existence  of  the  circumstances  necessary  to  Si 
it  must  bn  presumed."— Sweet  v.  Rechel,  159  U.  S.  380,  302,  393,  16  Sup.  Ct. 
43,  40  I*  Ed.  iss  (1895),  by  Harlan.  J. 

Compare  Oulf.  Q.  &  S.  F.  R.  Co.  v.  Ellis,  post.  p.  334.  As  to  the  bur- 
den of  proof  in  rebutting  such  presumptions,  see  Llndsley  v.  Nat.  Carbonic 
Gas  Co.,  post,  p.  377. 

i  In  State  v.  Fairmont  Creamery  Co.  of  Nebraska,  153  Iowa,  702,  700.  707, 
133  N.  W.  895,  42  L.  R.  A.  (N.  S.)  S21  (1012),  in  discussing  a  statute  applicable 
only  to  persons  buying  dairy  products  for  purposes  of  manufacture,  sale. 
or  storage,  which  forbade  the  payment  of  prices  higher  in  one  locality  than 
in  another  in  order  to  destroy  competition,  Evans,  J.,  said:  "The  argument 
directed  against  the  statute  is  not  without  its  cogency.  If  it  were  presented 
to  a  legislative  committee,  it  might  properly  cause  hesitation  as  to  the  par- 
ticular form  of  the  proposed  legislation;  but  the  courts  have  neither  ad- 
vlsory  nor  veto  powers  over  legislation  as  such.  And  even  though  tl 
may  entertain  great  doubt  as  to  the  constitutionality  of  a  particular  legis- 
lative act,  it  may  not  interpose  such  mere  doubt  against  the  legislative 
prerogative.  It  Is  only  when  the  violation  of  the  Constitution  is  'clear  and 
palpable'  that  the  court  is  Justified  in  rendering  nugatory  a  legislative  act 
To  speak  accurately,  the  constitutionality  of  an  act  is  not  dependent  upon  on 
affirmative  holding  to  that  effect  by  the  court.  It  is  the  province  of  the 
court  only  to   determine  whether  a  legislative  act  in   question   is  or  is  not 


38  preliminary  topics  (Part  1 

BORGNIS  v.  FALK  CO.  (1911)  147  Wis.  327,  348-350,  133  N.  W. 
209,  215,  216,  Winslow,  C.  J.  (upholding  a  Wisconsin  workmen's 
compensation  act  upon  an  "elective"  insurance  plan1) : 

"In  approaching  the  consideration  of  the  present  law,  we  must  bear 
in  mind  the  well-established  principle  that  it  must  be  sustained,  unless 
it  be  clear  beyond  reasonable  question  that  it  violates  some  constitu- 
tional limitation  or  prohibition.  That  governments  founded  on  writ- 
ten Constitutions  which  are  made  difficult  of  amendment  or  change 
lose  much  in  flexibility  and  adaptability  to  changed  conditions  there 
can  be  no  doubt.  Indeed  that  may  be  said  to  be  one  purpose  of  the 
written  Constitution.  Doubtless  they  gain  enough  in  stability  and  free- 
dom from  mere  whimsical  and  sudden  changes  to  more  than  make  up 
for  the  loss  in  flexibility;  but  the  loss  still  remains,  whether  for  good 
or  ill.  A  Constitution  is  a  very  human  document,  and  must  embody 
with  greater  or  less  fidelity  the  spirit  of  the  time  of  its  adoption.  It 
will  be  framed  to  meet  the  problems  and  difficulties  which  face  the  men 
who  make  it,  and  it  will  generally  crystallize  with  more  or  less  fidelity 
the  political,  social,  and  economic  propositions  which  are  considered 
irrefutable,  if  not  actually  inspired,  by  the  philosophers  and  legislators 
of  the  time ;  but  the  difficulty  is  that,  while  the  Constitution  is  fixed  or 
very  hard  to  change,  the  conditions  and  problems  surrounding  the  peo- 
ple, as  well  as  their  ideals,  are  constantly  changing.  The  political  or 
philosophical  aphorism  of  one  generation  is  doubted  by  the  next,  and 
entirely  discarded  by  the  third.  The  race  moves  forward  constantly, 
and  no  Canute  can  stay  its  progress. 

"Constitutional  commands  and  prohibitions,  either  distinctly  laid 
down  in  express  words  or  necessarily  implied  from  general  words,  must 
be  obeyed,  and  implicitly  obeyed,  so  long  as  they  remain  unamended  or 
unrepealed.    Any  other  course  on  the  part  of  either  legislator  or  judge 

•clearly,  plainly,  and  palpably'  unconstitutional.  The  legislative  and  execu- 
tive departments  of  government  are  under  the  same  responsibility  to  observe 
and  protect  the  Constitution  as  is  the  judicial  department.  This  responsibili- 
ty is  always  present  in  the  enactment  by  the  Legislature,  and  approval  by 
the  executive,  of  all  legislation.  The  constitutionality  of  all  proposed  legis- 
lation must  be  determined  in  the  first  instance  by  such  co-ordinate  branches 
of  the  government.  Within  the  zone  of  doubt  and  fair  debate  such  deter- 
mination is  necessarily  conclusive.  For  the  court  to  enter  that  zone  would 
of  itself  be  an  offense  against  the  Constitution.  But  when  a  legislative  act 
is  clearly  and  unmistakably  unconstitutional,  then  the  court  must  so  declare. 
By  common  consent  such  a  declaration  is  not  deemed  as  usurpation  by  the 
court,  but  as  a  protest  against  usurpation  already  done.  In  such  a  case  the 
court  furnishes  the  only  means  of  authoritative  protest  possible  to  the  body 
politic." 

And  so  Holmes,  J.,  in  Gray  v.  Taylor,  227  U.  S.  51,  56,  33  Sup.  Ct.  199,  57 
L.  Ed.  —  (1913):  "It  is  not  lightly  to  be  supposed  that  a  legislature  is  less 
faithful  to  its  obligations  than  a  court." 

For  a  discussion  of  the  differing  considerations  applicable  when  a  court  is 
enforcing  a  mere  prohibition  upon  legislative  action  and  when  it  is  dealing 
with  the  division  of  legislative  powers  between  the  states  and  the  United 
States,  see  Thayer,  Legal  Essays,  33-38  (7  Harv.  L.  Rev.  153-155). 

>  See  State  ex  rel.  Yaple  v.  Creamer,  post,  p.  512,  and  notes. 


Ch.  2)  FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  39 

constitutes  violation  of  his  oath  of  office;  but  when  there  is  no  such 
express  command  or  prohibition,  but  only  general  language,  or  a  gen- 
eral policy  drawn  from  the  four  corners  of  the  instrument,  what  shall 
be  said  about  this?  By  what  standards  is  this  general  language  or  gen- 
eral policy  to  be  interpreted  and  applied  to  present  day  people  and  con- 
ditions? When  an  eighteenth  century  Constitution  forms  the  charter 
of  liberty  of  a  twentieth  century  government,  must  its  general  provi- 
sions be  construed  and  interpreted  by  an  eighteenth  century  mind  in  the 
light  of  eighteenth  century  conditions  and  ideals?  Clearly  not.  This 
were  to  command  the  race  to  halt  in  its  progress,  to  stretch  the  state 
upon  a  veritable  bed  of  Procrustes. 

"Where  there  is  no  express  command  or  prohibition,  but  only  gen- 
eral language  or  policy  to  be  considered,  the  conditions  prevailing  at 
the  time  of  its  adoption  must  have  their  due  weight;  but  the  changed 
social,  economic,  and  governmental  conditions  and  ideals  of  the  time, 
as  well  as  the  problems  which  the  changes  have  produced,  must  also 
logically  enter  into  the  consideration,  and  become  influential  factors  in 
the  settlement  of  problems  of  construction  and  interpretation.  These 
general  propositions  are  here  laid  down,  not  because  they  are  consid- 
ered either  new  or  in  serious  controversy,  but  because  they  are  believed 
to  be  peculiarly  applicable  to  a  case  like  the  present,  where  a  law  which 
is  framed  to  meet  new  economic  conditions  and  difficulties  resulting 
therefrom  is  attacked  principally  because  it  is  believed  to  offend  against 
constitutional  guaranties  or  prohibitions  couched  in  general  terms,  or 
supposed  general  policies  drawn  from  the  whole  body  of  the  instru- 
ment." 


MUSKRAT  v.  UNITED  STATES 

(Supreme  Court  of  United  States,  1911.    219  U.  S.  346,  31  Sup.  Ct.  250,  55  L. 
lid.  24G.) 

[Appeals  from  the  Court  of  Claims.  An  act  of  Congress  authorized 
Muskrat  and  others  to  bring  suits  in  the  Court  of  Claims,  with  an  ap- 
peal to  the  federal  Supreme  Court,  to  determine  the  validity  of  certain 
acts  of  Congress  altering  the  terms  of  certain  prior  allotments  of  Cher- 
okee Indian  lands.  From  a  determination  of  two  such  suits  by  the 
Court  of  Claims  these  appeals  were  taken.] 

Mr.  Justice  Day.  *  *  *  Section  1  of  article  3  of  the  Constitu- 
tion provides:  "The  judicial  power  of  the  United  States  shall  be  vest- 
ed in  one  Supreme  Court  and  in  such  inferior  courts  as  the  Congress 
may,  from  time  to  time,  ordain  and  establish." 

Section  2  of  the  same  article  provides:  "The  judicial  power  shall 
extend  to  all  cases,  in  law  and  equity,  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority ;  to  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls;   to  all  cases  of  admiralty  and  maritime 


40  preliminary  topics  (Part  1 

jurisdiction;  to  controversies  to  which  the  United  States  shall  be  a 
party ;  to  controversies  between  two  or  more  states ;  between  a  state 
and  citizens  of  another  state ;  between  citizens  of  different  states ;  be- 
tween citizens  of  the  same  state  claiming  lands  under  grants  of  differ- 
ent, states,  and  between  a  state,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects." 

It  will  serve  to  elucidate  the  nature  and  extent  of  the  judicial  power 
thus  conferred  by  the  Constitution  to  note  certain  instances  in  which 
this  court  has  had  occasion  to  examine  and  define  the  same.  *  *  * 
[Here  follow  references  to  Hayburn's  Case,  2  Dall.  409,  1  L.  Ed.  436, 
and  to  U.  S.  v.  Ferreira,  13  How.  40,  14  L.  Ed.  42,  in  both  of  which  it 
was  denied  that  the  federal  courts  could  be  required  to  make  decisions 
which  were  subject  to  review  by  non-judicial  tribunals  or  officers;  and 
to  the  refusal  of  the  Supreme  Court  to  answer  legal  questions  asked  it 
by  President  Washington.1] 

The  subject  underwent  a  complete  examination  in  the  case  of  Gor- 
don v.  United  States,  reported  in  an  appendix  to  117  U.  S.  697,  in 
which  the  opinion  of  Mr.  Chief  Justice  Taney,  prepared  by  him  and 
placed  in  the  hands  of  the  clerk,  is  published  in  full.  *  *  *  In  that 
case  an  act  of  Congress  was  held  invalid  which  undertook  to  confer 
jurisdiction  upon  the  court  of  claims,  and  thence  by  appeal  to  this 
court,  the  judgment,  however,  not  to  be  paid  until  an  appropriation 
had  been  estimated  therefor  by  the  Secretary  of  the  Treasury ;  and,  as 
was  said  by  the  chief  justice,  the  result  was  that  neither  court  could 
enforce  its  judgment  by  any  process,  and  whether  it  was  to  be  paid  or 
not  depended  on  the  future  action  of  the  Secretary  of  the  Treasury  and 
of  Congress.2  "The  Supreme  Court,"  says  the  Chief  Justice,  "does  not 
owe  its  existence  or  its  powers  to  the  legislative  department  of  the  gov- 
ernment. It  is  created  by  the  Constitution,  and  represents  one  of  the 
three  great  divisions  of  power  in  the  government  of  the  United  States, 
to  each  of  which  the  Constitution  has  assigned  its  appropriate  duties 
and  powers,  and  made  each  independent  of  the  other  in  performing  its 
appropriate  functions.  '  The  power  conferred  on  this  court  is  exclu- 
sively judicial,  and  it  cannot  be  required  or  authorized  to  exercise  any 
other."     *     *     * 

[After  referring  to  Baltimore  &  O.  R.  Co.  v.  Interstate  Commerce 
Commission,  215  U.  S.  216,  30  Sup.  Ct.  86,  54  L.  Ed.  164]  :  It  there- 
fore becomes  necessary  to  inquire  what  is  meant  by  the  judicial  power 
thus  conferred  by  the  Constitution  upon  this  court,  and,  with  the  aid  of 
appropriate  legislation,  upon  the  inferior  courts  of  the  United  States. 
"Judicial  power,"  says  Mr.  Justice  Miller,  in  his  work  on  the  Constitu- 

i  See  note  on  Advisory  Opinions  at  the  end  of  this  case. 

*  The  right  to  enforce  a  judgment  by  process  is  not  indispensable  to  its 
judicial  character.  It  is  enough,  in  an  appropriate  case,  that  a  judgment  bn 
mada  "the  final  and  indisputable  basis  of  action  either  by  the  department  or 
by  Congress."  In  re  Sanborn,  148  U.  S.  222,  226,  13  Sup.  Ct  577,  37  L.  Ed. 
429  (1893). 


Ch.  2)          FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  41 

tion,  "is  the  power  of  a  court  to  decide  and  pronounce  a  judgment  and 
carry  it  into  effect  between  persons  and  parties  who  bring  a  case  before 
it  for  decision."    Miller,  Const.  314. 

As  we  have  already  seen,  by  the  express  terms  of  the  Constitution, 
the  exercise  of  the  judicial  power  is  limited  to  "cases"  and  "controver- 
sies." Beyond  this  it  does  not  extend,  and  unless  it  is  asserted  in  a 
case  or  controversy  within  the  meaning  of  the  Constitution,  the  power 
to  exercise  it  is  nowhere  conferred. 

What,  then,  does  the  Constitution  mean  in  conferring  this  judicial 
power  with  the  right  to  determine  "cases"  and  "controversies."  A 
"case"  was  defined  by  Mr.  Chief  Justice  Marshall  as  early  as  the  lead- 
ing case  of  Marbury  v.  Madison,  1  Cranch,  137,  2  L.  Ed.  60,  to  be  a 
suit  instituted  according  to  the  regular  course  of  judicial  procedure. 
And  what  more,  if  anything,  is  meant  in  the  use  of  the  term  "contro- 
versy?" That  question  was  dealt  with  by  Mr.  Justice  Field,  at  the  cir- 
cuit, in  the  case  of  In  re  Pacific  R.  Commission  (C.  C.)  32  Fed.  241, 
255.  Of  these  terms  that  learned  justice  said :  "The  judicial  article  of 
the  Constitution  mentions  cases  and  controversies.  The  term  'contro- 
versies,' if  distinguishable  at  all  from  'cases,'  is  so  in  that  it  is  less 
comprehensive  than  the  latter,  and  includes  only  suits  of  a  civil  na- 
ture. Chisholm  v.  Georgia,  2  Dall.  431,  432,  1  L.  Ed.  445,  446,  1 
Tucker's  BI.  Com.  App.  420,  421.  By  cases  and  controversies  are 
intended  the  claims  of  litigants  brought  before  the  courts  for  de- 
termination by  such  regular  proceedings  as  are  established  by  law  or 
custom  for  the  protection  or  enforcement  of  rights,  or  the  prevention, 
redress,  or  punishment  of  wrongs.  Whenever  the  claim  of  a  party  un- 
der the  Constitution,  laws,  or  treaties  of  the  United  States  takes  such 
a  form  that  the  judicial  power  is  capable  of  acting  upon  it,  then  it  has 
become  a  case.  The  term  implies  the  existence  of  present  or  possible 
adverse  parties,  whose  contentions  are  submitted  to  the  court  for  ad- 
judication." 

The  power  being  thus  limited  to  require  an  application  of  the  judicial 
power  to  cases  and  controversies,  Is  the  act  which  undertook  to  author- 
ize the  present  suits  to  determine  the  constitutional  validity  of  certain 
legislation  within  the  constitutional  authority  of  the  court?  This  in- 
quiry in  the  case  before  us  includes  the  broader  question,  When  may 
this  court,  in  the  exercise  of  the  judicial  power,  pass  upon  the  constitu- 
tional validity  of  an  act  of  Congress?  That  question  has  been  settled 
from  the  early  history  of  the  court,  the  leading  case  on  the  subject  be- 
ing Marbury  v.  Madison,  supra. 

In  that  case  Chief  Justice  Marshall,  who  spoke  for  the  court,  was 
careful  to  point  out  that  the  right  to  declare  an  act  of  Congress  uncon- 
stitutional could  only  be  exercised  when  a  proper  case  between  oppos- 
ing parties  was  submitted  for  judicial  determination ;  that  there  was 
no  general  veto  power  in  the  court  upon  the  legislation  of  Congress; 
and  that  the  authority  to  declare  an  act  unconstitutional  sprang  from 


42  preliminary  topics  (Part  1 

the  requirement  that  the  court,  in  administering  the  law  and  pronounc- 
ing judgment  between  the  parties  to  a  case,  and  choosing  between  the 
requirements  of  the  fundamental  law  established  by  the  people  and  em- 
bodied in  the  Constitution  and  an  act  of  the  agents  of  the  people,  acting 
under  authority  of  the  Constitution,  should  enforce  the  Constitution  as 
the  supreme  law  of  the  land.  The  Chief  Justice  demonstrated,  in  a 
manner  which  has  been  regarded  as  settling  the  question,  that  with  the 
choice  thus  given  between  a  constitutional  requirement  and  a  conflict- 
ing statutory  enactment,  the  plain  duty  of  the  court  was  to  follow  and 
enforce  the  Constitution  as  the  supreme  law  established  by  the  people. 
And  the  court  recognized,  in  Marbury  v.  Madison  and  subsequent 
cases,  that  the  exercise  of  this  great  power  could  only  be  invoked  in 
cases  which  came  regularly  before  the  courts  for  determination.   *   *   * 

[Here  follow  quotations  to  this  effect  from  Osborn  v.  Bank  of 
U.  S.,  9  Wheat.  819,  6  L.  Ed.  204,  and  Cohen  v.  Virginia,  6  Wheat. 
264,  5  *L.  Ed.  257,  and  the  following  from  Chicago  &  G.  T.  R.  Co. 
v.  Wellman,  143  U.  S.  339  at  345,  12  Sup.  Ct.  400,  36  L.  Ed.  176: 8] 
"Whenever,  in  pursuance  of  an  honest  and  actual  antagonistic  as- 
sertion of  rights  by  one  individual  against  another,  there  is  presented 
a  question  involving  the  validity  of  any  act  of  any  legislature,  state 
or  federal,  and  the  decision  necessarily  rests  on  the  competency  of 
the  legislature  to  so  enact,  the  court  must,  in  the  exercise  of  its  sol- 
emn duties,  determine  whether  the  act  be  constitutional  or  not ;  but 
such  an  exercise  of  power  is  the  ultimate  and  supreme  function  of 
courts.  It  is  legitimate  only  in  the  last  resort,  and  as  a  necessity  in 
the  determination  of  real,  earnest,  and  vital  controversy  between  in- 
dividuals. It  never  was  the  thought  that,  by  means  of  a  friendly 
suit,  a  party  beaten  in  the  legislature  could  transfer  to  the  courts  an 
inquiry  as  to  the  constitutionality  of  the  legislative  act."     *     *     * 

It  is  therefore  evident  that  there  is  neither  more  nor  less  in  this 
procedure  than  an  attempt  to  provide  for  a  judicial  determination, 
final  in  this  court,  of  the  constitutional  validity  of  an  act  of  Con- 
gress. Is  such  a  determination  within  the  judicial  power  conferred 
by  the  Constitution,  as  the  same  has  been  interpreted  and  defined  in 
the  authoritative  decisions  to  which  we  have  referred?  We  think  it 
is  not.     That  judicial  power,  as  we  have  seen,  is  the  right  to  deter- 

s  In  this  case  the  court  refused  to  hold  invalid  a  Michigan  railway  rate 
regulation  statute,  in  a  friendly  or  collusive  suit  brought  to  test  it  upon  an 
agreed  statement  of  facts,  in  the  preparation  of  which  the  people  of  the  state 
had  not  been  represented.  The  circumstance,  however,  that  both  parties  to  a 
case  may  desire  the  same  decision,  does  not  disable  a  court  from  deciding 
a  constitutional  question,  provided  only  that  it  is  a  legitimately  controverted 
issue  in  a  re"al  case,  and  that  all  adversary  interests  are  properly  represented. 
See  Pollock  v.  Farmers'  Loan  &  T.  Co.,  157  U.  S.  429,  15  Sup.  Ct.  673,  39 
L.  Ed.  759  (1895),  based  upon  reasoning  of  Hawes  v.  Contra  Costa  Co.,  104 
U.  S.  450,  26  L.  Ed.  827  (1882).  By  leave  of  court  the  government,  though 
not  a  party,  may  be  beard  in  litigation  involving  questions  of  public  im- 
portance. See  the  Pol  lock  Case,  above,  157  U.  S.  at  p.  499,  15  Sup.  Ct  673, 
39  L.  Ed.  759.  and  Johnson  v.  Southern  Pac.  Co.,  196  U.  S.  1,  13,  25  Sup.  Ct. 
15S,  49  L.  Ed.  363  (1904). 


Ch.  2)         FUNCTION  OF  JODICIART  IN  ENFORCING  CONSTITUTIONS  43 

mine  actual  controversies  arising  between  adverse  litigants,  duly  in- 
stituted in  courts  of  proper  jurisdiction.  The  right  to  declare  a  law 
unconstitutional  arises  because  an  act  of  Congress  relied  upon  by 
one  or  the  other  of  such  parties  in  determining  their  rights  is  in  con- 
flict with  the  fundamental  law.  The  exercise  of  this,  the  most  im- 
portant and  delicate  duty  of  this  court,  is  not  given  to  it  as  a  body 
with  revisory  power  over  the  action  of  Congress,  but  because  the 
rights  of  the  litigants  in  justiciable  controversies  require  the  court  to 
choose  between  the  fundamental  law  and  a  law  purporting  to  be 
enacted  within  constitutional  authority,  but  in  fact  beyond  the  power 
delegated  to  the  legislative  branch  of  the  government.  This  attempt 
to  obtain  a  judicial  declaration  of  the  validity  of  the  act  of  Congress 
is  not  presented  in  a  "case"  or  "controversy,"  to  which,  under  the 
Constitution  of  the  United  States,  the  judicial  power  alone  extends. 
It  is  true  the  United  States  is  made  a  defendant  to  this  action,  but 
it  has  no  interest  adverse  to  the  claimants.  The  object  is  not  to  as- 
sert a  property  right  as  against  the  government,  or  to  demand  com- 
pensation for  alleged  wrongs  because  of  action  upon  its  part.  The 
whole  purpose  of  the  law  is  to  determine  the  constitutional  validity 
of  this  class  of  legislation,  in  a  suit  not  arising  between  parties  con- 
cerning a  property  right  necessarily  involved  in  the  decision  in  ques- 
tion, but  in  a  proceeding  against  the  government  in  its  sovereign  ca- 
pacity, and  concerning  which  the  only  judgment  required  is  to  settle 
the  doubtful  character  of  the  legislation  in  question.  Such  judg- 
ment will  not  conclude  private  parties,  when  actual  litigation  brings 
to  the  court  the  question  of  the  constitutionality  of  such  legislation. 
In  a  legal  sense  the  judgment  could  not  be  executed,  and  amounts 
in  fact  to  no  more  than  an  expression  of  opinion  upon  the  validity  of 
the  acts  in  question.  Confining  the  jurisdiction  of  this  court  within 
the  limitations  conferred  by  the  Constitution,  which  the  court  has 
hitherto  been  careful  to  observe,  and  whose  boundaries  it  has  refused 
to  transcend,  we  think  the  Congress,  in  the  act  of  March  1,  1907,  ex- 
ceeded the  limitations  of  legislative  authority,  so  far  as  it  required 
of  this  court  action  not  judicial  in  its  nature  within  the  meaning  of 
the  Constitution.     *     *     * 

As  Congress,  in  passing  this  act,  as  a  part  of  the  plan  involved, 
evidently  intended  to  provide  a  review  of  the  judgment  of  the  court 
of  claims  in  this  court,  as  the  constitutionality  of  important  legisla- 
tion is  concerned,  we  think  the  act  cannot  be  held  to  intend  to  con- 
fer jurisdiction  on  that  court  separately  considered.*     *     *     * 

Judgment  reversed  and  cases  ordered  dismissed  for  want  of  juris- 
diction.6 

*  The  Court  of  Claims,  not  being  a  constitutional  court,  may  of  course  be 
empowered  to  exercise  imn- judicial  and  advisory  powers,     Gordon  v.   I".  8 
!  17  r.  s.  cut.  608,  699  (1864),  appendix. 

o  Accord:  D.  S.  v.  Evans.  213  D.  8.  L'07.  L'9  Sup.  Ct  507,  53  L.  IM  803 
(1909)  (.uo  power  to  decide  question  of  criminal  law  as  a  precedent,  after  de 


44  preliminary  topics  (Part  1 


SECTION  2.— EFFECT  OF  UNCONSTITUTIONALITY 


NORTON  v.  SHELBY  COUNTY. 

(Supreme  Court  of  United  States,  18S6.    118  U.  S.  425,  6  Sup.  Ct.  1121,  30  L. 
Ed.  178.) 

[Error  to  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Tennessee.  A  state  statute  purported  to  create  a  board 
of  county  commissioners  for  the  government  of  Shelby  county,  in 
place  of  the  existing  county  court.  Within  a  month  thereafter  an 
action  was  brought  against  this  board  to  test  the  validity  of  its  crea- 
tion, and  the  lower  state  court  upheld  it.  Pending  an  appeal  to  the 
state  Supreme  Court,  said  board  issued  certain  bonds  authorized  by 
the  statute  creating  it.  On  the  appeal  the  state  Supreme  Court  held 
this  statute  unconstitutional  and  the  board  created  thereby  to  be 
without  lawful  authority.  Suit  being  brought  by  Norton  thereafter 
upon  some  of  said  bonds  in  the  federal  Circuit  Court,  judgment  was 
given  for  defendant  county.] 

fondant's  acquittal) ;  Jones  v.  Montague,  191  TJ.  S.  147,  24  Sup.  Ct.  611,  48 
L.  Ed.  913  (1901)  (no  appeal  after  possibility  of  relief  sought  has  ceased); 
Buck's  Stove  &  Range  Co.  v.  American  Federation  of  Labor,  219  U.  S.  581, 
.11  Sup.  Ct  472,  55  L.  Ed.  345  (1911)  (same,  after  controversy  settled  out  of 
court). 

See  Interstate  Commerce  Commission  v.  Brimson,  post,  p.  70,  and  the  quota- 
tion from  Huddart  v.  Moorehead,  post,  p.  70,  note. 

Advisory  Opinions.* — Save  where  made  an  express  constitutional  require- 
ment, courts  generally  refuse  to  give  opinions  to  other  departments  of  gov- 
ernment for  their  guidance  in  advance  of  actual  litigation,  on  the  ground 
that  such  opinions  have  not  a  judicial  character,  thus  following  the  precedent 
set  by  the  Supreme  Court  in  Washington's  administration,  referred  to  in 
Muskrat  v.  U.  S.,  supra.  Application  of  Senate  of  State,  10  Minn.  7S  (Gil. 
56)  (1S05)  ;  Reply  of  Judges,  33  Conn.  5S6  (1S67) ;  State  v.  Baughman,  38 
Ohio  St.  455  (1SS2).  In  several  instances  such  opinions  have  been  given  with- 
out discussion  of  the  practice.  People  v.  Green,  1  Denio  (N.  Y.)  614  (1S45);_ 
Opinion  of  Judges,  37  Vt.  605  0-S64) ;  Opinion  of  Judges  of  Court  of  Appeals, 
79  Ky.  021  (1881)  ;  In  re  Board  of  Public  Lands  and  Buildings,  37  Neb.  425, 
55  N.  W.  1092  (1S93)  (see  also  In  re  Railroad  Commissioners,  15  Neb.  679, 
50  N.  W.  276  [1SS4] ;  In  re  School  Fund,  15  Neb.  6S4,  50  N.  W.  272  [1SS4] ; 
In  re  Brown,  15  Neb.  OSS,  50  N.  W.  273  [1SS4] ;  In  re  Babcock,  21  Neb.  500, 
32  N.  W.  641  [1887];  In  re  Slate  Warrants,  25  Neb.  659.  41  N.  W.  636  [1SS9] ; 
In  re  Senate  File  31,  25  Neb.  864,  41  N.  W.  9S1  [18S9] ;  In  re  Qua?re  of 
Procedure  of  Two  Houses  of  Legislature  in  Contests  of  Election  of  Executive 
Officers,  31  Neb.  262,  47  N.  W.  923  [1891] ;  In  re  House  Roll  284,  31  Neb.  505, 
48  N.  W.  275  [1891]).  The  Nebraska  practice  was  apparently  discontinued  in 
1898  by  rule  of  court  (52  Neb.  xviii,  rule  32).  The  Constitutions  of  Colorado, 
Maine,  Massachusetts,  New  Hampshire,  and  Rhode  Island  expressly  require 
the  rendition  of  such  opinions  at  the  request  of  the  governor  or  legislature, 
and  Florida  and  South  Dakota  at  the  request  of  the  governor  alone.  See  a 
classification  of  these  opinions  in  6  Am.  &  Eng.  Ency  1070-107S  (2d  Ed.). 
Except  in  Colorado,  however,  such  opinions  have  no  judicial  effect     Green 

•  See,  in  general,  Thayer,  Legal  Essays,  42-59. 


Cll.  2)          FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  45 

Mr.  Justice  Field.  *  *  *  But  it  is  contended  that  if  the  act 
creating  the  board  was  void,  and  the  commissioners  were  not  officers 
de  jure,  they  were  nevertheless  officers  de  facto,  and  that  the  acts  of 
the  board  as  a  de  facto  court  are  binding  upon  the  county.  This 
contention  is  met  by  the  fact  that  there  can  be  no  officer,  either  de 
jure  or  de  facto,  if  there  be  no  office  to  fill.  As  the  act  attempting 
to  create  the  office  of  commissioner  never  became  a  law,  the  office 
never  came  into  existence.  Some  persons  pretended  that  they  held 
the  office,  but  the  law  never  recognized  their  pretensions,  nor  did 
the  supreme  court  of  the  state.  Whenever  such  pretensions  were 
considered  in  that  court,  they  were  declared  to  be  without  any  legal 
foundation,  and  the  commissioners  were  held  to  be  usurpers.  The 
doctrine  which  gives  validity  to  acts  of  officers  de  facto,  whatever 
defects  there  may  be  in  the  legality  of  their  appointment  or  election, 
is  founded  upon  considerations  of  policy  and  necessity,  for  the  pro- 
tection of  the  public  and  individuals  whose  interests  may  be  affected 
thereby.  Offices  are  created  for  the  benefit  of  the  public,  and  private 
parties  are  not  permitted  to  inquire  into  the  title  of  persons  clothed 
with  the  evidence  of  such  offices,  and  in  apparent  possession  of  their 
powers  and  functions.     For  the  good  order  and  peace  of  society  their 

v.  Coium.,  12  Allen  (Mass.)  155  (1SG6) ;    Answers  of  the  Justices.  95  M 

666,  57::.  51  Atl.  224  (1901);    lu  re  Constitutionality  of  Senate  Bill,  12  Colo. 

466,  21  Pac.  478  (1889). 

For  various  qualifications  upon  the  right  to  require  such  opinions  in  these 
stairs,  -  of  the  Justices  95 

compare  Questions  and  Answers,  103  Me.  500,  514  ff.,  CO  Atl.  ('.27,  1!)  L.  ft.  A. 
in.  s.i  -!•_"_'.  i::  Am.  Cas.  7  r.  (1907)];     i  jn  tices,  150  Ms 

24   X.   K.   108C  HS90);   Opinion  of  the  Justices,  203  Mass.  614,  95   N.   1"..  937 
(ion)  (cases). 

For  a  discussion   of  the   meaning  of  a  provision  in  the   Constituii 
Illinois.  Idaho,  and  Washington,  requiring  the  judges  of  the  Supremi 
annually  to  report  to  the  governor  "such  defects  and  omissions  in  the  Con- 
stitution and  laws"  us  they  find  to  exist,  see  the  correspondence  printed  in 
243  111.  9-41  (1009). 

Frqm   very  early  times  the  English  courts  have  given  "consultative"  opin- 
ions to  the  Crown  and  the  House  of  Lords,  and  Parliament  has  extended  the 
practice  for  the  benefit  of  local  government  bodies.    That  such  opinions  are 
without  binding  force  in  regard  to  legal  rights  is,  however,  careful^ 
nized.    See  Certificate  "i'  Judges,  2  Eden,  .".7i  (1760)  (opinion  to  Crown);  Head 

v.  Head,  T.  &  R.  138,  140  (1S2.".>  (same  to  House  of  Lords);    E\-  parte  E 
Council,    (1S91)    1   Q.    B.    725    (to    county   council    under  statute).      The   early 
English  ami   .Massachusetts  precedents  are  briefly  reviewed  iu  Opinion  of  the 
Justices.   126  Mass.  557.  561-566  (1879). 

The  history  of  Canadian  practice  in   regard  to  advisory  opinions  appears 
in  In  re  .Sunday  Legislation.  35  Can.  s.  ( \  ;,sl  (1905);   In  re  Criminal  Code,   1". 
Can.  s.  c.  431  (1910);   in  re  References  by  Gov.  General,  id.  536  (1910). 
opinions  are  appealable  to  the  Privy   Council     Atty.   Gen.   for  Ontario  v. 

Hamilton  St.  By.  (1903)  A.  ('.  524. 

Administkativk  Rules  RBOtrLATiNG  Exebciss  of  Judicial  Control  oveu 
I'm onstitctional    STATUTES.— In   addition   to   the    limitations   upon    Judicial 

power  in  this  regard  exemplified  by  the  cases  iu  this  chapter  and  in  I 

111,  following,  courts  ordinarily  will  uot  declare  legislation  unconstitutional, 

save  in  the  clearest  cases,  except  by   the  judgment  of  appellate  courts*   by    a 

majority  of  a  full  bench,  and  when  a  decision  of  the  constitutional  question 

is  absolutely   necessary   to  dispose  of  the  case.      See  Cooley.   Const    1  < 

231  (7th  Ed.).     Where  an  act  can  be  upheld,  however,  courts  more  freely  puss 


46  PRELIMINARY  topics  (Part   1 

authority  is  to  be  respected  and  obeyed  until,  in  some  regular  mode 
prescribed  by  law,  their  title  is  investigated  and  determined.  It  is 
manifest  that  endless  confusion  would  result  if  in  every  proceeding 
before  such  officers  their  title  could  be  called  in  question.  But  the 
idea  of  an  officer  implies  the  existence  of  an  office  which  he  holds. 
It  would  be  a  misapplication  of  terms  to  call  one  an  officer  who  holds 
no  office,  and  a  public  office  can  exist  only  by  force  of  law.  This 
seems  to  us  so  obvious  that  we  should  hardly  feel  called  upon  to  con- 
sider any  adverse  opinion  on  the  subject  but  for  the  earnest  con- 
tention of  plaintiff's  counsel  that  such  existence  is  not  essential,  and 
that  it  is  sufficient  if  the  office  be  provided  for  by  any  legislative  en- 
actment, however  invalid.  Their  position  is  that  a  legislative  act, 
though  unconstitutional,  may  in  terms  create  an  office,  and  nothing 
further  than  its  apparent  existence  is  necessary  to  give  validity  to 
the  acts  of  its  assumed  incumbent.  That  position,  although  not  stated 
in  this  broad  form,  amounts  to  nothing  else.  It  is  difficult  to  meet 
it  by  any  argument  beyond  this  statement:  An  unconstitutional  act 
is  not  a  law;  it  confers  no  rights;  it  imposes  no  duties;  it  affords 
no  protection ;  it  creates  no  office ;  it  is,  in  legal  contemplation,  as 
inoperative  as  though  it  had  never  been  passed.1 

upon  its  constitutionality,  even  when  not  strictly  necessary.  Twining  v.  N.  J., 
211  U.  S.  78,  114-117,  29  Sup.  Ct.  14,  53  L.  Ed.  97  (190S) ;  Borgnis  v.  Talk 
Co.,  147  Wis.  327,  337,  338,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489  (1911);  and 
it  is  sometimes  said  that  this  will  also  be  done  where  the  immediate  decision 
of  the  question  is  a  matter  of  great  public  importance,  Borgnis  v.  Falk, 
above;  Sabre  v.  Rutland  Ry.,  85  Atl.  093.  704  (Vt.  1913).  Compare  the  dis- 
position made  of  various  questions  in  Income  Tax  Cases,  148  Wis.  456,  134 
N.  W.  07:;.  135  N.  W.  104  (1912). 

If  the  meaning  of  a  statute  is  ambiguous,  it  will,  if  possible,  be  so  con- 
strued as  to  avoid  the  necessity  of  passing  upon  doubtful  constitutional  ques- 
tions. U.  S.  v.  Del.  &  II.  Ry.,  213  U.  S.  300,  407,  408,  29  Sup.  Ct.  527,  53  L. 
Ed.  836  (1909).  Generally,  too,  a  statute  will  not  be  held  invalid  merely  upon 
the  objection  of  public  officers  charged  with  ministerial  duties  in  its  execu- 
tion, but  without  personal  interests  that  may  be  prejudiced  by  their  action 
thereunder.  Braxton  County  Court  v.  West  Virginia,  20s  U.  S,  192,  2S  Sup. 
Ct.  275,  52  L.  Ed.  450  (1908);  Threadgill  v.  Cross,  2G  Okl.  403,  407-412,  109 
Pac.  55S,  138  Am.  St.  Rep.  964  (1910)  (cases);  47  L.  R.  A.  512.  note.  [Contra. 
where  an  officer  is  personally  responsible  for  his  acts,  State  ex  rel.  University 
of  Utah  v.  Candland,  36  Utah,  406,  410-420,  104  Pac.  2S5,  24  L.  It.  A.  (N.  S.) 
1260,  140  Am.  St.  Rep.  834  (1909).]  As  to  the  practice  of  taxpayer's  actions 
to  test  the  validity  of  laws  by  asking  an  injunction  against  the  expenditure 
of  public  money  in  enforcing  them,  see  Ellingham  v.  Dye.  99  N.  10.  1  (Ind. 
1912);  Income  Tax  Cases.  14S  Wis.  450,  134  N.  W.  673,  135  X.  W.  104  (1912). 
Compare  State  ex  rel.  Havis-Smith  Co.  v.  Clausen,  65  Wash.  156,  117  Pac. 
1101,  37  L.  R.  A.  (X.  S.t  -100  (1911)  (duty  of  state  auditor  to  refuse  to  sanction 
expenditures  under  invalid  law). 

Upon  writ  of  error  from  state  courts  the  federal  Supreme  Court  will  not 
hold  state  statutes  invalid  save  at  the  suit  of  those  whose  own  constitutional 
rights  are  invaded.  It  is  not  enough  that  the  law  may  be  invalid  as  to  others. 
and,  being  inseparable,  may  therefore  fail  as  a  whole.  Tvler  v.  Judges'  of 
Court  of  Resistration.  179  U.  S.  405,  21  Sup.  Ct.  206,  45  L,  Ed.  252  (1900)  : 
New  York  ex  rel.  Hatch  v.  Reardon,  204  U.  S.  152,  160,  161,  27  Sup.  Ct.  1SS,  51 
L.  Ed.  415.  9  Ann.  Cns.  736  (1907) ;  The  Winnebago.  205  U.  S.  354,  360,  27 
Sup.  Ct.  509,  51  L.  Ed.  S36  (1907).     See  Shephard  v.  Wheeling,  post,  p.  50. 

1  An  unconstitutional  statute  is  generally  held  to  confer  no  protection  upon 
j   ministerial   officer   who   is  sued  for  infringing   private  rights  in   reliance 


Ch.  2)        FUNCTION  OF  JUDICIABS  in  QNFOBCINO  CONSTITUTIONS  47 

In  Hildreth  v.  Mclntire,  1  J.  J.  Marsh.  (Ky.)  206,  19  Am.  Dec.  61, 
we  have  a  decision  from  the  court  of  appeals  of  Kentucky  which 
well  illustrates  this  doctrine.  The  legislature  of  that  state  attempted 
to  aholish  the  court  of  appeals  established  by  her  Constitution,  and 
create  in  its  stead  a  new  court.  Members  of  the  new  court  were  ap- 
pointed, and  undertook  to  exercise  judicial  functions.  They  dismissed 
an  appeal  because  the  record  was  not  filed  with  the  person  acting  as 
their  clerk.  A  certificate  of  the  dismissal  signed  by  him  was  received 
by  the  lower  court,  and  entered  of  record,  and  execution  to  carry  into 
effect  the  original  decree  was  ordered  to  issue.  To  reverse  this  or- 
der an  appeal  was  taken  to  the  constitutional  court  of  appeals.  The 
question  was  whether  the  court  below  erred  in  obeying  the  mandate 
of  the  members  of  the  new  court,  and  its  solution  depended  upon  an- 
other, whether  they  were  judges  of  the  court  of  appeals,  and  the 
person  acting  as  their  clerk  was  its  clerk.  The  court  said:  "Al- 
though they  assumed  the  functions  of  judges  and  clerk,  and  at- 
Mniited  to  act  as  such,  their  acts  in  that  character  are  totally  null 
and  void,  unless  they  had  been  regularly  appointed  under  and  accord- 
ing to  the  Constitution.  A  de  facto  court  of  appeals  cannot  exist 
under  a  written  Constitution  which  ordains  one  supreme  court,  and 
defines  the  qualification  a. id  duties  of  its  judges,  and  prescribes  the 
mode  of  appointing  them.  There  cannot  be  more  than  one  court 
of  appeals  in  Kentucky  as  long  as  the  Constitution  shall  exist,  and 
that  must  necessarily  be  a  court  de  jure.  When  the  government  is 
entirely  revolutionized,  and  all  its  departments  usurped  by  force  or 
the  voice  of  a  majority,  then  prudence  recommends  and  necessity 
enforces  obedience  to  the  authority  of  those  who  may  act  as  the  pub- 
lic functionaries,  and  in  such  a  case  the  acts  of  a  de  facto  executive, 
a  de  facto  judiciary,  and  a  de  facto  legislature  must  be  recognized 
as  valid.  But  this  is  required  by  political  necessity.  There  is  no  gov- 
ernment in  action  except  the  government  de  facto,  because  all  the 
attributes  of  sovereignty  have,  by  usurpation,  been  transferred  from 
those  who  had   been  legally  invested   with  them  to  others  who,  sus- 

t hereon.  Campbell  v.  Sherman.  35  Wis.  10.3  (1874):  Sumner  v.  Beeler,  50 
I  ml.  341,  19  Am.  Kep.  718  (1875);  Warren  v.  Kelley,  SO  Me.  512,  15  Atl.  49 
(1888).  [See  Clark  v.  Miller,  54  N.  Y.  528  (1874).]  Kut  its  existence  may  be 
an  element  iii  affording  to  persons  who  act  thereunder  the  protection  of  other 
rules  of  law.  Ilenke  v.  McCord,  55  Iowa.  378,  7  \.  W.  ul':;  (1880)  (immunity 
of  inferior  judicial  officer  acting  within  his  jurisdiction — semble);  I'.rooUs  v. 
Mangan,  SO  Mich.  576,  49  N.  W.  833,  24  Am.  St.  Kep.  137  (1891)  (same);  Ann 
aeuser  Buscb  Brewing  Ass'n  v.  Hammond,  93  towa,  520,  81  N,  W.  1062  (1895) 
(officer  acting  under  writ  fair  on  its  facto  ;  Id.  (defense  to  civil  action  for 
making  complaint  under  invalid  law);  Tillman  v.  Heard,  121  Mich.  475,  so 
N.  YV.  248,  46  L.  R.  A.  215  (1899)  (sami  State  e.  Godwin,  123  N.  C 

697,  31  s.  E.  221  (1898)  (officer  not  ln<  obeying  invalid  law)  [but 

see  Flaucher  v.  Camden,  56  N.  .(.  Law.  244,  28  Atl.  82  (1893)  (private  individ- 
ual thus  punishable)].  The  situation  created  i>y  action  under  an  unconstitu- 
tional statute  n. ay  of  course  afford  a  basis  fbr  various  collateral  rights. 
Norton  v.  Shelby  County.  U8  1'.  S.  4°..".  454,  6  Sup.  Ct  1121,  30  I..  Ed.  178 
(1886J  (restitution);  United  states  v.  Realty  Co.,  1C3  U.  S.  427,  16  Sup.  ct 
1120,  41  L.  Kd.  215  (1M)0)  (discharge  of  moral  obligation),  post,  p.  604,  note. 


48  preliminary  topics  (Part  1 

tained  by  a  power  above  the  forms  of  law,  claim  to  act,  and  do  act, 
in  their  stead.  But  when  the  Constitution  or  form  of  government 
remains  unaltered  and  supreme,  there  can  be  no  de  facto  department 
or  de  facto  office.  The  acts  of  the  incumbents  of  such  departments 
or  office  cannot  be  enforced  conformably  to  the  Constitution,  and  can 
be  regarded  as  valid  only  when  the  government  is  overturned.  When 
there  is  a  constitutional  executive  and  legislature,  there  cannot  be 
any  other  than  a  constitutional  judiciary.  Without  a  total  revolution, 
there  can  be  no  such  political  solecism  in  Kentucky  as  a  de  facto 
court  of  appeals.  There  can  be  no  such  court  while  the  Constitution 
has  life  and  power.  There  has  been  none  such.  There  might  be 
under  our  Constitution,  as  there  have  been,  de  facto  officers;  but 
there  never  was,  and  never  can  be,  under  the  present  Constitution,  a 
de  facto  office."  And  the  court  held  that  the  gentlemen  who  acted 
as  judges  of  the  legislative  tribunal  were  not  incumbents  of  de  jure 
or  de  facto  offices,  nor  were  they  de  facto  officers  of  de  jure  offices, 
and  the  order  below  was  reversed.     *     *     * 

The  case  of  State  v.  Carroll,  3S  Conn.  449,  9  Am.  Rep.  409,  de- 
cided by  the  supreme  court  of  Connecticut,  upon  which  special  reli- 
ance is  placed  by  counsel,  and  which  is  mentioned  with  strong  com- 
mendation as  a  land-mark  of  the  law,  in  no  way  militates  against 
the  doctrine  we  have  declared,  but  is  in  harmony  with  it.  That  case 
was  this:  The  Constitution  of  Connecticut  provided  that  all  judges 
should  be  elected  by  its  general  assembly.  An  act  of  the  legislature 
authorized  the  clerk  of  a  city  court,  in  case  of  the  sickness  or  ab- 
sence of  its  judge,  to  appoint  a  justice  of  the  peace  to  hold  the  court 
during  his  temporary  sickness  or  absence.  A  justice  of  the  peace 
having  thus  been  called  in,  and  having  acted,  a  question  arose  whether 
the  judgments  rendered  by  him  were  valid.  The  court  held  that 
whether  the  law  was  constitutional  or  not,  he  was  an  officer  de  facto, 
and,  as  such,  his  acts  were  valid.  The  opinion  of  Chief  Justice 
Butler  is  an  elaborate  and  admirable  statement  of  the  law,  with  a 
review  of  the  English  and  American  cases,  on  the  validity  of  the  acts 
of  de  facfo  officers,  however  illegal  the  mode  of  their  appointment. 
ft  criticises  the  language  of  some  cases,  that  the  officer  must  act 
under  color  of  authority  conferred  by  a  person  having  power,  or 
prima  facie  power,  to  appoint  or  elect  in  the  particular  case;  and 
it  thus  defines  an  officer  de  facto:  "An  officer  de  facto  is  orfe  whose 
acts,  though  not  those  of  a  lawful  officer,  the  law,  upon  principles 
of  policy  and  justice,  will  hold  valid,  so  far  as  they  involve  the  in- 
terests of  the  public  and  third  persons,  where  the  duties  of  the  of- 
fice are  exercised — First,  without  a  known  appointment  or  election, 
but  under  such  circumstances  of  reputation  or  acquiescence  as  were 
calculated  to  induce  people,  without  inquiry,  to  submit  to  or  invoke 
his  action,  supposing  him  to  be  the  officer  he  assumed  to  be;  second, 
under  color  of  a  known  and  valid  appointment  or  election,  but  where 
the  officer  had  failed  to  conform  to  some  precedent,  requirement,  or 


Ch.  2)  FUNCTION  OF  JUDICIAKY  IN  ENFORCING  CONSTITUTIONS  49 

condition,  as  to  take  an  oath,  give  a  bond,  or  the  like;  third,  under 
color  of  a  known  election  or  appointment,  void  because  the  officer 
was  not  eligible,  or  because  there  was  a  want  of  power  in  the  elect- 
ing or  appointing  body,  or  by  reason  of  some  defect  or  irregularity 
in  its  exercise,  such  ineligibility,  want  of  power,  or  defect  being  un- 
known to  the  public ;  fourth,  under  color  of  an  election  or  an  ap- 
pointment by  or  pursuant  to  a  public  unconstitutional  law,  before 
the  same  is  adjudged  to  be  such." 

Of  the  great  number  of  cases  cited  by  the  chief  justice,  none  rec- 
ognizes such  a  thing  as  a  de  facto  office,  or  speaks  of  a  person  as  a 
de  facto  officer,  except  when  he  is  the  incumbent  of  a  de  jure  office. 
The  fourth  head  refers,  not  to  the  unconstitutionality  of  the  act  creat- 
ing the  office,  but  to  the  unconstitutionality  of  the  act  by  which  the 
officer  is  appointed  to  an  office  legally  existing.  That  such  was  the 
meaning  of  the  chief  justice  is  apparent  from  the  cases  cited  by  him 
in  support  of  the  last  position,  to  some  of  which  reference  will  be 
made.2  *  *  *  [Here  follows  an  analysis  of  certain  of  these  cases 
in  support  of  this  argument,  and  a  discussion  of  other  points  in  the 
case.] 

Judgment  affirmed.* 

-•  Tills  Interpretation  of  State  v.  Carroll  Is  criticised  In  Lang  v.  Cayonne. 
74  X.  J.  Law.  455,  461,  4C2.  68  Atl.  90,  15  L.  R.  A.  (N.  S.)  93,  122  Am.  St.  Rep 
391,  12  Ann.  Cas.  901  (1907). 

a  The  cases  accord  and  contra  to  the  principal  case  are  collected  In  15  L. 
R.  A.  (N.  S.)  94-107.  The  weight  of  authority  is  with  it,  save  as  concerns  dc 
facto  municipal  corporations  and  acts  of  their  officers.  As  to  these.  see  1.") 
L.  R.  A.  (N.  S.)  105-107;  28  Cye.  172  (cases):  29  Cyc.  1391  (cases).  The  argu- 
ment against  the  doctrine  of  the  principal  case  appears  in  the  following  quota- 
tions: 

"So  necessary  to  the  successful  carrying  on  of  a  republican  form  of  gov- 
ernment Is  the  principle  which  I  understand  the  Chief  Justice  to  have  laid 
down,  namely,  that  a  statute  which  creates  an  ollice,  and  provides  an  officer 
to  perform  its  duties,  must  have  the  force  of  law  until  condemned  as  uncon- 
stitutional by  the  courts,  and  that  in  the  meantime  the  officer  so  provided  is 
an  officer  de  facto,  that  it  is  impliedly  recognl  ted  and  acted  on  almost  uni- 
versally (so  far  as  my  examination  has  disclosed)  in  the  case  of  municipal 
corporations  which  have  been  created  by  unconstitutional  laws.  Sucl 
rations  are  declared  to  be  de  facto  corporations.  Dillon  on  Mun.  Corp.  S  43a  : 
Burt  v.  Winona,  etc,  K.  It.  Co..  34  Minn.  47-'.  18  X.  \Y.  285,  2 
riled.  And  not  only  so.  but  courts  refuse  to  permit  the  legalit]  of  their 
existence  to  be  called  into  question,  except  by  the  state  itself,  through  its 
Attorney  General,  and  hold  tint  so  long  as  the  state  does  not  see  tit   t< 

.1  terminate  the  existence  thereof  by  direct  proceeding  brought  by 
the  Attorney  General,  a  municipal  corporation  which  has  been  created  by  an 
unconstitutional   statute  may   exercise   upon    i  ,    through    it 

the  powers  conferred  upon  it  by  the  statute,  as  fully  and  completely  as  if  it 
was  created  by  a  law  valid  In  every  particular. 

And  yet,  If    it  be  true  thai  tin  a  thing  as  a  de  fa> 

cor.  unless  there  be  a  de  |u  i  what  theory  can  the  acta  of  such  offl- 

e  true  thai  a  law  of  this  char- 
the  validity  of  which  no  one  but  the  Attorney  General  can  challenge, 
and  which  is  permitted  to  be  enl  >rced  to  tl  the  pub- 

lic, 'confers  no  rights,  imposes  no  unties,  affords   no   protection,   creates  no 
ind  'Is,  in  legal confemplad  a.  as  inoperative  as  if  it  hud  never  been 
Hall  Const.L. — 1 


50  PRELIMINARY   topics  (Part   1 


SHEPHARD  v.  WHEELING  (1887)  30  W.  Va.  479,  482-484,  4  S. 
E.  635,  Snyder,  J.  (holding  invalid  a  West  Virginia  statute  authoriz- 
ing state  circuit  courts,  upon  the  petition  of  aggrieved  taxpayers,  to  re- 
voke and  annul  any  ordinance  of  a  city,  town,  or  village  made  contrary 
to  law) : 

"The  enactment  of  an  ordinance  by  a  city  council,  or  the  enactment 
of  a  statute  by  a  legislature,  being  in  each  case  the  exercise  of  legisla- 
tive power,  the  repeal  of  such  ordinance  or  statute  must  likewise  be  the 
exercise  of  legislative  power.  It  does  not  require  any  precise  definition 
of  judicial  power,  or  any  nice  discrimination  as  to  its  extent  and  limi- 
tations to  determine  that  the  act  of  repealing  a  statute  is  not  the  exer- 
cise of  judicial  power.     *     *     * 

"When,  in  the  course  of  determining  the  rights  of  the  parties  to  a 
particular  suit  or  controversy,  the  court  finds  it  necessary  to  ascertain 
whether  or  not  a  statute  is  unconstitutional,  the  court  must  necessarily 
pass  upon  that  question;  but  in  doing  so  it  does  not  annul  or  repeal  the 
statute  if  it  finds  it  in  conflict  with  the  Constitution.  It  simply  refuses 
to  recognize  it,  and  determines  the  rights  of  the  parties  just  as  if  such 
statute  had  no  existence.  The  court  may  give  its  reasons  for  ignoring 
or  disregarding  the  statute,  but  the  decision  affects  the  parties  only, 
and  there  is  no  judgment  against  the  statute.  The  opinion  or  reasons 
of  the  court  may  operate  as  a  precedent  for  the  determination  of  other 
similar  cases,  but  it  does  not  strike  the  statute  from  the  statute-book  ; 
it  does  not  repeal,  'supersede,  revoke,  or  annul'  the  statute.  The  par- 
ties to  that  suit  are  concluded  by  the  judgment,  but  no,  one  else  is 

passed'?  •  •  •  In  my  judgment  the  same  public  policy  which  requires 
obedience  from  the  citizen  to  the  provisions  of  a  public  statute  which  creates 
a  municipality,  and  provides  for  its  government,  even  though  unconstitu- 
tional, so  long  as  it  has  not  received  judicial  condemnation,  equally  justifies 
his  obedience  to  every  other  law  which  the  Legislature  has  seen  fit  to  enact, 
until  such  has  been  judicially  declared  to  be  invalid.  I  conclude  that  an 
officer  appointed  under  authority  of  a  statute  to  fill  an  office  created  by  the 
statute  Is  a  de  facto  officer,  and  that  acts  done  by  him  antecedent  to  a 
judicial  declaration  that  the  statute  is  unconstitutional  are  valid,  so  far  as 
they  involve  the  interests  of  the  public  and  third  persons." — Lang  v.  Bayonne, 
74  N.  J.  Law,  455,  462,  463,  6S  All.  90,  15  L.  R.  A.  (N.  S.)  93,  122  Am.  St.  Rep. 
391,  52  Ann.  Cas.  961  (190T),  by  Gummere,  C.  J. 

"The  de  facto  doctrine  is  exotic,  and  was  ingrafted  upon  the  law  as  a 
mat  tor  of  policy  and  necessity  to  protect  the  interests  of  the  public  and  in- 
dividuals where  those  interests  were  involved  in  the  official  acts  of  persons 
exercising  the  duty  of  an  office  without  being  lawful  otficers.  *  *  *  We 
are  unable  to  discover  any  difference  in  reason  for  declaring  an  officer  to  be 
de  facto,  whether  he  holds  a  de  facto  or  de  jure  office,  if  he  has  occupied  it 
with  the  usual  insignia  of  a  de  facto  officer.  The  authorities  are  in  harmony 
that  the  de  facto  doctrine  was  invented  to  deal  with  effects,  not  with  causes. 
The  effects  oniy  can  be  reached.  The  causes  cannot.  The  official  acts  are 
accomplished.  If  the  effects  are  alike,  it  is  immaterial  that  the  causes  differ. 
The  effects,  whether  from  a  de  jure  or  de  facto  office,  are  alike.  Hence  the 
acts  of  the  officer  occupying  either  position  should  be  declared  de  facto." 
—State  v.  Poulin,  105  Me.  224,  229,  231,  74  AU.  119,  24  L.  R.  A.  (N.  S.)  40S. 
134  Am.  St  Rep.  543  (1909),  by  Spear,  J. 


Ch.  2)          FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  51 

bound.  A  new  litigant  may  bring  a  new  suit,  based  upon  the  very  same 
statute,  and  the  former  decision  cannot  be  pleaded  as  an  estoppel,  but 
can  be  relied  on  only  as  a  precedent.  This  constitutes  the  reason  and 
basis  of  the  fundamental  rule  that  a  court  will  never  pass  upon  the  con- 
stitutionality of  a  statute  unless  it  is  absolutely  necessary  to  do  so  in 
order  to  decide  the  cause  before  it.  Cooley,  Const.  Lim.  163.  *  *  * 
"In  a  very  able  opinion  by  Shaw,  C.  J.,  which  is  approved  and  in  part 
quoted  in  the  text  of  Cooley,  that  eminent  judge  says:  'It  may  be  well 
doubted  whether  a  formal  act  of  legislation  can  ever,  with  strict,  legal 
propriety,  be  said  to  be  void ;  it  seems  more  consistent  with  the  nature 
of  the  subject,  and  the  principles  applicable  to  analogous  cases,  to  treat 
it  as  voidable.  But  whether  or  not  a  case  can  be  imagined  in  which  an 
act  of  the  legislature  can  be  deemed  absolutely  void,  we  think  it  quite 
clear  that  when  such  act  is  alleged  to  be  void,  on  the  ground  that  it  ex- 
ceeds the  just  limits  of  legislative  power,  and  thus  injuriously  affects 
the  rights  of  others,  it  is  deemed  to  be  void  only  in  respect  to  those  par- 
ticulars, and  as  against  those  persons  whose  rights  are  thus  affected. 
Prima  facie,  and  upon  the  face  of  the  act  itself,  nothing  will  generally 
appear  to  show  that  the  act  is  not  valid ;  and  it  is  only  when  some  per- 
son attempts  to  resist  its  operation,  and  calls  in  the  aid  of  the  judicial 
power  to  pronounce  it  void  as  to  him,  his  property,  or  his  rights,  that 
the  objection  of  unconstitutionality  can  be  presented  and  sustained. 
Respect  for  the  legislature,  therefore,  concurs  with  well-established 
principles  of  law  in  the  conclusion  that  such  act  is  not  void,  but  voida- 
ble only ;  and  it  follows,  as  a  necessary  legal  inference  from  this  posi- 
tion, that  this  ground  of  avoidance  can  be  taken  advantage  of  by  those 
only  who  have  a  right  to  question  the  validity  of  the  act,  and  not  by 
strangers.  To  this  extent  only  is  it  necessary  to  go  in  order  to  secure 
and  protect  the  rights  of  all  persons  against  the  unwarranted  exercise 
of  legislative  power;  and  to  this  extent  only,  therefore,  are  courts  of 
justice  called  on  to  interpo.se.'  In  re  Wellington  16  Pick.  (Alass.)  96, 
26  Am.  Dec.  631.     *     *     *  "  l 

i  For  various  purposes,  other  than  that  of  enforcement  In  Its  invalid  form, 
will  bo  paid  to  an  unconstitutional  statute  by  the  courts.  Defective 
portions,  even  when  inseparable,  may  be  subsequently  amended  so  as  to  make 
the  whole  operative  without  re-enactment  as  an  entirety.  Allison  v.  Corker, 
67  N  J.  Law,  596,  52  Atl.  S62  (1902)  [annotated  In  60  I-  B.  A.  564  566],  Col 
lins,  .1..  saying  (67  N.  3.  Law.  pp.  600,  601,  52  Ml  863  pBO  L.  R.  A.  564]):  "An 
unconstitutional  statute  is  nevertheless  a  statute;  that  is.  a  legislative  net. 
Such  d   statute  is  commonly  spoken  of  as  void.     1  should  prefer  to  call  it 

unenforceable,   because   in  conflict    with   a   paramount   law.      If   properly  to  be 
called  void,  it  is  only  so  with  reference  to  claims  based  upon  it.     Neither  of 
the  three   great  departments  to   Which   the   Constitution   has   committed   gov- 
ernment by  the  people  can  encroach  upon  the  domain  of  another.    The  func- 
tion of  the  Judicial   department  with   reaped   to   I  gislation  deemed  uncon- 
stitutional   is  not  exercised  in  rem,   but  always  In  personam.     The  si 
eei, rt   cannot  Bet  aside  a  statute  as  it  can  a   municipal  ordinance.     It 
Ignores  statutes  deemed  unconstitutional.     For  many  purposes  an  nn< 
Clonal  statute  may   Influence  judicial  judgment,  where,   for  example,  under 
color  of  it  private  or  public  action  has  been  taken.     An  unconstitutional  stai 


52  PRELIMINARY    TOPICS  (Part    1 


POLLOCK  v.  FARMERS'  LOAN  AND  TRUST  CO.  (1895)  158 
U.  S.  601,  635-637,  15  Sup.  Ct.  912,  39  L.  Ed.  1108,  Mr.  Chief  Justice 
Fuller  (after  holding  invalid  certain  parts  of  the  federal  income  tax 
law  of  1894,  taxing  all  incomes  over  $4,000 — see  p.  1026,  post,  for  this 
part  of  the  case): 

"Being  of  opinion  that  so  much  of  the  sections  of  this  law  as  lays  a 
tax  on  income  from  real  and  personal  property  is  invalid,  we  are 
brought  to  the  question  of  the  effect  of  that  conclusion  upon  these 
sections  as  a  whole. 

"It  is  elementary  that  the  same  statute  may  he  in  part  constitutional 
and  in  part  unconstitutional,  and,  if  the  parts  are  wholly  independent 
of  each  other,  that  which  is  constitutional  may  stand,  while  that  which 
is  unconstitutional  will  be  rejected.  And  in  the  case  before  us  there  is  no 
question  as  to  the  validity  of  this  act,  except  sections  27  to  37,  inclu- 
sive, which  relate  to  the  subject  which  has  been  under  discussion;  and, 
as  to  them,  we  think  the  rule  laid  down  by  Chief  Justice  Shaw  in  War- 
ren v.  Charlestown,  2  Gray,  84,  is  applicable, — that  if  the  different 
parts  'are  so  mutually  connected  with  and  dependent  on  each  other,  as 
conditions,  considerations,  or  compensations  for  each  other,  as  to  war- 
rant a  belief  that  the  legislature  intended  them  as  a  whole,  and  that  if 
all  could  not  be  carried  into  effect  the  legislature  would  not  pass  the 
residue  independently,  and  some  parts  are  unconstitutional,  all  the  pro- 
visions which  are  thus  dependent,  conditional,  or  connected  must  fall 
with  them.'  Or,  as  the  point  is  put  bv  Mr.  Tustice  Matthews  in  Poin- 
dexter  v.  Greenhow,  114  U.  S.  270,  304,  5  Sup.  Ct.  903,  962:  'It  is  un- 
doubtedly true  that  there  may  be  cases  where  one  part  of  a  statute  may 
be  enforced,  as  constitutional,  and  another  be  declared  inoperative  and 
void,  because  unconstitutional ;  but  these  are  cases  where  the  parts  are 
so  distinctly  separable  that  each  can  stand  alone,  and  where  the  court 
is  able  to  see,  and  to  declare,  that  the  intention  of  the  legislature  was 

ute  is  not  merely  blank  paper.  The  solemn  act  of  the  legislature  is  a  fact 
to  be  reckoned  with.  Nowhere  has  power  been  rested  to  expunge  it  or  re- 
move it  from  its  proper  place  among  statutes." 

So,  also,  persons  who  have  obtained  benefits  or  have  consented  to  action 
under  invalid  statutes  may  be  estopped  from  attacking  them.  Bellevue  Bor- 
ough v.  Manufacturers'  Light  &  Heat  Co.,  23S  Pa.  3SS,  86  Atl.  187  (1913); 
Embury  v.  Conner,  3  N.  Y.  511,  53  Am.  Dec.  325  (1S50). 

It  is  generally  held,  however,  that  an  invalid  statute  is  not  made  operative, 
without  re-enactment,  by  a  subsequent  constitutional  amendment  not  express- 
ly made  retroactive,  38  L.  R.  A.  (N.  S.)  78,  79  note ;  though  of  course  an 
expressly  retroactive  amendment  (not  violating  the  federal  Constitution)  may 
have  this  effect,  Hammond  v.  Clark,  136  Ga.  313,  71  S.  B.  479,  3S  L.  B.  A. 
i.\.  S.i  77  Q911);  as  well  as  a  corrective  act  of  the  legislature  itself,  Ross  v. 
Board  of  Supervisors  of  Wright  County,  128  Iowa,  427,  104  N.  W.  506,  1  L. 
R.  A.  (N.  S.)  431  (1905). 

In  Etchison  Drilling  Co.  v.  Flournoy,  131  La.  442,  59  South.  867  (1912),  it 
was  held  that  the  legislature  had  no  power  to  make  an  act,  then  incompetent 
to  it,  become  operative  upon  the  contingent  adoption  of  a  future  constitutional 
amendment  not  in  terms  retroactive.  Compare  Tua  v.  Carriere,  117  U.  S. 
-201,  209,  210,  6  Sup.  Ct  565,  29  L.  Ed.  S55  (1SSG) ;    In  re  Kahrer,  140  U.  S. 


Ch.  2)          FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS  53 

that  the  part  pronounced  valid  should  be  enforceable,  even  though  the 
other  part  should  fail.  To  hold  otherwise  would  be  to  substitute  for 
the  law  intended  by  the  legislature  one  they  may  never  have  been  will- 
ing, by  itself,  to  enact.'  And  again,  as  stated  by  the  same  eminent 
judge  in  Spraigue  v.  Thompson,  118  U.  S.  90,  95,  6  Sup.  Ct.  988,  where 
it  was  urged  that  certain  illegal  exceptions  in  a  section  of  a  statute 
might  be  disregarded,  but  that  the  rest  could  stand:  'The  insuperable 
difficulty  with  the  application  of  that  principle  of  construction  to  the 
present  instance  is  that  by  rejecting  the  exceptions  intended  by  the  leg- 
islature of  Georgia  the  statute  is  made  to  enact  what,  confessedly,  the 
legislature  never  meant.  It  confers  upon  the  statute  a  positive  opera- 
tion beyond  the  legislative  intent,  and  beyond  what  any  one  can  say  it 
would  have  enacted,  in  view  of  the  illegality  of  the  exceptions.' 

"According  to  the  census,  the  true  valuation  of  real  and  personal 
property  in  the  United  States  in  1890  was  $65,037,091,197,  of  which 
real  estate  with  improvements  thereon  made  up  $39,544,544,333.  Of 
course,  from  the  latter  must  be  deducted,  in  applying  these  sections,  all 
unproductive  property  and  all  property  whose  net  yield  does  not  ex- 
ceed $4,000;  but,  even  with  such  deductions,  it  is  evident  that  the  in- 
come from  realty  formed  a  vital  part  of  the  scheme  for  taxation  em- 
bodied therein.  If  that  be  stricken  out,  and  also  the  income  from  all 
invested  personal  property,  bonds,  stocks,  investments  of  all  kinds,  it 
is  obvious  that  by  far  the  largest  part  of  the  anticipated  revenue  would 
be  eliminated,  and  this  would  leave  the  burden  of  the  tax  to  be  borne 
by  professions,  trades,  employments,  or  vocations;  and  in  that  way 
what  was  intended  as  a  tax  on  capital  would  remain,  in  substance,  a  tax 
on  occupations  and  labor.  We  cannot  believe  that  such  was  the  inten- 
tion of  congress.  We  do  not  mean  to  say  that  an  act  laying  by  appor- 
tionment a  direct  tax  on  all  real  estate  and  personal  property,  or  the 
income  thereof,  might  not  also  lay  excise  taxes  on  business,  privileges, 
employments,  and  vocations.  But  this  is  not  such  an  act,  and  the 
scheme  must  be  considered  as  a  whole.  Being  invalid  as  to  the  greater 
part,  and  falling,  as  the  tax  would,  if  any  part  were  held  valid,  in  a  di- 
rection which  could  not  have  been  contemplated,  except  in  connection 
with  the  taxation  considered  as  an  entirety,  we  are  constrained  to  con- 
clude that  sections  27  to  37,  inclusive,  of  the  act,  which  became  a  law, 
without  the  signature  of  the  president,  on  August  28,  1894,  are  wholly 
inoperative  and  void."  * 

545,  5G4.  565,  11  Sup.  Ct  SG5,  35  L.  Ed.  572  (1S91);  Pratt  v.  Allen,  13  Conn. 
119  (1839). 

Legislation  originally  valid  may  be  suspended  by  the  operation  of  a  superior 
law  and  will  be  re.ived  by  the  removal  of  this  bar.  In  re  Nelson  il>.  C.)  CP 
Fed.  712  (1895)  (cases).  Compare  the  common-law  doctrine  of  the  effect  ot 
the  repeal  of  a  repealing  law.     Com.  v.  Churchill,  2  Mote.   (Ma*s.i   U8  (1840). 

as  applications  of  this   i 
Text-Boob  Co.  v.  Hgg,  217  U.  S.  91.  112-114,  80  Sup.  Ct  481,  64  L.  Ed.  67S 
21  i..  it.  a.  ix.  s.)  493,  is  Ann.  Cas.  1103  (1910);    Employers'  LiabUltj 
207  U.   S.  403,  2$  Sup.  Ct  141,  52  L.  Ed.  297  (190bj  ;    El  Paso  &   X.   E.  It.  Co 


64  preliminary  tofics  (Part  1 


CHAPTER  III 

SEPARATION  AND  DELEGATION  OF  POWERS  OF 
GOVERNMENT 


SECTION  1.— SEPARATION  OF  POWERS 

MERRILL  v.  SHERBURNE. 
(Superior  Court  of  New  Hampshire,  1818.    1  N.  H.  199,  8  Am.  Dec.  52.) 

[Appeal  from  the  probate  court  of  Rockingham  county,  New 
Hampshire.  This  court  allowed  the  probate  of  an  instrument  as  the 
will  of  Nathaniel  Ward,  in  which  all  his  property  was  devised  to 
Merrill.  Sherburne,  one  of  Ward's  heirs,  appealed  from  this  deci- 
sion to  the  Superior  Court,  where  this  decree  was  reversed,  and,  after 
refusing  a  motion  for  a  new  trial,  the  court  rendered  final  judgment 
for  Sherburne.  The  legislature,  on  Merrill's  petition,  passed  an  act 
granting  to  him  a  new  trial  in  the  Superior  Court.  Sherburne  moved 
to  quash  the  proceedings  thus  begun  by  Merrill,  as  based  on  an  un- 
constitutional exercise  of  judicial  power  by  the  legislature.] 

Woodbury,  J.  *  *  *  1.  No  particular  definition  of  judicial 
powers  is  given  in  the  Constitution ;  and  considering  the  general  na- 
ture of  the  instrument,  none  was  to  be  expected.  Critical  statements 
of  the  meanings,  in  which  all  important  words  were  employed,  would 
have  swollen  into  volumes ;  and  when  those  words  possessed  a  cus- 
tomary signification,  a  definition  of  them  would  have  been  useless. 
But  "powers  judicial,"  "judiciary  powers,"  and  "judicatories"  are  all 
phrases  used  in  the  Constitution ;  and  though  not  particularly  de- 
fined, are  still  so  used  to  designate  with  clearness,  that  department 
of  government,  which  it  was  intended  should  interpret  and  administer 
the  laws.  On  general  principles  therefore,  those  inquiries,  delibera- 
tions, orders  and  decrees,  which  are  peculiar  to  such  a  department, 
must  in  their  nature  be  judicial  acts.  Nor  can  they  be  both  judicial 
and  legislative;  because  a  marked  difference  exists  between  the  em- 
ployments of  judicial  and  legislative  tribunals.  The  former  decide 
upon  the  legality  of  claims  and  conduct ;   the  latter  make  rules,  upon 

v.  Gutierrez,  215  TJ.  S.  87,  30  Sup.  Ct.  21,  54  L.  Ed.  106  (1909).  In  the  two 
hitter  a  federal  statute  was  held  separable  territorially,  but  not  as  to  sub- 
ject-matter. As  to  criminal  statutes,  see  James  v.  Bowman,  190  U.  S.  127. 
23  Sup.  Ct.  678,  47  L.  Ed.  979  (1903) ;  111.  Cent.  Rv.  v.  McKendree,  203  U.  S. 
.".14,  27  Sup.  Ct.  153,  51  h.  Ed.  298  (1906) ;  N.  Y.  Cent.  &  H.  R.  R.  Co.  v.  V. 
S.,  212  U.  S.  481,  496,  497,  29  Sup.  CL  304,  53  L.  Ed.  613  (1909). 


Ch.  3)       SEPARATION  AND  DELEGATION  OF  GOVEIt.NMENTAL  POWERS        55 

which,  in  connection  with  the  Constitution,  those  decisions  should  be 
founded.  It  is  the  province  of  judges  to  determine  what  is  the  law 
upon  existing  cases.  6  Bac.  Stat.  11 ;  Ogden  v.  Blackledge,  2  Cranch, 
272,  2  L.  Ed.  276;  Dash  v.  Van  Kleeck,  7  Johns.  (N.  Y.)  498,  5  Am. 
Dec.  291.  In  fine,  the  law  is  applied  by  the  one,  and  made  by  the 
other.1  To  do  the  first,  therefore,  to  compare  the  claims  of  parties 
with  the  laws  of  the  land  before  established,  is  in  its  nature  a  ju- 
dicial act.  But  to  do  the  last,  to  pass  new  rules  for  the  regulation 
of  new  controversies,  is  in  its  nature  a  legislative  act;  and  if  these 
rules  interfere  with  the  past,  or  the  present,  and  do  not  look  wholly 
to  the  future,  they  violate  the  definition  of  a  law,  "as  a  rule  of  civil 
conduct"  (1  Bl.  Com.  44),  because  no  rule  of  conduct  can  with  con- 
sistency operate  upon  what  occurred  before  the  rule  itself  was  pro- 
mulgated.    *     *     * 

The  grant  of  a  new  trial  belongs  to  the  courts  of  law  from  im- 
memorial usage.  The  power  to  grant  a  new  trial  is  incidental  to 
their  other  powers.  It  is  a  judgment  in  relation  to  a  private  con- 
troversy ;  affects  what  has  already  happened ;  and  results  from  a 
comparison  of  evidence  and  claims  with  the  existing  laws.  It  will 
not  be  denied,  that  the  consideration  and  decision,  by  the  Superior 
Court,  of  the  motion  for  this  same  new  trial  was  an  exercise  of  ju- 
dicial power.  If  so  a  consideration  and  decision  upon  the  same  sub- 
ject by  the  legislature  must  be  an  exercise  of  power  of  the  same  de- 
scription;  for  what  is  in  its  nature  judicial  to-day,  must  be  judicial 
to-morrow  and  forever.  The  circumstance,  also,  that  the  legislature 
themselves  did  not  proceed  to  make  a  final  judgment  on  the  merits 
of  the  controversy  between  these  parties  cannot  alter  the  character 
of  the  act  granting  a  new  trial.  To  award  such  a  trial  was  one  ju- 
dicial act,  and  because  they  did  not  proceed  to  perform  another,  by 
holding  that  trial  before  themselves,  the  first  act  did  not  become  any 
more  or  less  a  judicial  one.  We  apprehend,  therefore,  that  the  char- 
acter of  the  act  under  consideration  must  be  deemed  judicial.  This 
position  will  probably  be  less  doubted,  than  the  position  that  our 
Constitution  has  not  confided  to  the  legislature  the  power  to  pass 
such  an  act.     But  that  power,  if  confided,  must  be  exercised  by  the 

i  "What  constitutes  the  distinction  between  a  legislative  and  judicial  act'.' 
The  former  establishes  a  rule  regulating  and  governing  in  matters  or  trans- 
actions occurring  after  its  passage.  The  other  determines  rights  or  obliga- 
tions of  any  kind,  whether  in  regard  of  persons  or  property,  concerning  mat- 
ters or  transactions  which  already  exist  and  have  transpired  ere  the  judicial 
power  is  Invoked  to  pass  on  them." — Thornton,  J.,  in  Smith  v.  Strother,  68 
Cal.  194,  196,  197,  8  Pac.  S52,  853,  S54  I 

"The  distinction  between  a  judicial  and  a  legislative  act  Is  well  defined. 
The  one  determines  what  the  law  is,  and  what  the  rights  of  parties  are,  with 
reference  to  transactions  already  had;  the  other  provides  what  the  law  shall 
be  in  future  cases  arising  under  it.  Wherever  an  act  undertakes  to  deter- 
mine a  question  of  right  or  obligation,  or  of  property,  as  the  foundation  on 
which  it  proceeds,  such  act  is,  to  that  extent,  a  judicial  one,  and  not  the 
proper  exercise  of  legislative  functions." — Field,  J.  (in  dissenting  opinion),  In 
Sinking  Fund  Cases,  99  U.  S.  727,  761,  25  U  Ed.  504  (1S79). 


56  preliminary  topics  (Part  1 

legislature  as  a  branch  of  the  judiciary,  or  under  some  special  pro- 
vision, or  as  a  mere  legislative  body. 

2.  Our  next  inquiry,  then,  is,  whether  they,  as  a  branch  of  the 
judiciary,  are  enabled  to  exercise  it.  *  *  *  At  the  formation  of 
our  present  Constitution,  whatever  might  have  been  the  prior  con- 
nection between  the  legislative  and  judicial  departments,  a  great  so- 
licitude existed  to  keep  them,  thence  forward,  on  the  subject  of  private 
controversies,  perfectly  separate  and  independent.  1  Bl.  C.  Apx.  A: 
Letter  of  Judges  Sup.  Court  of  United  States,  April,  1782. 

It  was  well  known  and  considered,  that  "in  the  distinct  and  sep- 
arate existence  of  the  judicial  power  consists  one  main  preservative 
of  the  public  liberty"  (Bl.  Com.  269) ;  that,  indeed,  "there  is  no  lib- 
erty, if  the  power  of  judging  be  not  separated  from  the  legislative 
and  executive  powers"  (Montesquieu,  B.  11,  Ch.  6).  In  other  words 
that  "the  union  of  these  two  powers  is  tyranny"  (7  Johns.  508) ;  or, 
as  Mr.  Madison  observes,  may  justly  be  "pronounced  the  very  def- 
inition of  tyranny"  (Fed.  No.  47) ;  or,  in  the  language  of  Mr.  Jeffer- 
son, "is  precisely  the  definition  of  despotic  government"  (Notes  on 
Vir.  195). 

Not  a  single  Constitution  therefore,  exists  in  the  whole  Union, 
which  does  not  adopt  this  principle  of  separation  as  a  part  of  its  basis. 
Fed.  No.  81;  1  Bl.  Apx.  126,  Tuck.  Ed.;  3  Niles'  Reg.  2;  4  Niles' 
Reg.  400.  We  are  aware,  that  in  Connecticut,  till  lately,  and  still  in 
New  York,  a  part  of  their  legislature  exercise  some  judicial  author- 
ity. 4  Niles'  Reg.  443.  This  is  probably  a  relic  of  the  rude  and 
monarchical  governments  of  the  Eastern  world ;  in  some  of  which 
no  division  of  powers  existed  in  theory,  and  very  little  in  practice. 
Even  in  England  the  executive  and  judicial  departments  were  once 
united  (1  Bl.  267;  2  Hutch.  His.  107);  and  when  our  ancestors 
emigrated  hither,  they  from  imitation,  smallness  of  numbers  and  at- 
tachment to  popular  forms,  vested  often  in  one  department  not  only 
distinct,  but  sometimes  universal  powers  (2  Wil.  Wks.  50;  1  Minot, 
His.  27;    1  Hutch.  His.  30;   2  Hutch.  His.  250,  414). 

The  practice  of  their  assemblies  to  perform  judicial  acts  (Calder 
and  Wife  v.  Bull  et  al.,  3  Dal.  386,  1  L.  Ed.  648)  has  contributed  to 
produce  an  impression,  that  our  legislatures  can  also  perform  them. 
But  it  should  be  remembered,  that  those  assemblies  were  restrained 
by  no  Constitutions,  and  that  the  evils  of  this  practice  (Fed.  No.  44), 
united  with  the  increase  of  political  science  have  produced  the  very 
changes  and  prohibitions  before  mentioned.  The  exceptions  in  Con- 
necticut and  New  York  do  not  affect  the  argument;  because  those 
exceptions  are  not  implied,  but  detailed  in  specific  terms  in  their 
charters ;  and  this  power,  also,  as  in  the  House  of  Lords  in  Eng- 
land, is  in  those  states  to  be  exercised  in  the  form  of  judgments  and 
not  of  laws;  and  by  one  branch,  and  not  by  all,  of  the  legislature.  4 
Niles'  Reg.  444.  "The  entire  legislature  can  perform  no  judiciary 
act."     Fed.  No.  47.    *    *    * 


Cll.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  TOWERS   57 

One  great  object  of  Constitutions  here  (Fed.  No.  81)  was  to  limit 
the  powers  of  all  the  departments  of  government  (Bill  of  Rights,  arts. 
1,  7,  8,  38);  and  our  Constitution  contains  many  express  provisions  in 
relation  to  them,  which  are  wholly  irreconcilable  with  the  exercise 
of  judicial  powers  by  the  legislature,  as  a  branch  of  the  judiciary. 
That  clause,  which  confers  upon  the  "general  court"  the  authority 
"to  make  laws,"  provides  at  the  same  time,  that  they  must  not  be 
"repugnant  or  contrary  to  the  Constitution."  One  prominent  reason 
for  creating  the  judicial,  distinct  from  the  legislative  department,  was, 
that  the  former  might  determine  when  laws  were  thus  "repugnant," 
and  so  operate  as  a  check  upon  the  latter,  and  as  a  safeguard  to  the 
people  against  its  mistakes  or  encroachments.  But  the  judiciary 
would  in  every  respect  cease  to  be  a  check  on  the  legislature,  if  the 
legislature  could  at  pleasure  revise  or  alter  any  of  the  judgments  of 
the  judiciary.  *  *  *  [The  law  was  held  also  to  violate  a  con- 
stitutional prohibition   against  retrospective  legislation.] 

The  long  usage  of  our  legislatures  to  grant  new  trials  has  also 
been  deemed  an  argument  in  favor  of  the  act  under  consideration. 
But  that  usage  commenced  under  colonial  institutions,  where  legisla- 
tive powers  were  neither  understood  nor  limited  as  under  our  present 
constitution.  Since  the  adoption  of  that,  the  usage  has  been  resisted 
by  sound  civilians,  and  often  declared  void  by  courts  of  law.  Though 
no  opinions  have  been  published,  and  though  the  decisions  have  been 
contradictory,  yet  the  following  ones  appear  by  the  records  to  have 
adjudged  such  acts  void:  Gilman  v.  McClary,  Rock.,  Sept.,  1791; 
Chickering  v.  Clark,  Hills ;  Butterfield  v.  Morgan,  Ches.,  May,  1797 ; 
Jenness  ct  al.,  Ex'rs,  v.  Seavey,  Rock.,  Feb.,  1799.  Nor  could  it  be 
pretended  on  any  sound  principles,  that  the  usage  to  pass  them,  if 
uninterrupted  for  the  last  twenty-seven  years,  would  amount  to  a 
justification,  provided  both  the  letter  and  spirit  of  the  written  charter 
of  our  liberties  forbid  them.     »     *     * 

Proceedings  quashed.2 

2  "It  may  safely  be  said,  that  to  hear  and  decide  adversary  suits  at  law  and 
in  equity,  with  the  power  of  rendering  judgments  and  entering  up  decrees 
according  to  the  decision,  to  be  executed  by  the  process  and  power  of  the 
tribunal  deciding,  or  of  another  tribunal  acting  under  its  orders  and  accord- 
ing to  its  direction,  is  the  exercise  of  judicial  power,  in  the  constitutional 
sense;  and  that  it  is  so,  whether  the  decision  bo  iinal,  or  subject  to  reversal 
on  error  or  appeal."— Ames.  C.  J.,  in  Taylor  v.  Place,  4  R.  I.  "24,  836  (1856). 

Almost  everywhere  the  legislature  may  not  in  pending  litigation  grant  new 
trials,  reopen  judgments,  or  allow  appeals  where  the  right  has  expired. 
Sanders  v.  Cabaniss,  43  Ala.  it::  (1869)  (cases);  Taylor  v.  nine,  above. 
ICarly  cases  to  the  contrary  have  been  overruled  in  Connecticut  and  Penn- 
sylvania. Norwalk  St.  Ry.  Co.'s  Appeal,  69  <  lonn.  576,  31  At i.  1080,  38  ah.  ton. 
MO  I,.  It.  A.  791  (1897);  De  Chastellnx  v.  Fairchild,  ir.  Pa.  18,  53  Am.  Dec. 
570  (1850).  Maryland  perhaps  still  permits  special  appeals  to  be  authorized. 
State  v.  Northern  Cent.  Ry.  Co.,  IS  M4,  193  (1862).  Compare  Wallace  v. 
Adams,  204  D.  S.  410,  27  Sup.  Ct  363,  51  I-.  Ed.  547  (1907)  [following  Stephens 
v.  Cherokee  Nation,  174  V.  S.  445,  19  sup.  ct.  722.  43  L.  I'd.  ion  (189 
providing  for  review  In  other  courts  of  prior  final  judgments  of  federal  lor 
rltorial  courts  as  to  Indian  tribal  citizen  Ship). 

The  legislature  may  repeal  a  court's  appellate  Jurisdiction,  however,  60  as 


58  PRELIMINARY   topics  (Part  1 

MAYNARD  v.  HILL  (1888)  125  U.  S.  190,  204,  205,  8  Sup.  Ct. 
723,  31  L.  Ed.  654,  Mr.  Justice  Field  (upholding  a  divorce  granted 
by  the  territorial  legislature  of  Oregon  in  1852  under  a  grant  of  legis- 
lative power  by  Congress  extending  "to  all  rightful  subjects  of  legis- 
lation." The  divorce  was  granted  upon  petition  of  the  husband,  with- 
out cause  and  without  notice  to  the  wife,  then  in  Ohio): 

"What  were  'rightful  subjects  of  legislation,'  when  these  acts  or- 
ganizing the  territories  were  passed,  is  not  to  be  settled  by  reference 
to  the  distinctions  usually  made  between  legislative  acts  and  such  as 
are  judicial  or  administrative  in  their  character,  but  by  an  examina- 
tion of  the  subjects  upon  which  legislatures  had  been  in  the  practice 
of  acting  with  the  consent  and  approval  of  the  people  they  rep- 
resented. A  long  acquiescence  in  repeated  acts  of  legislation  on  par- 
ticular matters  is  evidence  that  those  matters  have  been  generally 
considered  by  the  people  as  properly  within  legislative  control.  Such 
acts  are  not  to  be  set  aside  or  treated  as  invalid,  because,  upon  a  care- 
ful consideration  of  their  character,  doubts  may  arise  as  to  the  com- 
petency of  the  legislature  to  pass  them.  Rights  acquired,  or  obliga- 
tions incurred  under  such  legislation,  are  not  to  be  impaired  because 
of  subsequent  differences  of  opinion  as  to  the  department  of  govern- 
ment to  which  the  acts  are  properly  assignable.  With  special  force 
does  this  observation  apply,  when  the  validity  of  acts  dissolving  the 
bonds  of  matrimony  is  assailed;  the  legitimacy  of  many  children, 
the  peace  of  many  families,  and  the  settlement  of  many  estates  de- 
pending upon  its  being  sustained.  It  will  be  found  from  the  history 
of  legislation  that,  while  a  general  separation  has  been  observed  be- 
tween the  different  departments,  so  that  no  clear  encroachment  by  one 
upon  the  province  of  the  other  has  been  sustained,  the  legislative  de- 
partment, when  not  restrained  by  constitutional  provisions  and  a  re- 
gard for  certain  fundamental  rights  of  the  citizen  which  are  rec- 
ognized in  this  country  as  the  basis  of  all  government,  has  acted  upon 
everything  within  the  range  of  civil  government.  Loan  Ass'n  v.  To- 
peka,  20  Wall.  663,  22  L.  Ed.  455.  Every  subject  of  interest  to  the 
community  has  come  under  its  direction.  It  has  not  merely  pre- 
scribed rules  for  future  conduct,  but  has  legalized  past  acts,  cor- 
rected defects  in  proceedings,  and  determined  the  status,  conditions, 
and  relations  of  parties  in  the  future."  l 

to  strike  down  cases  that  have  been  appealed  and  argued,  but  not  yet  decid- 
ed. Ex  parte  McCardle,  7  Wall.  506,  19  L.  Ed.  264  (1S6S) ;  Baltimore  &  P. 
R.  Co.  v.  Grant,  98  U.  S.  398,  25  L.  Ed.  231  (1879). 

See  Chapter  XIII,  section  2,  Retroactive  Laws,  post,  pp.  897-S98. 

i  Further  extracts  from  this  case  are  printed  at  p.  434,  post.  See  h\ 
parte  Tillman,  84  S.  C.  552,  66  S.  B.  1049,  26  L.  R.  A.  (N.  S.)  7S1  (1910),  as 
to  power  of  legislature  to  regulate  custody  of  children  without  a  Judicial 
hearing. 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   59 


fox  v.  Mcdonald, 

(Supreme  Court  of  Alabama,  1S92.     101  Ala.  51,  13  South.  416,  21  L.  R,  A. 
529.  46  Am.  St.  Rep.  98.) 

[Appeal  from  the  city  court  of  Birmingham.  A  statute  authorized 
the  probate  judge  of  Jefferson  county,  Alabama,  to  appoint  a  board 
of  five  police  commissioners  for  the  city  of  Birmingham.  The  board 
thus  appointed  designated  McDonald  as  chief  of  police  for  that  city. 
Fox,  mayor  of  the  city,  refused  to  administer  the  oath  of  office,  and 
McDonald  obtained  a  writ  of  mandamus  from  the  city  court  order- 
ing Fox  to  do  this.  Fox  appealed,  inter  alia  claiming  the  statute 
was  unconstitutional  as  conferring  non-judicial  powers  upon  the 
probate  judge.] 

Head,  J.  *  *  *  It  is  a  well-settled  principle  that  Constitu- 
tions, like  statutes,  are  properly  to  be  expounded  in  the  light  of  con- 
ditions existing  at  the  time  of  their  adoption;  and  we  look  at  the 
antecedent  government,  consider  its  system  as  a  whole  and  in  its  sev- 
eral parts,  and  the  experiences  and  practices  of  its  administration, 
and  we  consider  and  weigh  the  evils  of  the  old  system,  which  the 
people  intended  to  cure  by  the  new.  Thus  aided,  we  interpret  those 
provisions  which  require  construction,  and  determine  what  the  inten- 
tion of  the  framers  of  the  instrument  was,  and  give  effect  to  that 
intention;  and  it  not  infrequently  occurs,  in  the  exposition  of  writ- 
ten laws,  both  constitutional  and  statutory,  that  the  letter  of  a  pro- 
vision will  be  justly  made  to  yield  to  a  manifest  intention  in  opposi- 
tion to  it  derived  by  construction  alone.  When  we  take  our  Constitu- 
tion, therefore,  and  read  it  in  the  light  of  this  history,  we  see  plainly 
that  it  was  not  intended  to  declare  that  every  act  pertaining  to  gov- 
ernment, and  the  regulation  of  the  social  and  property  rights  of  the 
citizen,  should  be  exercised  exclusively  by  the  legislative,  executive, 
or  judicial  department  of  the  state  government,  or  some  member  of 
it,  according  as  the  act  possessed  a  legislative,  executive,  or  judicial 
character,  for  we  find  there  are  many  such  acts  especially  peculiar 
to  the  very  nature  of  our  system,  and  necessarily  inherent  in  it,  which, 
time  out  of  mind,  have  not  been  exclusively  exercised  by  these  de- 
partments, and  which,  for  the  ease  and  efficiency  of  our  system,  could 
not  be  so  exercised.     *     *     * 

Again,  if  all  functions  of  government  of  a  legislative,  executive, 
or  judicial  character  properly  belong  to,  and  are  therefore  to  be  ex- 
ercised exclusively  by,  the  several  departments  created  by  the  Con- 
stitution, what  shall  become  of  the  multiform  powers  and  duties 
which,  by  legislative  enactment,  without  express  constitutional  au- 
thority, have  so  long  been  conferred  upon,  and  exercised  by,  the 
various  officers  appointed  to  perform  functions  of  government  in  the 
several  counties,  and  who  are  not  made  members  of  either  of  those 
departments?    Has  it  ever  been  thought  that  the  executive  and  min- 


60  preliminary  topics  (Part  1 

isterial,  and  indeed,  in  some  instances,  the  judicial  or  quasi  judicial, 
functions  of  the  tax  assessor,  tax  collector,  county  treasurer,  coroner, 
county  surveyor,  and  clerks  of  courts,  to  which  may  be  added  the 
officers  and  boards  of  control  of  our  state  institutions  for  the  care 
of  the  insane  and  deaf,  dumb,  and  blind,  and  our  state  and  county 
medical  boards  for  the  preservation  of  the  public  health,  properly 
belong  to  the  several  state  bodies  of  magistracy  created  by  the  Con- 
stitution, within  the  spirit  and  intent  of  that  instrument,  and  must 
therefore  be  confided  to  the  exclusive  exercise  of  those  bodies? 
None  will  so  declare.  Indeed,  we  have  in  our  system,  in  opposition 
to  the  letter  of  the  constitutional  provisions  under  review,  striking 
illustrations  of  the  blending  of  legislative,  executive,  and  judicial 
power  in  the  same  persons  or  bodies,  which  it  has  not  been,  and  will 
not  be,  supposed  our  several  Constitutions  intended  to  inhibit.  In 
Clay's  Digest,  and  in  each  compilation  of  our  laws  since,  we  find 
the  creation  of  a  court  of  county  commissioners.  This  body  is  an 
inferior  court  created  by  law,  and  belongs,  under  express  provision 
of  each  of  our  Constitutions,  to  the  judicial  department  of  govern- 
ment, yet  we  find,  in  its  very  creation,  it  was,  and  has  ever  since 
been,  endowed  with  legislative  and  executive  powers.  In  fact,  its 
chief  duties  are  of  those  characters.  It  is  given  the  power  to  levy 
and  assess  taxes  for  the  support  of  the  county  government,  which 
is  a  legislative  function.1     Cooley,  Const.  Lim.  marg.  pp.  479,  488. 

i  In  many  states  an  early  practice  of  making  the  inferior  courts  the  organs 
for  levying  local  taxes  and  assessing  property  therefor  has  heen  continued 
and  judicially  upheld. 

Levying  taxes:  I'ennington  v.  Woolfolk,  79  Ky.  13  (1880);  State  v.  Gazlay, 
5  Ohio,  14  (1831),  approved  in  State  v.  Cincinnati,  52  Ohio  St.  419,  451,  140 
N.  E.  SOS,  27  L.  It.  A.  737  (1895)  [see  2  Chase's  Ohio  Statutes,  1409-1471, 
147S1;  Ballard  v.  Thomas,  19  Grat.  (GO  Va.)  14  (1SCS).  Contra:  Hardenburgh 
v.  Kidd,  10  Cal.  402  (185S) ;  Munday  v.  Assessors  of  City  of  Rahway,  43  N.  J. 
Law,  338  (1SS1). 

Assessing  or  appraising  property,  or  revising  assessment  de  novo:  Pierre 
Water  Works  Co.  v.  Hughes  County,  5  Dak.  145,  37  N.  W.  733  (1888) ;  Penning- 
ton v.  Woolfolk,  above ;  State  ex  rel.  Spencer  v.  Ensign,  55  Minn.  278,  56  N. 
W.  1006  (1S93) ;  Edes  v.  Boardman,  58  N.  H.  580  (1879) ;  Nalle  v.  City  of 
Austin,  23  Tex.  Civ.  App.  595,  56  S.  W.  954  (1900) ;  Wheeling  Bridge  &  T. 
Ry.  Co.  v.  Paull,  39  W.  Va.  142,  19  S.  E.  551  (1901).  Contra:  Auditor  of  State 
v.  Atchison,  T.  &  S.  F.  R.  Co.,  6  Kan.  500,  7  Am.  Rep.  575  (1S70) ;  Baltimore 
City  v.  Bonaparte,  93  Md.  150,  48  Atl.  735  (1901).  Regarding  the  latter  prac- 
tice it  has  been  said: 

"The  ascertainment  of  the  values  of  property  Is  strictly  judicial,  and,  in 
a  government  perfectly  separated  into  the  three  distinct  departments,  of  leg- 
islative, executive,  and  judicial,  would,  of  necessity,  belong  to  the  judicial, 
and  not  to  either  of  the  other  departments,  because  it  has  not  in  it  a  single 
element  relating  to  the  enactment  or  execution  of  law.  It  has,  however, 
heretofore -been  considered  the  necessary  adjunct  of  the  strictly  legislative 
power — made  so  by  the  constitution — of  levying  taxes." — Wheeling  Bridge  & 
T.  Ry.  Co.  v.  .Paull,  above,  39  W.  Va.  at  page  147,  19  S.  E.  at  page  552,  by 
Dent,   J. 

"In  so  far  as  the  question  of  jurisdiction  is  concerned,  we  see  no  distinc- 
tion between  proceedings  to  determine  the  value  of  property  for  the  purpose 
of  exercising  the  power  of  eminent  domain  and  to  determine  the  value  of 
such  property  for  the  purpose  of  taxation." — Nalle  v.  City  of  Austin,  above, 
23  Tex.  Civ.  App.  at  page  599,  56  S.  W.  at  page  956,  by  Key,  J. 


Ch.  3)   SEPARATION  AND  DELEGATION  OP  GOVERNMENTAL  POWERS   61 

It  is  given  power  to  direct  and  control  the  property  of  the  county,  to 
examine  and  audit  the  accounts  of  the  receiving  and  disbursing  of- 
ficers of  the  county,  to  make  rules  and  regulations  for  the  support 
of  the  poor;  and  it  is  given  plenary  and  executive  powers  over  the 
erection  and  maintenance  of  public  roads,  bridges,  and  ferries,  and 
the  appointment  of  the  necessary  officers  in  that  behalf. 

These  are  functions  which  do  not  inherently  pertain  to  the  ju- 
diciary, yet  none  will  say,  in  view  of  their  long-continued  and  use- 
ful exercise  by  the  court  of  county  commissioners,  without  let  or 
hindrance,  that  the  Constitution,  in  distributing  the  powers  of  gov- 
ernment, intended  to  inhibit  such  exercise.  So,  also,  the  sheriff,  who 
is  expressly  made  a  member  of  the  executive  department,  has  ever  been 
empowered,  by  legislation,  to  perform  the  judicial  function  of  approv- 
ing bonds  necessary  to  be  taken  by  him  in  the  administration  of  the 
laws.  Clerks,  registers  in  chancery,  commercial  notaries,  and  com- 
missioners of  deeds,  under  constitutions  in  terms  confining  judicial 
power  to  the  courts,  have  long  exercised,  under  legislative  sanction 
only,  the  power  of  taking  acknowledgments  of  conveyances,  which 
this  court  has  declared  to  be  of  a  judicial  nature.  The  coroner  is  so 
far  an  executive  officer  that  he  may  execute  process  upon,  and  ar- 
rest, the  sheriff  himself,  who  is,  by  the  terms  of  the  Constitution,  a 
member  of  the  state  executive  department ;  and  yet  it  has  never 
been  supposed  that  he  may  not,  with  constitutional  favor,  perform 
the  judicial  function  of  holding  inquests.  Other  illustrations  might 
be  given,  but  these  suffice  to  make  clear  the  principle  that  the  Con- 
stitution must  receive  an  enlarged  and  liberal  interpretation,  and  the 
intention  of  its  framers  ascertained  upon  a  broad  view  of  the  history 
and  experience,  the  needs  and  usages,  of  the  time,  and  the  great  gen- 
eral purpose  they  had  in  view,  of  framing  a  comprehensive  and  benef- 
icent government.  Thus  viewed,  we  irresistibly  conclude  that  it  was 
not  the  intention  of  the  Constitution  to  declare  that  all  these  powers 
and  duties,  so  indispensable  to  efficient  government,  and  so  long  ex- 
ercised, under  legislative  sanction  only,  by  these  officers  and  agencies 
of  legislative  creation,  properly  belong  to  the  legislative,  executive,  or 
judicial  body  of  magistracy  created  by  the  Constitution,  because  alone 
they  may  partake  of  a  legislative,  executive,  or  judicial  nature.2 

We  come  then  to  the  concrete  question,  does  the  power  to  fill  va- 
cancies in  office  by  appointment  "properly  belong"  to  the  executive 
department  of  the  state  government,  to  be  exercised  exclusively  by 

2  For  on  enumeration -of  a  great  variety  of  administrative  functions  im- 
posed upon  Judges  In  some  states,  see  In  re  Johnson,  12  Kan.  102,  101  (1873) 
•.  also.  In  re  Sims,  .~,4  Kan.  1.  11'.  ,",T  I'ae.  135,  25  I<.  It-  A. 
110,  45  Am.  st.  Rep.  281  (1894}];  Matter  of  Davies,  168  N.  Y.  89,  102,  61  N 
K.  lis,  56  L.  B.  A.  855  (1901)  (supreme  court  Judges);  stale  v.  dtj 
einuati,  52  Onto  St.  419,  451,  452,  40  N.  K.  508,  U7  L.  EL  A.  T::7  (1895)  (court 
of  common  pleas);    "A  distinction  seems  to  obtain  in  practice  between  powers 

< l'li' ifil  upon  a  court  and  those  conferred  upon  the  judges  thereof.?' — Mat 

ter  of  Davies,  10s  N.  Y.  at  page  102,  01  N.  E.  at  page  121,  56  L.  R.  A.  855,  by 


C>2  PRELIMINARY    TOPICS  (Part    1 

that  department,  within  the  meaning  of  the  Constitution?  It  may 
be  regarded  as  a  fundamental  policy  of  our  system  of  state  govern- 
ments, in  this  country,  that  the  selection  of  persons  to  perform  the 
offices  and  functions  of  government  shall  be  left  to  the  people  them- 
selves, to  be  exercised  at  the  ballot  box.  *  *  *  The  inherent  na- 
ture and  essence  of  the  act  of  selecting  officers  of  government, 
therefore,  in  view  of  this  established  policy,  describe  it  as  one  prop- 
erly belonging  to  the  people,  through  the  ballot,  and  not  to  any  par- 
ticular department  of  government,  to  be  exercised  by  representatives 
of  the  people.  The  filling  of  vacancies  in  office  pending  the  action 
of  the  people,  by  appointment  of  their  representatives,  clothed  by 
law  with  that  authority,  is,  as  a  rule,  an  expedient,  merely,  evoked 
by  the  convenience  and  necessities  of  government  growing  out  of 
the  nature  of  our  system.  In  the  nature  of  things,  the  people  cannot 
be  always  called  upon  to  act  immediately  when  the  selection  of  a 
person  is  necessary  to  the  exercise  of  a  function  of  government. 
Hence,  it  has  been  customary  and  essential  to  provide  other  means 
of  appointment  in  cases  to  which  this  necessity  gives  rise.  Further- 
more, in  our  experience,  wisdom  has  dictated  that  particular  offices 
be  filled  exclusively  by  appointment  of  some  governmental  agency 
other  than  the  vote  of  the  people  themselves ;  and  this,  and  the  agencies 
for  such  appointments,  and  the  methods  of  filling  vacancies  in  offices 
elective  by  the  people,  have  been  expressly  manifested  and  prescribed 
in  our  Constitutions  or  laws.  It  was  necessary  that  they  be  so  pre- 
scribed, for  otherwise  the  right  of  such  appointment  resided  nowhere. 
It  belonged  to  no  department  of  the  government.  With  us,  the  gov- 
ernor has  no  prerogatives.  He  must  find  warrant  in  the  written  law 
for  his  every  official  act.  He  has  no  more  power  to  appoint  officers, 
when  not  expressly  conferred,  than  has  the  president  of  the  senate, 
who  is  of  the  legislative,  or  the  chief  justice  of  this  court,  who  is  of 
the  judicial,  department;  and  when  we  go  back  to  our  Constitutions 
and  laws,  in  this  state,  from  the  beginning  of  the  state  government  to 
the  present,  we  find  it  has  been  the  policy  to  distribute  this  appointing 
power  among  the  several  departments  of  the  state.  We  need  not 
specify.  The  instances  will  readily  occur  to  the  minds  of  those  fa- 
miliar with  the  Constitutions  and  laws.  It  may  be  true,  that  the  gov- 
ernor has  been  invested  with  the  greatest  share  of  this  power,  but 
no  principle  or  policy  has  been  declared  that  the  power  inherently 
belongs  to  him.  And  we  may  remark  that  the  fact  that  all  our  Con- 
stitutions, in  assigning  appointive  power  to  the  governor,  have  spe- 
cifically  designated  the   particular  officers   to. whom   it   applied,   fur- 

Vann,  J.  "All  such  powers,  when  the  court  Is  directed  to  execute  them,  are 
necessarily  to  be  performed  by  the  judge,  for  they  can  be  in  no  other  way ; 
and  hence  it  can  make  no  substantial  difference  whether  the  statute  confers 
them  in  terms  on  the  court  or  on  the  judge  of  the  court." — State  v.  City  of  Cin- 
cinnati, 52  Ohio  St  at  page  451,  40  N.  E.  at  page  512,  27  L.  K.  A.  737,  by 
Williams,  J. 


Ch.  3)         SEPAKATION  AND  DELEGATION  OK  GO VE1IXMK.V1  AL  POWliKS      63 

nishes  cogent  argument  that  the  people  did  not  regard  the  power  as 
necessarily  or  inherently  belonging  to  him. 

In  what  we  have  said,  we  have  pretermitted  inquiry  whether  or 
not  the  act  of  appointing  an  officer  is  inherently  of  an  executive  char- 
acter; and  we  have  endeavored  to  show  that,  whether  so  or  not,  it 
is  not  such  an  act  as,  upon  a  proper  construction  of  the  Constitution, 
properly  belongs  to  the  executive  department.  •  The  weight  of  au- 
thority joins  issue  upon  the  proposition  that  it  is  inherently  of  that 
character.  The  supreme  court  of  California  declares  it  possesses  ju- 
dicial characteristics.  Says  that  court :  "The  person  to  be  appointed 
is  required  to  have  certain  qualifications.  He  must  be  a  citizen  of 
the  United  States,  and  of'the  state,  and  a  resident  and  qualified  voter 
of  the  city  and  county,  and  he  must  be  of  good  repute  for  honesty 
and  sobriety,  and  he  is  required  to  produce  evidence  to  this  effect. 
*  *  *  The  examination  of  these  questions,  passing  upon  the  suf- 
ficiency of  the  evidence,  and  determining  whether  the  candidates  pos- 
sess the  requisite  qualifications,  are  certainly  functions  partaking  es- 
sentially of  a  judicial  character."  People  v.  Provines,  34  Cal.  520. 
In  People  v.  Morgan,  90  111.,  on  page  562,  it  is  said:  "The  executive 
power  in  a  state  is  understood  to  be  that  power,  wherever  lodged, 
which  compels  the  laws  to  be  enforced  and  obeyed.  And  the  instru- 
mentalities employed  for  that  purpose  are  officers  elected  or  ap- 
pointed, who  are  charged  with  the  enforcement  of  the  laws.  But  the 
power  to  appoint  is  by  no  means  an  executive  function,  unless  made 
so  by  the  organic  law  or  legislative  enactment."  In  Mayor,  etc.,  of 
Baltimore  v.  State,  15  Md.  376,  74  Am.  Dec.  572,  it  is  said:  "We  arc- 
not  prepared  to  admit  that  the  power  of  appointment  to  office  is  a 
function  intrinsically  executive,  in  the  sense  in  which  we  understand 
the  position  to  have  been  taken,  namely,  that  it  is  inherent  in,  and 
necessarily  belongs  to,  the  executive  department.  Under  some  forms 
of  government,  it  may  be  so  regarded,  but  the  reason  does  not  apply 
to  our  system  of  checks  and  balances  in  the  distribution  of  powers, 
where  the  people  are  the  source  and  fountain  of  government,  exerting 
their  will  after  the  manner,  and  by  instrumentalities,  specially  pro- 
vided in  the  Constitution." 

In  People  v.  Freeman,  80  Cal.  233,  22  Pac.  173,  13  Am.  St.  Rep. 
122,  that  court  again  held  that  the  power  of  appointment  to  office  is 
not  essentially  an  executive  function,  and  may  be  regulated  by  law. 
Judge  Christiancy,  in  People  v.  Hurlbut,  24  Mich.  44,  9  Am.  Rep.  103, 
had  under  consideration  whether  the  legislature  could  appoint  persons 
to  fill  offices  created  by  it,  and  his  purpose  was  to  determine  whether 
such  appointment  could  be  treated  as  a  legislative  act  which  it  was 
competent  for  the  legislature  to  perform ;  and  in  discussing  the  ques- 
tion he  says:  "Besides  the  power  to  make  general  rules  for  the  govern 
ment  of  officers  and  persons,  and  regulating  the  rights  and  classes  of 
persons,  or  of  the  whole  community,  there  is  a  large  class  of  powers 
recognized  as   legislative,  occupying  an   intermediate   space  between 


64  PRELIMINARY   topics  (Part  1 

those  of  a  judicial  character,  on  the  one  side,  and  the  executive,  on  the 
other,  and  which  are  not,  and  cannot  be,  marked  off  from  these  by 
any  clear  line."  And  further  on  he  says:  "As  to  this  mode  of  ap- 
pointment being  the  exercise  of  a  power  essentially  executive  in  its 
nature,  it  is  sufficient  to  say  that  executive  power  cannot  always  be 
denned  by  any  fixed  standard,  in  the  abstract.  What  would  come 
within  the  executive  power,  in  our  form  of  government,  would  fall 
within  the  legislative,  in  another,  and  vice  versa.  The  question  here 
is  whether,  under  our  Constitution,  it  is  executive  or  legislative;  and 
as  the  Constitution  has  not  confided  the  appointment  of  those  or  of 
the  like  officers  to  the  executive  authorities,  and  has  left  it  to  the 
legislative  discretion,  whether  to  create  such  offices,  and  how  they 
shall  be  filled,  it  cannot  be  truly  said  that  such  an  appointment  is  any 
more  in  the  nature  of  the  exercise  of  an  executive  than  a  legislative 
power."  In  harmony  with  these  decisions,  see  State  v.  Gonstantine, 
42  Ohio  St.  441,  51  Am.  Rep.  833;  People  v.  Woodruff,  32  N.  Y. 
364. 

There  are  decisions  to  the  contrary:  Taylor  v.  Conn.,  3  J.  J. 
Marsh.  (Ky.)  401 ;  State  v.  Kennon,  7  Ohio  St.  561 ;  Achley's  Case, 
4  Abb.  Prac.  (N.  Y.)  35;  State  v.  Noble,  118  Ind.  350,  21  N.  E.  244, 
4  L.  R.  A.  101,  10  Am.  St.  Rep.  143,  and  other  cases  from  that  state. 
These  Indiana  cases  give  the  question  full  discussion,  and  they  ap- 
pear to  be  the  only  well-considered  cases  in  support  of  their  doc- 
trine. Mr.  Freeman,  in  an  exhaustive  note  in  13  Am.  St.  Rep.,  on 
page  125,  (People  v.  Freeman,  80  Cal.  233,  22  Pac.  173,  13  Am.  St. 
Rep,  122)  reviews  all  the  authorities  upon  this  subject,  and  states  his 
conclusion  from  them  in  the  following  language:  "The  truth  is  that 
the  power  of  appointing  or  electing  to  office  does  not  necessarily  and 
ordinarily  belong  to  either  the  legislative,  the  executive,  or  the  ju- 
dicial department.  It  is  commonly  exercised  by  the  people,  but  the 
legislature  may,  as  the  lawmaking  power,  when  not  restrained  by  the 
Constitution,  provide  for  its  exercise  by  either  department  of  the 
government,  or  by  any  person  or  association  of  persons  whom  it  may 
choose  to  designate  for  that  purpose.  It  is  an  executive  function 
when  the  law  has  committed  it  to  the  executive,  a  legislative  function 
when  the  law  has  committed  it  to  the  legislative,  and  a  judicial  func- 
tion, or  at  least  a  function  of  a  judge,  when  the  law  has  committed 
it  to  any  member  or  members  of  the  judiciary."  What  he  has  said 
meets  with  our  approval.     *     *     * 

Judgment  affirmed.8 

'  The  cases  upon  the  subject  of  the  constitutional  power  of  courts  to  ap- 
point nonjudicial  officers  are  collected  in  16  L.  R.  A.  737,  note  to  State  v. 
George,  22  Or.  142,  29  Pac.  356,  16  L.  It.  A.  737.  20  Am.  St.  Rep.  5S6  (1S92), 
and  in  19  L.  R.  A.  (N.  S.)  579.  note  to  State  v.  Neble,  S2  Neb.  267,  117  N.  W. 
723  (190S).  Most  of  them  uphold  the  power.  The  federal  Constitution  ex- 
pressly permits  it.  Article  II,  §  2,  par.  2.  In  Massnchusetts  it  is  not  allowed, 
unless  the  appointees  must  report  to  the  court.    Case  of  Supervisors  of  Elec- 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   65 


PEOPLE  ex  rel.  McDONALD  v.  KEELER. 

(Court  of  Appeals  of   New  York,  1885.     09  N.  X.  403,  2  N.   E.   615,  52  Am. 
Rep.  49.) 

[Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court. 
Certain  charges  of  misconduct  in  office  having  been  made  against 
one  Thompson,  the  commissioner  of  public  works  in  New  York  City, 
the  state  senate  by  resolution  directed  a  committee  of  its  members  to 
make  an  investigation  of  the  matter,  with  power  to  send  for  persons 
and  papers,  and  to  report  the  result,  with  recommendations,  to  the 
senate.  McDonald,  having  been  summoned  before  such  committee, 
attended  as  a  witness,  declined  upon  advice  of  counsel  to  answer 
certain  questions,  and  finally  withdrew  without  the  consent  of  the 
committee  because  the  latter  refused  to  permit  the  further  presence 
of  McDonald's  counsel.  Under  a  warrant  from  the  senate,  its  ser- 
geant at  arms  arrested  McDonald  for  contempt,  and,  after  a  hearing 
in  which  McDonald  adhered  to  his  position,  the  senate  directed  his 
commitment  to  jail  until  he  should  consent  to  testify  or  the  legislature 
should  adjourn.  McDonald  petitioned  the  local  County  Court  for 
a  writ  of  habeas  corpus,  which  was  dismissed.  On  appeal  to  the  Gen- 
eral Term  this  order  was  reversed  and  McDonald  discharged.  This 
appeal  was  from  that  order.] 

Rapallo,  J.  *  *  *  [After  stating  the  cases  of  Anderson  v. 
Dunn,  6  Wheat.  204,  5  L.  Ed.  242,  and  Kilbourn  v.  Thompson.  103 
U.  S.  168,  26  L.  Ed.  377,  both  involving  the  power  of  Congress  to  pun- 
ish non-members  for  contempt,  and  after  citing  Stockdale  v.  Han- 
sard, 9  Ad.  &  El.  1,  Kielly  v.  Carson,  4  Moore,  P.  C.  63,  and  Burn- 
ham  v.  Morrissey,  14  Gray  (Mass.)  226,  74  Am.  Dec.  676:] 

In  Kilbourn  v.  Thompson  *  *  *  it  was  *  *  *  held,  follow- 
ing a  course  of  reasoning  which  need  not  be  repeated  here,  that  the 
right  of  the  house  of  representatives  to  punish  a  citizen  for  a  contempt 
of  its  authority  derived  no  support  from  the  precedents  and  practice 
of  the  two  houses  of  the  English  parliament,  nor  from  the  adjudged 
cases  in  which  the  English  courts  have  upheld  those  practices ;  that 
the  powers  of  congress  were  derived  solely  from  the  federal  Constitu- 
tion, and  that  such  as  were  not  conferred  by  that  instrument,  either 
■  expressly  or  by  fair  implication,  were  reserved  to  the  states  respec- 
tively, or  to  the  people ;  and  that  while  the  house  had  power  to  punish 
contempts  by  fine  and  imprisonment  in  certain  cases,  it  had  no  general 
jurisdiction  on  the  subject,  but  was  confined  to  those  cases  where 
the  power  was  expressly  conferred  by  the  Constitution,  or  was  nec- 
essary to  enable  the  house  to  exercise  its  lawful  functions.     Express 

tlon,  114  Mass.  247,  19  Am.  Rep.  341  (1S73).    In  13  Am.  St  Rep.  125  (T.,  many 
cases  are  collected  discussing  the  power  of  appointment  as  between  the  leels- 
lature  and  the  executive.    See,  also,  F.  R,  Mechem  In  1  Mich.  L.  Rev.  531. 
Hall  Const.L. — 5 


06  preliminary  topics  (Part  1 

power  is  given  by  the  Constitution  to  each  house  to  punish  its  mem- 
bers for  disorderly  behavior,  and  to  compel  the  attendance  of  absent 
members,  under  such  penalties  as  the  house  may  prescribe,  and  the 
opinion  concedes  that  among  the  incidental  and  implied  powers  of 
congress  may  be  that  of  compelling  the  attendance  of  witnesses  and 
punishing  contumacious  witnesses  in  the  same  manner  as  could  be 
done  by  a  court  of  justice  in  dealing  with  cases  which  congress  is 
empowered  to  decide;  such  as  the  election  and  qualification  of  its 
members,  the  trial  of  a  contested  election,  and  proceedings  in  the 
house  to  impeach  officers  of  the  government.  Whether  their  power 
over  recusant  witnesses  extends  beyond  those  cases,  the  court,  in 
reviewing  the  case  of  Anderson  v.  Dunn,  expressly  declines  to  decide: 
but  the  court  does  emphatically  declare  that  whether  the  power  of 
punishment  in  either  house  by  fine  or  imprisonment  goes  beyond  the 
specified  cases  or  not,  no  person  can  be  punished  for  contumacy  as 
a  witness  before  either  house  unless  his  testimony  is  required  in  a 
matter  into  which  the  house  has  jurisdiction  to  inquire,  and  that  nei- 
ther of  those  bodies  possesses  the  general  power  of  making  inquiry 
into  the  private  affairs  of  the  citizen.  To  the  like  effect  is  the  opinion 
of  the  supreme  court  of  Massachusetts  in  the  case  of  Burnham  v.  Mor- 
rissey,  14  Gray,  226,  74  Am.  Dec.  676 :  "The  house  of  representatives 
has  the  power,  under  the  Constitution,  to  imprison  for  contempt;  but 
the  power  is  limited  to  cases  expressly  provided  for  by  the  Constitu- 
tion, or  to  cases  where  the  power  is  necessarily  implied  from  those 
constitutional  functions  and  duties  to  the  proper  performance  of 
which  it  is  essential." 

It  must  be  borne  in  mind  that  the  cases  cited  did  not  arise  under 
any  act  of  congress  authorizing  either  house  to  punish  contumacious 
witnesses,  for  there  is  no  such  act.  The  question  was  whether  a  gen- 
eral power  to  punish  contempts  was  inherent  in  congress  as  necessary 
to  the  exercise  of  its  functions  independent  of  any  statute.  That 
such  a  power  could  be  exercised  to  compel  the  attendance  of  witnesses 
in  certain  cases  was  conceded.  Whether  it  existed  in  cases  of  inves- 
tigations properly  instituted  for  purposes  of  legislation  was  left  an 
open  question.  So  far  as  the  statutes  of  the  United  States  were  con- 
cerned, a  different  course  of  proceeding  was  prescribed.  The  act  of 
January  24,  1857,  c.  19,  11  Stat.  155  (U.  S.  Comp.  St.  1901,  p.  55) 
provided  that  any  person  summoned  as  a  witness  before  either  house, 
or  a  committee  thereof,  and  refusing  to  appear  or  to  answer  any  ques- 
tion pertinent  to  the  matter  in  consideration,  should,  in  addition  to 
the  pains  and  penalties  then  existing,  be  liable  to  indictment  and  pun- 
ishment as  for  a  misdemeanor ;  and  it  was  made  the  duty  of  the  presi- 
dent of  the  senate  to  certify  the  fact  to  the  district  attorney  for  the 
District  of  Columbia,  who  was  required  to  lay  the  matter  before  the 
grand  jury.  This  act  was  incorporated  with  modifications  in  the  Re- 
vised Statutes  of  the  United  States,  §§  102-104  (U.  S.  Comp.  St. 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   67 

1901,  p.  55).  The  other  pains  and  penalties  alluded  to  must  have  had 
reference  to  the  supposed  power  to  punish  for  contempt.  But  if,  as 
contended,  no  such  power  can  be  exercised  by  congress  under  the 
limited  authority  delegated  to  it  by  the  Constitution,  the  power  could 
not  be  created  and  conferred  by  any  act  of  congress.1 

The  case  now  before  us  is  entirely  different.  It  arises  under  a  stat- 
ute enacted  by  the  legislature  of  the  state  of  New  York.  The  inquiry 
is,  not  whether  the  power  to  enact  such  a  law  is  to  be  found  in  the 
state  Constitution,  but  whether  such  legislation  is  prohibited  or  re- 
strained by  that  instrument,  or  by  the  Constitution  of  the  United 
States.  Except  as  thus  limited  the  state  legislature  possessed  the 
whole  legislative  power  of  the  state.  Bank  of  Chenango  v.  Brown, 
26  N.  Y.  469;    People  v.  Dayton,  55  N.  Y.  380. 

The  only  express  provision  of  the  Constitution  which  is  claimed 
to  be  violated  is  that  which  declares  that  no  person  shall  be  deprived 
of  life,  liberty,  or  property  without  due  process  of  law.  If  the  statute 
in  question  was  within  the  power  of  the  legislature  to  enact,  the  pro- 
ceedings against  the  relator  were  clue  process  of  law.  He  was  impris- 
oned by  virtue  of  a  pre-existing  law,  informed  of  the  charge  made 
against  him,  and  was  heard  in  person  and  by  counsel  in  his  defense. 
The  proceedings  need  not  be  according  to  the  course  of  the  common 
law.  Happy  v.  Mosher,  48  N.  Y.  313;  People  v.  Supervisors,  70  N. 
Y.  228.  And  we  necessarily  come  back  to  the  question  whether  the 
legislature  had  the  power  to  enact  the  law.  But  the  main  ground  upon 
which  the  statute  is  assailed  is  that  it  confers  upon  each  of  the  two 
houses  a  power,  which  is  in  its  nature  judicial,  to  hear,  adjudge,  and 
condemn;  that  no  such  power  can  be  conferred  by  statute  upon 
the  legislature  itself,  or  either  branch  thereof ;  that  the  Constitution 
gives  the  senate  and  assembly  only  legislative  power,  and  that  judicial 
power  is  vested  in  the  courts  named  in  the  Constitution,  and  in  such 
inferior  courts  as  may  be  created,  and  that  the  grant  of  judicial  power 
to  the  courts  is  an  implied  prohibition  of  its  assumption  by  the  legis- 
lature, except  as  authorized  by  the  Constitution. 

The  Constitution  of  the  United  States  declares  in  terms  that  the 
judicial-  power  of  the  United  States  shall  be  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  the  congress  may  from  time  to 
time  order  and  establish.  Although  no  similar  declaration  is  contained 
in  the  Constitution  of  this  state,  still  it  is  a  recognized  principle  that  in 
the  division  of  power  among  the  great  departments  of  government  the 
judicial  power  has  been  committed  to  the  judiciary,  as  the  executive 
power  has  been  committed  to  the  executive  department,  and  the  legis- 
lative to  the  legislature,  and  that  body  has  no  power  to  assume  the 
functions  of  the  judiciary  to  determine  controversies  among  citizens, 
or  even  to  expound  its  own  laws  so  as  to  control  the  decisions  of  the 

>  Held  constitutional  in  In  re  Chapman,  ICO  U.  S.  001,  17  Sup.  Ct.  077,  41 
L.  Ed.  1154  (1S97). 


68  PRELIMINARY  topics  (Part  1 

courts  in  respect  to  past  transactions.  People  v.  Supervisors,  16  N.  Y. 
432.  To  declare  what  the  law  shall  be,  is  a  legislative  power ;  to  de- 
clare what  it  is  or  has  been,  is  judicial.  Thompson,  J.,  in  Dash  v.  Van 
Kleeck,  7  Johns.  498,  5  Am.  Dec.  291.  But,  notwithstanding  this  gen- 
eral division  of  powers,  certain  powers  in  their  nature  judicial  are,  by 
the  express  terms  of  the  Constitution,  vested  in  the  legislature.  The 
power  of  impeachment  is  vested  in  the  assembly.  Each  house  is  made 
the  judge  of  the  qualification  and  election  of  its  own  members.  The 
power  of  removal  of  certain  judicial  officers  for  cause  is  given  by  the 
Constitution  to  the  senate  and  assembly,  and  may  involve  inquiries 
judicial  in  their  nature,  and  by  statute  certain  other  officers  may  be 
,-emoved  by  the  senate  on  the  recommendation  of  the  governor.  1  Rev. 
St.  123,  §  41.  I  think  it  would  be  going  too  far  to  say  that  every  stat- 
ute is  necessarily  void  which  involves  action  on  the  part  of  either  house 
partaking  in  any  degree  of  a  judicial  character,  if  not  expressly  au- 
thorized by  the  Constitution.  Where  the  statute  relates  to  the  proceed- 
ings of  the  legislative  body  itself,  and  is  necessary  or  appropriate  to 
enable  it  to  perform  its  constitutional  functions,  I  cannot  regard  it  as 
such  an  invasion  of  the  province  of  the  judiciary  as  should  bring  it 
within  any  implied  prohibition  of  the  state  Constitution.  That  instru- 
ment contains  no  express  provision  declaring  any  of  the  privileges  of 
the  members  of  either  house,  except  that  for  any  speech  or  debate  in 
either  house  the  members  shall  not  be  questioned  in  any  other  place. 
Even  the  privilege  of  exemption  from  arrest  during  the  sessions  is  not 
declared.  No  power  to  keep  order,  or  to  punish  members  or  others 
for  disorderly  conduct,  or  to  expel  a  member,  is  contained  in  the  state 
Constitution,  as  it  is  in  the  Constitution  of  the  United  States.  All  these 
matters  are  in  this  state  left  under  the  regulations  of  the  statutes, 
and  there  is  not  even  express  authority  to  enact  such  statutes.  1  Rev. 
St.  c.  7,  tit.  2.  The  necessity  of  the  powers  mentioned  is  apparent, 
and  is  conceded  in  all  the  authorities,  (see  Cooley,  Const.  Lim.  133 ;) 
yet  it  is  equally  apparent  that  statutes  upon  the  subject  must  authorize 
some  action  partaking  of  a  judicial  character.  If  that  feature  is  a 
fatal  objection,  it  annuls  all  the  statutory  provisions  in  which  it  ap- 
pears. 

The  power  of  obtaining  information  for  the  purpose  of  framing  laws 
to  meet  supposed  or  apprehended  evils  is  one  which  has,  from  time  im- 
memorial, been  deemed  necessary,  and  has  been  exercised  by  legislative 
bodies.  In  this  state  it  does  not  rest  upon  precedent  merely,  but  is  ex- 
pressly conferred  by  statute,  (1  Rev.  St.  158,  §§  1,  2,)  which  provides 
that  every,  chairman  of  a  committee,  either  of  the  senate  or  assembly, 
or  of  any  joint  committee,  is  authorized  to  administer  oaths  to  wit- 
nesses; and  when  the  committee  is,  by  the  terms  of  the  resolution 
appointing  it,  authorized  to  send  for  persons  and  papers,  the  chairman 
has  power,  under  the  direction  of  the  committee,  to  issue  compulsory 
process  for  the  attendance  of  any  witness  within  the  state  whom  the 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   69 

committee  may  wish  to  examine,  and  to  issue  commissions  for  the  ex- 
amination of  witnesses  out  of  the  state.  To  subject  a  witness  to  pun- 
ishment as  for  a  contempt,  the  testimony  sought  must,  as  has  already 
been  shown,  relate  to  a  legislative  proceeding.  1  Rev.  St.  154,  §  13, 
subd.  4. 

It  is  difficult  to  conceive  any  constitutional  objection  which  can  be 
raised  to  the  provision  authorizing  legislative  committees  to  take  testi- 
mony and  to  summon  witnesses.  In  many  cases  it  may  be  indispen- 
sable to  intelligent  and  effectual  legislation  to  ascertain  the  facts  which 
are  claimed  to  give  rise  to  the  necessity  for  such  legislation,  and  the 
remedy  required ;  and  irrespective  of  the  question  whether,  in  the  ab- 
sence of  a  statute  to  that  effect,  either  house  would  have  the  power  to 
imprison  a  recusant  witness,  I  cannot  yield  to  the  claim  that  a  statute 
authorizing  it  to  enforce  its  process  in  that  manner  is  in  excess  of  the 
legislative  power.  To  await  the  slow  process  of  indictment  and  prose- 
cution for  a  misdemeanor  might  prove  quite  ineffectual,  and  necessary 
legislation  might  be  obstructed  and  perhaps  defeated  if  the  legislative 
body  had  no  other  and  more  summary  means  of  enforcing  its  right  to 
obtain  the  required  information.  That  the  power  may  be  abused  is 
no  ground  for  denying  its  existence.  It  is  a  limited  power,  and  should 
be  kept  within  its  proper  bounds;  and  when  these  are  exceeded  a  ju- 
risdictional question  is  presented  which  is  cognizable  in  the  courts.  My 
conclusion  is  that  subdivision  4,  §  13,  1  Rev.  St.,  is  constitutional  and 
valid.  These  views  are  supported  by  the  decision  of  this  court  in 
Wilckens  v.  Willet,  40*  N.  Y.  521-525,  where  it  was  held  that  the 
house  of  representatives  of  the  United  States  had  the  power  to  compel 
the  attendance  of  witnesses.  In  that  case  this  court  said,  per  Johnson, 
J. :  "That  the  power  exists  there  admits  of  no  doubt  whatever.  It  is 
a  necessary  incident  to  the  sovereign  power  of  making  laws,  and  its  ex- 
ercise is  often  indispensable  to  the  great  end  of  enlightened,  judicious, 
and  wholesome  legislation.  The  power  is  rather  judicial  in  its  nature, 
but  in  a  legislative  body  it  exists  as  an  auxiliary  to  the  legislative 
power  only."  And  further,  at  page  526:  "The  power  to  punish  for 
disobedience  and  contempt  in  refusing  to  attend  is  a  necessary  incident 
to  the  power  to  require  and  compel  attendance."  S.  C.  4  Abb.  Dec. 
596;  Wickelhausen  v.  Willett,  10  Abb.  Prac.  164;  Id.,  12  Abb.  Prac. 
319.    *    *    * 

Throughout  this  Union  the  practice  of  legislative  bodies,  and  in  this 
state  the  statutes  existing  at  the  time  the  present  Constitution  was 
adopted,  and  whose  validity  has  never  before  been  questioned  by  our 
courts,  afford  strong  arguments  in  favor  of  the  recognition  of  the 
right  of  either  house  to  compel  the  attendance  of  witnesses  for  legisla- 
tive purposes  as  one  which  has  been  generally  conceded  to  be  an  appro- 
priate adjunct  to  the  power  of  legislation,  and  one  which,  to  say  the 
least,  the  state  legislature  has  constitutional  authority  to  regulate  and 
enforce  by  statute.    *    *    * 


70  preliminary  Tones  (Part  1 

fit  was  held  that  McDonald,  as  a  mere  witness,  was  not  entitled  to 
be  attended  by  counsel.] 

We  are  finally  brought  to  the  consideration  of  the  important  and 
more  doubtful  question  whether  the  investigation  which  the  committee 
was  conducting  was  a  legislative  proceeding  which  the  house  was  au- 
thorized to  institute.  This  is  a  jurisdictional  question;  for  the  statute 
applies  only  to  such  proceedings;  and  if  the  house  had  any  authority 
independently  of  the  statute,  that  must  depend  upon  the  question 
whether  the  testimony  was  sought  for  the  purpose  of  aiding  it  in  the 
performance  of  any  of  its  constitutional  functions.  An  investigation 
instituted  for  the  mere  sake  of  investigation,  or  for  political  purpose-, 
not  connected  with  intended  legislation,  or  with  any  of  the  other  mat- 
ters upon  which  the  house  could  act,  but  merely  intended  to  subject 
a  party  or  body  investigated  to  public  animadversion,  or  to  vindicate 
him  or  it  from  unjust  aspersions,  where  the  legislature  had  no  power 
to  put  him  or  it  on  trial  for  the  supposed  offenses,  and  no  legislation 
was  contemplated,  but  the  proceeding  must  necessarily  end  with  the 
investigation,  would  not,  in  our  judgment,  be  a  legislative  proceeding, 
or  give  to  either  house  jurisdiction  to  compel  the  attendance  of  wit- 
nesses, or  punish  them  for  refusing  to  attend.  Where  public  institu- 
tions under  the  control  of  the  state  are  ordered  to  be  investigated,  it 
is  generally  with  the  view  of  some  legislative  action  respecting  them ; 
and  the  same  may  be  said  in  respect  to  public  officers.2     *     *     * 

[It  was  held  that  this  investigation  appeared  to  be  made  with  a  view 
to  possible  legislative  action  to  prevent  the  recurrence  of  any  miscon- 
duct that  might  be  found  to  exist.] 

Order  of  General  Term  reversed  and  original  order  restored. 


INTERSTATE  COMMERCE  COMMISSION  v,  BRIMSON. 

(Supreme  Court  of  United  States,  1894.     154  U.   S.  447,  14  Sup.  Ct.  1125,  38 
L.  Ed.  1047.) 

[Appeal  from  the  federal  Circuit  Court  for  the  Northern  District 
of  Illinois.  Section  12  of  the  federal  Interstate  Commerce  Act,  con- 
ferring upon  a  Commission  certain  powers  to  regulate  interstate  com- 
merce, authorized  the  Commission  to  inquire  into  the  management 
of  the  business  of  interstate  carriers,  and  to  require  by  subpoena  the 
testimony  of  witnesses  and  the  production  of  books  and  papers  re- 
lating to  any  matter  under  investigation.  In  case  of  disobedience  to 
a  subpoena  the  Commission  might  invoke  the  aid  of  any  federal  court, 
which  migTit  then  issue  an  order  requiring  such  subpoena  to  be  obeyed, 
and  might  punish  failure  to  obey  this  order  as  a  contempt.    Defend- 

-  See  the  opinions  in  Colonial  Sugar  Co.  v.  Atty.  Gen.,  15  Com.  L.  Rep.  1S2 
(Australia,  1912),  by  a  divided  court,  as  to  the  power  of  the  federal  government 
to  compel  persons  to  give  information  to  the  government  in  respect  to  mat- 
ters not  within  the  scope  of  governmental  action  except  by  amendment  of 
the  Constitution- 


Ch.3)       SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  I'OWERS        71 

ant  Brimson  and  others  disobeyed  subpoenas  of  the  Commission, 
which  then  petitioned  the  proper  federal  court  for  an  order  requiring 
defendants  to  appear,  testify,  and  produce  documents.  The  Circuit 
Court  held  section  12  unconstitutional  and  denied  the  petition.] 

Harlan,  J.  *  *  *  Is  the  twelfth  section  of  the  act  unconstitu- 
tional and  void,  so  far  as  it  authorizes  or  requires  the  Circuit  Courts 
of  the  United  States  to  use  their  process  in  aid  of  inquiries  before  the 
Commission?  The  court  recognizes  the  importance  of  this  question, 
and  has  bestowed  upon  it  the  most  careful  consideration. 

As  the  Constitution  extends  the  judicial  power  of  the  United  States 
to  all  cases  in  law  and  equity  arising  under  that  instrument  or  un- 
der the  laws  of  the  United  States,  as  well  as  to  all  controversies  to 
which  the  United  States  shall  be  a  party  (article  3,  §  2),  and  as  the 
Circuit  Courts  of  the  United  States  are  capable,  under  the  statutes 
defining  and  regulating  their  jurisdiction,  of  exerting  such  power  in 
cases  or  controversies  of  that  character,  within  the  limits  prescribed 
by  congress  (Act  Aug.  13,  1888,  25  Stat.  434,  c.  866),  the  fundamental 
inquiry  on  this  appeal  is  whether  the  present  proceeding  is  a  "case" 
or  "controversy,"  within  the  meaning  of  the  Constitution.  The  Cir- 
cuit Court,  as  we  have  seen,  regarded  the  petition  of  the  Interstate 
Commerce  Commission  as  nothing  more  than  an  application  by  an 
administrative  body  to  a  judicial  tribunal  for  the  exercise  of  its  func- 
tions in  aid  of  the  execution  of  duties  not  of  a  judicial  nature,  and 
accordingly  adjudged  that  this  proceeding  did  not  constitute  a  case  or 
controversy  to  which  the  judicial  power  of  the  United  States  could 
be  extended. 

At  the  same  time  the  learned  court  said :  "Undoubtedly,  congress 
may  confer  upon  a  nonjudicial  body  authority  to  obtain  information 
necessary  for  legitimate  governmental  purposes,  and  make  refusal  to 
appear  and  testify  before  it  touching  matters  pertinent  to  any  au- 
thorized inquiry  an  offense  punishable  by  the  courts,  subject,  how- 
ever, to  the  privilege  of  witnesses  to  make  no  disclosures  which  might 
tend  to  criminate  them  or  subject  them  to  penalties  or  forfeitures. 
A  prosecution  or  an  action  for  violation  of  such  a  statute  would 
clearly  be  an  original  suit  or  controversy  between  parties,  within  the 
meaning  of  the  Constitution,  and  not  a  mere  application,  like  the  pres- 
ent one,  for  the  exercise  of  the  judicial  power  in  aid  of  a  nonjudicial 
body."    In  re  Interstate  Commerce  Commission  (C.C.)  53  Fed.  476.  480. 

In  other  words,  if  the  Interstate  Commerce  Act  made  the  refusal 
of  a  witness  duly  summoned  to  appear  and  testify  before  the  Com- 
mission, in  respect  to  a  matter  rightfully  committed  by  congress  to 
that  body  for  examination,  an  offense  against  the  United  States, 
punishable  by  fine  or  imprisonment,  or  both,  a  criminal  prosecution 
or  an  information  for  the  violation  of  such  a  statute  would  be  a  case 
or  controversy  to  which  the  judicial  power  of  the  United  States  ex- 
tended ;  while  a  direct  civil  proceeding,  expressly  authorized  by  an 
act  of  congress,  in  the  name  of  the  Commission,  and  under  the  direc 


72  preliminary  topics  (Part  1 

tion  of  the  attorney  general  of  the  United  States,  against  the  witness 
so  refusing  to  testify,  to  compel  him  to  give  evidence  before  the  Com- 
mission touching  the  same  matter,  would  not  be  a  case  or  controversy 
of  which  cognizance  could  be  taken  by  any  court  established  by  con- 
gress to  receive  the  judicial  power  of  the  United  States. 

This  interpretation  of  the  Constitution  would  restrict  the  employ- 
ment of  means  to  carry  into  effect  powers  granted  to  congress  within 
much  narrower  limits  than,  in  our  judgment,  is  warranted  by  that 
instrument.     *     *     * 

What  is  a  case  or  controversy  to  which,  under  the  Constitution, 
the  judicial  power  of  the  United  States  extends?1  Referring  to  the 
clause  of  that  instrument  which  extends  the  judicial  power  of  the 
United  States  to  all  cases  in  law  and  equity  arising  under  the  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made  or  that 
shall  be  made  under  their  authority,  this  court,  speaking  by  Chief 
Justice  Marshall,  has  said :  "This  clause  enables  the  judicial  depart- 
ment to  receive  jurisdiction  to  the  full  extent  of  the  Constitution, 
laws,  and  treaties  of  the  United  States  when  any  question  respect- 
ing them  shall  assume  such  a  form  that  the  judicial  power  is  capable 
of  acting  on  it.  That  power  is  capable  of  acting  only  when  the  sub- 
ject is  submitted  to  it  by  a  party  who  asserts  his  rights  in  the  form 
prescribed  by  law.  It  then  becomes  a  case,  and  the  Constitution  de- 
clares that  the  judicial  power  shall  extend  to  all  cases  arising  under 
the  Constitution,  laws,  and  treaties  of  the  United  States."  Osborn  v. 
Bank,  9  Wheat.  738.  819,  6  L.  Ed.  204.  And  in  Den  ex  dem.  Mur- 
ray v.  Improvement  Co.,  18  How.  272,  284,  15  L.  Ed.  372,  Mr.  Jus- 
tice Curtis,  after  observing  that  congress  cannot  withdraw  from  ju- 
dicial cognizance  any  matter  which,  from  its  nature,  is  the  subject 
of  a  suit  at  the  common  law,  or  in  equity  or  admiralty,  nor,  on  the 
other  hand,  bring  under  judicial  power  a  matter  which,  from  its 
nature,  is  not  a  subject  for  judicial  determination,  said:  "At  the 
same  time  there  are  matters  involving  public  rights  which  may  be 
presented  in  such  form  that  the  judicial  power  is  capable  of  acting 
on  them,  and  which  are  susceptible  of  judicial  determination,  but 
which  congress  may  or  may  not  bring  within  the  cognizance  of  the 
courts  of  the  United  States,  as  it  may  deem  proper."  2  So,  in  Smith 
v.  Adams,  130  U.  S.  173,  9  Sup.  Ct.  566,  32  h.  Ed.  895,  Mr.  Justice 
Field,  speaking  for  the  court,  said  that  the  terms  "cases"  and  "con- 

i  See,  also,  the  discussion  in  Muskrat  v    United  States,  ante,  p.  39. 

2  In  State  ex  rel.  Ellis  v.  Thome,  112  Wis.  81,  87,  87  N.  W.  797,  799,  55  L.. 
R.  A.  956  (1901),  it  was  held  that  a  board  of  review,  exercising  judicial  pow- 
ers in  the' equalization  of  tax  assessments,  was  not  unconstitutional  be- 
cause not  a  court.  Marshall,  J.,  said:  "The  constitution  by  no  means  pro- 
vides that  all  authority  to  act  judicially  is  or  shall  be  vested  in  some  one  of 
the  courts  therein  indicated.  The  language  of  the  Constitution  is:  'The 
judicial  power  of  this  state,  both  as  to  matters  of  law  and  equity,  shall  be 
vested  In'  the  courts  mentioned.  The  term  'matters  of  law  and  equity'  refers 
to  the  administration  of  the  law  in  actions  and  proceedings  in  courts  of 
law  and  equity, — the  exercise  of  such  power  in  such  matters  as  was  exercised 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   73 

troversies,"  in  the  Constitution,  embraced  "the  claims  or  contentions 
of  litigants  brought  before  the  courts  for  adjudication  by  regular 
proceedingj  established  for  the  protection  or  enforcement  of  rights, 
or  the  prevention,  redress,  or  punishment  of  wrongs." 

Testing  the  present  proceeding  by  these  principles,  we  are  of  opin- 
ion that  it  is  one  that  can  properly  be  brought  under  judicial  cog- 
nizance. 

We  have  before  us  an  act  of  congress  authorizing  the  Interstate 
Commerce  Commission  to  summon  witnesses,  and  to  require  the 
production  of  books,  papers,  tariffs,  contracts,  agreements,  and  docu- 
ments relating  to  the  matter  under  investigation.  The  constitution- 
ality of  this  provision — assuming  it  to  be  applicable  to  a  matter  that 
may  be  legally  intrusted  to  an  administrative  body  for  investiga- 
tion— is,  we  repeat,  not  disputed,  and  is  beyond  dispute.  *  * 
Whether  the  Commission  is  entitled  to  the  evidence  it  seeks,  and 
whether  the  refusal  of  the  witness  to  testify  or  to  produce  books, 
papers,  etc.,  in  his  possession,  is  or  is  not  in  violation  of  his  duty  or 
in  derogation  of  the  rights  of  the  United  States,  seeking  to  execute 
a  power  expressly  granted  to  congress,  are  the  distinct  issues  between 
that  body  and  the  witness.  They  are  issues  between  the  United 
States  and  those  who  dispute  the  validity  of  an  act  of  congress  and 
seek  to  obstruct  its  enforcement;  and  those  issues,  made  in  the  form 
prescribed  by  the  act  of  congress,  are  so  presented  that  the  judicial 
power  is  capable  of  acting  on  them.     *     *     * 

[Here  follows  a  discussion  of  Hayburn's  Case,  2  Dall.  409,  1  L.  Ed. 
436 ;  United  States  v.  Ferreira,  13  How.  40,  14  L.  Ed.  42 ;  Gordon  v. 
United  States,  117  U.  S.  697;  and  In  re  Sanborn,  148  U.  S.  222,  13 
Sup.  Ct.  577,  37  L.  Ed.  429 — cases  involving  questions  similar  to  those 
considered  in  Muskrat  v.  United  States,  ante,  p.  39.] 

by  such  courts  at  the  time  of  the  adoption  of  the  Constitution.  As  said  1n 
Callanan  v.  Judd,  23  Wis.  343,  349,  the  proper  construction  of  the  term 
'judicial   power  in  matters  of  law  and  equity'  is  such   ■  be  court. 

under  tin*  English  and  American  systems  of  jurisprudence,  had  alwa] 
cised  in  actions  at  law  and  in  equity.    To  act  Judl  tally,  and  to  act  judicially 
in  a  matter  at  law  or  in  equity, — or.  In  other  words,  in   actions  at    law  or 
suits  in  equity. — are  not  necessarily  the  I  that  is 

required,   in   the   administration   of  the    law.    to   determine  whether  a   duty 

or  determine  .  by  the  exercise  of  judgment,  a  coi 

action,  within  legislative  restraints  or  guides,  must  necessarily  act  ju 

h  of  t lie  Judicial  function   that 

of  as  quasi  judicial.    Manifestly,  an  officer  or  board,  or  other 

il  other  than  a  court,  may  act  jt  the  sense  above  mentioned 

and  not  do  anything  falling  within  the  if  the  term  'judicial  power 

as  to  matters  of  law  and  equity'  ;    and  so  a  Judicial  officer  may  perform  acts 

officially  outside  of  such  matters, — mere  ministerial  acts." 

For  the  powers  of  a  judicial  nature  commonly  exercised  in  this  country  by 

;  rathe  and  executive  officers,  acting  under  the  usual  constitutional 

provisions  creating  separate  legislative,  executive,  and  judicial   departments, 

see  United  states  v.  Ju  Toy,  post,  p  21  S  ;  State  v.  H 

44  Ohio   St.  OS.   5   X.  E.   2!  State  e\    r«I.   Yaple   V.   Creamer. 

St  348,  400-403,  07  X.  K.  802,  39  L.  K.  A.  (N.  S.)  094  (1912)  (administration 

of  workmen's  compensation  act). 


74  PRELIMINARY    TOPICS  (Part    1 

The  views  we  have  expressed  in  the  present  case  are  not  incon- 
sistent with  anything  said  or  decided  in  those  cases.  They  do  not  in 
any  manner  infringe  upon  the  salutary  doctrine  that  congress,  exclud- 
ing the  special  cases  provided  for  in  the  Constitution, — as,  for  instance, 
in  section  2  of  article  2  of  that  instrument, — may  not  impose  upon  the 
courts  of  the  United  States  any  duties  not  strictly  judicial.  The  duties 
assigned  to  the  Circuit  Courts  of  the  United  States  by  the  twelfth 
section  of  the  Interstate  Commerce  Act  are  judicial  in  their  nature. 
The  inquiry  whether  a  witness  before  the  Commission  is  bound  to 
answer  a  particular  question  propounded  to  him,  or  to  produce  books, 
papers,  etc.,  in  his  possession,  and  called  for  by  that  body,  is  one  that 
cannot  be  committed  to  a  subordinate  administrative  or  executive 
tribunal  for  final  determination.  Such  a  body  could  not,  under  our 
system  of  government,  and  consistently  with  due  process  of  law,  be 
invested  with  authority  to  compel  obedience  to  its  orders  by  a  judg- 
ment of  fine  or  imprisonment.  Except  in  the  particular  instances 
enumerated  in  the  Constitution,  and  considered  in  Anderson  v.  Dunn. 
6  Wheat.  204,  5  L.  Ed.  242,  and  in  Kilbourn  v.  Thompson,  103  U.  S. 
168,  190,  26  L.  Ed.  377,  of  the  exercise  by  either  house  of  congress  of 
its  right  to  punish  disorderly  behavior  upon  the  part  of  its  members, 
and  to  compel  the  attendance  of  witnesses  and  the  production  of  papers 
in  election  and  impeachment  cases  and  in  cases  that  may  involve  the 
existence  of  those  bodies,  the  power  to  impose  fine  or  imprisonment  in 
order  to  compel  the  performance  of  a  legal  duty  imposed  by  the  United 
States  can  only  be  exerted,  under  the  law  of  the  land,  by  a  competent 
judicial  tribunal  having  jurisdiction  in  the  premises.  See  Whitcomb's 
Case,  120  Mass.  118,  21  Am.  Rep.  502,  and  authorities  there  cited. 

Without  the  aid  of  judicial  process  of  some  kind,  the  regulations 
that  congress  may  establish  in  respect  to  interstate  commerce  cannot 
be  adequately  or  efficiently  enforced.  One  mode,  as  already  suggested 
(the  validity  of  which  is  not  questioned),  of  compelling  a  witness  to 
testify  before  the  Interstate  Commerce  Commission  to  answer  ques- 
tions propounded  to  him  relating  to  the  matter  under  investigation, 
and  which  the  law  makes  it  his  duty  to  answer,  and  to  produce  books, 
papers,  etc.,  is  to  make  his  refusal  to  appear  and  answer,  or  to  pro- 
duce the  documentary  evidence  called  for,  an  offense  against  the 
United  States,  punishable  by  fine  or  imprisonment.  A  criminal  prose- 
cution of  the  witness  under  such  a  statute,  it  is  conceded,  would  be  a 
case  or  controversy,  within  the  meaning  of  the  Constitution,  of  which 
a  court  of  the  United  States  could  take  jurisdiction.  Another  mode 
would  be  to  proceed  by  information  to  recover  any  penalty  imposed  by 
the  statute.  A  proceeding  of  that  character,  it  is  also  conceded,  would 
be  a  case  or  controversy  of  which  a  court  of  the  United  States  could 
take  cognizance.  If,  however,  congress,  in  its  wisdom,  authorizes  the 
Commission  to  bring  before  a  court  of  the  United  States  for  deter- 
mination the  issues  between  it  and  a  witness,  that  mode  of  enforcing 
the  act  of  congress,  and  of  compelling  the  witness  to  perform  his 


Ch.  3)       REPARATION  AND  DELEGATION  OF  GOVERNMENTAL  1'OWEttS       75 

duty,  is  said  not  to  be  judicial,  and  is  beyond  the  power  of  congress  to 
prescribe. 

We  cannot  assent  to  any  view  of  the  constitution  that  concedes  the 
power  of  congress  to  accomplish  a  named  result  indirectly,  by  partic- 
ular forms  of  judicial  procedure,  but  denies  its  power  to  accomplish  the 
same  result  directly,  and  by  a  different  proceeding  judicial  in 
form.    *    *    * 

The  present  proceeding  is  not  merely  ancillary  and  advisory.  It  is 
not,  as  in  Gordon's  Case,  one  in  which  the  United  States  seeks  from 
the  Circuit  Court  of  the  United  States  an  opinion  that  "would  remain 
a  dead  letter,  and  without  any  operation  upon  the  rights  of  the  par- 
ties." The  proceeding  is  one  for  determining  rights  arising  out  of 
specified  matters  in  dispute  that  concern  both  the  general  public  and  the 
individual  defendants.  It  is  one  in  which  a  judgment  may  be  rendered 
that  willi  be  conclusive  upon  the  parties  until  reversed  by  this  court : 
and  that  judgment  may  be  enforced  by  the  process  of  the  Circuit 
Court.  Is  it  not  clear  that  there  are  here  parties  on  each  side  of  a  dis- 
pute involving  grave  questions  of  legal  rights,  that  their  respective 
positions  are  defined  by  pleadings,  and  that  the  customary  forms  of 
judicial  procedure  have  been  pursued?  The  performance  of  the  duty 
which,  according  to  the  contention  of  the  government,  rests  upon  the 
defendants,  cannot  be  directly  enforced  except  by  judicial  process. 
One  of  the  functions  of  a  court  is  to  compel  a  party  to  perform  a  duty 
which  the  law  requires  at  his  hands.  If  it  be  adjudged  that  the  defend- 
ants are,  in  law,  obliged  to  do  what  they  have  refused  to  do,  that  de- 
termination will  not  be  merely  ancillary  and  advisory,  but,  in  the  words 
of  Sanborn's  Case,  will  be  a  "final  and  indisputable  basis  of  action,"  as 
between  the  commission  and  the  defendants,  and  will  furnish  a  prece- 
dent in  all  similar  cases.  It  will  be  as  much  a  judgment  that  may  be 
carried  into  effect  by  judicial  process  as  one  for  money,  or  for  the 
recovery  of  property,  or  a  judgment  in  mandamus  commanding  the 
performance  of  an  act  or  duty  which  the  law  requires  to  be  performed, 
or  a  judgment  prohibiting  the  doing  of  something  which  the  law  will 
not  sanction.  It  is  none  the  less  the  judgment  of  a  judicial  tribunal 
dealing  with  questions  judicial  in  their  nature,  and  presented  in  the 
customary  forms  of  judicial  proceedings,  because  its  effect  may  be  to 
aid  an  administrative  or  executive  body  in  the  performance  of  duties 
legally  imposed  upon  it  by  congress  in  execution  of  a  power  granted  by 
the  constitution.    *    *    * 

Judgment  reversed.8 

[Fuller,  C.  J.,  and  Brewi.u  and  Jackson,  JJ.,  dissented.  Field, 
J.,  was  absent.] 

8  Accord:    Matter  of  Davtes,   168  N.  Y.  89.  61  N.   R.  118.  56  L.  K.    a     - 
ilJKtl)  (proceeding  by  attorney  general  to  obtain  evidence  to  enable  him  t" 
proceed  against  combinations  violating  anti-monopoly  laws  of  New  Xorlt). 

See  the  discussion  of  the  meaning  of  "judicial  power''  under  the  Australian 
Constitution,  in  Huddnrt  &  Co.  v.  Moorehead,  8  Com.  L.  Rep.  330.  355  ff.,  381  ff. 


76  PRELIMINARY   TOPICS  (Part   1 


CARTER  v.  COMMONWEALTH. 

(Supreme  Court  of  Appeals  of  Virginia,  1899.    96  Va.  791,  32  S.  E.  780,  45 
L.  R.  A.  310.) 

[Error  to  the  Circuit  Court  of  Lynchburg.  Carter  was  informed 
by  his  attorney  that  his  presence  in  court  was  necessary  at  once  in  a 
case  in  which  he  was  a  party.  He  falsely  telegraphed  that  he  was  sick 
and  could  not  come,  seeking  to  obtain  a  continuance  of  his  case.  When 
ordered  to  appear  before  the  court  to  show  cause  why  he  should  not 
be  punished  for  contempt,  Carter  made  an  excuse  for  his  conduct  and 
asked  for  a  jury  trial.  The  court  held  his  excuse  insufficient  and  sen- 
tenced him  to  pay  a  fine  of  $25  and  be  imprisoned  for  two  days,  with- 
out a  jury  trial.    Other  facts  appear  in  the  opinion.] 

Keith,  P.  J.  *  *  *  [A  Virginia  statute  of  1830-31  was  amended 
in  1897-98  to  read  as  follows:  *] 

The  Constitution  now  in  force  (article  6,  §  1)  provides:  "There 
shall  be  a  supreme  court  of  appeals,  circuit  courts  and  county  courts. 
The  jurisdiction  of  these  tribunals,  and  of  the  judges  thereof,  except 
so  far  as  the  same  is  conferred  by  this  Constitution,  shall  be  regulated 
by  law."  In  a  subsequent  portion  of  the  instrument,  corporation 
courts  are  also  provided  for  the  cities  of  the  state.  These  courts  do 
not  derive  their  existence  from  the  legislature.     They  are  called  into 

(1909).  Isaacs,  J.,  said  (pp.  3S3,  384):  "It  is  I  believe  correctly  stated  by 
Palles,  C.  B.,  in  The  Queen  v.  Local  Government  Board  (1902)  2  I.  R.  319, 
373,  that  'to  erect  a  tribunal  into  a  "court"  or  "jurisdiction,"  so  as  to  make 
its  determinations  judicial,  the  essential  element  is  that  it  should  have  pow- 
er, by  its  determination  within  jurisdiction,  to  impose  liability  or  affect  rights.' 
'By  this,'  said  the  learned  Chief  Baron,  T  mean  that  the  liability  is  imposed, 
or  the  right  affected  by  the  determination  only,  and  not  by  the  fact  deter- 
mined, and  so  that  the  liability  will  exist,  or  the  right  will  be  affected,  al- 
though the  determination  be  wrong  in  law  or  in  fact  It  is  otherwise  of  a 
ministerial  power.  If  the  existence  of  such  a  power  depends  upon  a  con- 
tingency, although  it  may  be  necessary  for  the  officer  to  determine  whether 
the  contingency  has  happened,  in  order  to  know  whether  he  shall  exercise 
the  power,  his  determination  does  not  bind.  The  happening  of  the  con- 
tingency may  be  questioned  in  an  action  brought  to  try  the  legality  of  the 
act  done  under  the  alleged  exercise  of  the  power.  But  where  the  determina- 
tion binds,  although  it  is  based  on  an  erroneous  view  of  facts  or  law,  then  the 
power  authorizing  it  is  judicial.'  There  we  get  a  modem  use  of  the  term 
•judicial  power.' " 

i  Sec.  376S.  The  courts  and  judges  may  issue  attachments  for  contempt, 
and  punish  them  summarily,  only  in  the  following  cases,  which  are  hereby 
declared  to  be  direct  contempts,  all  other  contempts  being  indirect  contempts. 

First.  Misbehavior  in  the  presence  of  the  court,  or  so  near  thereto  as  to 
obstruct  the  administration  of  justice. 

Second.  Violence  or  threats  of  violence  to  a  judge  or  officer  of  the  court  or 
to  a  juror,  witness  or  party  going  to,  attending  or  returning  from  the  court, 
fur  or  in  respect  of  any  act  or  proceeding  had  or  to  be  had  in  such  court. 

Third.  Misbehavior  of  an  officer  of  the  court  in  his  official  character. 

Fourth.  Disobedience  or  resistance  of  an  officer  of  the  court,  juror  or  wit- 
ness to  any  lawful  process,  judgment,  decree  or  order  of  the  said  court. 

[If  requested  by  the  defendant,  provision  was  made  for  the  trial  by  jury  of 
indirect  contempts.] 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   77 

being  by  the  Constitution  itself,  the  same  authority  which  creates  the 
legislature  and  the  whole  framework  of  state  government. 

What  was  the  nature  and  character  of  the  tribunals  thus  instituted? 
Our  conception  of  courts,  and  of  their  powers  and  functions,  comes  to 
us  through  that  great  system  of  English  jurisprudence  known  as  the 
"common  law,"  which  we  have  adopted  and  incorporated  into  the  body 
of  our  laws. 

That  the  English  courts  have  exercised  the  power  in  question  from 
the  remotest  period  does  not  admit  of  doubt.  Said  Chief  Justice 
Wilmot :  "The  power  which  the  courts  in  Westminster  Hall  have  of 
vindicating  their  own  authority  is  coeval  with  their  first  foundation 
and  institution ;  it  is  a  necessary  incident  to  every  court  of  justice, 
whether  of  record  or  not,  to  fine  and  imprison  for  a  contempt  acted 
in  the  face  of  the  court;  and  the  issuing  of  attachments  by  the  supreme 
court  of  justice  in  Westminster  Hall  for  contempts  out  of  court  stands 
on  the  same  immemorial  usage  which  supports  the  whole  fabric  of  the 
common  law.  It  is  as  much  the  lex  terrre,  and  within  the  exception  of 
Magna  Charta,  as  the  issuing  of  any  other  legal  process  whatsoever. 
I  have  examined  very  carefully  to  see  if  I  could  find  out  any  vestiges 
of  its  introduction,  but  can  find  none.  It  is  as  ancient  as  any  other  part 
of  the  common  law.  There  is  no  priority  or  posteriority  to  be  found 
about  it.  It  cannot,  therefore,  be  said  to  invade  the  common  law. 
It  acts  in  alliance  and  friendly  conjunction  with  every  other  provision 
which  the  wisdom  of  our  ancestors  has  established  for  the  general 
good  of  society.  Truth  compels  me  to  say  that  the  mode  of  proceed- 
ing by  attachment  stands  upon  the  very  same  foundation  as  trial  by 
jury.  It  is  a  constitutional  remedy  in  particular  cases,  and  the  j 
in  those  cases  are  as  much  bound  to  give  an  activity  to  this  part  of  the 
law  as  to  any  other."    3  Camp.  Lives  of  Ch.  Just.  p.  153. 

In  United  States  v.  Hudson,  7  Cranch,  32.  3  L.  Ed.  259,  it  was  held 
that  "certain  implied  powers  must  necessarily  result  to  our  courts 
of  justice  from  the  nature  of  their  institution.  But  jurisdiction  of 
crimes  against  the  state  is  not  among  those  powers.  To  fine  for  con- 
tempt, imprison  for  contumacy,  enforce  the  observance  of  order,  etc., 
are  powers  which  cannot  be  dispensed  with  in  a  court,  because  they  are 
necessary  to  the  exercise  of  all  others;  and  so  far  our  courts  no  doubt 
possess  powers  not  immediately  derived  from  statute." 

In  Wells  v.  Com.,  21  Grat.  (62  Va.)  503,  it  was  said:  "The  power 
to  fine  and  imprison  for  contempt  is  incident  to  every  court  of  record. 
The  courts,  ex  necessitate,  have  the  power  of  protecting  the  adminis- 
tration of  justice,  with  a  promptness  calculated  to  meet  the  exigency 
of  the  particular  case." 

It  is  unnecessary,  however,  to  multiply  authority  upon  this  point, 
for  we  understand  it  to  have  been  conceded  by  counsel  for  plaintiff  in 
error  that  the  power  to  punish  contempts  is  inherent  in  all  courts ; 
but  the  contention  is  that  it  may  be  regulated  by  legislative  action, 
and  we  are  prepared  to  concede  that  it  is  proper  for  the  legislature  to 


78  pKEUMiNAitY  topics  (Part  1 

regulate  the  exercise  of  the  power  so  long  as  it  confines  itself  within 
limits  consistent  with  the  preservation  of  the  authority  of  courts  to 
enforce  such  respect  and  obedience  as  is  necessary  to  their  vigor  and 
efficiency.    *    *    * 

It  was  contended  by  counsel  for  plaintiff  in  error  that,  inasmuch  as 
the  act  of  1897-9S  merely  transferred  the  punishment  of  contempts 
from  the  court  to  a  jury,  and  even  made  acts  punishable  as  contempts 
not  embraced  within  the  act  of  1830-31,  that  it  was  not  obnoxious  to 
the  objection  that  it  interfered  with  or  diminished  the  power  of  the 
court  to  protect  itself. 

To  this  view  we  cannot  assent.  It  is  not  a  question  of  the  degree 
or  extent  of  the  punishment  inflicted.  It  may  be  that  juries  would 
punish  a  given  offense  with  more  severity  than  the  court ;  but  yet  the 
jury  is  a  tribunal  separate  and  distinct  from  the  court.  The  power  to 
punish  for  contempts  is  inherent  in  the  courts,  and  is  conferred  upon 
them  by  the  Constitution  by  the  very  act  of  their  creation.  It  is  a 
trust  confided  and  a  duty  imposed  upon  us  by  the  sovereign  people, 
which  we  cannot  surrender  or  suffer  to  be  impaired  without  being 
recreant  to  our  duty. 

Upon  the  point  made  by  counsel  for  plaintiff  in  error,  that  the  of- 
fense under  consideration,  if  not  embraced  within  the  category  of  di- 
rect contempts  by  the  act  of  1897-98,  neither  was  it  by  that  of  1830- 
31,  we  cannot  do  better  than  to  quote  the  language  of  the  supreme 
court  of  Arkansas,  in  Slate  v.  Morrill,  16  Ark.  at  page  390: 

"The  legislature  may  regulate  the  exercise  of,  but  cannot  abridge, 
the  express  or  necessarily  implied  powers  granted  to  this  court  by 
the  Constitution.  If  it  could,  it  might  encroach  upon  both  the  judicial 
and  executive  departments,  and  draw  to  itself  all  the  powers  of  govern- 
ment, and  thereby  destroy  that  admirable  system  of  checks  and  bal- 
ances to  be  found  in  the  organic  framework  of  both  the  federal  and 
state  institutions,  and  a  favorite  theory  in  the  government  of  the  Amer- 
ican people. 

"As  far  as  the  act  in  question  goes,  in  sanctioning  the  power  of  the 
courts  to  punish,  as  contempts,  the  'acts'  therein  enumerated,  it  is 
merely  declaratory  of  what  the  law  was  before  its  passage.  The  pro- 
hibitory feature  of  the  act  can  be  regarded  as  nothing  more  than  the 
expression  of  a  judicial  opinion  by  the  legislature  that  the  courts  may 
exercise  and  enforce  all  their  constitutional  powers,  and  answer  all 
the  useful  purposes  of  their  creation,  without  the  necessity  of  punish- 
ing as  a  contempt  any  matter  not  enumerated  in  the  act.  As  such,  it 
is  entitled  to  great  respect;  but  to  say  that  it  is  absolutely  binding 
upon  the  courts  would  be  to  concede  that  the  courts  have  no  consti- 
tutional ami  inherent  power  to  punish  any  class  of  contempts,  but  that 
the  whole  subject  is  under  the  control  of  the  legislative  department, 
because,  if  the  general  assembly  may  deprive  the  courts  of  power  to 
punish  one  class  of  contempts,  it  may  go  the  whole  length,  and  devest 
them  of  power  to  punish  any  contempt." 


Cll.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   79 

Reliance  was  placed  by  counsel  for  plaintiff  in  error  upon  a  class 
of  cases  of  which  Ex  parte  Robinson,  19  Wall.  505,  22  L.  Ed.  205, 
may  be  considered  typical.  In  that  case  Robinson  had  in  the  most 
summary  manner,  without  the  opportunity  of  defense,  been  stricken 
from  the  roll  of  attorneys  by  the  district  court  for  the  Western  dis- 
trict of  Arkansas.  He  applied  to  the  supreme  court  for  a  mandamus, 
which  is  the  appropriate  remedy  to  restore  an  attorney  who  has  been 
disbarred,  and  that  court  held,  Mr.  Justice  Field  delivering  the  opinion, 
that :  "The  power  to  punish  for  contempts  is  inherent  in  all  courts. 
Its  existence  is  essential  to  the  preservation  of  order  in  judicial  pro- 
ceedings, and  to  the  enforcement  of  the  judgments,  orders,  and  writs 
of  the  courts,  and  consequently  to  the  due  administration  of  justice. 
The  moment  the  courts  of  the  United  States  were  called  into  exist- 
ence, and  invested  with  jurisdiction  over  any  subject,  they  became 
possessed  of  this  power.  But  the  power  has  been  limited  and  defined 
by  the  act  of  congress  of  March  2,  1831,"  and  the  court  declared  that 
there  could  be  no  question  as  to  its  application  to  the  circuit  and  dis- 
trict courts.  "These  courts  were  created  by  act  of  congress.  Their 
po»vers  and  duties  depend  upon  the  act  calling  them  into  existence, 
or  subsequent  acts  extending  or  limiting  their  jurisdiction.  The  act 
of  1831  is,  therefore,  to  them  the  law  specifying  the  cases  in  which 
summary  punishment  for  contempts  may  be  inflicted." 

Turning  to  the  Constitution  of  the  United  States,  we  find  that  it 
(article  3,  §  1)  declares  that  "the  judicial  power  of  the  United  States 
shall  be  vested  in  one  supreme  court,  and  in  such  inferior  courts  as  the 
congress  may  from  time  to  time  ordain  and  establish."  This  language 
is  the  equivalent  of  that  found  in  our  Constitutions  prior  to  that  of 
1851,  hereinbefore  quoted.  The  inferior  federal  courts  and  their  juris- 
diction are  the  creatures  of  congress,  and  not  of  the  Constitu- 
tion.   *    *    * 

[Here  it  is  remarked  that  the  federal  statute  of  1831  is  so  com- 
prehensive as  completely  to  protect  the  courts,  and  that  their  power 
to  punish  in  the  enumerated  cases  is  unlimited.] 

The  enumeration  of  subjects  punishable  as  direct  contempts  in  the 
act  under  consideration  seems  to  embrace  almost  every  conceivable 
form  of  that  offense  which  can  occur  in  the  presence  of,  or  in  prox- 
imity to,  the  court;  that  is  to  say,  under  circumstances  likely  t<> 
arouse  the  passion  or  prejudice  of  the  judge,  and  disturb  that 
equanimity  essential  to  calm  and  wise  judicial  action.  The  court  ma) 
punish  summarily  not  only  all  such  offenses,  but  for  disobedience  or 
resistance  to  any  lawful  process,  judgment,  decree,  or  order;  its  of- 
ficers, jurors,  and  witnesses  may  also  thus  be  punished;  and  only 
the  parties  to  the  suit  are  entitled  to  a  trial  by  jury.  Thus  we  see 
that  offenses  of  a  nature  personal  to  the  court  are  to  be  punished 
by  the  court,  while  those  which  interest  suitors  are  punishable  only 
by  a  jury.  So  that  suitors,  having  obtained  a  judgment  or  decree, 
after   long  and   expensive   litigation,  find  the  court  powerless  to   se- 


80  preliminary  topics  (Part  1 

cure  to  them  its  fruition  and  enjoyment,  and,  unless  their  antagonist 
chance  to  be  a  law-abiding  citizen,  discover  that  their  success  has 
only  begotten  another  controversy.  Ours  is  a  law-abiding  community, 
and  good  citizens  will,  without  compulsion,  respect  the  lawful  orders 
of  their  courts;  but  in  every  society  there  are  those  who  obey  the 
laws  only  because  there  is  behind  them  a  force  they  dare  not  resist. 
Is  it  wise  or  beneficent  legislation  which  accepts  the  obedience  of  the 
good  citizen,  but  is  powerless  to  enforce  the  law  against  the  recalci- 
trant? Under  this  law,  the  authority  of  the  courts  would  be  reduced 
to  a  mere  "power  of  contention."     *     *     * 

Reading  the  Constitution  of  the  state  in  the  light  of  the  decisions 
of  eminent  courts  which  we  have  consulted,  we  feel  warranted  in 
the  following  conclusions : 

That  fn  the  courts  created  by  the  Constitution  there  is  an  inherent 
power  of  self-defense  and  self-preservation ;  that  this  power  may 
be  regulated,  but  cannot  be  destroyed,  or  so  far  diminished  as  to  be 
rendered  ineffectual  by  legislative  enactment;  that  it  is  a  power  nec- 
essarily resident  in,  and  to  be  exercised  by,  the  court  itself,  and  that 
the  vice  of  an  act  which  seeks  to  deprive  the  court  of  this  inherent 
power  is  not  cured  by  providing  for  its  exercise  by  a  jury;  that, 
while  the  legislature  has  the  power  to  regulate  the  jurisdiction  of 
circuit,  county,  and  corporation  courts,  it  cannot  destroy,  while  it 
may  confine  within  reasonable  bounds,  the  authority  necessary  to  the 
exercise  of  the  jurisdiction  conferred.     *     *     * 

We  cannot  more  properly  conclude  this  opinion  than  by  a  quotation 
from  a  great  English  judge:  "It  is  a  rule  founded  on  the  reason  of 
the  common  law  that  all  contempts  to  the  process  of  the  court,  to  its 
judges,  jurors,  officers,  and  ministers,  when  acting  in  the  due  dis- 
charge of  their  respective  duties,  whether  such  contempts  be  by  di- 
rect obstruction,  or  consequentially, — that  is  to  say,  whether  they  be  by 
act  or  writing, — are  punishable  by  the  court  itself,  and  may  be  abated 
instanter  as  nuisances  to  public  justice.  There  are  those  who  object 
to  attachments  as  being  contrary,  in  popular  constitutions,  to  first 
principles.  To  this  it  may  briefly  be  replied  that  they  are  the  first 
principles,  being  founded  on  that  which  founds  government  and  con- 
stitutes law.  They  are  the  principles  of  self-defense, — the  vindica- 
tion, not  only  of  the  authority,  but  of  the  very  power  of  acting  in 
court.  It  is  in  vain  that  the  law  has  the  right  to  act,  if  there  be  a 
power  above  the  law  which  has  a  right  to  resist.  The  law  would 
then  be  but  the  right  of  anarchy  and  the  power  of  contention."  Holt, 
on  .Libel,  c.  9.     *     *     * 

Judgment  affirmed.2 

2  See  cases  collected  in  36  L.  R.  A.  254  ff.,  note  to  Hale  v.  State,  55  Ohio 
St.  210,  45  N.  E.  100,  CO  Am.  St.  Rep.  U)l  (1S0G),  most  of  which  sustain  the 
principal  case.  In  several  cases  the  Legislature  is  conceded  larger  powers  over 
contempts  in  courts  created  by  it  than  in  courts  created  by  a  Constitution. 
As  to  the  legislative  power  over  "constructive"  contempt,  see  State  ex  inf. 


Cll.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   81 


APPEAL  OF  NORWALK  ST.  RY.  CO. 

(Supreme  Court  of  Errors  of  Connecticut,  1897.    C9  Conn.  576,  37  Atl.  1080, 
38  Atl.  708,  39  L.  R.  A.  794.) 

[Appeal  from  the  decision  of  Judge  Hall. of  the  Superior  Court. 
The  railway  company,  acting  under  the  statute  mentioned  in  the 
opinion  below,  asked  the  city  of  Norwalk  to  approve  a  certain  plan 
for  double-tracking  part  of  its  line.  The  city  council  did  not  notify 
the  company  of  its  decision  within  60  days,  and  thereupon  the  com- 
pany made  application  to  the  Superior  Court.  From  a  judgment 
there  for  the  company  the  city  appealed.  Other  facts  appear  in  the 
opinion.] 

Hamersley,  J.  The  act  of  1893  confers  upon  city  councils  certain 
powers  in  establishing  regulations  for  the  location,  construction,  and 
operation  of  street  railways,  and  requires  a  council,  if  requested  by 
a  railway  company,  to  take  some  action  within  60  days,  and  to  notify 
the  company  in  writing  of  its  action.  Whenever  a  council  fails  to 
give  such  written  notice,  the  act  of  1895  confers  the  same  powers 
upon  the  "superior  court  or  any  judge  thereof,"  to  be  exercised  on 
application  of  a  railway  company,  and  calls  this  application  an  "ap- 

Crow  v.  Shepherd,  177  Mo.  205,  76  S.  W.  79,  99  Am.  St.  Rep.  624  (1903). 
criticised  in  Thomas,  Constructive  Contempt  (1904) ;  50  Am.  St.  Rep.  572  ff., 
note;   and  on  Am.  st.  Rep.  675  (cases). 

"The  power  of  a  court  to  make  an  order  carries  with  it  the  equal  power 
to  punish  for  a  disobedience  of  that  order,  and  the  inquiry  as  to  the  question 
of  disobedience  has  been,  from  time  immemorial,  the  special  function  of  the 
court.  And  this  is  no  technical  rule.  In  order  that  a  court  may  compel 
obedience  to  its  orders,  it  must  have  the  right  to  inquire  whether  there  has 
been  any  disobedience  thereof.  To  submit  the  question  of  disobedience  to  an- 
other tribunal,  be  it  a  jury  or  another  court,  would  operate  to  deprive  the 
proceeding  of  half  its  efficiency." — Brewer,  J.,  in  In  re  Debs,  158  U.  s.  564 
594,  595,  15  Sup.  Ct  900.  910.  39  L.  Ed.  1092  (1S95). 

In  Wisconsin  and  Michigan  it  has  been  held  that  the  legislature  cannot 
transfer  from  a  court  to  a  jury  the  right  to  determine  the  facts  in  equity 
cases.  Callanan  v.  Judd.  2.".  Wis.  343  (1S6S) ;  Brown  v.  Kalamazoo  Circuit 
Judge,  75  Mich.  274,  42  N.  W.  827,  g  I..  R.  A.  226,  13  Am.  St.  Rep.  43S 
(though  Constitution  directed  such  abolition  as  practicable  of  procedural  dis- 
tinctions between  law  and  equity). 

bol  of  Incidents  of  Judicial  Function. — There  are  many  decisions 
holding  that  the  courts  cannot  be  deprived  of  the  pi  i  ir  pro- 

3,  methods  of  worl  .  surroundings,  and 

its  necessary  to  the  unfettered  discharge  of  th  duties,    state 

ex  rel.  Hove;  v.  Noble,  Us  Ind.  350,  21  X.  B.  244,  4  I,.  It.  A.  101,  in  Am.  St. 
:  (18S9)  (choice  of  Judicial  assistants)  ;    Witter  v.  Cook  County  Coril'rs,  256 
11!.  616,   100   X.   E.   148    110121    (juvenile  court  pre!.  .-;    parte 

Griffiths,  us  I m.i.  83,  20  N.  E.  51.",.  3  I,,  k.  a.  398,  10  Am.  st.  Rep.  Kit  (1889) 
(not  compellable  to  write  headnotes) ;    In  re  Hi  641,8  N.  W. 

552  (1S81)  (same);    Vaughn  v.   H:  L60,    I   S.  V.'.  751   (18S7)  (nor  to 

give   written  opinions)  ;    Houston   v.    Williams,    V.\   ■ 
(1859)  (same);    In  re  Janitor  of  Supreme  Court,  :',.".  Wis.  -110  ilsT: 

:     State   ex    rel.    Howard    v.    Smith.    1."    Mo.    App.     112    (1 
Board  of  Com'rs  of  White  County  v.  Gwln,   136  Ind.  562,  36  N.   E. 
E.  K.  A.  402  (1894)  (repairs  to  court  room);    Board  ot  Com'rs  of  Vigo 
v.  Stout,  136  Ind.  53,  35  N.  E.   693,  22   E  It.  A.  39S  (1S93)  (control  of  court 
Ham.  Const. I,. — (j 


82  PRELIMINARY  topics  (Part  1 

peal."  The  power  so  conferred  on  the  court  is  described  in  the  act 
of  1893  as  the  power  to  approve  and  adopt  a  location  and  lay-out  of 
a  street  railway,  with  such  modifications  therein  as  shall  seem  proper, 
in  respect  to  the  streets  to  be  occupied,  the  location  of  the  same  as 
to  grade  and  to  the  center  line  of  the  streets,  and  changes  to  be  made 
in  the  street,  the  kind  and  quality  of  the  track  to  be  used,  the  mo- 
tive power  to  be  used,  and  the  method  of  applying  the  same.  Can 
such  powers  be  conferred  on  the  superior  court?  The  limitation  of 
their  exercise  to  cases  where  there  has  been  a  prior  failure  of  a  mu- 
nicipal board  to  act  cannot  affect  the  principle  involved.  If  the  legis- 
lature can  confer  the  power  in  a  limited  class  of  cases  by  calling  an 
original  application  for  its  exercise  an  "appeal,"  it  can  confer  the 
power  in  all  cases  without  limitation.     *     *     * 

The  power  which  Judge  Hall  was  asked  to  exercise  in  the  present 
case  does  not  seem  to  us  to  be  a  judicial  power,  within  the  meaning 
of  our  Constitution.  It  is  claimed  that  the  difficulty  of  defining  the 
powers  of  government  renders  impracticable  the  enforcement  by 
this  court  of  their  division,  and  so  makes  nugatory  the  most  impor- 
tant command  of  the  Constitution.  *  *  *  But  the  difficulty  now 
alleged  is  more  apparent  than  substantial.  *  *  *  One  controlling 
consideration  in  deciding  whether  a  particular  act  oversteps  the  lim- 
its of  judicial  power  is  the  necessary  inconsistency  of  such  acts  with 
the   independence   of   the   judicial   department,   and   the    preservation 

house  elevator) ;  Dahnke  v.  People,  168  III.  102,  48  N.  E.  137,  39  L.  R.  A.  197 
11897)  (assignment  of  rooms) ;  Belvin  v.  City  of  Richmond,  S5  Va.  574,  8  S. 
E.  378,  1  L.  R.  A.  807  (1SSS)  (control  of  noisy  street  near  court) ;  Ex  parte 
City  of  Birmingham,  134  Ala.  609,  33  South.  13,  59  L.  R.  A.  572  (1902)  (same). 

May  a  court,  whose  jurisdiction  is  subject  to  legislative  control,  be  deprived 
of  the  power  to  pass  upon  the  constitutionality  of  a  statute  which  it  is  other- 
wise empowered  to  consider  and  enforce?  See  J.  W.  Bryan  in  41  Am.  L.  Rev. 
S34-^3 ;   A.  W.  Richter  in  21  Jour,  of  Pol.  Econ.  281. 

Judicial  Control  of  Admission  to  Bak. — The  power  of  the  legislature  to 
compel  the  admission  to  the  bar  of  persons  who  have  not  complied  with  re 
quirenients  exacted  by  the  courts  is  more  frequently  denied  than  affirmed. 
In  denial:  In  re  Day,  181  111.  73,  54  N.  E.  646,  50  L.  R.  A.  519  (1S99)  (cases)  ; 
Splane's  Petition,  123  Pa.  527,  16  Atl.  481  (1SS9).  In  affirmation:  In  re  Coop- 
er, 22  N.  Y.  67  (1SG0) ;  in  re  Applicants  for  License.  143  N.  C.  1,  55  N.  E. 
635,  10  L.  R.  A.  (N.  S.)  2S8,  10  Ann.  Cas.  187  (1906)  (legislature  required  ad- 
mission of  persons  of  bad  character)  (cases).  The  legislative  power  is  admit- 
ted to  exclude  from  the  bar  persons  not  complying  with  reasonable  require- 
ments. In  re  Day,  above,  181  111.  94,  95,  54  N.  E.  646,  50  L.  R.  A.  519.  See, 
as  to  the  effect  of  constitutional  provisions  in  Indiana,  In  re  Leach,  134  Ind. 
065,  34  N.  E.  641,  21  L.  R.  A.  701  (1S93). 

Legislative  Regulation  of  Executive  Pardoning  Power. — Most  of  our 
Constitutions  lodge  the  general  pardoning  power  with  the  executive.  For  tiie 
extent  to  "Which  this  is  subject  to  legislative  regulation  through  boards  or 
otherwise,  see  People  v.  Cummings,  88  Mich.  249,  50  N.  W.  310,  14  L.  R,  A. 
285  (1S91) ;  In  re  Conditional  Discharge  of  Convicts,  73  Vt.  414,  51  Atl.  10, 
56  L.  R.  A.  658  (1901) ;  Kite  v.  State,  114  Tenn.  646,  88  S.  W.  941,  4  Ann. 
Cas.  1108  (1905),  annotated  in  1  L.  R.  A.  (N.  S.)  520;  Ex  parte  Ridley,  3  Okl. 
Cr.  350,  106  Pac.  549,  26  L.  R.  A.  (N.  S.)  110  (1910).  As  to  the  judicial  power 
to  suspend  sentence  after  conviction,  see  People  ex  rel.  Forsyth  v.  Court  of 
Sessions  of  Monroe  County,  141  N.  Y.  288,  36  N.  E.  386,  23  L.  R.  A.  856  (1S94), 
and  14  L.  R.  A.  2S5,  note. 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   83 

of  its  sphere  of  action  distinct  from  that  of  the  legislative  and  ex- 
ecutive departments.  A  main  purpose  of  the  division  of  powers  be- 
tween legislature  and  judicature  is  to  prevent  the  same  magistracy 
from  exercising  in  respect  to  the  same  subject  the  functions  of  judge 
and  legislator.  This  union  of  functions  is  a  menace  to  civil  liberty,  and 
is  forbidden  by  the  Constitution.  There  is  no  intrinsic  difficulty  in  rec- 
ognizing a  plain  infraction  of  such  prohibition.  It  is  true  that  the  dif- 
ferent magistracies  must  act  upon  the  same  subjects,  for  every  mat- 
ter that  may  be  dealt  with  by  the  state  government  may  be  acted  on 
by  each  department  thereof;  but  the  action  must  be  that  belonging 
to  the  department  whose  powers  are  invoked. 

The  main  difficulties  suggested  in  argument  result  from  a  failure 
•  to  distinguish  between  the  exercise  of  a  legitimate  power  and  the 
employment  of  necessary  means  for  exercising  that  power.  The  grant 
of  the  powers  embraced  in  one  of  the  great  departments  of  govern- 
ment carries  with  it  the  right  to  use  means  appropriate  to  the  exer- 
cise of  that  power.  Any  attempt  to  cripple  the  power  through  meta- 
physical classification  of  the  means  essential  to  its  exercise  must  pro- 
duce difficulties,  if  not  absurdities.  For  example,  the  power  to  make 
laws  may  require  the  accurate  ascertainment  of. facts.  For  this  pur- 
pose, witnesses  must  be  summoned,  examined,  and  conclusions  drawn 
from  their  conflicting  testimony.  This  is  a  means  peculiarly  appro- 
priate to  the  judicial  power  and  the  ordinary  mark  of  an  exercise.' 
of  that  power;  yet,  when  so  employed  by  the  legislature  (without 
violation  of  other  constitutional  provisions),  it  is  a  means  within  the 
limits  of  legislative  power.  But  should  the  legislature,  after  the  pas- 
sage of  an  act,  attempt,  by  another  act,  to  adjudicate  the  rights  of 
parties  which  have  arisen  under  its  provisions,  such  act,  although 
only  means  appropriate  to  legislation  might  be  employed,  would  be 
an  exercise  of  judicial,  and  not  of  legislative,  power.  It  would  be 
void,  because  it  involves  the  union,  in  the  same  magistracy,  in  respect 
to  the  same  matter,  of  the  functions  of  judge  and  legislator.  Again, 
there  are  certain  necessary  executive  acts  which  cannot  be  performed 
without  the  power  of  enforcing  immediate  obedience  to  an  order  au- 
thorized by  law.  The  employment  of  legal  restraint  for  the  purpose 
of  securing  the  essential  immediate  obedience  is  a  means  peculiarly 
appropriate  to  the  exercise  of  judicial  power;  but  for  such  purpose, 
and  subject  to  the  restrictions  of  other  provisions  of  the  Constitution, 
it  is  a  means  within  the  limits  of  the  executive  power.  In  re  Ap- 
plication of  Clark,  65  Conn.  17,  31  Atl.  522,  28  L.  R.  A.  242;  Den 
ex  dem.  Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  272,  15  L. 
Ed.  372.  So,  means  of  a  legislative  nature  must  be  used  by  courts 
in  establishing  necessary  rules  of  practice,  and  by  executive  officers 
in  making  regulations  for  the  conduct  of  subordinates.  Again,  ap 
pointment  to  office  is  in  the  nature  of  an  executive  act.  Apart  from 
the  purpose  of  the  appointment,  it  is  an  exercise  of  executive  power 
Our  own  Constitution,  like  most  constitutions,  provides  for  certain 


84  preliminary  topics  (Part  1 

elective  and  legislative  appointments;  but,  except  in  the  cases  speci- 
fied, appointment  to  office  is  an  exercise  of  executive  power,  unless 
used  as  a  means  appropriate  to  the  exercise  of  powers  granted  to 
another  department,  and,  when  so  used,  it  is  not  the  exercise  of  ex- 
ecutive power,  within  the  meaning  of  the  Constitution.     *     *     * 

Under  our  state  Constitution,  appointments  other  than  those  whose 
mode  is  prescribed  are  governed  by  the  division  of  governmental 
powers.  This  question  has  never  come  before  us  directly.  It  was 
incidentally  considered  in  some  recent  cases  in  connection  with  the 
law  allowing  an  appeal  from  the  action  of  county  commissioners  in 
granting  licenses.  In  Smith's  Appeal,  65  Conn.  135,  31  Atl.  529,  we 
held  that  the  statute  required  the  county  commissioners  to  select,  as 
the  recipient  of  a  license,  one  having  "a  personal  fitness  to  perform 
the  quasi  public  duties  required  by  law  of  a  licensee" ;  i.  e.  one  who 
is  shown  to  be  suited  or  adapted  to  the  orderly  conduct  of  a  busi- 
ness which  the  law  regards  as  dangerous  to  public  welfare,  unless 
conducted  by  a  carefully  selected  person  duly  licensed,  whose  fitness 
to  the  legal  requirements  must  be  determined  in  view  of  the  statutory 
regulations.  In  Hopson's  Appeal,  65  Conn.  140,  31  Atl.  531,  we  held 
that  the  selection  of  appointment  of  such  a  licensee  was  a  means 
apparently  appropriate  both  to  the  exercise  of  executive  and  judicial 
power,  [and]  that  the  uniform  practice  of  courts  and  legislature  in 
so  treating  such  appointment  might  be  safely  accepted  when  the  dis- 
tinction to  be  drawn  must  be  subtle  and  doubtful.1     *     *     * 

i  Regarding  the  power  to  grant  licenses  to  sell  liquor,  it  was  said  in  this 
case  by  Hamersley,  J.  (65  Conn.  pp.  145-147,  31  Atl.  532):  "The  subject-mat- 
ter of  jurisdiction  is  the  selection,  under  statutory  limitations,  of  a  person 
suited  to  perform  his  part  in  carrying  out  a  system  of  police  regulation.  The 
essential  function  of  the  selecting  tribunal  is  the  giving  effect  to  a  police  reg- 
ulation incidentally  involving  private  rights  or  interests.  It  is  evident  that 
such  a  function  cannot  be  executed  without  the  use  of  means  that  are  in 
their  nature,  independently  of  the  purpose  of  their  use,  executive  as  well 
as  judicial.  We  think  such  a  function  lies  on  the  border  line  of  the  division 
between  executive  and  judicial  power,  and  that  it  is  competent  for  the  legis- 
lature to  commit  its  exercise  either  to  judicial  or  executive  officers,  as  may 
be  found  necessary  for  the  most  efficient  enforcement  of  its  police  regula- 
tions. *  *  *  The  granting  of  a  license  is  not  so  exclusively  an  executive 
function  that  the  legislature  has  no  power  to  confide  it  to  a  court,  but  it  is 
nevertheless  very  clear  that  the  function  is  different  from  that  of  settling  dis- 
puted rights  in  the  ordinary  course  of  a  judicial  trial.  The  technical  rules 
which  bind  a  court  in  such  a  trial  have  been  developed  by  the  exigencies  of 
judicial  combats,  where  each  party  is  entitled,  ex  debito  justitiffi,  to  have  a 
judgment,  In  case  he  maintains  the  facts  alleged  by  testimony  that  must  be 
received  or  rejected,  and  weighed,  in  strict  compliance  with  the  rules  estab- 
lished for  the  conduct  of  such  combats.  But  the  exercise  of  the  judicial 
function  involved  in  the  proceeding  in  question  calls  for  no  such  trial.  The 
judge  does  not  preside  over  a  judicial  combat,  as  in  the  trial  of  a  civil  action. 
He  receives  aid  in  the  formation  of  his  personal  judgment.  The  parties  he- 
fore  him  may  properly  attempt  to  influence  that  judgment,  but  it  must  be 
reached  by  the  judge,  not  in  subordination  to  the  particular  interests  of  these 
parties,  but  in  the  interests  of  the  public,  in  whose  behalf  an  appeal  to  such 
exercise  of  the  judicial  power  is  allowed.  In  reaching  his  conclusion,  as 
well  as  in  directing  the  production  of  evidence  to  aid  him  in  reaching  that 
conclusion,  he  acts  in  the  exercise  of-  a  judicial  discretion,  which  is  not  the 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS    85 

The  meaning  of  the  act  of  1893,  relating  to  street  railways,  is  un- 
certain in  several  particulars;  but  there  can  be  no  doubt  that  it  con- 
fers on  municipal  authorities,  in  addition  to  certain  executive  powers, 
the  power  of  establishing  regulations  and  conditions  (within  the  lim- 
itations prescribed)  which  shall  control  all  the  street  railways  in  the 
state,  in  the  location,  construction,  and  operation  of  railways.  There 
can  be  no  doubt  that  making  such  regulations  is  essentially  and  dis- 
tinctively a  legislative  function.  It  is  also  certain  that  the  judicial 
power  does  not  include  the  exercise  of  such  a  legislative  function, 
and  that  the  duty  of  making  such  regulations  cannot  be  imposed  upon 
the  superior  court,  because  it  involves  the  exercise  of  legislative 
power  by  the  court,  and  because  a  power  in  the  legislature  to  impose 
such  duties  is  inconsistent  with  the  existence  of  an  independent  and 
separate  judicial  department  of  government.  The  power  to  make 
the  superior  court  a  subordinate  legislative  body  for  one  purpose 
involves  the  power  to  so  utilize  it  for  every  purpose.  *  *  *  We 
have  assumed,  as  was  assumed  in  argument,  that  the  act  of  1895 
purports  to  confer  the  powers  in  question  upon  a  judge,  in  his  ex- 
ercise of  the  judicial  power  vested  in  the  superior  court,  and  does 
not  purport  to  appoint,  for  the  exercise  of  the  powers,  an  executive 
officer,  designated  by  an  official  title,  instead  of  by  name.  If  the 
latter  were  true,  the  judge  would  be  at  liberty  to  accept  or  decline 
the  appointment,  and  this  court  would  have  no  jurisdiction  to  review 
his  action.     *     *     * 

Judgment  reversed.* 

[Baldwin,  J.,  gave  a  dissenting  opinion.] 

subject  of  review,  and  which  is  essential,  for  certain  purposes,  to  the  exercise 
of  judicial  power.    The  discretion  should  be  exercised  in  accordance  with  the 
riate   analogies  of   the   rules   governing   judicial    trials;     but,    in   the 
nature  of  things,  the  court  cannot  be  bound  in  the  particular  application  of 
and  in  the  applical  tvicl   rules  of  law  in 

a  judicial  trial.  The  Instances  of  the  exercise  of  such  discretion  by  courts, 
both  in  reaching  a  result  and  in  the  methods  by  which  the  needed  informa- 
tion la  obtained,  are  familiar." 

This  view  is  generally  held,  even  where  a  wide  discretion  is  given  to  act 
in  the  public  interest.     Intoxicating  Liquor  Cases,  25  Kan.  7.">1.  37  Am.  Hep. 
I'M  (1881);    Tierce  v.  Commonwealth,  73  Ky.  (10  Bush)   0  (1873);  State  ex 
rel.  Kyger  v.  Holt  County  Court  Justices,  -".it  Mo.  521  (18G7);    Attorney  Gen- 
eral ex  rel.  Gillaspie  v.  Justices  of  Guilford  County,  27  N.  «'.  315  (1S44) ; 
Petition  of  Raudeubuseh.  120  Pa.  32S.  11  Atl.  US  (1SSS) ;    Thi 
169   Pa.   Ill,  32  Atl.  100  (1S95)   (Judge   may   exercise  discretion  on  his  own 
Mist  evidence  presented  ;    French  t.  Noel.  22  Grab    (63 
Va.)   -r>t   (1872).     Where  the  court's  duty  is  merely  to  decide  whether  as 
applicant  has  compiled  with  certain  definitely  ascertainable  o 
function  is  more  clearly  judicial.    McCrea  v.  Roberts,  89  Md.  238,  4:: 
44  L.  R.  A.  485  (1S99). 

Contra:    Martin  v.  Symonds,  4  Ml  23   N.  Y.  Snpp.  6S9 

Aquarium  Soe.  v.  Parkinsi  i  Q.  B.  431,  443.    Compare  Appeal 

of  Moynlhan,  75  Conn.  35S,  53  Atl.  003  (19 

»  Accord:  New  York  &  N.  J.  Tel.  Co.  v.  Ro  rough  of  Bound  Brook,  GG  N.  J. 
Law.  168,  48  Atl.  1022  (1901  rone  v.  Lord,  '<i   N.  J.  Law.  136, 

38  Atl.  752  (1S97)].  Contra:  City  of  Zanesville  v.  Zancsville  Telegraph  &  Tele 
phone  Co.,  64  Ohio  St  67,  59  N.  E.  781,  52  L  K.  A.  150,  83  Am.  St  Rep.  725 
(1901)  (court  authorized  to  direct  how  telegraph  lines  should  be  constructed  In 


86  preliminary  topics  (Part  1 

WESTERN  UNION  TELEGRAPH  COMPANY  v.  MYATT. 
(Circuit  Court  of  the  United  States,  District  of  Kansas,  1S99.    98  Fed.  335.) 

[Application  of  complainant  for  a  temporary  injunction  restraining 
the  Kansas  court  of  visitation  from  enforcing  against  complainant 
certain  maximum  rates  prescribed  by  it.  The  facts  appear  in  the  opin- 
ion.] 

Hook,  District  Judge.  The  act  of  the  legislature  creating  the  court 
of  visitation  and  defining  its  jurisdiction  and  powers,  and  the  act  fixing 
the  maximum  rates  for  telegraphic  service,  and  conferring  jurisdiction 
respecting  telegraph  companies  upon  the  court  of  visitation,  are  parts 
of  the  same  general  body  of  legislation  affecting  public  service  cor- 
porations that  was  enacted  at  the  special  session  of  the  Kansas  legis- 
lature of  1898.    *    *    * 

The  exercise  by  the  state  of  the  power  to  regulate  the  conduct  of  a 
business  affected  with  a  public  interest,  and  to  fix  and  determine,  as 
a  rule  for  future  observance,  the  rates  and  charges  for  services  ren- 

city  streets,  whenever  city  and  company  could  not  agree  or  city  delayed  in 
agreeing). 

In  Taul  v.  Gloucester  County,  50  N.  J.  Law,  5S5,  15  Atl.  272,  1  L.  R.  A. 
86  (1888),  it  was  held  that  ;i  .indue  might  be  authorized  by  the  legislature 
to  determine  whether  the  circumstances  had  arisen  upon  the  occurrence 
nf  which  an  election  was  prescribed,  and.  if  so,  to  appoint  a  day  for  the 
election.  Contra:  Dickey  v.  Hurlburt,  5  Cal.  343  (1855);  Board  of  Sup'rs 
of  Election  for  Wicomico  County  v.  Todd,  97  Md.  247,  54  Atl.  903,  02 
L.  R.  A.  809,  99  Am.  St.  Rep.  438  (1903). 

I  ii-ii:kmination  of  Need  of  Muxicipal  Incorporation.  In  State  v.  Simons, 
32  Minn.  540,  542-544,  21  N.  W.  750,  751  (1SS4),  Mitchell,  J.,  said  (holding  in- 
valid a  statute  authorizing  a  district  court  to  order  a  village  incorporated 
upon  petition): 

"It  will  be  observed  that  under  the  provisions  of  this  act  the  legislature 
has  not,  except  as  to  certain  preliminaries,  determined  or  deliued  the  facts 
or  things  upon  the  existence  of  which  the  territory  shall  be  incorporated  as 
a  village.  It  will  also  be  observed  that  the  duty  of  the  court  is  not  simply 
to  inquire  and  ascertain  whether  certain  specified  facts  exist,  or  whether 
certain  specified  conditions  have  been  complied  with,  but  to  proceed  and  deter- 
mine whether  the  interests  of  the  inhabitants  will  be  promoted  by  the  incor- 
poration of  the  village,  and,  if  so,  what  land  ought  in  justice  to  be  included 
within  its  limits.  In  short,  it  is  left  to  the  court  to  decide  whether  public 
interests  will  be  subserved  by  creating  a  municipal  corporation,  and  the  de- 
termination of  this  question  is  left  wholly  to  his  views  of  expediency  and 
public  policy.  That  the  determination  of  such  question  involves  the  exercise 
of  purely  and  exclusively  legislative  power  seems  to  us  too  clear  to  admit 
of  argument.  The  granting  of  all  charters  of  incorporation  involves  the 
exercise  of  legislative  functions.  The  proposition  (says  Dillon)  which  lies 
at  the  foundation  of  the  laws  of  corporations  of  the  country  is  that  they 
all,  public  or  private,  exist  and  can  exist  only  by  virtue  of  express  legislative 
enactment  creating  or  authorizing  the  creation  of  the  corporate  body. 

"All  municipal  corporations  are  mere  auxiliaries  to  the  state  government 
in  the  business  of  municipal  rule.  The  act  of  deciding  when  and  under  what 
circumstances  the  public  interests  require  the  creation  of  these  auxiliaries  or 
aids  to  the  state  government  is  one  of  the  highest  and  most  important  legis- 
lative powers  and  duties.  *  *  *  Had  the  legislature,  by  the  act  in  ques- 
tion, fixed  and  specified  all  the  conditions  and  facts  upon  which  the  incorpora- 
tion of  certain  territory  should   depend,   we  do  not  question   their  right  to 


Ch.  3)   SEPARATION  AND  DELEGATION  OP  GOVERNMENTAL  POWKRS   87 

dered,  is  wholly  a  legislative  or  administrative  function.  The  legis- 
lature may,  in  the  first  instance,  prescribe  such  regulations,  and  fix 
definitely  the  tariff  of  rates  and  charges;  or  it  may  lawfully  delegate 
the  exercise  of  such  powers,  and  frequently  does,  in  matters  of  detail, 
to  some  administrative  board  or  body  of  its  own  creation.  The  es- 
tablishment of  warehouse  commissions,  boards  of  railroad  commis- 
sioners, and  the  powers  usually  committed  to  them,  are  familiar  in- 
stances of  the  delegation  of  such  powers.  But  by  whatever  name 
such  boards  or  bodies  may  be  called,  or  by  what  authority  they  may- 
be established  or  created,  or  however  they  may  proceed  in  the  per- 
formance of  their  duties,  they  are,  in  respect  of  the  exercise  of  the 
powers  mentioned,  engaged  in  the  exercise  of  legislative  or  adminis- 
trative functions  as  important  in  their  character  as  any  that  are  com- 
mitted to  the  legislative  branch  of  the  government  on  the  subject  of 
property  and  property  rights.  In  prescribing  regulations  or  rules 
of  action  under  the  police  power  of  the  state  for  the  safety  and  con- 
venience of  the  public,  or  in  determining  a  schedule  of  rates  and 
charges  for  services  to  be  rendered,  they  are  in  no  sense  performing 

refer  to  some  tribunal  or  body  the  question  of  ascertaining  and  determining 
the  existence  of  these  facts  and  conditions.  Neither  do  we  decide  that  they 
might  not  delegate  certain  legislative  powers  regarding  the  organization  and 
incorporation  of  villages  to  a appropriate  municipal  body  which  might  con- 
stitutionally exercise  local  legislative  powers.  •  •  •  But  the  present  act 
assumes  to  delegate  these  legislative  powers  to  the  district  court, — a  tribunal 
not  authorized  to  exercise  them,  its  Jurisdiction  under  the  Constitution  being 
purely  judicial. 

"Cases  may  be  found  where  it  has  been  held  that  powers  similar  to  those 
conferred  by  this  act  were  properly  delegated  to  certain  so-called  courts,  but 
we  think  it  will  be  found  In  almost  every  instance  that  these  courts  were  not 
exclusively  judicial,  but  also  quasi  municipal  bodies  invested  with  certain 
powers  of  local  legislation.  Such  are  the  county  courts  in  some  states,  which 
take  the  place  of  our  boards  of  county  commissioners  in  the  municipal  gov- 
ernment of  the  county." 

Accord:  People  v.  Town  of  Nevada,  6  Cal.  143  (1S5G)  ;  City  of  Galesburg 
7.  Hawkinson,  75  111.  152  (1874)  [but  see  People  ex  rel.  Longenecker  v.  Nelson, 
133  111.  565,  27  N.  E.  217  (1890)1;  People  ex  rel.  Shumway  v.  Bennett.  29 
Mich.  451.  IS  Am.  Pep.  107  (1874) ;  In  re  Ridgeliehl  I'ark,  54  N.  J.  Law,  288. 
23  Atl.  074  (1S92)  ;  Territory  ex  rel.  Kelly  v.  Stewart,  1  Wash.  9S,  23  l'ac. 
405,  8  L.  It.  A.  100  (1890) ;  In  re  Incorporation  of  Village  of  North  Milwau- 
kee  93  Wis.  616,  67  \.  W.  1088,  S3  I..  R.  A.  638  (1896)  teases). 

Contra  (upholding  the  statutory  power  of  courts  to  determine  the  need  for 
Incorporation  or  the  boundaries  of  proposed  municipalities):  Forsythe  v.  City 
of  Hammond  (C.  C.)  OS  led.  771  (1895);  Forsythe  v.  City  of  Hammond.  142 
I  ml.  505,  40  N.  E.  207,  41  N.  K.  050,  30  L.  R.  A.  r.Tti  (1895)  |  city  of  Burlington 
v.  Leebrick,  43  Iowa.  252  (1876)  :    Callen  v.  City  of  junction  City,  43  Kan.  ('.27. 

23  Pac.  652,  7  L.  R.  A.  736  (1890);  Morton  v.  Woodford,  99  Ky.  307,  35  S.  W. 
U12  (1896);    Wahoo  v.  Dickinson,  23  Neb.  426,  30  N.  \V.  813  (1SSS) ;  State  v. 

Cltv  of  Cincinnati,  52  Ohio  St.  419,  450-453,  40  N.  E.  50S,  27  L.  K.  A.  737 
(1S95)  (semble);  In  re  Prospect  Park  Borough,  100  Pa.  502,  81  Atl.  254  (1S95). 
So,  also,  where  no  discretion  Is  allowed  the  court,  after  petitioners  have  taken 
certain  preliminary  steps.  People  v.  Fleming,  10  Colo.  553,  16  Pac.  298  (1S87) : 
l'ord  v.  Town  of  North  Des  Moines,  80  Iowa,  020,  45  N.  W.  1031  (1890) ;  State 
v.  Poland.  30  Minn.  29,  14  N.  W.  58  (1882);  Kayser  v.  Trustees  of  Bremen.  10 
Mo.  ss  (1852);  Mayor,  etc.,  of  City  of  Morristowu  v.  Shelton,  1  Head  (Teim  | 

24  (1868);  Elder  y.  Incorporators  of  Central  City,  40  W.  Va.  222,  21  S.  i: 
t;:s  (1895). 


88  PRELIMINARY  topics  (Part   1 

judicial  functions,  nor  are  they  in  any  respect  judicial  tribunals.  The 
distinction  between  legislative  and  judicial  functions  is  a  vital  one, 
and  it  is  not  subject  to  alteration  or  change,  either  by  legislative  act 
or  by  judicial  decree,  for  such  distinction  inheres  in  the  constitution 
itself,  and  is  as  much  a  part  of  it  as  though  it  were  definitely  defined 
therein.  When  the  legislature  has  once  acted,  either  by  itself  or 
though  some  supplemental  and  subordinate  board  or  body,  and  has 
prescribed  a  tariff  of  rates  and  charges,  then  whether  its  action  is 
violative  of  some  constitutional  safeguard  or  limitation  is  a  judicial 
question,  the  determination  of  which  involves  the  exercise  of  ju- 
dicial functions.  The  question  is  then  beyond  the  province  of  legisla- 
tive jurisdiction. 

As  applied  to  this  case,  the  power  of  the  state  to  fix  or  limit  the 
charges  of  telegraph  companies  for  the  transmission  and  delivery  of 
telegraphic  messages  is  a  legislative  one,  but  whether  the  rates  so 
fixed  or  limited  are  unreasonable  to  the  extent  that  the  enforcement 
of  their  observance  would  amount  to  a  deprivation  of  the  complain- 
ant of  its  property  without  due  process  of  law  and  a  denial  of  the 
equal  protection  of  the  laws,  and  therefore  violative  of  the  first  sec- 
tion of  the  fourteenth  amendment  to  the  constitution,  is  a  question 
for  the  courts.  *  *  *  It  follows,  therefore,  as  a  corollary  of 
this  doctrine,  that  courts  have  no  power  to  prescribe  a  schedule  of 
rates  and  charges  for  persons  engaged  in  a  public  or  quasi  public 
service,  because  that  is  a  legislative  prerogative,  and  that  the  legisla- 
ture has  no  power  to  forestall  the  judgment  of  the  courts  by  declaring 
that  a  tariff  or  schedule  prescribed  by  it  is  a  finality,  and  thus  prevent 
an  inquiry  into  the  reasonableness  thereof  by  the  courts  in  a  contro- 
versy properly  challenging  such  reasonableness.  The  legislative  pre- 
rogative is  the  power  to  make  the  law,  to  prescribe  the  regulation  or 
rule  of  action.  The  jurisdiction  of  the  courts  is  to  construe  and  apply 
the  law  or  regulation  after  it  is  made.  The  two  functions  are  es- 
sentially and  vitally  different. 

In  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota,  134  U.  S.  418,  10 
Sup.  Ct.  462,  702,  33  L.  Ed.  970,  the  legislative  act  authorized  a  rail- 
road and  warehouse  commission  to  compel  common  carriers  to  adopt 
such  rates  and  charges  as  the  commission  "shall  declare  to  be  equal 
and  reasonable."  The  supreme  court  of  the  state  held  that  the  find- 
ing of  the  commission  was  final  and  conclusive,  and  that  the  law  nei- 
ther contemplated  nor  allowed  an  issue  to  be  made,  nor  an  inquiry  to 
be  had,  as  to  their  equality  and  reasonableness  in  fact.  The  supreme 
court  of  the  United  States  held  that,  if  this  were  the  correct  interpre- 
tation, and  the  decision  of  the  state  court  was  conclusive  upon  that 
point,  the  law  conflicted  with  the  Constitution  of  the  United  States, 
because  it  "deprived  the  company  of  its  right  to  a  judicial  investiga- 
tion under  the  forms  and  with  the  machinery  provided  by  the  wis- 
dom of  successive  ages  for  the  investigation  judicially  of  the  truth 
of  a  matter  in  controversy,  and  substituted  therefor,  as  an  absolute 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWEHS   89 

finality,  the  action  of  a  railroad  commission,  which  in  view  of  the 
powers  conceded  to  it  by  the  state  court,  could  not  be  regarded  as 
clothed  with  judicial  functions,  or  possessing  the  machinery  of  a 
court  of  justice."  This  decision  illustrates  to  some  extent  the  limit 
of  the  power  of  the  legislature  in  respect  of  such  matters.  It  can- 
not place  its  own  enactments  beyond  the  constitutional  jurisdiction 
of  the  courts. 

On  the  other  hand,  as  to  the  province  of  the  courts,  it  was  said  in 
Reagan  v.  Trust  Co.,  154  U.  S.  362,  397,  14  Sup.  Ct.  1047,  1054,  38 
L.  Ed.  1014,  1023:  "The  courts  are  not  authorized  to  revise  or 
change  the  body  of  rates  imposed  by  a  legislature  or  a  commission.1 
They  do  not  determine  whether  one  rate  is  preferable  to  another,  or 
what,  under  all  circumstances,  would  be  fair  and  reasonable  as  be- 
tween the  carriers  and  the  shippers.  They  do  not  engage  in  any 
mere  administrative  work.  But  still  there  can  be  no  doubt  of  their 
power  and  duty  to  inquire  whether  a  body  of  rates  prescribed  by  a 
legislature  or  a  commission  is  unjust  and  unreasonable,  and  such  as 
to  work  a  practical  destruction  to  rights  of  property,  and,  if  found 
so  to  be,  to  restrain  its  operation." 

In  Railway  Co.  v.  Gill,  156  U.  S.  649,  15  Sup.  Ct.  484,  39  L.  Ed. 
567,  it  was  also  said  that  "it  is  not  the  province  of  courts  to  enter 
upon  the  merely  administrative  duty  of  framing  a  tariff  of  rates  for 
carriage."     *     *     * 

In  the  Express  Cases,  117  U.  S.  1,  29,  6  Sup.  Ct.  628,  29  L.  Ed. 
791,  803,  the  court,  in  speaking  of  the  action  of  the  trial  court  in 
fixing  and  regulating  the  terms  upon  which  the  railroad  company  and 
the  express  company  should  do  business,  said:  "In  this  way,  as  it 
seems  to  us,  the  court  has  made  an  arrangement  for  the  business  in- 
tercourse of  these  companies,  such  as,  in  its  opinion,  they  ought  to 
have  made  for  themselves.  *  *  *  The  regulation  of  matters  of 
this  kind  is  legislative  in  its  character,  not  judicial.  To  what  extent 
it  must  come,  if  it  comes  at  all,  from  congress,  and  to  what  extent 
it  may  come  from  the  states,  are  questions  we  do  not  now  undertake 
to  decide;  but  that  it  must  come,  when  it  does  come,  from  some 
source  of  legislative  power,  we  do  not  doubt." 

In  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R.  Co.,  110  U. 
S.  682,  4  Sup.  Ct.  192,  28  L.  Ed.  297,  the  court  said:  "A  court  of 
chancery  is  not,  any  more  than  is  a  court  of  law,  clothed  with  legis- 
lative power.  It  may  enforce,  in  its  own  appropriate  way,  the  spe- 
cific performance  of  an  existing  legal  obligation  arising  out  of  con- 
tract, law,  or  usage,  but  it  cannot  create  the  obligation." 

i  "If  •  •  •  the  legislature  Intended  to  provide  tbat  the  court  should 
put  Itself  In  the  place  of  the  commission,  try  the  matter  de  novo,  and  deter- 
mine what  are  reasonable  rates,  without  regard  to  the  findings  of  the  com 
mission,  such  intent  cannot  be  carried  out,  as  a  statute  which  so  provided 
would  be  unconstitutional.  The  fixing  of  rates  is  a  legislative  or  adminis- 
trative act,  not  a  judicial  one." — Canty,  J.,  in  Steenerson  v.  Great  Northern 
Ry.  Co.,  G9  Minn.  353,  375,  72  N.  W.  713,  716  (1S97). 


90  preliminary  topics  (Part  1 

In  Railway  Co.  v.  Wellman,  143  U.  S.  339,  344,  12  Sup.  Ct.  400, 
402,  36  L.  Ed.  176,  179,  the  court  said  that  "the  legislature  has  power 
to  fix  rates,  and  the  extent  of  judicial  interference  is  protection 
against  unreasonable  rates." 

In  Interstate  Commerce  Commission  v.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.,  167  U.  S.  499,  17  Sup.  Ct.  900,  42  L,  Ed.  243,  Mr.  Justice 
Brewer,  in  delivering  the  opinion  of  the  court,  said :  "It  is  one  thing 
to  inquire  whether  the  rates  which  have  been  charged  and  collected 
are  reasonable, — that  is  a  judicial  act;  but  an  entirely  different  thing 
to  prescribe  rates  which  shall  be  charged  in  the  future, — that  is  a 
legislative  act." 

The  foregoing  will  serve  to  illustrate  sufficiently  the  line  of  de- 
markation  between  legislative  and  judicial  functions  as  respects  the 
subject-matter  under  consideration.     *     *     * 

What,  then,  is  the  nature  of  the  powers  conferred  upon  the  court 
of  visitation?  It  is  apparent  from  even  a  cursory  examination  of 
those  parts  of  the  act  of  the  legislature  which  define  the  primary 
powers  and  jurisdiction  of  that  body  that  they  are  largely  of  a  legis- 
lative or  administrative  character,  and  such  as  do  not  pertain  to  the 
functions  of  a  court.  It  is  difficult  to,  define  the  precise  difference 
between  those  that  are  legislative  and  those  that  are  administrative. 
It  is  unnecessary,  however,  to  do  so  in  this  case,  for  it  is  immaterial 
whether  the  powers  of  that  court,  so  called,  aside  from  those  that  are 
judicial,  are  of  the  one  character  or  of  the  other,  or  are  a  blending  of 
both.  A  court  does  not  (to  use  the  language  of  the  act)  "classify 
freight,"  nor  "require  the  construction  and  maintenance  of  depots, 
switches,  side  tracks,  stock  yards,  cars,  and  other  facilities  for  the 
public  convenience,"  nor  "regulate  crossings  and  intersections  of  rail- 
roads," nor  "regulate  the  operation  of  trains"  over  such  crossings 
and  intersections,  nor  "prescribe  rules  concerning  the  movements  of 
trains  to  secure  the  safety  of  employes  and  the  public,"  nor  "require 
the  use  of  improved  appliances  and  methods  to  avoid  accidents  and 
injuries  to  persons,"  nor  "apportion  transportation  charges  among 
connecting  carriers,"  nor  "regulate  charges  for  part  car-load  and 
mixed  car-load  lots  of  freight,  including  live  stock,"  nor  prescribe 
what  rates  of  transportation  of  freight  and  passengers  shall  be 
charged.  The  regulation  of  such  matters  is  legislative  in  its  character, 
not  judicial.    The  Express  Cases,  supra. 

Of  course,  courts  of  chancery,  in  the  exercise  of  their  equity  ju- 
risdiction, may,  and  frequently  do,  through  the  medium  of  receivers, 
appointed  by  them,  exercise  some  of  such  powers  in  the  administra- 
tion of  property  which  is  the  subject-matter  of  litigation  in  such 
courts,  and  especially  where,  in  order  to  preserve  the  value  of  such 
property  while  it  is  in  the  possession  of  the  court,  it  is  necessary  to 
continue  the  operation  thereof,  and  maintain  it  as  a  going  concern. 
But  it  is  not  in  such  sense  that  these  powers  were  conferred  upon 
the  court  of  visitation.    Courts  also  have  the  undoubted  power  to  de- 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   91 

termine  some  of  these  matters,  if  they  properly  lie  in  the  road  to  the 
ultimate  adjudication  of  other  existing  controversies  concerning 
which  the  jurisdiction  of  the  court  has  been  invoked;  as,  by  way  of 
illustration,  where,  in  litigation  over  the  destruction  of  life  or  prop- 
erty in  a  railroad  accident,  it  becomes  material  to  ascertain  whether 
the  company  used  proper  appliances  and  methods  to  avoid  such  an 
occurrence.  Nor  is  it  to  this  end  that  the  powers  mentioned  were 
conferred  upon  the  court  of  visitation.  The  exercise  of  the  powers 
granted  contemplates  the  prescribing  of  rules  and  regulations  for 
future  guidance,  and  the  possession  of  such  powers  by  the  court  of 
visitation  makes  it  one  of  the  potential  agencies  of  the  legislative 
department  of  the  state.  To  use  the  expression  of  a  learned  justice 
of  the  supreme  court,  the  court  of  visitation,  in  respect  of  such  func- 
tions, is  "an  active,  seeking,  supervising  body;  the  eye  and  the  ac- 
tivity of  the  state."  As  to  such  powers  and  duties  the  court  of  visita- 
tion is  not,  and  cannot  be,  a  court.  Practically  all  of  the  powers  then 
possessed  by  the  board  of  railroad  commissioners  of  Kansas,  which 
was  purely  an  administrative  body,  were  conferred  upon  the  court  of 
visitation,  and  as  an  evidence  of  the  legislative  purpose  and  intent 
the  then  existing  laws  relating  to  the  appointment,  powers,  and  du- 
ties of  the  board  of  railroad  commissioners  were,  by  act  of  the  legis- 
lature, repealed  a  few  days  after  the  passage  of  the  act  creating  the 
court  of  visitation.     *     *     * 

It  was  argued  at  the  bar  on  behalf  of  the  defendants  that  the  pow- 
ers conferred  upon  the  court  of  visitation  are  judicial  in  their  char- 
acter, for  the  reason  that  the  law  contemplates  an  investigation  and 
consideration  on  the  part  of  the  court  before  final  action  is  had ;  and 
it;  is  particularly  recalled  that  such  contention  was  made  with  refer- 
ence to  paragraphs  8  and  9  of  section  8  of  the  act,  which  authorize 
the  court  of  visitation  to  "prescribe  rules  concerning  the  movements 
of  trains  to  secure  the  safety  of  employes  and  the  public,  and  to  re- 
quire the  use  of  improved  appliances  and  methods  to  avoid  accidents 
and  injuries  to  persons."  Investigation  as  a  precedent  to  action  is 
not  exclusively  an  attribute  of  a  judicial  proceeding.  Counsel  con- 
founds the  usual  legislative  inquiry  which  precedes  the  passage  of 
laws  with  the  judicial  consideration  of  a  controversy  in  a  court  of 
justice.  It  certainly  would  not  be  claimed  that  the  hearing  and  con- 
sideration by  committees  of  legislative  bodies  of  the  views  and  opin- 
ions of  men  having  special  knowledge  of  matters  to  be  affected  by 
proposed  legislation  constitute  in  any  sense  the  exercise  of  judicial 
functions,  or  that  such  committees  are  judicial  tribunals.  Nor  does 
it  follow  that,  because  the  exercise  of  the  powers  conferred  upon 
the  court  of  visitation  requires  the  use  of  judgment  and  discretion, 
such  powers  are  judicial  in  their  nature,  as  that  would  make  every  ex- 
ecutive act  and  legislative  act  requiring  judgment  and  discretion  a 
judicial  act.  To  use  the  language  of  the  supreme  court  of  Kansas 
in  The  Auditor  v.  Railroad  Co.,  6  Kan.  509,  7  Am.  Rep.  575:    "It 


92  preliminary  topics  (Part  1 

certainly  could  not  be  so  in  the  sense  in  which  our  Constitution  uses 
the  term,  or  it  would,  of  necessity,  obliterate  the  lines  by  which  the 
framers  of  that  instrument  sought  to  keep  separate  and  distinct  the 
three  branches  of  our  government."  As  was  said  in  Re  Huron,  58 
Kan.  156,  48  Pac.  576,  36  L.  R.  A.  824,  62  Am.  St.  Rep.  614:  "Not 
every  one  who  hears  testimony  and  exercises  discretion  and  judgment 
in  a  matter  submitted  to  him  is  necessarily  a  judicial  officer." 

Counsel  say :  "The  decision  of  a  question  which  may  arise  between 
different  railroad  companies  as  to  how  much  of  a  certain  charge  each 
shall  have  is  as  much  a  judicial  function  as  to  decide  how  much  of 
an  estate  each  of  the  heirs  shall  receive."  That  may  be  true  where 
there  is  such  a  controversy  pending  in  a  court  between  the  railroad 
companies  themselves,  but  that  is  not  the  sense  in  which  the  power 
is  conferred  upon  the  court  of  visitation.  The  intent  of  the  act  of 
the  legislature  was,  not  to  authorize  the  adjudication  of  distinct  con- 
troversies of  that  character  between  contending  railroad  companies, 
but,  instead  thereof,  the  laying  down  of  a  rule  in  behalf  of  the  state 
and  the  public,  and  the  securing  of  the  future  obedience  thereto  by 
the  imposition  of  fine  and  imprisonment.  Is  not  that  process  legisla- 
tion, and  is  not  the  result  a  regulation  or  a  law? 

The  fact  that  the  legislature  denominated  the  tribunal  a  court  is 
not  conclusive  as  to  its  true  character,  nor  as  to  the  nature  of  the 
jurisdiction  and  powers  conferred  upon  it.  That  question  is  not  de- 
termined by  the  terminology  employed  in  the  act,  although  the  legis- 
lative purpose  and  intent  may  be  evidenced  thereby,  but  it  is  deter- 
mined rather  by  the  ascertainment  of  the  essential  nature  of  the  juris- 
diction and  powers  themselves.  The  Constitution  of  the  state  of 
Kansas  authorizes  the  creation  of  courts  inferior  to  the  supreme 
court  by  act  of  the  legislature,  and,  by  necessary  implication,  the  de- 
fining of  the  jurisdiction  of  the  courts  so  created.  Article  3,  §  1. 
Nevertheless  such  jurisdiction  must,  in  all  essential  particulars,  be 
judicial  in  its  character,  and  the  constitutional  authority  for  other 
courts  than  those  specifically  named  in  the  Constitution  must  be  so 
construed  and  limited.  Under  the  Constitution,  the  legislature  may 
not  create  a  court  for  the  exercise  of  its  own  legislative  functions,  or 
for  the  performance  of  purely  administrative  or  executive  duties ; 
and  though  a  tribunal,  as  constituted  by  legislative  act,  may  be  de- 
nominated a  court,  may  possess  a  seal,  and  be  clothed  with  the  usual 
and  customary  vesture  of  a  judicial  tribunal,  yet  its  real  character 
is  determined  by  its  jurisdiction  and  the  functions  it  is  empowered  to 
exercise.  The  legislature  may  create  a  court  of  visitation,  but  it  can 
only  be  a  court  in  respect  of  matters  of  a  judicial  nature,  and  such 
as  are  properly  incidental  thereto.  It  is  clear,  however,  that  it  was 
the  intention  of  the  legislature  in  the  enactment  of  the  law  to  confer 
certain  judicial  powers  upon  the  court  of  visitation  in  respect  of  the 
same  matters  over  which  that  court  was  authorized  to  exercise  legis- 
lative  and    administrative    functions.      It   was   clearly  the   legislative 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   93 

intent  to  confer  upon  the  court  of  visitation  not  only  the  power  to 
prescribe  rules  and  regulations  for  the  government  of  railroad  and 
telegraph  companies  in  their  relations  to  the  public  and  to  each  other, 
but  also  the  power  to  pass  judicially  upon  the  validity  of  such  rules 
and  regulations,  to  render  judgment  accordingly,  and  full  power  to 
execute  their  orders  and  judgments.  By  the  language  of  the  act 
under  consideration,  the  court  of  visitation  can  prescribe  a  tariff  of 
rates  and  charges,  judicially  determine  the  reasonableness  thereof, 
and  then  enforce  their  judicial  determinations  in  as  radical  and  com- 
plete a  method  as  could  be  devised.  Concisely  stated,  the  court  of 
visitation  may  make  laws,  sit  judicially  upon  their  own  acts,  and  then 
enforce  their  enactments  which  have  received  their  judicial  sanction. 
Can  this  be  done?     *     *     * 

Counsel  also  contend  that  there  is  no  provision  of  the  Constitution 
of  the  state  of  Kansas  inhibiting  the  commingling  of  legislative,  ju- 
dicial, and  executive  powers,  and  the  conferring  by  the  legislature 
of  the  functions  of  one  department  upon  the  other.  *  *  *  But 
there  is  no  such  omission  in  the  Constitution  of  Kansas.  It  provides 
as  follows:  Article  1,  §  1 :  "The  executive  department  shall  consist 
of  a  governor,  lieutenant  governor,  secretary  of  state,  auditor,  treas- 
urer, attorney  general  and  superintendent  of  public  instruction,"  etc. 
Article  2,  §  1 :  "The  legislative  power  of  this  state  shall  be  vested 
in  a  house  of  representatives  and  senate."  Article  3,  §  1 :  "The  ju- 
dicial power  of  this  state  shall  be  vested  in  a  supreme  court,  district 
courts,  probate  courts,  justices  of  the  peace,  and  such  other  courts 
inferior  to  the  supreme  court  as  may  be  provided  by  law,"  etc. 

That,  in  a  broad  sense,  the  powers  of  one  of  these  departments 
shall  not  be  conferred  upon  either  of  the  others,  is  not  only  within 
the  true  spirit  of  these  provisions,  but  also  substantially  within  the 
letter  thereof ;  and  the  addition  thereto  of  an  express  prohibitory 
declaration,  such  as  is  contained  in  the  Constitutions  of  some  of  the 
states,  that  the  powers  of  one  department  shall  not  be  exercised  by 
another,  would  add  very  little  to  their  effect,  so  far  as  concerns  the 
question  under  consideration.  The  universal  doctrine  of  American 
liberty  under  written  Constitutions  requires  the  distribution  of  all 
the  powers  of  government  among  three  departments, — legislative,  ju- 
dicial, and  executive, — and  that  each,  within  its  appropriate  sphere. 

be  supreme,  co-ordinate  with,  and  independent  of,  both  the  others. 

»     *     * 

There  is  a  full  accord  among  elementary  writers  and  publicists  who 
treat  of  the  growth  and  development  of  the  principles  of  an  enlight- 
ened government  and  the  relations  between  the  state  and  the  individual. 
Dr.  Paley  says:  "The  first  maxim  of  a  free  state  is  that  the  laws  be 
made  by  one  set  of  men  and  administered  by  another;  in  other  words, 
that  the  legislative  and  judicial  characters  be  kept  separate."  Moral 
Philosophy,  bk.  6,  c.  8. 


04  PRELIMINARY    TOPICS  (Part    1 

Blackstone  says:  "In  this  distinct  and  separate  existence  of  the 
judicial  power  in  a  peculiar  body  of  men,  nominated,  indeed,  but  not 
removable  at  pleasure,  by  the  crown,  consists  one  main  preservative 
of  the  public  liberty,  which  cannot  subsist  long  in  any  state  unless 
the  administration  of  common  justice  be  in  some  degree  separated 
both  from  the  legislative  and  also  from  the  executive  power.  Were 
it  joined  with  the  legislative,  the  life,  liberty,  and  property  of  the 
subject  would  be  in  the  hands  of  arbitrary  judges,  whose  decisions 
would  be  then  regulated  only  by  their  own  opinions,  and  not  by  any 
fundamental  principles  of  law,  which,  though  legislators  may  depart 
from,  yet  judges  are  bound  to  observe.  Were  it  joined  with  the  ex- 
ecutive, this  union  might  soon  be  an  overbalance  for  the  legislative." 
1  Bl.  Comm.  269. 

Baron  Montesquieu  writes:  "When  the  legislative  and  executive 
powers  are  united  in  the  same  person,  or  the  same  body  of  magis- 
trates, there  can  be  no  liberty,  because  apprehensions  may  arise,  lest 
the  same  monarch  or  senate  should  enact  tyrannical  laws,  to  execute 
them  in  a  tyrannical  manner.  Again,  there  is  no  liberty  of  the  ju- 
diciary power  if  it  be  not  separated  from  the  legislative  and  execu- 
tive. Were  it  joined  with  the  legislative,  the  life  and  liberty  of  the 
subject  would  be  exposed  to  arbitrary  control;  for  the  judge  would 
be  the  legislator.  Were  it  joined  to  the  executive  power,  the  judge 
might  behave  with  violence  and  oppression.  There  would  be  an  end 
of  everything  were  the  same  man,  or  the  same  body,  whether  of  nobles 
or  of  the  people,  to  exercise  these  three  powers, — that  of  enacting 
laws,  that  of  executing  the  public  resolutions,  and  of  trying  the  causes 
of  individuals."     Spirit  of  Laws,  bk.  11,  c.  6. 

It  is  true  that  this  is  ancient  doctrine,  but  it  serves  no  ill  purpose 
to  renew  familiarity  therewith,  especially  in  times  when  it  is  claimed 
that  the  complexity  of  commercial  affairs  affords  sufficient  cause  to 
either  undermine  or  openly  destroy  those  safeguards  that  are  deemed 
so  essential  to  the  permanency  of  a  free  government. 

In  the  distribution  of  the  powers  of  government  between  the  three 
departments  the  federal  Constitution  is  as  general  in  its  provisions 
as  that  of  the  state  of  Kansas.  There  is  the  same  absence  of  any 
positive  and  specific  prohibition  against  the  conferring  of  the  powers 
of  the  one  upon  the  other.  In  Kilbourn  v.  Thompson  [103  U.  S.  191, 
26  L.  Ed.  377]  it  was  said:  "It  is  believed  to  be  one  of  the  chief 
merits  of  the  American  system  of  written  constitutional  law  that  all 
the  powers  intrusted  to  government,  whether  state  or  national,  are 
divided  -into  the  three  grand  departments,  the  executive,  the  legisla- 
tive, and  the  judicial ;  that  the  functions  appropriate  to  each  of 
these  branches  of  government  shall  be  vested  in  a  separate  body  of 
public  servants,  and  that  the  perfection  of  the  system  requires  that 
the  lines  which  separate  and  divide  these  departments  shall  be 
broadly  and  clearly  defined.  It  is  also  essential  to  the  successful 
working  of  this  system  that  the  persons  intrusted  with  power  in  any 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   95 

one  of  these  branches  shall  not  be  permitted  to  encroach  upon  the 
powers  confided  to  the  others,  but  that  each  shall,  by  the  law  of  its 
creation,  be  limited  to  the  exercise  of  the  powers  appropriated  to  its 
own  department,  and  no  other.  *  *  *  The  Constitution  declare^ 
that  the  judicial  power  of  the  United  States  shall  be  vested  in  one 
supreme  court>  and  in  such  inferior  courts  as  the  congress  may,  from 
time  to  time,  ordain  and  establish.  If  what  we  have  said  of  the  divi- 
sion of  the  powers  of  the  government  among  the  three  departments 
be  sound,  this  is  equivalent  to  a  declaration  that  no  judicial  power  is 
vested  in  the  congress,  or  either  branch  of  it,  save  in  the  cases  spe- 
cifically enumerated  to  which  we  have  referred."     *     *     * 

The  decisions  of  the  supreme  court  of  Kansas  upon  the  interpreta- 
tion of  the  fundamental  law  of  the  state  in  regard  to  this  question 
and  the  application  thereof  to  legislative  enactments  are  to  the  same 
effect,  and  in  such  matters  they  are  binding  upon  this  court.  *  *  * 
[Here  follow  quotations  from  In  re  Huron,  58  Kan.  152.  48  Pac. 
576,  36  L.  R.  A.  824,  62  Am.  St.  Rep.  614,  In  re  Sims,  54  Kan.  1,  37 
Pac.  135,  25  L.  R.  A.  110,  45  Am.  St.  Rep.  261,  and  Auditor  v.  Ry. 
Co.,  6  Kan.  500,  7  Am.  Rep.  575.]  Following  the  decisions  of  the 
highest  court  in  the  state,  I  am  therefore  constrained  to  hold  that  the 
act  of  the  legislature  is  violative  of  the  provisions  of  the  Constitution 
of  the  state  of  Kansas.     *     *     * 

Temporary  injunction  granted.' 

*  Accord:  Steenerson  v.  Great  Northern  Ry.  Co.,  69  Minn.  353,  72  N.  W.  713 
(1807);  Brymer  v.  Butler  Water  Co.,  179  Pa.  231.  36  Atl.  249,  36  L.  K.  A. 
260  (1S97) ;  Nebraska  Tel.  Co.  v.  State,  55  Neb.  627,  76  N.  W.  171.  45  D.  B. 
A.  113  (1S0S);  Michigan  Tel.  Co.  v.  City  of  St  Joseph,  121  Mich.  502,  80  N. 
W.  3S3,  47  L.  B.  A.  87,  80  Am.  St.  Rep.  520  (1S99) ;  State  v.  Johnson,  61  Kan. 
803,  60  Pac.  1068,  49  L.  R.  A.  662  (I960)  (compare  Doster,  J.,  dissenting,  al 
page  835  ff.).     See  Troutman  v.  Smith.  105  Ky.  231,  48  S.  W.  1084  (1899). 

The  cases  holding  that  rate-fixing  is  not  a  judicial  function  are  collected 
In  8  L.  R.  A.  (N.  S.)  529  ff.,  in  a  note  to  City  of  Madison  v.  Madison  Gas  & 
Electric  Co.,  129  Wis.  249,  10S  N.  W.  65,  110  Am.  St.  Bep,  944,  9  Ann.  Cas. 
819  (1906)  (no  equitable  jurisdiction  for  this  purpose).  See,  also,  Trent  is  v. 
Atlantic  Coast  Line  Co.,  post,  p.  309;  and  Austral.  Root  Trade  Fed.  v.  Win- 
brow  &  Co.,  11  Com.   L.   Rep.  311  (1910,  Australia  i. 

All  of  the  above  cases  arose  under  state  Constitutions  requiring  a  separa- 
tion of  the  three  great  departments  of  government.  The  Virginia  Constitu- 
tion of  1902  provided  (sections  155,  156)  for  a  Corporation  Commission  in 
which  various  powers  were  united.  Of  this  it  was  said  by  Harrison,  J.,  in 
Winchester  &  S.  By.  Co.  v.  Commonwealth.  100  Va.  264,  267-270.  55  S.  E. 
692,  693  (1906)  [approved  In  Prentls  v.  Atlantic  Coast  Line  Co.,  abovi 

"This  court  has  recognized  the  validity  of  the  State  Corporation  Commis- 
sion as  a  legally  constituted  tribunal  of  the  state,  clothed  with  legislative, 
Judicial,  and  executive  powers.  Atlantic  Coast  Line  v.  Commonwealth,  102 
Va.  599,  40  S.  E.  911 ;  Norfolk,  etc.,  Co.  v.  Commonwealth,  103  Va.  294,  49  S. 
E.  39.  In  the  last-named  case,  at  page  295  of  103  Va..  page  11  of  49  S.  E  . 
it  is  said:  'The  State  Corporation  Commission,  created  by  constitutional  au- 
thority, Is  the  instrumentality  through  which  the  state  exercises  its  govern- 
mental power  for  the  regulation  and  control  of  public  service  corporations. 
For  that  purpose  it  has  been  clothed  with  legislative,  judicial,  and  executive 
powers.'  *  *  *  [Here  follow  references  to  the  exercise  of  both  legtslativi 
and  judicial  powers  by  the  British  House  of  Lords;  to  Calder  v.  Bull.  8  Pall. 
386,  394,  395,  1  L.  Ed.  648,  denying  that  the  federal  Constitution  forbade  a 


96  preliminary  topics  (Part  1 


In  re  JANVRIN. 

/Supreme  Judicial  Court  of  Massachusetts,  1S99.     174  Mass.  514,  55  N.  E. 
381,  47  L.  R.  A.  319.) 

[Case  reserved  upon  a  demurrer  to  a  petition  filed  by  the  select- 
men of  Revere  against  the  Revere  Water  Company,  under  the  statute 
mentioned  in  the  opinion  below,  alleging  that  unreasonable  rates  were 
charged  and  praying  "that  the  court  would  fix  the  rate  to  be  charged 
by  the  company  for  water  suppplied  to  the  inhabitants  of  Revere  at 
a  reasonable  sum."] 

Holmes,  C.  J,  The  only  question  raised  by  the  demurrer  is  the 
constitutionality  of  the  provision  of  St.  1897,  c.  336,  §  1,  under  which 
the  petitioner  proceeds.  This  section  amends  section  23  of  the  met- 
ropolitan water  supply  act  (St.  1895,  c.  48S).  It  embodies  a  scheme 
which  forbids  cities  or  towns  within  10  miles  of  the  state  house  to 
use  water  for  domestic  purposes  from  any  source  not  now  used  by 
them,  except  under  the  statute.  This  prohibition,  standing  alone, 
might  seem  to  put  into  the  hands  of  a  water  company  now  supply- 
state  legislature  to  exercise  judicial  functions,  as  by  granting  new  trial ; 
and  to  Satterlee  v.  Matthewson,  2  Pet  3S0,  413,  7  L.  Ed.  458.] 

"The  doctrine  that  it  is  competent  for  a  state  to  unite  in  one  board  or 
tribunal  some  of  the  legislative,  executive,  and  judicial  powers  of  the  govern- 
ment, as  well  as  the  further  proposition,  that  when  a  state  does  this,  it  vio- 
lates no  prohibition  of  the  federal  Constitution,  and  that  any  such  question 
is  one  for  the  determination  of  the  state,  its  action  in  the  matter  being  ac- 
cepted as  final,  is  well  supported  by  the  more  recent  case  of  Dreyer  v.  Illinois, 
187  U.  S.  71,  84,  23  Sup.  Ct.  2S,  32  (47  L.  Ed.  79)  in  which  Mr.  Justice  Harlan, 
delivering  the  unanimous  opinion  of  the  court,  says:  'Whether  the  legislative, 
executive,  and  judicial  powers  of  a  state  shall  be  kept  altogether  distinct  and 
separate,  or  whether  persons  or  collections  of  persons,  belonging  to  one  de- 
partment, may,  in  respect  to  some  matters,  exert  powers  which,  strictly  speak- 
ing, pertain  to  another  department  of  government,  is  for  the  determination 
of  the  state,  and  its  determination  one  way  or  the  other  cannot  be  an  ele- 
ment in  the  inquiry  whether  the  due  process  of  law  prescribed  by  the  four- 
teenth amendment  has  been  respected  by  the  state  or  its  representatives  when 
dealing  with  matters  involving  life  or  liberty.  "When  we  speak,"  said  Story, 
"of  a  separation  of  the  three  great  departments  of  government,  and  maintain 
that  that  separation  is  indispensable  to  public  liberty,  we  are  to  understand 
this  maxim  in  a  limited  sense.  It  is  not  meant  to  affirm  that  they  must  be 
kept  wholly  and  entirely  separate  and  distinct,  and  have  no  common  link  or 
dependence,  the  one  upon  the  other,  in  the  slightest  degree.  The  true  meaning 
is  that  the  whole  power  of  one  of.these  departments  should  not  be  exercised 
by  the  same  hands  which  possess  the  whole  power  of  either  of  the  other  de- 
partments ;  and  that  such  exercise  of  the  whole  would  subvert  the  principles 
of  a  free  Constitution."  Story's  Const.  (5th  Ed.)  393.  Again:  "Indeed,  there 
is  not  a  single  Constitution  of  any  state  in  the  Union  which  does  not  prac- 
tically embrace  some  acknowledgment  of  the  maxim,  and  at  the  same  time 
some  admixture  of  powers  constituting  an  exception  to  It."  Story's  Const 
(5th  Ed.)  395.'  " 

See  the  discussion  of  somewhat  similar  legislation,  under  a  Constitution 
requiring  a  separation  of  powers,  in  Sabre  v.  Rutland  Ry.  Co.  (Vt)  85  Atl. 
693  (1913)  (majority  and  dissenting  opinions). 

A  definite  separation  of  state  governmental  powers  is  not  essential  to  a 
"republican  form  of  government"  under  the  federal  Constitution.  Forsyth 
v.  Hammond,  166  U.  S.  506,  519,  17  Sup.  Ct.  665,  41  L.  Ed.  1095  (1897). 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   97 

ing  any  such  town  or  city  the  power  to  make  exorbitant  charges,  by 
giving  it  a  monopoly.  Therefore,  with  a  view,  no  doubt,  of  dealing 
with  the  danger,  the  section  just  referred  to  provides  as  follows: 
"The  selectmen  of  a  town  or  any  persons  deeming  themselves  ag- 
grieved by  the  price  charged  for  water  by  any  such  company  may, 
in  the  year  eighteen  hundred  and  ninety-eight  and  every  fifth  year 
thereafter,  apply  by  petition  to  the  supreme  judicial  court,  asking  to 
have  the  rate  fixed  at  a  reasonable  sum,  measured  by  the  standard 
above  specified;  and  two  or  more  judges  of  said  court,  after  hearing 
the  parties,  shall  establish  such  maximum  rates  as  said  court  shall 
deem  proper ;  and  said  maximum  rates  shall  be  binding  upon  said 
water  company  until  the  same  shall  be  revised  or  altered  by  said  court 
pursuant  to  this  act." 

When  we  first  read  this  sentence,  the  impression  of  some  of  us  was 
that  it  was  an  attempt  to  make  out  of  this  court  a  commission  for 
the  taking  of  one  step  in  fixing  a  legislative  rule  of  future  conduct, 
irrespective  of  any  present  relation  between  the  parties  concerned, 
and  that  it  was  no  more  competent  for  the  legislature  to  impose  or 
for  us  to  accept  such  a  duty  than  if  the  proposition  were  to  transfer 
to  us  the  whole  lawmaking  power.  See  Smith  v.  Strother,  68  Cal. 
194,  8  Pac.  852.  But  upon  further  reflection  it  seems  to  a  majority 
of  the  court  that  the  act  can  be  sustained.  If  we  can  do  so  without 
perverting  the  meaning  of  the  act,  we  are  bound  to  construe  it  in 
such  a  way  that  it  will  be  consistent  with  the  Constitution,  and  we 
think  that  this  can  be  done  without  any  wresting  of  the  sense,  even 
if  we  should  doubt  (which  we  do  not  intimate  that  we  do)  whether 
the  legislature  had  the  limit  of  its  power  distinctly  in  mind. 

The  statute  goes  upon  the  footing  that  every  taker  of  water  from 
the  companies  in  question  has  a  right  to  be  furnished  with  water  at 
a  reasonable  rate.  No  one  questions  the  power  of  the  legislature  to 
require  these  water  companies  to  furnish  water  to  the  takers  at  rea- 
sonable rates  (Attorney  General  v.  Old  Colony  R.  Co.,  160  Mass.  62, 
86,  87,  35  N.  E.  252,  22  L.  R.  A.  112;  Spring  Valley  Waterworks 
v.  Schottler,  110.U.  S.  347,  354,  4  Sup.  Ct.  48,  28  L.  Ed.  173;  Budd 
v.  New  York,  143  U.  S.  517,  537,  549,  552,  12  Sup.  Ct.  468,  36  L. 
Ed.  247) ;  and  this  statute  does  require  the  companies  to  do  so,  and 
thereby  yives  to  water  takers  a  corresponding  right,  or  declares  that 
they  have  it.  It  is  with  the  relations  between  actual  water  takers 
and  the  companies  that  the  statute  calls  on  this  court  to  deal.  It  does 
not  undertake  merely  to  make  of  the  court  a  commission  to  deter- 
mine what  rule  shall  govern  people  who  are  not  yet  in  relation  to 
each  other,  and  who  may  elect  to  enter  or  not  to  enter  into  relations 
as  they  may  or  may  not  like  the  rule  which  we  lay  down.  It  calls  on 
us  to  fix  the  extent  of  actually  existing  rights.  With  regard  to  such 
rights,  judicial  determinations  are  not  confined  to  the  past.  If  it 
legitimately  might  be  left  to  this  court  to  decide  whether  a  bill  for 
HUl.L  Const.L. — 7 


98  preliminary  topics  (Part  1 

water  furnished  was  reasonable,  and,  if  not,  to  cut  it  down  to  a  rea- 
sonable sum,  it  equally  may  be  left  to  the  court  to  enjoin  a  company 
from  charging  more  than  a  reasonable  sum  in  the  immediate  future. 

But  it  has  been  regarded  as  competent  for  a  court  to  pass  on  the 
reasonableness  of  a  rate,  even  when  established  by  the  legislature, 
to  the  extent  of  declaring  it  unreasonably  low.  Chicago,  M.  &  St.  P. 
Ry.  Co.  v.  Minnesota,  134  U.  S.  418,  10  Sup.  Ct.  462,  702,  33  L.  Ed. 
970;  Chicago  &  G.  T.  Railway  v.  Wellman,  143  U.  S.  339,  344,  12 
Sup.  Ct.  400,  36  L.  Ed.  176:  Reagan  v.  Farmers'  Loan  &  Trust  Co.. 
154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  Ed.  1014;  Smyth  v.  Ames, 
169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  Ed.  819.  A  fortiori  when  the 
rate  is  established  by  the  company,  and  it  has  undertaken  to  charge 
the  plaintiff  a  sum  which  he  alleges  to  be  unreasonable,  and  the  legis- 
lature, in  terms,  has  referred  him  to  this  court,  this  court  has  "juris- 
diction to  inquire  into  that  matter,  and  to  award  to  the  [plaintiff) 
any  amount  exacted  from  him  in  excess  of  a  reasonable  rate." 
Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154  U.  S.  362,  397,  14  Sup. 
Ct.  1047,  1054.  38  L.  Ed.  1014,  1023. 

It  is  true  that  in  Reagan  v.  Farmers'  Loan  &  Trust  Co.  it  was  said. 
also,  that  "it  is  not  the  function  of  the  courts  to  establish  a  schedule 
of  rates"  (154  U.  S.  400,  14  Sup.  Ct.  1055,  38  L.  Ed.  1024);  and 
to  that  proposition  we  fully  agree.  But  it  will  be  observed  that  the 
proposition  is  laid  down  in  connection  with  the  statement  that  "the 
challenge  in  this  case  is  of  the  tariff  as  a  whole,  and  not  of  any  par- 
ticular rate  upon  any  single  class  of  goods."  Probably  to  prepare  a 
new  schedule  or  to  rearrange  the  old  one  would  have  gone  beyond 
the  scope  of  the  rights  immediately  affected  or  threatened  in  the  case 
before  the  court,  into  the  realm  of  abstract  lawmaking  for  the  future, 
and  so  beyond  the  power  of  the  court;  and.  if  it  had  not  been  be- 
yond the  court's  power,  still  very  possibly  it  might  have  been  refused, 
in  the  court's  discretion,  the  court  leaving  it  to  the  proper  body  to 
undertake  that  task.  But  it  is  implied  that,  if  the  challenge  had  been 
of  a  single  rate  threatened  to  be  charged  for  a  service  demanded,  the 
court  might  have  determined  the  question  between  the  parties  for  the 
immediate  future,  as  it  is  stated  three  pages  earlier  that  the  court 
would  determine  it  with  regard  to  a  charge  for  past  services.  When 
you  are  prepared  to  say  that  a  given  charge  is  too  high  or  too  low, 
it  hardly  would  be  consistent  to  say  that  you  had  not  power  or  ability 
to  say  what  is  a  proper  charge. 

It  is  true  that  the  phrase,  "shall  establish  such  maximum  rates  as 
said  court  shall  deem  proper,"  and  the  following  provision,  that  such 
"maximum  rates  shall  be  binding  upon  said  water  company  until 
the  same  shall  be  revised  or  altered  by  said  court,"  etc.,  suggest  that 
the  legislature  had  in  mind  the  establishment  of  a  rate  to  be  charged 
to  all  parties  for  the  use  of  water  for  domestic  purposes,  and  not 
merely  a  rate  to  be  charged  the  petitioner.  It  may  be  that  the  former 
was  the  main   object   which  the   legislature  had   in   mind.     But,   al- 


Cll.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   99 

though  we  cannot  doubt  that  the  meaning  of  the  words  last  quoted 
is  that  the  rate  shall  be  binding  as  a  general  rate,  even  that  is  not 
said  distinctly ;  and  we  feel  bound  to  assume,  in  support  of  the  act, 
that  the  legislature  is  dealing  primarily  with  the  rights  of  the  party 
aggrieved  before  the  court,  and  only  secondarily  adopts  in  advance 
the  rate  thus  fixed  between  the  parties  as  a  general  rate  for  all.  If 
this  is  so,  the  question  whether  such  a  legislative  consequence  can  be 
attached  to  the  decision  is  not  before  us.  Even  if  it  should  fail,  the 
failure  would  not  necessarily  affect  the  constitutionality  of  sending 
"persons  deeming  themselves  aggrieved"  to  this  court  to  get  their 
rights  settled.  But,  as  it  is  not  likely  that  a  rate  thus  established  for 
a  given  moment  after  full  investigation  would  be  departed  from  upon 
the  application  of  a  second  person  similarly  circumstanced,  it  may 
be  questioned  whether  there  is  anything  to  prevent  the  legislature 
from  sanctioning  without  further  hearing  a  rate  which  once  has  been 
declared  judicially  to  be  reasonable.  It  is  to  be  remarked  in  this 
connection  that  the  decisions  which  we  have  cited  for  the  proposi- 
tion that  the  legislature  may  require  rates  to  be  reasonable  establish 
the  further  proposition  that  the  legislature  may  fix  what  the  rates 
shall  be,  subject  only  to  judicial  inquiry  whether  they  are  so  unrea- 
sonably low  as  to  deprive  the  company  of  its  property  without  due 
compensation. 

It  will  be  understood  from  the  reasoning  on  which  we  sustain  the 
act  that  the  court  would  not  regard  itself  as  warranted  or  called 
on  to  undertake  the  fixing  of  rates,  except  so  far  as  they  concern 
interests  actually  and  legitimately  before  the  court. 

The  liberty  to  apply  to  this  court  is  confined  to  the  year  1898  and 
every  fifth  year  thereafter,  so  that  seemingly  it  is  contemplated  that 
the  rate,  when  fixed,  will  remain  unchanged  for  five  years.  This  is 
another  indication  that  the  legislature  had  its  attention  directed  to 
the  establishment  of  a  general  rate.  But,  supposing  a  party  ag- 
grieved should  obtain  an  injunction,  obviously  the  decree  would  be 
drawn  so  as  to  bind  the  defendant  for  a  reasonable  time,  or  if  it  were 
drawn  in  the  common  form,  subject  to  review  on  a  change  of  cir- 
cumstances, the  court  would  not  be  likely  to  grant  leave  to  file  a  bill 
of  review  until  a  reasonable  time  had  elapsed ;  and,  if  the  legislature 
should  say  that  in  these  cases  five  years  was  a  reasonable  time,  we 
could  not  say  that  it  was  wrong.  It  is  true  that  the  party  aggrieved 
it  not  given  an  injunction,  in  terms,  by  the  act;  and  this  is  another 
peculiarity  in  the  procedure,  looking  as  it  does  to  a  decree  affecting 
the  future.  Of  course,  it  is  assumed,  and  no  doubt  rightly,  that  a 
company  would  not  venture  to  disregard  the  decree.  But  if  a  com- 
pany should  prove  recalcitrant,  in  case  such  disregard  should  not  be 
construed  as  ipso  facto  a  contempt,  undoubtedly  the  decree  could  be 
enforced  by  injunction. 

There  is  still  one  more  peculiarity  in  the  statutory  proceedings 
which  adds  a  little  to  the  difficulty  of  the  question  before  us.     We 


100  PRELIMINARY    TOPICS  (Part    1 

have  construed  the  statute  to  deal  primarily  with  existing  rights  and 
grievances.  But  the  proceedings  are  given  to  "the  selectmen  of  a 
town  or  any  persons  deeming  themselves  aggrieved."  So  far  as  the 
alternative  mention  of  the  selectmen  sh'ould  be  used  as  an  argument 
that  the  primary  purport  of  the  act  was  not  to  deal  with  present 
rights,  we  should  answer  that  it  does  not  appear  that  the  towns  within 
the  10-mile  radius  do  not  all  of  them  take  water  in  their  corporate 
capacity;  and,  if  it  was  assumed  by  the  legislature  that  they  did,  as 
they  probably  do,  the  argument  would  lose  its  force.  It  may  be  that 
the  legislature  thought  of  the  selectmen  rather  as  representing  the 
whole  body  of  water  takers  in  the  town.  Whether  they  could  be 
made  compulsory  agents  to  represent  private  interests  in  that  way,  it 
is  not  necessary  to  inquire.  We  may  add  that  we  understand  the 
demurrer  to  be  intended  to  raise  the  single  question  of  constitutional- 
ity, and  therefore  we  do  not  consider  whether  the  petition,  in  strict- 
ness, ought  not  to  show  that  the  town,  or  whoever  may  be  rep- 
resented by  the  petitioning  selectmen,  is  a  water  taker,  and,  in  short, 
disclose  enough  to  make  out  a  present  grievance.  If  there  is  any 
defect  of  form, — which  we  do  not  intimate, — probably  it  could  be 
amended.  *  *  * 
Demurrer  overruled.1 

i  Accord:  Canada  Southern  Ry.  Co.  v.  International  Bridge  Co.  (D.  C.)  8 
Fed.  190  (1881) ;  Brymer  v.  Butler  Water  Co.,  179  Pa.  231,  250,  36  Atl.  219, 
36  L.  R.  A.  260  (1S97)  (semble). 

Contra:  Nebraska  Tel.  Co.  v.  State,  55  Neb.  627,  635,  76  N.  W.  171,  45  L. 
R.  A.  113  ff.  (189S). 

In  People  ex  rel.  Joline  v.  Willcox,  194  N.  Y.  383,  3S6,  387,  87  N.  E.  517  (1909), 
Cullen,  C.  J.,  said  (referring  to  Prentis  v.  Atlantic  Coast  Line  Co.,  post.  p. 
309.  holding  that  the  general  fixing  of  future  transportation  rates  could  not 
be  wade  an  exercise  of  judicial  power  by  a  state): 

"With  great  reluctance  we  express  our  inability  to  accept  the  doctrine  of 
the  .Supreme  Court  (of  course,  only  within  the  sphere  [of  state  authority] 
indicated),  as  it  is  opposed  to  the  uniform  current  of  judicial  authority  in 
this  state,  a  full  review  of  which,  as  well  as  of  the  action  of  both  Constitution 
makers  and  legislatures,  will  be  found  in  the  Matter  of  Vil.  of  Sar.  Springs 
v.  Saratoga  Gas,  El.  Light  &  P.  Co.,  191  N.  Y.  123,  83  N.  E.  693,  18  L.  R.  A. 
(N.  S.)  713,  in  which  it  was  held,  not  only  that  the  function  of  rate  making 
could  be  devolved  by  the  legislature  upon  other  officers,  but  that  the  very 
question  of  what  rates  are  reasonable  could  be  given  a  judicial  or  quasi 
judicial  aspect.  Nor  are  we  now  convinced  that  the  function  of  prescribing 
a  rate  is  necessarily  nonjudicial  solely  because  it  enforces  a  rule  of  conduct 
for  the  future.  It  is  true  that  'a  judicial  inquiry  investigates, 'declares,  and 
enforces  liabilities  as  they  stand  on  present  and  past  facts  under  the  laws 
supposed  already  to  exist.'  But  a  judicial  decision  often  determines  in  ad- 
vance what  future  action  will  be  a  discharge  of  existing  liabilities  or  ob- 
ligations. A  notable  instance  of  this  is  the  specific  enforcement  of  contracts 
which  are  io  extend  over  a  long  period  of  time,  in  which  the  court  may 
dictate  the  details  of  performance.  Prospect  Park  &  C.  I.  R.  R.  Co.  v.  Coney 
Island  &  B.  R.  R.  Co.,  114  N.  Y.  152,  39  N.  E.  17,  26  L.  R.  A.  610.  In  actions 
for  divorce  or  separation,  it  is  the  constant  practice  of  the  courts  to  prescribe 
regulations  for  the  custody  and  care  of  children,  and  also  to  provide  for  subse- 
quent modification  of  those  provisions  from  time  to  time  as  circumstances 
may  alter.  Indeed,  this  reservation  of  the  right  of  either  party  to  apply 
for  a  modification  on  change  of  circumstances  is  by  no  means  an  uncom- 
mon feature  of  the  decrees  of  courts  of  equity  in  all  branches  of  their  juris- 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   101 

LUTHER  v.  BORDEM. 
(Supreme  Court  of  United  States,  1849.    7  How.  1,  12  L.  Ed.  581.) 

[Error  to  the  federal  Circuit  Court  for  Rhode  Island  from  a  judg- 
ment for  defendant  in  an  action  of  trespass  for  breaking  into  plaintiff's 
hou  e.    The  facts  appear  in  Kuehler  v.  Hill,  pp.  19-20,  ante.] 

Mr.  Chief  Justice  Taney.  *  *  *  The  Constitution  of  the 
United  States,  as  far  as  it  has  provided  for  an  emergency  of  this  kind, 
and  authorized  the  general  government  to  interfere  in  the  domestic 
concerns  of  a  state,  has  treated  the  subject  as  political  in  its  nature, 
and  placed  the  power  in  the  hands  of  that  department. 

The  fourth  section  of  the  fourth  article  of  the  Constitution  of  the 
United  States  provides  that  the  United  States  shall  guarantee  to  every 
state  in  the  Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion ;  and  on  the  application  of  the  legislature 
or  of  the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence. 

Under  this  article  of  the  Constitution  it  rests  with  Congress  to  de- 
cide what  government  is  the  established  one  in  a  state.  For  as  the 
United  States  guarantee  to  each  state  a  republican  government,  Con- 
gress must  necessarily  decide  what  government  is  established  in  the 
state  before  it  can  determine  whether  it  is  republican  or  not.  And 
when  the  senators  and  representatives  of  a  state  are  admitted  into  the 
councils  of  the  Union,  the  authority  of  the  government  under  which 
they  are  appointed,  as  well  as  its  republican  character,  is  recognized  by 
the  proper  constitutional  authority.  And  its  decision  is  biadi 
every  other  department  of  the  government,  and  could  not  be  ques-' 
tinned  in  a  judicial  tribunal.1  It  is  true  that  the  contest  in  this  case 
did  not  last  long  enough  to  bring  the  matter  to  this  issue ;  and  as  no 
senators  or  representatives  were  elected  under  the  authority  of  the 
government  of  which  Mr.  Dorr  was  the  head,  Congress  was  not  called 

diction.  If  a  Judicial  tribunal  Is  competent  to  decide  that  the  exaction  of 
Ave  cents  is  extortionate,  and  that  a  tender  of  three  cents  is  inadequate, 
it  is  ilillicult  to  see  why  it  may  not  be  empowered  to  also  decide  that  four 
cents  is  a  reasonable  and  proper  rate,  and  that  such  rate  shall  continue 
until  ( ircumstances  so  change  that  the  judgment  of  the  tribunal  may  again 
he  invoked.  The  obligation  of  a  carrier  to  carry  at  a  reasonable  rate,  in 
the  absence  of  any  statutory  rate,  rests  on  statute  or  on  the  common  law. 
The  decree  of  a  court  does  not  create  an  obligation,  but  measures  an  existing 
one." 

See  City  of  Madison  v.  Madison  Gas  &  Electric  Co.,  129  Wis,  249,  268,  10,s 
N.  W.  05,  8  L.  It.  A.  (N.  S.)  529,  116  Am.  St.  Rep.  944,  9  Ann.  Cas.  819 
(1906). 

Record:  Texas  v.  White,  7  Wall.  Tim.  19  i  .  Ed.  227  (1869)  ("reconstruct- 
ed" state  of  Texas);  Griffin's  Case,  Chase,  364,  Fed.  Cas.  No.  5,816  (1869) 
(Wheeling  government  of  Virginia);  Taylor  v.  Keckhani.  17s  0.  S.  648,  20 
Sup.  Ct.  890,  1009,  44  L.  Ed.  1187  tlon  of  governor);   Pacific  States 

Telephone  &  Telegraph  Co.  v.  Oregon,  223  O.  S.  118,  32  Sup.  Ct  224,  56  L. 
Ed.  377  (1912)   (initiative  and   referendum). 


102  preliminary  topics  (Part  1 

upon  to  decide  tlie  controversy.  Yet  the  right  to  decide  is  placed 
there,  and  not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article  of  the 
Constitution,  providing  for  cases  of  domestic  violence.  It  rested  with 
Congress,  too,  to  determine  upon  the  means  proper  to  be  adopted  to 
fulfil  this  guarantee.  They  might,  if  they  had  deemed  it  most  advisable 
to  do  so,  have  placed  it  in  the  power  of  a  court  to  decide  when  the  con- 
tingency had  happened  which  required  the  federal  government  to  inter- 
fere. But  Congress  thought  otherwise,  and  no  doubt  wisely ;  and  by 
the  Act  of  February  28,  1795,  provided  that,  "in  case  of  an  insurrec- 
tion in  any  state  against  the  government  thereof,  it  shall  be  lawful  for 
the  President  of  the  United  States,  on  application  of  the  legislature  of 
such  state  or  of  the  executive,  when  the  legislature  cannot  be  convened, 
to  call  forth  such  number  of  the  militia  of  any  other  state  or  states, 
as  may  be  applied  for,  as  he  may  judge  sufficient  to  suppress  such 
insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had  arisen 
upon  which  the  government  of  the  United  States  is  bound  to  interfere, 
is  given  to  the  President.  He  is  to  act  upon  the  application  of  the 
legislature,  or  of  the  executive,  and  consequently  he  must  determine 
what  body  of  men  constitute  the  legislature,  and  who  is  the  governor, 
before  he  can  act.  The  fact  that  both  parties  claim  the  right  to  the 
government,  cannot  alter  the  case,  for  both  cannot  be  entitled  to  it.  If 
there  is  an  armed  conflict,  like  the  one  of  which  we  are  speaking,  it  is  a 
case  of  domestic  violence,  and  one  of  the  parties  must  be  in  insurrec- 
tion against  the  lawful  government.  And  the  President  must,  of  neces- 
sity, decide  which  is  the  government,  and  which  party  is  unlawfully 
arrayed  against  it,  before  he  can  perform  the  duty  imposed  upon  him 
by  the  act  of  Congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a  Circuit 
Court  of  the  United  States  authorized  to  inquire  whether  his  decision 
was  right?  Could  the  court,  while  the  parties  were  actually  contending 
in  arms  for  the  possession  of  the  government,  call  witnesses  before  it, 
and  inquire  which  party  represented  a  majority  of  the  people?  If  it 
could,  then  it  would  become  the  duty  of  the  court  (provided  it  came  to 
the  conclusion  that  the  President  had  decided  incorrectly)  to  discharge 
those  who  were  arrested  or  detained  by  the  troops  in  the  service  of  the 
United  States,  or  the  government  which  the  President  was  endeavoring 
to  maintain.  If  the  judicial  power  extends  so  far,  the  guarantee  con- 
tained in  the  Constitution  of  the  United  States  is  a  guarantee  of  anar- 
chy, and  not  of  order.  Yet  if  this  right  does  not  reside  in  the  courts 
when  the  conflict  is  raging — if  the  judicial  power  is,  at  that  time,  bound 
to  follow  the  decision  of  the  political,  it  must  be  equally  bound  when 
the  contest  is  over.  It  cannot,  when  peace  is  restored,  punish  as  of- 
fences and  crimes  the  act  which  it  before  recognized,  and  was  bound  to 
recognize,  as  lawful. 


CIl.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   103 

It  is  true  that  in  this  case  the  militia  were  not  called  out  by  the  Presi- 
dent. But  upon  the  application  of  the  governor  under  the  charter  gov- 
ernment, the  President  recognized  him  as  the  executive  power  of  the 
state,  and  took  measures  to  call  out  the  militia  to  support  his  authority, 
if  it  should  be  found  necessary  for  the  general  government  to  inter- 
fere ;  and  it  is  admitted  in  the  argument  that  it  was  the  knowledge  of 
this  decision  that  put  an  end  to  the  armed  opposition  to  the  charter 
government,  and  prevented  any  further  efforts  to  establish  by  force 
the  proposed  Constitution.  The  interference  of  the  President,  there- 
fore, by  announcing  his  determination,  was  as  effectual  as  if  the  militia 
had  been  assembled  under  his  orders.  And  it  should  be  equally  au- 
thoritative. For  certainly  no  court  of  the  United  States,  with  a  knowl- 
edge of  this  decision,  would  have  been  justified  in  recognizing  the  op- 
posing party  as  the  lawful  government,  or  in  treating  as  wrong-doers  or 
insurgents  the  officers  of  the  government  which  the  President  had  rec- 
ognized, and  was  prepared  to  support  by  an  armed  force.  In  the  case 
of  foreign  nations,  the  government  acknowledged  by  the  President  is 
always  recognized  in  the  courts  of  justice.2  And  this  principle  has 
been  applied  by  the  act  of  Congress  to  the  sovereign  states  of  the 
Union. 

It  is  said  that  this  power  in  the  President  is  dangerous  to  liberty,  and 
may  be  abused.  All  power  may  be  abused  if  placed  in  unworthy  hands. 
But  it  would  be  difficult,  we  think,  to  point  out  any  other  hands  in 
which  this  power  would  be  more  safe,  and  at  the  same  time  equally  ef- 
fectual. When  citizens  of  the  same  state  are  in  arms  against  each 
other,  and  the  constituted  authorities  unable  to  execute  the  laws,  the 
interposition  of  the  United  States  must  be  prompt,  or  it  is  of  little 
value.  The  ordinary  course  of  proceedings  in  courts  of  justice  would 
be  utterly  unfit  for  the  crisis.  And  the  elevated  office  of  the  President, 
chosen  as  he  is  by  the  people  of  the  United  States,  and  the  high  respon- 
sibility he  could  not  fail  to  feel  when  acting  in  a  case  of  so  much  mo- 
ment, appear  to  furnish  as  strong  safeguards  against  a  wilful  abuse  of 
power  as  human  prudence  and  foresight  could  well  provide.  At  all 
events,  it  is  conferred  upon  him  by  the  Constitution  and  laws  of  the 
United.  States,  and  must,  therefore,  be  respected  and  enforced  in  its 
judicial  tribunals. 

A  question  very  similar  to  this  arose  in  the  case  of  Martin  v.  Mott, 
12  Wheat.  29-31,  6  L.  Ed.  537.  The  first  clause  of  the  first  section  of 
the  Act  of  February  28,  1795,  of  which  we  have  been  speaking,  author- 
izes the  President  to  call  out  the  militia  to  repel  invasion.  It  is  the  sec- 
ond clause  in  the  same  section  which  authorizes  the  call  to  suppress  an 
insurrection  against  a  state  government.  The  power  given  to  the  Presi- 
dent in  each  case  is  the  same,  with  this  difference  only,  that  it  cannot 
be  exercised  by  him  in  the  latter  case,  except  upon  the  application  of 
the  legislature  or  executive  of  the  state.     The  case  above  mentioned 

i  See  Downee  v.  Bidwell,  note  6,  post,  p.  1012. 


104  preliminary  topics  (Part  1 

arose  out  of  a  call  made  by  the  President,  by  virtue  of  the  power  con- 
ferred by  the  first  clause ;  and  the  court  said  that  "whenever  a  statute 
gives  a  discretionary  power  to  any  person,  to  be  exercised  by  him  upon 
his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction  that 
the  statute  constitutes  him  the  sole  and  exclusive  judge  of  the  existence 
of  those  facts."8  The  grounds  upon  which  that  opinion  is  maintained 
are  set  forth  in  the  report,  and,  we  think,  are  conclusive.  The  same 
principle  applies  to  the  case  now  before  the  court.  Undoubtedly,  if  the 
President,  in  exercising  this  power,  shall  fall  into  error,  or  invade  the 
rights  of  the  people  of  the  state,  it  would  be  in  the  power  of  Congress 
to  apply  the  proper  remedy.  But  the  courts  must  administer  the  law  as 
they  find  it. 

The  remaining  question  is,  whether  the  defendants,  acting  under 
military  orders  issued  under  the  authority  of  the  government,  were 
justified  in  breaking  and  entering  the  plaintiff's  house.  In  relation 
to  the  act  of  the  legislature  declaring  martial  law,  it  is  not  necessary 
in  the  case  before  us  to  inquire  to  what  extent,  nor  under  what  cir- 
cumstances, that  power  may  be  exercised  by  a  state.  Unquestion- 
ably, a  military  government,  established  as  the  permanent  government 
of  the  state,  would  not  be  a  republican  government,  and  it  would  be 
the  duty  of  Congress  to  overthrow  it.  But  the  law  of  Rhode  Island 
evidently  contemplated  no  such  government.  It  was  intended  merely 
for  the  crisis,  and  to  meet  the  peril  in  which  the  existing  government 
was  placed  by  the  armed  resistance  to  its  authority.  It  was  so  un- 
derstood and  construed  by  the  state  authorities.  And,  unquestion- 
ably, a  state  may  use  its  military  power  to  put  down  an  armed  insur- 
rection, too  strong  to  be  controlled  by  the  civil  authority.  The  power 
is  essential  to  the  existence  of  every  government,  essential  to  the  pres- 
ervation of  order  and  free  institutions,  and  is  as  necessary  to  the 
states  of  this  Union,  as  to  any  other  government.  The  state  itself 
must  determine  what  degree  of  force  the  crisis  demands.  And  if  the 
government  of  Rhode  Island  deemed  the  armed  opposition  so  formida- 
ble, and  so  ramified  throughout  the  state  as  to  require  the  use  of  its 
military  force  and  the  declaration  of  martial  law,  we  see  no  ground 
upon  which  this  court  can  question  its  authority.4     It  was  a  state  of 

»  Accord:  Druecker  v.  Salomon,  21  Wis.  621,  94  Am.  Dec.  571  (1SG7)  (ex- 
ecution of  draft  act  against  rioters). 

*  Accord  (exercise  of  military  authority  by  executive  to  suppress  public 
disorder):  In  re  Boyle,  6  Idaho,  609,  57  Pac.  706,  45  L.  R.  A.  832,  96  Am. 
St.  Rep.  2S6  (1S99);  Comm.  ex  rel.  Wadsworth  v.  Shortall,  206  Pa.  165,  55 
Atl.  952,  65- L.  R.  A.  193,  98  Am.  St.  Rep.  759  (1903);  In  re  Moyer,  35  Colo. 
159,  85  Pac.  190,  12  L.  R.  A.  (N.  S.)  979,  117  Am.  St.  Rep.  189  (1905).  Persons 
in  custody  under  such  authority  will  not  be  released  by  the  courts  on  habeas 
corpus.    Id. 

Similarly,  the  determination  by  the  political  departments  that  a  state  of 
war  exists,  and  of  the  date  of  its  beginning  and  end,  is  binding  upon  the 
courts.     The  Prize  Cases,  2  Black,  635,  670,  17  L.  Ed.  459  (1S63) ;    The  Pro- 


Ch.  3)      SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS      105 

war,  and  the  established  government  resorted  to  the  rights  and  usages 
of  war  to  maintain  itself,  and  to  overcome  the  unlawful  opposition. 
And  in  that  state  of  things  the  officers  engaged  in  its  military  service 
might  lawfully  arrest  any  one,  who,  from  the  information  before 
them,  they  had  reasonable  grounds  to  believe  was  engaged  in  the  insur- 
rection;  and  might  order  a  house  to  be  forcibly  entered  and  searched, 
when  there  were  reasonable  grounds  for  supposing  he  might  be  there- 
concealed.  Without  the  power  to  do  this,  martial  law  and  the  military 
array  of  the  government  would  be  mere  parade,  and  rather  encourage 
attack  than  repel  it.  No  more  force,  however,  can  be  used  than  is 
necessary  to  accomplish  the  object.  And  if  the  power  is  exercised  for 
the  purposes  of  oppression,  or  any  injury  wilfully  done  to  person  or 
property,  the  party  by  whom,  or  by  whose  order,  it  is  committed, 
would  undoubtedly  be  answerable.    *    *    * 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned  upon  politi- 
cal rights  and  political  questions,  upon  which  the  court  has  been  urged 
to  express  an  opinion.  We  decline  doing  so.  The  high  power  has  been 
conferred  on  this  court  of  passing  judgment  upon  the  acts  of  the  state 
sovereignties,  and  of  the  legislative  and  executive  branches  of  the  fed- 
eral government,  and  of  determining  whether  they  are  beyond  the  limits 
of  power  marked  out  for  them  respectively  by  the  Constitution  of  Un- 
united States.  This  tribunal,  therefore,  should  be  the  last  to  overstep 
the  boundaries  which  limit  its  own  jurisdiction.  And  while  it  should 
always  be  ready  to  meet  any  question  confided  to  it  by  the  Constitution, 
it  is  equally  its  duty  not  to  pass  beyond  its  appropriate  sphere  of  action, 
and  to  take  care  not  to  involve  itself  in  discussions  which  properly  be- 
long to  other  forums.  No  one,  we  believe,  has  ever  doubted  the  propo- 
sition that,  according  to  the  institutions  of  this  country,  the  sovereignty 
in  every  state  resides  in  the  people  of  the  state,  and  that  they  may 
alter  and  change  their  form  of  government  at  their  own  pleasure.  But 
whether  they  have  changed  it  or  not,  by  abolishing  an  old  government, 
and  establishing  a  new  one  in  its  place,  is  a  question  to  be  settled  by 

teetor,  12  Wall.  700,  20  L.  Ed.  463  (1S72) ;  The  Pedro,  175  U.  S.  374,  20  Sup. 
Ct  138,  44  L.  Ed.  195  (1899). 

As  to  the  power  of  the  legislature  or  of  the  executive  to  suspend  the  writ 
of  haheas  corpus  or  to  declare  martial  law  in  domestic  territory  whore  the 
courts  are  still  in  ordlnai-j   operation, 

I'ni.  Cas.  No.  9,487  (1861);    Ea  parte  Field,  Fed.  Cas.  No,  4,761 

(1862);  in  re  Egan,  5  Blatchf.  318,  Fed.  Caa  No.  4,303  (1866);  Ex  parte 
Mliiigan.  4  Wall.  2.  is  L.  Ed.  2M  iis.v,,:  kx  parte  Moore  (and  following 
cases),  til  N.  ('.  S02-S34  (1870)  ;  Mantis  v.  (Int.  Officer  (1902)  A.  O.  t09 ; 
Comm.  ex  rel.  Wadsworth  v.  Shortall,  206  Pa.  166,  55  Atl.  952,  65  L.  B.  a 
198,  98  Am.  st.  Rep.  759  (1908);  State  v.  Brown  (W;  VaJ  77  s.  B.  243  (1912). 
As  to  the  validity  under  the  federal  Constitution  of  such  proeeedinss  by  stale 
officers,  see  Mover  v.  Peabody,  212  D.  S.  78,  29  Sup,  Ct  285,  r>::  1..  Ed.  410 
(1009).  The  Egan,  Million,  and  Brown  Cases,  above,  wore  rases  of  trials  by 
military  commissions.  For  an  account  of  the  practice  of  the  United  States 
during  the  Civil  War.  see  4  khodes.  Hist,  of  D.  S,  L'-'.i  tT.  'the  .uses  are 
collected  in  4",  I  .  K.  A.  882,  in  a  note  to  In  re  Boyle,  6  Idaho,  009,  57  Pac. 
706,  96  Am.   St.  Rep.  2S6  (1899). 


106  PRELIMINARY  topics  (Part   1 

the  political  power.    And  when  that  power  has  decided,  the  courts  are 
bound  to  take  notice  of  its  decision,  and  to  follow  it. 
Judgment  affirmed.8 


STATE  OF  GEORGIA  v.  STANTON  (1867)  6  Wall.  50,  71,  75- 
77 .  Mr.  Justice  Nelson  (dismissing  for  want  of  jurisdiction  a  bill 
seeking  to  restrain  the  Secretary  of  War  and  Generals  Grant  and 
Pope,  commanding  the  military  district  including  the  state  of  Georgia, 
from  enforcing  in  Georgia  the  federal  "Reconstruction  Acts") : 

"It  is  urged  that  the  matters  involved,  and  presented  for  adjudica- 
tion, are  political  and  not  judicial,  and,  therefore,  not  the  subject  of 
judicial  cognizance.  This  distinction  results  from  the  organization  of 
the  government  into  the  three  great  departments,  executive,  legislative, 
and  judicial,  and  from  the  assignment  and  limitation  of  the  powers  of 
each  by  the  Constitution.  The  judicial  power  is  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  Congress  may  ordain  and  estab- 
lish: the  political  power  of  the  government  in  the  other  two  depart- 
ments. 

"The  distinction  between  judicial  and  political  power  is  so  generally 
acknowledged  in  the  jurisprudence  both  of  England  and  of  this  coun- 
try, that  we  need  do  no  more  than  refer  to  some  of  the  authorities  on 
the  subject.  Thev  are  all  in  one  direction.  Nabob  of  Carnatic  v.  The 
East  India  Co.,  1  Vesey,  Jr.,  375-393,  S.  C,  2  Vesey,  Jr.,  56-60;  Penn 
v.  Lord  Baltimore,  1  Vesey,  446-447 ;  New  York  v.  Connecticut,  4 
Dall.  4-6,  1  L.  Ed.  717;   The  Cherokee  Nation  v.  Georgia,  5  Pet.  1, 

s  Power  of  State  Courts  to  Determine  Lawful  Legislature  or  Gov- 
ernor.— The  courts  will  not  entertain  direct  proceedings  to  admit,  exclude,  or 
reinstate  any  member  of  the  state  legislature  contrary  to  the  decision  of  that 
body  after  it  has  legally  organized,  In  re  Gunn,  50  Kan.  155,  251-253,  32  Pac. 
470,  948,  19  L.  R.  A.  519  (1893)  (cases);  Hiss  v.  Bartlett,  3  Gray  (Mass.)  46S. 
63  Am.  Dec.  76S  (1S55) ;  French  v.  Senate,  146  Cal.  604,  SO  Pac.  1031,  69  L. 
It.  A.  556,  2  Ann.  Cas.  756  (1905) ;  nor  will  they  declare  a  vacancy  in  the 
membership  thereof,  Covington  v.  Buffett,  90  Md.  569,  45  Atl.  204,  47  L  R.  A. 
622  (1900). 

As  to  the  power  of  courts  to  question  the  legislation  of  a  sole  de  facto  legis- 
lature on  the  ground  it  is  not  de  jure,  see  Gormley  v.  Taylor,  44  Ga.  76  (1871) ; 
.Macmi  &  A.  R.  Co.  v.  Little,  45  Ga.  .370.  398-408  (18721;  State  ex  rel.  Attor- 
ney General  v.  Francis,  26  Kan.  724  (1882) ;  State  v.  Smith,  44  Ohio  St.  34S, 
7  N.  B.  447,  12  N.  E.  S29  (1SS6).  As  to  a  like  jurisdiction  to  decide  which  or 
two  rival  organizations  is  legally  a  branch  of  the  state  legislature,  see  In  re 
Gunn.  50  Kan.  155,  32  Pac.  470,  948,  19  L.  R.  A.  519  (1S93)  (cases— see  dis- 
sent) ;  State  v.  Rogers,  56  N.  J.  Law,  4S0,  614-618,  28  Atl.  726.  29  Atl.  173 
(1894).  See,  also,  Answers  of  Justices,  70  Me.  600  (1880) ;  Prince  v.  Skillin, 
71  Me.  361,-36  Am.  Rep.  325  (1880)— cases  of  rival  legislatures. 

A  like  jurisdiction  was  exercised  in  quo  warranto  proceedings  to  determine 
the  lawful  governor  in  Attorney  General  ex  rel.  Bashford  v.  Barstow,  4  Wis. 
567  (1856) ;  State  v.  Bulkeley,  61  Conn.  2S7,  23  Atl.  1S6,  14  L.  R.  A.  657  (1S92)  ; 
State  ex  rel.  Thayer  v.  Boyd,  31  Neb.  682.  48  N.  W.  739,  51  N.  \V.  602  (18911. 
reversed  in  Boyd  v.  Neb.,  143  U.  S.  135,  12  Sup.  Ct.  375,  36  L.  Ed.  103  (1S92) 
on  non-jiirisdictional  grounds. 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   107 

20.  29,  30,  51,  75,  8  L.  Ed.  25;  State  of  Rhode  Island  v.  State  of 
Massachusetts,  12  Pet.  657,  733,  734,  737,  738,  9  L.  Ed.  1233.     *    *     * 

"[Quoting  from  Thompson,  J.,  in  Cherokee  Nation  v.  Georgia, 
above:]  'I  certainly  do  not  claim,  as  belonging  to  the  judiciary,  the 
exercise  of  political  power.  That  belongs  to  another  branch  of  the 
government.  The  protection  and  enforcement  of  many  rights  secured 
by  treaties,  most  certainly  do  not  belong  to  the  judiciary.  It  is  only 
where  the  rights  of  persons  or  property  are  involved,  and  when  such 
rights  can  be  presented  under  some  judicial  form  of  proceedings,  that 
courts  of  justice  can  interpose  relief.  This  court  can  have  no  right  to 
pronounce  an  abstract  opinion  upon  the  constitutionality  of  a  state  law. 
Such  law  must  be  brought  into  actual,  or  threatened  operation  upon 
rights  properly  falling  under  judicial  cognizance,  or  a  remedy  is  not  to 
be  had  here.'    *    *    * 

"The  bill  filed  presents  a  case  which,  if  it  be  the  subject  of  judicial 
cognizance,  would,  in  form,  come  under  a  familiar  head  of  equity  ju- 
risdiction, that  is,  jurisdiction  to  grant  an  injunction  to  restrain  a  party 
from  a  wrong  or  injury  to  the  rights  of  another,  where  the  danger, 
actual  or  threatened,  is  irreparable,  or  the  remedy  at  law  inadequate. 
But,  according  to  the  course  of  proceeding  under  this  head  in  equity, 
in  order  to  entitle  the  party  to  the  remedy,  a  case  must  be  presented  ap- 
propriate for  the  exercise  of  judicial  power;  the  rights  in  danger,  as 
we  have  seen,  must  be  rights  of  persons  or  property,  not  merely  politi- 
cal rights,  which  do  not  belong  to  the  jurisdiction  of  a  court,  either 
in  law  or  equity. 

"The  remaining  question  on  this  branch  of  our  inquiry  is,  whether,  in 
view  of  the  principles  above  stated,  and  which  we  have  endeavored  to 
explain,  a  case  is  made  out  in  the  bill  of  which  this  court  can  take 
judicial  cognizance.  In  looking  into  it,  it  will  be  seen  that  we  are 
called  upon  to  restrain  the  defendants,  who  represent  the  executive 
authority  of  the  government,  from  carrying  into  execution  certain  acts 
of  Congress,  inasmuch  as  such  execution  would  annul,  and  totally 
abolish  the  existing  state  government  of  Georgia,  and  establish  another 
and  different  one  in  its  place;  in  other  words,  would  overthrow  an'd 
destroy  the  corporate  existence  of  the  state,  by  depriving  it  of  all  the 
means  and  instrumentalities  whereby  its  existence  might,  and,  other- 
wise would,  be  maintained.     *     *     * 

"That  these  matters,  both  as  stated  in  the  body  of  the  bill,  and  in 
the  prayers  for  relief,  call  for  the  judgment  of  the  court  upon  political 
questions,  and,  upon  rights,  not  of  persons  or  property,  but  of  a  politi- 
cal character,  will  hardly  be  denied.  For  the  rights  for  the  protection 
of  which  our  authority  is  invoked,  are  the  rights  of  sovereignty,  of 
political  jurisdiction,  of  government,  of  corporate  existence  as  a  state, 
with  all  its  constitutional  powers  and  privileges.  No  case  of  private 
rights  or  private  property  infringed,  or  in  danger  of  actual  or  threaten- 


108  PRELIMINARY   TOPICS  (Part   1 

cd  infringement,  is  presented  by  the  bill,  in  a  judicial  form,  for  the 
judgment  of  the  court. 

"It  is  true,  the  bill  in  setting  forth  the  political  rights  of  the  state, 
and  of  its  people  to  be  protected,  among  other  matters,  avers,  that 
Georgia  owns  certain  real  estate  and  buildings  therein,  state  capitol, 
and  executive  mansion,  and  other  real  and  personal  property ;  and  that 
putting  the  acts  of  Congress  into  execution,  and  destroying  the  state, 
would  deprive  it  of  the  possession  and  enjoyment  of  its  property.  But, 
it  is  apparent,  that  this  reference  to  property  and  statement  concerning 
it,  are  only  by  way  of  showing  one  of  the  grievances  resulting  from  the 
threatened  destruction  of  the  state,  and  in  aggravation  of  it,  not  as  a 
specific  ground  of  relief.  This  matter  of  property  is  neither  stated  as 
an  independent  ground,  nor  is  it  noticed  at  all  in  the  prayers  for  relief. 
Indeed  the  case,  as  made  in  the  bill,  would  have  stopped  far  short  of 
the  relief  sought  by  the  state,  and  its  main  purpose  and  design  given 
up,  by  restraining  its  remedial  effect,  simply  to  the  protection  of  the 
title  and  possession  of  its  property.  Such  relief  would  have  called  for 
a  very  different  bill  from  the  one  before  us.1     *     *     *  " 

[Chase,  C.  J.,  concurred  in  the  conclusion.] 

i  See,  also,  Cherokee  Nation  r.  Georgia,  5  Pet.  1,  20,  29-30,  51,  75.  8  E. 
Ed.  25  (1831).  In  White  v.  Hart,  13  Wall.  646,  20  L.  Ed.  685  (1872),  the 
courts  were  held  to  have  no  jurisdiction  to  consider  the  validity  of  the 
means  adopted  by  Congress  to  secure  the  assent  of  Georgia  to  her  Constitu- 
tion of  1868,  or  (semble)  to  the  fourteenth  and  fifteenth  amendments. 

The  federal  Supreme  Court  has  passed  upon  the  constitutionality  of  the 
rules  of  the  House  of  Representatives  in  enacting  legislation,  United  States  v. 
Ballin,  144  U.  S.  1,  12  Sup.  Ct.  507,  36  L.  Ed.  321  (1802) ;  and  of  state  stat- 
utes providing  for  the  appointment  of  presidential  electors,  McPherson  v. 
Blacker,  146  U.  S.  1,  13  Sup.  Ct.  3,  36  L.  Ed.  869  (1892). 

The  courts  generally  have  exercised  jurisdiction  to  determine  the  validity 
of  legislative  apportionment  acts.  State  v.  Cunningham,  SI  Wis.  440,  51  N. 
W.  724,  15  L.  R.  A.  561  (1S02) ;  Denney  v.  State  ex  rel.  Easier,  144  Ind.  503, 
42  N.  E.  929,  31  L.  R.  A.  726  (1895);  Harmison  v.  Ballot  Com'rs,  45  W.  Va. 
179,  31  S.  E.  394,  42  L.  R.  A.  591  (1S98).  Cases  from  other  states  are  cited  in 
these.  But  owing  to  the  political  character  of  the  act  involved  the  legis- 
lature is  allowed  a  large  measure  of  discretion  in  such  matters.  See  People 
ex  rel.  Woodvatt  v.  Thompson,  155  111.  451,  40  N.  E.  307  (1895) ;  People  ex  rel. 
Carter  v.  Rice,  135  N.  Y.  473,  31  N.  E.  921,  16  L.  R.  A.  S36  (1892)  [but  com- 
pare Matter  of  Sherrill  v.  O'Brien,  1SS  N.  X.  185,  81  N.  E.  124,  117  Am.  St 
Rep.  S41  (1907)]. 

Individual  Political  Rights. — The  political  rights  of  individuals,  where 
they  can  be  urged  in  the  form  of  a  legally  authorized  controversy  inter 
partes,  will  be  protected  by  the  courts,  as  in  the  cases  of  suits  against  elec- 
tion officers  to  secure  registration  or  damages  for  interference  with  voting, 
15  Cyc.  306,  314  (cases) ;  or  as  in  cases  of  contests  between  rival  candidates 
for  office,  each  claiming  to  be  lawfully  elected,  15  Cyc.  393  ff.  (cases) ;  Ton- 
cray  v.  Budge.  14  Idaho.  621.  <;::::-044.  95  Pac.  26  (1908);  but  courts  of  equity 
have  no  inherent  jurisdiction  of  this  character,  Giles  v.  Harris,  189  U.  S. 
475,  23  Sup.  Ct.  639,  47  L.  Ed.  909  (1903) ;  3L.E.A.  (N.  S.)  382,  note  (cases). 
But  compare  People  ex  rel.  Attorney  General  v.  Tool,  35  Colo.  225,  86  Pac. 
224,  229,  231,  6  L.  R.  A.  (N.  S.)  822,  117  Am.  St.  Rep.  198  (1905)  (election 
frauds  enjoined  at  suit  of  attorney  general). 

Judicial  Control  of  Political  Parties. — As  to  this,  both  with  and  with- 
out express  legislative  authorization,   eee   Stephenson  v.   Board  of  Election 


Ch.  3)     SEI'AUATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS      1('9 

STATE  OF  MISSISSIPPI  v.  JOHNSON. 

(Supreme  Court  of  United  States,  1867.    4  Wall.  475,  18  L.  Kd.  437.) 

[Original  proceeding  to  enjoin  the  enforcement  in  Mississippi  of 
certain  federal  statutes  providing  for  the  government  by  military 
commanders  under  authority  of  Congress  of  certain  of  the  Southern 
states  lately  in  rebellion.1  President  Johnson  had  vetoed  them  as 
unconstitutional,  and  they  had  been  passed  over  his  veto.] 

Mr.  Chief  Justice  Chase.  A  motion  was  made,  some  days  since, 
in  behalf  of  the  state  of  Mississippi,  for  leave  to  file  a  bill  in  the 
name  of  the  state,  praying  this  court  perpetually  to  enjoin  and  re- 
strain Andrew  Johnson,  President  of  the  United  States,  and  E.  O. 
C.  Ord,  general  commanding  in  the  district  of  Mississippi  and  Ar- 
kansas, from  executing,  or  in  any  manner  carrying  out.  certain  acts 
of  Congress  therein  named.  The  acts  referred  to  are  those  of  March 
2  and  March  23.  1867,  commonly  known  as  the  Reconstruction  Acts. 
The  Attorney  General  objected  to  the  leave  asked  for,  upon  the 
ground  that  no  bill  which  makes  a  President  a  defendant,  and  seeks 
an  injunction  against  him  to  restrain  the  performance  of  his  duties 
as  President,  should  be  allowed  to  be  filed  in  this  court.  This  point 
has  been  fully  argued,  and  we  will  now  dispose  of  it. 

We  shall  limit  our  inquiry  to  the  question  presented  by  the  objec- 
tion, without  expressing  any  opinion  on  the  broader  issues  discussed 
in  argument,  whether,  in  any  case,  the  President  of  the  United  States 
may  be  required,  by  the  process  of  this  court,  to  perform  a  purely 
ministerial  act  under  a  positive  law,  or  may  be  held  amenable,  in  any 
case,  otherwise  than  by  impeachment  for  crime.  The  single  point 
which  requires  consideration  is  this:  Can  the  President  be  restrained 
by  injunction  from  carrying  into  effect  an  act  of  Congress  alleged  to 
be  unconstitutional? 

Tt  is  assumed  by  the  counsel  for  the  state  of  Mississippi,  that  the 
President,  in  the  execution  of  the  Reconstruction  Acts,  is  required  to 
perform  a  mere  ministerial  duty.  In  this  assumption  there  is.  we 
think,  a  confounding  of  the  terms  ministerial  and  executive,  which 
are  by  no  means  equivalent  in  import.  A  ministerial  duty,  the  per- 
formance of  which  may.  in  proper  cases,  be  required  of  the  head 
of  a  department,  by  judicial  process,  is  one  in  respect  to  which  noth- 

Com'rs,  118  Mleb.  396,  76  N.  W.  014.  42  U  R.  A.  214,  VI  Am.  St.  Rep.  402 
(1808);  Phillips  v.  Gallagher,  73  Minn.  528,  76  N.  W.  285,  42  L.  R.  A.  222 
(1S9S):  People  ex  rel.  Coffey  v.  Democratic  General  Committee.  144  N.  Y.  835, 
58  N.  E.  124,  r.l  L.  R,  A.  674  (1000);  State  ex  rel.  McGrael  v.  Phelps,  111  Wis. 
l.  128  N.  W.  1041,  35  L.  K.  A.  iX.  S.)  353  (1910);  A.  II.  Tuttle  in  1  Mich.  L 
Rev.  466;    V.  U.  Meeliem  in  3  Mich.  L.  Rev.  864. 

i  As  to  the  character  of  the  relief  here  sought,  see  State  of  Georgia  v. 
Stanton,  ante,  p.  |06. 


110  PRELIMINARY    TOPICS  (Part    1 

ing  is  left  to  discretion.  It  is  a  simple,  definite  duty,  arising  under 
conditions  admitted  or  proved  to  exist,  and  imposed  by  law.2 

The  case  of  Marbury  v.  Madison,  Secretary  of  State,  1  Cranch,  137, 
2  L.  Ed.  60,  furnishes  an  illustration.  A  citizen  had  been  nominated, 
confirmed,  and  appointed  a  justice  of  the  peace  for  the  District  of 
Columbia,  and  his  commission  had  been  made  out,  signed,  and  sealed. 
Nothing  remained  to  be  done  except  delivery,  and  the  duty  of  de- 
livery was  imposed  by  law  on  the  Secretary  of  State.  It  was  held 
that  the  performance  of  this  duty  might  be  enforced  by  mandamus 
issuing  from  a  court  having  jurisdiction.  So,  in  the  case  of  Kendall. 
Postmaster  General,  v.  Stockton  &  Stokes,  12  Pet.  527,  9  L.  Ed.  1181, 
an  act  of  Congress  had  directed  the  Postmaster  General  to  credit 
Stockton  &  Stokes  with  such  sums  as  the  Solicitor  of  the  Treasury 
should  find  due  to  them ;  and  that  officer  refused  to  credit  them  with 
certain  sums,  so  found  due.  It  was  held  that  the  crediting  of  this 
money  was  a  mere  ministerial  duty,  the  performance  of  which  might 
be  judicially  enforced.  In  each  of  these  cases  nothing  was  left  to 
discretion.  There  was  no  room  for  the  exercise  of  judgment.  The 
law  required  the  performance  of  a  single  specific  act ;  and  that  per- 
formance, it  was  held,  might  be  required  by  mandamus. 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the 
power  to  see  that  the  laws  are  faithfully  executed,  and  among  these 
laws  the  acts  named  in  the  bill.  By  the  first  of  these  acts  he  is  re- 
quired to  assign  generals  to  command  in  the  several  military  districts, 
and  to  detail  sufficient  military  force  to  enable  such  officers  to  dis- 
charge their  duties  under  the  law.  By  the  supplementary  act,  other 
duties  are  imposed  on  the  several  commanding  generals,  and  these 
duties  must  necessarily  be  performed  under  the  supervision  of  the 
President  as  commander  in  chief.  The  duty  thus  imposed  on  the 
President  is  in  no  just  sense , ministerial.  It  is  purely  executive  and 
political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  govern- 
ment to  enforce  the  performance  of  such  duties  by  the  President 
might  be  justly  characterized,  in  the  language  of  Chief  Justice  Mar- 
shall, as  "an  absurd  and  excessive  extravagance."  It  is  true  that  in 
the  instance  before  us  the  interposition  of  the  court  is  not  sought  to 
enforce  action  by  the  executive  under  constitutional  legislation,  but 
to  restrain  such  action  under  legislation  alleged  to  be  unconstitutional. 
But  we  are  unable  to  perceive  that  this  circumstance  takes  the  case 
out  of  the  general  principles  which  forbid  judicial  interference  with 
the  exercise  of  executive  discretion. 

It  was  admitted  in  the  argument  that  the  application  now  made  to 
us  is  without  a  precedent;    and  this  is  of  much  weight  against   it. 

=  For  the  distinction  between  ministerial  and  discretionary  acts,  see,  also. 
Druecker  v.  Salomon,  21  Wis.  621,  630,  94  Ana.  Dec.  571  (1867) ;  United 
States  ex  rel.  Dunlap  v.  Black,  128  U.  S.  40,  9  Sup.  Ct  12,  32  L.  Ed.  354 
USSS)  (cases). 


Ch.  3)  SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   111 

Had  it  Deen  supposed  at  the  bar  that  this  court  would,  in  any  case. 
interpose,  by  injunction,  to  prevent  the  execution  of  an  unconstitu- 
tional act  of  Congress,  it  can  hardly  be  doubted  that  applications  with 
that  object  would  have  been  heretofore  addressed  to  it.  Occasions 
have  not  been  wanting.  The  constitutionality  of  the  act  for  the  an- 
nexation of  Texas  was  vehemently  denied.  It  made  important  and 
permanent  changes  in  the  relative  importance  of  states  and  sections, 
and  was  by  many  supposed  to  be  pregnant  with  disastrous  results  to 
large  interests  in  particular  states.  But  no  one  seems  to  have  thought 
of  an  application  for  an  injunction  against  the  execution  of  the  act 
by  the  President.  And  yet  it  is  difficult  to  perceive  upon  what  prin- 
ciple the  application  now  before  us  can  be  allowed  and  similar  ap- 
plications in  that  and  other  cases  have  been  denied.  The  fact  that 
no  such  application  was  ever  before  made  in  any  case  indicates  the 
general  judgment  of  the  profession  that  no  such  application  should 
be  entertained. 

It  will  hardly  be  contended  that  Congress  can  interpose,  in  any 
case,  to  restrain  the  enactment  of  an  unconstitutional  law ;  and  yet 
how  can  the  right  to  judicial  interposition  to  prevent  such  an  enact- 
ment, when  the  purpose  is  evident  and  the  execution  of  that  purpose 
certain,  be  distinguished,  in  principle,  from  the  right  to  such  inter- 
position .against  the  execution  of  such  a  law  by  the  President?  The 
CongresVis  the  legislative  department  of  the  government;  the  Presi- 
dent is  the  executive  department.  Neither  can  be  restrained  in  its 
action  by  the  judicial  department;  though  the  acts  of  both,  when 
performed,  are,  in  proper  cases,  subject  to  its  cognizance. 

The  impropriety  of  such  interference  will  be  clearly  seen  upon 
•consideration  of  its  possible  consequences.  Suppose  the  bill  filed  and 
the  injunction  prayed  for  allowed.  If  the  President  refuse  obedience, 
it  is  needless  to  observe  that  the  court  is  without  power  to  enforce 
its  process.  If,  on  the  other  hand,  the  President  complies  with  the 
order  of  the  court  and  refuses  to  execute  the  acts  of  Congress,  is  it 
not  clear  that  a  collision  may  occur  between  the  executive  and  legis- 
lative departments  of  the  government?  May  not  the  House  of  Rep- 
resentatives impeach  the  President  for  such  refusal?  And  in  that 
case  could  this  court  interfere,  in  behalf  of  the  President,  thus  en- 
dangered by  compliance  with  its  mandate,  and  restrain  by  injunction 
the  Senate  of  the  United  States  from  sitting  as  a  court  of  impeach- 
ment? Would  the  strange  spectacle  be  offered  to  the  public  world 
of  an  attempt  by  this  court  to  arrest  proceedings  in  that  court?  These 
questions  answer  themselves. 

It  is  true  that  a  state  may  file  an  original  bill  in  this  court.  And 
it  may  be  true,  in  some  cases,  that  such  a  bill  may  be  filed  against  the 
United  States.  But  we  are  fully  satisfied  that  this  court  has  no  juris- 
diction of  a  bill  to  enjoin  the  President  in  the  performance  of  his 
official  duties ;   and  that  no  such  bill  ought  to  be  received  by  us. 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if  the  re- 


112  PRELIMINARY    TOPICS  (Part    1 

lief  sought  cannot  be  had  against  Andrew  Johnson,  as  President,  it 
may  be  granted  against  Andrew  Johnson  as  a  citizen  of  Tennessee. 
Rut  it  is  plain  that  relief  as  against  the  execution  of  an  act  of  Con- 
gress by  Andrew  Johnson,  is  relief  against  its  execution  by  the  Presi- 
dent. A  bill  praying  an  injunction  against  the  execution  of  an  act 
of  Congress  by  the  incumbent  of  the  presidential  office  cannot  be  re- 
ceived, whether  it  describes  him  as  President  or  as  a  citizen  of  a  state. 
Motion  denied.8 

a  No  officer,  of  whatever  rank,  can  be  compelled  by  mandamus  to  do  a 
discretionary  act,  United  States  ex  rel.  Dunlap  v.  Black,  128  U.  S.  40.  9  Sup. 
Ct.  12.  32  L.  Ed.  351  (1S8S) ;  nor  can  an  officer  of  the  state  or  federal  execu- 
tive department  be  controlled  by  either  mandamus  or  injunction  as  to  aets  of 
a  political  or  executive  character  not  Invading  private  rights  of  person  or 
property,  Georgia  v.  Stanton,  ante.  p.  106;  Martin  v.  Ingham,  38  Kan.  041. 
651,  17  Pac.  162,  167  (1SSS),  where  Valentine,  J.,  said:  "No  court  ever  at- 
tempts, by  either  injunction  or  mandamus,  or  by  any  other  action  or  proceed- 
ing, to  control  legislative,  judicial,  executive,  or  political,  discretion ;  and 
never  indeed  attempts  to  control  any  pure  legislative,  judicial,  or  executive 
act  of  any  kind,  nor  pure  discretion  of  any  kind,  except  when  a  superior 
court,  on  appeal,  reviews  a  decision  of  an  inferior  court." 

See,  also,  In  re  Legislative  Adjournment,  18  R.  I.  824,  27  Atl.  324,  22  L. 
R.  A.  716  (1S93),  as  to  sole  power  of  executive  to  decide  constitutional  ques- 
tions addressed  to  his  judgment  (cases). 

If  there  he  an  official  duty  to  exercise  discretion  this  will  he  enforced,  at 
least  against  all  but  the  chief  executive,  though  the  mode  of  its  exercise  will 
not  be  prescribed.  Attorney  General  v.  Taggart.  (Hi  X.  H.  362.  370.  371,  20  Atl. 
1027,  25  Tj.  R.  A.  613  (1S90)  (cases)  (person  entitled  to  governorship  nianda- 
mused  to  assume  office) ;  Interstate  Commerce  Commission  v.  U.  S.  ex  rel. 
Humbolt  S.  S.  Co.,  224  U.  S.  474,  4S4,  32  Sup.  Ct  556,  56  L.  Ed.  849  (1912). 

It  is  very  generally  held  that  officers  below  the  chief  executive  (of  state 
or  United  States)  may  be  mandamused  to  perform  ministerial  duties,  United 
States  ex  rel.  Dunlap  v.  Black,  above,  and  Martin  v.  Ingham,  above  (3S  Kan. 
649,  17  Pac.  162),  and  may  be  enjoined  from  invading  private  rights  by 
Illegal  acts,  Ellingham  v.  Dye  (Ind.)  99  N.  E.  1,  25,  26  (1912). 

As  to  mandamus  against  the  governor  to  perform  ministerial  duties,  there 
is  a  conflict ;  the  weight  of  authority  being  against  it.  See  6  L.  R.  A.  (N. 
S.)  750,  and  3  Mich.  L.  Rev.  631,  collecting  cases.  The  leading  eases  for  and 
against  are,  perhaps,  Martin  v.  Ingham,  above,  and  People  ex  rel.  Sutherland 
v.  Governor,  29  Mich.  320,  18  Am.  Rep.  89  (1S74).  Mandamus  to  compel  inter- 
state rendition  was  denied  in  Kentucky  v.  Dennison,  24  How.  66,  16  L.  Ed. 
717  (1861)  Unit  see  comment  in  Ex  parte  Virginia,  100  U.  S.  339,  347,  34S.  25 
L.    Ed.  676   (1SS0)   under   fourteenth    amendment]. 

The  federal  courts  have  frequently  enjoined  governors,  as  members  of 
state  boards,  Davis  v.  Gray,  Hi  Wall.  203,  21  h.  Ed.  447  (1873);  Board  of 
Liquidation  v.  McComb,  92  U.  S.  531.  23  L.  Ed.  623  (1S76) ;  Rolstnn  v.  Mis- 
souri Fund  Com'rs,  120  U.  S.  390,  7  Sup.  Ct.  599,  30  L.  Ed.  721  (1SS7) ;  Pen- 
noyer  v.  McConnaughy,  140  U.  S.  1,  11  Sup.  Ct.  099,  35  L.  Ed.  303  (1891) ;  as 
have  also  state  courts  in  Mott  v.  Pa.  R.  Co.,  30  Pa.  9.  33,  72  Am.  lire.  664 
(1S5S)  (semble),  and  Ellingham  v.  Dye,  above,  99  N.  E.  at  pages  23-26. 

Contra:  Frost  v.  Thomas,  26  Colo.  222,  56  Pac.  899,  77  Am.  St.  Rep.  259 
(1S99) ;  State  ex  rel.  Attorney  General  v.  Huston.  27  Okl.  006,  010,  614,  113 
Pac.  190.  34  L.  R.  A.  (N,  S.)  3S0  (1910)  ;  Bates  v.  Taylor,  87  Tenn.  319,  11  S. 
W.  260,  3  t.  R.  A.  310  (1SS9)  (suggesting  a  difference  in  this  regard  between 
the  powers  of  state  and  federal  courts;  [but  compare  Kentucky  v.  Denni- 
son, above]. 

In  United  States  v.  Lee,  106  U.  S.  190,  20S,  209,  220,  1  Sup.  Ct  240,  27  L. 
Ed.  171  (1SS2),  Miller,  J.,  said: 

"The  citizen  here  knows  no  person,  however  near  to  those  in  power,  or 
however  powerful  himself,  to  whom  he  need  yield  the  rights  which  the  law 
secures  to  him  when  it  is  well  administered.    When  he,  in  one  of  the  courts 


Ch.  3)      SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS      113 

McCHORD  v.  LOUISVILLE  &  N.  R.  CO.  (1902)  183  U.  S.  483, 
495^97,  22  Sup.  Ct.  165,  46  L.  Ed.  289,  Mr.  Chief  Justice  Fuller 
(reversing  a  federal  Circuit  Court  decree  enjoining  the  Kentucky  Rail- 
road Commission  from  fixing  rates  under  a  state  statute  alleged  to  be 
unconstitutional) : 

"The  fixing  of  rates  is  essentially  legislative  in  its  character,  and  the 
general  rule  is  that  legislative  action  cannot  be  interfered  with  by  in- 
junction.   *    *    * 

"In  New  Orleans  Waterworks  Co.  v.  New  Orleans,  164  U.  S.  471. 
482,  17  Sup.  Ct.  161,  165,  41  L.  Ed.  518,  524,  the  general  rule  was 
stated  and  applied,  and  Mr.  Justice  Harlan  who  delivered  the  opinion 
of  the  court,  said :  'We  repeat  that  when  the  city  council  shall  pass  an 
ordinance  that  infringes  the  rights  of  the  plaintiff,  and  is  unconstitu- 
tional and  void  as  impairing  the  obligation  of  its  contract  with  the 
state,  it  will  be  time  enough  for  equity  to  interfere,  and  by  injunction 
prevent  the  execution  of  such  ordinance.'     *     *    * 

"The  rule  was  also  applied  by  Mr.  Justice  Field  in  Alpers  v.  San 
Francisco  (C.  C.)  32  Fed.  503,  where  complainant  sought  an  injunction 
to  restrain  the  passage  of  an  ordinance  which  lie  alleged  would  impair 
the  obligation  of  a  contract  he  had  with  the  city.  Mr.  Justice  Field 
said :  'This  no  one  will  question  as  applied  to  the  power  of  the  legisla- 
ture of  the  state.  The  suggestion  of  any  such  jurisdiction  of  the  court 
over  that  body  would  not  be  entertained  for  a  moment.  The  same  ex- 
emption from  judicial  interference  applies  to  all  legislative  bodies,  so 
far  as  their  legislative  discretion  extends.  *  *  *  The  courts  cannot 
in  the  one  case  forbid  the  passage  of  a  law  nor  in  the  other  the  passage 
of  a  resolution,  order,  or  ordinance.  If  by  either  body,  the  legislature 
or  the  board  of  supervisors,  an  unconstitutional  act  be  passed,  its  en- 
forcement may  be  arrested.    The  parties  seeking  to  execute  the  invalid 

of  competent  jurisdiction,  has  established  his  right  to  property,  there  Is  no 
reason  why  deference  to  any  person,  natural  or  artificial,  net  even  the  United 
should  prevent  him  from   using  the  menus  which  the  law  gives  him 
protection  and  enforcement  of  that  right.     *     •     •     \0  nrdu  in  this 
country  is  so  high  that  he  is  above  the  law.     No  officer  of  the  law  may  set 
that  law  at  defiance  with  Impunity.    All  the  officers  of  the  gon 
the  highest  to   the  lowest,  are  creatures  of  the  law  and  are  bound    I 
it.     It  is  the  only  supreme  power  in  our  system   of  government,  and  every 
man  who  by  accepting  office  participates  In   its  functions  is  only   the  more 
bound  to  submit  to  that  supremacy,  and  to  observe  the  limitations 
which  it  Imposes  upon  the  exercise  of  the  authority  which  it  gives." 

As  to  the  judicial  power  to  subpoena  a  chief  executive  to  give  tost  i ay, 

see  Appeal  of  ll.irtranft,  S5  Pa.  4:j:j,  U7  Am.  Rep.  667  (1ST")   teases);    Martin 
v.  Ingham,  above,  38  Kan.  at  pp.  655,  GGO,  17  I'ac.  16Z 

In  a  few  states  the  immunity  of  the  governor  from  judicial  control  Is  ex- 
tended  to  the  o  \e  ex<  cuti^  e  di 

Ingham,  above,  3S  Kan.  at  page  660,  17  but  the  difficulty  of  main 

talning  this  position  is  illustrated  by  the  decisions  reviewed  in  State  ex  rel 
Klnsella  v.  Eberhart,  116  Minn.  313,  133  N.  W.  857,  39  U  K.  A.  t-V   - 
Ann.  Cas.  1913B,  7*5  (1911)  (certiorari  finally  allowed  against  governor). 
HallConst.L. — 8 


114  PRELIMINARY    TOPICS  (Part   1 

act  can  be  reached  by  the  courts,  while  the  legislative  body  of  the  state 
or  of  the  municipality,  in  the  exercise  of  its  legislative  discretion,  is 
beyond  their  jurisdiction.  The  fact  that  in  either  case  the  legislative 
action  threatened  may  be  in  disregard  of  constitutional  restraints,  and 
impair  the  obligation  of  a  contract,  as  alleged  in  this  case,  does  not 
affect  the  question.  It  is  legislative  discretion  which  is  exercised  and 
that  discretion,  whether  rightfully  or  wrongfully  exercised,  is  not  sub- 
ject to  interference  by  the  judiciary.'  "l 


SECTION  2.— DELEGATION  OF  POWERS 


OPINION  OF  THE  JUSTICES. 

(Supreme  Judicial  Court  of  Massachusetts.  1S94.    160  Mass.  5S6,  36  N.  E.  488, 
23  L.  Ed.  113.) 

[Advisory  opinions  given  in  response  to  the  following  questions 
asked  by  the  state  House  of  Representatives:  "(1)  Is  it  constitutional, 
in  an  act  granting  to  women  the  right  to  vote  in  town  and  city  elec- 
tions, to  provide  that  such  act  shall  take  effect  throughout  the  com- 
monwealth upon  its  acceptance  by  a  majority  vote  of  the  voters  of  the 
whole  commonwealth?  (2)  Is  it  constitutional  to  provide  in  such 
an  act  that  it  shall  take  effect  in  a  city  or  town  upon  its  acceptance  by 
a  majority  vote  of  the  voters  of  such  city  or  town?  (3)  Is  it  constitu- 
tional, in  an  act  granting  to  women  the  right  to  vote  in  town  and  city 
elections,  to  provide  that  such  an  act  shall  take  effect  throughout  the 
commonwealth  upon  its  acceptance  by  a  majority  vote  of  the  voters 
of  the  whole  commonwealth,  including  women  specially  authorized  to 
register  and  to  vote  on  this  question  alone?"] 

Field,  C.  J.,  and  Allen,  Morton,  and  Lathrop,  JJ.  *  *  *  The 
Constitution  of  Massachusetts  was  framed  after  much  public  discus- 
sion, and  after  9  of  the  original  13  states  had  established  Constitutions. 

i  Accord:  See  cases  collected  in  13  L.  R.  A.  844,  note.  Compare  Elliughain 
v.  Dye,  ante,  p.  11,  and  State  v.  Thorson,  ante.  p.  17,  note.  For  qualifica- 
tions of  the  general  rule,  see  Spring  Valley  Water  WorUs  v.  Bartlett  (C.  C.) 
16  Fed.  615  (1SS3),  and  Roberts  v.  City  of  Louisville,  92  Ky.  95,  17  S.  W. 
216,   13  L.  R.  A.  S44  (1S91). 

Of  course  the  legislature  itself  may  not  be  compelled  by  courts  to  dis- 
charge its  constitutional  duties,  no  matter  of  what  character,  Turnbull  v.  Gid- 
dings,  95  Mich.  314,  54  N.  W.  SS7,  19  L.  R.  A.  853  (1893)  (make  journal  en- 
tries);  People  ex  rel.  Woodyatt  v.  Thompson,  155  111.  451,  475,  40  N.  E.  307 
(1S95)  (pass  apportionment  act);  nor  can  its  officers  be  mandamused  to  per- 
form discretionary  acts,  Ex  parte  Echols,  39  Ala.  698,  S8  Am.  Dec.  749  (1S66) ; 
though  they  may  be  to  perform  ministerial  duties,  State  ex  rel.  Benton  v. 
Elder,  31  Neb.  169,  47  N.  W.  710,  10  L.  R.  A.  796  (1891)  (publish  election 
returns). 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWER8   115 

The  opinions  of  some  of  the  men  engaged  in  framing  these  Constitu- 
tions are  well  known.  John  Adams  took  a  principal  part  in  framing 
the  Constitution  of  Massachusetts,  and  his  opinions  upon  government, 
both  before  and  after  its  adoption,  are  found  in  his  published  works. 
The  characteristic  feature  of  all  these  Constitutions  is  that  they  estab- 
lish a  government  by  representatives  of  the  people,  and  not  a  govern- 
ment directly  by  the  people.  This  was  the  kind  of  government  to 
which  the  people  were  accustomed.  All  hereditary  offices  having  been 
abolished,  so  far  as  they  ever  existed  in  any  of  the  colonies,  and  ap- 
pointments to  office  by  the  British  crown  having  ceased  at  the  time  of 
the  Revolution,  the  chief  executive  officers  and  the  members  of  both 
branches  of  the  legislature,  where  there  were  two  branches,  were  to  be 
elected  by  the  people.  But  the  model  adopted  was  in  other  respects 
the  English  form  of  government.  While  a  purely  democratic  form  of 
government  existed  in  the  towns  of  New  England,  few  if  any  persons 
seem  to  have  been  in  favor  of  such  a  form  of  government  for  the  state. 

By  the  Constitution  of  Massachusetts,  as  originally  adopted,  not 
only  were  the  powers  of  the  representatives  of  the  people  limited,  but 
the  powers  of  the  people  themselves  were  limited.  The  people  limited 
their  right  to  vote  by  requiring  for  the  electors  of  state  officers  certain 
qualifications,  among  which  was  a  low  property  qualification.  They 
required,  in  the  persons  to  be  voted  for,  higher  qualifications.  *  *  * 
They  provided  for  annual  elections,  and  they  declared  that  "the  people 
of  this  commonwealth  are  not  controllable  by  any  other  laws  than 
those  to  which  their  constitutional  representative  body  have  given  their 
consent."    Declaration  of  Rights,  art.  10.     *     *     * 

But  there  is  nothing  in  any  part  of  the  Constitution  which  tends  to 
show  that  the  people  desired  that  any  law  should  ever  be  submitted  to 
them  for  approval  or  rejection.  The  only  expression  of  this  kind 
relates  to  the  manner  of  collecting  the  sentiments  of  the  people  in  the 
year  1795,  "on  the  necessity  or  expediency  of  revising  the  Constitution, 
in  order  to  amendments,"  found  in  Const.  Mass.  c.  6,  art.  10.  Tiny  in- 
dead  declared  that  "all  power  residing  originally  in  the  people,  and 
being  derived  from  them,  the  several  magistrates  and  officers  of  govern- 
ment, vested  with  authority,  whether  legislative,  executive,  or  judicial, 
are  their  substitutes  and  agents,  and  are  at  all  times  accountable  to 
them"  (Declaration  of  Rights,  art.  5);  but  they  provided  for  no  appeal 
to  themselves  from  any  legislative,  executive,  or  judicial  act.  They 
apparently  relied  upon  frequent  elections,  when  the  officers  were  elec- 
tive; upon  the  right  of  meeting  and  consulting  upon  the  common 
good;  upon  the  right  to  petition  and  of  instructing  their  representa- 
tives ;  upon  impeachment ;  and  upon  the  right  of  reforming,  altering, 
and  totally  changing  the  form  of  government,  when  the  protection, 
safety,  prosperity,  and  happiness  of  the  people  required  it.  Id.  art.  7. 
Apparently,  it  was  thought  that  the  persons  selected  for  the  executive, 
legislative,  and  judicial  offices,  in  the  manner  prescribed  in  the  Con- 


116  PRELIMINARY    TOPICS  (Part    1 

stitution,  would  be  men  of  good  character  and  intelligence,  of  some 
experience  in  affairs,  and  of  some  independence  of  judgment,  and 
would  have  a  better  opportunity  of  obtaining  information,  taking  part 
in  discussion,  and  carefully  considering  conflicting  opinions,  than  the 
people  themselves ;  and  the  people  therefore  put  the  responsibility  of 
carrying  on  the  government  upon  their  representatives.    *    *    * 

The  Constitutions  of  the  different  states  resemble  one  another  in 
many  of  their  principal  provisions,  and  it  generally  has  been  held, 
whenever  the  subject  has  come  before  the  courts,  that  the  legislative 
power  cannot  be  delegated  by  the  legislature  to  any  other  body  or  au- 
thority, and  that  the  people  themselves  have  not  retained  this  power, 
except  where  they  have  expressly  provided  for  it.1  It  is  true  that  a 
general  law  can  be  passed  by  the  legislature,  to  take  effect  upon  the 
happening  of  a  subsequent  event.2  Whether  this  subsequent  event  can 
be  the  adoption  of  the  law  by  a  vote  of  the  people  has  occasioned  some 
differences  of  opinion,  but  the  weight  of  authority  is  that  a  general 
law  cannot  be  made  to  take  effect  in  this  manner.3  Whether  such  leg- 
islation is  submitted  to  the  people  as  a  proposal  for  a  law,  to  be  voted 
upon  by  them,  and  to  become  a  law  if  they  approve  it,  or,  as  a  law, 
to  take  effect  if  they  vote  to  approve  it,  the  substance  of  the  transac- 
tion is  that  the  legislative  department  declines  to  take  the  responsibility 
of  passing  the  law;  but  the  law  has  force,  if  at  all,  in  consequence  of 
the  votes  of  the  people.  They,  ultimately,  are  the  legislators.  It  seems 
to  us  that  by  the  Constitution  the  senate  and  the  house  of  representa- 
tives have  been  made  the  legislative  department  of  the  government,  and 
that  there  has  not  been  reserved  to  the  people  any  direct  part  in  legisla- 
tion.   The  various  amendments  made  to  the  Constitution  since  its  adop- 

i  Accord  (submission  of  general  legislation  to  popular  vote):  Barto  v.  Him- 
rod,  8  N.  Y.  483,  59  Am.  Dee.  506  (1853) ;  Santo  v.  State,  2  Iowa,  165,  63  Am. 
Dee.  487  (1S56) ;  State  ex  rel.  Pearson  v.  Hayes,  61  N.  H.  264  (18S1) ;  Ex 
parte  Wall,  48  Cal.  279,  17  Am.  Rep.  425  (1S74)  ;   23  L.  R.  A.  113,  note  (cases). 

Contra:  State  v.  Parker,  26  Vt.  357  (1854);  Smith  v.  City  of  Janesville, 
26  Wis.  291  (1870),  affirmed  in  State  ex  rel.  Van  Alstine  v.  Frear,  142  Wis. 
320,  125  N.  W.  961,  20  Ann.  Cas.  633  (1910). 

2  The  determination  of  the  occurrence  of  such  event  may  be  delegated  to 
such  officers  as  the  legislature  may  designate,  even  though  such  determina- 
tion may  require  the  exercise  of  much  judgment.  The  Brig  Aurora,  7  ('ranch, 
382,  3  L.  Ed.  378  (1S13) ;  Marshal]  Field  &  Co.  v.  Clark,  143  TJ.  S.  649.  6S0- 
694,  12  Sup.  Ct.  495,  36  L.  Ed.  294  (1S92)  (tariff  made  dependent  upon  deter- 
mination of  President  that  duties  of  other  countries  on  products  of  United 
States  are  unreasonable).     See  In  re  Oliver,  17  Wis.  681  (1864). 

In  State  v.  Young,  29  Minn.  474,  550  ff.,  9  N.  W.  737  (18S11,  it  was  denied 
that  legislation  could  be  made  dependent  upon  the  opinion  of  a  special  non- 
judicial tribunal  as  to  its  constitutionality. 

s  See  the  arguments  upon  this  point  in  People  v.  Collins,  3  Mich.  343.  354- 
356,  380-3S1,  408-412,  418-420,  425-427  (1S54),  by  an  evenly  divided  court.  Aa 
to  legislation  made  contingent  upon  the  future  adoption  of  a  constitu- 
tional amendment  enlarging  the  powers  of  the  legislature,  see  Pratt  v.  Allen, 
13  Conn.  119,  12S  (1839);  Etchison  Drilling  Co.  v.  Flournoy,  59  South.  867, 
871  (1912,  La.).  As  to  legislation  made  dependent,  either  as  to  taking  effect 
or  as  to  extent  of  operation,  upon  the  future  legislative  action  of  another 
jurisdiction,  see  People  v.  Fire  Ass'n  of  Philadelphia,  92  N.  Y.  311,  44  Am. 
Rep.  3S0  (1SS3)  (retaliatory  legislation*. 


Cll.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  P0WEB8   117 

tion  have  not  changed  its  character  in  this  respect.  Ey  article  2  and 
article  9  of  amendments  to  the  Constitution  an  act  constituting  a  town 
or  towns  a  city  government  can  be  passed  only  with  the  consent  of  the 
inhabitants  of  such  town  or  towns;  and  specific  amendments  to  the 
Constitution,  proposed  by  the  general  court,  must  be  submitted  to  the 
qualified  voters  of  the  commonwealth.  A  city  charter  resembles  a  state 
Constitution  in  this:  that  the  government  of  the  town  is  made  by  the 
charter  a  representative  government;  and  it  was  originally  declared 
that  the  people  alone  have  a  right  to  institute  government,  and  to 
change  it.  Declaration  of  Rights,  art.  7.  These  amendments,  as  well 
as  the  other  amendments,  to  the  Constitution,  indicate  no  intention  of 
having  laws  submitted  to  the  people  for  adoption  or  rejection. 

For  these  reasons,  we  are  of  opinion  that  the  first  question  should 
be  answered  in  the  negative. 

The  second  question  requires  additional  consideration.  There  have 
been  laws,  from  the  earliest  times,  which  delegated  legislative  powers 
to  the  inhabitants  of  towns,  or  permitted  legislative  powers  to  be  ex- 
ercised by  such  inhabitants  over  subjects  which  were  declared  proper 
for  municipal  control.  Laws  conferring  additional  powers  on  towns 
or  cities  have  been  passed,  and  made  to  take  effect  in  any  town  or  city 
upon  acceptance  by  the  qualified  voters  of  the  town  or  city,  or  of  the 
city  council.  Some  examples  are  found  in  Pub.  St.  c.  27,  §§  13,  27,  65, 
74.  Special  laws  have  been  passed,  conferring  special  powers  on  par- 
ticular towns  or  cities,  and  general  laws  have  been  passed  which  relate 
to  towns  and  cities  having  a  certain  population  ;  and  the  consent  of  the 
inhabitants  of  a  city  or  town,  sometimes,  has  been  required,  before 
certain  special  powers  can  be  used.  Sec  Pub.  St.  c.  44,  §§  2,  7;  Id.  c. 
54,  §  13;  St.  1887,  c.  411,  §  92;  St.  1891,  c.  370.  These  statutes,  in 
general,  relate  to  local  affairs,  or  to  what  has  been  called  "police  regu- 
lations." In  Stone  v.  City  of  Charlestown,  114  Mass.  214,  it  was  de- 
cided that  a  statute  was  constitutional  which  united  two  municipalities, 
and  provided  that  the  act  should  not  take  effect  unless  accepted  by  the 
voters  of  the  respective  municipalities.  It  was  said:  "Amid  all  the 
diversity  of  opinion  upon  the  much-vexed  question  how  far  statutes 
may  be  made  contingent  upon  being  accepted  by  popular  vote,  without 
violating  the  principle  that  legislative  power  cannot  be  delegated,  there 
is  a  complete  harmony  of  adjudication  in  favor  of  the  authority  of  the 
legislature,  unless  controlled  by  a  special  constitutional  provision  upon 
the  subject,  to  submit  statutes  dividing  or  uniting  counties  or  towns, 
or  establishing  or  enlarging  a  city,  to  a  vote  of  the  inhabitants  of  the 
territory  immediately  affected." 

There  has  been  some  conflict  of  authority  upon  the  constitutionality 
of  what  are  called  "local  option  laws,"  which  have  been  principally 
laws  regulating  the  sale  of  intoxicating  liquors,  but  they  have  been 
held  to  be  constitutional  by  a  majority  of  the  courts  which  have  con- 
sidered them.  They  have  been  held  to  be  constitutional  in  this  com- 
monwealth.    Com.  v.  Bennett,  108  Mass.  27.     In  that  case  it  is  said: 


118  PRELIMINARY    TOPICS  (Part    1 

"It  has  been  argued  in  other  cases,  which  have  been  brought  before 
the  court  since  the  argument  of  the  present  case,  that  these  statutes 
are  unconstitutional,  because  they  delegate  to  cities  and  towns  a  part 
of  the  legislative  power.  But  we  can  see  no  ground  for  such  a  posi- 
tion. Many  successive  statutes  of  the  commonwealth  have  made  the 
lawfulness  of  sales  of  intoxicating  liquors  to  depend  upon  licenses 
from  the  selectmen  of  towns  or  commissioners  of  counties,  and  such 
statutes  have  been  held  to  be  constitutional.  7  Dane,  Abr.  43,  44;  Com. 
v.  Blackington,  24  Pick.  352.  It  is  equally  within  the  power  of  the 
legislature  to  authorize  a  town,  by  vote  of  the  inhabitants,  or  a  city,  by 
vote  of  the  city  council,  to  determine  whether  the  sale  of  particular 
kinds  of  liquors  within  its  limits  shall  be  permitted  or  prohibited. 
This  subject,  although  not  embraced  within  the  ordinary  power  to 
make  by-laws  and  ordinances,  falls  within  the  class  of  police  regula- 
tions, which  may  be  intrusted  by  the  legislature,  by  express  enactment, 
to  municipal  authority." 

Certainly,  it  is  a  difficult  question  to  determine  how  far  the  principle 
of  local  option  can  be  carried,  and  to  what  subjects  it  can  be  applied. 
An  act  granting  to  women  the  right  to  vote  in  town  and  city  elections 
does  not  relate  to  the  powers  of  towns  and  cities,  which  in  some  re- 
spects may  well  be  different  in  different  towns  and  cities,  on  account 
of  the  number,  wealth,  and  pursuits  of  the  inhabitants.  Such  an  act 
relates  solely  to  the  persons  who  should  be  invested  with  a  share  of 
political  power.  Whether  women  should  be  permitted  to  vote  in  town 
and  city  elections  seems  to  us  a  matter  of  general,  and  not  of  local, 
concern.  There  is  nothing  in  the  history  of  Massachusetts  which  tends 
to  show  that  the  right  to  vote  in  towns  and  cities  on  town  and  city 
affairs  has  ever  been  regarded  as  a  matter  of  police  regulation,  or  of 
merely  local  interest,  or  as  a  right  which  might  be  granted  or  with- 
held by  a  licensing  board.  It  always  has  been  determined  by  the  legis- 
lature by  a  general  law,  in  force  uniformly  throughout  the  common- 
wealth. 

Article  9  of  the  Declaration  of  Rights  declares  that  "all  elections 
ought  to  be  free;  and  all  the  inhabitants  of  this  commonwealth,  having 
such  qualifications  as  they  shall  establish  by  their  frame  of  govern- 
ment, have  an  equal  right  to  elect  officers,  and  to  be  elected,  for  public 
employments."  This,  in  terms,  is  confined  to  elections  in  which  the 
qualifications  of  the  electors  and  of  the  persons  to  be  elected  are  estab- 
lished by  the  frame  of  government ;  but  the  principle  declared  has,  up 
to  the  present  time,  always  been  adopted  by  the  legislature,  in  passing 
laws  relating  to  the  right  to  vote  in  the  election  of  town  and  city  offi- 
cers. The  qualified  voters  in  towns  in  this  commonwealth,  and  their 
representatives  in  cities,  are  possessed  of  a  large  measure  of  political 
power.  They  have  the  taxing  power  for  all  municipal  purposes,  and  it 
is  well  known  that  the  amount  of  the  city  or  town  tax  of  any  person 
usually  exceeds  that  of  his  state  and  county  tax.  The  tax  is  imposed 
on  aU  the  inhabitants  in  the  town  or  city  liable  to  be  taxed,  and  on  all 


Ch.  3)      SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  PuWIiBS      119 

the  real  property  situated  within  the  town  or  city,  whether  owned  by 
residents  or  nonresidents.  The  power  of  taxation  is  one  of  the  essen- 
tial and  fundamental  powers  of  government.  It  certainly  would  con- 
stitute an  anomaly  heretofore  never  known  in  this  commonwealth,  if, 
in  some  cities  and  towns,  women  were  permitted  to  vote  on  questions 
which  concern  taxation,  and  in  other  cities  and  towns  were  not  permit- 
ted. The  question,  we  think,  comes  to  this:  Whether  the  legislature, 
constitutionally,  can  delegate  to  the  qualified  voters  of  the  inhabitants 
of  a  city  or  town  the  power  of  granting  or  refusing  to  grant  to  women 
who  are  inhabitants  the  right  to  vote  in  city  and  town  affairs.  We  are 
not  aware  that,  in  any  of  the  states  where  statutes  have  been  passed 
conferring  suffrage  or  municipal  suffrage  upon  women,  the  principle 
of  local  option  has  been  adopted  in  such  statutes.    *    *    * 

Considering  the  nature  of  the  power  intended  to  be  confeired,  the 
history  of  legislation  on  the  subject  from  the  earliest  times,  and  the 
language  of  the  Constitution,  we  are  of  opinion  that,  if  a  law  is  to  be 
enacted  such  as  the  question  contemplates,  it  must  operate  uniformly 
throughout  the  commonwealth,  and  that  the  second  question  should  be 
answered  in  the  negative. 

For  the  reasons  hereinbefore  given,  without  considering  others 
which  might  be  suggested,  the  third  question  should  be  answered  in 
the  negative. 

Holmes,  J.  It  is  assumed  in  the  questions  that  the  legislature  has 
power  to  grant  women  the  right  to  vote  in  town  and  city  elections.  I 
see  no  reason  to  doubt  that  it  has  that  power. 

1.  I  admit  that  the  Constitution  establishes  a  representative  govern- 
ment, not  a  pure  democracy.  It  establishes  a  general  court,  which  is 
to  be  the  law-making  power.  But  the  question  is  whether  it  puts  a 
limit  upon  the  power  of  that  body  to  make  laws.  In  my  opinion,  the 
legislature  has  the  whole  law-making  power,  except  so  far  as  the  words 
of  the  Constitution,  expressly  or  impliedly,  withhold  it;  and  I  think- 
that,  in  construing  the  Constitution,  we  should  remember  that  it  is  a 
frame  of  government  for  men  of  opposite  opinions,  and  for  the  future. 
and  therefore  not  hastily  import  into  it  our  own  views,  or  unexpressed 
limitations  derived  merely  from  the  practice  of  the  past.  I  ask  myself, 
as  the  only  question,  what  words  express  or  imply  that  a  power  to  pass 
a  law  subject  to  rejection  by  the  people  is  withheld?  I  find  none  which 
do  so.  The  question  is  not  whether  the  people  of  their  own  motion 
could  pass  a  law  without  any  act  of  the  legislature.  That,  no  doubt, 
whether  valid  or  not,  would  be  outside  the  Constitution.  So,  perhaps, 
might  be  a  statute  purporting  to  confer  the  power  of  making  laws  upon 
them.  But  the  question,  put  in  a  form  to  raise  the  fewest  technical  ob- 
jections, is  whether  an  act  of  the  legislature  is  made  unconstitutional 
by  a  proviso  that,  if  rejected  by  the  people,  it  shall  not  go  into  effect. 
If  it  does  go  into  effect,  it  does  so  by  the  express  enactment  of  the 
representative  body.  I  see  no  evidence  in  the  instrument  that  this  ques 
tion  ever  occurred  to  the  framers  of  the  Constitution.     It  is  but  a  short 


120  PRELIMINARY   topics  (Part   1 

step  further  to  say  that  the  Constitution  does  not  forbid  such  a  law.  I 
agree  that  the  discretion  of  the  legislature  is  intended  to  be  exercised. 
I  agree  that  confidence  is  put  in  it  as  an  agent.  But  I  think  that  so 
much  confidence  is  put  in  it  that  it  is  allowed  to  exercise  its  discretion 
by  taking  the  opinion  of  its  principal,  if  it  thinks  that  course  to  be  wise. 
It  has  been  asked  whether  the  legislature  could  pass  an  act  subject  to 
the  approval  of  a  single  man.  I  am  not  clear  that  it  could  not.  The 
objection,  if  sound,  would  seem  to  have  equal  force  against  all  forms 
of  local  option.  But  I  will  consider  the  question  when  it  arises.  The 
difference  is  plain  between  that  case  and  one  where  the  approval  re- 
quired is  that  of  the  sovereign  body.  The  contrary  view  seems  to  me 
an  echo  of  Hobbes'  theory  that  the  surrender  of  sovereignty  by  the 
people  was  final.  I  notice  that  the  case  from  which  most  of  the  reason- 
ing against  the  power  of  the  legislature  has  been  taken  by  later  deci- 
sions states  that  theory  in  language  which  almost  is  borrowed  from  the 
Leviathan.  Rice  v.  Foster,  4  Har.  (Del.)  479,  488.  Hobbes  urged  his 
notion  in  the  interest  of  the  absolute  power  of  King  Charles  I,  and 
one  of  the  objects  of  the  Constitution  of  Massachusetts  was  to  deny  it. 
I  answer  the  first  question,  "Yes."  I  may  add  that,  while  trie  tendency 
of  judicial  decision  seems  to  be  in  the  other  direction,  such  able  judges 
as  Chief  Justices  Parker,  of  Massachusetts,  Dixon,  of  Wisconsin,  Red- 
field,  of  Vermont,  and  Cooley,  of  Michigan,  have  expressed  opinions 
like  mine. 

2.  If  the  foregoing  view  of  the  power  of  the  legislature  is  risdit.  I 
am  of  opinion  that  the  second  question  also  should  be  answered,  "Yes." 
I  find  nothing  which  forbids  the  legislature  to  establish  a  local  option 
upon  this  point,  any  more  than  with  regard  to  the  liquor  laws.  Under 
the  circumstances,  I  do  not  argue  this  or  the  following  question  at 
length. 

3.  The  act  suggested  by  the  third  question  is  open  to  the  seeming  ob- 
jection that  it  might  take  a  part  of  their  power  out  of  the  hands  of  the 
present  possessors,  without  their  assent,  except  as  given  by  their  rep- 
resentatives. But  if,  as  I  believe,  the  legislature  could  give  to  women 
the  right  to  vote,  if  they  accepted  it  by  a  preliminary  vote,  and  could 
impose  as  a  second  condition  that  the  grant  should  not  be  rejected  by 
the  voters  of  the  commonwealth,  I  do  not  see  why  it  might  not  com- 
bine the  two  conditions  into  one,  although,  as  a  result,  the  grant  might 
become  a  law  against  the  will  of  a  majority  of  the  male  voters.  I  an- 
swer this  question,  also,  "Yes." 

Knowlton,  J.  *  *  *  [After  answering  questions  1  and  3  in 
the  negative,  on  the  ground  that  the  legislature  could  no  more  shift 
to  the  people  the  responsibility  of  deciding  that  a  law  should  be  en- 
acted than  that  the  governor  could  thus  shift  the  pardoning  power 
or  the  courts  the  power  of  deciding  cases:4] 

4  That  judicial  power  cannot  be  delegated  by  the  possessor  of  It,  see  Runkle 
v.  United  States,  122  U.  S.  543,  1  Sup.  Ct  1141,  30  L.  Ed.  11G7  (1SS7)  (court- 
martial). 


Ch.  3)   SEPARATION  AND  DELEGATION  OB"  GOVERNMENTAL  POWERS   121 

This  is  the  rule  in  regard  to  what  is  strictly  legislation, — that  is  to 
say,  the  enactment  of  general  laws  for  the  people  of  a  state, — but 
it  is  very  generally  held  that  a  legislature  may  submit  to  the  voters 
of  towns  and  cities  questions  which  are  local  in  their  nature,  or  which 
have  in  them  a  local  element,  such  as  to  make  it  proper  that  they 
should  be  dealt  with  differently  in  different  places.  This  rule  pre- 
vails in  Massachusetts.     *     *     * 

The  doctrine  on  which  these  statutes  are  founded  is  not  that  the 
legislature  may  delegate  legislative  authority, — that  is,  authority  to 
enact  laws  for  all  the  people  of  the  commonwealth, — but  that  it  may 
submit  to  the  voters  of  a  city  or  town  the  right  to  vote  on  any  ques- 
tion which  may  affect  their  interests  differently  from  the  interests 
of  those  in  other  parts  of  the  commonwealth.  In  doing  this,  the 
legislature  recognizes  the  principle  of  local  self-government,  which 
has  always  been  a  distinctive  feature  of  our  New  England  system. 

Voting,  in  city  and  town  elections,  is  simply  a  part  of  the  manage- 
ment of  the  city's  or  town's  business.  It  can  in  no  way  affect  the 
state  at  large.  The  legislature  may  give  cities  and  towns  as  large 
liberty  as  it  chooses  in  regard  to  any  question  which  is  local.  If  the 
education,  or  experience  in  business,  or  wealth,  of  women,  as  com- 
pared with  that  of  men,  or  the  relative  number  of  women  and  men, 
differs  materially  in  different  municipalities,  so  as  to  make  the  con- 
siderations properly  to  be  regarded  in  favor  of  allowing  women  to 
vote  in  town  elections  much  stronger  in  one  town  than  in  another, 
the  legislature  may  leave  to  the  voters  of  the  town  the  question 
whether  they  will  extend  municipal  suffrage  to  women.  I  think  the 
legislature  may  find  great  differences  in  different  parts  of  the  com- 
monwealth in  regard  to  the  desirability  of  the  proposed  change,  and  that 
the  question  to  be  considered  is,  in  part  at  least,  a  local  one.    *    *    * 

Barker,  J.  [Answering  all  questions,  yes,  and  referring  to  last 
question:]  *  *  *  Nor  is  it,  to  my  mind,  an  objection  to  the  va- 
lidity of  a  law  so  framed  that  the  body  whose  further  assent  is  re- 
quired is  composed  in  part  of  inhabitants  other  than  qualified  voters. 
In  the  case  of  acts  of  incorporation  the  members  of  the  voting  body 
need  not  be  even  inhabitants,  and  yet  without  their  assent  the  act 
is  not  law,  and  with  their  assent  it  is  law.5     *     *     * 

»  But  see  the  distinction  between  the  validity  of  popular  assent  to  proffered 
acts  of  Incorporation,  or  to  authority  to  tax  or  to  make  contracts  or  to  do 
administrative  acts,  and  a  similar  assent  to  legislative  acts  prescribing  rules 
of  conduct,  discussed  in  People  v.  Collins,  3  Mich.  343,  37S-3S0  (1854) ;  l 
San  Antonio  \.  Jones,  28  Tex.  19,  32  (1866);  Locke's  Appeal,  72  l'a.  491,  508, 
13  Am.  Rep.  710  (1S73). 

Local  Option  Legislation. — The  principle  of  local  option  legislation  is 
generally  upheld  without  express  constitutional  authorization. 

"We  may  concede  that  the  lawmaking  body  of  the  state  Is  not  authorized 
to  submit  to  a  popular  vote  of  the  state  the  Question  whether  or  not  an  act 
proposed  by  it  shall  become  a  law.  This  court  has  so  held  In  a  number  of 
eases.  *  •  •  But  while  this  Is  so,  it  does  not  follow  by  any  means  thit 
the  lawmaking  body  may  not  reserve  to  the  electors  of  a  subdivision  of  the 
state — included  within  the  intended  scope  of  operation  on  an  act  designed 


122  preliminary  topics  (Part  1 


UNITED  STATES  v.  GRIMAUD. 

(Supreme  Court  of  United  States,  1910.    220  U.  S.  506,  31  Sup.  Ct  480,  55  L. 
Ed.  563.) 

[Error  to  the  federal  District  Court  for  the  Southern  District  of 
California.  Congress  passed  various  acts  for  the  establishment  and 
management  of  forest  reservations  upon  the  public  lands,  but  per- 
mitting the  entry  of  persons  for  lawful  purposes,  provided  that  they 
complied  with  the  rules  and  regulations  covering  such  reservations 
(30  Stat.  36—1897).  It  was  also  provided  (30  Stat.  35)  that  the  Sec- 
retary of  Agriculture  may  make  such  rules  and  regulations  and  es- 
tablish such  service  as  will  insure  the  objects  of  such  reservation; 

to  have  effect  upon  local  government  conditions — the  right  to  determine  on 
popular  vote  whether  or  not  they  will  advantage  themselves  of  the  act.  If 
an  act  in  question  is  complete  in  itself,  and  requires  nothing  further  to  give 
it  validity  as  a  legislative  act,  it  is  not  vulnerable  to  attack  on  constitu- 
tional grounds  simply  because  the  limits  of  its  operation  are  made  to  de- 
pend upon  a  vote  of  the  people." — Bishop,  J.,  in  Eckerson  v.  City  of  Des 
Moines,  137  Iowa,  452,  478,  115  N.  W.  177  (190S)  (option  to  adopt  commission 
form  of  city  government).  The  cases  and  arguments  on  both  sides  of  the  ques- 
tion are  fully  collected  in  State  ex  rel.  Witter  v.  Forkner,  94  Iowa,  1,  62  N. 
W.  772,  28  L.  R.  A.  206  (1S95),  and  Fouts  v.  Hood  River,  46  Or.  492,  81  Pac. 
370,  1  L.  R.  A.  (N.  S.)  483,  7  Ann.  Cas.  1160  (1905).  See,  also,  the  elaborate 
opinions  in  People  v.  Collins,  3  Mich.  343  (1854). 

Nor  is  such  legislation  generally  held  to  violate  constitutional  prohibitions 
against  special  legislation.  Adams  v.  City  of  Beloit,  105  Wis.  363,  81  N.  W. 
869,  47  L.  R.  A.  441  (1900) ;  Cole  v.  Dorr,  SO  Kan.  251.  101  Pac.  1016,  22  L. 
R.  A.  (N.  S.)  534  (1909).  See,  however,  the  distinctions  taken  in  State  ex  rel. 
Childs  v.  Copeland,  66  Minn.  315,  69  N.  W.  27,  34  L.  R.  A.  777,  61  Am.  St. 
Rep.  410  (1896). 

Legislative  Powee  or  Municipal  Corporations. — "It  is  a  cardinal  prin- 
ciple of  our  system  of  government,  that  local  affairs  shall  be  managed  by 
local  authorities,  and  general  affairs  by  the  central  authority ;  and  henee, 
while  the  rule  is  also  fundamental  that  the  power  to  make  laws  cannot  be 
delegated,  the  creation  of  municipalities  exercising  local  self-government  has 
never  been  held  to  trench  upon  that  rule.  Such  legislation  is  not  regarded 
as  a  transfer  of  general  legislative  power,  but  rather  as  the  grant  of  the 
authority  to  prescribe  local  regulations,  according  to  immemorial  practice, 
subject,  of  course,  to  the  interposition  of  the  superior  in  cases  of  necessity." 
—Fuller,  C.  J.,  in  Stoutenburgh  v.  Hennick,  129  U.  S.  141,  147,  9  Sup.  Ct.  256, 
32  L.  Ed.  637  (1889)  (Dist.  of  Columbia).  Congress  has  generally  given  the 
legislatures  of  the  organized  territories  "powers  •  •  •  nearly  as  ex- 
tensive as  those  exercised  by  any  state  legislature."  Hornbuckle  v.  Toombs, 
18  Wall.  648,  655,  656,  21  L.  Ed.  966  (1874).  The  wide  discretionary  power 
of  local  self-government  that  may  be  vested  in  municipal  subdivisions  of  the 
state  is  often  frankly  recognized  as  an  historical  exception  to  the  general 
rule  that  the  substance  of  legislative  power  may  not  be  delegated.  Fox  v. 
McDonald,  101  Ala.  51,  67-68,  13  South.  416,  21  L.  R.  A.  529,  46  Am.  St. 
Rep.  98  (1892) ;    Brodbine  v.  Revere,  182  Mass.  598,  600,  66  N.  E.  607  (1903). 

The  form  that  local  municipal  government  may  take  is  a  matter  of  legis- 
lative discretion.  It  may  be  representative,  a  pure  democracy,  or  by  appoint- 
ed boards  or  officers. 

"The  provision  for  the  so-called  initiative  and  referendum  In  regard  to  the 
adoption  of  ordinances  is  not  unconstitutional.  Legislation  in  towns,  by  by-laws. 
in  regard  to  subjects  strictly  of  local  concern,  has  been  a  part  of  the  law  of 
Massachusetts  from  the  earliest  times.  Opinions  of  the  Justices,  160  Mass. 
586,  590,  36  N.  E.  488,  23  L.  R.  A.  113.  Whether  such  legislation  shall  be 
inaugurated  by  the  people,  or  entirely  by  a  representative  body  or  board  of 


Ch.  3)     SEPARATION  AND  DELEGATION  OF  Govr.KNMENTAI.  POWERS      123 

namely,  to  regulate  their  occupancy  and  use,  and  to  preserve  the  for- 
ests thereon  from  destruction ;  and  any  violation  of  the  provisions 
of  this  act  or  such  rules  and  regulations  shall  be  punished,  as  pro- 
vided in  R.  S.  U.  S.  §  53S8.  The  defendants  were  indicted  for  graz- 
ing sheep  on  the  Sierra  Forest  Reserve  without  having  obtained  the 
permission  required  by  the  regulations  adopted  by  the  Secretary  of 
Agriculture.  They  demurred  on  the  ground  that  the  making  of  such 
regulations  could  not  be  delegated  to  the  Secretary  and  their 
tion  made  a  penal  offense.  The  demurrers  were  sustained,  and  this 
judgment  was  at  first  affirmed  by  the  Supreme  Court  by  a  divided 
vote.    Upon  a  rehearing  the  following  opinion  was  given:] 

Mr.  Justice  Lamar.  *  *  *  Under  these  acts,  therefore,  any 
use  of  the  reservation  for  grazing  or  other  lawful  purpose  was  re- 

offlcers,  is  a  matter  of  regulation  in  regard  to  which  onr  Constitution  is 
silent.  It  is  therefore  for  the  General  Court  to  determine  by  enactment.  The 
provisions  of  the  Constitution  which  forbid  the  adoption  of  the  so-called  Initt- 
attve  and  referendum  in  general  legislation  do  not  extend  to  the  making  of 
by-laws  and  ordinances  by  towns  or  cities  under  the  authority  of  the  Legis- 
lature, in  regard  to  subjects  of  local  concern.  Opinions  of  the  Justices,  100 
56,  589,  36  N.  E.  488,  23  I*  R.  A.  113."— Graham  v.  Roberts.  200  Mass. 
152,  158,  85  N.  E.  1009  (190S).  by  Knowlton.C.  J.  Accord:  Clarke  v.  City 
of  Rochester,  28  N.  Y.  605,  034  (1864);  In  re  Pfahler,  150  Cal.  71,  88  Pac. 
270,  11  L.  R.  A.  (N.  S.)  1002,  11  Ann.  Cas.  911  (1006);  Dorr  v.  United  States, 
195  U.  S.  138,  24  Sup.  Ct.  SOS,  49  L.  Ed.  128,  1  Ann.  Cas.  097  (1904)  (Philippine 
Commission);  United  States  v.  Heinszen,  206  D.  S.  ::70,  3S4,  385.  27  Sup.  Ct. 
712.  51  L.  Ed<  1088,  11  Ann.  Cas.  OSS  (PJ07>  (President).  See,  also,  Brodbine 
i  Revere,  182  Mass.  590,  000,  001,  60  X.  E.  607  (1903).  Contra:  Ex  parte 
Farnsworth,  61  Tex.  Cr.  R.  342,  135  S.  W.  538  (1911)  (local  initiative  and  ref- 
erendum). 

In  principle,  the  above  doctrine  seems  to  include  all  forms  of  local  option 
legislation,  as  has  been  judicially  observed  by  Deemer,  J.,  in  State  ex  rel. 
Witter  v.  Forkner,  94  Iowa,  1,  13,  62  N.  W.  772.  28  L.  R.  A.  206  (1895),  quot- 
ing with  approval  from  Cooley,  Const.  Lint,  144.  145  (0th  Ed.):  "The  same 
reason  would  apply  in  favor  of  permitting  the  people  of  the  locality  to  accept 
or  reject  for  themselves  a  particular  police  regulation,  since  this  is  only  al- 
lowing less  extensive  powers  of  local  government  than  a  municipal  charter 
would  confer;  and  the  fact  that  the  rule  of  law  on  that  subject  might  be 
different  in  different  localities,  according  as  the  people  accepted  or  rejected 
the  regulation,  would  not  seem  to  affect  the  principle,  when  the  same  result  is 
brought  about  by  the  different  regulations  which  municipal  corporations  es- 
tablish for  themselves  in  the  exercise  of  an  undisputed  authority." 

irtTioNAL  Right  to  Local  Sf.lf-Coveknmf.n-t. — Apart  from  express 
i  (institutional  provisions  to  the  contrary,  it  is  generally  held  that  the  delega- 
tion of  powers  of  local  self-government  is  wholly  within  the  discretion  of  the 
legislature  and  may  be  abridged  or  abrogated  at  its  pleasure.  People  v. 
Draper,  15  X.  V.  532,  543-546  (1857);  State  v.  Smith,  44  Ohio  St.  348,  7  N. 
L.  447,  12  X.  E.  829  (1886);  Commonwealth  v.  Plaisted,  14S  Mass.  375,  383- 
387,  19  X.  K.  224.  2  L.  l;.  A.  112,  12  Am.  St  Rep.  500  (1SS9) ;  Commonwealth 
7.  Molr,  199  Pa.  534,  19  Atl.  351.  53  L.  R.  A.  837,  85  Am.  St.  Rep.  S01  (1901)  ; 
ftedel)  v.  Mooree,  63  Xeb.  219,  SS  X.  W.  248,  55  L.  R.  A.  740,  93  Am.  St.  Rep. 
l.;i  (1901);  Hunter  v.  Pittsburgh,  207  U.  S.  161,  2S  Sup.  Ct.  40,  52  I*  Ed.  151 
(1907).  Contra  las  to  strictly  local  functions):  People  ex  rel.  Le  Roy  v.  Hurl- 
but.  24  Mich.  44,  9  Am.  Rep.  103  (1871);  State  ex  rel.  Jameson  v.  Denny.  118 
Iml.  382,  2L  X.  E.  252,  4  L.  R.  A.  79  (18SS).  See  cases  collected  In  13  llarv. 
L.  Rev.  441,  570,  638;  14  llarv.  L.  Rev.  20,  110;  15  Harv.  L.  Rev.  468;  48 
L.  R.  A.  405  ff.  ;  1  L.  R.  A.  (X.  S.)  512  ff.  The  entire  subject  is  discussed  in 
Gray,  Llm.  of  Taxing  Power,  gj  616  691a.  The  federal  Constitution  secures  no 
rights  of  local  self-government  to  state  municipalities.  Hunter  v.  Pittsburgh, 
above.     As  to  taxation,  see  Kelly  v.  Pittsburgh,  post,  p.  840,  note. 


1-1  PRELIMINARY    TOPICS  (Part    1 

quired  to  be  subject  to  the  rules  and  regulations  established  by  the  Sec- 
retary of  Agriculture.  To  pasture  sheep  and  cattle  on  the  reservation, 
at  will  and  without  restraint,  might  interfere  seriously  with  the  accom- 
plishment of  the  purposes  for  which  they  were  established.  But  a  lim- 
ited and  regulated  use  for  pasturage  might  not  be  inconsistent  with  the 
object  sought  to  be  attained  by  the  statute.  The  determination  of  such 
questions,  however,  was  a  matter  of  administrative  detail.  What 
might  be  harmless  in  one  forest  might  be  harmful  to  another.  What 
might  be  injurious  at  one  stage  of  timber  growth,  or  at  one  season 
of  the  year,  might  not  be  so  at  another. 

In  the  nature  of  things  it  was  impracticable  for  Congress  to  pro- 
vide general  regulations  for  these  various  and  varying  details  of 
management.  Each  reservation  had  its  peculiar  and  special  features ; 
and  in  authorizing  the  Secretary  of  Agriculture  to  meet  these  local 
conditions,  Congress  was  merely  conferring  administrative  functions 
upon  an  agent,  and  not  delegating  to  him  legislative  power.  The  au- 
thority actually  given  was  much  less  than  what  has  been  granted  to 
municipalities  by  virtue  of  which  they  make  by-laws,  ordinances,  and 
regulations  for  the  government  of  towns  and  cities.  Such  ordinances 
do  not  declare  general  rules  with  reference  to  rights  of  persons  and 
property,  nor  do  they  create  or  regulate  obligations  and  liabilities, 
nor  declare  what  shall  be  crimes,  nor  fix  penalties  therefor.1 

By  whatever  name  they  are  called,  they  refer  to  matters  of  local 
management  and  local  police.  Brodbine  v.  Revere,  182  Mass.  599,  66 
N.  E.  607.  They  are  "not  of  a  legislative  character  in  the  highest 
sense  of  the  term;  and  as  an  owner  may  delegate  to  his  principal 
agent  the  right  to  employ  subordinates,  giving  to  them  a  limited  dis- 
cretion, so  it  would  seem  that  Congress  might  rightfully  intrust  to 
the  local  legislature  [authorities]  the  determination  of  minor  mat- 
ters." Butte  City  Water  Co.  v.  Baker,  196  U.  S.  126,  25  Sup.  Ct. 
211,  49  L.  Ed.  412.2 

It  must  be  admitted  that  it  is  difficult  to  define  the  line  which  sep- 
arates legislative  power  to  make  laws,  from  administrative  authority 
to  make  regulations.  This  difficulty  has  often  been  recognized,  and 
was  referred  to  by  Chief  Justice  Marshall  in  Wayman  v.    Southard, 

i  But  Congress  has  ordinarily  delegated  to  territorial  legislatures  general 
legislative  powers.  See  Davis  v.  Beason,  133  U.  S.  333,  10  Sup.  Ct.  299,  33 
L.  Ed.  637  (1890)  (denying  suffrage  to  polygamists) ;  New  Mexico  ex  rel.  Mc- 
Lean v.  Denver  &  R.  G.  R.  Co.,  203  U.  S.  3S,  27  Sup.  Ct.  1,  51  L.  Ed.  78  (1900) 
(penal  regulation  of  interstate  commerce);  Maynard  v.  Hill.  125  U.  S.  190, 
8  Sup.  Ct.  723,  31  L.  Ed.  654  (1S88)  (legislative  divorce) ;  Ex  parte  Larkin, 
1  Okl.  53,  25  Pac.  745,  11  L.  R.  A.  418  (1891)  (general  power  to  define  and 
punish  crime),  approved  in  United  States  v.  Pridgeon,  153  U.  S.  48,  53,  54,  14 
Sup.  Ct.  746,  38  L.  Ed.  631  (1S94). 

2  Holding  that  Congress  might  delegate  to  the  miners  of  a  district  or  to 
state  legislatures  power  to  make  regulations  for  locating  mines  upon  the  pub- 
He  domain.  See,  also,  Hanover  Nat.  Bank  v.  Moyses,  1S6  U.  S.  181,  22  Sup. 
Ct  857,  46  L.  Ed.  1113  (1902)  (Congress  may  give  effect  to  local  exemption 
laws  in  the  national  bankruptcy  act).  Compare  Ex  parte  Siebold,  post,  p. 
942;   Second  Employers'  Liability  Cases,  post,  p.  9r>3.  note. 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   125 

10  Wheat.  42,  6  L.  Ed.  262,  where  he  was  considering  the  authority 
of  courts  to  make  rules.3  He  there  said;  "It  will  not  be  contended 
that  Congress  can  delegate  to  the  courts,  or  to  any  other  tribunals, 
powers  which  are  strictly  and  exclusively  legislative.  But  Congress  may 
certainly  delegate  to  others  powers  which  the  legislature  may  right- 
fully exercise  itself."  What  were  these  non-legislative  powers  which 
Congress  could  exercise,  but  which  might  also  be  delegated  to  others, 
was  not  determined,  for  he  said:  "The  line  has  not  been  exactly 
drawn  which  separates  those  important  subjects  which  must  be  en- 
tirely regulated  by  the  legislature  itself,  from  those  of  less  interest, 
in  which  a  general  provision  may  be  made,  and  power  given  to  those 
who  are  to  act  under  such  general  provisions  to  fill  up  the  details." 

From  the  beginning  of  the  government,  various  acts  have  been 
passed  conferring  upon  executive  officers  power  to  make  rules  and 
regulations, — not  for  the  government  of  their  departments,  but  for 
administering  tHe  laws  which  did  govern.  None  of  these  statutes  could 
confer  legislative  power.  But  when  Congress  had  legislated  and  in- 
dicated its  will,  it  could  give  to  those  who  were  to  act  under  such  gen- 
eral provisions  "power  to  fill  up  the  details"  by  the  establishment  of 
administrative  rules  and  regulations,  the  violation  of  which  could  be 
punished  by  fine  or  imprisonment  fixed  by  Congress,  or  by  penalties 
fixed  by  Congress,  or  measured  by  the  injury  done. 

Thus  it  is  unlawful  to  charge  unreasonable  rates  or  to  discriminate 
between  shippers,  and  the  Interstate  Commerce  Commission  has  been 
given  authority  to  make  reasonable  rates  and  to  administer  the  law 
against  discrimination.  Interstate  Commerce  Commission  v.  Illinois 
C.  R.  Co..  215  U.  S.  452,  30  Sup.  Ct.  155,  54  L.  Ed.  280;  Interstate 
Commerce  Commission  v.  Chicago,  R.  I.  &  P.  R.  Co.,  2 IS  U.  S.  88, 
30  Sup.  Ct.  651,  54  L.  Ed.  946.  Congress  provided  that  after  a 
given  date,  only  cars  with  drawbars  of  uniform  height  should  be  used 
in  interstate  commerce,  and  then  constitutionally  left  to  the  Commis- 
sion the  administrative  duty  of  fixing  a  uniform  standard.  St.  Louis, 
I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U.  S.  281,  287,  28  Sup.  Ct.  616,  52 
L.  Ed.  1064.  In  Union  Bridge  Co.  v.  United  States,  204  U.  S.  364, 
27  Sup.  Ct.  367,  51  L.  Ed.  523,  In  re  Kollock,  165  U.  S.  526,  17 
Sup.  Ct.  444,  41  L.  Ed.  813,  and  Buttfield  v.  Stranahan,  192  U.  S. 
470,  24  Sup.  Ct.  349,  48  L.  Ed.  525,  it  appeared  from  the  statutes 
involved  that  Congress  had  either  expressly  or  by  necessary  implica- 
tion made  it  unlawful,  if  not  criminal,  to  obstruct  navigable  streams; 
to  sell  unbranded  oleomargarine;  or  to  import  unwholesome  teas. 
With  this  unlawfulness  as  a  predicate,  the  executive  officers  were 
authorized  to  make  rules  and  regulations  appropriate  to  the  several 
matters  covered  by  the  various  acts.  A  violation  of  these  rules  was 
then  made  an  offense  punishable  as  prescribed  by  Congress.     But  in 

«  It  was  here  hold  that  the  courts  may  be  authorized  to  regulate  their 
procedure 


126  preliminary  topics  (Part  1 

making  these  regulations  the  officers  did  not  legislate.  They  did  not 
go  outside  of  the  circle  of  that  which  the  act  itself  had  affirmatively  re- 
quired to  be  done,  or  treated  as  unlawful  if  done.  But  confining  them- 
selves within  the  field  covered  by  the  statute,  they  could  adopt  regula- 
tions of  the  nature  they  had  thus  been  generally  authorized  to  make,  in 
order  to  administer  the  law  and  carry  the  statute  into  effect.*     *     *     * 

[After  distinguishing  the  case  of  United  States  v.  Eaton,  144  U.  S. 
677,  12  Sup.  Ct.  764,  36  L.  Ed.  591 :]  In  Union  Bridge  Co.  v.  United 
States,  204  U.  S.  364,  386,  27  Sup.  Ct.  367,  51  L.  Ed.  533,  Mr.  Jus- 
tice Harlan,  speaking  for  the  court,  said :  "By  the  statute  in  ques- 
tion, Congress  declared  in  effect  that  navigation  should  be  freed  from 
unreasonable  obstructions  arising  from  bridges  of  insufficient  height, 
width  of  span,  or  other  defects.  It  stopped,  however,  with  this  dec- 
laration of  a  general  rule,  and  imposed  upon  the  Secretary  of  War 
the  duty  of  ascertaining  what  particular  cases  came  within  the  rule 
prescribed  by  Congress,  as  well  as  the  duty  of  enforcing  the  rule  in 
such  cases.  In  performing  that  duty  the  Secretary  of.  War  will  only 
execute  the  clearly  expressed  will  of  Congress,  and  will  not,  in  any 
true  sense,  exert  legislative  or  judicial  power."     *     *     * 

In  Brodbine  v.  Revere,  182  Mass.  598,  66  N.  E.  607,  a  boulevard 
and  park  board  was  given  authority  to  make  rules  and  regulations 
for  the  control  and  government  of  the  roadways  under  its  care.  It 
was  there  held  that  the  provision  in  the  act  that  breaches  of  the 
rules  thus  made  should  be  breaches  of  the  peace,  punishable  in  any 
court  having  jurisdiction,  was  .not  a  delegation  of  legislative  power 
which  was  unconstitutional.  The  court  called  attention  to  the  fact 
that  the  punishment  was  not  fixed  by  the  board,  saying  that  the  mak- 
ing of  the  rules  was  administrative,  while  the  substantive  legislation 
was  in  the  statute,  which  provided  that  they  should  be  punished  as 
breaches  of  the  peace.5 

That  "Congress  cannot  delegate  legislative  power  to  the  President 
is  a  principle  universally  recognized  as  vital  to  the  integrity  and  main- 
tenance of  the  system  of  government  ordained  by  the  Constitution." 
Marshall  Field  &  Co.  v.  Clark,  143  U.  S.  649,  692,  12  Sup.  Ct.  495, 
36  L.  Ed.  309.  But  the  authority  to  make  administrative  rules  is  not 
a  delegation  of  legislative  power,  nor  are  such  rules  raised  from  an 
administrative  to  a  legislative  character  because  the  violation  thereof 
is  punished  as  a  public  offense.     *     *     * 

The  Secretary  of  Agriculture  could  not  make  rules  and  regulations 
for  any  and  every  purpose.    Williamson  v.  United  States,  207  U.  S. 

*  Where  the  violation  of  administrative  regulations  is  made  criminal,  such 
regulations  "must  have  clear  legislative  basis."  United  States  v.  George,  228 
I'.  S.  14,  22,  33  Sup.  Ct.  412,  415,  57  L-.  Ed. (1913). 

s  Accord:  Pierce  v.  Doolittle,  130  Iowa,  333,  106  N.  W.  751  (1906)  (rules  of 
l.oard  of  health),  annotated  in  6  L.  R.  A.  (N.  S.)  143  ;  Whaley  v.  State,  168 
Ala.  152,  52  South.  941,  30  L.  R.  A.  (N.  S.)  499  (1909)  (rules  of  street  car  com- 
panies regarding  transfers)  [compare  Dicey,  Law  of  the  Const.  (4th  Ed.) 
S9-93]. 


Ch.  3)   SEPARATION  AND  DELEGATION  OF  GOVERNMENTAL  POWERS   127 

462,  28  Sup.  Ct.  163,  52  L.  Ed.  297.  As  to  those  here  involved, 
they  all  relate  to  matters  clearly  indicated  and  authorized  by  Congress. 
The  subjects  as  to  which  the  Secretary  can  regulate  are  defined.  The 
lands  are  set  apart  as  a  forest  reserve.  He  is  required  to  make  pro- 
vision to  protect  them  from  depredations  and  from  harmful  uses.  He 
is  authorized  "to  regulate  the  occupancy  and  use  and  to  preserve  the 
forests  from  destruction,"  A  violation  of  reasonable  rules  regulat- 
ing the  use  and  occupancy  of  the  property  is  made  a  crime,  not  by  the 
Secretary,  but  by  Congress.  The  statute,  not  the  Secretary,  fixes 
the  penalty.  *  *  * 
Judgments  reversed.* 

•  Accord:  Trustees  of  Village  of  Saratoga  Springs  v.  Saratoga  Gas,  Elec- 
tric Light  &  Power  Co.,  191  N.  Y.  123,  83  N.  E.  693,  18  L.  B.  A.  (N.  S.)  713 
(1908)  (excellent  discussion  of  commission  rate-making  and  related  topics) ; 
State  v.  Atlantic  Coast  Line  R.  Co.,  56  Fla.  617,  47  South.  969  (190S)  (general 
regulation  of  carriers  by  commission),  annotated  in  32  L.  R.  A.  (N.  S.)  639. 

For  the  limits  of  the  discretion  that  may  be  thus  delegated,  see  Stud-  v 
Great  Northern  R.  Co.,  100  Minn.  445,  111  N.  W.  289,  10  L.  R.  A.  (N.  S.)  250 
(1907)  (undefined  power  to  supervise  increases  of  corporate  stock) ;  Hewitt  v. 
State  Board  of  Medical  Examiners.  148  Cal.  590,  84  Pac.  39,  3  L  R.  A.  (N. 
S.)  896,  113  Am.  St  Rep.  315,  7  Ann.  Cas.  750  (1906)  (power  to  revoke  pbysi- 
cian's  license);  State  v.  Butler,  105  Me.  91,  73  Atl.  560,  24  L  R.  A.  (N.  S.) 
744,  18  Ann.  Cas.  484  (1909)  (power  to  create  office  of  special  prosecutor) 
(cases). 

Compare  Senate  of  Happy  Home  Club  of  America  v.  Board  of  Sup'rs  of 
Alpena  Co.,  99  Mich.  117,  57  N.  W.  1101,  23  L.  R.  A.  144  (1894). 

In  Brodbine  v.  Revere,  182  Mass.  59S,  601,  66  N.  E.  607,  608  (1903),  Knowl- 
ton,  C.  J.,  said  (regarding  the  penal  enforcement  of  rules  made  by  local  boards 
of  health):  "The  validity  of  these  statutes,  which  has  long  been  recognized, 
stands  upon  one  or  both  of  two  grounds:  They  may  be  considered  as  being 
within  the  principle  permitting  local  self-government  as  to  such  matters:  the 
board  of  health  being  treated  as  properly  representing  the  inhabitants  in 
making  regulations,  which  often  are  needed  at  short  notice,  and  which  could 
not  well  be  made,  in  all  kinds  of  cases,  by  the  voters  in  town  meeting  as- 
sembled. Perhaps  some  of  these  statutes  may  also  be  justified  constitutional- 
ly on  the  ground  that  the  work  of  the  board  of  health  is  only  a  determination 
of  details  In  the  nature  of  administration,  which  may  be  by  a  board  appointed 
for  that  purpose,  and  that  the  substantive  legislation  is  that  part  of  the  stat- 
ute which  prescribes  a  penalty  for  the  disobedience  of  the  rules  which  they 
make  as  agents  performing  executive  and  administrative  duties." 

Compare  with  the  cases  in  this  section  the  British  doctrine  which  permits 
a  colonial  legislature,  clothed  with  limited  powers  under  an  act  of  Parliament, 
to  delegate  its  powers  at  discretion.  Reg.  v.  Burah,  3  A.  C.  8S9  (1S7S)  (India) : 
Hodge  v.  Queen,  9  A.  C.  117  (1883)  (Canada) ;  Powell  v.  Apollo  Co.,  10  A.  C. 
282  (1885)  (New  South  Wales). 


PART  II 

FUNDAMENTAL  RIGHTS 


CHAPTER  IV 
POLITICAL  RIGHTS 


SECTION  1.— CITIZENSHIP  AND  NATURALIZATION 


UNITED  STATES  v.  WONG  KIM  ARK. 

(Supreme  Court  of  United  States,  1898.     169  U.  S.  649,  IS  Sup.  Ct  456,  42 
L.  Ed.  890.) 

[Appeal  from  the  United  States  District  Court  for  the  Northern 
District  of  California.  The  collector  of  the  port  of  San  Francisco 
denied  admission  to  the  country  to  Wong  Kim  Ark,  a  Chinese  person 
who  was  admitted  to  have  been  born  in  California  and  to  be  then  re- 
turning from  a  temporary  visit  to  China.  He  was  ordered  to  be  dis- 
charged upon  a  writ  of  habeas  corpus,  and  the  United  States  ap- 
pealed.] 

Mr.  Justice  Gray.  *  *  *  The  question  presented  by  the  record  is 
whether  a  child  born  in  the  United  States,  of  parents  of  Chinese  de- 
scent, who  at  the  time  of  his  birth  are  subjects  of- the  emperor  of 
China,  but  have  a  permanent  domicile  and  residence  in  the  United 
States,  and  are  there  carrying  on  business,  and  are  not  employed  in 
any  diplomatic  or  official  capacity  under  the  emperor  of  China,  becomes 
at  the  time  of  his  birth  a  citizen  of  the  United  States,  by  virtue  of  the 
first  clause  of  the  fourteenth  amendment  of  the  Constitution :  "All 
persons  born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  state 
wherein  they  reside." 

I.  In  construing  any  act  of  legislation,  whether  a  statute  enacted  by 
the  legislature,  or  a  Constitution  established  by  the  people  as  the  su- 
preme law  of  the  land,  regard  is  to  be  had,  not  only  to  all  parts  of  the 
act  itseff,  and  of  any  former  act  of  the  same  lawmaking  power,  of 
which  the  act  in  question  is  an  amendment,  but  also  to  the  condition 
and  to  the  history  of  the  law  as  previously  existing,  and  in  the  light  of 
which  the  new  act  must  be  read  and  interpreted. 

(128) 


Ch.  4)  political  Rights  129 

The  Constitution  of  the  United  States,  as  originally  adopted,  use? 
the  words  "citizen  of  the  United  States"  and  "natural-born  citizen  of 
the  United  States."  By  the  original  Constitution,  every  representa- 
tive in  congress  is  required  to  have  been  "seven  years  a  citizen  of  th<" 
United  States,"  and  every  senator  to  have  been  "nine  years  a  citizen  of 
the  United  States" ;  and  "no  person  except  a  natural-born  citizen,  or  a 
citizen  of  the  United  States  at  the  time  of  the  adoption  of  this  Consti- 
tution, shall  be  eligible  to  the  office  of  president."  The  fourteenth 
article  of  amendment,  besides  declaring  that  "all  persons  born  or  nat- 
uralized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  state  wherein  they  reside," 
also  declares  that  "no  state  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United  States ; 
nor  shall  any  state  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws."  And  the  fifteenth  article  of 
amendment  declares  that  "the  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any 
state,  on  account  of  race,  color,  or  previous  condition  of  servitude." 

The  Constitution  nowhere  defines  the  meaning  of  these  words,  either 
by  way  of  inclusion  or  of  exclusion,  except  in  so  far  as  this  is  done  by 
the  affirmative  declaration  that  "all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States."  In  this,  as  in  other  respects,  it  must  be  interpreted 
in  the  light  of  the  common  law,  the  principles  and  history  of  which 
were  familiarly  known  to  the  framers  of  the  Constitution.  Minor  v. 
Happersett,  21  Wall.  162,  22  L.  Ed.  627;  Ex  parte  Wilson,  114  U.  S. 
417,  422,  5  Sup.  Ct.  935,  29  L.  Ed.  89;  Boyd  v.  U.  S.,  116  U.  S.  616, 
624,  625,  6  Sup.  Ct.  524,  29  L.  Ed.  746;  Smith  v.  Alabama,  124  U.  S. 
465,  8  Sup.  Ct.  564,  31  L.  Ed.  508.  The  language  of  the  Constitution, 
as  has  been  well  said,  could  not  be  understood  without  reference  to  the 
common  law.  1  Kent,  Comm.  336;  Bradley,  J.,  in  Moore  v.  U  S.,  91 
U.  S.  270,  274,  23  L.  Ed.  346.    *    *    * 

II.  The  fundamental  principle  of  the  common  law  with  regard  to 
English  nationality  was  birth  within  the  allegiance — also  called 
ty,"  "obedience,"  "faith,"  or  "power" — of  the  king.    The  princip 
braced  all  persons  born  within  the  king's  allegiance,  and  subject  to  his 
protection.    Such  allegiance  and  protection  were  mutual, — as  e.\ 
in    the    maxim,   "Protectio   trahit    subjectionem,   et   subjectio    | 
tionem," — and  were  not  restricted  to  natural-born  subjects  and  nat- 
uralized subjects,  or  to  those  who  had  taken  an  oath  of  allegiance; 
hut  were  predicable  of  aliens  in  amity,  so  long  as  they  were  within  the 
kingdom.     Children,  born  in  England,  of  such  aliens,  were  therefore 
natural-born  subjects.     But  the   children,  born   within  the  realm,  of 
foreign  ambassadors,  or  the  children  of  alien  enemies,  born  during 
Hall  Const. L. — 0 


130  FUNDAMENTAL    RIGHTS  (Part    2 

and  within  their  hostile  occupation  of  part  of  the  king's  dominions, 
were  not  natural-born  subjects,  because  not  born  within  the  allegiance, 
the  obedience,  or  the  power,  or,  as  would  be  said  at  this  day,  within 
the  jurisdiction,  of  the  king. 

This  fundamental  principle,  with  these  qualifications  or  explana- 
tions of  it,  was  clearly,  though  quaintly,  stated  in  the  leading  case 
known  as  Calvin's  Case,  or  the  Case  of  the  Postnati,  decided  in  1608, 
after  a  hearing  in  the  Exchequer  Chamber  before  the  Lord  Chancellor 
and  all  the  judges  of  England,  and  reported  by  Lord  Coke  and  by  Lord 
Ellesmere.  Calvin's  Case,  7  Coke,  1,  4b-6a,  18a,  18b;  Ellesmere,  on 
Postnati,  62-64;  s.  c.  2  How.  St.  'Tr.  559,  607,  613-617,  639,  640, 
659,  679. 

The  English  authorities  ever  since  are  to  the  like  effect.  Co.  Litt. 
8a,  128b;  Lord  Hale,  in  Harg.  Law  Tracts,  210,  and  in  1  Hale,  P.  C. 
61,  62;  1  Bl.  Comm.  366,  369,  370,  374;  4  BL  Comm.  74,  92;  Lord 
Kenyon,  in  Doe  v.  Jones,  4  Term  R.  300,  308;  Cockb.  Nat.  7;  Dicey, 
Confl.  Laws,  pp.  173-177,  741.    *    *    * 

It  thus  clearly  appears  that  by  the  law  of  England  for  the  last  three 
centuries,  beginning  before  the  settlement  of  this  country,  and  contin- 
uing to  the  present  day,  aliens,  while  residing  in  the  dominions  pos- 
sessed by  the  crown  of  England,  were  within  the  allegiance,  the  obedi- 
ence, the  faith  or  loyalty,  the  protection,  the  power,  and  the  jurisdic- 
tion of  the  English  sovereign ;  and  therefore  every  child  born  in  Eng- 
land *  of  alien  parents  was  a  natural-born  subject,  unless  the  child  of 
an  ambassador  or  other  diplomatic  agent  of  a  foreign  state,  or  of  an 
alien  enemy  in  hostile  occupation  of  the  place  where  the  child  was  born. 

III.  The  same  rule  was  in  force  in  all  the  English  colonies  upon 
this  continent  down  to  the  time  of  the  Declaration  of  Independence, 
and  in  the  United  States  afterwards,  and  continued  to  prevail  under 
the  Constitution  as  originally  established.2  *     *     * 

In  Inglis  v.  Sailors'  Snug  Harbor  (1830)  3  Pet.  99,  7  L.  Ed.  617, 
*  *  *  Mr.  Justice  Story  [said]  :  "Two  things  usually  concur  to 
create  citizenship:  First,  birth  locally  within  the  dominions  of  the 
sovereign;  and,  secondly,  birth  within  the  protection  and  obedience, 
or,  in  other  words,  within  the  ligeance,  of  the  sovereign.  That  is,  the 
party  must  be  born  within  a  place  where  the  sovereign  is  at  the  time 
in  full  possession  and  exercise  of  his  power,  and  the  party  must  also 
at  his  birth  derive  protection  from,  and  consequently  owe  obedience  or 
allegiance  to,  the  sovereign,  as  such,  de  facto.  There  are  some  excep- 
tions which  are  founded  upon  peculiar  reasons,  and  which,  indeed, 
illustrate  and  confirm  the  general  doctrine.  Thus,  a  person  who  is 
born  on  the  ocean  is  a  subject  of  the  prince  to  whom  his  parents  then 

i  The  authorities  quoted  and  cited  by  the  court  use  the  words  "British  do- 
minions" instead  of  "England." 

2  See,  to  this  effect,  Lynch  v.  Clarke,  1  Sandf.  Ch.  583  (N.  Tn  1844)  (the 
leading  case  before  the  fourteenth  amendment). 


Cll.  4)  POLITICAL    RIGHTS  131 

owe  allegiance;  for  he  is  still  deemed  under  the  protection  of  his  sover- 
eign, and  born  in  a  place  where  he  has  dominion  in  common  with  all 
other  sovereigns.  So  the  children  of  an  ambassador  are  held  to  be 
subjects  of  the  prince  whom  he  represents,  although  born  under  the 
actual  protection  and  in  the  dominions  of  a  foreign  prince."  3  Pet. 
155,  7  L.  Ed.  617.  "The  children  of  enemies,  born  in  a  place  within 
the  dominions  of  another  sovereign,  then  occupied  by  them  by  con- 
quest, are  still  aliens."  3  Pet.  156,  7  L.  Ed.  617.  "Nothing  is  better 
settled  at  the  common  law  than  the  doctrine  that  the  children,  even  of 
aliens,  born  in  a  country,  while  the  parents  are  resident  there  under 
the  protection  of  the  government,  and  owing  a  temporary  allegiance 
thereto,  are  subjects  by  birth."    3  Pet.  164,  7  L.  Ed.  617.    *    *    * 

IV.  It  was  contended  by  one  of  the  learned  counsel  for  the  United 
States  that  the  rule  of  the  Roman  law,  by  which  the  citizenship  of 
the  child  followed  that  of  the  parent,  was  the  true  rule  of  international 
law  as  now  recognized  in  most  civilized  countries,  and  had  superseded 
the  rule  of  the  common  law,  depending  on  birth  within  the  realm,  orig- 
inally founded  on  feudal  considerations. 

But  at  the  time  of  the  adoption  of  the  Constitution  of  the  United 
States  in  1789,  and  long  before,  it  would  seem  to  have  been  the  rule 
in  Europe  generally,  as  it  certainly  was  in  France,  that,  as  said  by 
Pothier,  "citizens,  true  and  native-born  citizens,  are  those  who  are 
born  within  the  extent  of  the  dominion  of  France,"  and  "mere  birth 
within  the  realm  gives  the  rights  of  a  native-born  citizen,  independent- 
ly of  the  origin  of  the  father  or  mother,  and  of  their  domicile" ;  and 
children  born  in  a  foreign  country,  of  a  French  father  who  had  not  es- 
tablished his  domicile  there,  nor  given  up  the  intention  of  returning, 
were  also  deemed  Frenchmen,  as  Laurent  says,  by  "a  favor,  a  sort  of 
fiction,"  and  Calvo,  "by  a  sort  of  fiction  of  exterritoriality,  considered 
as  born  in  France,  and  therefore  invested  with  French  nationality." 
*  *  *  The  Code  Napoleon  of  1807  changed  the  law  of  France,  and 
adopted,  instead  of  the  rule  of  country  of  birth,  jus  soli,  the  rule  of 
descent  or  blood,  jus  sanguinis,  as  the  leading  principle.    *    *    * 

The  later  modifications  of  the  rule  in  Europe  rest  upon  the  Consti- 
tutions, laws,  or  ordinances  of  the  various  countries,  and  have  no  im- 
portant bearing  upon  the  interpretation  and  effect  of  the  Constitution 
of  the  United  States.  The  English  naturalization  act  of  33  Vict. 
(1870)  c.  14,  and  the  commissioners'  report  of  1869,  out  of  which  it 
grew,  both  bear  date  since  the  adoption  of  the  fourteenth  amendment 
of  the  Constitution ;  and,  as  observed  by  Mr.  Dicey,  that  act  has  not 
affected  the  principle  by  which  any  person  who,  whatever  the  nationali- 
ty of  his  parents,  is  born  within  the  British  dominions,  acquires  British 
nationality  at  birth,  and  is  a  natural-born  British  subject.  Dicey, 
Confl.  Laws,  741.  At  the  time  of  the  passage  of  that  act,  although  the 
tendency  on  the  continent  of  Europe  was  to  make  parentage,  rather 
than  birthplace,  the  criterion  of  nationality,  and  citizenship  was  denied 
to  the  native-born  children  of  foreign  parents  in  Germany,  Switzer- 


132  FUNDAMENTAL    RIGHTS  (Part   2 

and,  Sweden,  and  Norway,  yet  it  appears  still  to  have  been  conferred 
upon  such  children  in  Holland,  Denmark,  and  Portugal,  and,  when 
claimed  under  certain  specified  conditions,  in  France,  Belgium,  Spain, 
Italy,  Greece,  and  Russia.    Cockb.  Nat.  14-21. 

There  is,  therefore,  little  ground  for  the  theory  that  at  the  time  of 
the  adoption  of  the  fourteenth  amendment  of  the  Constitution  of  the 
United  States  there  was  any  settled  and  definite  rule  of  international 
law  generally  recognized  by  civilized  nations,  inconsistent  with  the 
ancient  rule  of  citizenship  by  birth  within  the  dominion. 

Nor  can  it  be  doubted  that  it  is  the  inherent  right  of  every  independ- 
ent nation  to  determine  for  itself,  and  according  to  its  own  Constitu- 
tion and  laws,  what  classes  of  persons  shall  be  entitled  to  its  citizen- 
ship. 

Both  in  England  and  in  the  United  States,  indeed,  statutes  have  been 
passed  at  various  times  enacting  that  certain  issue  born  abroad  of 
English  subjects,  or  of  American  citizens,  respectively,  should  inherit, 
to  some  extent  at  least,  the  rights  of  their  parents.  But  those  statutes 
applied  only  to  cases  coming  within  their  purport,  and  they  have  never 
been  considered,  in  either  country,  as  affecting  the  citizenship  of  per- 
sons born  within  its  dominion.     *     *     * 

It  was  enacted  by  the  statute  of  February  10,  1855,  c.  71,  that 
"persons  heretofore  born,  or  hereafter  to  be  born,  out  of  the  limits 
and  jurisdiction  of  the  United  States,  whose  fathers  were  or  shall 
be  at  the  time  of  their  birth  citizens  of  the  United  States,  shall  be 
deemed  and  considered  and  are  hereby  declared  to  be  citizens  of  the 
United  States:  provided,  however,  that  the  rights  of  citizenship  shall 
not  descend  to  persons  whose  fathers  never  resided  in  the  United 
States."  10  Stat.  604;  Rev.  St.  §  1993  (U.  S.  Comp.  St.  1901,  p. 
1268). 

It  thus  clearly  appears  that,  during  the  half  century  intervening 
between  1802  and  1855,  there  was  no  legislation  whatever  for  the 
citizenship  of  children  born  abroad,  during  that  period,  of  American 
parents  who  had  not  become  citizens  of  the  United  States  before  the 
act  of  1802;  and  that  the  act  of  1855,  like  every  other  act  of  con- 
gress upon  the  subject,  has,  by  express  proviso,  restricted  the  right 
of  citizenship,  thereby  conferred  upon  foreign-born  children  of  Amer- 
ican citizens,  to  those  children  themselves,  unless  they  became  resi- 
dents of  the  United  States.  Here  is  nothing  to  countenance  the 
theory  that  a  general  rule  of  citizenship  by  blood  or  descent  has  dis- 
placed in  this  country  the  fundamental  rule  of  citizenship  by  birth 
within  its  sovereignty.     *     *     * 

The  first  section  of  the  fourteenth  amendment  of  the  Constitution 
begins  with  the  words,  "All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside."  As  appears 
upon  the  face  of  the  amendment,  as  well  as  from  the  history  of  the 
times,  this  was  not   intended  to   impose   any   new   restrictions   upon 


Ch.  4)  POLITICAL    KIUIiTS  133 

citizenship,  or  to  prevent  any  persons  from  becoming  citizens  by  the 
fact  of  birth  within  the  United  States,  who  would  thereby  have  be- 
come citizens  according  to  the  law  existing  before  its  adoption.  It 
is  declaratory  in  form,  and  enabling  and  extending  in  effect  Its 
main  purpose  doubtless  was,  as  has  been  often  recognized  by  this 
court,  to  establish  the  citizenship  of  free  negroes,  which  had  been  de- 
nied in  the  opinion  delivered  by  Chief  Justice  Taney  in  Dred  Scott 
v.  Sandford  (1857)  19  How.  393,  15  L.  Ed.  691 ; 3  and  to  put  it  beyond 
doubt  that  all  blacks,  as  well  as  whites,  born  or  naturalized  within  the 
jurisdiction  of  the  United  States,  are  citizens  of  the  United  States. 
Slaughter  House  Cases  (1873)  16  Wall.  36.  73,  21  L.  Ed.  394;  Strauder 
v.  West  Virginia  (1879)  100  U.  S.  303.  306,  25  L.  Ed.  664;  Ex  parte 
Virginia  (1879)  100  U.  S.  339,  345,  25  L.  Ed.  676;  Neal  v.  Dela- 
ware (1880)  103  U.  S.  370,  386,  26  L.  E<1.  567;  Elk  v.  Wilkins  (1884) 
112  U.  S.  94,  101,  5  Sup.  Ct.  41,  28  L.  Ed.  643.  But  the  opening 
words,  "All  persons  born,"  are  general,  not  to  say  universal,  restricted 
only  by  place  and  jurisdiction,  and  not  by  color  or  race,  as  was  clearly 
recognized  in  all  the  opinions  delivered  in  the  Slaughter  House  Cases, 
above  cited.     *     *     * 

Mr.  Justice  Miller,  indeed,  while  discussing  the  causes  which  led 
to  the  adoption  of  the  fourteenth  amendment,  made  this  remark: 
"The  phrase  'subject  to  its  jurisdiction'  was  intended  to  exclude  from 
its  operation  children  of  ministers,  consuls,  and  citizens  or  subjects 
of  foreign  states,  born  within  the  United  States."  16  Wall.  73,  21  I.. 
Ed.  394.  This  was  wholly  aside  from  the  question  in  judgment,  and 
from  the  course  of  reasoning  bearing  upon  that  question.  It  was 
unsupported  by  any  argument,  or  by  any  reference  to  authorities; 
and  that  it  was  not  formulated  with  the  same  care  and  exactness  as 
if  the  case  before  the  court  had  called  for  an  exact  definition  of  the 
phrase  is  apparent  from  its  classing  foreign  ministers  and  consuls 
together;  whereas  it  was  then  well  settled  law,  as  has  since  been  rec- 
ognized in  a  judgment  of  this  court  in  which  Mr.  Justice  Miller  con- 
curred, that  consuls,  as  such,  and  unless  expressly  invested  with  a 
diplomatic  character  in  addition  to  their  ordinary  powers,  are  not 
considered  as  intrusted  with  authority  to  represent  their  sovereign 
in  his  intercourse  with  foreign  states,  or  to  vindicate  his  prerogatives, 

»  See  Taney,  C.  J.,  19  How.  403^127,  15  L.  Ed.  (591,  and  compare  the  oppos- 
ing view  of  Curtis,  J.,  1!)  How.  r>t\»  r,ss,  15  L.  IM.  (,:»[.     l'.efore  the  fourteenth 
amendment   it  was  admitted   that  a    state   might    confer  a    purely   domestic 
Citizenship  upon  a  person  who  did  not  thereby  become  a  United  States  citizen 
and   was  neither  entitled  to  the  privileges  of  citizenship  in  other  states  nor 
to  sue  in  the  federal  courts  as  a  citizen  of  a  state.    See  the  observations  of 
Taney,  C.  J.,  In  Seott  v.  Sandford,  19  How.  40.").    100,  15  L.  Ed.  091,  and  of 
Curtis,  J.,  19  How.  579,  5S0,  5SC,  15  L.  Ed.  691  (1857).     Presumably  thi 
Is  true  to-day.     See  Slaughter  House  Cases,   pest.  p.  'J19,  and  Ilaminerstein  \ 
Lyne  (L>.  C.)  200  Fed.  105  (1912)  (discussing  nature  of  state  citizenship). 
pare  the  practice  of  several   states   in   permitting  aliens  to  vote,  after   they 
have  declared   an  intention  to  become   United  States  citizens.     See  Minor   v. 
Happersett,  post,  p.  i  |.;. 


I3a  FUNDAMENTAL    RIGHTS  (Part    2 

or  entitled  by  the  law  of  nations  to  the  privileges  and  immunities  of 
ambassadors  or  public  ministers,  but  are  subject  to  the  jurisdiction, 
civil  and  criminal,  of  the  courts  of  the  country  in  which  they  reside. 
1  Kent,  Comm.  44 ;  Story,  Confl.  Laws,  §  48 ;  Wheat.  Int.  JLaw  (8th 
Ed.)  §249;  The  Anne  (1818)  3  Wheat.  435, 445, 446,4  L.  Ed.  428;  Git- 
tings  v.  Crawford  (1838)  Taney,  1,  10,  Fed.  Cas.  No.  5,465 ;  In  re  Baiz 
(1890)  135  U.  S.  403,  424,  10  Sup.  Ct.  854,  34  L.  Ed.  222.     *     *    * 

The  only  adjudication  that  has  been  made  by  this  court  upon  the 
meaning  of  the  clause  "and  subject  to  the  jurisdiction  thereof,"  in  the 
leading  provision  of  the  fourteenth  amendment,  is  Elk  v.  Wilkins, 
112  U.  S.  94,  5  Sup.  Ct.  41,  28  L.  Ed.  643,  in  which  it  was' decided 
that  an  Indian  born  a  member  of  one  of  the  Indian  tribes  within  the 
United  States,  which  still  existed  and  was  recognized  as  an  Indian 
tribe  by  the  United  States,  who  had  voluntarily  separated  himself 
from  his  tribe,  and  taken  up  his  residence  among  the  white  citizens 
of  a  state,  but  who  did  not  appear  to  have  been  naturalized  or  taxed 
or  in  any  way  recognized  or  treated  as  a  citizen,  either  by  the  United 
States  or  by  the  state,  was  not  a  citizen  of  the  United  States,  as  a 
person  born  in  the  United  States,  "and  subject  to  the  jurisdiction 
thereof,"  within  the  meaning  of  the  clause  in  question. 

That  decision  was  placed  upon  the  grounds  that  the  meaning  of 
those  words  was  "not  merely  subject  in  some  respect  or  degree  to  the 
jurisdiction  of  the  United  States,  but  completely  subject  to  their 
political  jurisdiction,  and  owing  them  direct  and  immediate  alle- 
giance"; that  by  the  Constitution,  as  originally  established,  "Indians 
not  taxed"  were  excluded  from  the  persons  according  to  whose  num- 
bers representatives  in  congress  and  direct  taxes  were  apportioned 
among  the  several  states,  and  congress  was  empowered  to  regulate 
commerce,  not  only  "with  foreign  nations,"  and  among  the  several 
states,  but  "with  the  Indian  tribes" ;  that  the  Indian  tribes,  being 
within  the  territorial  limits  of  the  United  States,  were  not,  strictly 
speaking,  foreign  states,  but  were  alien  nations,  distinct  political  com- 
munities, the  members  of  which  owed  immediate  allegiance  to  their 
several  tribes,  and  were  not  part  of  the  people  of  the  United  States ; 
that  the  alien  and  dependent  condition  of  the  members  of  one  of 
those  tribes  could  not  be  put  off  at  their  own  will,  without  the  action 
or  assent  of  the  United  States ;  and  that  they  were  never  deemed 
citizens,  except  when  naturalized,  collectively  or  individually,  under 
explicit  provisions  of  a  treaty,  or  of  an  act  of  congress ;  and,  there- 
fore, that  "Indians  born  within  the  territorial  limits  of  the  United 
States,  members  of,  and  owing  immediate  allegiance  to,  one  of  the 
Indian  tribes  (an  alien,  though  dependent,  power),  although  in  a  geo- 
graphical sense  born  in  the  United  States,  are  no  more  'born  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,'  within  the 
meaning  of  the  first  section  of  the  fourteenth  amendment,  than  the 
children  of  subjects  of  any  foreign  government  born  within  the  do- 
main of  that  government,  or  the  children  born   within  the  United 


Ch.  4)  POLITICAL    RIGHTS  135 

States  of  ambassadors  or  other  public  ministers  of  foreign  nations." 
And  it  was  observed  that  the  language  used,  in  defining  citizenship, 
in  the  first  section  of  the  civil  rights  act  of  1866,  by  the  very  congress 
which  framed  the  fourteenth  amendment,  was  "all  persons  born  in 
the  United  States,  and  not  subject  to  any  foreign  power,  excluding 
Indians  not  taxed."  112  U.  S.  99-103,  5  Sup.  Ct.  44-46,  28  L.  Ed. 
643.     *     *     * 

The  decision  in  Elk  v.  Wilkins  concerned  only  members  of  the  In- 
dian tribes  within  the  United  States,  and  had  no  tendency  to  deny 
citizenship  to  children  born  in  the  United  States  of  foreign  parents 
of  Caucasian,  African,  or  Mongolian  descent,  not  in  the  diplomatic 
service  of  a  foreign  country. 

The  real  object  of  the  fourteenth  amendment  of  the  Constitution, 
in  qualifying  the  words  "all  persons  born  in  the  United  States"  bj 
the  addition  "and  subject  to  the  jurisdiction  thereof,"  would  appear 
to  have  been  to  exclude,  by  the  fewest  and  fittest  words  (besides  chil- 
dren of  members  of  the  Indian  tribes,  standing  in  a  peculiar  relation 
to  the  national  government,  unknown  to  the  common  law),  the  two 
classes  of  cases, — children  born  of  alien  enemies  in  hostile  occupation, 
and  children  of  diplomatic  representatives  of  a  foreign  state, — both 
of  which,  as  has  already  been  shown,  by  the  law  of  England  and  by 
our  own  law,  from  the  time  of  the  first  settlement  of  the  English 
colonies  in  America,  had  been  recognized  exceptions  to  the  funda- 
mental rule  of  citizenship  by  birth  within  the  country.  Calvin's  Case, 
7  Coke,  1,  18b;  Cockb.  Nat.  7;  Dicey,  Confl.  Laws,  177;  Inglis  v. 
Sailors'  Snug  Harbor,  3  Pet.  99,  155,  7  L.  Ed.  617;  2  Kent.  Comm. 
39,  42. 

The  principles  upon  which  each  of  those  exceptions  rests  were  long 
ago  distinctly  stated  by  this  court.  *  *  *  [Here  follows  a  quota- 
tion from  United  States  v.  Rice,  4  Wheat.  246,  4  L.  Ed.  562  (1819) 
to  the  effect  that  the  military  occupation  of  a  part  of  Maine  by  the 
British  during  the  War  of  1812  temporarily  suspended  the  sovereignty 
of  the  United  States  there.] 

In  the  great  case  of  The  Exchange  (1812)  7  Cranch,  116,  3  L.  Ed- 
287,  the  grounds  upon  which  foreign  ministers  are,  and  other  aliens 
are  not,  exempt  from  the  jurisdiction  of  this  country,  were  set  forth 
by  Chief  Justice  Marshall  in  a  clear  and  powerful  train  of  reasoning, 
of  which  it  will  be  sufficient,  for  our  present  purpose,  to  give  little 
more  than  the  outlines.  The  opinion  did  not  touch  upon  the  anoma- 
lous case  of  the  Indian  tribes,  the  true  relation  of  which  to  the  United 
States  was  not  directly  brought  before  this  court  until  some  years 
afterwards,  in  Cherokee  Nation  v.  Georgia  (1831)  5  Pet.  1,  8  L.  Ed. 
25 ;  nor  upon  the  case  of  a  suspension  of  the  sovereignty  of  the 
United  States  over  part  of  their  territory  by  reason  of  a  hostile  oc- 
cupation, such  as  was  also  afterwards  presented  in  U.  S.  v.  Rice. 
above  cited.     But  in  all  other  respects  it  covered  the  whole  question 


136  FUNDAMENTAL    RIGHTS  (Part    2 

of  what  persons  within  the  territory  of  the  United  States  are  subject 
to  the  jurisdiction  thereof. 

The  Chief  Justice  first  laid  down  the  general  principle:  "The  ju- 
risdiction of  the  nation  within  its  own  territory  is  necessarily  exclu- 
sive and  absolute.  It  is  susceptible  of  no  limitation  not  imposed  by 
itself.  Any  restriction  upon  it,  deriving  validity  from  an  external 
source,  would  imply  a  diminution  of  its  sovereignty  to  the  extent  of 
the  restriction,  and  an  investment  of  that  sovereignty  to  the  same  ex- 
tent in  that  power  which  could  impose  such  restriction.  All  excep- 
tions, therefore,  to  the  full  and  complete  power  of  a  nation  within 
its  own  territories,  must  be  traced  up  to  the  consent  of  the  nation 
itself.  They  can  flow  from  no  other  legitimate  source.  This  consent 
may  be  either  express  or  implied.  In  the  latter  case,  it  is  less  deter- 
minate, exposed  more'  to  the  uncertainties  of  construction ;  but,  if 
understood,  not  less  obligatory."    7  Cranch,  136,  3  L.  Ed.  287. 

He  then  stated,  and  supported  by  argument  and  illustration,  the 
propositions  that  "this  full  and  absolute  territorial  jurisdiction,  being 
alike  the  attribute  of  every  sovereign,  and  being  incapable  of  con- 
ferring extraterritorial  power,"  has  "given  rise  to  a  class  of  cases 
in  which  every  sovereign  is  understood  to  waive  the  exercise  of  a 
part  of  that  complete  exclusive  territorial  jurisdiction  which  has  been 
stated  to  be  the  attribute  of  every  nation,"  the  first  of  which  is  the 
exemption  from  arrest  or  detention  of  the  person  of  a  foreign  sov- 
trign  entering  its  territory  with  its  license,  because  "a  foreign  sov- 
ereign is  not  understood  as  intending  to  subject  himself  to  a  juris- 
diction incompatible  with  his  dignity  and  the  dignity  of  his  nation" ; 
''a  second  case,  standing  on  the  same  principles  with  the  first,  is  the 
immunity  which  all  civilized  nations  allow  to  foreign  ministers" ;  "a 
third  case,  in  which  a  sovereign  is  understood  to  cede  a  portion  of 
his  territorial  jurisdiction,  is  where  he  allows  the  troops  of  a  foreign 
prince  to  pass  through  his  dominions" ;  and,  in  conclusion,  that  "a 
public  armed  ship,  in  the  service  of  a  foreign  sovereign,  with  whom 
the  government  of  the  United  States  is  at  peace,  and  having  entered 
an  American  port  open  for  her  reception,  on  the  terms  on  which 
ships  of  war  are  generally  permitted  to  enter  the  ports  of  a  friendly 
power,  must  be  considered  as  having  come  into  the  American  terri- 
tory, under  an  implied  promise  that  while  necessarily  within  it,  and 
demeaning  herself  in  a  friendly  manner,  she  should  be  exempt  from 
the  jurisdiction  of  the  country."  7  Cranch,  137-139,  147,  3  L.  Ed. 
287.     *     *     * 

The  reasons  for  not  allowing  to  other  aliens  exemption  "from  the 
jurisdiction  of  the  country  in  which  they  are  found"  were  stated  as 
follows :  "When  private  individuals  ,of  one  nation  spread  them- 
selves through  another  as  business  or  caprice  may  direct,  mingling  in- 
discriminately with  the  inhabitants  of  that  other,  or  when  merchant 
vessels  enter  for  the  purposes  of  trade,  it  would  be  obviously  incon- 
venient and  dangerous  to  society,  and  would  subject  the  laws  to  con- 


Ch.  4)  POLITICAL    BJGBTS  137 

tinual  infraction,  and  the  government  to  degradation,  if  such  in- 
dividuals or  merchants  did  not  owe  temporary  and  local  allegiance, 
and  were  not  amenable  to  the  jurisdiction  of  the  country.  Nor  can 
the  foreign  sovereign  have  any  motive  for  wishing  such  exemption. 
His  subjects  thus  passing  into  foreign  countries  are  not  employed  by 
him,  nor  are  they  engaged  in  national  pursuits.  Consequently,  there 
are  powerful  motives  for  not  exempting  persons  of  this  description 
from  the  jurisdiction  of  the  country  in  which  they  are  found,  and 
no  one  motive  for  requiring  it.  The  implied  license,  therefore,  under 
which  they  enter,  can  never  be  construed  to  grant  such  exemption." 
7  Cranch,  144,  3  L.  Ed.  287.     *     *     * 

These  considerations  confirm  the  view,  already  expressed  in  this 
opinion,  that  the  opening  sentence  of  the  fourteenth  amendment  is 
throughout  affirmative  and  declaratory,  intended  to  allay  doubts  and 
to  settfe  controversies  which  had  arisen,  and  not  to  impose  any  new 
restrictions  upon  citizenship.     *     *     * 

This  sentence  of  the  fourteenth  amendment  is  declaratory  of  exist- 
ing rights,  and  affirmative  of  existing  law,  as  to  each  of  the  qualifica- 
tions therein  expressed, — "born  in  the  United  States,"  "naturalized  in 
the  United  States,"  and  "subject  to  the  jurisdiction  thereof";  in  short. 
as  to  everything  relating  to  the  acquisition  of  citizenship  by  facts  oc- 
curring within  the  limits  of  the  United  States.  But  it  has  not  touched 
the  acquisition  of  citizenship  by  being  born  abroad  of  American  par- 
ents ;  and  has  left  that  subject  to  be  regulated,  as  it  had  always  been, 
by  congress,  in  the  exercise  of  the  power  conferred  by  the  Constitu- 
tion to  establish  a  uniform  rule  of  naturalization. 

The  effect  of  the  enactments  conferring  citizenship  on  foreign-born 
children  of  American  parents  has  been  defined,  and  the  fundamental 
rule  of  citizenship  by  birth  within  the  dominion  of  the  United  States, 
notwithstanding  alienage  of  parents,  has  been  affirmed,  in  well-con- 
sidered opinions  of  the  executive  departments  of  the  government, 
since  the  adoption  of  the  fourteenth  amendment  of  the  Constitution. 
*  *  *  [Here  follow  quotations  from  these  opinions,  which  hold]  that 
such  statutes  cannot,  consistently  with  our  own  established  rule  of 
citizenship  by  birth  in  this  country,  operate  extraterritorially  so  far  as 
to  relieve  any  person  born  and  residing  in  a  foreign  country,  and  sub- 
ject to  its  government,  from  his  allegiance  to  that  country.4    *    *     * 

The  foregoing  considerations  and  authorities  irresistibly  lead"  us  to 
these  conclusions:  The  fourteenth  amendment  affirms  the  ancient  and 
fundamental  rule  of  citizenship  by  birth  within  the  territory,  in  the 
allegiance  and  under  the  protection  of  the  country,  including  all  chil- 
dren here  born  of  resident  aliens,  with  the  exceptions  or  qualifications 
(as  old  as  the  rule  itself)  of  children  of  foreign  sovereigns  or  their 
ministers,  or  born  on  foreign  public  ships,  or  of  enemies  within  and 
during  a  hostile  occupation  of  part  of  our  territory,  and  with  the  single 

«  See,  on  these  topics,   Van    Dyne,   Citizenship,  32-50. 


138  FUNDAMENTAL    RIGHTS  (Part    2 

additional  exception  of  children  of  members  of  the  Indian  tribes  owing 
direct  allegiance  to  their  several  tribes.  The  amendment,  in  clear 
words  and  in  manifest  intent,  includes  the  children  born  within  the 
territory  of  the  United  States  of  all  other  persons,  of  whatever  race 
or  color,  domiciled  within  the  United  States.  Every  citizen  or  subject 
of  another  country,  while  domiciled  here,  is  within  the  allegiance  and 
the  protection,  and  consequently  subject  to  the  jurisdiction,  of  the 
United  States.  His  allegiance  to  the  United  States  is  direct  and  imme- 
diate, and,  although  but  local  and  temporary,  continuing  only  so  long 
as  he  remain  within  our  territory,  is  yet,  in  the  words  of  Lord  Coke 
in  Calvin's  Case,  7  Rep.  6a,  "strong  enough  to  make  a  natural  subject, 
for,  if  he  hath  issue  here,  that  issue  is  a  natural-born  subject" ;  and 
his  child,  as  said  by  Mr.  Binney  in  his  essay  before  quoted,  "if  born 
in  the  country,  is  as  much  a  citizen  as  the  natural-born  child  of  a  citi- 
zen, and  by  operation  of  the  same  principle."  It  can  hardly  be  denied 
that  an  alien  is  completely  subject  to  the  political  jurisdiction  of  the 
country  in  which  he  resides,  seeing  that,  as  said  by  Mr.  Webster,  when 
secretary  of  state,  in  his  report  to  the  president  on  Thrasher's  Case  in 
1851,  and  since  repeated  by  this  court:  "Independently  of  a  residence 
with  intention  to  continue  such  residence;  independently  of  any  dom- 
iciliation ;  independently  of  the  taking  of  any  oath  of  allegiance,  or  of 
renouncing  any  former  allegiance, — it  is  well  known  that  by  the  public 
law  an  alien,  or  a  stranger  born,  for  so  long  a  time  as  he  continues 
within  the  dominions  of  a  foreign  government,  owes  obedience  to  the 
laws  of  that  government,  and  may  be  punished  for  treason  or  other 
crimes  as  a  native-born  subject  might  be,  unless  his  case  is  varied  by 
some  treaty  stipulations."  Executive  Documents  H.  R.  No.  10,  1st 
Sess.  32d  Cong.  p.  4;  6  Webster's  Works,  526;  Carlisle  v.  United 
States,  16  Wall.  147,  155,  21  L.  Ed.  426;  Calvin's  Case,  7  Rep.  6a; 
Ellesmere,  Postnati,  63 ;   1  Hale,  P.  C.  62 ;  4  Bl.  Comm.  74,  92.  *  *   * 

It  is  true  that  Chinese  persons  born  in  China  cannot  be  naturalized. 
like  other  aliens,  by  proceedings  under  the  naturalization  laws.  But 
this  is  for  want  of  any  statute  or  treaty  authorizing  or  permitting  such 
naturalization,  as  will  appear  by  tracing  the  history  of  the  statutes, 
treaties,  and  decisions  upon  that  subject,  always  bearing  in  mind  that 
statutes  enacted  by  congress,  as  well  as  treaties  made  by  the  president 
and  senate,  must  yield  to  the  paramount  and  supreme  law  of  the  Con- 
stitution. 

The  power,  granted  to  congress  by  the  Constitution,  "to  establish  an 
uniform  rule  of  naturalization,"  was  long  ago  adjudged  by  this  court 
to  be  vested  exclusively  in  congress.  Chirac  v.  Chirac  ( 1S17)  2  Wheat. 
259,  4  L.  Ed.  234. 6  For  many  years  after  the  establishment  of  the 
original  Constitution,  and  until  two  years  after  the  adoption  of  the 
fourteenth  amendment,  congress  never  authorized  the  naturalization 

b  The  reasons  for  this  are  discussed  in  Scott  v.  Sandford,  19  How.  393,  405, 
406,  579,  580,  586,  15  L.  Ed.  691  (1857). 


Ch.  4)  POLITICAL    BIGHTS  189 

01  any  one  but  "free  white  persons."  *  *  *  By  the  act  of  July  14, 
1870,  c.  254,  §  7,  for  the  first  time,  the  naturalization  laws  were  "ex- 
tended to  aliens  of  African  nativity  and  to  persons  of  African  descent." 
16  Stat.  256.  This  extension,  as  embodied  in  the  Revised  Statutes, 
took  the  form  of  providing  that  those  laws  should  "apply  to  aliens 
[being  free  white  persons,  and  to  aliens]  of  African  nativity  and  to 
persons  of  African  descent";  and  it  was  amended  by  the  act  of  Feb. 
18,  1875,  c.  80,  by  inserting  the  words  above  printed  in  brackets.  Rev. 
St.  (2d  Ed.)  §  2169,  18  Stat.  318  (U.  S.  Comp.  St.  1901,  p.  1333).6 
Those  statutes  were  held,  by  the  Circuit  Court  of  the  United  States 
in  California,  not  to  embrace  Chinese  aliens.  In  re  Ah  Yup  (1878) 
5  Sawy.  155,  Fed.  Cas.  No.  104.  And  by  the  act  of  May  6,  1S82,  c. 
126,  §  14,  it  was  expressly  enacted  that,  "hereafter  no  state  court  or 
court  of  the  United  States  shall  admit  Chinese  to  citizenship."  22  Stat. 
61  (U.  S.  Comp.  St.  1901,  p.  1333). 

In  Fong  Yue  Ting  v.  U.  S.  (1893),  above  cited,  this  court  said: 
"Chinese  persons  not  born  in  this  country  have  never  been  recognized 
as  citizens  of  the  United  States,  nor  authorized  to  become  such  under 
the  naturalization  laws."  149  U.  S.  716,  13  Sup.  Ct.  1023,  37  L. 
Ed.  905.    *    *    * 

The  power  of  naturalization,  vested  in  congress  by  the  Constitution, 
is  a  power  to  confer  citizenship,  not  a  power  to  take  it  away.  *  * 
Congress  having  no  power  to  abridge  the  rights  conferred  by  the  Con- 
stitution upon  those  who  have  become  naturalized  citizens  by  virtue 
of  acts  of  congress,  a  fortiori  no  act  or  omission  of  congress,  as  to 
providing  for  the  naturalization  of  parents  or  children  of  a  particular 
race,  can  affect  citizenship  acquired  as  a  birthright,  by  virtue  of  the 
Constitution  itself,  without  any  aid  of  legislation.  The  fourteenth 
amendment,  while  it  leaves  the  power,  where  it  was  before,  in  congress, 
to  regulate  naturalization,  has  conferred  no  authority  upon  congress  to 
restrict  the  effect  of  birth,  declared  by  the  Constitution  to  constitute  a 
sufficient  and  complete  right  to  citizenship.    *    *    * 

VII.  Upon  the  facts  agreed  in  this  case,  the  American  citizenship 
which  Wong  Kim  Ark  acquired  by  birth  within  the  United  States  has 
not  been  lost  or  taken  away  by  anything  happening  since  his  birth.  No 
doubt  he  might  himself,  after  coming  of  age,  renounce  this  citizenship, 
and  become  a  citizen  of  the  country  of  his  parents,  or  of  any  other 
country;  for  by  our  law,  as  solemnly  declared  by  congress,  "the  right 
of  expatriation  is  a  natural  and  inherent  right  of  all  people,"  and  "any 
declaration,  instruction,  opinion,  order  or  direction  of  any  officer  of 

« As  to  the  meaning  of  "free  white  persons,"  see  In  re  Ilalladiian  (C.  C.) 
174  Fed.  834  (19t)9);   United  States  v.  Balsara,  180  Fed.  6!  A.  660 

(1910) ;  In  re  Alverto  0>.  C.)  198  Fed.  688  (1911!) ;  In  re  Young  (D.  C.)  19S 
Fed.  715  (1912). 

The  collective  naturalization  of  alien  Inhabitants  of  a  territory    may   be 
effected  upon  its  admission  as  a  state,  by  the  recognition  of  them  in  the  act 
of  admission  as  voters  and  members  of  the  new  political  community, 
v.  Nebraska  ex  rel.  Thayer,  143  U.  S.  135,  12  Sup.  Ct.  375,  36  L.  Ed.  103  (1892). 


140  FUNDAMENTAL    RIGHTS  (Part    2 

the  United  States,  which  denies,  restricts,  impairs  or  questions  the  right 
of  expatriation,  is  declared  inconsistent  with  the  fundamental  princi- 
ples of  the  republic."  Rev.  St.  §  1999,  re-enacting  Act  July  27,  1868, 
c.  249,  §  1,  15  Stat.  223,  224  (U.  S.  Comp.  St.  1901,  p.  1269).7  Wheth- 
er any  act  of  himself,  or  of  his  parents,  during  his  minority,  could  have 
the  same  effect,  is  at  least  doubtful.  But  it  would  be  out  of  place  to 
pursue  that  inquiry.    *     * 

Order  affirmed.8 

[Fullee,  C.  J.,  gave  a  dissenting  opinion,  in  which  Harlan,  J.,  con- 
curred.] 


SECTION  2.— SUFFRAGE 


MINOR  v.  HAPPERSETT. 
(Supreme  Court  of  United  States,  1S74.     21  Wall.  162,  22  L.  Ed.  627.) 

[Error  to  the  Supreme  Court  of  Missouri.  Mrs.  Minor  sued  in 
an  inferior  state  court  a  registrar  of  voters  in  Missouri  for  refusing 
to  register  her;  his  refusal  being  based  upon  the  terms  of  the  state 
Constitution  which  confined  the  suffrage  to  male  citizens  of  the  United 
States.  Judgment  for  the  registrar  was  affirmed  by  the  state  Su- 
preme Court.] 

Mr.  Chief  Justice  Waite.  *  *  *  It  is  contended  that  the  pro- 
visions of  the  Constitution  and  laws  of  the  state  of  Missouri,  which 

»  Prior  to  the  statute  of  1SC8  the  federal  courts  had  generally  recognized 
the  English  common-law  rule  that  forbade  the  renunciation  of  allegiance  with- 
out the  sovereign's  consent     See  John  B.  Moore  in  14  Harv.  Law  Rev.  179. 

s  Article  III  of  the  Russian  treaty  ceding  Alaska  (1S67)  excepted  from  citi- 
zenship the  "uncivilized  native  tribes"  therein.  See  Downes  v.  Bidwell,  post, 
at  p.  1009. 

Article  IX  of  the  federal  treaty  with  Spain  (1S9S)  provides :  "The  civil 
rights  and  political  status  of  the  native  inhabitants  of  the  territories  hereby 
ceded  to  the  United  States  shall  be  determined  by  the  congress." 

Are  the  native  inhabitants  of  Porto  Rico  and  the  Philippines,  born  before 
the  treaty,  citizens  of  the  United  States'.'  See  Gonzales  v.  Williams,  192  U.  S. 
1.  24  Sup.  Ct.  171,  48  L.  Ed.  317  (1904) :  F.  R.  Coudert.  Jr..  in  3  Col.  L.  Rev. 
13  (1903).  What  is  the  status  of  those  born  after  the  treaty?  See  the  reason- 
ing in  Downes  v.  Bidwell,  post,  p.  9S8.  Compare  34  Stat.  596,  S  30  (19Uii). 
applying  the  federal  naturalization  laws  to  non-citizens  "who  owe  permanent 
allegiance  to  the  United  States." 

|  in  the  topic  of  American  citizenship  in  general,  see  D.  O.  McGovney  in  11 
Col.  L.  Rev.  231,  326  (1911). 

Corporations  and  Citizenship. — As  to  how  far  various  clauses  in  the  Con- 
stitution concerning  the  rights' of  citizens  affect  corporations  or  their  incorpo- 
rators, see  Paul  v.  Virginia,  post,  p.  200 ;  and  Ohio  &  M.  Ry.  v.  Wheeler,  post, 
P.  1340. 


Ch.  4)  POLITICAL    RIGHTS  141 

confine  the  right  of  suffrage  and  registration  therefor  to  men,  are 
in  violation  of  the  Constitution  of  the  United  States,  and  therefore 
void.  The  argument  is,  that  as  a  woman,  burn  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof,  is  a  citizen  of 
the  United  States  and  of  the  state  in  which  she  resides,  she  has 
the  right  of  suffrage  as  one  of  the  privileges  and  immunities  of  her 
citizenship,  which  the  state  cannot  by  its  laws  or  Constitution  abridge. 

There  is  no  doubt  that  women  may  be  citizens.  They  are  persons, 
and  by  the  fourteenth  amendment  "all  persons  born  or  naturalized  in 
the  United  States  and  subject  to  the  jurisdiction  thereof"  are  ex- 
pressly declared  to  be  "citizens  of  the  United  States  and  of  the  state 
wherein  they  reside."  But,  in  our  opinion,  it  did  not  need  this  amend- 
ment to  give  them  that  position.  Before  its  adoption  the  Constitu- 
tion of  the  United  States  did  not  in  terms  prescribe  who  should  be 
citizens  of  the  United  States  or  of  the  several  states,  yet  there  were 
necessarily  such  citizens  without  such  provision.  There  cannot  be  a 
nation  without  a  people.  The  very  idea  of  a  political  community,  such 
as  a  nation  is,  implies  an  association  of  persons  for  the  promotion  of 
their  general  welfare.  Each  one  of  the  persons  associated  becomes 
a  member  of  the  nation  formed  by  the  association.  He  owes  it  al- 
legiance and  is  entitled  to  its  protection.  Allegiance  and  protection 
are,  in  this  connection,  reciprocal  obligations.  The  one  is  a  compen- 
sation for  the  other;  allegiance  for  protection  and  protection  for  al- 
legiance. 

For  convenience  it  has  been  found  necessary  to  give  a  name  to 
this  membership.  The  object  is  to  designate  by  a  title  the  person 
and  the  relation  he  bears  to  the  nation.  For  this  purpose  the  words 
"subject,"  "inhabitant,"  and  "citizen"  have  been  used,  and  the  choice 
between  them  is  sometimes  made  to  depend  upon  the  form  of  the 
government.  Citizen  is  now  more  commonly  employed,  however, 
and  as  it  has  been  considered  better  suited  to  the  description  of  one 
living  under  a  republican  government,  it  was  adopted  by  nearly  all 
of  the  states  upon  their  separation  from  Great  Britain,  and  was  after- 
wards adopted  in  the  Articles  of  Confederation  and  in  the  Constitu- 
tion of  the  United  States.  When  used  in  this  sense  it  is  understood 
as  conveying  the  idea  of  membership  of  a  nation,  and  nothing  more. 
*  *  *  [Here  follow  references  to  the  acquisition  of  citizenship  by 
birth  and  naturalization — see  United  States  v.  Wong  Kim  Ark,  ante, 
p.  128,  and  the  federal  naturalization  laws  are  shown  to  be  applicable 
to  women,  as  well  as  the  right  to  sue  in  the  federal  courts  on  ground* 
of  diverse  citizenship.] 

The  fourteenth  amendment  did  not  affect  the  citizenship  of  women 
any  more  than  it  did  of  men.  In  this  particular,  therefore,  the  rights 
of  Mrs.  Minor  do  not  depend  upon  the  amendment.  She  has  al- 
ways been  a  citizen  from  her  birth,  and  entitled  to  all  the  privileges 
and  immunities  of  citizenship.     The  amendment  prohibited  the  state 


142  FUNDAMENTAL    RIGHTS  (Part    2 

of  which  she  is  a  citizen,  from  abridging  any  of  her  privileges  and  im- 
munities as  a  citizen  of  the  United  States ;  but  it  did  not  confer 
citizenship  on  her.  That  she  had  before  its  adoption.  *  *  *  The 
Constitution  does  not  define  the  privileges  and  immunities  of  citizens. 
For  that  definition  we  must  look  elsewhere.  In  this  case  we  need  not 
determine  what  they  are,  but  only  whether  suffrage  is  necessarily  one 
of  them. 

It  certainly  is  nowhere  made  so  in  express  terms.  The  United  States 
has  no  voters  in  the  states  of  its  own  creation.  The  elective  officers  of 
of  the  United  States  are  all  elected  directly  or  indirectly  by  state  vot- 
ers. The  members  of  the  House  of  Representatives,  are  to  be  chosen 
by  the  people  of  the  states,  and  the  electors  in  each  state  must  have 
the  qualifications  requisite  for  electors  of  the  most  numerous  branch  of 
the  state  legislature.  Constitution,  art.  1,  §  2.  Senators  are  to  be 
chosen  by  the  legislatures  of  the  states,  and  necessarily  the  members 
of  the  legislature  required  to  make  the  choice  are  elected  by  the  voters 
of  the  state.  Id.  art.  1,  §  3.  Each  state  must  appoint,  fn  such  man- 
ner as  the  legislature  thereof  may  direct,  the  electors  to  elect  the 
President  and  Vice  President.    Id.  art.  2,  §  2.     *     *     * 

The  [fourteenth]  amendment  did  not  add  to  the  privileges  and  im- 
munities of  a  citizen.  It  simply  furnished  an  additional  guaranty  for 
the  protection  of  such  as  he  already  had.     *     *     * 

It  is  clear,  therefore,  we  think,  that  the  Constitution  has  not  added 
the  right  of  suffrage  to  the  privileges  and  immunities  of  citizenship 
as  they  existed  at  the  time  it  was  adopted.  This  makes  it  proper  to 
inquire  whether  suffrage  was  co-extensive  with  the  citizenship  of  the 
states  at  the  time  of  its  adoption.  If  it  was,  then  it  may  with  force 
be  argued  that  suffrage  was  one  of  the  rights  which  belonged  to  cit- 
izenship, and  in  the  enjoyment  of  which  every  citizen  must  be  pro- 
tected. But  if  it  was  not,  the  contrary  may  with  propriety  be  as- 
sumed. 

When  the  federal  Constitution  was  adopted,  all  the  states,  with  the 
exception  of  Rhode  Island  and  Connecticut,  had  Constitutions  of 
their  own.  These  two  continued  to  act  under  their  charters  from  the 
Crown.  Upon  an  examination  of  those  Constitutions,  we  find  that 
in  no  state  were  all  citizens  permitted  to  vote.  Each  state  deter- 
mined for  itself  who  should  have  that  power.     *     *     * 

[The  states  are  shown  to  have  limited  the  suffrage  variously,  by 
prescribing  qualifications  of  race,  sex,  age,  property,  and  tax-paying. 
After  referring  to  the  federal  guaranty  of  a  republican  form  of  gov- 
ernment to  the  states,  Const,  art.  4,  §  4:] 

As  has  been  seen,  all  the  citizens  of  the  states  were  not  invested 
with  the  right  of  suffrage.  In  all,  save  perhaps  New  Jersey,  this 
right  was  only  bestowed  upon  men  and  not  upon  all  of  them.  Un- 
der these  circumstances  it  is  certainly  now  too  late  to  contend  that 
a  government  is  not  republican,  within  the  meaning  of  this  guaranty 


Ch.  4)  POLITICAL    aiQHTB  143 

in  the  Constitution,  because  women  are  not  made  voters.  *  *  * 
Resides  this,  citizenship  has  not  in  all  cases  been  made  a  condition 
precedent  to  the  enjoyment  of  the  right  of  suffrage.  Thus,  in  Mis- 
souri, persons  of  foreign  birth,  who  have  declared  their  intention  to 
become  citizens  of  the  United  States,  may  under  certain  circum- 
stances vote.  The  same  provision  is  to  be  found  in  the  Constitutions 
of  Alabama,  Arkansas,  Florida,  Georgia,  Indiana,  Kansas,  Minnesota, 
and  Texas.1     *     *     * 

Being  unanimously  of  the  opinion  that  the  Constitution  of  the 
United  States  does  not  confer  the  right  of  suffrage  upon  any  one, 
and  that  the  Constitutions  and  laws  of  the  several  states  which  com- 
mit that  important  trust  to  men  alone  are  not  necessarily  void,  we 
affirm  the  judgment. 


POPE  v.  WILLIAMS  (1904)  193  U.  S.  621,  632  634,  24  Sup.  Ct. 
373,  48  L.  Ed.  817,  Mr.  Justice  Pbckham  (affirming  a  decision  of  the 
Court  of  Appeals  of  Maryland) : 

"The  simple  matter  to  be  herein  determined  is  whether,  with  refer- 
ence to  the  exercise  of  the  privilege  of  voting  in  Maryland,  the  legis- 
lature of  that  state  had  the  legal  right  to  provide  that  a  person  coming 
into  the  state  to  reside  should  make  the  declaration  of  intent  a  year 
before  he  should  have  the  right  to  be  registered  as  a  voter  of  the  state. 

"The  privilege  to  vote  in  any  state  is  not  given  by  the  federal  Con- 
stitution, or  by  any  of  its  amendments.  It  is  not  a  privilege  springing 
from  citizenship  of  the  United  States.  Minor  v.  Happersett,  21  Wall. 
162,  22  L.  Ed.  627.  It  may  not  be  refused  on  account  of  race,  color,  or 
previous  condition  of  servitude,  but  it  does  not  follow  from  mere 
citizenship  of  the  United  States.  In  other  words,  the  privilege  to  vote 
in  a  state  is  within  the  jurisdiction  of  the  state  itself,  to  be  exercised 
as  the  state  may  direct,  and  upon  such  terms  as  to  it  may  seem  proper, 
provided,  of  course,  no  discrimination  is  made  between  individuals,  in 
violation  of  the  federal  Constitution.  The  state  might  provide  that 
persons  of  foreign  birth  could  vote  without  being  naturalized,  and.  as 
stated  by  Mr.  Chief  Justice  Waite  in  Minor  v.  Happersett,  21  Wall. 
162,  22  L.  Ed.  627,  such  persons  were  allowed  to  vote  in  several  of 
the  states  upon  having  declared  their  intentions  to  become  citizens  of 
the  United  States.  Some  states  permit  women  to  vote;  others  refuse 
them  that  privilege.  A  state,  so  far  as  the  federal  Constitution  is  con- 
cerned, might  provide  by  its  own  Constitution  and  laws  that  none  but 
native-born  citizens  should  be  permitted  to  vote,  as  the  federal  Consti- 
tution does  not  confer  the  right  of  suffrage  upon  any  one,  and  the  con- 
ditions under  which  that  right  is  to  be  exercised  are  matters  for  the 

<  For  a  more  recent  list  of  .sueli  states,  about  a  dozen  in  number,  see  Slim 
»on.  Fed.  and  State  Coasts.  §  240  (190S). 


144  FUNDAMENTAL    KIGHT3  (Part   2 

states  alone  to  prescribe,  subject  to  the  conditions  of  the  federal  Con- 
stitution, already  stated ;  although  it  may  be  observed  that  the  right  to 
vote  for  a  member  of  congress  is  not  derived  exclusively  from  the 
state  law.  See  Const.  U.  S.  art.  1,  §  2;  Wiley  v.  Sinkler,  179  U.  S. 
58,  21  Sup.  Ct.  17,  45  L.  Ed.  84.  But  the  elector  must  be  one  entitled 
to  vote  under  the  state  statute.  Id.,  Id.  See,  also,  Swafford  v.  Temple- 
ton,  185  U.  S.  487,  491,  22  Sup.  Ct.  783,  46  L.  Ed.  1005,  1007.  In  this 
case  no  question  arises  as  to  the  right  to  vote  for  electors  of  Presi- 
dent and  Vice  President,  and  no  decision  is  made  thereon.  The  ques- 
tion whether  the  conditions  prescribed  by  the  state  might  be  regarded 
by  others  as  reasonable  or  unreasonable  is  not  a  federal  one.  We  do 
not  wish  to  be  understood,  however,  as  intimating  that  the  condition 
in  this  statute  is  unreasonable  or  in  any  way  improper. 

"We  are  unable  to  see  any  violation  of  the  federal  Constitution  in 
the  provision  of  the  state  statute  for  the  declaration  of  the  intent  of  a 
person  coming  into  the  state  before  he  can  claim  the  right  to  be  regis- 
tered as  a  voter.  The  statute,  so  far  as  it  provides  conditions  precedent 
to  the  exercise  of  the  elective  franchise  within  the  state,  by  persons 
coming  therein  to  reside  (and  that  is  as  far  as  it  is  necessary  to  con- 
sider it  in  this  case),  is  neither  an  unlawful  discrimination  against  any 
one  in  the  situation  of  the  plaintiff  in  error  nor  does  it  deny  to  him 
the  equal  protection  of  the  laws,  nor  is  it  repugnant  to  any  fundamental 
or  inalienable  rights  of  citizens  of  the  United  States,  nor  a  violation 
of  any  implied  guaranties  of  the  federal  Constitution.  The  right  of  a 
state  to  legislate  upon  the  subject  of  the  elective  franchise  as  to  it  may 
seem  good,  subject  to  the  conditions  already  stated,  being,  as  we  be- 
lieve, unassailable,  we  think  it  plain  that  the  statute  in  question  violates 
no  right  protected  by  the  federal  Constitution. 

"The  reasons  which  may  have  impelled  the  state  legislature  to  enact 
the  statute  in  question  were  matters  entirely  for  its  consideration,  and 
this  court  has  no  concern  with  them. 

"It  is  unnecessary  in  this  case  to  assert  that  under  no  conceivable 
state  of  facts  could  a  state  statute  in  regard  to  voting  be  regarded  as 
an  infringement  upon  or  a  discrimination  against,  the  individual  rights 
of  a  citizen  of  the  United  States  removing  into  the  state,  and  excluded 
from  voting  therein  by  state  legislation.  The  question  might  arise  if 
an  exclusion  from  the  privilege  of  voting  were  founded  upon  the  par- 
ticular state  from  which  the  person  came,  excluding  from  that  priv- 
ilege, for  instance,  a  citizen  of  the  United  States  coming  from  Geor- 
gia and  allowing  it  to  a  citizen  of  the  United  States  coming  from  New 
York  or  any  other  state.  In  such  case  an  argument  might  be  urged 
that,  under  the  fourteenth  amendment  of  the  federal  Constitution,  the 
citizen  from  Georgia  was,  by  the  state  statute,  deprived  of  the  equal 
protection  of  the  laws.  Other  extreme  cases  might  be  suggested.  We 
neither  assert  nor  deny  that,  in  the  case  supposed,  the  claim  would 


Ch.  4)  POLITICAL    RIGHTS  145 

be  well  founded  that  a  Federal  right  of  a  citizen  of  the  United  States 
was  violated  by  such  legislation,  for  the  question  does  not  arise  here- 
in.   *    *    *  " 

Judgment  affirmed.1 


Ex  parte  YARBROUGH. 

(Supreme  Court  of  United  States,  1884.     110  U.  S.  651,  4  Sup.  Ct.  152.  28  L. 
Ed.  274.) 

[Petition  for  writ  of  habeas  corpus  to  release  several  persons  con- 
victed in  the  federal  Circuit  Court  for  the  Northern  District  of 
Georgia  of  conspiring  to  intimidate  a  colored  person  from  voting  for 
member  of  congress,  in  violation  of  a  federal  statute.] 

Mr.  Justice  Miller.  *  *  *  That  a  government  whose  essen- 
tial character  is  republican,  whose  executive  head  and  legislative  body 
are  both  elective,  whose  most  numerous  and  powerful  branch  of  the 
legislature  is  elected  by  the  people  directly,  has  no  power  by  appro- 
priate laws  to  secure  this  election  from  the  influence  of  violence,  of 
corruption,  and  of  fraud,  is  a  proposition  so  startling  as  to  arrest  at- 
tention and  demand  the  gravest  consideration.  If  this  government 
is  anything  more  than  a  mere  aggregation  of  delegated  agents  of 
other  states  and  governments,  each  of  which  is  superior  to  the  gen- 
eral government,  it  must  have  the  power  to  protect  the  elections'  on 
which  its  existence  depends,  from  violence  and  corruption.  If  it 
has  not  this  power,  it  is  left  helpless  before  the  two  great  natural  and 

i  See  United  States  v.  Anthony,  11  Blatch.  200,  205,  Fed.  Cas.  No.  14,438 
(1ST.;)  ;  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  370,  6  Sup.  Ct.  1064,  30  L.  Ed.  220 
(1886) ;  Murphy  v.  Ramsey,  114  U.  S.  15,  43,  5  Sup.  Ct.  747,  29  L.  Ed.  47 
(1885). 

Regarding  certain  provisions  of  the  Mississippi  Constitution,  excluding 
from  the  suffrage  persons  not  paying  poll  taxes  or  who  had  been  convicted  of 
certain  crimes.  McKenna,  J.,  said,  in  Williams  v.  Mississippi.  170  U.  S.  213, 
221,  222,  18  Sup.  Ct  683,  587  (42  L,  Ed.  1012)  (1898):  "The  Constitution  pro- 
vides for  the  payment  of  a  poll  tax,  and  by  a  section  of  the  Code  its  payment 
cannot  be  compelled  by  a  seizure  and  sale  of  property.  We  gather  from  tin- 
brief  of  counsel  that  its  payment  is  a  condltiou  of  the  right  to  vote,  and.  In 
a  ease  to  test  whether  its  payment  was  or  was  not  optional  (Kate  lit:  v.  Heal. 
74  Miss.  247,  20  South.  865,  :U  I..  R.  A.  472),  the  supreme  court  of  the  slate 
said:  'Within  the  Held  of  permissible  action  under  the  limitations 
by  the  federal  Constitution,  the  convention  swept  the  held  of  expedients,  to 
obstruct  the  exercise  of  suffrage  by  the  negro  race.'  And  further  the  court 
said,  speaking  of  the  negro  race:  'By  reason  of  its  previous  condition  of  ser\ 
Itude  ami  dependencies,  this  race  bad  acquired  or  accentuated  certain  pecul 
larities  of  habit,  of  temperament,  ami  of  character,  which  clearly  distinguished 
it  as  a  race  from  the  whites;  a  patient,  docile  people,  but  careless,  land- 
less, migratory  within  narrow  limits,  without  forethought,  and  its  criminal 
members  given  to  furtive  offenses,  rather  than  the  robust  crimes  of  the 
whites.  Restrained  by  the  federal  Constitution  from  discriminating  against 
the  negro  race,  the  convention  discriminates  against  its  characteristics,  and 
Senses  to  which  its  criminal  members  are  prone.'  But  nothing  tangible 
can  be  deduced  from  this.  If  weakness  were  to  be  taken  advantage  of,  it 
was  to  be  done  'within  the  field  of  permissible  action  under  the  limitations 
Hall  Const.L. — 10 


146  FUNDAMENTAL    RIGHTS  (Part    2 

historical  enemies  of  all  republics,  open  violence  and  insidious  cor- 
ruption.    *     *     * 

The  congress  [has]  been  slow  to  exercise  the  powers  expressly 
conferred  upon  it  in  relation  to  elections  by  the  fourth  section  of  the 
first  article  of  the  Constitution.  This  section  declares  that  "the  times, 
places,  and  manner  of  holding  elections  for  senators  and  representa- 
tives shall  be  prescribed  in  each  state  by  the  legislature  thereof ;  but 
the  congress  may  at  any  time  make  or  alter  such  regulations,  except 
as  to  the  place  of  choosing  senators."  It  was  not  until  1842  that 
congress  took  any  action  under  the  power  here  conferred.     *     *     * 

[Here  are  mentioned  federal  statutes  requiring  members  of  the 
house  of  representatives  to  be  elected  by  districts,  fixing  a  uniform 
day  for  the  election  of  representatives  and  of  presidential  electors, 
and  regulating  the  election  of  senators.] 

Will  it  be  denied  that  it  is  in  the  power  of  that  body  to  provide 
laws  for  the  proper  conduct  of  those  elections  ?  To  provide,  if  neces- 
sary, the  officers  who  shall  conduct  them  and  make  return  of  the  re- 
sult? And  especially  to  provide,  in  an  election  held  under  its  own 
authority,  for  security  of  life  and  limb  to  the  voter  while  in  the  ex- 
ercise of  this  function?  Can  it  be  doubted  that  congress  can,  by  law, 
protect  the  act  of  voting,  the  place  where  it  is  done,  and  the  man  who 
votes  from  personal  violence  or  intimidation,  and  the  election  itself 
from  corruption  and  fraud  ?     *     *     * 

It  is  said  that  the  parties  assaulted  in  these  cases  are  not  officers  of 
the  United  States,  and  their  protection  in  exercising  the  right  to  vote 
by  congress  does  not  stand  on  the  same  ground.  But  the  distinction 
is  not  well  taken.    The  power  in  either  case  arises  out  of  the  circum- 

imposed  by  the  federal  Constitution,'  and  the  means  of  it  were  the  alleged 
characteristics  of  the  negro  race,  not  the  administration  of  the  law  by  officers 
of  the  state.  Besides,  the  operation  of  the  Constitution  and  laws  is  not  lim- 
ited by  their  language  or  effects  to  one  race.  They  reach  weak  and  vicious 
white  men  as  well  as  weak  and  vicious  black  men,  and  whatever  is  sinister 
in  their  intention,  if  anything,  can  be  prevented  by  both  races  by  the  exertion 
of  that  duty  which  voluntarily  pays  taxes  and  refrains  from  crime." 

An  amendment  to  the  Oklahoma  Constitution  (1910),  requiring  voters  to  be 
able  to  read  and  write  any  section  of  the  state  Constitution,  but  excepting 
therefrom  persons  who,  prior  to  January  1,  1S66,  were  entitled  to  vote  under 
Liny  form  of  government,  or  who  on  that  date  resided  in  a  foreign  nation  or 
svho  were  lineal  descendants  of  such  persons,  was  held  not  to  violate  either 
(he  fourteenth  or  the  fifteenth  amendments,  in  Atwater  v.  Hassett,  27  Okl. 
292,  315,  316,  111  Pac.  S02,  812  (1910) ;  Williams,  J.,  saying:  "To  say,  because 
plaintiff  or  his  ancestors,  who  were  not  entitled  to  vote  under  any  organized 
form  of  government  on  or  prior  to  January  1,  1SGG,  or  who  were  not  then  non- 
resident aliens  having  since  come  to  the  United  States  and  become  citizens 
by  naturalization,  that  said  amendment  discriminates  against  them  on  account 
of  race  or  color,  is  as  unfounded  as  to  say  that  a  property  qualification  dis- 
criminates on  account  of  previous  condition  of  servitude  for  the  reason  that, 
if  a  man  had  not  been  held  in  bondage,  he  would  have  been  able  to  acquire 
property,  as  a  slave  could  not  acquire  property  any  more  than  he  could 
vote.  It  is  a  matter  of  common  knowledge  that  the  population  of  this  state 
is  cosmopolitan,  embracing  people  of  every  creed  and  race  from  practically 
every  state  in  the  Union.  All  of  those  persons  who  on  January  1,  1S66,  or  at 
any  time  prior  thereto,  were  entitled  to  vote  under  any  form  of  government 


Ch.  4)  POLITICAL    EIGHTS  14" 

stance  that  the  function  in  which  the  party  is  engaged  or  the  right 
which  he  is  about  to  exercise  is  dependent  on  the  laws  of  the  Unite! 
States.  In  both  cases  it  is  the  duty  of  that  government  to  see  that 
he  may  exercise  this  right  freely,  and  to  protect  him  from  violence 
while  so  doing,  or  on  account  of  so  doing.  This  duty  does  not  arise 
solely  from  the  interest  of  the  party  concerned,  but  from  the  ne- 
cessity of  the  government  itself  that  its  service  shall  be  free  from  the 
adverse  influence  of  force  and  fraud  practiced  on  its  agents,  and  that 
the  votes  by  which  its  members  of  congress  and  its  president  are 
elected  shall  be  the  free  votes  of  the  electors,  and  the  officers  thus 
chosen  the  free  and  uncorrupted  choice  of  those  who  have  the  right 
to  take  part  in  that  choice. 

This  proposition  answers,  also,  another  objection  to  the  constitu- 
tionality of  the  laws  under  consideration,  namely,  that  the  right  to 
vote  for  a  member  of  congress  is  not  dependent  upon  the  Constitu- 
tion or  laws  of  the  United  States,  but  is  governed  by  the  law  of  each 
state  respectively.  If  this  were  conceded,  the  importance  to  the  gen- 
eral government  of  having  the  actual  election—the  voting  for  those 
members — -free  from  force  and  fraud  is  not  diminished  by  the  cir- 
cumstance that  the  qualification  of  the  voter  is  determined  by  the 
law  of  the  state  where  he  votes.  It  equally  affects  the  government; 
it  is  as  indispensable  to  the  proper  discharge  of  the  great  function  of 
legislating  for  that  government,  that  those  who  are  to  control  this 
legislation  shall  not  owe  their  election  to  bribery  or  violence,  whether 
the  class  of  persons  who  shall  vote  is  determined  by  the  law  of  the 
state,  or  by  law  of  the  United  States,  or  by  their  united  result. 

But  it  is  not  correct  to  say  that  the  right  to  vote  for  a  member  of 

or  state  or  territory  of  this  Union,  or  who  at  that  time  residing  in  BOine 
foreign  nation,  afterwards  came  to  the  United  States  and  by  naturalization 
became  citizens  of  the  United  states,  and  their  liueal  descendants,  regardless 
of  race  or  previous  condition  of  servitude,  are  permitted  to  vote  at  the  elec- 
tions in  iiiis  stale,  without  complying  with  the  educational  requirements  of 
said  provision.  That  is  a  classification  based  upon  a  reason;  that  is.  that 
any  person  who  was  entitled  to  vote  under  a  form  of  government  on  or  prior 
to  said  date  is  still  presumed  to  be  qualified  to  exercise  such  right,  and  the 
presumption  follows  as  to  his  offspring — that  is,  that  the  virtues  and  intelli- 
gence of  the  ancestor  will  be  imputed  to  his  descendants,  just  as  the  iniquity 
ol  the  lathers  i ; i ;  1  \  lie  '.  isited  upon  the  Children  unto  the  third  and  fourth 
generation.  But  as  to  those  who  were  not  entitled  to  vote  under  any  form 
of  government  on  said  date,  or  at  an\  prior  time,  and  their  desi 
is  no  presumption  in  favor  of  their  qualification,  and  the  burden  is  upon  them 
to  show  themselves  qualified.  This  does  not  apply  to  any  one  race,  but  to 
every  race  that  falls  within  this  disqualification.  The  alien  who  resided  In 
some  foreign  country  on  the  1st  day  of  January,  1866,  who  was  not  - 
to  vote  under  that  form  of  government,  and  who  afterwards  came  to  the 
United  states,  and  became  naturalized,  was  required  to  undergo  an  examina- 
tion to  show  himself  qualified  and  fitted  for  citizenship,  and  when  the  wurts 
of  this  republic,  or  the  different  states  tin  root',  exercising  the  powers  ol 
naturalization,  have  examined  and  passed  uiwn  his  qualification,  the  presump- 
tion in  favor  of  his  qualification  is  recognized." 

Contra,  as  to  fifteenth  amendment,  see  Anderson  v.  Myers  tC  Ci  ls'J  l,  ! 
1TJ3  (1910)  ($500  property  qualification  for  municipal  suffrage,  with  exceptions 
similar  to  those  of  Oklahoma). 


148  FUNDAMENTAL    RIGHTS  (Part   2 

congress  does  not  depend  on  the  Constitution  of  the  United  States. 
The  office,  if  it  be  properly  called  an  office,  is  created  by  that  Con- 
stitution, and  by  that  alone.  It  also  declares  how  it  shall  be  filled, 
namely,  by  election.  Its  language  is :  "The  house  of  representatives 
shall  be  composed  of  members  chosen  every  second  year  by  the  people 
of  the  several  states ;  and  the  electors  in  each  state  shall  have  the  quali- 
fications requisite  for  electors  of  the  most  numerous  branch  of  the 
state  legislature."  Article  1,  §  2.  The  states,  in  prescribing  the 
qualifications  of  voters  for  the  most  numerous  branch  of  their  own 
legislatures,  do  not  do  this  with  reference  to  the  election  for  mem- 
bers of  congress.  Nor  can  they  prescribe  the  qualification  for  voters 
for  those  eo  nomine.  They  define  who  are  to  vote  for  the  popular 
branch  of  their  own  legislature,  and  the  Constitution  of  the  United 
States  says  the  same  persons  shall  vote  for  members  of  congress  in 
that  state.  It  adopts  the  qualification  thus  furnished  as  the  qualifica- 
tion of  its  own  electors  for  members  of  congress.  It  is  not  true, 
therefore,  that  electors  for  members  of  congress  owe  their  right  to 
vote  to  the  state  law,  in  any  sense  which  makes  the  exercise  of  the 
right  to  depend  exclusively  on  the  law  of  the  state. 

Counsel  for  petitioners,  seizing  upon  the  expression  found  in  the 
opinion  of  the  court  in  the  case  of  Minor  v.  Happersett,  21  Wall.  178, 
22  L.  Ed.  627,  that  "the  Constitution  of  the  United  States  does  not 
confer  the  right  of  suffrage  upon  any  one,"  without  reference  to  the 
connection  in  which  it  is  used,  insists  that  the  voters  in  this  case  do 
not  owe  their  right  to  vote  in  any  sense  to  that  instrument.  But 
the  court  was  combating  the  argument  that  this  right  was  conferred 
on  all  citizens,  and  therefore  upon  women  as  well  as  men.  In  opposi- 
tion to  that  idea,  it  was  said  the  Constitution  adopts  as  the  qualifica- 
tion for  voters  of  members  of  congress  that  which  prevails  in  the 
state  where  the  voting  is  to  be  done;  therefore,  said  the  opinion,  the 
right  is  not  definitely  conferred  on  any  person  or  class  of  persons  by 
the  Constitution  alone,  because  you  have  to  look  to  the  law  of  the 
state  for  the  description  of  the  class.  But  the  court  did  not  intend 
to  say  that  when  the  class  or  the  person  is  thus  ascertained,  his  right 
to  vote  for  a  member  of  congress  was  not  fundamentally  based  upon 
the  Constitution,  which  created  the  office  of  member  of  congress,  and 
declared  it  should  be  elective,  and  pointed  to  the  means  of  ascertain- 
ing who  should  be  electors.  The  fifteenth  amendment  of  the  Con- 
stitution    *     *     *     is  in  the  following  language : 

"Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States,  or  by  any  state,  on 
account  of  race,  color,  or  previous  condition  of     servitude. 

"Sec.  2.  The  congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation." 

While  it  is  quite  true,  as  was  said  by  this  court  in  U.  S.  v.  Reese, 
92  U.  S.  218,  23  L.  Ed.  563,  that  this  article  gives  no  affirmative 
right  to  the  colored  man  to  vote,  and  is  designed  primarily  to  prevent 


Ch.  4)  POLITICAL    RIGHTS  149 

discrimination  against  him  whenever  the  right  to  vote  may  be  granted 
to  others,  it  is  easy  to  see  that  under  some  circumstances  it  may  op- 
erate as  the  immediate  source  of  a  right  to  vote.  In  all  cases  where 
the  former  slave-holding  states  had  not  removed  from  their  Con- 
stitutions the  words  "white  man"  as  a  qualification  for  voting,  this 
provision  did,  in  effect,  confer  on  him  the  right  to  vote,  because, 
being  paramount  to  the  state  law,  and  a  part  of  the  state  law,  it  an- 
nulled the  discriminating  word  "white,"  and  thus  left  him  in  the  en- 
joyment of  the  same  right  as  white  persons.     *     *     * 

In  the  case  of  U.  S.  v.  Reese,  so  much  relied  on  by  counsel,  this 
court  said,  in  regard  to  the  fifteenth  amendment,  that  "it  has  invested 
the  citizens  of  the  United  States  with  a  new  constitutional  right 
which  is  within  the  protecting  power  of  congress.  That  right  is  an 
exemption  from  discrimination  in  the  exercise  of  the  elective  fran- 
chise on  account  of  race,  color,  or  previous  condition  of  servitude."  l 
This  new  constitutional  right  was  mainly  designed  for  citizens  of 
African  descent.  The  principle,  however,  that  the  protection  of  the 
exercise  of  this  right  is  within  the  power  of  congress,  is  as  necessary 
to  the  right  of  other  citizens  to  vote  as  to  the  colored  citizen,  and  to 
the  right  to  vote  in  general  as  to  the  right  to  be  protected  against 
discrimination.  The  exercise  of  the  right  in  both  instances  is  guar- 
antied by  the  Constitution,  and  should  be  kept  free  and  pure  by 
congressional  enactments  whenever  that  is  necessary. 

The  reference  to  cases  in  this  court  in  which  the  power  of  congress 
under  the  first  section  of  the  fourteenth  amendment  has  been  held 
to  relate  alone  to  acts  done  under  state  authority  can  afford  petition- 
ers no  aid  in  the  present  case.  For,  while  it  may  be  true  that  acts 
which  are  mere  invasions  of  private  rights,  which  acts  have  no  sanc- 
tion in  the  statutes  of  a  state,  or  which  are  not  committed  by  any 
one  exercising  its  authority,  are  not  within  the  scope  of  that  amend- 
ment, it  is  quite  a  different  matter  when  congress  undertakes  to  pro- 
tect the  citizen  in  the  exercise  of  rights  conferred  by  the  Constitu- 
tion of  the  "United  States,  essential  to  the  healthy  organization  of 
the  government  itself.     *     *     * 

Writ  denied.3 

i  For  the  limits  of  federal  power  to  protect  this  right,  see  United  States 
v.  Reese.  OL'  U.  S.  214,  23  L.  Ed.  5G3  (1S7C) ;  James  v.  Bowman,  190  U.  S. 
127,  L':i  Sup.  Ct  878,  47  L.  Ed  079  U903). 

2  As  to  the  probable  meaning  of  Amend.  14,  §  2,  reducing  state  representa- 
tlon   In  congress   tor  the  denial  or  abridgement  of  male  see  E>.   I. 

Smith  in  2  Ilarv.  L.  Rev.  374-37G. 

As  regards  control  of  the  choice  of  presidential  electors,  under  Const,  art. 
2,  §  1,  pars.  2,  8,  see  In  re  Green,  134  U.  S.  ^77.  10  Sup.  Ct  5SC,  33  L,  Ed. 
951  (1890);  Md'herson  v.  Blacker,  146  U.  S.  1,  35,  13  Sup.  Ct.  3,  10,  3C  L. 
i  d.  B69  (1892).  in  the  latter  case,  after  an  elaborate  review  of  the  practice 
of  100  years,  Fuller,  C.  J.,  said:  "In  short,  the  appointment  and  mode  of  ap- 
pointment of  electors  belong  exclusively  to  the  states  under  the  Constitutiuii 
of  the  United  States.  They  are,  as  remarked  by  .Mr.  Justice  Gray  in  Re 
Green,  i::i  D.  S.  377,  879,  10  sup.  Ct  588  [S3  L.  Ed.  9.">l|,  *no  i 
or  agents  of  the  United  States  than  are  the  members  of  the  state  legislatures 


150  FUNDAMENTAL    RIGHTS  (Part    2 


SECTION  3.— MISCELLANEOUS  POLITICAL  RIGHTS 


NOTE. 


The  scope  of  this  volume  does  not  permit  the  Inclusion  of  material  for  the 
specific  discussion  of  several  important  political  rights  secured  by  provisions 
of  the  federal  Constitution,  most  of  which  are  also  protected  by  state  Con- 
stitutions.    These  are: 

(a)  Republican  Form  of  Government,  and  Protection  against  Invasion 
and  Domestic  Violence. — Const,  art.  IV,  §  4.  Upon  this  topic,  see  Luther  v. 
Borden,  ante,  p.  101 ;  Pacific  States  Telephone  &  Telegraph  Co.  v.  State  of 
Oregon,  223  U.  S.  118,  32  Sup.  Ct.  224,  56  L.  Ed.  377  (1912). 

(6)  Freedom  of  Speech  and  Press. — Const.  Amend.  I.  See  Robertson  v. 
Baldwin,  post,  p.  154;  Patterson  v.  Colorado  ex  rel.  Attorney  General,  205  U.  S. 
454,  461,  462,  27  Sup.  Ct.  556,  51  L.  Ed.  879.  10  Ann.  Cas.  689  (1907) ;  Gompers 
v.  Bucks  Stove  &  Range  Co.,  221  TJ.  S.  418,  437,  438,  31  Sup.  CL  492,  55  L.  Ed. 
797,  34  L.  R.  A.  (N.  S:)  S74  (1911);  Marx  &  Haas  Jeans  Clothing  Co.  v.  Wat- 
son, 168  Mo.  133,  143-150,  67  S.  W.  391,  56  L,  R.  A.  951,  90  Am.  St.  Rep.  440 
U902);  Lindsav  &  Co.  v.  Montana  Federation  of  Labor.  37  Mont.  261.  275- 
277,  96  Pac.  127,  18  L.  R.  A.  (N.  S.)  707,  127  Am.  St.  Rep.  722  (190S) ;  Louthan 
v.  Commonwealth,  79  Va.  196,  52  Am.  Rep.  626  (18S4) ;  State  ex  rel.  Ragan  v. 
Junkin,  85  Neb.  1,  122  N.  W.  473,  23  L.  R.  A.  (N.  S.)  839  (1909) ;  Ex  parte 
Harrison,  212  Mo.  88,  110  S.  W.  709,  126  Am.  St.  Rep.  557,  15  Ann.  Cas.  1 
(1908) ;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Brown,  80  Kan.  312,  102  Pac.  459,  23 
L.  R.  A.  (N.  S.)  247,  133  Am.  St.  Rep.  213,  18  Ann.  Cas.  346  (1909) ;  State  v. 
Pioneer  Press  Co.,  100  Minn.  173,  110  N.  W.  867,  9  L.  R.  A.  (N.  S.)  480,  117 
Am.  St.  Rep.  684,  10  Ann.  Cas.  351  (1907) ;  In  re  Anderson,  69  Neb.  6S6,  96 
N.  W.  149,  5  Ann.  Cas,  421  (1903). 

(c)  Right  of  Assemblage  and  Petition. — Const.  Amend.  I.  See  United 
States  v.  Cruikshank,  92  U.  S.  542,  552,  553,  23  L.  Ed.  5S8  (1876) ;  Common- 
wealth v.  Abrahams,  156  Mass.  57,  30  N.  E.  79  (1892);  State  ex  rel.  Ragan 
v.  Junkin,  85  Neb.  1,  122  N.  W.  473,  23  L.  R.  A.  (N.  S.)  839  (1909) ;  State  ex 
rel.  Van  Alstine  v.  Frear,  142  Wis.  320,  336-339,  125  N.  W.  961,  20  Ann.  Cas. 
633  (1910). 

(d)  Right  to  Keep  and  Bear  ARMs.-^Const.  Amend.  II.  See  United  States 
v.  Cruikshank,  92  U.  S.  542.  553.  23  L.  Ed.  5SS  (1S76I :  Robertson  v.  Baldwin, 
165  U.  S.  275,  282,  17  Sup.  Ct.  326,  41  L.  Ed.  715  (1897) ;  Salina  v.  Blaksley, 
72  Kan.  230,  S3  Pac.  619,  7  Ann.  Cas.  925  (1905),  annotated  in  3  L.  R.  A.  (N. 
S.)  168  ff.,  and  in  115  Am.  St.  Rep.  199-203 ;  and  later  references  in  Strick- 
land v.  State,  137  Ga.  1,  72  S.  E.  260,  36  L.  R,  A.  (N.  S.)  115,  Ann.  Cas.  1913B, 
323. 

when  acting  as  electors  of  federal  senators,  or  the  people  of  the  states  when 
acting  as  the  electors  of  representatives  in  congress.'  Congress  is  empowered 
to  determine  the  time  of  choosing  the  electors  and  the  day  on  which  they  are 
to  give  their  votes,  which  is  required  to  be  the  same  day  throughout  the 
United  States;  but  otherwise  the  power  and  jurisdiction  of  the  state  is  exclu- 
sive, with  the  exception  of  the  provisions  as  to  the  number  of  electors  and  the 
ineligibility  of  certain  persons,  so  framed  that  congressional  and  federal  in- 
fluence might  be  excluded." 

As  to  the  effect  of  so-called  "direct  primaries"  for  United  States  senator 
held  in  a  state  before  the  seventeenth  amendment,  see  State  ex  rel.  Van 
Alstine  v.  Frear,  142  Wis.  320,  343-351,  125  N.  W.  961,  20  Ann.  Cas.  633  (1910;. 


Ch.  5)  PlfiliaONAL  AND   RELIGIOUS   LIBERTY  151 

CHAPTER  V 
PERSONAL  AND  RELIGIOUS  LIBERTY 


CIVIL  RIGHTS  CASES1  (1SS3)  109  U.  S.  3,  20-25,  3  Sup.  Ct.  18, 
27  L.  Ed.  835,  Mr  Justice  Bradley  (holding  invalid  the  act  of  Con- 
gress discussed  below) : 

"It  is  true  that  slavery  cannot  exist  without  law,  any  more  than 
property  in  lands  and  goods  can  exist  without  law:  and,  therefore,  the 
thirteenth  amendment  may  be  regarded  as  nullifying  all  state  laws 
which  establish  or  uphold  slavery.  But  it  has  a  reflex  character  also, 
establishing  and  decreeing  universal  civil  and  political  freedom 
throughout  the  United  States ;  and  it  is  assumed,  that  the  power  vested 
in  Congress  to  enforce  the  article  by  appropriate  legislation,  clothes 
Congress  with  power  to  pass  all  laws  necessary  and  proper  for  abolish- 
ing all  badges  and  incidents  of  slavery  in  the  United  States:  and  upon 
this  assumption  it  is  claimed,  that  this  is  sufficient  authority  for  declar- 
ing by  law  that  all  persons  shall  have  equal  accommodations  and 
privileges  in  all  inns,  public  conveyances,  and  places  of  amusement ; 
the  argument  being,  that  the  denial  of  such  equal  accommodations  and 
privileges  is.  in  itself,  a  subjection  to  a  species  of  servitude  within  the 
meaning  of  the  amendment.  Conceding  the  major  proposition  to  be 
true,  that  Congress  has  a  right  to  enact  all  necessary  and  proper  laws 
for  the  obliteration  and  prevention  of  slavery  with  all  its  badges  and 
incidents,  is  the  minor  proposition  also  true,  that  the  denial  to  any 
person  of  admission  to  the  accommodations  and  privileges  of  an  inn, 
a  public  conveyance,  or  a  theatre,  does  subject  that  person  to  any  form 
of  servitude,  or  tend  to  fasten  upon  him  any  badge  of  slavery?  If  it 
does  not,  then  power  to  pass  the  law  is  not  found  in  the  thirteenth 
amendment. 

"In  a  very  able  and  learned  presentation  of  the  cognate  question  as 
to  the  extent  of  the  rights,  privileges  and  immunities  of  citizens  which 
cannot  rightfully  be  abridged  by  state  laws  under  the  fourteenth 
amendment,  made  in  a  former  case,  a  long  list  of  burdens  and  dis- 
abilities of  a  servile  character,  incident  to  feudal  vassalage  in  France, 
and  which  were  abolished  by  the  decrees  of  the  National  Assembly, 
was  presented  for  the  purpose  of  showing  that  all  inequalities  and 
observances  exacted  by  one  man  from  another  were  servitudes,  or 
badges  of  slavery,  which  a  great  nation,  in  its  effort  to  establish  uni- 
versal liberty,  made  haste  to  wipe  out  and  destroy.  But  these  were 
servitudes  imposed  by  the  old  law,  or  by  long  custom,  which  had  the 
force  of  law,  and  exacted  by  one  man  from  another  without  the  latter's 

»  The  remainder  of  this  case  ia  printed  post,  p.  2 10. 


152  FUNDAMENTAL.    R1GUT3  (Part   2 

consent.  Should  any  such  servitudes  be  imposed  by  a  state  law,  there 
can  be  no  doubt  that  the  law  would  be  repugnant  to  the  fourteenth, 
no  less  than  to  the  thirteenth  amendment;  nor  any  greater  doubt  that 
Congress  has  adequate  power  to  forbid  any  such  servitude  from  being 
exacted.    *    *    * 

"The  long  existence  of  African  slavery  in  this  country  gave  us  very 
distinct  notions  of  what  it  was,  and  what  were  its  necessary  incidents. 
Compulsory  service  of  the  slave  for  the  benefit  of  the  master,  restraint 
of  his  movements  except  by  the  master's  will,  disability  to  hold  prop- 
erty, to  make  contracts,  to  have  a  standing  in  court,  to  be  a  witness 
against  a  white  person,  and  such  like  burdens  and  incapacities,  were 
the  inseparable  incidents  of  the  institution.  Severer  punishments  for 
crimes  were  imposed  on  the  slave  than  on  free  persons  guilty  of  the 
same  offences.  Congress,  as  we  have  seen,  by  the  Civil  Rights  Bill  of 
1866,  passed  in  view  of  the  thirteenth  amendment,  before  the  four- 
teenth was  adopted,  undertook  to  wipe  out  these  burdens  and  disabili- 
ties, the  necessary  incidents  of  slavery,  constituting  its  substance  and 
visible  form ;  and  to  secure  to  all  citizens  of  every  race  and  color,  and 
without  regard  to  previous  servitude,  those  fundamental  rights  which 
are  the  essence  of  civil  freedom,  namely,  the  same  right  to  make  and 
enforce  contracts,  to  sue,  be  parties,  give  evidence,  and  to  inherit, 
purchase,  lease,  sell  and  convey  property,  as  is  enjoyed  by  white  citi- 
zens. Whether  this  legislation  was  fully  authorized  by  the  thirteenth 
amendment  alone,  without  the  support  which  it  afterwards  received 
from  the  fourteenth  amendment,  after  the  adoption  of  which  it  was 
re-enacted  with  some  additions,  it  is  not  necessary  to  inquire.2    *    *    * 

"The  only  question  under  the  present  head,  therefore,  is,  whether  the 
refusal  to  any  persons  of  the  accommodations  of  an  inn,  or  a  public 
conveyance,  or  a  place  of  public  amusement,  by  an  individual,  and 
without  any  sanction  or  support  from  any  state  law  or  regulation,  does 
inflict  upon  such  persons  any  manner  of  servitude,  or  form  of  slavery, 
as  those  terms  are  understood  in  this  country?  Many  wrongs  may  be 
obnoxious  to  the  prohibitions  of  the  fourteenth  amendment  which  are 
not,  in  any  just  sense,  incidents  or  elements  of  slavery.  Such,  for 
example,  would  be  the  taking  of  private  property  without  clue  process 
of  law ;  or  allowing  persons  who  have  committed  certain  crimes  (horse- 
stealing, for  example)  to  be  seized  and  hung  by  the  posse  comitatus 
without  regular  trial;  or  denying  to  any  person,  or  class  of  persons,  the 
right  to  pursue  any  peaceful  avocations  allowed  to  others.  What  is 
called  class  legislation  would  belong  to  this  category,  and  would  be 
obnoxious  to  the  prohibitions  of  the  fourteenth  amendment,  but  would 
not  necessarily  be  so  to  the  thirteenth,  when  not  involving  the  idea  of 
any  subjection  of  one  man  to  another.    *    *     * 

"After  giving  to  these  questions  all  the  consideration  which  their 

2  See  United  States  v.  Rhodes,  1  Abb.  28.  Fed.  Cas.  No.  10,151  (1866) ; 
United   States  v.  Morris   (D.   C.)  125  Fed.  322  (1903). 


Ch.  5)  PERSONAL  AND    RELIGIOUS   LIBERT!  l"'-'> 

importance  demands,  we  are  forced  to  the  conclusion  that  such  an  act 
of  refusal  has  nothing  to  do  with  slavery  or  involuntary  servitude,  and 
that  if  it  is  violative  of  any  right  of  the  party,  his  redress  is  to  be 
sought  under  the  laws  of  the  state;  or  if  those  laws  are  adverse  to  his 
rights  and  do  not  protect  him,  his  remedy  will  be  found  in  the  correc- 
tive legislation  which  Congress  has  adopted,  or  may  adopt,  for  counter- 
acting the  effect  of  state  laws,  or  state  action,  prohibited  by  the  four- 
teenth amendment.  It  would  be  running  the  slavery  argument  into  the 
ground  to  make  it  apply  to  every  act  of  discrimination  which  a  person 
may  see  fit  to  make  as  to  the  guests  he  will  entertain,  or  as  to  the  peo- 
ple he  will  take  into  his  coach  or  cab  or  car,  or  admit  to  his  concert  or 
theatre,  or  deal  with  in  other  matters  of  intercourse  or  business. 
*  *  *  There  were  thousands  of  free  colored  people  in  this  country 
before  the  abolition  of  slavery,  enjoying  all  the  essential  rights  of  life, 
liberty  and  property  the  same  as  white  citizens ;  yet  no  one,  at  that 
time,  thought  that  it  was  any  invasion  of  his  personal  status  as  a  free- 
man because  he  was  not  admitted  to  all  the  privileges  enjoyed  by  white 
citizens,  or  because  he  was  subjected  to  discriminations  in  the  enjoy- 
ment of  accommodations  in  inns,  public  conveyances  and  places  of 
amusement.  Mere  discriminations  on  account  of  race  or  color  were  not 
regarded  as  badges  of  slavery.  If,  since  that  time,  the  enjoyment  of 
equal  rights  in  all  these  respects  has  become  established  by  constitu- 
tional enactment,  it  is  not  by  force  of  the  thirteenth  amendment  (which 
merely  abolishes  slavery),  but  by  force  of  the  fourteenth  and  fifteenth 
amendments.3     *    *     * 

[Harlan,  J.,  gave  a  dissenting  opinion.] 

•  Accord:  Slaughter  House  Cases,  16  Wall.  36,  68-69,  21  L.  Ed.  304  (1873) 
(law  forbidding  individuals  to  maintain  slaughter  bouses);  Plessy  v.  Fergu- 
son, 103  L'.  S.  537,  16  Sup.  Ct  1138,  41  L.  Ed.  256  (1896)  (separate  coaeb  law) ; 
Hodges  v.  United  States,  203  U.  S.  1,  27  Sup.  Ct.  0,  51  L.  Ed.  65  (1900)  (pri- 
vate  Intimidation  of  persons  from  ei  Brawner  v.  lrvin  (C.   C.) 

169  Fed.  904  (1909)  (arrest  for  two  hours  and  beating). 

in  Hodges  v.  United  States,  above.  Brewer.  J.,  said  (203  U.  S.  16-18,  27 
Sup.  Ct.  8,  9,  51  L.  Ed.  65):  "The  things  denounced  are  slavery  and  Involun- 
tary servitude,  and  Congress  Is  given  power  to  enforce  that  denunciation. 
All  understand  by  these  terms  a  condition  of  enforced  compulsory  service 
of  one  to  another.  *  *  *  It  is  said,  however,  that  one  of  the  disabilities 
of  slavery,  one  of  the  Indicia  of  its  existence,  was  a  lack  of  power  to  make 
or  perform  contracts,  and  that  when  these  defendants,  i>y  intimidation  nnd 
force,  compelled  the  colored  men  named  in  the  indictment  to  desist  from  per- 
forming  their  contract,  they,  to  that  extent,  reduced  those  parties  to  a  con- 
dition of  slavery. — that  is,  of  subjection  to  the  will  of  defendants,  and  de- 
prived them  of  a  freeman's  power  to  perform  his  contract.  Hut  every  wrong 
done  to  an  individual  by  another,  acting  singly  or  lu  concert  with  others,  op- 
erates pro  tanto  to  abridge  some  of  the  freedom  to  which  the  Individual  is 
entitled.  A  freeman  has  a  right  to  be  protected  in  his  person  from  an  assault 
and  battery.  He  Is  entitled  to  hold  his  property  safe  from  trespass  or  appro- 
priation; but  no  mere  personal  assault  or  trespa  -<  or  appropriation  operates 
to  reduce  the  Individual  to  a  condition  of  slavery." 


154  FUNDAMENTAL    BIGHTS  (Part    2 


ROBERTSON  v.  BALDWIN. 

(Supreme  Court  of  United  States,  1897.    165  U.  S.  275,  17  Snp.  Ct.  326,  41 
L.  Ed.  715.) 

[Appeal  from  the  federal  District  Court  for  the  Northern  District 
of  California.  R.  S.  U.  S.  §§  4598,  4599,  provide  that  seamen  who 
desert  their  vessel  in  violation  of  their  contracts  may  be  arrested  and 
forcibly  returned  to  their  vessel  for  service,  and  section  4596  pro- 
vides a  punishment  by  imprisonment  for  desertion  or  absence  with- 
out leave.  Robertson  and  others  deserted  and  were  returned  to  their 
vessel.  They  refused  to  work  and  were  held  by  the  federal  marshal 
to  answer  a  charge  under  section  4596.  A  writ  of  habeas  corpus  was 
dismissed,  and  this  appeal  taken.] 

Mr.  Justice  Brown.  *  *  *  The  question  whether  sections  4598 
and  4599  conflict  with  the  thirteenth  amendment,  forbidding  slavery 
and  involuntary  servitude,  depends  upon  the  construction  to  be  given 
to  the  term  "involuntary  servitude."  Does  the  epithet  "involuntary" 
attach  to  the  word  "servitude"  continuously,  and  make  illegal  any 
service  which  becomes  involuntary  at  any  time  during  its  existence?1 
or  does  it  attach  only  at  the  inception  of  the  servitude,  and  char- 
acterize it  as  unlawful  because  unlawfully  entered  into?  If  the  for- 
mer be  the  true  construction,  then  no  one,  not  even  a  soldier,  sailor, 
or  apprentice,  can  surrender  his  liberty,  even  for  a  day ;  and  the 
soldier  may  desert  his  regiment  upon  the  eve  of  battle,  or  the  sailor 
abandon  his  ship  at  any  intermediate  port  or  landing,  or  even  in  a 
storm  at  sea,  provided,  only,  he  can  find  means  of  escaping  to  an- 
other vessel.  If  the  latter,  then  an  individual  may,  for  a  valuable 
consideration,  contract  for  the  surrender  of  his  personal  liberty  for  a 
definite  time  and  for  a  recognized  purpose,  and  subordinate  his  go- 
ing and  coming  to  the  will  of  another  during  the  continuance  of  the 
contract;  not  that  all  such  contracts  would  be  lawful,  but  that  a 
servitude  which  was  knowingly  and  willingly  entered  into  could  not 
be  termed  "involuntary."  Thus,  if  one  should  agree,  for  a  yearly 
wage,  to  serve  another  in  a  particular  capacity  during  his  life,  and 
never  to  leave  his  estate  without  his  consent,  the  contract  might  not 
be  enforceable  for  the  want  of  a  legal  remedy,  or  might  be  void 
upon  grounds  of  public  policy;  but  the  servitude  could  not  be  prop- 
erly termed  "involuntary."  Such  agreements  for  a  limited  persona! 
servitude  at  one  time  were  very  common  in  England,  and  by  statute 
of  June  17,  1823  (4  Geo.  IV,  c.  34,  §  3),  it  was  enacted  that  if  any 
servant  in  husbandry,  or  any  artificer,  calico  printer,  handicraftsman, 
miner,  collier,  keelman,  pitman,  glassman,  potter,  laborer  or  other 
person,  should  contract  to  serve  another  for  a  definite  time,  and 
should  desert  such  service  during  the  term  of  the  contract,  he  was 


Ch.  5)  PERSONAL  AND    RELIGIOUS   LIBERTY  155 

made  liable  to  a  criminal  punishment.  The  breach  of  a  contract  for 
personal  service  has  not,  however,  been  recognized  in  this  country,  as 
involving  a  liability  to  criminal  punishment,  except  in  the  cases  of 
soldiers,  sailors,  and  possibly  some  others;  nor  would  public  opinion 
tolerate  a  statute  to  that  effect. 

But  we  are  also  of  opinion  that,  even  if  the  contract  of  a  seaman 
could  be  considered  within  the  letter  of  the  thirteenth  amendment,  it 
is  not,  within  its  spirit,  a  case  of  involuntary  servitude.  The  law  is 
perfectly  well  settled  that  the  first  10  amendments  to  the  Constitu- 
tion, commonly  known  as  the  "Bill  of  Rights,"  were  not  intended  to 
lay  down  any  novel  principles  of  government,  but  simply  to  embody 
certain  guaranties  and  immunities  which  we  had  inherited  from  our 
English  ancestors,  and  which  had,  from  time  immemorial,  been  sub- 
ject to  certain  well-recognized  exceptions,  arising  from  the  necessi- 
ties of  the  case.  In  incorporating  these  principles  into  the  funda- 
mental law,  there  was  no  intention  of  disregarding  the  exceptions, 
which  continued  to  be  recognized  as  if  they  had  been  formally  ex- 
pressed. Thus,  the  freedom  of  speech  and  of  the  press  (article  1) 
does  not  permit  the  publication  of  libels,  blasphemous  or  indecent 
articles,  or  other  publications  injurious  to  public  morals  or  private 
reputation ;  the  right  of  the  people  to  keep  and  bear  arms  (article 
2)  is  not  infringed  by  laws  prohibiting  the  carrying  of  concealed 
weapons;  the  provision  that  no  person  shall  be  twice  put  in  jeopardy 
.'article  5)  does  not  prevent  a  second  trial,  if  upon  the  first  trial  the 
jury  failed  to  agree,  or  if  the  verdict  was  set  aside  upon  the  defend- 
ant's motion  (U.  S.  v.  Ball,  163  U.  S.  662,  672,  16  Sup.  Ct.  1192,  41 
L.  Ed.  300) ;  nor  does  the  provision  of  the  same  article  that  no  one 
shall  be  a  witness  against  himself  impair  his  obligation  to  testify,  if  a 
prosecution  against  him  be  barred  by  the  lapse  of  time,  a  pardon,  or 
by  statutory  enactment  (Brown  v.  Walker,  161  U.  S.  591,  16  Sup.  Ct. 
644,  40  L.  Ed.  819,  and  cases  cited).  Nor  does  the  provision  that 
an  accused  person  shall  be  confronted  with  the  witnesses  against  him 
prevent  the  admission  of  dying  declarations,  or  the  depositions  of  wit- 
nesses who  have  died  since  the  former  trial. 

The  prohibition  of  slavery,  in  the  thirteenth  amendment,  is  well 
known  to  have  been  adopted  with  reference  to  a  state  of  affairs 
which  had  existed  in  certain  states  of  the  Union  since  the  foundation 
of  the  government,  while  the  addition  of  the  words  "involuntary  ser- 
vitude" were  said,  in  the  Slaughterhouse  Cases,  16  Wall.  36,  21  L. 
Ed.  394,  to  have  been  intended  to  cover  the  system  of  Mexican  peonage 
and  the  Chinese  coolie  trade,  the  practical  operation  of  which  might 
have  been  a  revival  of  the  institution  of  slavery  under  a  different  and 
less  offensive  name.  It  is  clear,  however,  that  the  amendment  was 
not  intended  to  introduce  any  novel  doctrine  with  respect  to  certain 
descriptions  of  service  which  have  always  been  treated  as  exceptional, 
such  as  military  and  naval  enlistments,  or  to  disturb  the   right  of 


156  FUNDAMENTAL    RIGHTS  (Part   2 

parents  and  guardians  to  the  custody  of  their  minor  children  or 
wards.1  The  amendment,  however,  makes  no  distinction  between  a 
public  and  a  private  service.  To  say  that  persons  engaged  in  a  pub- 
lic service  are  not  within  the  amendment  is  to  admit  that  there  are 
exceptions  to  its  general  language,  and  the  further  question  is  at  once 
presented,  where  shall  the  line  be  drawn?  We  know  of  no  better  an- 
swer to  make  than  to  say  that  services  which  have  from  time  im- 
memorial been  treated  as  exceptional  shall  not  be  regarded  as  within 
its  purview. 

From  the  earliest  historical  period  the  contract  of  the  sailor  has 
been  treated  as  an  exceptional  one,  and  involving,  to  a  certain  ex- 
tent, the  surrender  of  his  personal  liberty  during  the  life  of  the  con- 
tract. Indeed,  the  business  of  navigation  could  scarcely  be  carried 
on  without  some  guaranty,  beyond  the  ordinary  civil  remedies  upon 
contract,  that  the  sailor  will  not  desert  the  ship  at  a  critical  moment, 
or  leave  her  at  some  place  where  seamen  are  impossible  to  be  ob- 
tained,— as  Molloy  forcibly  expresses  it,  "to  rot  in  her  neglected  brine." 
Such  desertion  might  involve  a  long  delay  of  the  vessel  while  the 
master  is  seeking  another  crew,  an  abandonment  of  the  voyage,  and, 
in  some  cases,  the  safety  of  the  ship  itself.  Hence,  the  laws  of  nearly 
all  maritime  nations  have  made  provision  for  securing  the  personal 
attendance  of  the  crew  on  board,  and  for  tlieir  criminal  punishment 
for  desertion,  or  absence,  without  leave,  during  the  life  of  the  shipping 
articles.  *  *  *  [The  early  maritime  laws  of  various  nations  are 
here  considered.] 

Nearly  all  of  the  ancient  commercial  codes  either  make  provision 
for  payment  of  damages  by  seamen  who  absent  themselves  from  their 
ships  without  leave,  or  for  their  imprisonment,  or  forcible  conveyance 
on  board.  Some  of  the  modern  commercial  codes  of  Europe  and 
South  America  make  similar  provisions.  Argentine  Code,  art.  1154. 
Others,  including  the  French  and  Spanish  Codes,  are  silent  upon  the 
subject.  *  *  *  [English  legislation  to  the  same  effect  is  here 
considered.] 

The  earliest  American  legislation  which  we  have  been  able  to  find 
is  an  act  of  the  colonial  general  court  of  Massachusetts,  passed  about 
1668,  wherein  it  was  enacted  that  any  mariner  who  departs  and  leaves 
a  voyage  upon  which  he  has  entered  shall  forfeit  all  his  wages,  and 
shall  be  further  punished  by  imprisonment  or  otherwise,  as  the  case 
may  be  circumstanced ;  and  if  he  shall  have  received  any  considerable 
part  of  his  wages,  and  shall  run  away,  he  shall  be  pursued  as  a  dis- 
obedient, runaway  servant.     Col.  Laws  Mass.  (Ed.  1889)  251,  256. 

The  provision  of  Rev.  St.  §  4598,  under  which  these  proceedings 
were  taken,  was  first  enacted  by  congress  in  1790.     1   Stat.  131,  §  7. 

i  Accord  (whether  control  be  exercised  by  parents,  or  by  state  under  its 
tutorial  power):  Kennedy  v.  Meara,  127  Ga.  68,  56  S.  E.  243,  9  Ann.  Cas.  396 
(1906)  (apprenticing  of  children  by  "home  for  the  friendless"). 


Ch.  5)  PERSONAL  AND   RELIGIOUS   LIBERTY  157 

This  act  provided  for  the  apprehension  of  deserters  and  their  delivery 
on  board  the  vessel,  but  apparently  made  no  provision  for  imprison- 
ment as  a  punishment  for  desertion ;  but  by  the  shipping  commis- 
sioners' act  of  June  7,  1872  (17  Stat.  243,  273,  c.  322,  §  51),  now  in- 
corporated into  the  Revised  Statutes  as  section  4596  (U.  S.  Comp. 
St.  1901,  p.  3113),  the  court  is  authorized  to  add  to  forfeiture  of 
wages  for  desertion  imprisonment  for  a.  period  of  not  more  than 
three  months,  and  for  absence  without  leave  imprisonment  for  not 
more  than  one  month.  In  this  act  and  the  amendments  thereto  very 
careful  provisions  are  made  for  the  protection  of  seamen  against  the 
frauds  and  cruelty  of  masters,  the  devices  of  boarding-house  keepers, 
and,  as  far  as  possible,  against  the  consequences  of  their  own  igno- 
rance and  improvidence.  At  the  same  time  discipline  is  more  strin- 
gently enforced  by  additional  punishments  for  desertion,  absence 
without  leave,  disobedience,  insubordination,  and  barratry.  Indeed, 
seamen  are  treated  by  congress,  as  well  as  by  the  parliament  of  Great 
Britain,  as  deficient  in  that  full  and  intelligent  responsibility  for  their 
acts  which  is  accredited  to  ordinary  adults,  and  as  needing  the  protec- 
tion of  the  law  in  the  same  sense  in  which  minors  and  wards  are  en- 
titled to  the  protection  of  their  parents  and  guardians.2  "Quemad- 
modum  pater  in  filios,  magister  in  discipulos,  dominus  in  servos  ve! 
familiares."  The  ancient  characterization  of  seamen  as  "wards  of 
admiralty"  is  even  more  accurate  now  than  it  was  formerly. 

In  the  face  of  this  legislation  upon  the  subject  of  desertion  and  ab- 
sence without  leave,  which  was  in  force  in  this  country  for  more 
than  60  years  before  the  thirteenth  amendment  was  adopted,  and 
similar  legislation  abroad  from  time  immemorial,  it  cannot  be  open 
to  doubt  that  the  provision  against  involuntary  servitude  was  never 
intended  to  apply  to  their  contracts. 

Judgment  affirmed.3 

[Harlan,  J.,  gave  a  dissenting  opinion.    Gray,  J.,  was  absent] 

»  See  Patterson  v.  The  Eudora.  190  U.  S.  1G0,  23  Sup.  Ct.  821,  47  L.  Ed.  1002 
(1903). 

The  compulsory  requirement  from  certain  persons  of  two  days'  labor, 
annually,  upon  the  public  highways,  has  been  held  not  to  violate  prohibitions 
against  involuntary  servitude.  In  re  Dossier.  :;."i  Kan.  678,  12  Pac  130  (1886)  ; 
Dennis  v.  Simon,  61  Ohio  St  233,  .'it;  N,  E.  832  (1894)i  "Such  labor  has  never 
been  regarded  or  construed  by  any  of  the  authorities  as  falling  within  the 
terms  of  the  Constitution  prohibiting  slavery  and  involuntary  servitude. 
•  *  •  There  are  certain  services  which  may  be  commanded  of  every  citi- 
zen in  bis  government,  and  obedience  enforced  thereto  Among  these  services 
are  labor  "ii  the  streets  or  highways  and  braining  In  the  militia."— Horton,  C. 
J.,  in  In  re  Dassler,  above  (35  Kan.  at  page  0S4,  12  1'ac.  at  page  134). 


158  FUNDAMENTAL    EIGHTH  (Part    2 


BAILEY  v.   ALABAMA. 

(Supreme  Court  of  United  States,  1911.     219  D.  S.  219,  31  Sup.  Ct  145,  55 
L.  Ed.  191.) 

[Error  to  the  Supreme  Court  of  Alabama,  which  had  affirmed  the 
conviction  of  Bailey  in  the  Montgomery  city  court  for  violation  of  sec- 
tion 4730,  Code  of  Alabama.    The  facts  appear  in  the  opinion.] 

Mr.  Justice  Hughes.  *  *  *  The  statute  in  question  is  section 
4730  of  the  Code  of  Alabama  of  1896,  as  amended  in  1903  and  1907 
(Laws  1907,  p.  636),    *    *    *     [which]  reads  as  follows:1    *    *    * 

There  is  also  a  rule  of  evidence  enforced  by  the  courts  of  Alabama 
which  must  be  regarded  as  having  the  same  effect  as  if  read  into  the 
statute  itself,  that  the  accused,  for  the  purpose  of  rebutting  the  stat- 
utory presumption,  shall  not  be  allowed  to  testify  "as  to  his  uncom- 
municated  motives,  purpose,  or  intention."  Bailey  v.  State,  161  Ala. 
77,  78,  49  South.  886.    *    *    * 

We  at  once  dismiss  from  consideration  the  fact  that  the  plaintiff  in 
error  is  a  black  man.  *  *  *  The  statute,  on  its  face,  makes  no 
racial  discrimination,  and  the  record  fails  to  show  its  existence  in 
fact.    *     *     * 

Prima  facie  evidence  is  sufficient  evidence  to  outweigh  the  presump- 
tion of  innocence,  and,  if  not  met  by  opposing  evidence,  to  support  a 
verdict  of  guilty.  "It  is  such  as,  in  judgment  of  law,  is  sufficient  to 
establish  the  fact ;  and,  if  not  rebutted,  remains  sufficient  for  the  pur- 
pose."   Kelly  v.  Jackson,  6  Pet.  632,  8  L.  Ed.  526.    *    *    * 

It  is  not  sufficient  to  declare  that  the  statute  does  not  make  it  the 
duty  of  the  jury  to  convict,  where  there  is  no  other  evidence  but  the 
breach  of  the  contract  and  the  failure  to  pay  the  debt.  The  point  is 
that,  in  such  a  case,  the  statute  authorizes  the  jury  to  convict.  It  is  not 
enough  to  say  that  the  jury  may  not  accept  that  evidence  as  alone  suffi- 
cient; for  the  jury  may  accept  it,  and  they  have  the  express  warrant 
of  the  statute  to  accept  it  as  a  basis  for  their  verdict.  And  it  is  in  this 
light  that  the  validity  of  the  statute  must  be  determined.    *    *    * 

While,  in  considering  the  natural  operation  and  effect  of  the  statute, 
as  amended,  we  are  not  limited  to  the  particular  facts  of  the  case  at  the 

i  "Any  person  who,  with  intent  to  injure  or  defraud  his  employer,  enters 
Into  a  contract  in  writing  for  the  performance  of  any  act  of  service,  and 
thereby  , obtains  money  or  other  personal  property  from  such  employer,  and 
with  like  intent,  and  without  just  cause,  and  without  refunding  such  money, 
or  paying  for  such  property,  refuses  or  fails  to  perform  such  act  or  service, 
must  on  conviction  be  punished  by  a  fine  in  double  the  damage  suffered  by 
the  injured  party,  but  not  more  than  $300,  one  half  of  said  fine  to  go  to  the 
county  and  one  half  to  the  party  injured;  *  •  •  and  the  refusal  or 
failure  of  any  person,  who  enters  into  such  contract,  to  perform  such  act  or 
service,  *  *  *  or  pay  for  such  property,  without  just  cause,  shall  be 
prima  facie  evidence  of  the  intent  to  injure  his  employer  or  landlord  or  de- 
fraud him." 


Ch.  5)  PERSONAL  AND   RELIGIOUS   LIBERT!  159 

bar,  they  present  an  illuminating  illustration.  We  may  briefly  restate 
them.  Bailey  made  a  contract  to  work  for  a  year  at  $12  a  month.  He 
received  $15,  and  he  was  to  work  this  out,  being  entitled  monthly  only 
to  $10.75  of  his  wages.  No  one  was  present  when  he  made  the  con- 
tract but  himself  and  the  manager  of  the  employing  company.  There 
is  not  a  particle  of  evidence  of  any  circumstance  indicating  that  he 
made  the  contract  or  received  the  money  with  any  intent  to  injure  or 
defraud  his  employer.  On  the  contrary,  he  actually  worked  for  up- 
wards of  a  month.  His  motive  in  leaving  does  not  appear,  the  only 
showing  being  that  it  was  without  legal  excuse  and  that  he  did  not 
repay  the  money  received.  For  this  he  is  sentenced  to  a  fine  of  $30  and 
to  imprisonment  at  hard  labor,  in  default  of  the  payment  of  the  line 
and  costs,  for  136  days.  Was  not  the  case  the  same  in  effect  as  if  the 
statute  had  made  it  a  criminal  act  to  leave  the  service  without  just 
cause  and  without  liquidating  the  debt?  To  say  that  he  has  been  found 
guilty  of  an  intent  to  injure  or  defraud  his  employer,  and  not  merely 
for  breaking  his  contract  and  not  paying  his  debt,  is  a  distinction  with- 
out a  difference  to  Bailey. 

Consider  the  situation  of  the  accused  under  this  statutory  presump- 
tion. If,  at  the  outset,  nothing  took  place  but  the  making  of  the  con- 
tract and  the  receipt  of  the  money,  he  could  show  nothing  else.  It 
there  was  no  legal  justification  for  his  leaving  his  employment,  he 
could  show  none.  If  he  had  not  paid  the  debt,  there  was  nothing  to  be 
said  as  to  that.  The  law  of  the  state  did  not  permit  him  to  testify  that 
he  did  not  intend  to  injure  or  defraud.  Unless  he  were  fortunate 
enough  to  be  able  to  command  evidence  of  circumstances  affirmatively 
showing  good  faith,  he  was  helpless.  He  stood,  stripped  by  the  stat- 
ute of  the  presumption  of  innocence,  and  exposed  to  conviction  for 
fraud  upon  evidence  only  of  breach  of  contract  and  failure  to 
pay.    *    *     * 

[After  referring  to  Toney  v.  State,  141  Ala.  120,  37  South.  332,  67  L. 
R.  A.  2S6,  109  Am.  St.  Rep.  23,  3  Ann.  Cas.  319:]  We  cannot  escape 
the  conclusion  that,  although  the  statute  in  terms  is  to  punish  fraud, 
still  its  natural  and  inevitable  effect  is  to  expose  to  conviction  for 
crime  those  who  simply  fail  or  refuse  to  perform  contracts  for  per- 
sonal service  in  liquidation  of  a  debt;  and  judging  its  purpose  by  its 
effect,  that  it  seeks  in  this  way  to  provide  the  means  of  compulsion 
through  which  performance  of  such  service  may  be  secured.  The 
question  is  whether  such  a  statute  is  constitutional. 

This  court  has  frequently  recognized  the  general  power  of  every 
legislature  to  prescribe  the  evidence  which  shall  be  received,  and  the 
effect  of  that  evidence,  in  the  courts  of  its  own  government.  Fong  Yin- 
Ting  v.  United  States,  149  U.  S.  698,  749,  13  Sup.  Ct.  1016,  37  L.  Ed. 
905,  925.  In  the  exercise  of  this  power  numerous  statutes  have  been 
enacted  providing  that  proof  of  one  fact  shall  be  prima  facie  evidence 
of  the  main  fact  in  issue;  and  where  the  inference  is  not  purely  arbi- 


HiO  FUNDAMENTAL    RIGHTS  (Part   2 

trary,  and  there  is  a  rational  relation  between  the  two  facts,  and  the 
accused  is  not  deprived  of  a  proper  opportunity  to  submit  all  the  facts 
bearing  upon  the  issue,  it  has  been  held  that  such  statutes  do  not  vio- 
late the  requirements  of  due  process  of  law.2     *    *    * 

In  this  class  of  cases  where  the  entire  subject-matter  of  the  legisla- 
tion is  otherwise  within  state  control,  the  question  has  been  whether 
the  prescribed  rule  of  evidence  interferes  with  the  guaranteed  equality 
before  the  law,  or  violates  those  fundamental  rights  and  immutable 
principles  of  justice  which  are  embraced  within  the  conception  of  due 
process  of  law.  But  where  the  conduct  or  fact,  the  existence  of  which 
is  made  the  basis  of  the  statutory  presumption,  itself  falls  within  the 
scope  of  a  provision  of  the  federal  Constitution,  a  further  question 
arises.  It  is  apparent  that  a  constitutional  prohibition  cannot  be 
transgressed  indirectly  by  the  creation  of  a  statutory  presumption  any 
more  than  it  can  be  violated  by  direct  enactment.  The  power  to  create 
presumptions  is  not  a  means  of  escape  from  constitutional  restrictions. 
And  the  state  may  not  in  this  way  interfere  with  matters  withdrawn 
from  its  authority  by  the  federal  Constitution,  or  subject  an  accused  to 
conviction  for  conduct  which  it  is  powerless  to  proscribe. 

In  the  present  case  it  is  urged  that  the  statute  as  amended,  through 
the  operation  of  the  presumption  for  which  it  provides,  violates  the 
thirteenth  amendment  of  the  Constitution  of  the  United  States  and  the 
act  of  Congress  passed  for  its  enforcement. 

The  thirteenth  amendment  provides : 

"Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their  juris- 
diction. 

"Section  2.  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation." 

Pursuant  to  the  authority  thus  conferred,  Congress  passed  the  act  of 
March  2,  1867  (14  Stat.  546,  c.  187),  the  provisions  of  which  are  now 
found  in  sections  1990  and  5526  of  the  Revised  Statutes  (U.  S.  Comp. 
Stat.  1901,  pp.  1266,  3715),  as  follows:8    *    *    * 

The  act  of  March  2,  1867  (Rev.  Stat.  §§  1990  and  5526,  supra),  was 

2  See  Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed,  post,  p.  381. 

s  "Sec.  1000.  The  holding  of  any  person  to  service  or  labor  under  the  system 
known  as  peonage  is  abolished  and  forever  prohibited  in  the  territory  of  New 
Mexico,  or  in  any  other  territory  or  state  of  the  United  States;  and  all  acts, 
laws,  resolutions,  orders,  regulations,  or  usages  of  the  territory  of  New  Mex- 
ico, or  of  any  other  territory  or  state,  which  have  heretofore  established, 
maintained,  or  enforced,  or  by  virtue  of  which  any  attempt  shall  hereafter 
be  made- to  establish,  maintain,  or  enforce,  directly  or  indirectly,  the  volun- 
tary or  involuntary  service  or  labor  of  any  persons  as  peons,  in  liquidation 
of  any  debt  or  obligation,  or  otherwise,  are  declared  null  and  void." 

"Sec.  5526.  Every  person  who  holds,  arrests,  returns,  or  causes  to  be  held, 
arrested,  or  returned,  or  in  any  manner  aids  in  the  arrest  or  return,  of  any 
person  to  a  condition  of  peonage,  shall  be  punished  by  a  fine  of  not  less  than 
one  thousand  nor  more  than  five  thousand  dollars,  or  by  imprisonment  not 
less  than  one  year  nor  more  than  five  years,  or  by  both." 


Ch.  5)  PERSONAL  AND   BELIGIOU8   LILEUTY  l'il 

a  valid  exercise  of  this  express  authority.    Clyatt  v.  United  States,  197 
U.  S.  207,  25  Sup.  Ct.  429,  49  L.  Ed.  726.    *    *    * 

The  fact  that  the  debtor  contracted  to  perform  the  labor  which  is 
sought  to  be  compelled  does  not  withdraw  the  attempted  enforcement 
from  the  condemnation  of  the  statute.  The  full  intent  of  the  consti- 
tutional provision  could  be  defeated  with  obvious  facility  if,  through 
the  l^ u i s e  of  contracts  under  which  advances  had  been  made,  debtors 
could  be  held  to  compulsory  service.  It  is  the  compulsion  of  the  serv- 
ice that  the  statute  inhibits,  for  when  that  occurs,  the  condition  of 
servitude  is  created,  which  would  be  not  less  involuntary  because  of 
the  original  agreement  to  work  out  the  indebtedness.  The  contract 
exposes  the  debtor  to  liability  for  the  loss  due  to  the  breach,  but  not 
to  enforced  labor.  This  has  been  so  clearly  stated  by  this  court  in  the 
Case  of  Clyatt,  supra,  that  discussion  is  unnecessary.  The  court  there 
said:  "The  constitutionality  and  scope  of  sections  1990  and  5526 
present  the  first  questions  for  our  consideration.  They  prohibit  peon- 
age. What  is  peonage?  It  may  be  defined  as  a  status  or  condition  of 
compulsory  service,  based  upon  the  indebtedness  of  the  peon  to  the 
master.  The  basal  fact  is  indebtedness.4  *  *  *  Peonage  is  some- 
times classified  as  voluntary  or  involuntary,  but  this  implies  simply  a 
difference  in  the  mode  of  origin,  but  none  in  the  character  of  the  servi- 
tude. The  one  exists  where  the  debtor  voluntarily  contracts  to  enter 
the  service  of  his  creditor.  The  other  is  forced  upon  the  debtor  by 
some  provision  of  law.  But  peonage,  however  created,  is  compulsory 
service,  involuntary  servitude.  The  peon  can  release  himself  there- 
from, it  is  true,  by  the  payment  of  the  debt,  but  otherwise  the  service 
is  enforced.  A  clear  distinction  exists  between  peonage  and  the  vol- 
untary performance  of  labor  or  rendering  of  services  in  payment  of 
a  debt.  In  the  latter  case  the  debtor,  though  contracting  to  pay  his  in- 
debtedness by  labor  or  service,  and  subject  like  any  other  contractor 
to  an  action  for  damages  for  breach  of  that  contract,  can  elect  at  any 
time  to  break  it,  and  no  law  or  force  compels  performance  or  a  con- 
tinuance of  the  service.  We  need  not  stop  to  consider  any  possible 
limits  or  exceptional  cases,  such  as  the  service  of  a  sailor  (Robertson 
v.  Baldwin,  165  U.  S.  275,  17  Sup.  Ct.  326,  41  L.  Ed.  715),  or  the 
obligations  of  a  child  to  its  parents,  or  of  an  apprentice  to  his  master, 
or  the  power  of  the  legislature  to  make  unlawful  and  punish  criminally 
an  abandonment  by  an  employee  of  his  post  of  labor  in  any  extreme 
cases."  That  which  is  contemplated  by  the  statute  is  compulsory  serv- 
ice to  secure  the  payment  of  a  debt."  197  U.  S.  215,  216,  25  Sup.  Ct. 
4,50,  49  L.  Ed.  726. 

*  The  legal  status  of  peonage  before  the  thirteenth  amendment  Is  di 
In  Jaxemlllo  v.  Romero,  1  N.  M.  100  (1857). 

"  See  Arthur  v.  Oakes,  63  led.  310,  317,  11  0.  C.  A.  U09,  ^o  L.  U.  .\  -ill 
(1S94). 

Hall  Const.L. — 11 


1U2  FUNDAMENTAL    BIGHTS  (Part    2 

The  act  of  Congress,  nullifying  all  state  laws  by  which  it  should  be 
attempted  to  enforce  the  "service  or  labor  of  any  persons  as  peons 
in  liquidation  of  any  debt  or  obligation,  or  otherwise," -necessarily 
embraces  all  legislation  which  seeks  to  compel  the  service  or  labor  by 
making  it  a  crime  to  refuse  or  fail  to  perform  it.  Such  laws  would 
furnish  the  readiest  means  of  compulsion.  The  thirteenth  amendment 
prohibits  involuntary  servitude  except  as  punishment  for  crime.  But 
the  exception,  allowing  full  latitude  for  the  enforcement  of  penal  laws, 
does  not  destroy  the  prohibition.  It  does  not  permit  slavery  or  invol- 
untary servitude  to  be  established  or  maintained  through  the  operation 
of  the  criminal  law  by  making  it  a  crime  to  refuse  to  submit  to  the 
one  or  to  render  the  service  which  would  constitute  the  other.  The 
state  may  impose  involuntary  servitude  as  a  punishment  for  crime,  but 
it  may  not  compel  one  man  to  labor  for  another  in  payment  of  a  debt, 
by  punishing  him  as  a  criminal  if  he  does  not  perform  the  service  or 
pay  the  debt.6 

If  the  statute  in  this  case  had  authorized  the  employing  company  to 
seize  the  debtor,  and  hold  him  to  the  service  until  he  paid  the  $15,  or 
had  furnished  the  equivalent  in  labor,  its  invalidity  would  not  be  ques- 
tioned. It  would  be  equally  clear  that  the  state  could  not  authorize  its 
constabulary  to  prevent  the  servant  from  escaping,  and  to  force  him  to 
work  out  his  debt.  But  the  state  could  not  avail  itself  of  the  sanction 
of  the  criminal  law  to  supply  the  compulsion  any  more  than  it  could 
use  or  authorize  the  use  of  physical  force.  "In  contemplation  of  the 
law,  the  compulsion  to  such  service  by  the  fear  of  punishment  under 
a  criminal  statute  is  more  powerful  than  any  guard  which  the  employ- 
er could  station."  Ex  parte  Hollman,  79  S.  C.  22,  60  S.  E.  24,  21  L. 
R.  A.  (N.  S.)  249,  14  Ann.  Cas.  1109. 

What  the  state  may  not  do  directly  it  may  not  do  indirectly.  If  it 
cannot  punish  the  servant  as  a  criminal  for  the  mere  failure  or  refusal 
to  serve  without  paying  his  debt,  it  is  not  permitted  to  accomplish  the 
same  result  by  creating  a  statutory  presumption  which,  upon  proof  of 
no  other  fact,  exposes  him  to  conviction  and  punishment.  *  *  * 
There  is  no  more  important  concern  than  to  safeguard  the  freedom  of 
labor  upon  which  alone  can  enduring  prosperity  be  based.  *  *  * 
The  act  of  Congress  deprives  of  effect  all  legislative  measures  of  any 
state  through  which,  directly  or  indirectly,  the  prohibited  thing,  to  wit, 
compulsory  service  to  secure  the  payment  of  a  debt,  may  be  established 
or  maintained;  and  we  conclude  that  section  4730,  as  amended,  of  the 
Code  of  Alabama,  in  so  far  as  it  makes  the  refusal  or  failure  to  per- 
form the  act  or  service,  without  refunding  the  money  or  paying  for  the 

•  Accord:  Ex  parte  Drayton  (D.  C.)  153  Fed.  9S6  (1907) ;  Ex  parte  Holl- 
man, T9  S.  C.  9,  60  S.  E.  19  (190S),  annotated  21  L.  R.  A.  (N.  S.)  242  ff.,  14 
Ann.  Cas.  1105.  See,  also,  United  States  v.  Clement  (D.  C.)  171  Fed.  974 
11909).  In  Ex  parte  Hollman,  Woods,  J.,  said  (79  S.  C.  26,  60  S.  E.  26,  21  L. 
R.  A.  [N.  S.]  242,  14  Ann.  Cas.  1105) :  "Even  if  prosperity  is  not  always  pro- 
moted by  constitutional  guarantees,  liberty  is  better  than  prosperity." 


Ch.  L»j  PEKSOXAL  AND   OBLIQIOUS   LIISKKTV  163 

property  received,  prima  facie  evidence  of  the  commission  of  the  crime 
which  the  section  defines,  is  in  conflict  with  the  thirteenth  amendment, 
and  the  legislation  authorized  by  that  amendment,  and  is  therefore 
invalid.    *    *    * 

Judgment  reversed.7 

[Holmes,  J.,  gave  a  dissenting  opinion,  in  which  Lurtox,  J.,  con- 
curred, on  the  ground  that  the  thirteenth  amendment  did  not  forbid  a 
state  to  make  breach  of  contract  a  crime  with  the  usual  penal  conse- 
quences. "Compulsory  work  for  no  private  master  in  a  jail  is  not 
peonage"  (219  U.  S.  247,  31  Sup.  Ct.  153,  55  L,  Ed.  191).] 

7  As  to  the  effect  of  the  thirteenth  Sjrnendment  upon  the  power  of  courts  of 
equity  to  decree  performance  of  contr  -ervice.  or  to  enjoin 

-Hikes,  Bee  Arthur  v.  Oates,  63  Fed  310  (1894);  In  re  Lennon,  L66  r.  s.  548, 
17  Sup.  Ct.  C58,  41  U  Ed.  1110  (1S97). 

As  to  the  extent  of  a  state's  power  to  compel  and  to  hire  out  the  labor  of 

ivlctB,  see  27  L.  R.  A.  593  ft.,  note;    In  re  Thompson,  117  Mo.  83,  22  S.  W. 

363,  20  L.  K.  A.  462,  38  Am.  St.  Rep.  639  (1893). 

Imprisonment  for  Debt. — Most  of  our  state  Constitutions  now  forbid  im- 
prisonment for  debt,  unless  fraudulently  incurred.  Stimson,  Fed.  and  State 
Consts.  §  SO.  For  the  general  scope  of  these  provisions,  see  the  authorities 
in  34  L.   K.  A.  634  ff.:    IT  I..  B.  A.  (N.  8.)  11  I"  ff.;    21    I,.   K.  A.  (N.  8.)  259  ff. 

Religious  Liberty. — See  Const.  Amend.  I.  Similar  clauses  are  found  in  the 
state  Constitutions.  For  their  general  scope  and  interpretation,  see  Reynolds 
v.  United  States,  OR  D.  S.  145,  163  167,  25  I..  Ed.  244  (1879)  (religions  belief 
as  excusing  polygamy);  Davis  v.  Reason,  183  TT.  S.  333,  10  Sup.  Ct.  800,  88 
L.  Ed.  637  (1890)  (same);  People  v.  Pierson,  176  N.  Y.  201,  68  N.  E.  243,  63 
L.  R.  A.  187,  9S  Am.  St.  Rep.  666  (1903)  (same,  failure  to  call  physician  tol 
minor);  Sweeney  v.  Webb,  33  Tex.  Civ.  App,  324,  78  S.  \V.  7GG  (190.Lt.  affirmed 
in  07  Tex.  250,  77  S.  W.  1135  (same,  use  of  sacramental  wine) ;  Lindenmuller 
v  People,  33  Barb.  (N.  T.)  548  (1SG1),  affirmed  in  Neuendorf  v.  Duryea,  <">9 
X.  V.  557,  25  Am.  Rep.  235  (1S77)  (Sunday  laws)  ;  State  v.  Powell,  58  Ohio 
St  324,  50  N.  E.  900,  41  L.  R.  A.  854  (1898)  (same) ;  rfeiffer  v.  Board  of  Edu- 
catlon  <>f  Detroit,  118  Mich.  5C0,  77  N.  W.  250.  42  L.  R.  A.  536  (1898)  (de- 
votional exercises  and  Bible  reading  in  schools) ;  State  ex  rel.  Freeman  v. 
Scheve,  65  Neb.  853,  91  N.  W.  846,  93  N.  W.  1C9,  59  L.  R.  A.  927  (1902)  (same) ; 
People  ex  rel.  v.  Board  of  Education  ..f  Hist.  24,  245  111.  334,  92  N.  E.  251, 
29  U  R.  A.  (N.  S.)  442,  19  Ann.  Cas.  220  (1910)  (same). 


164  FUNDAMENTAL    EIGHTS  (Part   2 

CHAPTER  VI 
PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME 


SECTION  1.— EX  POST  FACTO  LAWS— BILLS  OF  AT- 
TAINDER 


CALDER  v.  BULL. 

(Supreme  Court  of  United  States,  1798.     3  Dall.  3S6,  1  h.  Ed.   648.) 

[Error  to  the  Supreme  Court  of  Connecticut.  In  March,  1793, 
the  probate  court  for  Hartford  disapproved  the  will  of  Normand 
Morrison,  under  which  Bull  claimed,  the  result  being  that  a  right  to 
recover  certain  property  vested  in  Calder  and  his  wife  as  heir  of  said 
Morrison.  More  than  eighteen  months  later,  after  Bull's  right  of 
appeal  had  been  barred  by  statute,  the  legislature  in  May,  1795, 
passed  an  act  setting  aside  the  decree  of  the  probate  court  and  grant- 
ing Bull  a  new  trial.  On  this  trial  the  will  was  approved  and  Bull's 
claim  was  upheld,  which  was  later  affirmed  by  the  state  Supreme 
Court] 

Mr.  Justice  Chase.  *  *  *  The  sole  inquiry  is,  whether  this 
resolution  or  law  of  Connecticut,  having  such  operation,  is  an  ex 
post  facto  law  within  the  prohibition  of  the  federal  Constitu- 
tion?    *     *     * 

All  the  restrictions  contained  in  the  Constitution  of  the  United 
States,  on  the  power  of  the  state  legislatures,  were  provided  in  favor 
of  the  authority  of  the  federal  government.  The  prohibition  against 
their  making  any  ex  post  facto  laws  was  introduced  for  greater  cau- 
tion, and  very  probably  arose  from  the*  knowledge  that  the  Parlia- 
ment of  Great  Britain  claimed  and  exercised  a  power  to  pass  such 
laws,  under  the  denomination  of  bills  of  attainder,  or  bills  of  pains 
and  penalties ;  the  first  inflicting  capital,  and  the  other  less  punish- 
ment. These  acts  were  legislative  judgments;  and  an  exercise  of 
judicial  power.  Sometimes  they  respected  the  crime,  by  declaring 
acts  to  be  treason  which  were  not  treason  when  committed ; *  at  other 
times  they  violated  the  rules  of  evidence,  to  supply  a  deficiency  of 
legal  proof,  by  admitting  one  witness,  when  the  existing  law  required 
two;  by  receiving  evidence  without  oath;  or  the  oath  of  the  wife 
against  the  husband;    or  other  testimony  which  the  courts  of  justice 

i  The  case  of  the  Earl  of  Strafford,  in  1640.— Hep. 


Ch.  6)  PROTECTION  TO   PBB80N8   4.CO0BHD   OF  CRIME  165 

would  not  admit;2  at  other  times  they  inflicted  punishments  where 
the  party  was  not  by  law  liable  to  any  punishment;8  and  in  other 
cases  they  inflicted  greater  punishment  than  the  law  annexed  to  the 
offence.4  The  ground  for  the  exercise  of  such  legislative  power  was 
this,  that  the  safety  of  the  kingdom  depended  on  the  death,  or  other 
punishment,  of  the  offender;  as  if  traitors,  when  discovered,  could 
be  so  formidable,  or  the  government  so  insecure.  With  very  few 
exceptions,  the  advocates  of  such  laws  were  stimulated  by  ambition, 
or  personal  resentment  and  vindictive  malice.  To  prevent  such,  and 
similar  acts  of  violence  and  injustice,  I  believe  the  federal  and  state 
legislatures  were  prohibited  from  passing  any  bill  of  attainder,  or 
any  ex  post  facto  law. 

The  Constitution  of  the  United  States,  art.  1,  §  9,  prohibits  the 
legislature  of  the  United  States  from  passing  any  ex  post  facto  law ; 
and  in  section  10  lays  several  restrictions  on  the  authority  of  the  leg- 
islatures of  the  several  states;  and  among  them,  "that  no  state  shall 
pass  any  ex  post  facto  law." 

It  may  be  remembered  that  the  legislatures  of  several  of  the  states, 
to  wit,  Massachusetts,  Pennsylvania,  Delaware,  Maryland,  and  North 
and  South  Carolina,  are  expressly  prohibited,  by  their  state  Con- 
stitutions, from  passing  any  ex  post  facto  law. 

1  shall  endeavor  to  show  what  law  is  to  be  considered  an  ex  post 
facto  law,  within  the  words  and  meaning  of  the  prohibition  in  the  fed- 
eral Constitution.  The  prohibition,  "that  no  state  shall  pass  any  ex  post 
facto  law,"  necessarily  requires  some  explanation;  for  naked  and 
without  explanation  it  is  unintelligible,  and  means  nothing.  Literally 
it  is  only  that  a  law  shall  not  be  passed  concerning,  and  after  the  fact, 
or  thing  done,  or  action  committed.  I  would  ask,  what  fact;  of  what 
nature  or  kind;  and  by  whom  done?  That  Charles  I,  King  of  Eng- 
land, was  beheaded ;  that  Oliver  Cromwell  was  Protector  of  Eng- 
land; that  Louis  XVI,  late  King  of  France,  was  guillotined. — are 
all  facts  that  have  happened,  but  it  would  lie  nonsense  to  suppose  that 
the  states  were  prohibited  from  making  any  law  after  either  of  these 
events,  and  with  reference  thereto.  The  prohibition  in  the  letter  is 
not  to  pass  any  law  concerning  and  after  the  fact,  but  the  plain  and 
obvious  meaning  and  intention  of  the  prohibition  is  this,  that  the  leg- 
islatures of  the  several  states  shall  not  pass  laws  after  a  fact  done 
by  a  subject,  or  citizen,  which  shall  have  relation  to  such  fact,  and 
shall  punish  him  for  having  done  it.  The  prohibition,  considered  in 
this  light,  is  an  additional  bulwark  in  favor  of  the  personal  security 
of  the  subject,  to  protect  his  person  from  punishment  by  legislative 
acts,  having  a  retrospective  operation.  I  do  not  think  it  was  inserted 
to  secure  the  citizen  in  his  private  rights,  of  either  property  or  con- 

2  The  case  of  Sir  John  Fenwiek,  iu  1696.— 'Rep. 

»  The  banishment  of  Lord  Clari  C8  Car.  II,  c.  10,  and  of  Blshoji 

Atterbury,  In  1723,  9  Geo.  I,  c.  17.— Hep. 

«The  Coventry  Act,  In  1070,  23  &  23  Cur.  II,  a  1.— Hep. 


166  FUNDAMENTAL    RIGHTS  (Part    2 

tracts.  The  prohibitions  not  to  make  anything  but  gold  and  silver  coin 
a  tender  in  payment  of  debts,  and  not  to  pass  any  law  impairing  the 
obligation  of  contracts,  were  inserted  to  secure  private  rights ;  but 
the  restriction  not  to  pass  any  ex  post  facto  law,  was  to  secure  the 
person  of  the  subject  from  injury  or  punishment,  in  consequence  of 
such  law.  If  the  prohibition  against  making  ex  post  facto  laws  was 
intended  to  secure  personal  rights  from  being  affected  or  injured  by 
such  laws,  and  the  prohibition  is  sufficiently  extensive  for  that  ob- 
ject, the  other  restraints  I  have  enumerated  were  unnecessary,  and 
therefore  improper,  for  both  of  them  are  retrospective. 

I  will  state  what  laws  I  consider  ex  post  facto  laws,  within  the 
words  and  the  intent  of  the  prohibition.  1st.  Every  law  that  makes 
an  action  done  before  the  passing  of  the  law,  and  which  was  inno- 
cent when  done,  criminal;  and  punishes  such  action.  2d.  Every 
law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was,  when 
committed.  3d.  Every  law  that  changes  the  punishment,  and  inflicts 
a  greater  punishment  than  the  law  annexed  to  the  crime,  when  com- 
mitted. 4th.  Every  law  that  alters  the  legal  rules  of  evidence,  and 
receives  less  or  different  testimony  than  the  law  required  at  the  time 
of  the  commission  of  the  offence,  in  order  to  convict  the  offender. 
All  these  and  similar  laws  are  manifestly  unjust  and  oppressive.  In 
my  opinion,  the  true  distinction  is  between  ex  post  facto  laws  and 
retrospective  laws.  Every  ex  post  facto  law  must  necessarily  be  re- 
trospective, but  every  retrospective  law  is  not  an  ex  post  facto  law ; 
the  former  only  are  prohibited.  Every  law  that  takes  away  or  im- 
pairs rights  vested,  agreeable  to  existing  laws,  is  retrospective,  and 
is  generally  unjust,  and  may  be  oppressive;  and  it  is  a  good  general 
rule  that  a  law  should  have  no  retrospect ;  but  there  are  cases  in 
which  laws  may  justly,  and  for  the  benefit  of  the  community,  and 
also  of  individuals,  relate  to  a  time  antecedent  to  their  commence- 
ment; as  statutes  of  oblivion,  or  of  pardon.  They  are  certainly  re- 
trospective, and  literally  both  concerning,  and  after,  the  facts  com- 
mitted. But  I  do  not  consider  any  law  ex  post  facto,  within  the  pro- 
hibition, that  mollifies  the  rigor  of  the  criminal  law ;  but  only  those 
that  create,  or  aggravate,  the  crime ;  or  increase  the  punishment,  or 
change  the  rules  of  evidence,  for  the  purpose  of  conviction.  Every 
law  that  is  to  have  an  operation  before  the  making  thereof,  as  to  com- 
mence at  an  antecedent  time,  or  to  save  time  from  the  statute  of  lim- 
itations, or  to  excuse  acts  which  were  unlawful,  and  before  commit- 
ted, and  the  like,  is  retrospective.  But  such  laws  may  be  proper  or 
necessary,  as  the  case  may  be.  There  is  a  great  and  apparent  dif- 
ference between  making  an  unlawful  act  lawful,  and  the  making  an 
innocent  action  criminal,  and  punishing  it  as  a  crime.  The  expres- 
sions "ex  post  facto  laws"  are  technical;  they  had  been  in  use  long 
before  the  Revolution,  and  had  acquired  an  appropriate  meaning  by 
legislators,  lawyers,  and  authors.  The.  celebrated  and  judicious  Sir 
William  Blackstone,  in  his  Commentaries,  considers  an  ex  post  facto 


Ch.  6)  PROTECTION  TO  PBB80N8  ACCD8BD  09  CBIMB  ISTi 

iaw  precisely  in  the  same  light  as  I  have  done.  His  opinion  is  con- 
firmed by  his  successor,  Mr.  Wooddeson,  and  by  the  author  of  the 
Federalist,  whom  I  esteem  superior  to  both,  for  his  extensive  and 
accurate  knowledge  of  the  true  principles  of  government. 

I  also  rely  greatly  on  the  definition,  or  explanation  of  ex  post  facto 
laws  as  given  by  the  conventions  of  Massachusetts,  Maryland,  and 
North  Carolina,  in  their  several  Constitutions,  or  forms  of  govern- 
ment. *  *  *  [Here  follow  quotations  from  these  Constitutions, 
expressly  forbidding  retrospective  criminal  laws.] 

I  am  of  opinion,  that  the  fact,  contemplated  by  the  prohibition,  and 
not  to  be  affected  by  a  subsequent  law,  was  some  fact  to  be  done  by 
a  citizen  or  subject.  In  2  Lord  Raymond,  1352,  Raymond,  J.,  called 
the  Stat.  7  Geo.  I,  stat.  2,  pt.  8,  about  registering  contracts  for  South 
Sea  stock,  an  ex  post  facto  law ;  because  it  affected  contracts  made 
before  the  statute.  *  *  *  There  is  no  doubt  that  a  man  may  be 
a  trespasser  from  the  beginning,  by  matter  of  after  fact;  as  where 
an  entry  is  given  by  law,  and  the  party  abuses  it;  or  where  the  law 
gives  a  distress,  and  the  party  kills,  or  works  the  distress.  I  admit, 
an  act  unlawful  in  the  beginning  may,  in  some  cases,  become  lawful 
by  matter  of  after  fact.  *  *  *  There  appears  to  me  a  manifest 
distinction  between  the  case  where  one  fact  relates  to,  and  affects 
another  fact,  as  where  an  after  fact,  by  operation  of  law,  makes  a 
former  fact  either  lawful  or  unlawful;  and  the  case  where  a  law 
made  after  a  fact  done,  is  to  operate  on,  and  to  affect  such  fact.  In 
the  first  case  both  the  acts  are  done  by  private  persons.  In  the  sec- 
ond case  the  first  act  is  done  by  a  private  person,  and  the  second  act 
is  done  by  the  legislature  to  affect  the  first  act.  I  believe  that  but  one 
instance  can  be  found  in  which -a  British  judge  called  a  statute  that 
affected  contracts  made  before  the  statute,  an  ex  post  facto  law ;  but 
the  judges  of  Great  Britain  always  considered  penal  statutes,  that 
created  crimes,  or  increased  the  punishment  of  them,  as  ex  post  facto 
laws. 

If  the  term  ex  post  facto  law  is  to  be  construed  to  include  and  to 
prohibit  the  enacting  any  law  after  a  fact,  it  will  greatly  restrict  the 
power  of  the  federal  and  state  legislatures;  and  the  consequences  of 
such  a  construction  may  not  be  foreseen.  If  the  prohibition  to  make 
no  ex  post  facto  law  extends  to  all  laws  made  after  the  fact,  the  two 
prohibitions,  not  to  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts,  and  not  to  pass  any  law  impairing  the  obligation 
of  contracts,  were  improper  and  unnecessary. 

It  was  further  urged,  that  if  the  provision  does  not  extend  to  pro 
hibit  the  making  any  law  after  a  fact,  then  all  choses  in  action,  all 
lands  by  devise,  all  personal  property  by  bequest  or  distribution,  by 
elegit,  by  execution,  by  judgments,  particularly  on  torts,  will  be  un- 
protected from  the  legislative  power  of  the  states ;  rights  vested  may 
be  divested  at  the  will  and  pleasure  of  the  state  legislatures;  and. 
therefore,  that  the  true  construction  and  meaning  of  the  prohibition 


108  FUNDAMENTAL    RIGHTS  (Part   2 

is,  that  the  states  pass  no  law  to  deprive  a  citizen  of  any  right  vested 
in  him  by  existing  laws.  It  is  not  to  be  presumed  that  the  federal  or 
state  legislatures  will  pass  laws  to  deprive  citizens  of  rights  vested  in 
them  by  existing  laws ;  unless  for  the  benefit  of  the  whole  com- 
munity; and  on  making  full  satisfaction.  The  restraint  against  mak- 
ing any  ex  post  facto  laws  was  not  considered,  by  the  framers  of  the 
Constitution,  as  extending  to  prohibit  the  depriving  a  citizen  even  of 
a  vested  right  to  property;  or  the  provision,  "that  private  property 
should  not  be  taken  for  public  use,  without  just  compensation,"  was 
unnecessary.     *     *     * 

Decree  affirmed.0 

[The  concurring  opinions  of  Paterson,  Iredell,  and  Cushing,  JJ., 
are  omitted.] 


SHEPHERD  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1862.    25  N.  Y.  40G.) 

[Writ  of  error  to  the  Supreme  Court  of  New  York.  Shepherd  was 
indicted  in  the  Court  of  General  Sessions  in  October,  1857,  for  arson 
in  the  first  degree,  committed  in  June,  1857,  and  was  found  guilty  in 
February,  1861.  When  the  crime  was  committed  its  punishment  was 
death.    In  April,  1860,  it  was  changed  to  imprisonment  for  life  at  hard 

o  The  meaning  given  by  this  case  to  the  words  "ex  post  facto"  was  the  one 
intended  by  the  Philadelphia  Convention  and  understood  by  the  state  conven- 
tions that  adopted  the  Constitution.  See  5  Ell.  Debates,  488 ;  Federalist,  (No. 
84— Ford's  Ed.)  571 ;   Id.,  appendix,  641. 

Bills  of  Attainder. — These  are  also  prohibited  by  Const,  art.  I,  §  9,  par.  3. 
They  are  judicially  discussed  in  Cuiuminss  v.  Missouri,  4  Wall.  277,  323-325, 
18  L.  Ed.  356  (1867),  Field,  J.,  saying:  "A  bill  of  attainder  is  a  legislative  act 
which  inflicts  punishment  without  a  judicial  trial.  If  the  punishment  be 
less  than  death,  the  act  is  termed  a  bill  of  pains  and  penalties.  Within  the 
meaning  of  the  Constitution,  bills  of  attainder  include  bills  of  pains  and 
penalties.  In  these  eases  the  legislative  body,  in  addition  to  its  legitimate 
functions,  exercises  the  powers  and  office  of  judge ;  it  assumes,  in  the  lan- 
guage of  the  text-books,  judicial  magistracy  ;  it  pronounces  upon  the  guilt  of 
the  party,  without  any  of  the  forms  or  safeguards  of  trial ;  it  determines 
the  sufficiency  of  the  proofs  produced,  whether  conformable  to  the  rules  of 
evidence  or  otherwise;  and  it  fixes  the  degree  of  punishment  in  accordance 
with  its  own  notions  of  the  enormity  of  the  offence." 

See,  also,  Pierce  v.  Carskadon,  16  Wall.  234,  21  L.  Ed.  276  (1873). 

As  to  the  validity  of  the  federal  Confiscation  Acts  during  the  Civil  War,  see 
Const,  art.  Ill,  §  3,  par.  2;  Bigelow  v.  Forrest.  9  Wall.  339,  19  L.  Ed.  696 
(1870) ;    Miller  v.  United  States,  11  Wall.  268,  20  L.  Ed.  135  (1871). 

Ex  Post  Facto  Decisions  o*'  Couuts. — The  constitutional  prohibition 
applies  only  to  legislative  acts  of  the  states  or  United  States,  not  to  changes 
of  decision  by  courts  in  criminal  cases  with  a  retroactive  effect     Ross  v. 

Oregon,  227  U.  S.  150,  161  ff.,  33  Sup.  Ct.  220,  57  L.  Ed. (1913).     See  State 

v.  O'Neil,  147  Iowa,  513,  126  N.  W.  454,  Ann.  Cas.  1912B,  691  (1910),  annotated 
In  33  L.  R.  A.  (N.  S.)  7S8  ff. 

Compare  the  doctrine  in  similar  cases  arising  under  the  contract  clause  of 
the  Constitution,  post,  p.  791. 


Ch.  6)  PROTECTION   TO   PERSONS  ACCUSICD   OF  CRIME  MS 

labor.     Shepherd  was  sentenced  to  the  latter  punishment,  and  this  was 
affirmed  by  the  state  Supreme  Court.] 

Sutherland,  J.  When  the  crime  of  which  the  prisoner  was  con- 
victed was  committed  it  was  punishable  with  death.  The  prisoner  was 
ientenced  to  imprisonment  in  the  state  prison  at  Sing  Sing  fur  life. 
The  prisoner  must  have  been   senten  the  theory  that  the  pro- 

visions of  the  Act  of  April  14,   1860,  substituting  imprisonment   for 
life,  for  death,  as  the  punishment  for  arson  in  the  first  d< 
intended   to  apply   not  only  to  an   offence  committed   after   that   act 
took  effect,  but  also  to  the  offence  of  which  the  prisoner  had  been  con- 
victed, committed  in  1857,  before  the  passage  of  the  act.    *    *     * 

If,  however,  the  provisions  of  the  act.  changing  the  punishment  of 
arson  in  the  first  degree,  should  be  held  to  have  been  intended  to  apply 
to  offences  committed  before  the  passage  of  the  act,  in  my  opinion  so 
far  the  act  should  be  held  to  be  ex  post  facto  and  void.1 

I  think  this  is  shown  conclusively  by  Judge  Denio  in  his  opinion  in 
the  Ilartung  Case  ;2  but  I  will  add  that  a  law  which  increased  the  pun- 
ishment with  which  an  act-was  punishable  when  committed  would  be 
plainly  ex  post  facto,  although  it  might  be  said,  perhaps,  that  the  new 
law  did  not  change  the  manner  of  the  punishment;  as,  for  instance. 
if,  when  the  act  was  committed,  it  was  punishable  with  thirty  days' 
imprisonment  and  the  new  law  declared  that  it  should  be  punished 
with  forty  days'  imprisonment;  for  as  to  the  number  of  days'  imprison- 
ment by  which  the  punishment  was  increased,  the  case  would  be  pre- 
cisely the  same  as  if  the  act  when  committed  had  not  been  punishable 
at  all,  and  under  the  new  law  the  criminal  could  not  be  sentenced  to 
any  less  number  of  days  than  were  prescribed  by  it. 

So  also  if  an  act.  when  committed,  was  punishable  by  thirty  days' 
imprisonment,  a  subsequent  law  changing  the  punishment  of  the  act  to 
thirty  stripes  or  to  thirty  dollars  fine  would  be  plainly  ex  post  facto, 
for  when  the  act  was  committed  it  was  not  punishable  in  that  manner, 
and  in  view  of  the  constitutional  prohibition  of  ex  post  facto  laws,  the 
case  would  be  precisely  the  same  as  if  the  act  had  not  been  punishable 
at  all  when  committed.  If  you  do  not  hold  a  law  punishing  an  act  in 
a  different  manner  than  it  was  punishable  when  committed  to  be  ex  post 
facto,  irrespective  of  the  question  whether  the  new  punishment  is  or  is 
not  more  merciful  or  lenient,  you  will  leave  it  to  the  discretion  of  the 
legislature  and  of  judges  to  say  whether  the  new  punishment  is  or  is 

1  As  to  whether  on  ex  post  facto  lai  i    so  that  it  does  no( 

he  prior  law,   under  whli  b  pri  Ull  be  pun 

whether  it  merely  releases  former  criminals  from  punishment,  being  effectual 
as  to  future  crimes,  Bee  Flahertj    r.    L'homas,   12  Alien  (8 
(1866)  ;    People  v.   McNulty,  93  Cal.  427.  -JTO,  20  Tac.  597,  '29  Pae.  61 

-  Hartung  v.  People,  22  N.  Y.  9  Idlng  a  Jaw  ex  post  facto 

substituted,  for  execution  within  four  to  eight  weeks  after  sentence  for  min- 
der, a  .year's  imprisonment  at  hard  labor  and  execution  thereafter  at  the 
pleasure  of  the  governor. 


1C8 


FUNDAMENTAL    RIGHTS 


(Part 


is,  that  the  states  pass  no  law  to  deprive  a  citizen  of  any  right  vested 
in  him  by  existing  laws.  It  is  not  to  be  presumed  that  the  federal  or 
state  legislatures  will  pass  laws  to  deprive  citizens  of  rights  vested  in 
them  by  existing  laws ;  unless  for  the  benefit  of  the  whole  com- 
munity; and  on  making  full  satisfaction.  The  restraint  against  mak- 
ing any  ex  post  facto  laws  was  not  considered,  by  the  framers  of  the 
Constitution,  as  extending  to  prohibit  the  depriving  a  citizen  even  of 
a  vested  right  to  property;  or  the  provision,  "that  private  property 
should  not  be  taken  for  public  use,  without  just  compensation,"  was 
unnecessary.     *     *     * 

Decree  affirmed.5 

[The  concurring  opinions  of  Paterson,  Iredell,  and  Cushing,  JJ., 
are  omitted.] 


SHEPHERD  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1802.    25  N.  T.  400.) 

[Writ  of  error  to  the  Supreme  Court  of  New  York.  Shepherd  was 
indicted  in  the  Court  of  General  Sessions  in  October,  1857,  for  arson 
in  the  first  degree,  committed  in  June,  1857,  and  was  found  guilty  in 
February,  1861.  When  the  crime  was  committed  its  punishment  was 
death.    In  April,  1860,  it  was  changed  to  imprisonment  for  life  at  hard 


&  The  meaning  given  by  this  case  to  the  words  "ex  post  facto"  was  the  one 
Intended  by  the  Philadelphia  Convention  and  understood  by  the  state  conven- 
tions that  adopted  the  Constitution.  See  5  Ell.  Debates,  4SS;  Federalist,  (No. 
84— Ford's  Ed.)  571 ;   Id.,  appendix,  641. 

Bills  of  Attainder. — These  are  also  prohibited  by  Const,  art.  I,  §  9,  par.  3. 
They  are  judicially  discussed  in  Cummings  v.  Missouri,  4  Wall.  277.  323-325, 
IS  L.  Ed.  356  (1867),  Field,  J.,  saying:  "A  bill  of  attainder  is  a  legislative  act 
which  inflicts  punishment  without  a  judicial  trial.  If  the  punishment  be 
less  than  death,  the  act  is  termed  a  bill  of  pains  and  penalties.  Within  the 
meaning  of  the  Constitution,  bills  of  attainder  include  bills  of  pains  and 
penalties.  In  these  cases  the  legislative  body,  in  addition  to  its  legitimate 
functions,  exercises  the  powers  and  office  of  judge ;  it  assumes,  in  the  lan- 
guage of  the  text-books,  judicial  magistracy  :  it  pronounces  upon  the  guilt  of 
the  party,  without  any  of  the  forms  or  safeguards  of  trial;  it  determines 
the  sufficiency  of  the  proofs  produced,  whether  conformable  to  the  rules  of 
evidence  or  otherwise;  and  it  fixes  the  degree  of  punishment  in  accordance 
with  its  own  notions  of  the  enormity  of  the  offence." 

See,  also,  Pierce  v.  Carskadon,  16  Wall.  234,  21  L.  Ed.  276  (1873). 

As  to  the  validity  of  the  federal  Confiscation  Acts  during  the  Civil  War,  see 
Const,  art.  Ill,  §  3,  par.  2;  Bigelow  v.  Forrest,  9  Wall.  339,  19  L.  Ed.  096 
(1870) ;    Miller  v.  United  States,  11  Wall.  268,  20  L.  Ed.  135  (1871). 

Ex  Post  Facto  Decisions  of  Courts. — The  constitutional  prohibition 
applies  only  to  legislative  acts  of  the  states  or  United  States,  not  to  changes 
of  decision  by  courts  in  criminal  cases  with  a  retroactive  effect.     Ross  v. 

Oregon,  227  U.  S.  150,  161  ff.,  33  Sup.  Ct.  220,  57  L.  Ed. (1913).     See  State 

v.  O'Neil,  147  Iowa,  513,  126  N.  W.  454,  Ann.  Cas.  1912B,  691  (1910),  annotated 
In  33  L.  R.  A.  (N.  S.)  7S8  ff. 

Compare  the  doctrine  in  similar  cases  arising  under  the  contract  clause  of 
the  Constitution,  post,  p.  791. 


Ch.  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME  17' 

committed  before  the  passage  of  the  act.  In  either  view  of  the  act, 
and  upon  either  holding,  the  judgment  of  the  court  below  must  be 
reversed.    *    *    * 

Judgment  reversed.* 

[Three  judges  dissented  upon  another  point  in  the  case.] 

"Accord:  In  re  Medley,  134  U.  S.  160,  10  Sup.  Ct  884,  33  I*  Ed.  835  (1890 
(requiring  short  period  of  solitary  confinement  to  precede  execution  and  In- 
creasing prisoner's  uncertainty  uB  to  time  of  execution).  But  compare  Storti's 
Case,  L80  Mass.  57,  01  N.  E.  709  (1901),  and  Rooney  v.  North  Dakota,  190  U. 
S.  310.   25  Sup.  Ct.  204,  19  L.    K.I.    10  1,  3   Ann.  ('as.  7<i  (1905). 

In  People  v.  Haves,  140  N.  Y.  481,  492,  35  X.  E.  951,  95:',,  28  L.  R.  A.  830, 
37  Am.  St.  Rep.  572  (1894),  Peckham,  J.,  said:  "I  do  not  think  that  the  mere 
fact  of  an  alteration  in  the  manner  of  punishment,  without  reference  to  the 
Question  of  mitigation,  necessarily  renders  an  act  obnoxious  to  the  constitu- 
tional provision.  I  know  It  is  alluded  to  In  the  two  cases  in  this  statu  above 
cited, — that  of  Hartung  and  of  Shepherd.  *  *  *  I  think  that  where  a 
change  is  made  in  the  manner  of  the  punishment,  if  the  change  be  of  that 
nature  which  no  sane  man  could  by  any  possibility  regard  in  any  other  light 
than  that  of  a  mitigation  of  punishment,  the  act  would  not  be  ex  post  facto 
where  made  applicable  to  offenses  committed  before  its  passage." 

In  several  cases  changes  in  the  manner  of  punishment  have  been  held 
valid.  Commonwealth  v.  Wyuian,  12  Cush.  (Mass.)  237  (1853)  (death  to  life 
Imprisonment);  Commonwealth  v.  Gardner,  U  Gray  (Mass.) 438  11858)  (same); 
McGuire  v.  State,  7b'  Miss.  504,  25  South.  495  (1898)  (same);  Rooney  v.  North 
Dakota,  above  (period  of  continement  before  execution  increased  from  3 — 6 
months  to  0— 9  months).  Harlan,  J.,  saying  (196  I'.  S.  ,",25.  25  Sup.  Ct.  266, 
49  L.  Ed.  494.  3  Ann.  Cas.  7(1):  "The  court  must  assume  that  every  I 
person  desires  to  live  as  long  as  he  may;"  State  v.  Williams,  2  Rich.  (S.  C.) 
418,  45  Am.  Dec.  711  (1846)  (death  to  whipping,  imprisonment  and  tine); 
Strong  v.  state,  1  Blackf.  (Ind.j  193  (1822)  (whipping  to  imprisonment). 

Where  a  statute  expressly  provides  that  previous  crimes  shall  not  he  affect 
ed  by  a  new  punishment,  unless  it  mitigates  the  old  one,  It  has  been  held 
that  the  defendant  may  choose  between  the  old  and  new  punishments.  Iler- 
ber  v.  state.  7  'lex.  69  (1851);  Clarke  v.  state,  23  Miss.  261  (1852).  This  etc. 
tion  is  expressly  given  by  statute  in  Texas:  Texas  Penal  Code,  arts.  15.  19; 
Mclnturf  v.  State,  20  Tex.  App.  335  (1886). 

The  remission  of  a  separable  |  former  punishment  is  nf  course 

valid.  People  v.  Hayes,  140  N.  Y.  4S4,  35  N.  E.  951,  23  L.  R.  A.  S30,  37  Am. 
St.   Bep.  572  (1S91I. 

A  change  in  punishment  that  is  In  good  faith  referable  to  prison  discipline 
as  its  primary  object  is  valid,  even  though  more  onerous.  Hartung  v.  Peo 
pie.  22  x.  Y.  95.  in.",  (i860);  Murphy  v.  Commonwealth,  172  Mass.  264,  269, 
52  X.  E.  505.  4:;  L.  B.  A.  154,  70  Am.  St.  Ken.  266  (1899)  (cases). 

A  law  changing  the  punishment  for  crime  is  ex  post  facto  If  It  requires 
any  penalty  that  may  he  more  severe  than  the  teast  one  thai  could  be  im- 
posed under  the  old  law,  or  if  it  permits  a  penalty  more  severe  than  the 
heaviest  one  authorized  by  the  old  law.  Flaherty  v.  Thomas.  12  Allen 
iMass.)  428  (1866);  In  re  Lambrecht,  137  Mich.  150,  100  N,  W,  606 
state  ex-  rei.  Theus  v.  Edwards,  109  La.  236,  33  South.  200  (1902).  A  subse- 
quent law  authorizing  an  Indeterminate  sentence  not  violating  these  rules  is 
valid.    Commonwealth  v.  Brown,  107  Mass.  111,  45  x.  k.  1  (1S96).    As  to  the 

vallditj    of  an   Indeterminate  sentence  which   qualities   prior  definite   rights   to 

a  shortening  of  term  ami  permits  of  libert.\  luct  in  prison,   see 

Murphy    v.    Commonwealth,  above. 

A  law  imposing  a  heavier  penalty  upon  second  offenders,  passed  between 
the  two  offences,  Is  valid.  McDonald  v.  Massachusetts,  180  U.  S.  311,  21  Sup. 
Ct  889,  45  L.   Kd.  542  (1901). 


172  FUNDAMENTAL    RIGHTS  (Part   2 

THOMPSON  v.  UTAH.1 

(Supreme  Court  of  United  States,  1S98.    170  D.  S.  343,  18  Sup.  Ct.  C20,  42  L. 
Ed.  1061.) 

[Error  to  the  Supreme  Court  of  Utah.  Thompson  was  charged  with 
grand  larceny,  committed  while  Utah  was  a  territory,  and,  after  having 
been  found  guilty,  was  granted  a  new  trial.  The  second  trial  was  held 
after  Utah  became  a  state,  and  he  was  found  guilty  by  a  jury  of  eight 
jurors,  this  number  being  prescribed  by  the  new  Utah  Constitution. 
His  objection  to  the  constitutionality  of  this  was  overruled  in  the 
state  courts,  and  this  writ  of  error  was  taken.] 

Mr.  Justice  Harlan.  *  *  *  As  the  offense  of  which  the  plaintiff 
in  error  was  convicted  was  a  felony,  and  as,  by  the  law  in  force  when 
the  crime  was  committed,  he  could  not  have  been  tried  by  a  jury  of  a 
less  number  than  twelve  jurors,  the  question  is  presented  whether  the 
provision  in  the  Constitution  of  Utah,  providing  for  a  jury  of  eight 
persons  in  courts  of  general  jurisdiction,  except  in  capital  cases,  can 
be  made  applicable  to  a  felony  committed  within  the  limits  of  the  state 
while  it  was  a  territory,  without  bringing  that  provision  into  conflict 
with  the  clause  of  the  Constitution  of  the  United  States  prohibiting 
the  passage  by  any  state  of  an  ex  post  facto  law.    *    *    * 

It  is  not  necessary  to  review  the  numerous  cases  in  which  the  courts 
have  determined  whether  particular  statutes  come  within  the  constitu- 
tional prohibition  of  ex  post  facto  laws.  It  is  sufficient  now  to  say  that 
a  statute  belongs  to  that  class  which  by  its  necessary  operation  and 
"in  its  relation  to  the  offense,  or  its  consequences,  alters  the  situation  of 
the  accused  to  his  disadvantage."  U.  S.  v.  Hall,  2  Wash.  C.  C.  366, 
Fed.  Cas.  No.  15.285;  Kring  v.  Missouri,  107  U.  S.  221,  228,  2  Sup. 
Ct.  443,  27  L.  Ed.  506;  In  re  Medley,  134  U.  S.  160,  171,  10  Sup.  Ct. 
384,  33  L-  Ed.  835.  Of  course,  a  statute  is  not  of  that  class  unless  it 
materially  impairs  the  right  of  the  accused  to  have  the  question  of  his 
guilt  determined  according  to  the  law  as  it  was  when  the  offense  was 
committed.  And  therefore  it  is  well  settled  that  the  accused  is  not 
entitled  of  right  to  be  tried  in  the  exact  mode,  in  all  respects,  that  may 
be  prescribed  for  the  trial  of  criminal  cases  at  the  time  of  the  com- 
mission of  the  offense  charged  against  him.  Cooley,  in  his  Treatise 
on  Constitutional  Limitations,  after  referring  to  some  of  the  adjudged, 
cases  relating  to  ex  post  facto  laws,  says:  "But,  so  far  as  mere  modes 
of  procedure  are  concerned,  a  party  has  no  more  right,  in  a  criminal 
than  in  a  rivil  action,  to  insist  that  his  case  shall  be  disposed  of  under 
the  law  in  force  when  the  act  to  be  investigated  is  charged  to  have 
taken  place.  Remedies  must  always  be  under  the  control  of  the  legis- 
lature, and  it  would  create  endless  confusion  in  legal  proceedings  if 

i  Parts  of  this  case  dealing  with  other  topics  appear  post,  p.  193. 


Ch.  6)       PROTECTION  TO  PERSON'S  ACCUSED  OF  CRIME         173 

every  case  was  to  be  conducted  only  in  accordance  with  the  rules  of 
practice  and  heard  only  by  the  courts  in  existence  when  its  facts  arose. 
The  legislature  may  abolish  courts  and  create  new  ones,  and  it  may 
prescribe  altogether  different  modes  of  procedure  in  its  discretion, 
;  it  cannot  lawfully,  we  think,  in  so  doing,  dispense  with  any  of 
those  substantial  protections  with  which  the  existing  law  surrounds 
the  person  accused  of  crime."  Chapter  9  (6th  Ed.)  p.  326.  And  this 
view  was  substantially  approved  by  this  court  in  Kring  v.  Missouri, 
above  cited.  So,  in  Hopt  v.  Utah,  110  U.  S.  574,  590,  4  Sup.  Ct.  202, 
28  L.  Ed.  262,  it  was  said  that  no  one  had  a  vested  right  in  mere  modes 
of  procedure,  and  that  it  was  for  the  state,  upon  grounds  of  public 
policy,  to  regulate  procedure  at  its  pleasure.  This  court,  in  Duncan  v. 
Missouri,  152  U.  S.  378,  382,  14  Sup.  Ct.  570,  38  L.  Ed.  485,  said  that 
statutes  regulating  procedure,  if  they  leave  untouched  all  the  substan- 
tial protections  with  which  existing  law  surrounds  the  person  accused 
of  crime,  are  not  within  the  constitutional  inhibition  of  ex  post  facto 
laws.  But  it  was  held  in  Hopt  v.  Utah,  above  cited,  that  a  statute  that 
takes  from  the  accused  a  substantial  right  given  to  him  by  the  law  in 
force  at  the  time  to  which  his  guilt  relates  would  be  ex  post  facto  in  its 
nature  and  operation,  and  that  legislation  of  that  kind  cannot  be  sus- 
tained simply  because,  in  a  general  sense,  it  may  be  said  to  regulate 
procedure.  The  difficulty  is  not  so  much  as  to  the  soundness  of  the 
general  rule  that  an  accused  has  no  vested  right  in  particular  modes  of 
procedure  as  in  determining  whether  particular  statutes  by  their  oper- 
ation take  from  an  accused  any  right  that  was  regarded,  at  the  time  of 
the  adoption  of  the  constitution,  as  vital  for  the  protection  of  life  and 
liberty,  and  which  he  enjoyed  at  the  time  of  the  commission  of  the 
offense  charged  against  him. 

Now.  Thompson's  crime,  when  committed,  was  punishable  by  the 
territory  of  Utah  proceeding  in  all  its  legislation  under  the  sanction  of 
and  in  subordination  to  the  authority  of  the  United  States.  The 
court  below  substituted,  as  a  basis  of  judgment  and  sentence  to  impris- 
onment in  the  penitentiary,  the  unanimous  verdict  of  eight  jurors  in 
place  of  a  unanimous  verdict  of  twelve.  It  cannot,  therefore,  be  said 
that  the  Constitution  of  Utah,  when  applied  to  Thompson's  Case,  did 
not  deprive  him  of  a  substantial  right  involved  in  his  liberty,  and  did 
not  materially  alter  the  situation  to  his  disadvantage.  If,  in  respect  to 
felonies  committed  in  Utah  while  it  was  a  territory,  it  was  competent 
for  the  state  to  prescribe  a  jury  of  eight  persons,  it  could  just  as  well 
have  prescribed  a  jury  of  four  or  two,  and,  perhaps,  have  dispensed 
altogether  with  a  jury,  and  provided  for  a  trial  before  a  single 
judge.    *    *    * 

In  our  opinion,  the  provision  in  the  Constitution  of  Utah  providing 
for  the  trial  in  courts  of  general  jurisdiction  of  criminal  cases,  not 
capital,  by  a  jury  composed  of  eight  persons,  is  ex  post  facto  in  its 
application  to  felonies  committed  before  the  territory  became  a  state, 


174  FUNDAMENTAL    RIGHTS  (Part    2 

because,  in  respect  of  such  crimes,  the  Constitution  of  the  United 
States  gave  the  accused,  at  the  time  of  the  commission  of  his  offense, 
the  right  to  be  tried  by  a  jury  of  twelve  persons,  and  made  it  impossi- 
ble to  deprive  him  of  his 'liberty  except  by  the  unanimous  verdict  of 
such  a  jury. 

Judgment  reversed.2 

[Brewer  and  Peckham,  JJ.,  dissented.] 


THOMPSON  v.  MISSOURI. 

(Supreme  Court  of  United  States,  1S0S.     171  D.  S.  380,  18  Sup.  Ct.  022.  43  I>. 
Ed.  204.) 

[Error  to  Supreme  Court  of  Missouri.  Thompson  was  indicted 
for  murder  in  1894,  the  evidence  against  him  being  wholly  circum- 
stantial. One  issue  of  fact  concerned  the  authorship  of  a  prescrip- 
tion for  strychnine  and  of  a  letter  addressed  to  a  church  organist. 
Thompson  denied  that  he  had  written  either,  and  at  the  first  trial 
certain  letters  written  by  him  to  his  wife  were  admitted  in  evidence 
for  comparison  with  the  writing  in  the  other  documents.  Thompson 
was  convicted,  but  a  new  trial  was  ordered  on  appeal ;  the  Missouri 
Supreme  Court  holding  that  the  letters  to  his  wife  were  erroneously 
admitted  in  evidence.  Subsequently,  in  1895,  the  legislature  passed 
an  act  permitting  such  a  comparison  to  be  made.  At  the  second  trial 
in  1896  the  letters  were  again  used  in  evidence,  Thompson  was  again 
convicted,  and  the  conviction  affirmed  on  appeal.] 

Mr.  Justice  Harlan.  *  *  *  The  contention  of  the  accused  is 
that,  as  the  letters  to  his  wife  were  not,  at  the  time  of  the  commis- 
sion of  the  alleged  offense,  admissible  in  evidence  for  the  purpose 
of  comparing  them  with  other  writings  charged  to  be  in  his  handwrit- 
ing, the  subsequent  statute  of  Missouri  changing  this  rule  of  evidence 
was  ex  post  facto  when  applied  to  his  case. 

It  is  not  to  be  denied  that  the  position  of  the  accused  finds  ap- 
parent support  in  the  general  language  used  in  some  opinions.  Mr. 
Justice  Chase,  in  his  classification  of  expost  facto  laws  in  Calder  v. 
Bull,  3  Dall.  386,  390,  1  L.  Ed.  648,  includes  "every  law  that  alters 
the  legal  rules  of  evidence,  and  receives  less  or  different  testimony 
than  the  law  required  at  the  time  of  the  commission  of  the  offense  in 
order  to  convict  the  offender." 

In  Kring  v.  Missouri,  107  U.  S.  221,  228,  232,  235,  2  Sup.  Ct.  443. 
27  L.  Ed.  506,  the  question  arose  as  to  the  validity  of  a  statute  of 
Missouri"  under  which  the  accused  was  found  guilty  of  the  crime  of 
murder  in  the  first  degree,  and  sentenced  to  be  hanged.  That  case  was 
tried  several  limes,  and  was  three  times  in  the  supreme  court  of  the 

2  Accord:  State  v.  Ardoln,  51  La.  Aim.  169,  24  South.  802,  72  Am.  St.  Rep. 
454  (1S99)  (nine  out  of  twelve  jurors  authorized  to  lind  verdict). 


Ch.  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME)  ITS 

state.  At  the  trial  immediately  preceding  the  last  one  Kring  was  al- 
lowed to  plead  guilty  of  murder  in  the  second  degree.  The  plea  was 
accepted,  and  he  was  sentenced  to  imprisonment  in  the  penitentiary 
for  the  term  of  25  years.  Having  understood  that  upon  this  plea 
he  was  to  be  sentenced  to  imprisonment  for  only  10  years,  he  prose- 
cuted an  appeal,  which  resulted  in  a  reversal  of  the  judgment.  At 
the  last  trial  the  court  set  aside  the  plea  of  guilty  of  murder  in  the 
second  degree, — the  accused  having  refused  to  withdraw  it, — and, 
against  his  objection,  ordered  a  plea  of  not  guilty  to  be  entered  in  his 
behalf.  Under  the  latter  plea  he  was  tried,  convicted,  and  sentenced 
to  be  hanged.  By  the  law  of  Missouri  at  the  time  of  the  commission 
of  Kring's  offense,  his  conviction  and  sentence  under  the  plea  of 
guilty  of  murder  in  the  second  degree  was  an  absolute  acquittal  of 
the  charge  of  murder  in  the  first  degree.  But,  that  law  having  been 
changed  before  the  final  trial  occurred,1  Kring  contended  that  the 
last  statute,  if  applied  to  his  case,  would  be  within  the  prohibition 
of  ex  post  facto  laws.  And  that  view  was  sustained  by  this  court, 
four  of  its  members  dissenting.     *     *     * 

Considering  the  suggestion  that  the  Missouri  statute  under  which 
Kring  was  convicted  only  regulated  procedure,  Mr.  Justice  Miller, 
speaking  for  this  court,  said:  "Can  any  substantia!  right  which  the 
law  gave  the  defendant  at  the  time  to  which  his  guilt  relates  be  taken 
away  from  him  by  ex  post  facto  legislation,  because,  in  the  use  of  a 
modern  phrase,  it  is  called  a  law  of  procedure?  We  think  it  can- 
not." In  conclusion  it  was  said :  "Tested  by  these  criteria,  the  pro- 
vision of  the  Constitution  of  Missouri  which  denies  to  plaintiff  in 
error  the  benefit  which  the  previous  law  gave  him  of  acquittal  of  the 
charge  of  murder  in  the  first  degree,  on  conviction  of  murder  in  the 
second  degree,  is,  as  to  his  case,  an  ex  post  facto  law  within  the 
meaning  of  the  constitution  of  the  United  States."     *     *     * 

The  right  to  such  protection  was  deemed  a  substantial  one. — indeed, 
it  constituted  a  complete  defense  against  the  charge  of  murder  in 
the  first  degree, — that  could  not  be  taken  from  the  accused  by  subse- 
quent legislation.  This  is  clear  from  the  statement  in  Kring's  Case 
that  the  question  before  the  court  was  whether  the  statute  of  Mis- 
souri deprived  "the  defendant  of  any  right  of  defense  which  the  law 
gave  him  when  the  act  was  committed,  so  that,  as  to  that  offense,  it 
is  ex  post  facto." 

This  general  subject  was  considered  in  Hopt  v.  Utah.  110  U.  S. 
574,  588.  589,  4  Sup.  Ct.  202,  28  L.  Ed.  262.  Hopt  was  indicted, 
tried,  and  convicted  of  murder  in  the  territory  of  Utah,  the  punish- 
ment therefor  being  death.     At  the  time  of  the  commission  of   the 

'  The  law  was  changed  before  the  first  plea  of  guilty  of  murder  In  the 
second  degree  was  made.  See  iot  D.  8.  286  289,  J  Sup.  Ct.  143,  27  i..  Bd.  506, 
Bven  under  the  original  law  the  defendant  bad  no  right  to  make  this  plea, 
except  with  the  consent  of  the  prosecution.  Id.  Otherwise,  under  the  stat- 
utes considered  in  Garvey  v.  People,  6  Colo.  559,  45  Am.  Hep.  531  (1883). 


176  FUNDAMENTAL    RIGHTS  (Part    2 

offense  it  was  the  law  of  Utah  that  no  person  convicted  of  a  felony 
could  be  a  witness  in  a  criminal  case.  After  the  date  of  the  alleged 
offense,  and  prior  to  the  trial  of  the  case,  an  act  was  passed  removing 
the  disqualification  as  witnesses  of  persons  who  had  been  convicted 
of  felonies ;  and  the  point  was  made  that  the  statute,  in  its  applica- 
tion to  Hopt's  Case,  was  ex  post  facto. 

This  court  said :  "The  provision  of  the  Constitution  which  pro- 
hibits the  states  from  passing  ex  post  facto  laws  was  examined  in 
Ki-ing  v.  Missouri,  107  U.  S.  221,  2  Sup.  Ct.  443,  27  L.  Ed.  506. 
:  *  That  decision  proceeded  upon  the  ground  that  the  state 
Constitution  deprived  the  accused  of  a  substantial  right  which  the 
law  gave  him  when  the  offense  was  committed,  and  therefore,  in  its 
application  to  that  offense  and  its  consequences,  altered  the  situation 
of  the  party  to  his  disadvantage.  By  the  law  as  established  when 
the  offense  was  committed,  Kring  could  not  have  been  punished  with 
death  after  his  conviction  of  murder  in  the  second  degree,  whereas 
by  the  abrogation  of  that  law  by  the  constitutional  provision  subse- 
quently adopted  he  could  thereafter  be  tried  and  convicted  of  murder 
in  the  first  degree,  and  subjected  to  the  punishment  of  death.  Thus 
the  judgment  of  conviction  of  murder  in  the  second  degree  was  de- 
prived of  all  force  as  evidence  to  establish  his  absolute  immunity 
thereafter  from  punishment  for  murder  in  the  first  degree.  This 
was  held  to  be  the  deprivation  of  a  substantial  right  which  the  ac- 
cused had  at  the  time  the  alleged  offense  was  committed.  But  there 
are  no  such  features  in  the  case  before  us.  Statutes  which  simply  en- 
large the  class  of  persons  who  may  be  competent  to  testify  in  crim- 
inal cases  are  not  ex  post  facto  in  their  application  to  prosecutions 
for  crimes  committed  prior  to  their  passage,  for  they  do  not  attach 
criminality  to  any  act  previously  done,  and  which  was  innocent  when 
done,  nor  aggravate  any  crime  theretofore  committed,  nor  provide  a 
greater  punishment  therefor  than  was  prescribed  at  the  time  of  its 
commission,  nor  do  they  alter  the  degree  or  lessen  the  amount  or 
measure  of  the  proof  which  was  made  necessary  to  conviction  when 
the  crime  was  committed." 

The  court  added :  "The  crime  for  which  the  present  defendant 
was  indicted,  the  punishment  prescribed  therefor,  and  the  quantity 
or  the  degree  of  proof  necessary  to  establish  his  guilt,  all  remained 
unaffected  by  the  subsequent  statute.  Any  statutory  alteration  of  the 
legal  rules  of  evidence  which  would  authorize  conviction  upon  less 
proof,  in  amount  or  degree,  than  was  required  when  the  offense  was 
committed,  might,  in  respect  of  that  offense,  be  obnoxious  to  the  con- 
stitutional, inhibition  upon  ex  post  facto  laws.  But  alterations  which 
do  not  increase  the  punishment,  nor  change  the  ingredients  of  the 
offense,  or  the  ultimate  facts  necessary  to  establish  guilt,  but,  leaving 
untouched  the  nature  of  the  crime,  and  the  amount  or  degree  of 
proof  essential  to  conviction,  only  remove  existing  restrictions  upon 
the  competency  of  certain  classes  of  persons  as  witnesses,  relate  to 


Ch.  6)  PROTECTION  TO   riCUSONS  ACCUSED  OF  CHIME  177 

modes  of  procedure  only,  in  which  no  one  can  be  said  to  have  a  vested 
right,  and  which  the  state,  upon  grounds  of  public  policy,  may  reg- 
ulate at  pleasure.  Such  regulations  of  the  mode  in  which  the  facts 
constituting  guilt  may  be  placed  before  the  jury  can  be  made  ap- 
plicable to  prosecutions  or  trials  thereafter  had,  without  reference 
to  the  date  of  the  commission  of  the  offense  charged."     *     *     * 

Applying  the  principles  announced  in  former  cases,  without  at- 
taching undue  weight  to  general  expressions  in  them  that  go  beyond 
the  questions  necessary  to  be  determined,  we  adjudge  that  the  stat 
ute  of  Missouri  relating  to  the  comparison  of  writings  is  not  ex  post 
facto  when  applied  to  prosecutions  for  crimes  committed  prior  to 
its  passage.  If  persons  excluded  upon  grounds  of  public  policy  at 
the  time  of  the  commission  of  an  offense,  from  testifying  as  witnesses 
for  or  against  the  accused,  may.  in  virtue  of  a  statute,  become  com- 
petent to  testify,  we  cannot  perceive  any  ground  upon  which  to  hold 
a  statute  to  be  ex  post  facto  which  does  nothing  more  than  admit  evi- 
dence of  a  particular  kind  in  a  criminal  case  upon  an  issue  of  fact 
which  was  not  admissible  under  the  rules  of  evidence  as  enforced 
by  judicial  decisions  at  the  time  the  offense  was  committed.  The 
Missouri  statute,  when  applied  to  this  case,  did  not  enlarge  the  pun- 
ishment to  which  the  accused  was  liable  when  his  crime  was  commit- 
ted, nor  make  any  act  involved  in  his  offense  criminal  that  was  not 
criminal  at  the  time  he  committed  the  murder  of  which  he  was  found 
guilty.  It  did  not  change  the  quality  or  degree  of  his  offense.  Nor 
can  the  new  rule  introduced  by  it  be  characterized  as  unreasonable ; 
certainly  not  so  unreasonable  as  materially  to  affect  the  substantial 
rights  of  one  put  on  trial  for  crime. 

The  statute  did  not  require  "less  proof,  in  amount  or  degree." 
than  was  required  at  the  time  of  the  commission  of  the  crime  charged 
upon  him.  It  left  unimpaired  the  right  of  the  jury  to  determine  the 
sufficiency  or  effect  of  the  evidence  declared  to  be  admissible,  and 
did  not  disturb  the  fundamental  rule  that  the  state,  as  a  condition 
of  its  right  to  take  the  life  of  an  accused,  must  overcome  the  pre- 
sumption of  his  innocence,  and  establish  his  guilt  beyond  a  reason- 
able doubt.  Whether  he  wrote  the  prescription  for  strychnine,  or  the 
threatening  letter  to  the  church  organist,  was  left  for  the  jury;  and 
the  duty  o-f  the  jury,  in  that  particular,  was  the  same  after  as  before 
the  passage  of  the  statute.  The  statute  did  nothing  more  than  re- 
move an  obstacle  arising  out  of  a  rule  of  evidence  that  withdrew  from 
the  consideration  of  the  jury  testimony  which,  in  the  opinion  of  the 
legislature,  tended  to  elucidate  the  ultimate,  essential  fact  to  be  es- 
tablished, namely,  the  guilt  of  the  accused,  Nor  did  it  give  the  prose- 
cution any  right  that  was  denied  to  the  accused.  It  placed  the  state 
and  the  accused  upon  an  equality,  for  the  rule  established  by  it  gave 
to  each  side  the  right  to  have  disputed  writings  compared  with  wril 
ings  proved  to  the  satisfaction  of  the  judge  to  be  genuine.  Each  side 
llAl.I.  Const.L. — 12 


ITS  FUNDAMENTAL    RIGHTS  (Part  2 

was  entitled  to  go  to  the  jury  upon  the  question  of  the  genuineness 
of  the  writing  upon  which  the  prosecution  relied  to  establish  the  guilt 
of  the  accused.  It  is  well  known  that  the  adjudged  cases  have  not 
been  in  harmony  touching  the  rule  relating  to  the  comparison  of 
handwritings,  and  the  object  of  the  legislature,  as  we  may  assume, 
was  to  give  the  jury  all  the  light  that  could  be  thrown  upon  an  issue 
of  that  character.  We  cannot  adjudge  that  the  accused  had  any 
vested  right  in  the  rule  of  evidence  which  obtained  prior  to  the  pas- 
sage of  the  Missouri  statute,  nor  that  the  rule  established  by  that  stat- 
ute entrenched  upon  any  of  the  essential  rights  belonging  to  one  put  on 
trial  for  a  public  offense. 

Of  course,  we  are  not  to  be  understood  as  holding  that  there  may 
not  be  such  a  statutory  alteration  of  the  fundamental  rules  in  crim- 
inal trials  as  might  bring  the  statute  in  conflict  with  the  ex  post  facto 
clause  of  the  Constitution.  If,  for  instance,  the  statute  had  taken 
from  the  jury  the  right  to  determine  the  sufficiency  or  effect  of  the 
evidence  which  it  made  admissible,  a  different  question  would  have 
been  presented.  We  mean  now  only  to  adjudge  that  the  statute  is 
to  be  regarded  as  one  merely  regulating  procedure,  and  may  be  ap- 
plied to  crimes  committed  prior  to  its  passage  without  impairing  the 
substantial  guaranties  of  life  and  liberty  that  are  secured  to  an  ac- 
cused by  the  supreme  law  of  the  land. 

Judgment  affirmed.2 

2  See  Frisby  v.  United  States,  38  D.  C.  App.  22,  37  L.  R.  A.  (N.  S.)  96  (1912) 
(ex  post  facto  to  permit  use  against  defendant  of  evidence  voluntarily  pro- 
duced by  him  in  an  equity  suit  under  a  former  statute  excluding  it  from 
criminal  prosecutions).  Other  cases  of  alterations  of  rules  of  admissibility  of 
evidence  are  collected  in  37  L.  R.  A.  (N.  S.)  96,  97. 

In  the  following  cases  changes  in  the  law  were  held  to  be  merely  procedural 
and  not  ex  post  facto :  Ex  parte  McCardle,  7  Wall.  500,  19  L.  Ed.  264  (1868) 
(depriving  defendant  of  appeal  to  higher  court) ;  Gut  v.  Minnesota.  9  Wall.  35, 
19  L.  Ed.  573  (1SG9)  (changing  place  of  trial) ;  Duncan  v.  Missouri,  152  U.  S. 
377,  14  Sup.  Ct.  570, -3S  L.  Ed.  485  (1S94)  (change  in  number  of  appellate 
iudges)  :  Commonwealth  v.  Phelps,  210  Mass.  78,  96  N.  E.  349,  37  L-.  R.  A. 
(N.  S.)  567,  Ann.  Cas.  1912C,  1119  (1911)  (same  of  trial  judges);  Gibson  v. 
Mississippi,  162  U.  S.  565,  16  Sup.  Ct.  904.  40  L.  Ed.  1075  (1896)  (requiring 
higher  qualifications  of  jurors)  ;  Mallett  v.  North  Carolina,  1S1  U.  S.  589,  21 
Sup.  Ct.  730.  45  L.  Ed.  1015  (1901)  (granting  to  state  an  appeal  from  judgment 
of  intermediate  appellate  court  giving  convicted  defendant  a  new  trial) ;  Har- 
ris v.  United  States,  4  Okl.  Cr.  317,  111  Pae.  9S2,  31  h.  R.  A.  (N.  S.)  S20,  Ann. 
Cas.  1912B,  810  (1910)  (reducing  defendant's  or  increasing  state's  peremptory 
challenges'!. 

As  to  the  effect  of  a  change  in  the  mode  of  beginning  a  prosecution,  from 
indictment  to  information,  see  Garnsey  v.  State,  4  Okl.  Cr.  547,  112  Pac.  24, 
(1910),  annotated  in  3S  L.  R.  A.  (N.  S.)  600-602.  See.  also,  State  v.  McCoy,  87 
Neb.  3S5,  127  N.  W.  137,  28  L.  R.  A.  (N.  S.)  583  (1910)  (increase  in  amount  of 
penal  bond,  required  to  suspend  sentence  is  ex  post  facto).  Compare  Kring  v. 
Missouri,  107  U.  S.  221,  2  Sup.  Ct.  443,  27  L.  Ed.  506  (18S2)  (digested  in  prin- 
cipal case),  and  Ratzky  v.  People,  29  N.  Y.  124  (1864)  (law  that  an  erroneous 
sentence  entitles  defendant  to  a  discharge  may  be  changed  to  permit  cor- 
rection of  error). 


Ch.  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CBIMB  179 

COMMONWEALTH  v.  GETCHELL. 

(Supreme  Judicial  Court  of  Massachusetts,  1835.    16  Pick.  452.) 

[Appeal  from  a  municipal  court  judgment  upon  demurrer  in  Feb- 
ruary, 1835,  imposing  an  additional  punishment  upon  Getchell,  who  in 
1827  was  convicted  of  forgery,  in  1830  discharged  from  prison  there- 
for, and  in  April,  1831,  was  again  convicted  of  forgery  and  sent  to 
prison  for  four  years.  St.  1827,  c.  118,  made  a  convict  liable  to  ad- 
ditional punishment  if  he  were  twice  convicted;  St.  1832,  c.  73,  im- 
posed this  only  if  he  were  twice  discharged  from  prison;  and  St.  1833. 
c.  85,  repealed  the  act  of  1832,  reviving  the  act  of  1827.] 

Wilde,  J.  In  this  case  the  defendant  has  been  but  twice  convicted, 
and  but  once  discharged.  He  would  not,  therefor,  under  the  Statute  of 
1832,  c.  73,  be  liable  to  an  additional  punishment.  We  apprehend 
that  the  act  was  not  intended  to  have  such  an  effect ;  but  the  language 
of  the  statute  is  express,  and  it  will  admit  of  but  one  construction.. 
That  statute,  however,  has  been  repealed  by  the  Statute  of  1833,  c.  85, 
and  the  question  is,  whether  the  suspension  of  the  liability  of  the  de- 
fendant, while  the  former  statute  continued  in  force,  is  a  legal  dis- 
charge of  his  liability  at  the  time  of  his  second  conviction.  And  we 
are  of  opinion  that  it  is  not.  The  offence  for  which  he  was  a  second 
time  convicted,  was  committed,  and  he  was  also  convicted,  before  the 
passage  of  the  Statute  of  1832. 

If  the  crime  had  been  committed,  or  if  the  defendant  had  been  con- 
victed, during  the  time  that  the  Statute  of  1832  was  in  force,  the 
repealing  Statute  of  1833  might  be  considered  as  an  ex  post  facto  law 
in  regard  to  him.  But  as  the  conviction  took  place  in  1831,  and  he  was 
then  liable  to  the  additional  punishment,  the  act  of  1832  operated  only 
as  a  suspension  of  his  liability,  and  not  in  nature  of  a  pardon.  That 
act  having  been  repealed,  his  liability  remains  as  it  was  at  the  time  of 
his  conviction. 

Demurrer  overruled.1 

i  Accord:  Commonwealth  v.  Mott,  21  rick.  -102  (1839),  under  the  same  stat- 
utes; tiie  last  primp  being  committed  in  lS.'JO  and  a  conviction  fox  it  had  in 
1834.  The  same  principle  applies  to  the  prohibition  against  state  laws  im- 
pairing the  obligation  of  contracts.  Knights  Templars'  &  M.  L.  indemnity  Co. 
v.  Jarman,  187  U.  S.  197,  20S,  2."  Sup.  Ct  ins.  47  L.  Ed.  139  (1902), 

If  defendant  is  tried  while  the  second  statute  increasing  the  punishment  is 
in  force,  this  Is  ex  post  facto;  nor  can  he  be  convicted  under  the  first  stat- 
ute in  1!  of  a  Baring  clause.  He  must  therefore  be  acquitted,  and 
then  the  revival  of  the  first  statute  is  incUectual  as  to  him.  llartung  v. 
People,  20  N.  Y.  1G7   USU3). 


180  FUNDAMENTAL    RIGHTS  (Part  2 


HAWKER  v.  NEW  YORK. 

(Supreme  Court  of  United  States,  1S0S.     170  TJ.  S.  189,  18  Sup.  Ct.  573,  42  L. 
Ed.  1002.) 

[Error  to  the  Court  of  Sessions  of  New  York  City.  The  defend- 
ant had  been  convicted  of  the  crime  of  abortion  in  New  York  in  1S7S 
and  sentenced  to  ten  years  imprisonment.  A  New  York  statute  of 
1893,  amended  in  1S95,  made  it  a  misdemeanor  for  any  person  to  prac- 
tice medicine  after  conviction  of  a  felony.  The  defendant  was  con- 
victed under  this  statute  and  the  conviction  affirmed  by  the  highest 
state  court;  final  judgment  being  entered  in  the  said  Court  of  Ses- 
sions.] 

Mr.  Justice  Brewer.  The  single  question  presented  is  as  to  the 
constitutionality  of  this  statute  when  applied  to  one  who  had  been  con- 
victed of  a  felony  prior  to  its  enactment.    *    *    * 

On  the  one  hand,  it  is  said  that  defendant  was  tried,  convicted,  and 
sentenced  for  a  criminal  offense.  He  suffered  the  punishment  pro- 
nounced. The  legislature  has  no  power  to  thereafter  add  to  that  pun- 
ishment. The  right  to  practice  medicine  is  a  valuable  property  right. 
To  deprive  a  man  of  it  is  in  the  nature  of  punishment,  and,  after  the 
defendant  has  once  fully  atoned  for  his  offense,  a  statute  imposing  this 
additional  penalty  is  one  simply  increasing  the  punishment  for  the 
offense,  and  is  ex  post  facto. 

On  the  other,  it  is  insisted  that,  within  the  acknowledged  reach  of 
the  police  power,  a  state  may  prescribe  the  qualifications  of  one  en- 
gaged in  any  business  so  directly  affecting  the  lives  and  health  of  the 
people  as  the  practice  of  medicine.  It  may  require  both  qualifications 
of  learning  and  of  good  character,  and,  if  it  deems  that  one  who  has 
violated  the  criminal  laws  of  the  state  is  not  possessed  of  sufficient 
good  character,  it  can  deny  to  such  a  one  the  right  to  practice  medi- 
cine ;  and,  further,  it  may  make  the  record  of  a  conviction  conclusive 
evidence  of  the  fact  of  the  violation  of  the  criminal  law,  and  of  the 
absence  of  the  requisite  good  character.  In  support  of  this  latter  ar- 
gument, counsel  for  the  state,  besides  referring  to  the  legislation  of 
many  states  prescribing  in  a  general  way  good  character  as  one  of  the 
qualifications  of  a  physician,  has  made  a  collection  of  special  provi- 
sions as  to  the  effect  of  a  conviction  of  felony.  In  the  footnote  x  will 
be  found  his  collection. 

We  are  of  opinion  that  this  argument  is  the  more  applicable,  and 
must  control  the  answer  to  this  question.  No  precise  limits  have  been 
placed  upon  the  police  power  of  a  state,  and  yet  it  is  clear  that  legisla- 

i  This  collection  of  statutes  (170  U.  S.  191-193,  18  Sup.  Ct.  574,  575,  42  L. 
Ed.  1004.  1005)  shows  that  six  or  seven  American  states,  Great  Britain,  and 
a  number  of  self-governing  British  colonies  give  a  similar  effect  to  a  convic- 
tion of  felony. 


Ch.  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME  181 

tion  which  simply  defines  the  qualifications  of  one  who  attempts  to 
practice  medicine  is  a  proper  exercise  of  that  power.  Care  for  the 
public  health  is  something  confessedly  belonging  to  the  domain  of  that 
power.  The  physician  is  one  whose  relations  to  life  and  health  are 
of  the  most  intimate  character.  It  is  fitting,  not  merely  that  he  should 
possess  a  knowledge  of  diseases  and  their  remedies,  but  also  that  he 
should  be  one  who  may  safely  be  trusted  to  apply  those  remedies. 
Character  is  as  important  a  qualification  as  knowledge,  and  if  the  leg- 
islature may  properly  require  a  definite  course  of  instruction,  or  a 
certain  examination  as  to  learning,  it  may  with  equal  propriety  pre- 
scribe what  evidence  of  good  character  shall  be  furnished.  These 
propositions  have  been  often  affirmed.  In  Dent  v.  West  Virginia,  129 
U.  S.  114,  122,  9  Sup.  Ct.  231,  233,  32  L.  Ed.  623,  it  was  said  in  re- 
spect to  the  qualifications  of  a  physician :  "The  power  of  the  state  to 
provide  for  the  general  welfare  of  its  people  authorizes  it  to  prescribe 
all  such  regulations  as,  in  its  judgment,  will  secure  or  tend  to  secure 
them  against  the  consequences  of  ignorance  and  incapacity  as  well  as 
of  deception  and  fraud."  *  *  *  [Here  follow  quotations  from 
various  state  decisions  holding  that  a  good  moral  character  may  be 
required  as  a  condition  of  the  right  to  practice  medicine.] 

Bat  if  a  state  may  require  good  character  as  a  condition  of  the  prac- 
tice of  medicine,  it  may  rightfully  determine  what  shall  be  the  evidences 
of  that  character.  We  do  not  rnean  to  say  that  it  has  an  arbitrary  pow- 
er in  the  matter,  or  that  it  can  make  a  conclusive  test  of  that  which  has 
no  relation  to  character,  but  it  may  take  whatever,  according  to  the 
experience  of  mankind,  reasonably  tends  to  prove  the  fact  and  make 
it  a  test.  County  Seat  of  Linn  Co.,  15  Kan.  500-528.  Whatever  is 
ordinarily  connected  with  bad  character,  or  indicative  of  it,  may  be 
prescribed  by  the  legislature  as  conclusive  evidence  thereof.  It  is  not 
the  province  of  the  courts  to  say  that  other  tests  would  be  more  satis- 
factory, or  that  the  naming  of  other  qualifications  would  be  more 
conducive  to  the  desired  result.  These  are  questions  for  the  legislature 
to  determine.  "The  nature  and  extent  of  the  qualifications  required 
must  depend  primarily  upon  the  judgment  of  the  state  as  to  their  neces- 
sity." Dent  v.  West  Virginia,  129  U.  S.  122,  9  Sup.  Ct.  233,  32  L.  Ed. 
623. 

It  is  not  open  to  doubt  that  the  commission  of  crime — the  violation 
of  the  penal  laws  of  a  state — has  some  relation  to  the  question  of 
character.  It  is  not,  as  a  rule,  the  good  people  who  commit  crime. 
W  hen  the  legislature  declares  that  whoever  has  violated  the  criminal 
laws  of  the  state  shall  be  deemed  lacking  in  good  moral  character,  it 
is  not  laying  down  an  arbitrary  or  fanciful  rule,  one  having  no  rela- 
tion to  the  subject-matter,  but  is  only  appealing  to  a  well-recognized 
fact  of  human  experience;  and,  if  it  may  make  a  violation  of  criminal 
iaw  a  test  of  bad  character,  what  more  conclusive  evidence  of  the  fact 
of  such  violation  can  there  be  than  a  conviction  duly  had  in  one  of  the 


182  FUNDAMENTAL    RIGHTS  (Part  - 

courts  of  the  state?  The  conviction  is,  as  between  the  state  and  the 
defendant,  an  adjudication  of  the  fact.  So,  if  the  legislature  enacts 
that  one  who  has  been  convicted  of  crime  shall  no  longer  engage  in  the 
practice  of  medicine,  it  is  simply  applying  the  doctrine  of  res  judicata, 
and  invoking  the  conclusive  adjudication  of  the  fact  that  the  man  has 
violated  the  criminal  law,  and  is  presumptively,  therefore,  a  man  of 
such  bad  character  as  to  render  it  unsafe  to  trust  the  liives  and  health 
of  citizens  to  his  care. 

That  the  form  in  which  this  legislation  is  cast  suggests  the  idea  of 
the  imposition  of  an  additional  punishment  for  past  offenses  is  not 
conclusive.  We  must  look  at  the  substance,  and  not  the  form ;  and 
the  statute  should  be  regarded  as  though  it  in  terms  declared  that  one 
who  had  violated  the  criminal  laws  of  the  state  should  be  deemed  of 
such  bad  character  as  to  be  unfit  to  practice  medicine,  and  that  the 
record  of  a  trial  and  conviction  should  be  conclusive  evidence  of  such 
violation.  AIL  that  is  embraced  in  these  propositions  is  condensed  into 
the  single  clause  of  the  statute,  and  it  means  that,  and  nothing  more. 
The  state  is  not  seeking  to  further  punish  a  criminal,  but  only  to  pro- 
tect its  citizens  from  physicians  of  bad  character.  The  vital  matter 
is  not  the  conviction,  but  the  violation  of  law.  The  former  is  merely 
the  prescribed  evidence  of  the  latter.  Suppose  the  statute  had  con- 
tained only  a  clause  declaring  that  no  one  should  be  permitted  to  act 
as  a  physician  who  had  violated  the  criminal  laws  of  the  state,  leaving 
the  question  of  violation  to  be  determined  according  to  the  ordinary 
rules  of  evidence ;  would  it  not  seem  strange  to  hold  that  that  which 
conclusively  established  the  fact  effectually  relieved  from  the  conse- 
quences of  such  violation? 

It  is  no  answer  to  say  that  this  test  of  character  is  not  in  all  cases 
absolutely  certain,  and  that  sometimes  it  works  harshly.  Doubtless, 
one  who  has  violated  the  criminal  law  may  thereafter  reform,  and 
become  in  fact  possessed  of  a  good  moral  character.  But  the  legis- 
lature has  power  in  cases  of  this  kind  to  make  a  rule  of  universal  ap- 
plication, and  no  inquiry  is  permissible  back  of  the  rule  to  ascertain 
whether  the  fact  of  which  the  rule  is  made  the  absolute  test  does  or 
does  not  exist.  Illustrations  of  this  are  abundant.  At  common  law. 
one  convicted  of  crime  was  incompetent  as  a  witness ;  and  this  rule 
was  in  no  manner  affected  by  the  lapse  of  time  since  the  commission 
of  the  offense,  and  could  not  be  set  aside  by  proof  of  a  complete  ref1 
ormation.  So,  in  many  states  a  convict  is  debarred  the  privileges  of 
an  elector,  and  an  act  so  debarring  was  held  applicable  to  one  convicted 
before, its  passage.  Washington  v.  State,  75  Ala.  582,  51  Am.  Rep. 
479.  In  Foster  v.  Commissioners,  102  Cal.  483,  492,  37  Pac.  763,  41 
Am.  St.  Rep.  194,  the  question  was  as  to  the  validity  of  an  ordinance 
revoking  a  license  to  sell  liquor  on  the  ground  of  misconduct  prior  to 
the  issue  of  the  license,  and  the  ordinance  was  sustained.  In  comment- 
ing upon  the  terms  of  the  ordinance  the  court  said  :    "Though  not  an  ex 


C'h.  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CHIMB  183 

post  facto  law,  it  is  retrospective  in  so  far  as  it  determines  from  the 
past  conduct  of  the  party  his  fitness  for  the  proposed  business.  Felons 
are  also  excluded  from  obtaining  such  a  license,  not  as  an  additional 
punishment,  but  because  the  conviction  of  a  felony  is  evidence  of  the 
unfitness  of  such  persons  as  a  class;  nor  can  we  perceive  why  such 
evidence  should  be  more  conclusive  of  unfitness  were  the  act  done  after 
the  passage  of  the  ordinance  than  if  done  before." 

In  a  certain  sense  such  a  rule  is  arbitrary,  but  it  is  within  the  power 
of  a  legislature  to  prescribe  a  rule  of  general  application  based  upon 
a  state  of  things  which  is  ordinarily  evidence  of  the  ultimate  fact 
sought  to  be  established.  "It  was  obviously  the  province  of  the  state 
legislature  to  provide  the  nature  and  extent  of  the  legal  presumption 
to  be  deduced  from  a  given  state  of  facts,  and  the  creation  by  law  of 
such  presumptions  is,  after  all,  but  an  illustration  of  the  power  to 
classify."  Jones  v.  Brim,  165  U.  S.  ISO,  1S3,  17  Sup.  Ct.  282,  41  L. 
Ed.  677.    *    *    * 

Judgment  affirmed.1 

[Harlan,  J.,  gave  a  dissenting  opinion,  in  which  concurred  Peck- 
ham  and  McKf.nna,  JJ.] 

»  Accord:  Meffert  v.  State  Board  of  Medical  Registration  &  Examination, 
i'.6  Kan.  710.  72  l'ae.  247,  1  L.  R.  A.  (N.  S.)  Sll  (1903)  (revocation  of  physi- 
cian's license  tor  pas)  Immorality);  Shepherd  \.  Grimmett,  3  Idaho  (Hash.) 
403,  31  Pae.  703  (1S02)  (past  poiyganiists  excluded  from  suffrage);  Boyd  v. 
-Mills,  53  Kan.  594,  37  Pac.  10,  25  L.  R.  A.  4SG,  42  Am.  St.  Rep.  300  (1804) 
(same,  for  i >:< ^t  disloyalty  to  governmi 

In  Cummings  v.  Missouri,  4  Wall.  277,  319,  320,  18  L.  Ed.  356  (18G7),  Field, 
.J..  said  (holding  Invalid  part  of  the  Missouri  Constitution  of  1805  which  dis- 
qualified persons  guilty  of  various  acts  of  past  disloyalty  from  various  offices 
and  occupations,  including  those  of  teacher  and  clergyman):  "Among  the 
lights  reserved  to  the  states  is  the  right  of  each  state  to  determine  the  qual- 
ifications for  office,  and  the  conditions  upon  which  its  citizens  may  exercise 
their  various  callings  and  pursuits  within  its  jurisdiction.  •  •  •  p,ut  It 
by  no  means  follows  that,  under  the  form  of  creating  a  qualification  or  attach- 
ing a  condition,  the  slates  can  in  effect  Inflict  a  punishment  for  a  past  act 
which  was  not  punishable  at  the  time  it  was  committed  •  •  •  Qualifica- 
tions relate  to  the  fitness  or  capacity  of  the  party  for  a  particular  pursuit 
or  profession.  Webster  defines  the  term  to  mean  'any  natural  ei 
anj  acquirement  which  fits  a  person  for  a  place,  office,  or  employment,  or 
enables  him  to  sustain  any  character,  with  .success.'  it  is  evident  from  the 
nature  of  the  pursuits  and  professions  of  the  parties,  placed  under  disabilities 
by  the  Constitution  of  Missouri,  that  many  of  the  acts,  from  the  taint  of 
which  they  must  purge  themselves,  have  no  possible  relation  to  their  fitness 
for  those  pursuits  and  professions.  There  can  be  no  connection  between  the 
fact  that  Mr.  Cummings  entered  or  left  the  state  of  Missouri  to  avoid  enrol- 
ment or  draft  in  the  military  service  of  the  United  States  and  his  fitness  to 
teach  the  doctrines  or  administer  the  sacraments  of  his  church;  nor  can  a 
facl  of  ' iii-  bind  or  the  expression  of  words  of  sympathy  with  some  of  the 
persons  drawn  into  the  Rebellion  constitute  any  evidence  of  the  unfitness  of 
the  attorney  or  counsellor  to  practice  his  profession,  or  of  the  professor  to 
teach  the  ordinary  branches  of  education,  or  of  the  want  of  business  knowl- 
edge or  business  capacity  in  the  manager  of  a  corporation,  or  in  any  director 
or  trustee,  it  is  manifest  upon  the  simple  statement  of  many  of  the  acts  and 
of  the  professions  and  pursuits,  that  there  is  do  such  relation  between  them 
as  to  render  a  denial  of  the  commission  of  the  acts  at  all  appropriate  a^  a 
condition  of  allowing  the  exercise  of  the  professions  and  pursuits.  The 
oath  could  not,  therefore,  have  been   required  as  a  moans  of  ascertaining 


184  FUNDAMENTAL    EIGHTS  (Part  2 


SECTION  2.— SELF-CRIMINATTON— SEARCHES  AND 
SEIZURES 


HALE  v.  HENKEL. 

(Supreme  Court  of  United  States,  1906.    201  TJ.  S.  43,  26  Sup.  Ct.  370,  50  L. 
Ed.  652.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Southern 
District  of  New  York.  In  a  proceeding  before  the  federal  grand 
jury  to  determine  whether  an  indictment  should  be  found  against 
the  American  Tobacco  Company  and  MacAndrews  &  Forbes  Com- 
pany for  violating  the  federal  anti-trust  statutes,  Hale,  secretary  and 
treasurer  of  the  latter  company,  was  served  with  a  subpoena  duces 
tecum  ordering  him  to  appear  before  the  grand  jury  and  testify,  and 
to  bring  with  him  a  large  amount  of  documentary  evidence  specified 
in  the  opinion  below.  He  refused  to  obey,  for  the  reasons  stated 
below,  and  was  committed  to  custody  by  the  Circuit  Judge  for  con- 
tempt. From  an  order  dismissing  a  writ  of  habeas  corpus  this  ap- 
peal was  taken.] 

Mr,  Justice  Brown.  [After  deciding  that  a  grand  jury  might  pur- 
sue an  investigation  before  a  regular  indictment  was  laid  before  it:] 
2.  Appellant  also  invokes  the  protection  of  the  fifth  amendment  to 
the  Constitution,  which  declares  that  no  person  "shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,"  and  in  reply  to 

whether  parties  were  qualified  or  not  for  their  respective  callings  or  the 
trusts  with  which  they  were  charged.  It  was  required  in  order  to  reach  the 
person^  not  the  calling.  It  was  exacted,  not  from  any  notion  that  the  sev- 
eral acts  designated  indicated  unfitness  for  the  callings,  but  because  it  was 
thought  that  the  several  acts  deserved  punishment,  and  that  for  many  of 
them  there  was  no  way  to  inflict  punishment  except  by  depriving  the  par- 
ties, who  had  committed  them,  of  some  of  the  rights  and  privileges  of  the 
citizen." 

So,  also,  In  re  Garland,  4  Wall.  333,  18  L.  Ed.  360  (1867)  (oath  of  non-sup- 
port of  rebellion  against  United  States  required  for  admission  to  practice  in 
federal  courts).  See  the  comment  upon  these  cases  in  Dent  v.  West  Virginia, 
120  U.  S.  114.  125-128,  9  Sup.  Ct.  231,  32  L.  Ed.  623  (1889). 

Compare  Johannessen  v.  United  States,  225  U.  S.  227,  242.  243,  32  Sup.  Ct. 
613,  617,  56  L.  Ed.  1060  (1912),  in  which  Pitney,  J.,  said  (upholding  a  federal 
act  authorizing  the  cancellation  of  naturalization  certificates  previously  pro- 
cured by  fraud):  "The  act  imposes  no  punishment  upon  an  alien  who  has 
previously  procured  a  certificate  of  citizenship  by  fraud  or  other  illegal  con- 
duct. It  simply  deprives  him  of  his  ill-gotten  privileges.  *  *  *  The  act 
makes  ncfthing  fraudulent  or  unlawful  that  was  honest  and  lawful  when  it 
was  done.  It  imposes  no  new  penalty  upon  the  wrongdoer.  But  if,  after 
fair  hearing,  it  is  judicially  determined  that  by  wrongful  conduct  he  has 
obtained  a  title  to  citizenship,  the  act  provides  that  he  shall  be  deprived  of 
a  privilege  that  was  never  rightfully  his.  Such  a  statute  is  not  to  be  deemed 
an  ex  post  facto  law."     And  so  Bugajewitz  v.  Adams,  22S  U.  S.  585,  591,  33 

Sup.  Ct.  607,  57  L.  Ed.  (1913j  (deportation  of  alien  for  past  prostitution — 

semble). 


Ch.  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME  185 

various  questions  put  to  him  he  declined  to  answer,  on  the  ground 
that  he  would  thereby  incriminate  himself. 

The  answer  to  this  is  found  in  a  proviso  to  the  general  appropria- 
tion act  of  February  25,  1903  (32  Stat.  .S.:4  904,  c  755  [U.  S.  Comp. 
St.  Supp.  1905,  p.  602]),  that  "no  person  M<all  be  prosecuted  or  be 
subjected  to  any  penalty  or  forfeiture  for  or  on  account  of  any 
transaction,  matter,  or  thing  concerning  which  he  may  testify  or  pro- 
duce evidence,  documentary  or  otherwise,  in  any  proceeding,  suit, 
or  prosecution  under  said  acts,"  of  which  the  antitrust  law  is  one. 
providing,  however,  that  "no  person  so  testifying  shall  be  exempt 
from  prosecution  or  punishment  for  perjury  committed  in  so  testify- 
ing."    *     *     * 

The  object  of  the  amendment  is  to  establish  in  express  language 
and  upon  a  firm  basis  the  general  principle  of  English  and  American 
jurisprudence,  that  no  one  shall  be  compelled  to  give  testimony  which 
may  expose  him  to  prosecution  for  crime.  It  is  not  declared  that 
he  may  not  be  compelled  to  testify  to  facts  which  may  impair  his 
reputation  for  probity,  or  even  tend  to  disgrace  him ;  but  the  line  is 
drawn  at  testimony  that  may  expose  him  to  prosecution.  If  the 
testimony  relate  to  criminal  acts  long  since  past,  and  against  the 
prosecution  of  which  the  statute  of  limitations  has  run,  or  for  which 
he  has  already  received  a  pardon  or  is  guaranteed  an  immunity,  the 
amendment  does  not  apply. 

The  interdiction  of  the  fifth  amendment  operates  only  where  a  wit- 
ness is  asked  to  incriminate  himself, — in  other  words,  to  give  testi- 
mony which  may  possibly  expose  him  to  a  criminal  charge.  But  if 
the  criminality  has  already  been  taken  away,  the  amendment  ceases 
to  apply.  The  criminality  provided  against  is  a  present,  not  a  past, 
criminality,  which  lingers  only  as  a  memory,  and  involves  no  present 
danger  of  prosecution.  To  put  an  extreme  case,  a  man  in  his  boy- 
hood or  youth  may  have  committed  acts  which  the  law  pronounces 
criminal;  but  it  would  never  be  asserted  that  he  would  thereby  he 
made  a  criminal  for  life.  It  is  here  that  the  law  steps  in  and  says 
that  if  the  offense  be  outlawed  or  pardoned,  or  its  criminality  has 
been  removed  by  statute,  the  amendment  ceases  to  apply. 

The  extent  of  this  immunity  was  fullv  considered  by  this  court  in 
Counselman  v.  Hitchcock,  142  U.  S.  547.  12  Sup.  Ct.  195,  35  L.  Ed. 
1110,  3  Interst.  Com.  R.  816.  in  which  the  immunity  offered  hv  Rev. 
St.  §  860  (U.  S.  Comp.  St.  1901,  p.  661),  was  declared  to  be'insuf- 
ficient.  In  consequence  of  this  decision  an  act  was  passed  applicable 
to  testimony  before  the  Interstate  Commerce  Commission  in  almost 
the  exact  language  of  the  act  of  February  25,  1903,  above  quoted. 
This  act  was  declared  bv  this  court  in  Brown  v.  Walker,  161  U.  S. 
591,  16  Sup.  Ct.  644,  40  L.  Ed.  819,  5  Interst.  Com.  R.  369,  to  afford 
absolute  immunity  against  prosecution  for  the  offense  to  which  the 
question  related,  and  deprived  the  witness  of  his  constitutional  right 
to  refuse  to  answer.     Indeed,  the  act  was  passed  apparently  to  meet 


186  FUNDAMENTAL    RIGHTS  (Part  2 

the  declaration  in  Counselman  v.  Hitchcock  (142  U.  S.  586,  12  Sup. 
Ct.  206,  35  L.  Ed.  1122,  3  Interst.  Com.  R.  828),  that  "a  statutory  en- 
actment, to  be  valid,  must  afford  absolute  immunity  against  future 
prosecution  for  the  offense  to  which  the  question  relates."  If  the 
constitutional  amendment  were  unaffected  by  the  immunity  statute, 
it  would  put  it  within  the  power  of  the  witness  to  be  his  own  judge 
as  to  what  would  tend  to  incriminate  him,  and  would  justify  him  in 
refusing  to  answer  almost  any  question  in  a  criminal  case,  unless  it 
clearly  appeared  that  the  immunity  was  not  set  up  in  good  faith. 

We  need  not  restate  the  reasons  given  in  Brown  v.  Walker,  both 
in  the  opinion  of  the  court,  and  in  the  dissenting  opinion,  wherein  all 
the  prior  authorities  were  reviewed,  and  a  conclusion  reached  by  a 
majority  of  the  court,  which  fully  covers  the  case  under  considera- 
tion. 

The  suggestion  that  a  person  who  has  testified  compulsorily  before 
a  grand  jury  may  not  be  able,  if  subsequently  indicted  for  some  mat- 
ter concerning  which  he  testified,  to  procure  the  evidence  necessary 
to  maintain  his  plea,  is  more  fanciful  than  real.  He  would  have  not 
only  his  own  oath  in  support  of  his  immunity,  but  the  notes  often, 
though  not  always,  taken  of  the  testimony  before  the  grand  jury,  as 
well  as  the  testimony  of  the  prosecuting  officer,  and  of  every  mem- 
ber of  the  jury  present.  It  is  scarcely  possible  that  all  of  them  would 
have  forgotten  the  general  nature  of  his  incriminating  testimony  or 
that  any  serious  conflict  would  arise  therefrom.  In  any  event,  it  is  a 
question  relating  to  the  weight  of  the  testimony,  which  could  scarcely 
be  considered  in  determining  the  effect  of  the  immunity  statute.  The 
difficulty  of  maintaining  a  case  upon  the  available  evidence  is  a  dan- 
ger which  the  law  does  not  recognize.  In  prosecuting  a  case,  or  in 
setting  up  a  defense,  the  law  takes  no  account  of  the  practical  difficult); 
which  either  party  may  have  in  procuring  his  testimony.  It  judges 
of  the  law  by  the  facts  which  each  party  claims,  and  not  by  what  he 
may  ultimately  establish. 

The  further  suggestion  that  the  statute  offers  no  immunity  from 
prosecution  in  the  state  courts  was  also  fully  considered  in  Brown 
v.  Walker,  and  held  to  be  no  answer.  The  converse  of  this  was  also 
decided  in  Jack  v.  Kansas,  199  U.  S.  372,  26  Sup.  Ct.  73,  50  L. 
Ed.  234,  4  Ann.  Cas.  689,— namely,  that  the  fact  that  an  immunity 
granted  to  a  witness  under  a  state  statute  would  not  prevent  a  prose- 
cution of  such  witness  for  a  violation  of  a  federal  statute  did  not  in- 
validate such  statute  under  the  fourteenth  amendment.  It  was  held 
both  by.  this  court  and  by  the  supreme  court  of  Kansas  that  the  pos- 
sibility that  information  given  by  the  witness  might  be  used  under 
the  federal  act  did  not  operate  as  a  reason  for  permitting  the  witness 
to  refuse  to  answer,  and  that  a  danger  so  unsubstantial  and  remote 
did  not  impair  the  legal  immunity.  Indeed,  if  the  argument  were  a 
sound  one  it  might  be  carried  still  further  and  held  to  apply  not  only 


C'h.  6)        PROTECTION  TO  PERSON8  ACCUSED  OF  CRIMB  187 

to  state  prosecutions  within  the  same  jurisdiction,  but  to  prosecutions 
under  the  criminal  laws  of  other  states  to  which  the  witness  might 
have  subjected  himself.  The  question  has  been  fully  considered  in 
England,  and  the  conclusion  reached  by  the  courts  of  that  country 
that  the  only  danger  to  be  considered  is  one  arising  within  the  same 
jurisdiction  and  under  the  same  sovereignty.  Queen  v.  Boyes, 
&  S.  311 ;  King  of  the  Two  Sicilies  v.  Willcox,  7  St.  Tr.  (N.  S.)  1049, 
1068;  State  v.  March,  46  N.  C.  (1  Jones  L.)  526;  State  v.  Thomas, 
98  N.  C.  599,  4  S.  E.  518,  2  Am.  St.  Rep.  351.  The  entire  question 
of  immunity  is  also  exhaustively  treated  in  Wigmore  on  Evidence. 
§§  2255-2259.     *     *     * 

I  •nt  it  is  further  insisted  that,  while  the  immunity  statute  may  pro- 
tect individual  witnesses,  it  would  not  protect  the  corporation  of 
which  appellant  was  the  agent  and  representative.  This  is  true,  but 
the  answer  is  that  it  was  not  designed  to  do  so.  The  right  of  a  per- 
son under  the  fifth  amendment  to  refuse  to  incriminate  himself  is 
purely  a  personal  privilege  of  the  witness.  It  was  never  intended 
to  permit  him  to  plead  the  fact  that  some  third  person  might  be  in- 
criminated by  his  testimony,  even  though  he  were  the  agent  of  such 
person.  A  privilege  so  extensive  might  be  used  to  put  a  stop  to  the 
examination  of  every  witness  who  was  called  upon  to  testify  before 
the  grand  jury  with  regard  to  the  doings  or  business  of  his  prin- 
cipal, whether  such  principal  were  an  individual  or  a  corporation. 
The  question  whether  a  corporation  is  a  "person"  within  the  mean- 
ing of  this  amendment  really  does  not  arise,  except,  perhaps,  where 
a  corporation  is  called  upon  to  answer  a  bill  of  discovery,  since  it 
can  only  be  heard  by  oral  evidence  in  the  person  of  some  one  of  its 
agents  or  employees.  The  amendment  is  limited  to  a  person  who 
shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  him- 
self;  and  if  he  cannot  set  up  the  privilege  of  a  third  person,  he  cer- 
tainly cannot  set  up  the  privilege  of  a  corporation.  As  the  combina- 
tion or  conspiracies  provided  against  by  the  Sherman  anti-trust  act 
can  ordinarily  be  proved  only  by  the  testimony  of  parties  thereto, 
in  the  person  of  their  agents  or  employees,  the  privilege  claimed 
would  practically  nullify  the  whole  act  of  Congress.  Of  what  use 
would  it  be  for  the  legislature  to  declare  these  combinations  unlaw- 
ful if  the  judicial  power  may  close  the  door  of  access  to  every  avail- 
able source  of  information  upon  the  subject?  Indeed,  so  strict  is 
the  rule  that  the  privilege  is  a  personal  one  that  it  has  been  held  in 
some  cases  that  counsel  will  not  be  allowed  to  make  the  objection. 
We  hold  that  the  questions  should  have  been  answered. 

3.  The  second  branch  of  the  case  relates  to  the  nonproduction  by 
the  witness  of  the  books  and  papers  called  for  by  the  subpoena  duces 
tecum.  The  witness  put  his  refusal  on  the  ground,  first,  that  it  was 
impossible  for  him  to  collect  them  within  the  time  allowed;  second, 
because  he  was  advised  by  counsel  that,  under  the  circumstances,  he 


188  FUNDAMENTAL    RIGHTS  (Part  2 

was  under  no  obligation  to  produce  them;  and  finally,  because  they 
might  tend  to  incriminate  him. 

Had  the  witness  relied  solely  upon  the  first  ground,  doubtless  the 
court  would  have  given  him  the  necessary  time.  The  last  ground 
we  have  already  held  untenable.  While  the  second  ground  does  not 
set  forth  with  technical  accuracy  the  real  reason  for  declining  to 
produce  them,  the  witness  could  not  be  expected  to  speak  with  legal 
exactness,  and  we  think  is  entitled  to  assert  that  the  subpoena  was 
an  infringement  upon  the  fourth  amendment  to  the  Constitution, 
which  declares  that  "the  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  paper,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized." 

The  construction  of  this  amendment  was  exhaustively  considered 
in  the  case  of  Boyd  v.  United  States,  116  U.  S.  616,  622,  634,  6  Sup. 
Ct.  524,  528,  534,  29  L.  Ed.  746,  748,  752,  which  was  an  information 
in  rem  against  certain  cases  of  plate  glass,  alleged  to  have  been  im- 
ported in  fraud  of  the  revenue  acts.  On  the  trial  it  became  important 
to  show  the  quantity  and  value  of  the  glass  contained  in  a  number  of 
cases  previously  imported;  and  the  district  judge,  under  section  5  of 
the  act  of  June  22,  1S74  (18  Stat.  187,  c.  391  [U.  S.  Comp.  St.  1901, 
p.  2018]),  directed  a  notice  to  be  given  to  the  claimants,  requiring 
them  to  produce  the  invoice  of  these  cases  under  penalty  that  the  al- 
legations respecting  their  contents  should  be  taken  as  confessed.  We 
held  "that  a  compulsory  production  of  a  man's  private  papers  to  es- 
tablish a  criminal  charge  against  him,  or  to  forfeit  his  property,  is 
within  the  scope  of  the  fourth  amendment  to  the  Constitution,  in  all 
cases  in  which  a  search  and  seizure  would  be,"  and  that  the  order  in 
question  was  an  unreasonable  search  and  seizure  within  that  amend- 
ment. 

The  history  of  this  provision  of  the  Constitution  and  its  connection 
with  the  former  practice  of  general  warrants,  or  writs  of  assistance, 
was  given  at  great  length,  and  the  conclusion  reached  that  the  com- 
pulsory extortion  of  a  man's  own  testimony,  or  of  his  private  papers, 
to  connect  him  with  a  crime  or  a  forfeiture  of  his  goods,  is  illegal, 
"is  compelling  a  man  to  be  a  witness  against  himself,  within  the  mean- 
ing of  the  fifth  amendment  to  the  Constitution,  and  is  the  equivalent 
of  a  search  and  seizure — and  an  unreasonable  search  and  seizure — 
within-  the  fourth  amendment." 

Subsequent  cases  treat  the  fourth  and  fifth  amendments  as  quite 
distinct,  having  different  histories,  and  performing  separate  func- 
tions. Thus,  in  the  case  of  Interstate  Commerce  Commission  v.  Brim- 
son,  154  U.  S.  447,  14  Sup.  Ct.  1125,  38  L.  Ed.  1047,  4  Interst.  Com. 
R.  545,  the  constitutionality  of  the  interstate  commerce  act,  so  far 


Ch.  C)        PROTIXTION  TO  PKUSONS  ACCUSED  OF  CRIME  189" 

as  it  authorized  the  Circuit  Courts  to  use  their  processes  in  aid  of 
inquiries  before  the  Commission,  was  sustained,  the  court  observing 
in  that  connection :  "It  was  clearly  competent  for  Congress,  to  that 
end,  to  invest  the  Commission  with  authority  to  require  the  attendance 
and  testimony  of  witnesses,  and  the  production  of  books,  papers, 
tariffs,  contracts,  agreements,  and  documents  relating  to  any  mat- 
ter legally  committed  to  that  body  for  investigation.  We  do  not  un- 
derstand that  any  of  these  propositions  are  disputed  in  this  case." 

The  case  of  Adams  v.  New  York,  192  U.  S.  585,  24  Sup.  Ct.  372. 
48  L.  Ed.  575,  which  was  a  writ  of  error  to  the  supreme  court  of 
the  state  of  New  York,  involving  the  seizure  of  certain  gambling 
paraphernalia,  was  treated  as  involving  the  construction  of  the  fourth 
and  fifth  amendments  to  the  federal  Constitution.  It  was  held,  in 
substance,  that  the  fact  that  papers  pertinent  to  the  issue  may  have 
been  illegally  taken  from  the  possession  of  the  party  against  whom 
they  are  offered  was  not  a  valid  objection  to  their  admissibility;  that 
the  admission  as  evidence  in  a  criminal  trial  of  papers  found  in  the 
execution  of  a  valid  search  warrant  prior  to  the  indictment  was  not 
an  infringement  of  the  fifth  amendment,  and  that,  by  the  introduc- 
tion of  such  evidence,  defendant  was  not  compelled  to  incriminate 
himself.  The  substance  of  the  opinion  is  contained  in  the  following 
paragraph.  It  was  contended  that:  "If  a  search  warrant  is  issued  for 
stolen  property,  and  burglars'  tools  be  discovered  and  seized,  they 
are  to  be  e^ckidetl  from  testimony  by  force  of  these  amendments. 
We  think  they  were  never  intended  to  have  that  effect,  but  are  rather 
designed  to  protect  against  compulsory  testimony  from  a  defendant 
against  himself  in  a  criminal  trial,  and  to  punish  wrongful  invasion 
of  the  home  of  the  citizen  or  the  unwarranted  seizure  of  his  papers 
and  property,  and  to  render  invalid  legislation  or  judicial  procedure 
having  such  effect." 

The  Boyd  Case  must  also  be  read  in  connection  with  the  still  later 
case  of  Interstate  Commerce  Commission  v.  Baird.  194  U.  S.  25.  24 
Sup.  Ct.  563,  4S  L.  Ed.  860,  which  arose  upon  the  petition  of  the 
Commission  for  orders  requiring  the  testimony  of  witnesses  and  the 
production  of  certain  books,  papers,  and  documents.  The  case  grew 
out  of  a  complaint  against  certain  railway  companies  that  they 
charged  unreasonable  and  unjust  rates  for  the  transportation  of  an- 
thracite coal.  Objection  was  made  to  the  production  of  certain  con- 
tracts between  these  companies  upon  the  ground  that  it  would  com- 
pel the  witnesses  to  furnish  evidence  against  themselves,  in  violation 
of  the  fifth  amendment,  and  would  also  subject  the  parties  to  unrea- 
sonable searches  and  seizures.  It  was  held  that  the  circuit  court 
erred  in  holding  the  contracts  to  be  irrelevant,  and  in  refusing  to  or- 
der their  production  as  evidence  by  the  witnesses  who  were  parties 
to  the  appeal.  In  delivering  the  opinion  of  the  court  the  Boyd  Case 
was  again  considered  in  connection  with  the  fourth  and  fifth  amend- 
ments, and  the  remark  made  by  .Mr.  Justice  Day  that  the  immunity 


190  FUNDAMENTAL    RIGHTS  (Part  2 

statute  of  1893  "protects  the  witness  from  such  use  of  the  testimony 
given  as  will  result  in  his  punishment  for  crime  or  the  forfeiture  of 
his  estate." 

Having  already  held  that,  by  reason  of  the  immunity  act  of  1903, 
the  witness  could  not  avail  himself  of  the  fifth  amendment,  it  follows 
that  he  cannot  set  up  that  amendment  as  against  the  production  of 
the  books  and  papers,  since,  in  respect  to  these,  he  would  also  be  pro- 
tected by  the  immunity  act.  We  think  it  quite  clear  that  the  search 
and  seizure  clause  of  the  fourth  amendment  was  not  intended  to  in- 
terfere with  the  power  of  courts  to  compel,  through  a  subpcena  duces 
tecum,  the  production,  upon  a  trial  in  court,  of  documentary  evi- 
dence. As  remarked  in  Summers  v.  Moseley,  2  Comp.  &  M.  477,  it 
would  be  "utterly  impossible  to  carry  on  the  administration  of  jus- 
tice" without  this  writ.  The  following  authorities  are  conclusive 
upon  this  question :  Amey  v.  Long,  9  East,  473 ;  Bull  v.  Loveland, 
10  Pick.  (Mass.)  9;  United  States  Exp.  Co.  v.  Henderson,  69  Iowa, 
40.  28  N.  W.  426;   Greenl.  Ev.  469a. 

If,  whenever  an  officer  or  employee  of  a  corporation  were  sum- 
moned before  a  grand  jury  as  a  witness  he  could  refuse  to  produce 
the  books  and  documents  of  such  corporation,  upon  the  ground  that 
they  would  incriminate  the  corporation  itself,  it  would  result  in  the 
failure  of  a  large  number  of  cases  where  the  illegal  combination  was 
determinable  only  upon  the  examination  of  such  papers.  Conceding 
that  the  witness  was  an  officer  of  the  corporation  under  investigation, 
and  that  he  was  entitled  to  assert  the  rights  of  the  corporation  with 
respect  to  the  production  of  its  books  and  papers,  we  are  of  the 
opinion  that  there  is  a  clear  distinction  in  this  particular  between  an 
individual  and  a  corporation,  and  that  the  latter  has  no  right  to  re- 
fuse to  submit  its  books  and  papers  for  an  examination  at  the  suit 
of  the  state.  The  individual  may  stand  upon  his  constitutional  rights 
as  a  citizen.  He  is  entitled  to  carry  on  his  private  business  in  his 
own  way.  His  power  to  contract  is  unlimited.  He  owes  no  duty 
to  the  state  or  to  his  neighbors  to  divulge  his  business,  or  to  open 
his  doors  to  an  investigation,  so  far  as  it  may  tend  to  criminate  him. 
He  owes  no  such  duty  to  the  state,  since  he  receives  nothing  there- 
from, beyond  the  protection  of  his  life  and  property.  His  rights  are 
such  as  existed  by  the  law  of  the  land  long  antecedent  to  the  or- 
ganization of  the  state,  and  can  only  be  taken  from  him  by  due  pro- 
cess of  law,  and  in  accordance  with  the  Constitution.  Among  his 
rights  are  a  refusal  to  incriminate  himself,  and  the  immunity  of  him- 
self and  his  property  from  arrest  or  seizure  except  under  a  war- 
rant of  the  law.  He  owes  nothing  to  the  public  so  long  as  he  does 
not  trespass  upon  their  rights. 

Upon  the  other  hand,  the  corporation  is  a  creature  of  the  state. 
It  is  presumed  to  be  incorporated  for  the  benefit  of  the  public.  It 
receives  certain  special  privileges  and  franchises,  and  holds  them 
subject  to  the  laws  of  the  state  and  the  limitations  of  its  charter.    Its 


Ch.6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME  191 

powers  are  limited  by  law.  It  can  make  no  contract  not  authorized 
by  its  charter.  Its  rights  to  act  as  a  corporation  are  only  preserved 
to  it  so  long  as  it  obeys  the  laws  of  its  creation.  There  is  a  reserved 
right  in  the  legislature  to  investigate  its  contracts  and  find  out  whether 
it  has  exceeded  its  powers.  It  would  be  a  strange  anomaly  to  hold 
that  a  state,  having  chartered  a  corporation  to  make  use  of  certain 
franchises,  could  not,  in  the  exercise  of  its  sovereignty,  inquire  how 
these  franchises  had  been  employed,  and  whether  they  had  been 
abused,  and  demand  the  production  of  the  corporate  books  and  pa- 
pers for  that  purpose.  The  defense  amounts  to  this:  That  an  officer 
of  a  corporation  which  is  charged  with  a  criminal  violation  of  the 
statute,  may  plead  the  criminality  of  Mich  corporation  as  a  r 
to  produce  its  books.  To  state  this  proposition  is  to  answer  it.  While 
an  individual  may  lawfully  refuse  to  answer  incriminating  questions 
unless  protected  by  an  immunity  statute,  it  does  not  follow  that  a 
corporation,  vested  with  special  privileges  and  franchises,  may  re- 
fuse to  show  its  hand  when  charged  with  an  abuse  of  such  pri . 

It  is  true  that  the  corporation  in  this  case  was  chartered  under  the 
laws  of  New  Jersey,  and  that  it  receives  its  franchise  from  the  legis- 
lature of  that  state;  but  such  franchises,  so  far  as  they  involve  ques- 
tions of  interstate  commerce,  must  also  be  exercised  in  subordination 
to  the  power  of  Congress  to  regulate  such  commerce,  and  in  respect 
to  this  the  general  government  may  also  assert  a  sovereign  authority 
to  ascertain  whether  such  franchises  have  been  exercised  in  a  lawful 
manner,  with  a  due  regard  to  its  own  laws.  Being  subject  to  thi~ 
dual  sovereignty,  the  general  government  possesses  the  same  right  to 
see  that  its  own  laws  are  respected  as  the  state  would  have  with  re 
spect  to  the  special  franchises  vested  in  it  by  the  laws  of  the  state. 
The  powers  of  the  general  government  in  this  particular  in  the  vindi- 
cation of  its  own  laws  are  the  same  as  if  the  corporation  had  been 
created  by  an  act  of  Congress.  It  is  not  intended  to  intimate,  how- 
ever, that  it  has  a  general  visitatorial  power  over  the  state  corpora- 
tions. 

4.  Although,  for  the  reasons  above  stated,  we  are  of  the  opinion 
that  an  officer  of  a  corporation  which  is  charged  with  a  violation  of  a 
statute  of  the  state  of  its  creation,  or  of  an  act  of  Congress  passed 
in  the  exercise  of  its  constitutional  powers,  cannot  refuse  to  produce 
the  books  and  papers  of  such  corporation,  we  do  not  wish  to  be  un- 
derstood as  holding  that  a  corporation  is  not  entitled  to  immunity, 
under  the  fourth  amendment,  against  unreasonable  searches  and  sei- 
zures. A  corporation  is,  after  all,  but  an  association  of  individuals  un- 
der an  assumed  name  and  with  a  distinct  legal  entity.  In  organizing 
itself  as  a  collective  body  it  waives  no  constitutional  immunities  ap- 
propriate to  such  body.  Its  property  cannot  be  taken  without  com- 
pensation. It  can  only  be  proceeded  against  by  due  process  of  law. 
and  is  protected,  under  the  fourteenth  amendment,  against  unlawful 


192  FUNDAMENTAL    RIGHTS  (Part  2 

discrimination.  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  150,  154, 
17  Sup.  Ct.  255,  41  L.  Ed.  666,  667,  and  cases  cited.  Corporations 
are  a  necessary  feature  of  modern  business  activity,  and  their  ag- 
gregated capital  has  become  the  source  of  nearly  all  great  enterprises. 

We  are  also  of  opinion  that  an  order  for  the  production  of  books 
and  papers  may  constitute  an  unreasonable  search  and  seizure  within 
the  fourth  amendment.  While  a  search  ordinarily  implies  a  quest 
by  an  officer  of  the  law,  and  a  seizure  contemplates  a  forcible  dis- 
possession of  the  owner,  still,  as  was  held  in  the  Boyd  Case,  the  sub- 
stance of  the  offense  is  the  compulsory  production  of  private  papers, 
whether  under  a  search  warrant  or  a  subpoena  duces  tecum,  against 
which  the  person,  be  he  individual  or  corporation,  is  entitled  to  pro- 
tection. 

Applying  the  test  of  reasonableness  to  the  present  case,  we  think 
the  subpeena  duces  tecum  is  far  too  sweeping  in  its  terms  to  be  re- 
garded as  reasonable.  It  does  not  require  the  production  of  a  single 
contract,  or  of  contracts  with  a  particular  corporation,  or  a  limited 
number  of  documents,  but  all  understandings,  contracts,  or  corre- 
spondence between  the  MacAndrews  &  Forbes  Company,  and  no  less 
than  six  different  companies,  as  well  as  all  reports  made  and  accounts 
rendered  by  such  companies  from  the  date  of  the  organization  of  the 
MacAndrews  &  Forbes  Company,  as  well  as  all  letters  received  by 
that  company  since  its  organization  from  more  than  a  dozen  different 
companies,  situated  in  seven  different  states  in  the  Union. 

If  the  writ  had  required  the  production  of  all  the  books,  papers, 
and  documents  found  in  the  office  of  the  MacAndrews  &  Forbes 
Company,  it  would  scarcely  be  more  universal  in  its  operation  or 
more  completely  put  a  stop  to  the  business  of  that  company.  In- 
deed, it  is  difficult  to  say  how  its  business  could  be  carried  on  after 
it  had  been  denuded  of  this  mass  of  material,  which  is  not  shown  to 
be  necessary  in  the  prosecution  of  this  case,  and  is  clearly  in  violation 
of  the  general  principle  of  law  with  regard  to  the  particularity  re- 
quired in  the  description  of  documents  necessary  to  a  search  warrant 
or  subpoena.  Doubtless  many,  if  not  all,  of  these  documents  may  ul- 
timately be  required,  but  some  necessity  should  be  shown,  either  from 
an  examination  of  the  witnesses  orally,  or  from  the  known  transac- 
tions of  these  companies  with  the  other  companies  implicated,  or  some 
evidence  of  their  materiality  produced,  to  justify  an  order  for  the 
production  of  such  a  mass  of  papers.  A  general  subpeena  of  this  de- 
scription is  equally  [as]  indefensible  as  a  search  warrant  would  be  if 
couched  in  similar  terms.  Ex  parte  Brown,  72  Mo.  83,  37  Am.  Rep. 
426;  'Shaftsbury  v.  Arrowsmith,  4  Ves.  Jr.  66;  Lee  v.  Angas,  L.  R. 
2  Eq.  59. 

Of  course,  in  view  of  the  power  of  Congress  over  interstate  com- 
merce, to  which  we  have  adverted,  we  do  not  wish  to  be  understood 
as  holding  that  an  examination  of  the  books  of  a  corporation,  if  duly 


Ch.  G)        PUOTECTION  TO  PERSONS  ACCUSED  OF  CIUME  193 

authorized  by  act  of  Congress,  would  constitute  an  unreasonable 
search  and  seizure  within  the  fourth  amendment. 

Order  affirmed.1 

[Hari.an  and  McKknna,  JJ.,  gave  concurring  opinions  on  the 
ground  that  the  fourth  amendment  extended  no  protection  whatever 
to  corporations.  Brkwur,  J.,  gave  a  dissenting  opinion  in  which  Ful- 
ler, C.  J.,  concurred.] 


SECTION    3.— JURY    TRIAL— PROCEDURE    AND    PUNISH- 
MENT 


.  THOMPSON   v.   UTAH. 

(Supreme  Court  of  United  States,   1898.     170  D.  S.  313.  18  Sup.  Ct  620,  42 
L,  Ed.   1001.) 

[Error  to  the  Supreme  Court  of  Utah.  The  facts  are  printed  ante, 
p.  172.] 

Air.  Justice  Harlan.  *  *  *  The  Constitution  of  the  United 
States  provides:  "The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury;  and  such  trial  shall  be  held  in  the  state  where 

i  As  to  the  kind  of  facts  and  form  of  disclosure  protected  by  the  constitu- 
tional provision,  Bee  i  Wigmore,  Evidence,  §§  2264-2267,  as  well  as  Boyd  v. 
United,  States,  Counselinan  v.  Hitchcock,  Brown  v.  Walker,  and  Jack  v.  Kan- 
sas, all  cited  and  discussed  in  the  principal  case,  and  In  re  Ja< 
727,  24  L.  Ed.  877  (1878)  (protection  afforded  to  sealed  letters  in  the  mall). 
As  to  the  compulsory  exhibition  of  any  part  of  a  defendant's  person,  see,  also. 
10  Mich.  L.   Rev.  400.  401. 

lu  Wilson  v.  United  Slates.  221  U.  S.  361,  377-3SG,  31  Sup.  Ct.  638,  55  t*  Ed. 
771.  Ann.  ('as.  1912D,  558  (1911)  it  was  held  that  a  corporation  could  not 
claim  protection  from  self-crimination  against  the  visitatorial  power  of  the 
state  or  United  States,  even  when  the  subpoena  for  Its  books  and  papers  was 
directed  to  it,  instead  of  to  its  agent,  and  that  the  agent  in  actual  custody  of 
such  documents  ou  behalf  of  the  corporation  must  produce  them  in  Obedience 
to  such  a  subpoena,  even  though  they  contained  matter  Incriminating  himself 
personally,  lie  was  protected  only  as  to  bis  own  private  papers  In  his  cus- 
tody. The  same  rule  applies  (Semble,  221  U.  8,  380,  81  Sup.  Ct  544,  55  I-.  Ed. 
771.  Ann.  Oas.  UH2D,  55S)  to  all  public  records  aud  those  required  by  law 
to  he  kept  for  the  information  of  the  government 

in  Wheeler  v.  United  states.  226  U.  S.  178,  33  Sup.  Ct  158,  57  t*  Ed.  — 
(ISIS),  the  same  ruling  was  applied  to  books  of  a  dissolved  corporation  in 
the  possession  of  its  former  officers;  and  in  Grant  v.  United  states,  227  D 
s.  71,  33  Snp.  Ct  190,  57  L.  Ed.  —  (1913)  this  was  affirmed,  even  when  title 
to  the  corporate  documents  had  passed  t"  their  present  possessor,  and  would 
tend  to  incriminate  him.  Compare  Johnson  v.  United  states.  228  V.  s.  -loT. 
83  snp,  Ct  .".72.  57  L.   Ed.  —  11913). 

See  Consolidated  Rendering  Co.  v.  Vermont,  207  U.  S.  541.  2S  Sup.  I  t.  17S 
62  L.  Ed.  827,  12  Ann.  Cas.  Cos  (1!)0S)  (similar  powers  exercised  by  state  court 
under  Fourteenth  am  admenl  I. 

As  to   the  non-applicability   to  corporations   of  various  constitutional  guar 
anties,  see  San  Mateo  Co.  v.  So.  °ac-  Rj„  post   p.  ^19. 
iiALL Const  i,. — 13 


194  FUNDAMENTAL    EIGHTS  (Part  2 

the  said  crimes  shall  have  been  committed ;  but  when  not  committed 
within  any  state,  the  trial  shall  be  at  such  place  or  places  as  the 
congress  may  by  law  have  directed."  Const.  U.  S.  art.  3,  §  2.  And  by 
the  sixth  amendment  of  the  Constitution  it  is  declared:.  "In  all;  crim- 
inal prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial,  by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defense."    *    *    * 

Assuming,  then,  that  the  provisions  of  the  Constitution  relating  to 
trials  for  crimes  and  to  criminal  prosecutions  apply  to  the  territories 
of  the  United  States,  the  next  inquiry  is  whether  the  jury  referred  to 
in  the  original  Constitution  and  in  the  sixth  amendment  is  a  jury  con- 
stituted, as  it  was  at  common  law,  of  twelve  persons,  neither  more  nor 
less.  2  Hale,  P.  C.  161 ;  1  Chit.  Cr.  Law,  505.  This  question  must 
be  answered  in  the  affirmative.  When  Magna  Charta  declared  that  no 
freeman  should  be  deprived  of  life,  etc.,  "but  by  the  judgment  of  his 
peers  or  by  the  law  of  the  land,"  it  referred  to  a  trial  by  twelve  jurors. 
Those  who  emigrated  to  this  country  from  England  brought  with 
them  this  great  privilege  "as  their  birthright  and  inheritance,  as  a 
part  of  that  admirable  common  law  which  had  fenced  around  and  in- 
terposed barriers  on  every  side  against  the  approaches  of  arbitrary 
power."  2  Story,  Const.  §  1779.  In  Bac.  Abr.  tit.  "Juries,"  it  is  said : 
"The  trial  per  pais,  or  by  a  jury  of  one's  country,  is  justly  esteemed 
one  of  the  principal  excellencies  of  our  Constitution ;  for  what  greater 
security  can  any  person  have  in  his  life,  liberty,  or  estate  than  to  be 
sure  of  not  being  devested  of  nor  injured  in  any  of  these  without  the 
sense  and  verdict  of  twelve  honest  and  impartial  men  of  his  neighbor- 
hood ?  And  hence  we  find  the  common  law  herein  confirmed  by  Magna 
Charta."  So,  in  1  Hale,  P.  C.  33 :  "The  law  of  England  hath  afforded 
the  best  method  of  trial  that  is  possible  of  this  and  all  other  matters 
of  fact,  namely,  by  a  jury  of  twelve  men  all  concurring  in  the  same 
judgment,  by  the  testimony  of  witnesses  viva  voce  in  the  presence  of 
the  judge  and  jury,  and  by  the  inspection  and  direction  of  the  judge." 

It  must  consequently  be  taken  that  the  word  "jury"  and  the  words 
"trial  by  jury"  were  placed  in  the  Constitution  of  the  United  States 
with  reference  to  the  meaning  affixed  to  them  in  the  law  as  it  was  in 
this  country  and  in  England  at  the  time  of  the  adoption  of  that  instru- 
ment;- and  that  when  Thompson  committed  the  offense  of  grand  lar- 
ceny in  the  territory  of  Utah — which  was  under  the  complete  jurisdic- 
tion of  the  United  States  for  all  purposes  of  government  and  legisla- 
tion— the  supreme  law  of  the  land  required  that  he  should  be  tried  by 
a  jury  composed  of  not  less  than  twelve  persons.  And  such  was  the 
requirement  of  the  statutes  of  Utah  while  it  was  a  territory. 


Ch  6)        PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME  195 

Was  it,  then,  competent  for  the  state  of  Utah,  upon  its  adi; 
into  the  Union,  to  do,  in  respect  of  Thompson's  crime,  what  the  United 
States  could  not  have  done  while  Utah   was  a  territory,  namely,  to 
provide  for  his  trial  by  a  jury  of  eight  persons?    *    *    *     [This  was 
held  invalid  as  an  ex  post  facto  law.    See  ante,  p.  173.] 

It  is  said  that  the  accused  did  not  object,  until  after  verdict,  to  a 
trial  jury  composed  of  eight  persons,  and  therefore  he  should  not  be 
heard  to  say  that  his  trial  by  such  a  jury  was  in  violation  of  his  consti- 
tutional rights.  It  is  sufficient  to  say  that  it  was  not  in  the  power  of 
one  accused  of  felony,  by  consent  expressly  given  or  by  his  silence,  to 
authorize  a  jury  of  only  eight  persons  to  pass  upon  the  question  of 
his  guilt.  The  law  in  force  when  this  crime  was  committed  did  not 
permit  any  tribunal  to  deprive  him  of  his  liberty,  except  one  constituted 
of  a  court  and  a  jury  of  twelve  persons.  In  the  case  of  Hopt  v.  Utah 
[110  U.  S.  574,  4  Sup.  Ct.  202,  28  L.  Ed.  262],  the  question  arose 
whether  the  ric^ht  of  an  accused,  charged  with  felony,  to  be  present 
before  triors  of  challenges  to  jurors  was  waived  by  his  failure  to  ob- 
ject to  their  retirement  from  the  court  room,  or  to  their  trial  of  the 
several  challenges  in  his  absence.     The  court  said: 

"We  are  of  opinion  that  it  was  not  within  the  power  of  the  ac- 
cused or  his  counsel  to  dispense  with  the  statutory  requirement  as  to 
his  personal  presence  at  the  trial.  The  argument  to  the  contrary  nec- 
essarily proceeds  upon  the  ground  that  he  alone  is  concerned  as  to  the 
mode  by  which  he  may  be  deprived  of  his  life  or  liberty,  and  that  the 
chief  object  of  the  prosecution  is  to  punish  him  for  the  crime  charged. 
But  this  is  a  mistaken  view  as  well  of  the  relations  which  the  accused 
holds  to  the  public  as  of  the  end  of  human  punishment.  The  natural 
life,  says  Blackstone,  cannot  legally  be  disposed  of  or  destroyed  by  any 
individual,  neither  by  the  person  himself  nor  by  any  other  of  his  fellow 
creatures,  merely  upon  their  own  authority.  1  Bl.  Comm.  133.  The 
public  has  an  interest  in  his  life  and  liberty.  Neither  can  be  lawfully 
taken  except  in  the  mode  prescribed  by  law.  That  which  the  law  makes 
essential  in  proceedings  involving  the  deprivation  of  life  or  liberty 
cannot  be  dispensed  with  or  affected  by  the  consent  of  the  accused, 
much  less  by  his  mere  failure,  when  on  trial  and  in  custody,  to  object  to 
unauthorized  methods.  The  great  end  of  punishment  is  not  the  ex- 
piation or  atonement  of  the  offense  committed,  but  the  prevention  of 
future  offenses  of  the  same  kind.  4  Bl.  Comm.  11.  Such  bein^  the 
relation  which  the  citizen  holds  to  the  public,  and  the  object  of  punish- 
ment for  public  wrongs,  the  legislature  has  deemed  it  essential  to  the 
protection  of  one  whose  life  or  liberty  is  involved  in  a  prosecution  for 
felony  that  he  shall  be  personally  present  at  the  trial ;  that  is,  at  every 
stage  of  the  trial  when  his  substantial  rights  may  be  affected  by  the 
proceedings  against  him.  If  he  be  deprived  of  his  life  or  liberty  with- 
out being  so  present,  such  deprivation  would  be  without  that  due  pro- 
cess of  law  required  by  the  Constitution." 


196  FUNDAMENTAL    RIGHTS  (Part  2 

If  one  under  trial  for  a  felony  the  punishment  of  which  is  confine- 
ment in  a  penitentiary  could  not  legally  consent  that  the  trial  proceed 
in  his  absence,  still  less  could  he  assent  to  be  deprived  of  his  liberty 
by  a  tribunal  not  authorized  by  law  to  determine  his  guilt.    *    *    * 

Judgment  reversed.1 

[Brewer  and  Peckham,  JJ.,  dissented.] 

i  The  right  of  trial  by  jury  includes  all  of  its  substantial  common-law 
Incidents,  such  as  the  defendant's  right  of  challenge,  Lewis  v.  United  States, 
146  U.  S.  370,  13  Sup.  Ct.  136,  36  L.  Ed.  1011  (1892) ;  and  unanimity  of  ver- 
dict, Maxwell  v.  Dow,  post,  at  p.  225. 

"  'Trial  by  jury,'  in  the  primary  and  usual  sense  of  the  term  at  the  com- 
mon law  and  in  the  American  Constitutions,  is  not  merely  a  trial  by  a  jury  of 
12  men  before  an  officer  vested  with  authority  to  cause  them  to  be  summoned 
and  impaneled,  to  administer  oaths  to  them  and  to  the  constable  in  charge, 
and  to  enter  judgment  and  issue  execution  on  then;  verdict;  but  it  is  a 
trial  by  a  jury  of  12  men  in  the  presence  and  under  the  superintendence  of  a 
judge  empowered  to  instruct  them  on  the  law  and  to  advise  them  on  the  facts, 
and  (except  on  acquittal  of  a  criminal  charge)  to  set  aside  their  verdict,  if, 
in  his  opinion,  it  is  against  the  law  or  the  evidence." — Gray,  J.,  in  Capital 
Traction  Co.  v.  Hot  174  U.  S.  1,  13,  14,  19  Sup.  Ct.  580,  43  L.  Ed.  873  (1S99). 
This  power  of  the  federal  courts  to  advise  the  jury  upon  the  facts  cannot  be 
controlled  by  state  statutes  to  the  contrary,  though  they  may  be  valid  in  the 
state  courts.  Vicksburg  &  M.  Ey.  Co.  v.  Putnam,  118  TJ.  S.  545,  553,  7  Sup. 
Ct.  1,  30  L.  Ed.  257  (1886). 

Aliens  may  be  detained  in  confinement,  pending  deportation,  without  a  jury 
trial,  but  may  not  be  compelled  to  labor  or  to  suffer,  confiscation  of  property. 
Wong  Wing  v.  United  States,  post,  p.  9S1  note,  16  Sup.  Ct.  977,  41  L.  Ed. 
140.  The  constitutional  requirement  is  confined  to  crimes,  and  does  not 
include  misdemeanors  punishable  by  a  small  fine  or  short  imprisonment.  A 
jury  trial  of  the  latter  may  be  omitted  by  statute  or  waived  by  the  defendant 
Schick  v.  United  States,  195  U.  S.  65,  24  Sup.  Ct.  826,  49  L.  Ed.  99,  1  Ann. 
Cas.  585  (1904). 

Waiver  of  Trial  by  Jury. — "A  jury  of  12  men  being  the  only  legally  con- 
stituted tribunal  for  the  trial  of  an  indictment  for  a  felony,  it  necessarily  fol- 
lows that  the  court  or  judge  is  not  such  tribunal,  and  that,  in  the  absence 
of  a  jury,  he  has  by  law  no  jurisdiction.  There  is  no  law  which  authorizes 
him  to  sit  as  a  substitute  for  a  jury,  and  perform  their  functions  in  such 
cases,  and,  if  he  attempts  to  do  so,  his  act  must  be  regarded  as  nugatory. 
Especially  must  this  be  true  where  the  jury  are  not  only  the  judges  of  the 
facts  as  at  common  law,  but  are  also  the  judges  of  the  law  as  provided  by 
our  statute.  But  it  is  said  that  the  right  to  a  trial  by  a  jury  is  a  right  which 
the  defendant  may  waive.  This  may  be  admitted,  since  every  plea  of  guilty 
is,  in  legal  effect,  a  waiver  of  the  right  to  a  trial  by  the  legally  constituted 
tribunal.  But,  while  a  defendant  may  waive  his  right  to  a  jury  trial,  he  can- 
not by  such  waiver  confer  jurisdiction  to  try  him  upon  a  tribunal  which  has 
no  such  jurisdiction  by  law.  Jurisdiction  of  the  subject-matter  must  always 
oe  derived  from  the  law,  and  not  from  the  consent  of  the  parties,  but  in  the 
present  case  jurisdiction  is  sought  to  be  based,  not  upou  any  law  conferring 
it,  but  upon  the  defendant's  consent  and  agreement  to  waive  a  jury,  and  sub- 
mit her  cause  to  the  court  for  trial." — Bailey,  J.,  in  Harris  v.  People,  128  111. 
585.  591,  21  N.  E.  563,  564,  15  Am.  St.  Rep.  153  (1SS9). 

The  cases  upon  the  validity  of  waivers  of  jury  trial  in  criminal  cases  are 
collected  in  11   I-  K.  A.  (N.  S.)  1136  ft. 

As  to  the  validity  in  general  of  waivers  of  constitutional  rights  by  accused 
persons,  see  Starr  v.  State,  5  Okl.  Cr.  440,  467,  468,  115  Pac.  356,  367  (1911) 
(presence  of  accused — confronting  witnesses).  Doyle,  J.,  saying:  "Generally 
speaking,  the  constitutional  provisions  guaranteeing  to  every  accused  person 
in  a  criminal  action  certain  rights  may  be  separated  into  two  classes:  First, 
those  In  which  the  public  generally,  and  as  a  community,  is  interested,  as 
well  as  the  accused,  and  which  are  jurisdictional  as  affecting  the  power  of 


Cll.  7)      INTBB8TATB   PBIVILBQ&8  AND   IMMUNITIES  OF  CITIZENS  l'J" 

CHAPTER  VII 
INTERSTATE  PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS 


CORFIELD  v.  CORYELL  (1325)  4  Wash.  C.  C.  371,  380-382,  Fed. 
Cas.  No.  3,230,  Mr.  Justice  Washington  (upholding  a  New  Jersey 
statute  forbidding  any  person  not  an  actual  inhabitant  or  resident  of 
the  state  from  gathering  oysters  therein  on  board  any  vessel  not  wholly 
owned  by  an  inhabitant  or  resident  thereof): 

"2.  The  next  question  is,  whether  this  act  infringes  that  section  of 
the  Constitution  which  declares  that  'the  citizens  of  each  state  shall 
be  entitled  to  all  the  privileges  and  immunities  of  citizens  in  the 
several  states'?  The  inquiry  is,  what  are  the  privileges  and  immuni- 
ties of  citizens  in  the  several  states  ?  We  feel  no  hesitation  in  confin- 
ing these  expressions  to  those  privileges  and  immunities  which  are,  in 

the  court  to  try  the  cause:  second,  those  more  In  the  nature  of  privileges 
which  are  for  the  benefit  of  the  accused  alone,  and  do  not  affect  the  general 
public.  The  former  cannot  be  waived.  Jurisdiction  to  try  the  cause  is  con 
ferred  by  the  law.  Consent  cannot  confer  jurisdiction,  but  the  accused  may 
waive  a  constitutional  right  or  privilege  designed  for  his  protection,  where  no 
question  of  public  policy  is  involved.  Tl  e  public  as  well  as  the  accused  have 
an  interest  In  every  criminal  trial.  The  life  and  liberty  of  the  citizen  Is  a 
matter  of  supreme  importance  to  the  state,  and  if  should  not  allow  him  to 

Lther  away  by  a  failure,  Intentional  or  otherwise,  to  lake  fi'l 
of  his  constitutional  safeguards.  It  will  not  do,  however,  to  say  that  be- 
cause the  state  has  a  peculiar  interest  in  protecting  the  citizen  accused  of 
crime  to  the  extent  of  his  constitutional  rights  that  he  shall  in  no  case  be 
allowed  to  waive  them,  for  in  some  cases  it  may  be  to  his  interest  to  waive 
and  the  denial  of  the  right  to  i1"  so  would  defeat  the  very  object  In 
view  when  the  rights  were  given,  and  cause  them  to  operate  to  the  Injury 

than  to  the  benefit  of  the  accused.'1 

Iso,  11  Mich.  L.  Rev.  466-469  and  first  three  cases  In  note  L   Twining 
v.  Now  Jersey,  post  p.  2R3. 

JUBI8DI0T10N  of  Equity  to  Restrain  Cbdcnax  Acts. — The  constitutional 
requirement  is  not  violated  by  the  original  exercise  or  by  the  statutory  en- 
largement of  the  power  of  courts  of  equity,  in  suits  brought  on  behalf  of  the 
public,  to  enjoin  conduct  prejudicial  to  the  public  interest,  even  though  it  be 
also  i  rimlnal.  See  In  re  Hebs.  US8  r.  S.  564,  15  Sup.  Ct  900.  39  L.  Ed.  1092 
(1895)  liu  general);  Littleton  v.  Writs,  65  Iowa,  188,  L"J  N.  W.  641,  54  am 
•:■  ■  19  (1  5)  (illegal  sale  of  liquor);  State  v.  Markuson,  5  N.  1>.  147,  64  N 
W.  934  ae);    Stead  v.   Fortner,  255   111.    168,  96  N.   E.  680 

state  v.  Ohio  Oil  Co.,  150   Ind.  21,  49   N.    E.  809,  -IT   L.  K 
(1898)  (waste  of  natural  gas)  (cases);    State  ei  reL  Crow  v.  Oanty,  207  Mo. 
439,  inr,  S.  W.  1078.  15  U  It.  A.  (N.  S.)  747.  123  Am.  St.  Rep.  393,  18  Ann.  Gas 
7-7  (1907)  (bull  light);    I'm  Trans-Missouri  Freight  Ass'n,   166  0 

P.  290,  342,  343.  17  Sup.  Ct  540,  41  L.  Ed.  1007  (1897)  (antitrust  act):    United 
States  v.  Michigan  Cent.  Ky.  Co.  (C.  C.)  122  Fed.  544  (lfl 
merce  act) ;    I  .-  v.  Milwaukee  Refrigerator  Transit  Co,  o     1 

Fed.  1007  (1906)  (same);  North  American  Ins.  Co.  <r.  Oat  214  HI  272,  78 
x.  v..  f_'.".  (1905)  (exclusion  of  foreign  n  rations);  Attorney  General  ». 
Chicago,  M.  &  St  P.  Ky.  Co..  35  Wis.  4Mo,  523  553  (1874)  (abuse  of  corporate 


198  FUNDAMENTAL    RIGHTS  (Part  2 

their  nature,  fundamental ;  which  belong,  of  right,  to  the  citizens  of  all 
free  governments;  and  which  have,  at  all  times,  been  enjoyed  by  the 
citizens  of  the  several  states  which  compose  this  Union,  from  the 
time  of  their  becoming  free,  independent,  and  sovereign.  What  these 
fundamental  principles  are,  it  would  perhaps  be  more  tedious  than 
difficult  to  enumerate.  They  may,  however,  be  all  comprehended  under 
the  following  general  heads :  protection  by  the  government ;  the  en- 
joyment of  life  and  liberty,  with  the  right  to  acquire  and  possess  prop- 
erty of  every  kind,  and  to  pursue  and  obtain  happiness  and  safety ; 
subject  nevertheless  to  such  restraints  as  the  government  may  justly 
prescribe  for  the  general  good  of  the  whole.  The  right  of  a  citizen  of 
one  state  to  pass  through,  or  to  reside  in  any  other  state,  for  purposes 
of  trade,  agriculture,  professional  pursuits,  or  otherwise;  to  claim  the 
benefit  of  the  writ  of  habeas  corpus ;  to  institute  and  maintain  actions 
of  any  kind  in  the  courts  of  the  state ;  to  take,  hold  and  dispose  of 
property,  either  real  or  personal ;  and  an  exemption  from  higher  taxes 
or  impositions  than  are  paid  by  the  other  citizens  of  the  state;  may 
be  mentioned  as  some  of  the  particular  privileges  and  immunities  of 

franchise) ;  People  ex  rel.  Attorney  General  v.  Tool,  35  Colo.  225,  SG  Pac.  224, 
229,  231,  6  L.  R.  A.  (N.  S.)  S22,  117  Am.  St.  Rep.  19S  (1905)  (election  frauds). 
See,  also,  7  Col.  L.  Rev.  357 ;   E.  S.  Mack  in  16  Harv.  L.  Rev.  3S9. 

In  State  v.  Canty,  above,  Valliant,  P.  J.,  said  (207  Mo.  460,  4G1,  105  S.  W. 
10S5,  15  L.  R.  A.  [N.  S.]  747,  123  Am.  St.  Rep.  393,  13  Ann.  Cas.  787):  "A  man 
charged  with  the  commission  of  a  crime  has  a  constitutional  right  to  a  trial 
by  jury,  but  a  man  who  has  not  yet  acted,  but  who  merely  proposes  to  com- 
mit an  act  which  is  not  only  criminal  in  its  character,  but  also  flagrantly 
offensive  as  a  public  nuisance,  has  no  constitutional  right  to  commit  the  act 
in  order  that  he  may  thereafter  enjoy  the  constitutional  right  of  trial  by 
jury." 

Peocedube  and  Punishment. — The  consideration  of  the  provisions  or  the 
lifth  amendment,  securing  a  grand  jury  and  forbidding  double  jeopardy;  of 
the  sixth  amendment,  regarding  the  conduct  of  criminal  trials;  and  of  the 
eighth  amendment  regarding  bail,  fines,  and  punishments — all  properly  be- 
long to  the  subject  of  Criminal  Procedure,  and  are  not  treated  in  this  col- 
lection. See,  however,  as  to  grand  juries,  In  re  Wilson,  114  U.  S.  417,  5  Sup. 
Ct.  935.  29  L.  Ed.  89  (1885) ;  Mackin  v.  United  States.  117  U.  S.  34S,  6  Sup. 
Ct.  777,  29  L.  Ed.  909  (18S6) ;  double  jeopardy.  In  re  Lange,  18  Wall.  163,  21 
L  Ed.  S72  (1S74) ;  Kepner  v.  United  States,  195  U.  S.  100,  24  Sup.  Ct.  797, 
49  L,  Ed.  114,  1  Ann.  Cas.  655  (1904) ;  Trono  v.  United  States,  199  U.  S.  521, 
26  Sup.  Ct.  121,  50  L.  Ed.  292,  4  Ann.  Cas.  773  (1905);  Grafton  v.  United 
States,  206  U.  S.  333,  27  Sup.  Ct  749,  51  L.  Ed.  10S4,  11  Ann.  Cas.  640  (1907) ; 
trial  in  district  where  crime  committed,  Hyde  v.  United  States,  225  U.  S.  347, 
32  Sup.  Ct.  793,  56  L.  Ed.  1114  (1912);  Brown  v.  Elliott,  225  U.  S.  392,  32 
Sup  Ct.  812,  56  L.  Ed.  1136  (1912);  information  of  nature  of  accusation, 
Rosen  v.  United  States,  161  U.  S.  29,  16  Sup.  Ct  434,  4S0,  40  L.  Ed.  606  (1896) ; 

Kartell  v.  United  States,  227  U.  S.  427,  33  Sup.  Ct  383,  57  L.  Ed.  (1913) ; 

cruel  punishment,  Weems  v.  United  States,  217  U.  S.  349,  30  Sup.  Ct.  544,  54 
L.  Ed.  703,  19  Ann.  Cas.  705  (1910). 

As  to  how  faj:  the  provisions  of  the  Constitution  for  the  protection  of  per- 
sons accused  of  crime  apply  to  actions  for  penalties,  civil  in  form,  though 
quasi-criminal  in  nature,  see  Hepner  v.  United  States,  213  U.  S.  103,  29  Sup. 
Ct  474  53  L.  Ed.  720,  27  L.  R.  A.  (N.  S.)  739,  16  Ann.  Cas.  960  (1909)  (cases) ; 
Oceanic  Steam  Nav.  Co.  v.  Stranahan,  214  U.  S.  320,  29  Sup.  Ct.  671,  53  U. 
Ed.  1013  (1909). 


Cll.7)       INTERSTATE  PRIVILEGES   AND   IMMUNITIES  OF  CITIZENS  1U0 

citizens,  which  are  clearly  embraced  by  the  general  description  of  priv- 
ileges deemed  to  be  fundamental ;  to  which  may  be  added,  the  elective 
franchise,  as  regulated  and  established  by  the  laws  or  Constitution  of 
the  state  in  which  it  is  to  be  exercised.  These,  and  many  others  which 
might  be  mentioned,  are,  strictly  speaking,  privileges  and  immunities, 
and  the  enjoyment  of  them  by  the  citizens  of  each  state,  in  every  other 
state,  was  manifestly  calculated  (to  use  the  expressions  of  the  preamble 
of  the  corresponding  provision  in  the  old  Articles  of  Confederation) 
'the  better  to  secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  states  of  the  Union.' 

"But  we  cannot  accede  to  the  proposition  which  was  insisted  on  by 
the  counsel,  that,  under  this  provision  of  the  Constitution,  the  citizens 
of  the  several  states  are  permitted  to  participate  in  all  the  rights  which 
belong  exclusively  to  the  citizens  of  any  other  particular  state,  merely 
upon  the  ground  that  they  are  enjoyed  by  those  citizens;  much  less. 
than  in  regulating  the  use  of  the  common  property  of  the  citizens  of 
such  state,  the  legislature  is  bound  to  extend  to  the  citizens  of  all  the 
other  states  the  same  advantages  as  are  secured  to  their  own  citizens. 
A  several  fishery,  either  as  the  right  to  it  respects  running  fish,  or 
such  as  are  stationary,  such  as  oysters,  clams,  and  the  like,  is  as  much 
the  property  of  the  individual  to  whom  it  belongs,  as  dry  land,  or  land 
covered  by  water;  and  is  equally  protected  by  the  laws  of  the  state 
against  the  aggressions  of  others,  whether  citizens  or  strai 
Where  those  private  rights  do  not  exist  to  the  exclusion  of  the  com- 
mon right,  that  of  fishing  belongs  to  all  the  citizens  or  subjects  of  the 
state.  It  is  the  property  of  all ;  to  be  enjoyed  by  them  in  subordination 
to  the  laws  which  regulate  its  use.  They  may  be  considered  as  tenants 
in  common  of  this  property ;  and  they  are  so  exclusively  entitled  to 
the  use  of  it,  that  it  cannot  be  enjoyed  by  others  without  the  tacit  con- 
sent, or  the  express  permission  of  the  sovereign  who  has  the  power  to 
regulate  its  use.    *    *    * 

"Thai  this  exclusive  right  of  taking  oysters  in  the  waters  of  New 
Jersey  has  never  been  ceded  by  that  state,  in  express  terms,  to  the 
United  States,  is  admitted  by  the  counsel  for  the  plaintiff;  and  having 
shown,  as  we  think  we  have,  that  this  right  is  a  right  of  property, 
vested  either  in  certain  individuals,  or  in  the  state,  for  the  use  of  the 
citizens  thereof;  it  would,  in  our  opinion,  be  going  quite  too  far  to 
construe  the  grant  of  privileges  and  immunities  of  citizens,  as  amount- 
ing to  a  grant  of  a  co-tenancy  in  the  common  property  of  the  slate,  to 
the  citizens  of  all  the  other  states.  Such  a  construction  would,  in 
many  instances,  be  productive  of  the  most  serious  public  inconven- 
ience and  injury,  particularly,  in  regard  to  those  kinds  of  fish,  which. 
In  being  exposed  to  too  general  use,  may  be  exhausted.  The  oyster 
beds  belonging  to  a  state  may  be  abundantly  sufficient  for  the  use  of 
the  citizens  of  that  state,  but  might  be  totally  exhausted  and  destroyed 


200  FUNDAMENTAL    RIGHTS  (Part  2 

if  the  legislature  could  not  so  regulate  the  use  of  them  as  to  exclude 
the  citizens  of  the  other  states  from  taking  them,  except  under  such 
limitations  and  restrictions  as  the  laws  may  prescribe."  l 


PAUL  v.  VIRGINIA  (1869)  8  Wall.  168,  178,  180-182,  19  L.  Ed. 
357,  Mr.  Justice  Field  (upholding  a  Virginia  statute  requiring  foreign 
insurance  corporations  alone  to  deposit  certain  securities  with  the 
state  treasurer  before  doing  business  in  the  state) : 

"In  no  case  which  has  come  under  our  observation,  either  in  the 
state  or  federal  courts,  has  a  corporation  been  considered  a  citizen 
within  the  meaning  of  that  provision  of  the  Constitution  which  de- 
clares that  the  citizens  of  each  state  shall  be  entitled  to  all  the  privileg- 
es and  immunities  of  citizens  of  the  several  states.  *  *  *  [Here 
follows  a  statement  of  the  reasoning  in  Bank  of  Augusta  v.  Earle,  13 
Pet.  586,  10  L.  Ed.  274  denying  that  this  provision  referred  to  cor- 
porations.] 

"It  was  undoubtedly  the  object  of  the  clause  in  question  to  place 
the  citizens  of  each  state  upon  the  same  footing  with  citizens  of 
other  states,  so  far  as  the  advantages  resulting  from  citizenship  in 
those  states  are  concerned.    *    *    * 

"But  the  privileges  and  immunities  secured  to  citizens  of  each  state 
in  the  several  states,  by  the  provision  in  question,  are  those  privi- 
leges and  immunities  which  are  common  to  the  citizens  in  the  latter 
states  under  their  constitution  and  laws  by  virtue  of  their  being  citi- 
zens. Special  privileges  enjoyed  by  citizens  in  their  own  states  are 
not  secured  in  other  states  by  this  provision.  It  was  not  intended  by 
the  provision  to  give  to  the  laws  of  one  state  any  operation  in  other 
states.  They  can  have  no  such  operation,  except  by  the  permission, 
express  or  implied,  of  those  states.  The  special  privileges  which  they 
confer  must,  therefore,  be  enjoyed  at  home,  unless  the  assent  of  other 
states  to  their  enjoyment  therein  be  given. 

"Now  a  grant  of  corporate  existence  is  a  grant  of  special  privileges 

t  Accord  (as  to  various  species  of.  common  property):  McCready  v.  Vir- 
ginia, 94  U.  S.  301,  2-1  L.  Ed.  248  (1877)  (planting  oysters  in  public  waters); 
Chambers  v.  Church,  14  R.  I.  SOS,  51  Am.  Rep.  410  (1SS4)  (fish);  State  v. 
Tower,  S4  Me.  444,  24  Atl.  SOS  (1802)  (same)  [see  Manchester  v.  Massachusetts, 
139  U.  S.  240,  11  Sup.  Ct.  559,  35  L.  Ed.  159  (1S91)  and  Geer  v.  Connecticut, 
161  U.  S.  519,  52S  ft.,  16  Sup.  Ct.  600,  40  L.  Ed.  793  (1896)] ;  Geer  v.  Connecti- 
cut, above  (wild  game);  Allen  v.  Wyckoff.  4S  N.  J.  Law,  90,  2  Atl.  659,  57  Am. 
Rep.  548  (1SS6)  (same) ;  McCarter  v.  Hudson  County  Water  Co.,  70  N.  J.  Eq. 
695,  65-Atl.  489,  14  L.  R.  A.  (N.  S.)  197,  IIS  Am.  St.  Rep.  754,  10  Ann.  Cas. 
116  (1900)  (running  water  in  navigable  stream),  affirmed  in  209  U.  S.  349, 
28  Sup.  Ct  529,  52  L.  Ed.  828,  14  Ann.  Cas.  560  (190S).  Compare  State  v. 
Smith,  71  Ark.  478,  75  S.  W.  1081  (19UJ)  (stock  of  non-residents  forbidden  to 
run    at   large). 

Contra:  Rossmiller  v.  State,  114  Wis.  169,  SO  N.  W.  839,  58  L.  R.  A.  93,  91 
Am.  St  Rep.  910  (1902)  (semble)  (ice  on  navigable  waters). 


Cll.  7)       INTEKSTATE    PRIVILEGES    AND    IMMUNITIES  OF   CITIZKNS  201 

to  the  corporators,  enabling  them  to  act  for  certain  designated  pur- 
poses as  a  single  individual,  and  exempting  them  (unless  otherwise 
specially  provided)  from  individual  liability.  The  corporation  being 
the  mere  creation  of  local  law,  can  have  no  legal  existence  beyond 
the  limits  of  the  sovereignty  where  created.  As  said  by  this  court 
in  Bank  of  Augusta  v.  Earle,  'It  must  dwell  in  the  place  of  its  crea- 
tion, and  cannot  migrate  to  another  sovereignty.'  The  recognition 
of  its  existence  even  by  other  states,  and  the  enforcement  of  its  con- 
tracts made  therein,  depend  purely  upon  the  comity  of  those  states — 
a  comity  which  is  never  extended  where  the  existence  of  the  corpora- 
tion or  the  exercise  of  its  powers  are  prejudicial  to  their  interests  or 
repugnant  to  their  policy.    *    *    * 

"If  the  right  asserted  of  the  foreign  corporation,  when  composed 
of  citizens  of  one  state,  to  transact  business  in  other  states  were  even 
restricted  to  such  business  as  corporations  of  those  states  were  author- 
ized to  transact  it  would  still  follow  that  those  states  would  be  unable 
to  limit  the  number  of  corporations  doing  business  therein.  They  could 
not  charter  a  company  for  any  purpose,  however  restricted,  without  at 
once  opening  the  door  to  a  flood  of  corporations  from  other  states  to 
engage  in  the  same  pursuits.  They  could  not  repel  an  intruding  cor- 
poration, except  on  the  condition  of  refusing  incorporation  for  a  simi- 
lar purpose  to  their  own  citizens ;  and  yet  it  might  be  of  the  highest 
public  interest  that  the  number  of  corporations  in  the  state  should 
be  limited;  that  they  should  be  required  to  give  publicity  to  their 
transactions ;  to  submit  their  affairs  to  proper  examination  ;  to  be  sub- 
ject to  forfeiture  of  their  corporate  rights  in  case  of  mismanagement, 
and  that  their  officers  should  be  held  to  a  strict  accountability  for  the 
manner  in  which  the  business  of  the  corporations  is  managed,  and  be 
liable  to  summary  removal.  'It  is  impossible,'  to  repeat  the  language 
of  this  court  in  Bank  of  Augusta  v.  Earle,  'upon  any  sound  principle, 
to  give  such  a  construction  to  the  article  in  question,' — a  construction 
which  would  lead  to  results  like  these."  * 

i  Accord:  Anglo  American  Provision  Co,  v.  I>avis  Provision  Co..  101  l".  s 
;;t:;.  24  Sup.  Ct  92,  48  L.  Kd.  226  (1903)  (foreign  corporation  excluded  from 
Ic  courts  in  certain  classes  uf  cases);  Blake  v.  UcClnng,  rost,  tit 
p.  209. 

Presumably  tlio   d  w  partnership  are  protected  bj 

this  clause.  See  State  v.  Cadigan,  73  Vt  245,  50  Atl.  1079,  57  L.  R.  A.  6GG. 
87  Am.  St.  Rep.  714  (1901). 

As  bD  (lie  status  of  free  negroes  before  the  fourteenth  amendment,  see 
Dred  Scotl  v.  Sandford,  (0  .'  393,  \'<  L.  Ed.  681  t,ii>o7>,  mentioned  In 
United   States  v.  Wong  Iviui  Ark,  ante,  ut  p.  m.?. 


-'02  FUNDAMENTAL    RIGHTS  (Part  '2 


BLAKE  v.  McCLUNG. 

(Supreme  Court  of  United  States,  1898.    172  D.  S.  239,  19  Sup.  Ct  165,  43  L. 
Ed.  432.) 

[Error  to  the  Supreme  Court  of  Tennessee.  The  Embreeville  Com- 
pany, a  British  corporation,  had  complied  with  the  provisions  of  the 
statute  stated  in  the  opinion  below,  and  did  business  in  Tennessee. 
The  company  became  insolvent,  and,  upon  a  creditors'  bill  filed  by  Mc- 
Clung  and  others,  a  receiver  was  appointed  who  administered  the  as- 
sets. The  chancery  court  entered  a  decree  adjudicating  that  the  cred- 
itors who  were  residents  of  Tennessee  were,  under  the  aforesaid  stat- 
ute, entitled  to  priority  in  the  distribution  of  assets  as  against  all  cred- 
itors resident  out  of  the  state,  whether  citizens  of  other  states  or  not. 
This  was  affirmed  by  the  state  Supreme  Court,  and  a  writ  of  error  was 
taken  by  Blake  and  others,  citizens  of  Ohio,  and  by  the  Hull  Coal 
Company,  a  Virginia  corporation,  all  of  whom  were  creditors  of  the 
Embreeville  Company.] 

Mr.  Justice  Harlan.  *  *  *  The  plaintiffs  in  error  contend  that 
the  judgment  of  the  state  court,  based  upon  the  statute,  denies  to  them 
rights  secured  by  the  second  section  of  the  fourth  article  of  the  Consti- 
tution of  the  United  States,  providing  that  "the  citizens  of  each  state 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the  sev- 
eral states."    *    *    * 

We  have  seen  that,  by  the  third  section  of  the  Tennessee  statute,  cor- 
porations organized  under  the  laws  of  other  states  or  countries,  and 
which  complied  with  the  provisions  of  the  statute,  were  to  be  deemed 
and  taken  to  be  corporations  of  that  state;  and  by  the  fifth  section  it 
is  declared,  in  respect  of  the  property  of  corporations  doing  business 
in  Tennessee  under  the  provisions  of  the  statute,  that  creditors  who  are 
residents  of  that  state  shall  have  a  priority  in  the  distribution  of  assets, 
or  the  subjection  of  the  same,  or  any  part  thereof,  to  the  payment  of 
debts,  over  all  simple  contract  creditors,  being  residents  of  any  other 
country  or  countries. 

The  suggestion  is  made  that,  as  the  statute  refers  only  to  "resi- 
dents," there  is  no  occasion  to  consider  whether  it  is  repugnant  to  the 
provision  of  the  national  Constitution  relating  to  citizens.  We  cannot 
accede  to  this  view.  *  *  *  Looking  at  the  purpose  and  scope  of  the 
Tennessee  statute,  it  is  plain  that  the  words  "residents  of  this  state" 
refer  to  those  whose  residence  in  Tennessee  was  such  as  indicated  that 
their  permanent  home  or  habitation  was  there,  without  any  present 
intention  of  removing  therefrom,  and  having  the  intention,  when  ab- 
sent from  that  state,  to  return  thereto, — such  residence  as  appertained 
to  or  inhered  in  citizenship.  And  the  words,  in  the  same  statute,  "resi- 
dents of  any  other  country  or  countries,"  refer  to  those  whose  respec- 
tive habitations  were  not  in  Tennessee,  but  who  were  citizens,  not 
simply  residents,  of  some  other  state  -or  country.     It  is  impossible  to 


Cll.  7)       INTERSTATE   PRIVILEGES   AND   IMMUNITIES   OF   CITIZENS  203 

believe  that  the  statute  was  intended  to  apply  to  creditors  of  whom  it 
could  be  said  that  they  were  only  residents  of  other  states,  but  not  to 
creditors  who  were  citizens  of  such  states.  The  state  did  not  intend 
to  place  creditors,  citizens  of  other  states,  upon  an  equality  with  cred- 
itors, citizens  of  Tennessee,  and  to  give  priority  only  to  Tennessee 
creditors  over  creditors  who  resided  in,  but  were  not  citizens  of,  other 
states.  The  manifest  purpose  was  to  give  to  all  Tennessee  creditors 
priority  over  all  creditors  residing  out  of  that  state,  whether  the  latter 
were  citizens  or  only  residents  of  some  other  state  or  country.  Any 
other  interpretation  of  the  statute  would  defeat  the  object  for  which 
it  was  enacted.    *    *    * 

Beyond  question,  a  state  may,  through  judicial  proceedings,  take 
possession  of  the  assets  of  an  insolvent  foreign  corporation  within  its 
limits,  and  distribute  such  assets  or  their  proceeds  among  creditors 
according  to  their  respective  rights.  But  may  it  exclude  citizens  of  oth- 
er states  from  such  distribution  until  the  claims  of  its  own  citizens  shall 
have  been  first  satisfied?  In  the  administration  of  the  property  of  an 
insolvent  foreign  corporation  by  the  courts  of  the  state  in  which  it  is 
doing  business,  will  the  Constitution  of  the  United  States  permit  dis- 
crimination against  individual  creditors  of  such  corporation  because  of 
their  being  citizens  of  other  states,  and  not  citizens  of  the  state  in  which 
such  administration  occurs? 

These  questions  are  presented  for  our  determination.  Let  us  see 
how  far  they  have  been  answered  by  the  former  decisions  of  this  court. 

This  court  has  never  undertaken  to  give  any  exact  or  comprehensive 
definition  of  the  words  "privileges  and  immunities,"  in  article  4  of 
the  Constitution  of  the  United  States.  Referring  to  this  clause,  Mr. 
Justice  Curtis,  speaking  for  the  court  in  Conner  v.  Elliot,  18  How. 
591,  593  (15  L.  Ed.  497),  said :  "We  do  not  deem  it  needful  to  attempt 
to  define  the  meaning  of  the  word  'privileges'  in  this  clause  of  the  Con- 
stitution. It  is  safer,  and  more  in  accordance  with  the  duty  of  a  judi- 
cial tribunal,  to  leave  its  meaning  to  be  determined,  in  each  case,  upon 
a  view  of  the  particular  rights  asserted  and  denied  therein.  And  es- 
pecially is  this  true  when  we  are  dealing  with  so  broad  a  provision,  in- 
volving matters  not  only  of  great  delicacy  and  importance,  but  which 
are  of  such  a  character  that  any  merely  abstract  definition  could  scarce- 
ly be  correct ;  and  a  failure  to  make  it  so  would  certainly  produce 
mischief."  Nevertheless,  what  has  been  said  by  this  and  other  courts 
upon  the  general  subject  will  assist  us  in  determining  the  particular 
us  now  pressed  upon  our  attention.  *  *  *  [Here  follow  quo- 
tations from  Corfield  v.  Coryell,  ante.  p.  l'JS,  and  from  McCready  v. 
Va.,  94  U.  S.  391.  395,  24  L.  Ed.  248.] 

In  Paul  v.  Virginia,  8  Wall.  168,  180  (19  L.  Ed.  357),  the  court  ob- 
served that  "it  was  undoubtedly  the  object  of  the  clause  in  question  to 
place  the  citizens  of  each  state  upon  the  same  footing  with  citizens  of 
other  states,  so   far  as  the  advantages   resulting   from  citizenship  in 


204  FUNDAMENTAL    RIGHTS  (Part  2 

those  states  are  concerned.  It  relieves  them  from  the  disabilities  of 
alienage  in  other  states ;  it  inhibits  discriminating  legislation  against 
them  by  other  states ; l  it  gives  them  the  right  of  free  ingress  into  other 
states,  and  egress  from  them ;  it  insures  to  them  in  other  states  the 
same  freedom  possessed  by  the  citizens  of  those  states  in  the  acquisi- 
tion and  enjoyment  of  property,  and  in  the  pursuit  of  happiness ;  and 
it  secures  to  them  in  other  states  the  equal  protection  of  their  laws. 
It  has  been  justly  said  that  no  provision  in  the  Constitution  has  tend- 
ed so  strongly  to  constitute  the  citizens  of  the  United  States  one  peo- 
ple as  this.  Lemmon  v.  People,  20  N.  Y.  60/.  Indeed,  without  some 
provision  of  the  kind,  removing  from  the  citizens  of  each  state  the  dis- 
abilities of  alienage  in  the  other  states,  and  giving  them  equality  of 
privilege  with  citizens  of  those  states,  the  republic  would  have  con- 
stituted little  more  than  a  league  of  states;  it  would  not  have  consti- 
tuted the  Union  which  now  exists." 

'  Ward  v.  Maryland,  12  Wall.  418,  430  (20  L.  Ed.  449),  involved  the 
validity  of  a  statute  of  Maryland  requiring  all  traders,  not  being  per- 
manent residents  of  the  state,  to  take  out  licenses  for  the  sale  of  goods, 
wares,  or  merchandise  in  Maryland,  other  than  agricultural  products 
and  articles  there  manufactured.  This  court  said :  "Attempt  will  not 
be  made  to  define  the  words  'privileges  and  immunities,'  or  to  specify 
the  rights  which  they  are  intended  to  secure  and  protect,  beyond  what 
may  be  necessary  to  the  decision  of  the  case  before  the  court.  Beyond 
doubt,  those  words  are  words  of  very  comprehensive  meaning,  but  it 
will  be  sufficient  to  say  that  the  clause  plainly  and  unmistakably  secures 
and  protects  the  right  of  a  citizen  of  one  state  to  pass  into  any  other 
state  of  the  Union,  for  the  purpose  of  engaging  in  lawful  commerce, 
trade,  or  business,  without  molestation,  to  acquire  personal  property,  to 
take  and  hold  real  estate,2  to  maintain  actions  in  the  courts  of  the 
states,  and  to  be  exempt  from  any  higher  taxes  or  excises  than  are 
imposed  by  the  state  upon  its  own  citizens.  Comprehensive  as  the 
power  of  the  states  is  to  lay  and  collect  taxes  and  excises,  it  is  never- 
theless clear,  in  the  judgment  of  the  court,  that  the  power  cannot  be 
exercised  to  any  extent  in  a  manner  forbidden  by  the  Constitution ; 
and,  inasmuch  as  the  Constitution  provides  that  the  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  states,  it  follows  that  the  defendant  might  lawfully  sell  or  offer 
or  expose  for  sale  within  the  district  described  in  the  indictment,  any 
goods  which  the  permanent  residents  of  the  state  might  sell  or  offer 
or  expose  for  sale  in  that  district,  without  being  subjected  to  any  high- 

»  The  clause  does  not  forbid  the  discrimination  of  private  individuals,  but 
only  that  of  the  state.  See  United  States  v.  Morris  (D.  C.)  125  Fed.  322-323 
(1903).     Compare  Civil  Rights  Cases,  post.  p.  240. 

2  Statues  are  invalid  that  confine  to  residents  the  right  to  act  as  trustee  of 
property  within  a  state,  Farmers'  Loan  &  Trust  Co.  v.  Chicago  &  A.  Ry.  (C.  C.) 
27  Fed.  14G  (1S8C) ;  Roby  v.  Smith,  131  lnd.  342,  30  N.  K.  1093,  15  L.  R.  A.  792, 
31  Am.  St.  Rep.  439  (1S92) ;  or  to  take  property  by  will,  Magill  v.  Brown,  16 
Fed.  Cas.  408  (1833). 


Ch.  7)      INTERSTATE  PRIVILEGES  A.\U   IMMlMHE.s  OF  CITIZBIfB 


205 


er  tax  or  excise  than  that  exacted  by  law  of  such  permanent  resi- 
dents." * 

In  the  Slaughter-House  Cases,  16  Wall.  36,  77  (21  L.  Ed.  394),  the 
court,  referring  to  what  was  said  in  Paul  v.  Virginia,  above  cited,  in 
reference  to  the  scope  and  meaning  of  section  2  of  article  4  of  the 
Constitution,  saidi    "The  constitutio  ion  there  alluded  to  did 

not  create  those  rights  which  it  called  privileges  and  immunities  of 
citizens  of  the  states.  It  threw  around  them  in  that  clause  no  security 
for  the  citizen  of  the  state  in  which  they  were  claimed  or  exercised. 
Nor  did  it  profess  to  control  the  power  of  the  state  governments  over 
the  rights  of  its  own  citizens.  Its  sole  purpose  was  to  declare  to  the 
several  states,  that  whatever  those  rights,  as  you  grant  or  establish 
them  to  your  own  citizens,  or  as  you  limit  or  qualify,  or  impose  re- 
trictions  on  their  exercise,  the  same,  neither  more  nor  less,  shall  be 
the  measure  of  the  rights  of  citizens  of  other  states  within  your  juris- 
diction." * 

In  Cole  v.  Cunningham,  133  U.  S.  107,  113,  114,  10  Sup.  Ct.  271, 
33  L.  Ed.  538  this  court  cited  with  approval  the  language  of  Justice 
Story,  in  his  Commentaries  on  the  Constitution,  to  the  effect  that  the 
object  of  the  constitutional  guaranty  was  to  confer  on  the  citizens  of 
the  several  states  "a  general  citizenship,  and  to  communicate  all  the 
privileges  and  immunities  which  the  citizens  of  the  same  state  would 
be  entitled  to  under  like  circumstances,  and  this  includes  the  right  to 
institute  actions." 

These  principles  have  not  been  modified  by  any  subsequent  decision 
of  this  court. 

The  foundation  upon  which  the  above  cases  rest  cannot,  however, 
stand,  if  it  be  adjudged  to  be  in  the  power  of  one  state,  when  estab- 
lishing regulations  for  the  conduct  of  private  business  of  a  particular 
kind,  to  give  its  own  citizens  essential  privileges  connected  with  that 
business  which  it  denies  to  citizens  of  other  states.  By  the  statute  in 
question  the  British  company  was  to  be  deemed  and  taken  to  be  a 
corporation  of  Tennessee,  with  authority  to  carry  on  its  business  in 
that  state.  It  was  the  right  of  citizens  of  Tennessee  to  deal  with  it, 
as  it  was  their  right  to  deal  with  corporations  created  by  Tennessee. 
And  it  was  equally  the  right  of  citizens  of  other'  states  to  deal  with 
that  corporation.  The  state  did  not  assume  to  declare,  even  if  it  could 
legally  have  declared,  that  that  company,  being  admitted  to  do  busi- 

•  Accord:  Oliver  v.  Washington  Mills,  it  Allen  (Mass.)  268  (1  85)  (tai  on 
corporate  dividends);   Sprague  v.  Fletcher,  69  Vt  09,  37  Atl.  230,  37  L.  K.  a. 

■-in   (1896 \  on   personal  prop  Johnson,   139  Cal. 

Pac.    124,  96  Am.  St.  Rep.  161  - 1  tance  tax). 

Hut  non  residents  ma;  be  rent  manner  from  residents,  If  In 

(he  result  there  is  no  substantial  discrimination.  Travelers'  Ins.  Co.  v.  Con 
necticut,  185  D.  8.  364,  22  Sup.  Ct.  <■'■■  16  L  Bd.  949  (1902);  Redd  v.  St. 
Francis  County,  17  Ark.  416  (i$se  Ti  vlor  v.  Crawford,  72  Ohio  St  560,  74 
N.  r.  1065,  69  I..  K.  a.  800  (1905). 

«  Accord,  see  Leuimon  v.  People,  20  N.  Y.  5C2,  608  (I860). 


206  FUNDAMENTAL    RIGHTS  (Part    2 

ness  in  Tennessee,  should  transact  business  only  with  citizens  of  Ten- 
nessee, or  should  not  transact  business  with  citizens  of  other  states. 
No  one  would  question  the  right  of  the  individual  plaintiffs  in  error, 
although  not  residents  of  Tennessee,  to  sell  their  goods  to  that  corpora- 
tion upon  such  terms  in  respect  of  payment  as  might  be  agreed  upon, 
and  to  ship  them  to  the  corporation  at  its  place  of  business  in  that 
state. 

But  the  enjoyment  of  these  rights  is  materially  obstructed  by  the 
statute  in  question ;  for  that  statute,  by  its  necessary  operation,  ex- 
cludes citizens  of  other  states  from  transacting  business  with  that 
corporation  upon  terms  of  equality  with  citizens  of  Tennessee.  By 
force  of  the  statute  alone,  citizens  of  other  states,  if  they  contracted  at 
all  with  the  British  corporation,  must  have  done  so  subject  to  the 
onerous  condition  that,  -if  the  corporation  became  insolvent,  its  assets 
in  Tennessee  should  first  be  applied  to  meet  its  obligations  to  resi- 
dents of  that  state,  although  liability  for  its  debts  and  engagements 
was  "to  be  enforced  in  the  manner  provided  by  law  for  the  application 
of  the  property  of  natural  persons  to  the  payment  of  their  debts,  en- 
gagements, and  contracts."  But,  clearly,  the  state  could  not  in  that 
mode  secure  exclusive  privileges  to  its  own  citizens  in  matters  of  busi- 
ness. If  a  state  should  attempt,  by  statute  regulating  the  distribution 
of  the  property  of  insolvent  individuals  among  their  creditors,  to  give 
priority  to  the  claims  of  such  individual  creditors  as  were  citizens  of 
that  state  over  the  claims  of  individual  creditors  citizens  of  other 
states,  such  legislation  would  be  repugnant  to  the  Constitution,  upon 
the  ground  that  it  withheld  from  citizens  of  other  states,  as  such,  and 
because  they  were  such,  privileges  granted  to  citizens  of  the  state 
enacting  it.  Can  a  different  principle  apply,  as  between  individual 
citizens  of  the  several  states,  when  the  assets  to  be  distributed  are 
the  assets  of  an  insolvent  private  corporation  lawfully  engaged  in  busi- 
ness, and  having  the  power  to  contract  with  citizens  residing  in  states 
other  than  the  one  in  which  it  is  located?    *    *     * 

We  hold  such  discrimination  against  citizens  of  other  states  to  be 
repugnant  to  the  second  section  of  the  fourth  article  of  the  Constitu- 
tion of  the  United  States,  although,  generally  speaking,  the  state  has 
the  power  to  prescribe  the  conditions  upon  which  foreign  corporations 
may  enter  its  territory  for  purposes  of  business.  Such  a  power  cannot 
be  exerted  with  the  effect  of  defeating  or  impairing  rights  secured  to 
citizens  of  the  several  states  by  the  supreme  law  of  the  land.  Indeed, 
all  the  powers  possessed  by  a  state  must  be  exercised  consistently  with 
the  privileges  and  immunities  granted  or  protected  by  the  Constitution 
of  the  United  States.    *    *    * 

We  must  not  be  understood  as  saying  that  a  citizen  of  one  state  is 
entitled  to  enjoy  in  another  state  every  privilege  that  may  be  given  in 
the  latter  to  its  own  citizens.  There  are  privileges  that  may  be  accord- 
ed by  a  state  to  its  own  people,  in  which  citizens  of  other  states  may 


Cll.  7)      INTERSTATE   I'P.I  VII.I'.i:  l-;s   AND   IMMONITIB8  OF  CITIZENS  207 

not  participate,  except  in  conformity  to  such  reasonable  regulations  as 
may  be  established  by  the  state.  For  instance,  a  state  cannot  forbid 
citizens  of  other  states  from  suing  in  its  courts,  that  right  being  en- 
joyed by  its  own  people;  but  it  may  require  a  nonresident,  although 
a  citizen  of  another  state,  to  give  bond  for  costs,  although  such  bond 
be  not  required  of  a  resident.  Such  a  regulation  of  the  internal  affairs 
of  a  state  cannot  reasonably  be  characterized  as  hostile  to  the  funda- 
mental rights  of  citizens  of  other  states.5  So,  a  state  may,  by  rule  uni- 
form in  its  operation  as  to  citizens  of  the  several  states,  require  resi- 
dence within  its  limits  for  a  given  time  before  a  citizen  of  another 
state,  who  becomes  a  resident  thereof,  shall  exercise  the  right  of  suf- 
frage or  become  eligible  to  office."  It  has  never  been  supposed  that 
regulations  of  that  character  materially  interfered  with  the  enjoy- 
ment by  citizens  of  each  state  of  the  privileges  and  immunities  secured 
by  the  Constitution  to  citizens  of  the  several  states.     The  Constitu- 

'  Accord:  Pyrolusite  Manganese  Co.  v.  Ward,  73  Ga.  491  (1S84)  (attachment 
against  non-resident  debtors);  Campbell  v.  Morris,  :;  liar.  &  McH.  (Md.)  533 
(1797)  (same);  Head  v.  Daniels,  38  Kan.  1.  L5  Pac,  811  (1887)  (attachment 
iiiuiii  required  of  non-residents);  Marsh  v.  Steele,  9  Neb.  ewi.  l  N.  \v.  sr,'.i. 
.".1  Am.  Eep.  406  (1879)  (same);  Holt  v.  Tennallytown  &  R.  It.  Co..  81  Md.  219, 
::i  Atl.  809  (1895)  (security  tor  costs);  Cuinniings  v.  Wingo,  31  S.  C.  127,  10 
s.  B.  107  (1889)  (same);  Nease  v.  Capehart,  15  v7.  Va.  299  (1879)  (same); 
Frost  v.  Brisbtn,  19  Wend.  11,  32  Am.  Dec.  423  (1S.'5T)  (arrest  for  debt). 

A  Statute  of  limitations  may  bar  claims  of  nun  resilient  plaintiffs  against 
non-residents,  and  not  bar  similar  claims  of  resident  plaintiffs.  Chem 
nal  Bank  v.  Lowery,  93  U.  S.  72,  23  L.  Ed.  808  (1876).  A  foreign  atl 
against  the  property  of  non-resident  debtors  may  be  granted  to  resident  cred- 
itors only.  Kineaid  v.  Francis,  Cooke  (3  Tenn.)  49  (1S12).  The  jurisdiction  of 
courts  in  snits  against  foreign  corporations  may  be  confined  to  cases  where  the 
plaintiffs  are  residents,  or  where  the  cause  of  action  arose  In  the  state,  or 
the  BUbjeCt  of  it  is  situated  .there.     Robinson   v.   Oceanic  Steam    Nav.  Co..   112 

N.  T.  315,  19  X.  B.  625,  2  h.  R.  A.  636  'ivv'"  ;  Central  Railroad  &  Banking  Co. 
gla  Const  &  Invest.  Co.,  "-'  S.  0.  319,  11  S.  I".  192  (1890).  Contra:  Co- 
frode  v.  Circuit  Judge  of  Wayne  County.  7!)  Mich.  382,  44  N.  W.  623,  7  L.  R. 
a.  r,ii  ns'.iu)  (semble);  Eingartner  v.  Illinois  Steel  Co..  04  Wis.  70,  68  N. 
\v.  664,  .".4  I..  K.  A.  503,  59  Am.  St  Rep.  859  (1896)  (semble). 

A  number  of  common  procedural  discrimini  Inst  non-residents  are 

enumerated  In  Marsh  v.  Steele.  9  Neb.  9C>,  100,  1  N.  \V.  8C9,  31  Am.  Rep  106 
(1879).  Anion-  the  most  frequent  Is  the  exemption  of  property  from  execu- 
tion.   See  18  rye.  1408  (cases). 

nl:     People  ex   rel.   Akin  v.   I.oelller,  175   111.   585,  607,  60S,  51  N.  B. 
785  (189S);    Austin  v.  Stale.   L0  Mo.  591    (1841  !  oe  Is  true  of 

jury  service.  Ex  parte  Virginia,  100  t'.  S.  339,  366,  •_'.-,  L.  Ed.  07t",  (1879),  in 
opinion  dissenting  upon  other  grounds. 

Rights  attached  by  law  to  certain  relations  usually  governed  by  the  law  of 
the  d i'  il  may  be  confined  to  residents  who  maintain  such  relations.  Con- 
ner v.  Elliot,  18  How.  591,  15  L.  Ed.  497  (1855)  (matrimonial  community  of 
property);  Bufflngton  v.  Grosvenor,  46  Kan.  730,  27  Pac.  137,  13  i-.  R.  a.  282 
(1891)  (dower);  Bennett  v.  Harms,  51  w  -  251,  -  N.  w.  222  (1881)  (dower); 
Conner  v.  Elliot,  above  (rights  of  partners  hater  ses< — semble). 

•The  clause  has  nothing  to  do  with  the  distinctions  rounded  on  domicll."— 
Denio,  J.,  in  Lemmon  v.  People,  20  N.  Y.  562,  608  (1860).  "It  does  not  oblit- 
erate a  sidenee.  *  *  •  A 
non-resident  cannot  vote,  hold  ol  law.  or  enjoy  school  and  many 
other  privileges  simply  because  he  Is  a  Citizen  and  has  those  rights  In  anotner 
is,  J.,  in  Chambers  v.  Church,  14  R,  I.  :;i».  :.'j'j,  -ttiu,  ol  Am.  Rep. 
410  (1SS4). 


208  FUNDAMENTAL    RIGHTS  (Part  2 

tion  forbids  only  such  legislation  affecting'  citizens  of  the  respective 
states  as  will  substantially  or  practically  put  a  citizen  of  one  state  in  a 
condition  of  alienage  when  he  is  within  or  when  he  removes  to  another 
state,  or  when  asserting  in  another  state  the  rights  that  commonly  ap- 
pertain to  those  who  are  part  of  the  political  community  known  as  the 
People  of  the  United  States,  by  and  for  whom  the  government  of  the 
Union  was  ordained  and  established. 

Nor  must  we  be  understood  as  saying  that  a  state  may  not,  by  its 
courts,  retain  within  its  limits  the  assets  of  a  foreign  corporation,  in 
order  that  justice  may  be  done  to  its  own  citizens,  nor,  by  appropriate 
action  of  its  judicial  tribunals,  see  to  it  that  its  own  citizens  are  not 
unjustly  discriminated  against  by  reason  of  the  administration  in  other 
states  of  the  assets  there  of  an  insolvent  corporation  doing  business 
within  its  limits.  For  instance,  if  the  Embreeville  Company  had  prop- 
erty in  Virginia  at  the  time  of  its  insolvency,  the  Tennessee  court  ad- 
ministering its  assets  in  that  state  could  take  into  account  what  a  Vir- 
ginia creditor,  seeking  to  participate  in  the  distribution  of  the  com- 
pany's assets  in  Tennessee,  had  received  or  would  receive  from  the  com- 
pany's assets  in  Virginia,  and  make  such  order  touching  the  assets  of 
the  company  in  Tennessee  as  would  protect  Tennessee  creditors  against 
wrongful  discrimination  arising  from  the  particular  action  taken  in 
Virginia  for  the  benefit  of  creditors  residing  in  that  commonwealth.7 

It  may  be  appropriate  to  observe  that  the  objections  to  the  statute 
of  Tennessee  do  not  necessarily  embrace  enactments  that  are  found 
in  some  of  the  states  requiring  foreign  insurance  corporations,  as  a 
condition  of  their  coming  into  the  state  for  purposes  of  business,  to 
deposit  with  the  state  treasurer  funds  sufficient  to  secure  policy  holders 
in  its  midst.  Legislation  of  that  character  does  not  present  any  ques- 
tion of  discrimination  against  citizens  forbidden  by  the  Constitution.8 
Insurance  funds  set  apart  in  advance  for  the  benefit  of  home  policy 
holders  of  a  foreign  insurance  company  doing  business  in  the  state 
are  a  trust  fund  of  a  specific  kind,  to  be  administered  for  the  exclusive 
benefit  of  certain  persons.  Policy  holders  in  other  states  know  that 
those  particular  funds  are  segregated  from  the  mass  of  property  owned 
by  the  company,  and  that  they  cannot  look  to  them  to  the  prejudice  of 
those  for  whose  special  benefit  they  were  deposited.  The  present  case 
is  not  one  of  that  kind.  The  statute  of  Tennessee  did  not  make  it  a 
condition  of  the  right  of  the  British  corporation  to  come  into  Tennes- 
see for  purposes  of  business  that  it  should,  at  the  outset,  deposit  with 

'  A  state  may  forbid  its  otcn  citizens  from  enjoying  in  another  state  priv- 
ileges extended  by  the  latter  state  to  all  within  Its  borders.  Cole  v.  Cun- 
ningham,'133  U.  S.  107,  10  Sup.  Ct.  269,  33  L.  Ed.  538  (1800)  (foreign  attach- 
ment to  gain  preference  over  creditors  at  domicil);  Keyser  v.  Rice,  47  ild. 
203,  28  Am.  Rep.  44S  (1S77)  ■  (same  to  evade  domestic  exemption  laws) ; 
Sweeny  v.  Hunter,  145  Pa.  363,  22  Atl.  653,  14  L.  R.  A.  594  (1S91)  (same). 

s  Accord :  1'eople  v.  Granite  State  Provident  Ass'n,  161  N.  Y.  492,  55  N.  E. 
1053  (1900)  (building  and  loan  association) ;  Maynard  v.  Granite  State  Provi- 
dent Ass'n,  92  Fed.  435,  34  C.  C.  A.  438  (1899)  (semble). 


Ch.  7)       INTEItSTATE   PHI  VIl.E'JUS   AND   IMMUNITIES   OF  CITIZENS 


209 


the  state  a  fixed  amount,  to  stand  exclusively  or  primarily  for  the  pro- 
tection of  its  Tennessee  creditors.    *    *    * 

We  adjudge  that  when  the  general  property  and  assets  of  a  private 
corporation  lawfully  doing  business  in  a  state  are  in  course  of  admin- 
istration by  the  courts  of  such  state,  creditors  who  are  citizens  of  other 
states  are  entitled,  under  the  Constitution  of  the  United  States,  to 
stand  upon  the  same  plane  with  creditors  of  like  class  who  are  citizens 
of  such  state,  and  cannot  be  denied  equality  of  right  simply  because 
they  do  not  reside  in  that  state,  but  are  citizens  residing  in  other  states 
of  the  Union.  The  individual  plaintiffs  in  error  were  entitled  to  con- 
tract with  this  British  corporation,  lawfully  doing  business  in  Ten- 
nessee, and  deemed  and  taken  to  be  a  corporation  of  that  state ;  and  no 
rule  in  the  distribution  of  its  assets  among  creditors  could  be  applied 
to  them  as  resident  citizens  of  Ohio,  and  because  they  were  not  resi- 
dents of  Tennessee,  that  was  not  applied  by  the  courts  of  Tennessee 
to  creditors  of  like  character  who  were  citizens  of  Tennessee.    *    *    * 

[Jt  was  decided  that  the  Virginia  corporation,  the  Hull  Coal  Com- 
pany, was  not  protected  by  this  provision,  following  Paul  v.  Virginia, 
ante,  p.  200.] 

Judgment  accordingly.* 

[Brewer,  J.,  gave  a  dissenting  opinion,  in  which  Fuller,  C.  J.,  con- 
curred, on  the  ground  that  the  Tennessee  statute  discriminated,  not 
against  non-citizens,  but  against  non-residents  of  the  state.10] 


EX  PARTE  SPINNEY. 
(Supreme  Court  of  Nevada,  1875.    10  Nev.  323.> 

[Habeas  corpus  before  the  Supreme  Court.  Spinney  was  in  cus- 
tody under  a  warrant  of  arrest  charging  him  with  violating  a  state 
statute  enacted  to  prevent  the  practice  of  medicine  by  unqualified 
persons.    Other  facts  appear  in  the  opinion  below.] 

Beatty,  J.  *  *  *  The  illegality  of  the  imprisonment  is  alleged 
to  consist  in  this:  That  the  statute  defining  the  offence  and  prescrib- 
ing the  penalty  is  unconstitutional  and  void,  because   [among  other 

ird:    Sully  v.  American  Nat  Bank,  178  U.  S.  2S0,  20  Sup-  Ct  036,   it 
L.  Ed.  10  (1900). 

Sit  W.  .1.  Meyers  in  1  Mich.  T..  Tiev.  28fi.  864  (1908)  collecting  antl 
upon  this  provision  of  the  Constitution.  In  Chambers  v.  Baltimore  &  O.  R.v., 
L'oT  l*.  s.  L42,  'J1-  Sup.  Ct  34,  52  L.  Ed.  143  (1907)  a  discrimination  \v:is  up 
held,  based,  not  upon  the  citizenship  of  parties  to  the  action,  but  upon  the 
citizenship  of  the  decedent  tor  whose  wrongfully  caused  death  suit  was 
brought    See  both  the  majority  and  the  dissenting  opinion. 

mpare  the  language  of  the  fi  urteenth  amendment:   "All  persons  born 
or   naturalized    In  tl  »    •    •    are  citizens  of  the   United 

States  and  of  the  state  wherein  they  rett&e." 
Hall  Const. L. — 14 


"210  FUNDAMENTAL    EIGHT3  (Part  2 

reasons]  in  conflict  with  *  *  *  the  second  section  of  article  4 
of  the  Constitution  of  the  United  States,  which  declares  that  "the 
citizens  of  each  state  shall  be  entitled  to  all  the  privileges  and  im- 
munities of  citizens  in  the  several  states."     *     *     * 

The  law  says,  in  effect,  that,  outside  of  his  own  family,  except  in 
the  specified  cases  of  emergency,  no  man  shall  practice  or  prescribe 
as  a  physician  or  surgeon  in  this  state  unless  he  is  either  a  regular 
graduate,  or  unless  he  has  practiced  in  this  state  for  ten  years  next 
preceding  the  passage  of  the  act.  This  is  the  rule  of  qualification  for 
medical  or  surgical  practice.  It  is  contended  that  it  is  purely  ar- 
bitrary in  these  particulars:  *  *  *  Second.  In  admitting  those 
who  have  practiced  the  requisite  period  in  this  state  and  excluding 
those  who  have  practiced  during  the  same  period  in  other  states. 
*  *  *  The  second  point  was  more  strenuously  insisted  upon,  the 
petitioner  contending  that  there  cannot  be  any  reasonable  ground  for 
a  distinction  between  those  who  have  practiced  ten  years  in  this 
state  and  those  who  have  practiced  ten  years  elsewhere. 

But  I  am  not  prepared  to  say  that  there  may  not  be  grounds  for 
such  a  distinction.  Disregarding  individual  exceptions,  which  can 
never  be  made  the  basis  of  general  legislation,  it  may  have  been  con- 
sidered that  physicians  and  surgeons  whd  are  versed  in  the  sciences 
upon  which  the  intelligent  practice  of  their  arts  depends  are  always 
graduates,  and  that  those  who  are  not  graduates  and  whose  qualifica- 
tions depend  mainly  upon  their  individual  experience,  while  they  may 
be  reasonably  safe  advisers  in  the  locality  and  among  the  diseases 
they  are  accustomed  to,  might  be  very  unsafe  advisers  in  another  lo- 
cality and  climate,  among  a  population  mainly  employed  in  other 
avocations,  and  where,  as  a  consequence,  different  diseases  prevail, 
and  the  same  diseases  may  be  modified  by  different  surrounding  cir- 
cumstances, not  only  in  their  development,  but  even  in  their  earliest 
stage.  To  express  the  idea  more  plainly,  the  legislature  may  have 
thought:  The  graduate  is  a  man  of  science;  his  knowledge  enables 
him  to  refer  effects  to  their  causes;  it  enables  him  to  discriminate 
between  the  essential  relations  of  phenomena  and  their  accidental 
coincidence ;  it  is  sufficiently  comprehensive  to  anticipate  the  opera- 
tion of  new  causes  and  the  influence  of  changed  conditions.  He  will, 
therefore,  be  able  to  adapt  his  practice  to  the  peculiar  diseases  or 
modifications  of  disease  of  any  locality.  The  mere  practitioner,  on 
the  other  hand,  who  has  not  pursued  the  regular  course  of  medical 
education,  and  who  has  learned  merely  to  meet  a  certain  symptom 
with  a  certain  drug,  without  knowing  what  pathological  condition  is 
indicated  by  the  symptom  or  what  is  the  specific  action  of  the  drug, 
may  do  very  well  in  the  diseases  he  is  accustomed  to,  or  where  the 
same  symptom  means  the  same  thing,  and  the  accustomed  remedy 
meets  the  same  counteracting  or  co-operating  conditions;  but  he  will 
be  dangerous  among  new  diseases  or  new  modifications  of  disease. 

If  this  was  the  idea  of  the  legislature,  there  is  certainly  some  rea 


Ch.  7)       INTERSTATE   PRIVILEGES  AND   IMMUNITIES  OF  CITIZENS  211 

son  and  some  truth  to  sustain  it,  and  we  are  bound  to  presume  that 
if  they  had  no  better  reason  for  the  rule  they  have  established,  the 
true  reason  was  found  in  the  consideration  indicated.  How  much 
truth  there  may  be  in  these  suggestions,  or  how  important  it  may  be 
as  a  principle  of  discrimination,  was  a  question  solely  for  the  legis- 
lature. Having  the  power  to  discriminate,  it  had  full  discretion,  so 
far  as  the  clause  of  our  Constitution  in  question  is  concerned,  to  dis- 
criminate upon  any  principle  which  will  serve  as  the  basis  of  a  gen- 
eral classification.  The  question  was  one  of  policy,  and  its  decision 
is  not  subject  to  our  review. 

It  is  urged,  however,  that  in  point  of  fact  there  is  no  essential  dif- 
ference of  climate  between  this  state  and  Utah  or  California.  This 
may  be  true,  or  may  not  be;  but  I  again  say  of  that  the  legislature 
was  the  judge.  There  is  undoubtedly  a  difference  between  Nevada 
and  Florida  or  Louisiana.  If  the  extremes  were  to  be  divided,  it 
could  only  be  by  a  geographical  line,  and  wherever  that  line  was 
drawn  it  must  necessarily  have  been  arbitrary  in  the  same  sense  that 
the  distinction  between  ten  years  and  nine  years  and  eleven  months 
is  arbitrary. 

It  may  be  said,  in  conclusion,  that  the  idea  of  the  necessity  of  local 
experience  as  a  qualification  to  practice  a  licensed  calling  is  by  no 
means  novel.  The  case  of  pilots  is  an  extreme  case,  where  the  ne- 
cessity is  apparent.  The  case  of  lawyers,  however,  is  entirely  analo- 
gous to  that  of  physicians,  and  certainly  it  has  not  been  unusual  to  re- 
quire a  local  apprenticeship  to  the  law  as  a  condition  of  license  to  prac- 
tice it.  I  presume  the  constitutionality  of  a  law  requiring  a  term  of 
service  in  the  office  of  a  Nevada  attorney  as  an  essential  condition 
of  license  to  practice  here  would  not  be  questioned,  and  yet  there  is 
probably  less  difference  between  the  laws  and  law  practice  of  Cali- 
fornia and  Nevada  than  there  is  between  diseases  and  their  treatment 
in  the'  two  states.     *     *     * 

But  is  this  law  in  conflict  with  the  Constitution  of  the  United 
States?  The  first  provision  referred  to,  considered  with  re;' 
to  this  case,  amounts  to  no  more  than  this :  that  citizens  of  other 
states  are  entitled  to  practice  medicine  and  surgery  here  on  precisely 
the  same  terms  and  subject  only  to  the  same  restrictions  as  our  own 
citizens.  Now  this  law  makes  no  distinction  in  terms  between  our 
own  citizens  and  citizens  of  other  states.  It  merely  prescribes  the 
qualifications  that  practitioners  are  required  to  possess,  and  admits 
all  to  practice  who  can  bring  themselves  within  the  rule,  whether  they 
are  citizens  of  this  state  or  other  states.  But  it  is  argued  that  one 
of  the  sorts  of  qualification  recognized  is  such,  that  of  necessity  none 
but  citizens  of  this  state  can  possess  it.  This  is  so,  but  it  does  not 
follow,  therefore,  that  the  law  is  unconstitutional ;  for  if  the  qualifica- 
tion is  in  itself  reasonable,  and  such  as  tends  to  subserve  public  inter- 
ests, the  legislature  had  the  right  to  exact  it,  and  the  circumstance  that 


212  FUNDAMENTAL    RIGHTS  (Part  2 

citizens  of  other  states  cannot  possess  it  may  be  a  misfortune  to  them, 
but  is  no  reason  why  a  precaution,  proper  in  itself,  should  be  dispensed 
with.     *     *     * 

Prisoner  remanded.1 

[Hawley,  C.  J.,  gave  a  concurring  opinion.] 

1  The  principal  case  has  been  generally  followed.  Many  of  the  cases  In 
accord  are  collected  in  1  Mich.  Law  Rev.  294,  and  others  are  cited  in  Craig  v. 
Board  of  Medical  Examiners,  12  Mont.  203,  29  Pac.  532  (1892).  Contra:  State 
v.  Hinman,  65  N,  H.  103,  IS  Atl.  194,  23  Am.  St  Rep.  22  (18S9).  A  similar 
statute  has  been  upheld  as  applied  to  dentists.  State  v.  Creditor,  44  Kan. 
565,  24  Pac.  346,  21  Am.  St.  Rep.  306  (1S90) ;  and  see  State  v.  Vandersluis,  42 
Minn.  129,  43  N.  W.  789,  6  L  R.  A.  119  (18S9). 

Retail  liquor  dealers  are  in  several  states  required  to  be  residents.  Welsh 
v.  State,  126  Ind.  71,  25  N.  E.  S83,  9  L.  R.  A.  664  (1890) ;  Austin  v.  State,  10 
Mo.  591  (1847)  ;  Mette  v.  McGucUin,  18  Neb.  323,  25  N.  W.  338  (1SS5),  affirmed 
by  a  divided  court  in  United  States  Supreme  Court,  37  L.  Ed.  934  (1S92).  "It 
is  not  an  unreasonable  requirement  that  a  person  who  desires  to  avail  himself 
of  a  license  to  retail  intoxicating  liquor  shall  submit  himself  to  the  juris- 
diction of  the  state,  by  becoming  an  inhabitant  thereof,  to  the  end  that  he 
may  be  readily  apprehended  and  punished  for  any  violation  of  the  law  in 
connection  with  his  business." — Coffey,  J.,  in  Welsh  v.  State,  above,  126  Ind. 
78,  25  N.  E.  SS5.  9  L.-  R.  A.  664. 

So,  also,  in  State  v.  Richcreek,  167  Ind.  217,  229,  230,  77  N.  E.  10S5,  10S9, 
5  L.  R.  A.  (N.  S.)  874,  119  Am.  St.  Rep.  491,  10  Ann.  Cas.  S99  (1906),  holding 
that  an  individual,  or  one  member  of  a  Arm,  conducting  a  banking  business, 
must  be  a  resident  of  the  state,  Montgomery,  J.,  said:  "The  propriety  of  this 
provision  is  readily  manifest.  A  private  banker  inviting  the  confidence  and 
patronage  of  the  public  should  not  only  possess  suitable  capital,  but  also  a 
good  character.  The  people  entrusting  their  money  to  his  care  should  be 
afforded  an  opportunity  of  learning  something  of  his  character,  habits,  and 
mode  of  Ufa  without  going  beyond  stale  lines  fur  information.  A  good  char- 
acter will  not  Insure  the  safety  of  a  business  entrusted  wholly  to  employes, 
but  personal  supervision  is  highly  requisite.  The  situs  of  the  bank  assets 
for  the  purposes  of  taxation  should  be  definitely  fixed,  and  not  left  open  to 
dispute  by  the  nonresidence  of  the  owner.  It  is  important  that  the  banker 
should  be  within  the  jurisdiction  of  our  courts,  civil  and  criminal,  and  be 
answerable  personally  to  the  complaints  of  creditors,  and  easily  apprehended 
in  case  of  a  violation  of  the  laws  governing  his  business." 


Ch.  S)       CIVIL    KIGIITS  SECL'KKD    (JNPBB    FOUBTBENTH    AMENDMENT      2\'-'< 


CHAPTER  VIII 

OPERATION  OF  FOURTEENTH  AMENDMENT*  IN  SECUR- 
ING CIVIL  RIGHTS 


SECTION    I.— IN   GENERAL 


BARRON  v.  MAYOR,  ETC.,  OF  BALTIMORE. 
(Supreme  Court  of  United  Stales.  1833.    7  Pet.  'J13,  S  L.  Ed.  C72.) 

[Error  to  the  Maryland  Court  of  Appeals  for  the  western  shore  of 
the  state.  The  city  of  Baltimore  in  grading  its  streets  diverted  cer- 
tain streams  from  their  natural  course,  so  that  they  made  deposits  of 
earth  near  Barron's  wharf  and  prevented  the  access  of  vessels.  He 
sued  in  case  for  these  injuries.  A  verdict  for  him  for  $4,500  in  the 
county  court  was  reversed  by  the  Court  of  Appeals,  and  this  writ  of 
rrror  was  taken.] 

Mr.  Chief  Justice  Marshall.  The  judgment  brought  up  by  this 
writ  of  error  having  been  rendered  by  the  court  of  a  state,  this 
tribunal  can  exercise  no  jurisdiction  over  it,  unless  it  be  shown  to 
come  within  the  provisions  of  the  twenty-fifth  section1  of  the  Ju- 
diciary Act.  1  Stats,  at  Large,  S5.  The  plaintiff  in  error  contends 
that  it  comes  within  that  clause  in  the  fifth  amendment  to  the  Con- 
stitution, which  inhibits  the  taking  of  private  property  for  public 
use,  without  just  compensation.  He  insists  that  this  amendment,  be- 
ing in  favor  of  the  liberty  of  the  citizen,  ought  to  be  so  construed  as 
to  restrain  the  legislative  power  of  a  state,  as  well  as  that  of  the 
United  States.  If  this  proposition  be  untrue,  the  court  can  take  no 
jurisdiction  of  the  cause. 

The  question  thus  presented  is,  we  think,  of  great  importance,  but 
not  of  much  difficulty.  The  Constitution  was  ordained  and  estab- 
lished by  the  people  of  the  LTnited  States  for  themselves,  for  their 
own  government,  and  not  for  the  government  of  the  individual  states. 
Each  state  established  a  Constitution  for  itself,  and,  in  that  Consti- 
tution, provided  such  limitations  and  restrictions  on  the  powers  of 
its  particular  government  as  its  judgment  dictated.  The  people  of 
the  United  States  framed  such  a  government  for  the  United  States 

*So  far  as  the  matter  In  this  chapter  concerns  the  "due  process"  clause  of 
the  fourteenth  amendment,  the  principles  Involved  are  equal!;  applicable  to 
the  "due  process"  clause  of  the  fifth  amendment 

i This  section  gave  Jurisdiction  over  questions  arising  under  the  federal 
Constitution,  laws,  and  treaties. 


214  FUNDAMENTAL    RIGHTS  (Part  2 

as  they  supposed  best  adapted  to  their  situation,  and  best  calculated 
to  promote  their  interests.  The  powers  they  conferred  on  this  gov- 
ernment were  to  be  exercised  by  itself ;  and  the  limitations  on  pow- 
er, if  expressed  in  general  terms,  are  naturally,  and,  we  think,  neces- 
sarily applicable  to  the  government  created  by  the  instrument.  They 
are  limitations  of  power  granted  in  the  instrument  itself ;  not  of  dis- 
tinct governments,  framed  by  different  persons  and  for  different  pur- 
poses. 

If  these  propositions  be  correct,  the  fifth  amendment  must  be  un- 
derstood as  restraining  the  power  of  the  general  government,  not 
as  applicable  to  the  states.  In  their  several  Constitutions  they  have 
imposed  such  restrictions  on  their  respective  governments  as  their 
own  wisdom  suggested;  such  as  they  deemed  most  proper  for  them- 
selves. It  is  a  subject  on  which  they  judge  exclusively,  and  with 
which  others  interfere  no  further  than  they  are  supposed  to  have  a 
common  interest. 

The  counsel  for  the  plaintiff  in  error  insists  that  the  Constitution 
was  intended  to  secure  the  people  of  the  several  states  against  the 
undue  exercise  of  power  by  their  respective  state  governments ;  as 
well  as  against  that  which  might  be  attempted  by  their  general  gov- 
ernment. In  support  of  this  argument  he  relies  on  the  inhibitions 
contained  in  the  tenth  section  of  the  first  article.  We  think  that  sec- 
tion affords  a  strong  if  not  a  conclusive  argument  in  support  of  the 
opinion  already  indicated  by  the  court.  The  preceding  section  con- 
tains restrictions  which  are  obviously  intended  for  the  exclusive  pur- 
pose of  restraining  the  exercise  of  -power  by  the  departments  of  the 
general  government.  Some  of  them  use  language  applicable  only  to 
Congress ;  others  are  expressed  in  general  terms.  The  third  clause, 
for  example,  declares  that  "no  bill  of  attainder  or  ex  post  facto  law 
shall  be  passed."  No  language  can  be  more  general ;  yet  the  demon- 
stration is  complete  that  it  applies  solely  to  the  government  of  the 
United  States.  In  addition  to  the  general  arguments  furnished  by 
the  instrument  itself,  some  of  which  have  been  already  suggested, 
the  succeeding  section,  the  avowed  purpose  of  which  is  to  restrain 
state  legislation,  contains  in  terms  the  very  prohibition.  It  declares 
that  "no  state  shall  pass  any  bill  of  attainder  or  ex  post  facto  law." 
This  provision,  then,  of  the  ninth  section,  however  comprehensive 
its  language,  contains  no  restriction  on  state  legislation. 

The  ninth  section  having  enumerated,  in  the  nature  of  a  bill  of 
rights,  the  limitations  intended  to  be  imposed  on  the  powers  of  the 
general  government,  the  tenth  proceeds  to  enumerate  those  which 
were  to  operate  on  the  state  legislatures.  These  restrictions  are 
brought  together  in  the  same  section,  and  are  by  express  words  ap- 
plied to  the  states.  "No  state  shall  enter  into  any  treaty,"  etc.  Per- 
ceiving that  in  a  Constitution  framed  by  the  people  of  the  United 
States  for  the  government  of  all,  no  limitation  of  the  action  of  gov- 
ernment on  the  people  would  apply  to  the  state  government,  unless 


Ch.  8)       CIVIL   RIGHTS  SECURED   UNDER   FOURTEENTH   AMENDMENT      215 

expressed  in  terms;  the  restrictions  contained  in  the  tenth  section 
are  in  direct  words  so  applied  to  the  states. 

It  is  worthy  of  remark,  too,  that  these  inhibitions  generally  restrain 
state  legislation  on  subjects  intrusted  to  the  general  government,  or 
in  which  the  people  of  all  the  states  feel  an  interest.  A  state  is  for- 
bidden to  enter  into  any  treaty,  alliance,  or  confederation.  If  these 
compacts  are  with  foreign  nations,  they  interfere  with  the  treaty- 
power,  which  is  conferred  entirely  on  the  general  govern- 
ment;  if  with  each  other,  for  political  purposes,  they  can  scarcely 
fail  to  interfere  with  the  general  purpose  and  intent  of  the  Constitu- 
tion. To  grant  letters  of  marque  and  reprisal,  would  lead  directly  to 
war;  the  power  of  declaring  which  is  expressly  given  to  Congress. 
To  coin  money  is  also  the  exercise  of  a  power  conferred  on  Congress. 
It  would  be  tedious  to  recapitulate  the  several  limitations  on  the 
l^owers  of  the  states  which  are  contained  in  this  section.  They  will 
be  found,  generally,  to  restrain  state  legislation  on  subjects  intrusted 
to  the  government  of  the  Union,  in  which  the  citizens  of  all  the  states 
are  interested.  In  these  alone  were  the  whole  people  concerned.  The 
question  of  their  application  to  states  is  not  left  to  construction.  It  is 
averred  in  positive  words. 

If  the  original  Constitution,  in  the  ninth  and  tenth  sections  of  the 
first  article,  draws  this  plain  and  marked  line  of  discrimination  be- 
tween the  limitations  it  imposes  on  the  powers  of  the  general  govern- 
ment, and  on  those  of  the  states;  if  in  every  inhibition  intended  to 
act  on  state  power,  words  are  employed  which  directly  express  that  in- 
tent,— some  strong  reason  must  be  assigned  for  departing  from  this 
safe  and  judicious  course  in  framing  the  amendments,  before  that  de- 
parture can  be  assumed.     We  search  in  vain  for  that  reason. 

Had  the  people  of  the  several  states,  or  any  of  them,  required 
changes  in  their  Constitutions;  had  they  required  additional  safe- 
guards to  liberty  from  the  apprehended  encroachments  of  their  par- 
ticular governments ;  the  remedy  was  in  their  own  hands,  and  could 
have  been  applied  by  themselves.  A  convention  could  have  been  as- 
sembled by  the  discontented  state,  and  the  required  improvements 
would  have  been  made  by  itself.  The  unwieldy  and  cumbrous  ma- 
chinery of  procuring  a  recommendation  from  two-thirds  of  Congress, 
and  the  assent  of  three-fourths  of  their  sister  states,  could  never  have 
occurred  to  any  human  being  as  a  mode  of  doing  that  which  might 
be  effected  by  the  state  itself.  Had  the  framers  of  these  amendments 
intended  them  to  be  limitations  on  the  powers  of  the  state  govern- 
ments, they  would  have  imitated  the  framers  of  the  original  Constitu- 
tion, and  have  expressed  that  intention.  Had  Congress  engaged  in 
the  extraordinary  occupation  of  improving  the  Constitutions  of  the 
several  states  by  affording  the  people  additional  protection  from  the 
exercise  of  power  by  their  own  governments  in  matters  which  con- 
cerned themselves  alone,  they  would  have  declared  this  purpose  in 
plain  and  intelligible  language. 


21C  FUNDAMENTAL    RIGHTS  (Part  2 

But  it  5s  universally  understood,  it  is  a  part  of  the  history  of  the 
day,  that  the  great  revolution  which  established  the  Constitution  of 
the  United  States  was  not  effected  without  immense  opposition.  Se- 
rious fears  were  extensively  entertained  that  those  powers  which  the 
patriot  statesmen,  who  then  watched  over  the  interests  of  our  coun- 
try, deemed  essential  to  union,  and  to  the  attainment  of  those  invalu- 
able objects  for  which  union  was  sought,  might  be  exercised  in  a  man- 
ner dangerous  to  liberty.  In  almost  every  convention  by  which  the 
Constitution  was  adopted,  amendments  to  guard  against  the  abuse 
of  power  were  recommended.  These  amendments  demanded  secu- 
rity against  the  apprehended  encroachments  of  the  general  govern- 
ment, not  against  those  of  the  local  governments.  In  compliance 
with  a  sentiment  thus  generally  expressed  to  quiet  fears  thus  exten- 
sively entertained,  amendments  were  proposed  by  the  required  major- 
ity in  Congress,  and  adopted  by  the  states.  These  amendments  con- 
tain no  expression  indicating  an  intention  to  apply  them  to  the  state 
governments.     This  court  cannot  so  apply  them.     *     *     * 

Writ  dismissed.' 


SLAUGHTER-HOUSE  CASES. 

(Supreme  Court  of  United  States,  1873.    16  Wall.  36,  21  L.  Ed.  394.) 

[Error  to  the  Supreme  Court  of  Louisiana.  A  Louisiana  statute 
conferred  upon  the  Crescent  City  Live-Stock  Landing  &  Slaughter- 
House  Company,  a  domestic  corporation,  the  sole  and  exclusive  right 
for  25  years  to  maintain  within  the  parishes  of  Orleans,  Jefferson, 
and  St.  Bernard  a  place  for  slaughtering  animals  to  be  sold  for  meat, 
and  to  have  slaughtered  therein  all  animals  the  meat  of  which  was 
destined  for  sale  in  the  parishes  of  Orleans  and  Jefferson.  The  com- 
pany was  to  erect  suitable  slaughter  houses  and  stock  landings  to  ac- 
commodate all  butchers,  and  was  empowered  to  charge  certain  fees 
for  the  use  thereof,  and  the  animals  were  to  be  slaughtered  under 
state  inspection.  The  three  parishes  contained  over  1,100  square 
miles  and  between  200,000  and  300,000  people,  and  the  act  affected 

2  The  doctrine  of  the  principal  case  as  to  the  first  ten  amendments  to  the 
Constitution  has  been  repeatedly  affirmed.  See  Spies  v.  Illinois,  123  U.  S. 
131,  166,  8  Sup.  Ct.  22,  31  L.  Ed.  80  (1SS7)  and  Brown  v.  New  Jersey,  175  U. 
S.  172,  171,  20  Sup.  Ct.  77,  44  L.  Ed.  119  (1899),  citing  many  Later  rases.  An 
earlier  state  case  to  the  same  effect  is  Murphy  v.  People,  2  Cow.  (N.  Y.)  815 
(1824).  In  People  v.  Goodwin,  18  Johns.  (N.  T.)  1S8,  201,  9  Am.  Dec.  203 
(1S20),  is  a  dictum  to  the  contrary.  See  Jackson  ex  dera.  Wood  v.  Wood,  2 
Cow.  8-19  (1S24),  for  an  account  of  the  rejection  by  the  United  States  Senate 
of  a  proposed  amendment  restricting  state  action. 

Counsel's  error  in  alleging  ii.  the  record  that  state  legislation  violates  the 
due  process  clause  of  the  fifth  amendment,  Instead  of  the  fourteenth,  Is  fatal 
to  the  federal  Supreme  Court's  jurisdiction  on  writ  of  error  from  a  state  court. 
Chapin  v.  Fye,  179  U.  S.  127,  21  Sup.  Ct.  71.  45  L.  Ed.  119  (1900);  Corkran 
Oil  &  Development  Co.  v.  Arnaudet,  199  U.  S.  182,  26  Sup.  Ct  41,  50  L.  Ed. 
i43  (1905). 


Ch.  8)       CIVIL   RIGHTS   SECURED   UNDER   FOURTEENTH    AMENDMENT     217 

the  business  of  about  1,000  persons.  In  several  test  suits  the  monop- 
oly was  upheld  by  the  Louisiana  courts,  and  writs  of  error  were 
taken.] 

Mr.  Justice  Miller.  *  *  *  The  plaintiffs  in  error  *  *  * 
allege  that  the  statute  is  a  violation  of  the  Constitution  of  the  United 
States  in  these  several  particulars:     *     *     * 

That  it  creates  an  involuntary  servitude  forbidden  by  the  thirteenth 
article  of  amendment ; ' 

That  it  abridges  the  privileges  and  immunities  of  citizens  of  the 
United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws; 
and, 

That  it  deprives  them  of  their  property  without  due  process  of  law ; 
contrary  to  the  provisions  of  the  first  section  of  the  fourteenth  article 
of  amendment. 

This  court  is  thus  called  upon  for  the  first  time  to  give  construction 
to  these  articles. 

We  do  not  conceal  from  ourselves  the  great  responsibility  which 
this  duty  devolves  upon  us.  No  questions  so  far-reaching  and  per- 
vading in  their  consequences,  so  profoundly  interesting  to  the  people 
of  this  country,  and  so  important  in  their  bearing  upon  the  relations 
of  the  United  States,  and  of  the  several  states  to  each  other  and  to 
the  citizens  of  the  states  and  of  the  United  States,  have  been  before 
this  court  during  the  official  life  of  any  of  its  present  members.  We 
have  given  every  opportunity  for  a  full  hearing  at  the  bar;  we  have 
discussed  it  freely  and  compared  views  among  ourselves;  we  have 
taken  ample  time  for  careful  deliberation,  and  we  now  propose  to  an- 
nounce the  judgments  which  we  have  formed  in  the  construction  of 
those  articles,  so  far  as  we  have  found  them  necessary  to  the  decision 
of  the  cases  before  us,  and  beyond  that  we  have  neither  the  inclina- 
tion nor  the  right  to  go. 

Twelve  articles  of  amendment  were  added  to  the  federal  Constitu- 
tion soon  after  the  original  organization  of  the  government  under  it 
in  1789.  Of  these  all  but  the  last  were  adopted  so  soon  afterwards 
as  to  justify  the  statement  that  they  were  practically  contemporaneous 
with  the  adoption  of  the  original;  and  the  twelfth,  adopted  in  ei 
hundred  and  three,  was  so  nearly  so  as  to  have  become,  like  all  tin- 
others,  historical  and  of  another  age.  But  within  the  last  eight  years 
three  other  articles  of  amendment  of  vast  importance  have  been  added 
by  the  voice  of  the  people  to  that  now  venerable  instrument. 

The  most  cursory  glance  at  these  articles  discloses  a  unity  of  pur- 
pose, when  taken  in  connection  with  the  history  of  the  times,  which 
cannot  fail  to  have  an  important  bearing  on  any  question  of  doubt 
concerning  their  true  meaning.    Nor  can  such  doubts,  when  any  rea- 

"  The  parts  of  the  opinion  dealing  with  the  thirteenth  amendment  are 
otulti'il.    See  chapter  v,  sate,  pp.  i".i  108. 


218  FUNDAMENTAL    RIGHTS  (Part  2 

sonably  exist,  be  safely  and  rationally  solved  without  a  reference  to 
that  history ;  for  in  it  is  found  the  occasion  and  the  necessity  for  re- 
curring again  to  the  great  source  of  power  in  this  country,  the  peo- 
ple of  the  states,  for  additional  guarantees  of  human  rights ;  addi- 
tional powers  to  the  federal  government ;  additional  restraints  upon 
those  of  the  states.  Fortunately  that  history  is  fresh  within  the 
memory  of  us  all,  and  its  leading  features,  as  they  bear  upon  the 
matter  before  us,  free  from  doubt.  *  *  *  [Here  follows  a  brief 
history  of  the  adoption  of  the  thirteenth  amendment.] 

The  process  of  restoring  to  their  proper  relations  with  the  federal 
government  and  with  the  other  states  those  which  had  sided  with 
the  Rebellion,  undertaken  under  the  proclamation  of  President  John- 
son in  1865,  and  before  the  assembling  of  Congress,  developed  the 
fact  that,  'notwithstanding  the  formal  recognition  by  those  states  of 
the  abolition  of  slavery,  the  condition  of  the  slave  race  would,  with- 
out further  protection  of  the  federal  government,  be  almost  as  bad 
as  it  was  before.  Among  the  first  acts  of  legislation  adopted  by  sev- 
eral of  the  states  in  the  legislative  bodies  which  claimed  to  be  in  their 
normal  relations  with  the  federal  government,  were  laws  which  im- 
posed upon  the  colored  race  onerous  disabilities  and  burdens,  and 
curtailed  their  rights  in  the  pursuit  of  life,  liberty,  and  property  to 
such  an  extent  that  their  freedom  was  of  little  value,  while  they  had 
lost  the  protection  which  they  had  received  from  their  former  owners 
from  motives  both  of  interest  and  humanity. 

They  were  in  some  states  forbidden  to  appear  in  the  towns  in  any 
other  character  than  menial  servants.  They  were  required  to  reside 
on  and  cultivate  the  soil  without  the  right  to  purchase  or  own  it. 
They  were  excluded  from  many  occupations  of  gain,  and  were  not 
permitted  to  give  testimony  in  the  courts  in  any  case  where  a  white 
man  was  a  party.  It  was  said  that  their  lives  were  at  the  mercy  of 
bad  men,  either  because  the  laws  for  their  protection  were  insufficient 
or  were  not  enforced. 

These  circumstances,  whatever  of  falsehood  or  misconception  may 
have  been  mingled  with  their  presentation,  forced  upon  the  statesmen 
who  had  conducted  the  federal  government  in  safety  through  the  crisis 
of  the  Rebellion,  and  who  supposed  that  by  the  thirteenth  article  of 
amendment  they  had  secured  the  result  of  their  labors,  the  conviction 
that  something  more  was  necessary  in  the  way  of  constitutional  pro- 
tection to  the  unfortunate  race  who  had  suffered  so  much.  They  ac- 
cordingly passed  through  Congress  the  proposition  for  the  fourteenth 
amendment,  and  they  declined  to  treat  as  restored  to  their  full  par- 
ticipation in  the  government  of  the  Union  the  states  which  had  been 
in  insurrection,  until  they  ratified  that  article  by  a  formal  vote  of 
their  legislative  bodies.  *  *  *  [Here  is  briefly  stated  the  history 
of  the  adoption  of  the  fifteenth  amendment.] 

We  repeat,  then,  in  the  light  of  this  recapitulation  of  events,  almost 
too  recent  to  be  called  history,  but  which  are  familiar  to  us  all;   and 


Ch.  8)       CIVIL   RIGHTS   SECURED    UNDER   FOURTEENTH   AMENDMENT      219 

on  the  most  casual  examination  of  the  language  of  these  amendments, 
no  one  can  fail  to  be  impressed  with  the  one  pervading  purpose  found 
in  them  all,  lying  at  the  foundation  of  each,  and  without  which  none 
of  them  would  have  been  even  suggested ;  we  mean  the  freedom  of 
the  slave  race,  the  security  and  firm  establishment  of  that  freedom, 
and  the  protection  of  the  newly-made  freeman  and  citizen  from  the 
oppressions  of  those  who  had  formerly  exercised  unlimited  dominion 
over  him.  It  is  true  that  only  the  fifteenth  amendment,  in  terms, 
mentions  the  negro  by  speaking  of  his  color  and  his  slavery.  But  it 
is  just  as  true  that  each  of  the  other  articles  was  addressed  to  the 
grievances  of  that  race,  and  designed  to  remedy  them  as  the  fifteenth. 

We  do  not  say  that  no  one  else  but  the  negro  can  share  in  this 
protection.  Both  the  language  and  spirit  of  these  articles  are  to  have 
their  fair  and  just  weight  in  any  question  of  construction.  Undoubt- 
edly while  negro  slavery  alone  was  in  the  mind  of  the  Congress  which 
proposed  the  thirteenth  article,  it  forbids  any  other  kind  of  slavery, 
now  or  hereafter.  If  Mexican  peonage  or  the  Chinese  cooly  labor 
system  shall  develop  slavery  of  the  Mexican  or  Chinese  race  within 
our  territory,  this  amendment  may  safely  be  trusted  to  make  it  void. 
And  so  if  other  rights  are  assailed  by  the  states  which  properly  and 
necessarily  fall  within  the  protection  of  these  articles,  that  protection 
will  apply,  though  the  party  interested  may  not  be  of  African  descent. 
But  what  we  do  say,  and  what  we  wish  to  be  understood  [as  saying] 
is,  that  in  any  fair  and  just  construction  of  any  section  or  phrase  of 
these  amendments,  it  is  necessary  to  look  to  the  purpose  which  we 
have  said  was  the  pervading  spirit  of  them  all,  the  evil  which  they 
were  designed  to  remedy,  and  the  process  of  continued  addition  to 
the  Constitution,  until  that  purpose  was  supposed  to  be  accomplished, 
as  far  as  constitutional  law  can  accomplish  it. 

The  first  section  of  the  fourteenth  article,  to  which  our  attention  is 
more  specially  invited,  opens  with  a  definition  of  citizenship — not 
only  citizenship  of  the  United  States,  but  citizenship  of  the  states. 
*  *  *  "All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  state  wherein  they  reside."  *  *  *  That  its  main  pur- 
pose was  to  establish  the  citizenship  of  the  negro  can  admit  of  no 
doubt    *    *    * 

The  next  observation  is  more  important  in  view  of  the  arguments 
of  counsel  in  the  present  case.  It  is,  that  the  distinction  between 
citizenship  of  the  United  States  and  citizenship  of  a  state  is  clearly 
recognized  and  established.  Not  only  may  a  man  be  a  citizen  of  the 
United  States  without  being  a  citizen  of  a  state,  but  an  important 
element  is  necessary  to  convert  the  former  into  the  latter.  He  must 
reside  within  the  state  to  make  him  a  citizen  of  it,  but  it  is  only  nec- 
essary that  he  should  be  born  or  naturalized  in  the  United  States  to 
be  a  citizen  of  the  Union. 

It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the  United 


220  FUNDAMENTAL    BIGHTS  (Part  2 

States,  and  a  citizenship  of  a  state,  which  are  distinct  from  each 
other,  and  which  depend  upon  different  characteristics  or  circum- 
stances in  the  individual. 

We  think  this  distinction  and  its  explicit  recognition  in  this  amend- 
ment of  great  weight  in  this  argument,  because  the  next  paragraph 
of  this  same  section,  which  is  the  one  mainly  relied  on  by  the  plain- 
tiffs in  error,  speaks  only  of  privileges  and  immunities  of  citizens 
of  the  United  States,  and  does  not  speak  of  those  of  citizens  of  the 
several  states.  The  argument,  however,  in  favor  of  the  plaintiffs 
rests  wholly  on  the  assumption  that  the  citizenship  is  the  same,  and 
the  privileges  and  immunities  guaranteed  by  the  clause  are  the  same. 

The  language  is,  "No  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States."  It  is  a  little  remarkable,  if  this  clause  was  intended  as  a, 
protection  to  the  citizen  of  a  state  against  the  legislative  power  of  his 
own  state,  that  the  word  citizen  of  the  state  should  be  left  out  when 
it  is  so  carefully  used,  and  used  in  contradistinction  to  citizens  of  the 
United  States,  in  the  very  sentence  which  precedes  it.  It  is  too  clear 
for  argument  that  the  change  in  phraseology  was  adopted  understand- 
ing^ and  with  a  purpose. 

Of  the  privileges  and  immunities  of  the  citizen  of  the  United 
States,  and  of  the  privileges  and  immunities  of  the  citizen  of  the  state, 
and  what  they  respectively  are,  we  will  presently  consider;  but  we 
wish  to  state  here  that  it  is  only  the  former  which  are  placed  by  this 
clause  under  the  protection  of  the  federal  Constitution,  and  that  the 
latter,  whatever  they  may  be,  are  not  intended  to  have  any  additional 
protection  by  this  paragraph  of  the  amendment. 

If,  then,  there  is  a  difference  between  the  privileges  and  immunities 
belonging  to  a  citizen  of  the  United  States  as  such,  and  those  be- 
longing to  the  citizen  of  the  state  as  such,  the  latter  must  rest  for 
their  security  and  protection  where  they  have  heretofore  rested;  for 
they  are  not  embraced  by  this  paragraph  of  the  amendment. 

The  first  occurrence  of  the  words  "priviliges  and  immunities"  in 
our  constitutional  history,  is  to  be  found  in  the  fourth  of  the  Articles 
of  the  old  Confederation. 

It  declares  "that  the  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  states  in  this 
Union,  the  free  inhabitants  of  each  of  these  states,  paupers,  vaga- 
bonds, and  fugitives  from  justice  excepted,  shall  be  entitled  to  all 
the  privileges  and  immunities  of  free  citizens  in  the  several  states ; 
and  the  people  of  each  state  shall  have  free  ingress  and  regress  to 
and  from  any  other  state,  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impositions,  and 
restrictions  as  the  inhabitants  thereof  respectively." 

In  the  Constitution  of  the  United  States,  which  superseded  the 
Articles  of  Confederation,  the  corresponding  provision  is  found  in 
section  two  of  the  fourth  article,  in  the  following  words:   "The  cit- 


Ch.  8)       CIVIL   RIGHTS  SECUKED    UNDF.U    90UR7EENTB    AMUNIiMtNT      221 

izens  of  each  state  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  of  the  several  states." 

There  can  be  but  little  question  that  the  purpose  of  both  these  pro- 
visions is  the  same,  and  that  the  privileges  and  immunities  in 
are  the  same  in  each.     In  the  Articles  of  the  Confederation  we  have 
some   of   these  specifically   mentioned,    and   enough    perhaps   to   give 
some  general  idea  of  the  class  of  civil  rights  meant  by  the  phrase. 

Fortunately  we  are  not  without  judicial  construction  of  this  clause 
of  the  Constitution.  *  *  *  [Here  follow  quotations  from  Cor- 
tield  v.  Coryell,  ante,  p.  197,  and  Paul  v.  Virginia,  ante,  p.  200.] 

The  constitutional  provision  there  alluded  to  did  not  create  those 
rights,  which  it  called  privileges  and  immunities  of  citizens  of  the 
states.  It  threw  around  them  in  that  clause  no  security  for  the  cit- 
izen of  the  state  in  which  they  were  claimed  or  exercised.  Nor  did 
it  profess  to  control  the  power  of  the  slate  governments  over  the 
rights  of  its  own  citizens. 

Its  sole  purpose  was  to  declare  to  the  several  states,  that  whatever 
those  rights,  as  you  grant  or  establish  them  to  your  own  citizens,  or 
as  you  limit  or  qualify,  or  impose  restrictions  on  their  exercise,  the 
same,  neither  more  nor  less,  shall  be  the  measure  of  the  rights  of  cit- 
izens of  other  states  within  your  jurisdiction. 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  by 
citations  of  authority,  that  up  to  the  adoption  of  the  recent  amend- 
ments, no  claim  or  pretence  was  set  up  that  those  rights  defended  on 
the  federal  government  for  their  existence  or  protection,  beyond  the 
very  few  express  limitations  which  the  federal  Constitution  imposed 
upon  the  states — such,  for  instance,  as  the  prohibition  against  ex 
post  facto  laws,  bills  of  attainder,  and  laws  impairing  the  obligation 
of  contracts.  Eut  with  the  exception  of  these  and  a  few  other  re- 
strictions, the  entire  domain  of  the  privileges  and  immunities  of  cit- 
izens of  the  states,  as  above  defined,  lay  within  the  constitutional  and 
legislative  power  of  the  states,  and  without  that  of  the  federal  gov- 
ernment. Was  it  the  purpose  of  the  Fourteenth  amendment,  by  the 
simple  declaration  that  no  state  should  make  or  enforce  any  law 
which  shall  abridge  the  privileges  and  immunities  of  citizens  of  the 
United  States,  to  transfer  the  security  and  protection  of  all  the  civil 
rights  which  we  have  mentioned,  from  the  states  to  the  federal  gov- 
ernment? And  where  it  is  declared  that  Congn  11  have  the 
power  to  enforce  that  article,  was  it  intended  to  bring  within  the 
power  of  Congress  the  entire  domain  of  civil  rights  heretofore  be- 
longing exclusively  to  the  states? 

All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs 
in  error  be  sound.  For  not  only  are  these  rights  subject  to  the  con- 
trol of  Congress  whenever  in  its  discretion  any  of  them  are  supposed 
to  be  abridged  by  state  legislation,  but  that  body  may  also  pass  laws 
in  advance,  limiting  and  restricting  the  exercise  of  legislative  power 
by  the  states,  in  their  most  ordinary   and  usual  functions,  as  in   us 


222  FUNDAMENTAL    RIGHTS  (Part  2 

judgment  it  may  think  proper  on  all  such  subjects.  And  still  further, 
such  a  construction  followed  by  the  reversal  of  the  judgments  of  the 
Supreme  Court  of  Louisiana  in  these  cases,  would  constitute  this 
court  a  perpetual  censor  upon  all  legislation  of  the  states,  on  the  civil 
rights  of  their  own  citizens,  with  authority  to  nullify  such  as  it  did 
not  approve  as  consistent  with  those  rights,  as  they  existed  at  the 
time  of  the  adoption  of  this  amendment.  The  argument,  we  admit, 
is  not  always  the  most  conclusive  which  is  drawn  from  the  conse- 
quences urged  against  the  adoption  of  a  particular  construction  of 
an  instrument.  But  when,  as  in  the  case  before  us,  these  conse- 
quences are  so  serious,  so  far-reaching  and  pervading,  so  great  a  de- 
parture from  the  structure  and  spirit  of  our  institutions ;  when  the 
effect  is  to  fetter  and  degrade  the  state  governments  by  subjecting 
them  to  the  control  of  Congress,  in  the  exercise  of  powers  hereto- 
fore universally  conceded  to  them  of  the  most  ordinary  and  funda- 
mental character ;  when  in  fact  it  radically  changes  the  whole  theory 
of  the  relations  of  the  state  and  federal  governments  to  each  other  and 
of  both  these  governments  to  the  people ;  the  argument  has  a  force 
that  is  irresistible,  in  the  absence  of  language  which  expresses  such  a 
purpose  too  clearly  to  admit  of  doubt. 

We  are  convinced  that  no  such  results  were  intended  by  the  Con- 
gress which  proposed  these  amendments,  nor  by  the  legislatures  of 
the  states   which   ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in  the 
argument  are  those  which  belong  to  citizens  of  the  states  as  such, 
and  that  they  are  left  to  the  state  governments  for  security  and  pro- 
tection, and  not  by  this  article  placed  under  the  special  care  of  the 
federal  government,  we  may  hold  ourselves  excused  from  defining 
the  privileges  and  immunities  of  citizens  of  the  United  States  which 
no  state  can  abridge,  until  some  case  involving  those  privileges  may 
make  it  necessary  to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immunities 
are  to  be  found  if  those  we  have  been  considering  are  excluded,  we 
venture  to  suggest  some  which  owe  their  existence  to  the  federal  gov- 
ernment, its  national  character,  its  Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  v.  Nevada, 
6  Wall.  36,  18  L.  Ed.  745.  It  is  said  to  be  the  right  of  the  citizen 
of  this  great  country,  protected  by  implied  guarantees  of  its  Constitu- 
tion, "to  come  to  the  seat  of  government  to  assert  any  claim  he  may 
have  upon  that  government,  to  transact  any  business  he  may  have 
with  it,  to  seek  its  protection,  to  share  its  offices,  to  engage  in  ad- 
ministering its  functions.  He  has  the  right  of  free  access  to  its  sea- 
ports, through  which  all  operations  of  foreign  commerce  are  con- 
ducted, to  the  sub-treasuries,  land  offices,  and  courts  of  justices  in 
the  several  states."  And  quoting  from  the  language  of  Chief  Justice 
Taney  in  another  case,  it  is  said  "that  for  all  the  great  purposes  for 
which  the  federal  government,  was  established,  we  are  one  people. 


Ch.  8)      CIVIL  BIGHTS  BOCDBSD   ONDBB   FOUBTEENTB   AMENDMENT     Tl'.', 

with  one  common  country,  we  are  all  citizens  of  the  United  States ;" 
and  it  is,  as  such  citizens,  that  their  rights  are  supported  in  this  court 
in  Crandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand 
the  care  and  protection  of  the  federal  government  over  his  life,  lib- 
erty, and  property  when  on  the  high  seas  or  within  the  jurisdiction 
of  a  foreign  government.  Of  this  there  can  be  no  doubt,  nor  that 
the  right  depends  upon  his  character  as  a  citizen  of  the  United  States. 
The  right  to  peaceably  assemble  and  petition  for  redress  of  griev- 
ances, the  privilege  of  the  writ  of  habeas  corpus,  are  rights  of  the 
citizen  guaranteed  by  the  federal  Constitution.  The  right  to  use 
the  navigable  waters  of  the  United  States,  however  they  may  pene- 
trate the  territory  of  the  several  states,  all  rights  secured  to  our  cit- 
izens by  treaties  with  foreign  nations,  are  dependent  upon  citizenship 
of  the  United  States,  and  not  citizenship  of  a  state.  One  of  these 
privileges  is  conferred  by  the  very  article  under  consideration.  It  is 
that  a  citizen  of  the  United  States  can,  of  his  own  volition,  become 
a  citizen  of  any  state  of  the  Union  by  a  bona  fide  residence  therein, 
with  the  same  rights  as  other  citizens  of  that  state.*  To  these  may 
be  added  the  rights  secured  by  the  thirteenth  and  fifteenth  articles 
of  amendment,  and  by  the  other  clause  of  the  fourteenth,  next  to  be 
considered. 

But  it  is  useless  to  pursue  this  branch  of  the  inquiry,  since  we  are 
of  opinion  that  the  rights  claimed  by  these  plaintiffs  in  error,  if  they 
have  any  existence,  are  not  privileges  and  immunities  of  citizens  of 
the  United  States  within  the  meaning  of  the  clause  of  the  fourteenth 
amendment  under  consideration.  *  *  *  [This  restraint  upon  the 
New  Orleans  butchers  was  held  not  to  be  a  taking  of  their  property 
without  due  process  of  law.] 

"Nor  shall  any  state  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  pervading 
purpose  of  them,  which  we  have  already  discussed,  it  is  not  difficult 
to  give  a  meaning  to  this  clause.  The  existence  of  laws  in  the  states 
where  the  newly  emancipated  negroes  resided,  which  discriminated 
with  gross  injustice  and  hardship  against  them  as  a  class,  was  the 
evil  to  be  remedied  by  this  clause,  and  by  it  such  laws  are  forbidden. 

If,  however,  the  states  did  not  conform  their  laws  to  its  require- 
ments, then  by  the  fifth  section  of  the  article  of  amendment  Congress 
was  authorized  to  enforce  it  by  suitable  legislation.  We  doubt  very 
much  whether  any  action  of  a  state  not  directed  by  way  of  discrim- 
ination against  the  negroes  as  a  class,  or  on  account  of  their  race, 
will  ever  be  held  to  come  within  the  purview  of  this  provision.5     It 

■  Other  implied  privileges  of  national  citizenship  are  mentioned  in  Twin- 
ing v.  New  Jersey,  211  D.  S.  78,  97.  29  Sup.  Ct.  14,  68  L.  Ed.  97  (1908). 

•  "[This]  suggestion  that  only  discrimination  by  a  state  against  the  I 
as  a  class  or  on  account  of  their  race  was  covered  by  the  amendment  as  to 


224  FUNDAMENTAL    RIGHTS  (Part  2 

is  so  clearly  a  provision  for  that  race  and  that  emergency,  that  a 
strong  case  would  be  necessary  for  its  application  to  any  other.  But 
as  it  is  a  state  that  is  to  be  dealt  with,  and  not  alone  the  validity  of 
its  laws,  we  may  safely  leave  that  matter  until  Congress  shall  have 
exercised  its  power,  or  some  case  of  state  oppression,  by  denial  of 
equal  justice  in  its  courts,  shall  have  claimed  a  decision  at  our  hands. 
We  find  no  such  case  in  the  one  before  us,  and  do  not  deem  it  neces- 
sary to  go  over  the  argument  again,  as  it  may  have  relation  to  this 
particular  clause  of  the  amendment. 

In  the  early  history  of  the  organization  of  the  government,  its 
statesmen  seem  to  have  divided  on  the  line  which  should  separate  the 
powers  of  the  national  government  from  those  of  the  state  govern- 
ments, and  though  this  line  has  never  been  very  well  denned  in  pub- 
lic opinion,  such  a  division  has  continued  from  that  day  to  this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitution 
so  soon  after  the  original  instrument  was  accepted,  shows  a  prevail- 
ing sense  of  danger  at  that  time  from  the  federal  power.  And  it 
cannot  be  denied  that  such  a  jealousy  continued  to  exist  with  many 
patriotic  men  until  the  breaking  out  of  the  late  Civil  War.  It  was 
then  discovered  that  the  true  danger  to  the  perpetuity  of  the  Union 
was  in  the  capacity  of  the  state  organizations  to  combine  and  con- 
centrate all  the  powers  of  the  state,  and  of  contiguous  states,  for  a 
determined  resistance  to  the  general  government. 

Unquestionably  this  has  given  great  force  to  the  argument  and 
added  largely  to  the  number,  of  those  who  believe  in  the  necessity  of 
a  strong  national  government. 

But,  however  pervading  this  sentiment,  and  however  it  may  have 
contributed  to  the  adoption  of  the  amendments  we  have  been  con- 
sidering, we  do  not  see  in  those  amendments  any  purpose  to  destroy 
the  main  features  of  the  general  system.  Under  the  pressure  of  all 
the  excited  feeling  growing  out  of  the  war,  our  statesmen  have  still 
believed  that  the  existence  of  the  states  with  powers  for  domestic 
and  local  government,  including  the  regulation  of  civil  rights — the 
rights  of  person  and  of  property — was  essential  to  the  perfect  work- 
ing of  our  complex  form  of  government,  though  they  have  thought 
proper  to  impose  additional  limitations  on  the  states,  and  to  confer 
additional  power  on  that  of  the  nation. 

But  whatever  fluctuations  may  be  seen  in  the  history  of  public 
opinion  on  this  subject  during  the  period  of  our  national  existence, 
we  think  it  will  be  found  that  this  court,  so  far  as  its  functions  re- 
quired, has  always  held  with  a  steady  and  an  even  hand  the  balance 
betwten  state  and  federal  power,  and  we  trust  that  such  may  continue 

the  equal  protection  of  the  laws  has  not  been  affirmed  by  the  later  cases. 
*  *  *  That  the  primary  reason  for  that  amendment  was  to  secure  the 
full  enjoyment  of  liberty  to  the  colored  race  Is  not  denied,  yet  It  Is  not  re- 
stricted to  that  purpose,  and  it  applies  to  every  one,  white  or  black,  that 
comes  within  its  provisions." — Peckham,  J.,  in  Maxwell  v.  Dow,  176  U.  S. 
5S1,  591,  593,  20  Sup.  Ct  448,  452,  453,  44  L.  Ed.  597  (1900). 


Ch.  8)      civil   RIGHTS  BBCOBSD   DHDBH   FOT7XTEBNTB   AMENDMENT     22o 

to  be  the  history  of  its  relation  to  that  subject  so  long  as  it  shall 
have  duties  to  perform  which  demand  of  it  a  construction  of  the 
Constitution,  or  of  any  of  its  parts. 

Judgment  affirmed. 

[Dissenting  opinions  were  given  by  Field,  Bradley,  and  Swayne, 
JJ.    Chase,  C.  J.,  also  dissented.] 


MAXWELL  v.  DOW. 

(Supreme  Conrt  of  United  States,  1000.     170  U.  S.  581,  20  Sap.  Ct  -1  IS,   40-1. 
44  L.  Ed.  597.) 

[Error  to  the  Supreme  Court  of  Utah.  Upon  an  information  filed 
against  Maxwell,  charging  him  with  robbery,  he  was  tried  in  Utah  by 
a  jury  of  eight  jurors,  was  found  guilty,  and  sent  to  prison.  He  ap- 
plied for  a  writ  of  habeas  corpus  upon  the  ground,  among  others,  that 
this  procedure,  though  authorized  by  the  Utah  Constitution,  abridged 
his  privileges  and  immunities  as  a  citizen  of  the  United  States,  in  vio- 
lation of  the  fourteenth  amendment  of  the  federal  Constitution.  The 
Utah  Supreme  Court  denied  his  petition,  and  this  writ  of  error  was 
taken.] 

Mr.  Justice  Peckiiam.  *  *  *  What  are  the  privileges  and  im- 
munities of  a  citizen  of  the  United  States  which  no  state  can  abridge? 
Do  they  include  the  right  to  be  exempt  from  trial,  for  an  infamous 
crime,  in  a  state  court  and  under  state  authority  except  upon  present- 
ment by  a  grand  jury?  And  do  they  also  include  the  right  in  all  crim- 
inal prosecutions  in  a  state  court  to  be  tried  by  a  jury  composed  of 
twelve  jurors? 

That  a  jury  composed,  as  at  common  law,  of  twelve  jurors  was  in- 
tended by  the  sixth  amendment  to  the  federal  Constitution,  there  can 
be  no  doubt.  Thompson  v.  Utah,  170  U.  S.  343,  349,  18  Sup.  Ct.  620. 
42  L.  Ed.  1061.  And  as  the  right  of  trial  by  jury  in  certain  suits  at 
common  law  is  preserved  by  the  seventh  amendment,  such  a  trial  im- 
plies that  there  shall  be  an  unanimous  verdict  of  twelve  jurors  in  all 
federal  courts  where  a  jurv  trial  is  held.  American  Pub.  Co.  v.  Fisher. 
166  U.  S.  464,  17  Sup.  Ct.  618,  41  L,  Ed.  1079;  Springville  v.  Thomas, 
166  U.  S.  707,  17  Sup.  Ct.  717,  41  L.  Ed.  1172. 

It  would  seem  to  be  quite  plain  that  the  provision  in  the  Utah  Con- 
stitution for  a  jury  of  eight  jurors  in  all  state  criminal  trials,  for  other 
than  capital    offenses,   violates    the   sixth    amendment,    provided    that 
Iment  is  now  to  be  construed  as  applicable  to  criminal  prosecu- 
tions of  citizens  of  the  United  States  in  state  courts. 

It  is  conceded  that  there  are  certain  privileges  or  imtnuniti' 
sessed  by  a  citizen  of  the  United  States,  because  of  his  citizenship, 
and  that  they  cannot  be  abridged  by  any  action  of  the  states.     In  order 

II  M  1   CONBT.Ii. — 16 


226  FUNDAMENTAL    RIGHTS  (Part  2 

to  limit  the  powers  which  it  was  feared  might  be  claimed  or  exercised 
by  the  federal  government,  under  the  provisions  of  the  Constitution  as 
it  was  when  adopted,  the  first  ten  amendments  to  that  instrument  were 
proposed  to  the  legislatures  of  the  several  states  by  the  first  Congress 
on  the  25th  of  September,  1789.  They  were  intended  as  restraints 
and  limitations  upon  the  powers  of  the  general  government,  and  were 
not  intended  to  and  did  not  have  any  effect  upon  the  powers  of  the 
respective  states.    This  has  been  many  times  decided.    *     *    * 

It  is  claimed,  however,  that  since  the  adoption  of  the  fourteenth 
amendment  the  effect  of  the  former  amendments  has  been  thereby 
changed  and  greatly  enlarged.  It  is  now  urged  in  substance  that  all 
the  provisions  contained  in  the  first  ten  amendments,  so  far  as  they 
secure  and  recognize  the  fundamental  rights  of  the  individual  as 
against  the  exercise  of  federal  power,  are  by  virtue  of  this  amendment 
to  be  regarded  as  privileges  or  immunities  of  a  citizen  of  the  United 
States,  and  therefore  the  states  cannot  provide  for  any  procedure  in 
state  courts  which  could  not  be  followed  in  a  federal  court  because  of 
the  limitations  contained  in  those  amendments.  This  was  also  the  con- 
tention made  upon  the  argument  in  the  Spies  Case,  123  U.  S.  131,  151, 
8  Sup.  Ct.  22,  31  L.  Ed.  80;  but  in  the  opinion  of  the  court  therein, 
which  was  delivered  by  Mr.  Chief  Justice  Waite,  the  question  was  not 
decided  because  it  was  held  that  the  case  did  not  require  its  decision. 

In  the  Slaughter-House  Cases,  16  Wall.  36,  21  L.  Ed.  394,  the  sub- 
ject of  the  privileges  or  immunities  of  citizens  of  the  United  States, 
as  distinguished  from  those  of  a  particular  state,  was  treated  by  Mr. 
Justice  Miller  in  delivering  the  opinion  of  the  court.  *  *  *  [This 
opinion,  which  appears  ante,  p.  216,  is  here  di.  cussed  at  length,  and 
quotations  are  made  from  it  and  from  the  opinion  of  Washington,  J.. 
in  Corfield  v.  Coryell,  ante,  p.  197.] 

We  have  made  this  extended  reference  to  the  case  because  of  its 
great  importance,  the  thoroughness  of  the  treatment  of  the  subject,  and 
the  great  ability  displayed  by  the  author  of  the  opinion.  Although 
his  suggestion  that  only  discrimination  by  a  state  against  the  negroes 
as  a  class  or  on  account  of  their  race  was  covered  by  the  amendment 
as  to  the  equal  protection  of  the  laws  has  not  been  affirmed  by  the 
later  cases,  yet  it  was  but  the  expression  of  his  belief  as  to  what  would 
be  the  decision  of  the  court  when  a  case  came  before  it  involving  that 
point.  The  opinion  upon  the  matters  actually  involved  and  maintained 
by  the  judgment  in  the  case  has  never  been  doubted  or  overruled  by 
any  judgment  of  this  court.  It  remains  one  of  the  leading  cases  upon 
the  subject  of  that  portion  of  the  fourteenth  amendment  of  which  it 
treats. 

The  definition  of  the  words  "privileges  and  immunities,"  as  given 
by  Mr.  Justice  Washington,  was  adopted  in  substance  in  Paul  v.  Vir- 
ginia, 8  Wall.  168,  180,  19  L.  Ed.  360,  and  in  Ward  v.  Maryland,  12 
Wall.  418,  430,  20  L.  Ed.  453.    These  rights,  it  is  said  in  the  Slaugh- 


C!l.  8)       CIVIL   RIGHTS  SECURED   UNDER   FOURTEENTH    AMENDMENT 


227 


ter-House  Cases,  have  always  been  held  to  be  the  class  of  rights  which 
the  state  governments  were  created  to  establish  and  secure.    * 

It  was  said  in  Minor  v.  Happersett,  21  Wall.  162,  22  L.  Ed.  627, 
that  the  amendment  did  not  add  to  the  privileges  and  immunities  of  a 
citizen ;  it  simply  furnished  an  additional  guaranty  for  the  protection 
of  such  as  he  already  had.  And  in  Re  Kemmler,  136  U.  S.  436,  44$ 
10  Sup.  Ct.  930.  934,  34  L.  Ed.  519,  524.  it  was  stated  by  the  present 
Chief  Justice  that :  "The  fourteenth  amendment  did  not  radically 
change  the  whole  theory  of  the  relations  of  the  state  and  federal  gov- 
ernments to  each  other,  and  of  both  governments  to  the  people.  The 
same  person  may  be  at  the  same  time  a  citizen  of  the  United  States 
and  a  citizen  of  a  state.  Protection  to  life,  liberty,  and  property  rests 
primarily  with  the  states,  and  the  amendment  furnishes  an  additional 
guaranty  against  any  encroachment  by  the  states  upon  those  funda- 
mental rights  which  belong  to  citizenship,  and  which  the  state  govern- 
ments were  created  to  secure.  The  privileges  and  immunities  of  citi- 
zens of  the  United  States,  as  distinguished  from  the  privileges  and  im- 
munities of  citizens  of  the  states,  are  indeed  protected  by  it ;  but  those 
are  privileges  and  immunities  arising  out  of  the  nature  and  essential 
character  of  the  national  government,  and  granted  or  secured  by  the 
Constitution  of  the  United  States.  United  States  v.  Cruikshank,  92 
U.  S.  542,  23  L.  Ed.  588;  Slaughter-House  Cases.  16  Wall.  36,  21  L. 
Ed.  394."    *    •    * 

In  Walker  v.  Sauvinet,  92  U.  S.  90,  23  L.  Ed.  678,  it  was  held  that 
a  trial  by  jury  in  suits  at  common  law  in  the  state  courts  was  not  a 
privilege  or  immunity  belonging  to  a  person  as  a  citizen  of  the  United 
States,  and  protected,  therefore,  by  the  fourteenth  amendment.  *  *  * 
This  case  shows  that  the  fourteenth  amendment  in  forbidding  a  state 
to  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States 
does  not  include  among  them  the  right  of  trial  by  jury  in  a  civil  case, 
in  a  state  court,  although  the  right  to  such  a  trial  in  the  federal  courts 
is  specially  secured  to  all  persons  in  the  cases  mentioned  in  the  seventh 
amendment. 

Is  any  one  of  the  rights  secured  to  the  individual  by  the  fifth  or  by 
the  sixth  amendment  any  more  a  privilege  or  immunity  of  a  citizen  of 
the  United  States  than  are  those  secured  by  the  seventh  ?  In  none  are 
they  privileges  or  immunities  granted  and  belonging  to  the  individual 
as  a  citizen  of  the  United  States,  but  thev  are  secured  to  all  persons 
as  against  the  federal  government,  entirely  irrespective  of  such  citi- 
zenship. As  the  individual  does  not  enjoy  them  as  a  privilege  of  citi- 
zenship of  the  United  States,  therefore,  when  the  fourteenth  amend- 
ment prohibits  the  abridgement  by  the  states  of  those  privileges  or 
immunities  which  he  enjoys  as  such  citizen,  it  is  not  correct  or  reasona- 
ble to  say  that  it  covers  and  extends  to  certain  rights  which  he  does 
not  enjoy  by  reason  of  his  citizenship,  but  simply  because  those  rights 
exist  in  favor  of  all  individuals  as  against  federal  governmental  pow- 


228  FUNDAMENTAL    BIGHTS  (Part  2 

ers.  The  nature  or  character  of  the  right  of  trial  by  jury  is  the  same 
in  a  criminal  prosecution  as  in  a  civil  action,  and  in  neither  case  does 
it  spring  from  nor  is  it  founded  upon  the  citizenship  of  the  individual 
as  a  citizen  of  the  United  States,  and  if  not,  then  it  cannot  be  said 
that  in  either  case  it  is  a  privilege  or  immunity  which  alone  belongs  to 
him  as  such  citizen.  *  *  *  Those  are  not  distinctly  privileges  or 
immunities  of  such  citizenship,  where  everyone  has  the  same  as 
against  the  federal  government,  whether  citizen  or  not.    *    *    * 

In  Re  Kemmler,  136  U.  S.  436,  448,  10  Sup.  Ct.  930,  34  L.  Ed.  519, 
524,  it  was  stated  that  it  was  not  contended  and  could  not  be  that  the 
eighth  amendment  to  the  federal  Constitution  was  intended  to  apply 
to  the  states.  *  *  *  In  Presser  v.  Illinois,  116  U.  S.  252,  6  Sup. 
Ct.  580,  29  L-  Ed.  615,  it  was  held  that  the  second  amendment  to  the 
Constitution,  in  regard  to  the  right  of  the  people  to  bear  arms,  is  a  lim- 
itation only  on  the  power  of  Congress  and  the  national  government, 
and  not  of  the  states.  *  *  *  In  O'Neil  v.  Vermont,  144  U.  S.  323, 
332,  12  Sup.  Ct.  693,  36  L.  Ed.  450,  456,  it  was  stated  that  as  a  gen- 
eral question  it  has  always  been  ruled  that  the  eighth  amendment  to  the 
Constitution  of  the  United  States  does  not  apply  to  the  states.  In 
Thorington  v.  Montgomery,  147  U.  S.  490,  13  Sup.  Ct.  394,  37  L,  Ed. 
252,  it  was  said  that  the  fifth  amendment  to  the  Constitution  operates 
exclusively  in  restraint  of  federal  power,  and  has  no  application  to 
the  states. 

We  have  cited  these  cases  for  the  purpose  of  showing  that  the 
privileges  and  immunities  of  citizens  of  the  United  States  do  not  nec- 
essarily include  all  the  rights  protected  by  the  first  eight  amendments 
to  the  federal  Constitution  against  the  powers  of  the  federal  govern- 
ment. They  were  decided  subsequently  to  the  adoption  of  the  four- 
teenth amendment,  and  if  the  particular  clause  of  that  amendment, 
now  under  consideration,  had  the  effect  claimed  for  it  in  this  case,  it  is 
not  too  much  to  say  that  it  would  have  been  asserted  and  the  principles 
applied  in  some  of  them.    *    *    * 

Judgment  affirmed.1 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


DAVIDSON  v.  NEW  ORLEANS  (1878)  96  U.  S.  97,  24  L.  Ed. 
616,  Mr.  Justice  Miller  (upholding  a  Louisiana  special  assessment 
for  draining  swamp  lands) : 

i  Accord:  Twining  v.  New  Jersey.  211  V.  S.  78,  93-99.  29  Sup.  Ct.  14,  19, 
20,  53  L.  Ed.  97  (1908)  (right  against  self-incrimination)  (eases) ;  Moody,  J., 
saying:  "it  is  possible  that  some  of  the  personal  rights  safeguarded  by  the 
first  eight  amendments  against  national  action  may  also  be  safeguarded 
against  state  action,  because  :i  denial  of  them  would  be  a  denial  of  due 
process  of  law.  Chicago,  B.  &  Q.  K.  Co.  v.  Chicago,  166  U.  S.  226,  17  Sup.  Ct 
581,  41  L.  iOd.  979.  it  this  is  so,  it  is  not  because  these  rights  are  enumerated 
In  the  first  eight  amendments,  but  because  they  are  of  such  a  nature  that 
they  are  included  in  the  conception  of  due  process  of  law." 


Ch.  8)     CIVIL  BIGHTS  Si:.  URED  inukr  fourteenth  amendment     229 

"The  prohibition  against  depriving  the  citizen  or  subject  of  his  life, 
liberty,  or  property  without  due  process  of  law,  is  not  new  in  the  con- 
stitutional history  of  the  English  race.  It  is  not  new  in  the  constitu- 
tional history  of  this  country,  and  it  was  not  new  in  the  Constitution  of 
the  United  States  when  it  became  a  part  of  the  fourteenth  amend- 
ment, in  the  year  1866. 

"The  equivalent  of  the  phrase  'due  process  of  law,'  according  to 
Lord  Coke,  is  found  in  the  words  'law  of  the  land,'  in  the  Great  Char- 
ter, in  connection  with  the  writ  of  habeas  corpus,  the  trial  by  jury,  and 
other  guarantees  of  the  rights  of  the  subject  against  the  oppression  of 
the  Crown.  In  the  series  of  amendments  to  the  Constitution  of  the 
United  States,  proposed  and  adopted  immediately  after  the  organiza- 
tion of  the  government,  which  were  dictated  by  the  jealousy  of  the 
states  as  further  limitations  upon  the  power  of  the  federal  govern- 
ment, it  is  found  in  the  fifth,  in  connection  with  other  guarantees 
of  personal  rights  of  the  same  character.  Among  these  are  protection 
against  prosecutions  for  crimes,  unless  sanctioned  by  a  grand  jury, 
against  being  twice  tried  for  the  same  offense,  against  the  accused 
being  compelled,  in  a  criminal  case,  to  testify  against  himself,  and 
against  taking  private  property  for  public  use  without  just  compen- 
sation. 

"Most  of  these  provisions,  including  the  one  under  consideration, 
either  in  terms  or  in  substance,  have  been  embodied  in  the  constitutions 
of  the  several  states,  and  in  one  shape  or  another  have  been  the  subject 
of  judicial  construction.  It  must  be  confessed,  however,  that  the  con- 
stitutional meaning  or  value  of  the  phrase  'due  process  of  law,'  re- 
mains to-day  without  that  satisfactory  precision  of  definition  which 
judicial  decisions  have  given  to  nearly  all  the  other  guarantees  of  per- 
sonal rights  found  in  the  constitutions  of  the  several  states  and  of  the 
United  States. 

"It  is  easy  to  see  that  when  the  great  barons  of  England  wrung 
from  King  John,  at  the  point  of  the  sword,  the  concession  that  neither 
their  lives  nor  their  property  should  be  disposed  of  by  the  Crown,  ex- 
cept as  provided  by  the  law  of  the  land,  they  meant  by  'law  of  the 
land'  the  ancient  and  customary  laws  of  the  English  people,  or  laws 
enacted  by  the  Parliament  of  which  those  barons  were  a  controlling 
element.  It  was  not  in  their  minds,  therefore,  to  protect  themselves 
against  the  enactment  of  laws  by  the  Parliament  of  England.  But 
when,  in  the  year  of  grace  1866,  there  is  placed  in  the  Constitution  of 
the  United  States  a  declaration  that  'no  state  shall  deprive  any  per- 
son of  life,  liberty,  or  property  without  due  process  of  law,'  can  a 
state  make  anything  due  process  of  law  which,  by  its  own  legislation, 
it  chooses  to  declare  such  ?  To  affirm  this  is  to  hold  that  the  prohibition 
to  the  states  is  of  no  avail,  or  has  no  application  where  the  invasion 
of  private  rights  is  effected  under  the  forms  of  state  legislation.  It 
seems  to  us  that  a  statute  which  declares  in  terms,  and  without  more, 
that  the  full  and  exclusive  title  of  a  described  piece  of  land,  which  is 


230  FUNDAMENTAL    RIGHTS  (Part  2 

now  in  A.,  shall  be  and  is  hereby  vested  in  B.,  would,  if  effectual,  de- 
prive A.  of  his  property  without  due  process  of  law,  within  the  mean- 
ing of  the  constitutional  provision. 

"A  most  exhaustive  judicial  inquiry  into  the  meaning  of  the  words 
'due  process  of  law,'  as  found  in  the  fifth  amendment,  resulted  in  the 
unanimous  decision  of  this  court,  that  they  do  not  necessarily  imply  a 
regular  proceeding  in  a  court  of  justice,  or  after  the  manner  of  such 
courts.  Murray's  Lessee  et  al.  v.  Hoboken  Land  &  Improvement  Co., 
18  How.  272,  15  L.  Ed.  372.     [See  post,  p.  262,  for  this  case.] 

"It  is  not  a  little  remarkable,  that  while  this  provision  has  been  in  the 
Constitution  of  the  United  States,  as  a  restraint  upon  the  authority  of 
the  federal  government,  for  nearly  a  century,  and  while,  during  all 
that  time,  the  manner  in  which  the  powers  of  that  government  have 
been  exercised  has  been  watched  with  jealousy,  and  subjected  to  the 
most  rigid  criticism  in  all  its  branches,  this  special  limitation  upon  its 
powers  has  rarely  been  invoked  in  the  judicial  forum  or  the  more  en- 
larged theatre  of  public  discussion.  But  while  it  has  been  a  part  of  the 
Constitution,  as  a  restraint  upon  the  power  of  the  states,  only  a  very 
few  years,  the  docket  of  this  court  is  crowded  with  cases  in  which  we 
are  asked  to  hold  that  state  courts  and  state  legislatures  have  deprived 
their  own  citizens  of  life,  liberty,  or  property  without  due  process  of 
law.  There  is  here  abundant  evidence  that  there  exists  some  strange 
misconception  of  the  scope  of  this  provision  as  found  in  the  fourteenth 
amendment.  In  fact,  it  would  seem,  from  the  character  of  many  of 
the  cases  before  us,  and  the  arguments  made  in  them,  that  the  clause 
under  consideration  is  looked  upon  as  a  means  of  bringing  to  the  test 
of  the  decision  of  this  court  the  abstract  opinions  of  every  unsuccessful 
litigant  in  a  state  court  of  the  justice  of  the  decision  against  him,  and 
of  the  merits  of  the  legislation  on  which  such  a  decision  may  be  found- 
ed. If,  therefore,  it  were  possible  to  define  what  it  is  for  a  state  to  de- 
prive a  person  of  life,  liberty,  or  property  without  due  process  of  law, 
fri  terms  which  would  cover  every  exercise  of  power  thus  forbidden 
to  the  state,  and  exclude  those  which  are  not,  no  more  useful  construc- 
tion could  be  furnished  by  this  or  any  other  court  to  any  part  of  the 
fundamental  law. 

"But,  apart  from  the  imminent  risk  of  a  failure  to  give  any  definition 
which  would  be  at  once  perspicuous,  comprehensive,  and  satisfactory, 
there  is  wisdom,  we  think,  in  the  ascertaining  of  the  intent  and  applica- 
tion of  such  an  important  phrase  in  the  federal  Constitution,  by  the 
gradual  process  of  judicial  inclusion  and  exclusion,  as  the  cases  pre- 
sented for  decision  shall  require,  with  the  reasoning  on  which  such  de- 
cisions may  be  founded.1    This  court  is,  after  an  experience  of  nearly  a 

i  Compare  the  remark  of  Brewer.  .T..  dissenting,  in  Austin  v.  Tennessee, 
179  U.  S.  343,  383,  21  Sup.  Ct.  132,  147,  45  L.  Ed.  224  (1900):  "I  think,  and  I 
say  it  with  all  respect,  that  no  case  involving  a  constitutional  question  should 
be  turned  off  on  the  simple  declaration  that  upon  its  peculiar  facts  it  falls 
on  one  side  or  the  other  of  some  undisclosed  line  of  demarcation." 


Ch.  8)       CIVIL   RIGHTS  SECURED    UNDER   FOURTEENTH    AMENDMENT      2ul 

century,  still  engaged  in  defining  the  obligation  of  contracts,  the  regu- 
lation of  commerce,  and  other  powers  conferred  on  the  federal  govern- 
ment, or  limitations  imposed  upon  the  states." 


HURT  ADO  v.  CALIFORNIA  H8S4)  110  U.  S.  516.  530-532,  535- 
536,  4  Sup.  Ct.  Ill,  292,  28  L.  Ed.  232,  Mr.  Justice  Matthews  (up- 
holding a  California  criminal  prosecution  begun  by  information  instead 
of  by  indictment)  ;* 

"The  concessions  of  Magna  Charta  were  wrung  from  the  king  as 
guarantees  against  the  oppressions  and  usurpations  of  his  prerogative. 
It  did  not  enter  into  the  minds  of  the  barons  to  provide  security 
against  their  own  body  or  in  favor  of  the  Commons  by  limiting  the 
power  of  Parliament;  so  that  bills  of  attainder,  ex  post  facto  laws, 
laws  declaring  forfeitures  of  estates,  and  other  arbitrary  acts  of  legis- 
lation which  occur  so  frequently  in  English  history,  were  never  re- 
garded as  inconsistent  with  the  law  of  the  land ;  for  notwithstanding 
what  was  attributed  to  Lord  Coke  in  Bonham's  Case,  8  Rep.  115,  118a. 
the  omnipotence  of  Parliament  over  the  common  law  was  absolute, 
even  against  common  right  and  reason.  The  actual  and  practical  se- 
curity for  English  liberty  against  legislative  tyranny  was  the  power  of 
a  free  public  opinion  represented  by  the  Commons. 

"In  this  country  written  constitutions  were  deemed  essential  to  pro- 
tect the  rights  and  liberties  of  the  people  against  the  encroachments  of 
power  delegated  to  their  governments,  and  the  provisions  of  Magna 
Charta  were  incorporated  into  bills  of  rights.  They  were  limitations 
upon  all  the  powers  of  government,  legislative  as  well  as  executive  and 
judicial. 

"It  necessarily  happened,  therefore,  that  as  these  broad  and  general 
maxims  of  liberty  and  justice  held  in  our  system  a  different  place  and 
performed  a  different  function  from  their  position  and  office  in  English 
constitutional  history  and  law,  they  would  receive  and  justify  a  corre- 
sponding and  more  comprehensive  interpretation.  Applied  in  England 
only  as  guards  against  executive  usurpation  and  tyranny,  here  they 
have  become  bulwarks  also  against  arbitrary  legislation ;  but,  in  that 
application,  as  it  would  be  incongruous  to  measure  and  restrict  them  by 
the  ancient  customary  English  law,  they  must  be  held  to  guarantee,  not 
particular  forms  of  procedure,  but  the  very  substance  of  individual 
rights  to  life,  liberty,  and  property. 

"Restraints  that  could  be  fastened  upon  executive  authority  with 
precision  and  detail,  might  prove  obstructive  and  injurious  when  im- 
posed on  the  just  and  necessary  discretion  of  legislative  power ;  and, 
while  in  every  instance,  laws  that  violated  express  and  specific  injunc- 
tions and   prohibitions   might,   without   embarrassment,   be   judicially 

»  The  remainder  of  the  case  Is  printed  post,  p.  270. 


232  FUNDAMENTAL    RIGHTS  (Part  2 

declared  to  be  void,  yet,  any  general  principle  or  maxim,  founded  on 
the  essential  nature  of  law,  as  a  just  and  reasonable  expression  of  the 
public  will  and  of  government,  as  instituted  by  popular  consent  and  for 
the  general  good,  can  only  be  applied  to  cases  coming  clearly  within 
the  scope  of  its  spirit  and  purpose,  and  not  to  legislative  provisions 
merely  establishing  forms  and  modes  of  attainment.    *    *    * 

"But  it  is  not  to  be  supposed  that  these  legislative  powers  are  abso- 
lute and  despotic,  and  that  the  amendment  prescribing  due  process  of 
law  is  too  vague  and  indefinite  to  operate  as  a  practical  restraint.  It  is 
not  every  act,  legislative  in  form,  that  is  law.  Law  is  something  more 
than  mere  will  exerted  as  an  act  of  power.  It  must  be  not  a  special 
rule  for  a  particular  person  or  a  particular  case,  but,  in  the  language 
of  Mr.  Webster,  in  his  familiar  definition,  'the  general  law,  a  law  which 
hears  before  it  condemns,  which  proceeds  upon  inquiry,  and  renders 
judgment  only  after  trial,'  so  'that  every  citizen  shall  hold  his  life,  liber- 
ty, property,  and  immunities  under  the  protection  of  the  general  rules 
which  govern  society ;'  and  thus  excluding,  as  not  due  process  of  law, 
acts  of  attainder,  bills  of  pains  and  penalties,  acts  of  confiscation,  acts 
reversing  judgments,  and  acts  directly  transferring  one  man's  estate  to 
another,  legislative  judgments  and  decrees,  and  other  similar  special, 
partial,  and  arbitrary  exertions  of  power  under  the  forms  of  legislation. 
Arbitrary  power,  enforcing  its  edicts  to  the  injury  of  the  persons  and 
property  of  its  subjects,  is  not  law,  whether  manifested  as  the  decree 
of  a  personal  monarch  or  of  an  impersonal  multitude.  And  the  limita- 
tions imposed  by  our  constitutional  law  upon  the  action  of  the  govern- 
ments, both  state  and  national,  are  essential  to  the  preservation  of 
public  and  private  rights,  notwithstanding  the  representative  character 
of  our  political  institutions.  The  enforcement  of  these  limitations  by 
judicial  process  is  the  device  of  self-governing  communities  to  protect 
the  rights  of  individuals  and  minorities,  as  well  against  the  power  of 
numbers  as  against  the  violence  of  public  agents  transcending  the  limits 
of  lawful  authority,  even  when  acting  in  the  name  and  wielding  the 
force  of  the  government." 


ALLGEYER  v.  LOUISIANA. 

(Supreme  Court  of  United  States,  1S97.     1C5  D.  S.  57S,  17  Sup.  Ct  427,  41  L. 
Ed.  832.) 

[Error  to  the  Supreme  Court  of  Louisiana.  A  Louisiana  statute 
forbade,  under  penalty  of  a  fine  of  $1,000  for  each  offence,  any  person, 
firm,  or  corporation  from  doing  any  act  in  that  state  to  effect,  for  him- 
self or  for  another,  insurance  on  property  in  the  state,  in  any  marine 
insurance  company  which  had  not  complied  with  the  laws  of  the  state. 
E.  Allgeyer  &  Co.  made  a  contract  in  New  York,  with  a  New  York 
insurance  company  not  doing  business  in  Louisiana,  for  an  open  policy 
of  marine  insurance  for  $200,000  upon  future  shipments  of  cotton. 


Ch.  8)      CIVIL   RIGHTS   BBCOBDD   DMDBB   PODHTEBNTH   AMENDMENT     233 

By  the  terms  of  the  policy  Allgeyer  was  to  notify  the  company  from 
time  to  time  of  shipments  applicable  to  the  policy,  and  the  sending  of 
such  notices  was  a  condition  precedent  to  the  attaching  of  the  risk. 
A  separate  policy  was  issued  in  New  York  for  each  risk,  the  premium 
to  be  there  paid  in  cash  by  Allgeyer.  Allgeyer  &  Co.  sent  a  notice  of 
a  shipment,  under  this  contract,  and  remitted  the  premium  from  New 
Orleans  to  New  York.  The  state  court  held  them  liable  to  the  statu- 
tory penalty  therefor,  and  this  writ  of  error  was  taken.] 

Mr.  Justice  Pkckiiam.  *  *  *  In  this  case  the  only  act  which  it 
is  claimed  was  a  violation  of  the  statute  in  question  consisted  in  send- 
ing the  letter  through  the  mail  notifying  the  company  of  the  property 
to  be  covered  by  the  policy  already  delivered.  We  have,  then,  a  con- 
tract which  it  is  conceded  was  made  outside  and  beyond  the  limits  of 
the  jurisdiction  of  the  state  of  Louisiana,  being  made  and  to  be  per- 
formed within  the  state  of  New  York,  where  the  premiums  were  to 
be  paid,  and  losses,  if  any,  adjusted.  The  letter  of  notification  did  not 
constitute  a  contract  made  or  entered  into  within  the  state  of  Louisi- 
ana. It  was  but  the  performance  of  an  act  rendered  necessary  by  the 
provisions  of  the  contract  already  made  between  the  parties  outside  of 
the  state.  It  was  a  mere  notification  that  the  contract  already  in  exist- 
ence would  attach  to  that  particular  property.  In  any  event,  the  con- 
tract was  made  in  New  York,  outside  of  the  jurisdiction  of  Louisiana. 
even  though  the  policy  was  not  to  attach  to  the  particular  property 
until  the  notification  was^ent. 

It  is  natural  that  the  state  court  should  have  remarked  that  there  is 
in  this  "statute  an  apparent  interference  with  the  liberty  of  defendants 
in  restricting  their  rights  to  place  insurance  on  property  of  their  own 
whenever  and  in  what  company  they  desired."  Such  interference  is 
not  only  apparent,  but  it  is  real,  and  we  do  not  think  that  it  is  justified 
for  the  purpose  of  upholding  what  the  state  says  is  its  policy  with  re- 
gard to  foreign  insurance  companies  which  had  not  complied  with  Un- 
laws of  the  state  for  doing  business  within  its  limits.  In  this  case  the 
company  did  no  business  within  the  state,  and  the  contracts  were  not 
therein  made. 

The  supreme  court  of  Louisiana  says  that  the  act  of  writing  within 
that  state  the  letter  of  notification  was  an  act  therein  done  to  effect  an 
insurance  on  property  then  in  the  state,  in  a  marine  insurance  com- 
pany which  had  not  complied  with  its  laws,  and  such  act  was  therefore 
prohibited  by  the  statute.  As  so  construed,  we  think  the  statute  is  a 
violation  of  the  fourteenth  amendment  of  the  federal  Constitution, 
in  that  it  deprives  the  defendants  of  their  liberty  without  due  process 
of  law.  The  statute  which  forbids  such  act  does  not  become  due  pro- 
cess of  law,  because  it  is  inconsistent  with  the  provisions  of  the  Con- 
stitution of  the  Union.  The  "liberty"  mentioned  in  that  amendment 
means,  not  only  the  right  of  the  citizen  to  he  free  from  the  mere  physi- 
cal restraint  of  his  person,  as  by  incarceration,  but  the  term  is  deemed 


-34  FUNDAMENTAL    RIGHTS  (Part  2 

to  embrace  the  right  of  the  citizen  to  be  free  in  the  enjoyment  of  all  his 
faculties ;  to  be  free  to  use  them  in  all  lawful  ways ;  to  live  and  work 
where  he  will;  to  earn  his  livelihood  by  any  lawful  calling;  to  pursue 
any  livelihood  or  avocation ;  and  for  that  purpose  to  enter  into  all  con- 
tracts which  may  be  proper,  necessary,  and  essential  to  his  carrying  out 
to  a  successful  conclusion  the  purposes  above  mentioned. 

It  was  said  by  Mr.  Justice  Bradley,  in  Butchers'  Union  Slaughter- 
house Co.  v.  Crescent  City  Live-Stock  Landing  Co.,  Ill  U.  S.  746,  at 
page  762,  4  Sup.  Ct.  652,  at  page  657,  2S  L.  Ed.  585,  in  the  course  of 
his  concurring  opinion  in  that  case,  that  "the  right  to  follow  any  of 
the  common  occupations  of  life  is  an  inalienable  right.  It  was  formu- 
lated as  such  under  the  phrase  'pursuit  of  happiness'  in  the  Declaration 
of  Independence,  which  commenced  with  the  fundamental  proposition 
that  'all  men  are  created  equal ;  that  they  are  endowed  by  their  Crea- 
tor with  certain  inalienable  rights ;  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness.'  This  right  is  a  large  ingredient  in  the 
civil  liberty  of  the  citizen."  Again,  on  page  764  of  111  U.  S.,  and  on 
page  658  of  4  Sup.  Ct.  (28  L.  Ed.  585),  the  learned  justice  said :  "I 
hold  that  the  liberty  of  pursuit — the  right  to  follow  any  of  the  ordi- 
nary callings  of  life — is  one  of  the  privileges  of  a  citizen  of  the  United 
States."  And  again,  on  page  765  of  111  U.  S.,  and  on  page  658  of  4 
Sup.  Ct.  (28  L.  Ed.  585) :  "But  if  it  does  not  abridge  the  privileges 
and  immunities  of  a  citizen  of  the  United  States  to  prohibit  him  from 
pursuing  his  chosen  calling,  and  giving  to  others  the  exclusive  right 
of  pursuing  it,  it  certainly  does  deprive  him  (to  a  certain  extent)  of  his 
liberty ;  for  it  takes  from  him  the  freedom  of  adopting  and  following 
the  pursuit  which  he  prefers,  which,  as  already  intimated,  is  a  mate- 
rial part  of  the  liberty  of  the  citizen."  It  is  true  that  these  remarks 
were  made  in  regard  to  questions  of  monopoly,  but  they  well  describe 
the  rights  which  are  covered  by  the  word  "liberty,"  as  contained  in  the 
fourteenth  amendment. 

Again,  in  Powell  v.  Pennsylvania,  127  U.  S.  678,  684,  8  Sup.  Ct.  992, 
995,  1257,  32  L.  Ed.  253,  Mr.  Justice  Harlan,  in  stating  the  opinion  of 
the  court,  said:  "The  main  proposition  advanced  by  the  defendant 
is  that  his  enjoyment  upon  terms  of  equality  with  all  others  in  similar 
circumstances  of  the  privilege  of  pursuing  an  ordinary  calling  or  trade, 
and  of  acquiring,  holding,  and  selling  property,  is  an  essential  part  of 
his  rights  of  liberty  and  property,  as  guaranteed  by  the  fourteenth 
amendment.  The  court  assents  to  this  general  proposition  as  embody- 
ing a  sound  principle  of  constitutional  law."  It  was  there  held,  how- 
ever, that  the  legislation  under  consideration  in  that  case  did  not  vio- 
late any  of  the  constitutional  rights  of  the  plaintiff  in  error. 

The  foregoing  extracts  have  been  made  for  the  purpose  of  showing 
what  general  definitions  have  been  given  in  regard  to  the  meaning 
of  the  word  "liberty"  as  used  in  the  amendment,  but  we  do  not  intend 
to  hold  that  in  no  such  case  can  the  state  exercise  its  police  power. 
When  and  how  far  such  power  may  be  legitimately  exercised  with  re- 


Ch.  8)       CIVIL   RIGHTS   SECURED   UNDER   FOURTEENTH    AMENDMENT      235 

gard  to  these  subjects  must  be  left  for  determination  to  each  case  as 
it  arises.    *    *    * 

In  the  privilege  of  pursuing  an  ordinary  calling  or  trade,  and  of  ac- 
quiring, holding,  and  selling  property,  must  be  embraced  the  right  to 
make  all  proper  contracts  in  relation  thereto ;  and  although  it  may  be 
conceded  that  this  right  to  contract  in  relation  to  persons  or  property 
or  to  do  business  within  the  jurisdiction  of  the  state  may  be  regulated, 
and  sometimes  prohibited,  when  the  contracts  or  business  conflict  with 
the  policy  of  the  state  as  contained  in  its  statutes,  yet  the  power  does 
not  and  cannot  extend  to  prohibiting  a  citizen  from  making  contracts 
of  the  nature  involved  in  this  case  outside  of  the  limits  and  jurisdic- 
tion of  the  state,  and  which  are  also  to  be  performed  outside  of  such 
jurisdiction;  nor  can  the  state  legally  prohibit  its  citizens  from  doing 
such  an  act  as  writing  this  letter  of  notification,  even  though  the  prop- 
erty which  is  the  subject  of  the  insurance  may  at  the  time  when  such 
insurance  attaches  be  within  the  limits  of  the  state.  The  mere  fact 
that  a  citizen  may  be  within  the  limits  of  a  particular  state  does  not 
prevent  his  making  a  contract  outside  its  limits  while  he  himself  re- 
mains within  it.  Milliken  v.  Pratt,  125  Mass.  374,  2S  Am.  Rep.  241 ; 
Tilden  v.  Blair,  21  Wall.  241,  22  L.  Ed.  632.  The  contract  in  this  case 
was  thus  made.  It  was  a  valid  contract,  made  outside  of  the  state, 
to  be  performed  outside  of  the  state,  although  the  subject  was  proper- 
ty temporarily  within  the  state.  As  the  contract  was  valid  in  the  place 
made  and  where  it  was  to  be  performed,  the  party  to  the  con- 
tract, upon  whom  is  devolved  the  right  or  duty  to  send  the  notification 
in  order  that  the  insurance  provided  for  by  the  contract  may  attach 
to  the  property  specified  in  the  shipment  mentioned  in  the  notice,  must 
have  the  liberty  to  do  that  act  and  to  give  that  notification  within  the 
limits  of  the  state,  any  prohibition  of  the  state  statute  to  the  contrary 
notwithstanding.  The  giving  of  the  notice  is  a  mere  collateral  matter. 
It  is  not  the  contract  itself,  but  is  an  act  performed  pursuant  to  a  valid 
contract,  which  the  state  had  no  right  or  jurisdiction  to  prevent  its 
citizens  from  nuking  outside  the  limits  of  the  state.     *     *    * 

Judgment  reversed.1 

i  Compare  Hooper  v.  California,  L55  U.  S.  648,  15  Pup.  Ct.  207,  39  I*  Ed. 
207   (1895),  and   Nutting  v.  Massachusetts,  183  U.  S.  553,  22  SuP-   Ct   - 
i..  Ed.  324  (1902),  cases  of  acts  within  the  Btate  i. 
fttgn  Insurance  companies. 

■  i  be  right  to  life  Includes  the  right  of  the  individual  to  his  body  In  its 
oompletenese  and  without  dismemberment;  the  right  to  liberty,  the  right 
to  exercise  his  faculties  and  to  follow  a  lawful  avocation  for  the  support  of 
life;  the  right  of  property,  the  right  to  acquire,  possess,  and  enjoy  it  in  any 
way  consistent  with  the  equal  rights  of  others  and  the  just  exactions  and  de 
Bunds  of  the  state."— Andrews,  J.,  In  Bertholi  v.  O'Reilly,  74  N.  Y.  509,  515, 
Rep.  328  (1878). 

"Of  course  the  liberty   of  contract  relating  to  labor  includes  both   parties 
to  it.    The  one  has  as  much  right  to  purchase  as  the  other  to  sell  lain 
Peckhnm.  J.,  in  Lochner  v.  New  York.  198  U.  S.  45,  56,  25  Sup.  Ct  5 
(49  L.  Ed.  937,  3  Ann.  Cas.  1133)  (19ur>). 

■'The    terms    'life,'     liberty.'   and    'property,1   are    representative    terms,    and 


238  FUNDAMENTAL    RIGHTS  (Part  2 

Ex  parte  VIRGINIA. 
(Supreme  Court  of  United  States,  1S80.    100  U.  S.  330.  25  L.  Ed.  676.) 

[Petition  for  a  writ  of  habeas  corpus.  One  Coles,  a  county  court 
judge  of  Virginia,  was  indicted  in  the  federal  District  Court  of  that 
state  and  arrested,  charged  with  violating  the  statute  quoted  in  the 
opinion  below,  in  that  he  excluded  colored  persons  from  the  jury  lists 
made  out  by  him,  on  account  of  their  race,  color,  and  previous  con- 
dition of  servitude.  The  state  statute  under  which  he  acted  made 
no  discrimination  against  the  colored  race,  but  required  him  to  pre- 
pare a  jury  list  of  inhabitants  of  the  county  that  in  his  opinion  were 
'"well  qualified  to  serve  as  jurors,"  "of  sound  judgment  and  free 
from  legal  exception."  He  and  the  state  of  Virginia  both  sought 
his  discharge  by  habeas  corpus.] 

Mr.  Justice  Strong.  *  *  *  [After  holding  the  petition  to  be 
within  the  appellate  jurisdiction  of  the  court:] 

The  indictment  and  bench-warrant,  in  virtue  of  which  the  peti- 
tioner Coles  has  been  arrested  and  is  held  in  custody,  have  their 
justification, — if  any  they  have, — in  the  Act  of  Congress  of  March  1, 
1875,  sect.  4.  18  Stat.,  part  3,  336.  That  section  enacts  that  "no 
citizen,  possessing  all  other  qualifications  which  are  or  may  be  pre- 
scribed by  law  shall  be  disqualified  for  service  as  grand  or  petit  juror 
in  any  court  of  the  United  States,  or  of  any  state,  on  account  of 
race,  color,  or  previous  condition  of  servitude ;  and  any  officer  or 
other  person  charged  with  any  duty  in  the  selection  or  summoning 
of  jurors  who  shall  exclude  or  fail  to  summon  any  citizen  for  the 
cause  aforesaid  shall,  on  conviction  thereof,  be  deemed  guilty  of  a 

intended  to  cover  every  right,  to  which  a  member  of  the  body  politic  is  en- 
titled under  the  law.  These  terms  include  the  right  of  self-defense,  freedom 
of  speech,  religious  and  political  freedom,  exemption  from  arbitrary  arrests, 
the  right  freely  to  buy  and  sell  as  others  may.  Indeed,  they  may  embrace  all 
our  liberties,  personal,  civil,  and  political,  including  the  rights  to  labor,  to 
contract,  to  terminate  contracts,  and  to  acquire  property.  None  of  these 
liberties  and  rights  can  be  taken  away,  except  by  due  process  of  law.  - 
Story,  Const,  (5th  Ed.)  §  1950.  The  rights  of  life,  liberty,  and  property  em- 
brace whatever  is  necessary  to  secure  and  effectuate  the  enjoyment  of  those 
rights.  The  rights  of  liberty  and  of  property  include  the  right  to  acquire 
property  by  labor  and  by  contract.  Ritchie  v.  People,  155  111.  98,  40  N.  E. 
454,  '-'■>  L.  It.  A.  70.  4U  Am.  St.  Rep.  315.  If  an  owner  cannot  be  deprived  of  his 
property  without  due  process  of  law,  he  cannot  be  deprived  of  any  of  the 
essential  attributes  which  belong  to  the  right  of  property  without  due  process 
of  law.  Labor  is  property.  The  laborer  has  the  same  right  to  sell  his  labor, 
and  to  contract  with,  reference  thercio,  as  any  other  property  owner.  The 
right  of  property  involves,  as  one  of  its  essential  attributes,  the  right  not 
only  to  contract,  but  also  to  terminate  contracts.;.' — Gillespie  v.  People.  18S 
111.  176,  182,  183,  58  N.  E.  1007,  1009,  52  L.  R.  A.  2S3,  80  Am.  St.  Rep.  176 
(1900),  by  Magruder,  J. 

See  C.  E.  Shattuck  in  4  Harv.  E.  Rev.  365  (1S91),  discussing  the  historical 
moaning  of  "liberty"  in  our  ('onstitutions,  as  derived  from  various  equivalent 
terms  in  Magna  Carta  and  other  English  constitutional  documents;  and  see 
McKechnie,  Magna  Carta,  436-459  (1905). 


Ch.  8)       CIVIL   RIGHTS   SECURED    UNDER   FOURTEENTH    AMENDMENT      237 

misdemeanor,  and  be  fined  not  more  than  $5,000."  The  defendant 
has  been  indicted  for  the  misdemeanor  described  in  this  act,  and  it  is 
not  denied  that  he  is  now  properly  held  in  custody  to  answer  the  in- 
dictment, if  the  Act  of  Congress  was  warranted  by  the  Constitution. 
The  whole  merits  of  the  case  are  involved  in  the  question,  whether 
the  act  was  thus  warranted.  [The  provisions  of  the  Constitution  that 
relate  to  this  subject  are  found  in  the  thirteenth  and  fourteenth  amend- 
ments.]    *     *     * 

One  great  purpose  of  these  amendments  was  to  raise  the  colored 
race  from  that  condition  of  inferiority  and  servitude  in  which  most 
of  them  had  previously  stood,  into  perfect  equality  of  civil  rights 
with  all  other  persons  within  the  jurisdiction  of  the  states.  They 
were  intended  to  take  away  all  possibility  of  oppression  by  law  be- 
cause of  race  or  color.  They  were  intended  to  be,  what  they  really 
are,  limitations  of  the  power  of  the  states  and  enlargements  of  the 
power  of  Congress.  They  are  to  some  extent  declaratory  of  rights, 
and  though  in  form  prohibitions,  they  imply  immunities,  such  as  may 
be  protected  by  congressional  legislation.  *  *  *  This  protection 
and  this  guarantee,  as  the  fifth  section  of  the  amendment  expressly 
ordains,  may  be  enforced  by  Congress  by  means  of  appropriate  legis- 
lation. 

All  of  the  amendments  derive  much  of  their  force  from  this  latter 
provision.  It  is  not  said  the  judicial  power  of  the  general  govern- 
ment shall  extend  to  enforcing  the  prohibitions  and  to  protecting  the 
rights  and  immunities  guaranteed.  It  is  not  said  that  branch  of  the 
government  shall  be  authorized  to  declare  void  any  action  of  a  state 
in  violation  of  the  prohibitions.  It  is  the  power  of  Congress  which 
has  been  enlarged.  Congress  is  authorized  to  enforce  the  prohibi- 
tions by  appropriate  legislation.1  Some  legislation  is  contemplated 
to  make  the  amendments  fully  effective.  Whatever  legislation  is  ap- 
propriate, that  is,  adapted  to  carry  out  the  objects  the  amendments 
have  in  view,  whatever  tends  to  enforce  submission  to  the  prohibi- 
tions they  contain,  and  to  secure  to  all  persons  the  enjoyment  of  per- 
fect equality   of    civil    rights   and   the   equal   protection   of    the   laws 

i  "Congress,  by  virtue  of  the  fifth  section  of  the  fourteenth  amendment, 
may  enforce  the  prohibitions  whenever  they  are  disregarded  by  either  the 
live,  the  executive,  or  the  Judicial  department  of  the  state.  The  mode 
of  enforcement  is  left  to  its  discretion.  It  may  secure  the  right,  that  is, 
enforce  its  recognition,  by  removing  the  case  from  a  state  court  in  which  it 
Is  denied,  into  a  federal  court  where  It  will  be  acknowledged." — Strong,  J., 
inia   v.  Rives,   100   U.   g,  ;;i;:,  318  (25  L.  Kd.  007 1  (1880). 

For  the  application  of  the  present  federal  removal  statutes  to  cases  of  de- 
n4al  of  equal  civil  ri  tare  courts,  see  Virginia  V    H  re;  Neal 

v.  Delaware,  103  !'.  S.  370,  20  L.  Ed.  567  (1880);  Gibson  v.  Mississippi.  1G2  U. 
S.  565,  16  Sup.  Ct.  901,  40  L.  Ed.  1075  (1I>D6).  As  to  the  stage  of  the  con- 
troversy at  which  relief  may  be  sought  In  the  federal  courts  against  unau- 
thorized acts  of  subordinate  state  officers,  sec  Hoxrn  City  of 

227  O,  s.  27E    .I  —  (19131    - 

overruling  Barney  v.  Now  York,  100  0.  S.  480,  24  Sup.  Ct.  502,  4S  L.  Ed.  7:57 
(1004). 


238  FUNDAMENTAL    RIGHTS  (Part  2 

against  state  denial  or  invasion,  if  not  prohibited,  is  brought  within 
the  domain  of  congressional  power.     *     *     * 

We  have  said  the  prohibitions  of  the  fourteenth  amendment  are 
addressed  to  the  states.  They  are,  "No  state  shall  make  or  enforce 
a  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States,  *  *  *  nor  deny  to  any  person  within  its  ju- 
risdiction the  equal  protection  of  the  laws."  They  have  reference  to 
actions  of  the  political  body  denominated  a  state,  by  whatever  instru- 
ments or  in  whatever  modes  that  action  may  be  taken.  A  state  acts 
by  its  legislative,  its  executive,  or  its  judicial  authorities.  It  can  act 
in  no  other  way.  The  constitutional  provision,  therefore,  must  mean 
that  no  agency  of  the  state,  or  of  the  officers  or  agents  by  whom  its 
powers  are  exerted,  shall  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.  Whoever,  by  virtue  of  public  posi- 
tion under  a  state  government,  deprives  another  of  property,  life,  or 
liberty,  without  due  process  of  law,  or  denies  or  takes  away  the  equal 
protection  of  the  laws,  violates  the  constitutional  inhibition;  and  as 
he  acts  in  the  name  and  for  the  state,  and  is  clothed  with  the  state's 
power,  his  act  is  that  of  the  state.  This  must  be  so,  or  the  constitu- 
tional prohibition  has  no  meaning.  Then  the  state  has  clothed  one 
of  its  agents  with  power  to  annul  or  to  evade  it.  *  *  *  [Ken- 
tucky v.  Dennison,  24  How.  66,  16  L.  Ed.  717,  is  here  distinguished. 
on  the  ground  that  the  fourteenth  amendment,  §  5,  expressly  au- 
thorizes congressional  enforcement.] 

We  do  not  perceive  how  holding  an  office  under  a  state,  and  claim- 
ing to  act  for  the  state,  can  relieve  the  holder  from  obligation  to  obey 
the  Constitution  of  the  United  States,  or  take  away  the  power  of  Con- 
gress to  punish  his  disobedience. 

It  was  insisted  during  the  argument  on  behalf  of  the  petitioner 
that  Congress  cannot  punish  a  state  judge  for  his  official  acts ;  and 
it  was  assumed  that  Judge  Coles,  in  selecting  the  jury  as  he  did,  was 
performing  a  judicial  act.  This  assumption  cannot  be  admitted. 
Whether  the  act  done  by  him  was  judicial  or  not  is  to  be  determined 
by  its  character,  and  not  by  the  character  of  the  agent.  Whether  he 
was  a  county  judge  or  not  is  of  no  importance.  The  duty  of  select- 
ing jurors  might  as  well  have  been  committed  to  a  private  person 
as  to  one  holding  the  office  of  a  judge.  It  often  is  given  to  county 
commissioners,  or  supervisors,  or  assessors.  In  former  times,  the 
selection  was  made  by  the  sheriff.  In  such  cases,  it  surely  is  not  a 
judicial  act,  in  any  such  sense  as  is  contended  for  here.  It  is  merely 
a  ministerial  act,  as  much  so  as  the  act  of  a  sheriff  holding  an  ex- 
ecution, in  determining  upon  what  piece  of  property  he  will  make  a 
levy,  or  the  act  of  a  roadmaster  in  selecting  laborers  to  work  upon 
the  roads.  That  the  jurors  are  selected  for  a  court  makes  no  differ- 
ence. So  are  court-criers,  tipstaves,  sheriffs,  &c.  Is  their  election 
or  their  appointment  a  judicial  act? 

But  if  the  selection  of  jurors  could  be  considered  in   any  case  a 


Ch.  8)      CIVIL   RIOIITS   BBCUBOD    UNDER   FOURTEENTH   AMENDMENT      239 

judicial  act,  can  the  act  charged  against  the  petitioner  be  considered 
such  when  he  acted  outside  of  his  authority  and  in  direct  violation 
of  the  spirit  of  the  state  statute?  That  statute  gave  him  no  author- 
ity, when  selecting  jurors,  from  whom  a  panel  might  be  drawn  for  a 
circuit  court,  to  exclude  all  colored  men  merely  because  they  were 
colored.  Such  an  exclusion  was  not  left  within  the  limits  of  his  dis- 
cretion. It  is  idle,  therefore,  to  say  that  the  Act  of  Congress  is  un- 
constitutional because  it  inflicts  penalties  upon  state  judges  for  their 
judicial  action.2     It  does  no  such  thing.     *     *     * 

Petition  denied. 

[FlELD,  J.,  gave  a  dissenting  opinion,  in  which  Clifford,  J.,  con- 
curred, upon  the  ground,  among  others,  that  the  act  of  selecting  state 
jurors  was  an  act  of  judicial  discretion  and  not  subject  to  federal 
control.]  * 

2  "The  constitutional  provision  Is,  'Nor  shall  any  state  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law.'  Certainly  a  state  can- 
not be  deemed  guilty  of  a  violation  of  this  constitutional  obligation  simply 
because  one  of  its  courts,  while  acting  within  its  jurisdiction,  has  made  an 
erroneous  decision." — Waite,  C.  J.,  in  Arrow  smith  v.  Ilanuoning,  118  U.  S.  191, 
195,  196,  6  Sup.  Ct.  1023,  1024,  30  L.  Ed.  243  (18i 

3  "These  prohibitions  extend  to  all  acts  of  the  state,  whether  through  its 
legislative,  its  executive,  or  its  judicial  authorities."  Gray.  J„  iii  Scott  v.  Mc- 
Wal.  164  U.  S.  34,  45,  14  Sup.  Ct  110S,  1112.  3S  L.  Ed.  896  (1S94)  (improper 
Indicia]  action),  approved  in  Chicago,  B.  &  Q.  It.  Co.  v.  City  of  Chicago,  166 
0.  S.  226,  233-235,  17  Sup.  Ct  5S1,  41  L.  Ed.  979  (1897). 

"The  state  board  of  equalization  is  one  of  the  instrumentalities  provided 
by  the  state  for  the  purpose  of  raising  the  public  revenue  by  way  of  taxation. 
•  *  •  Acting  under  the  Constitution  and  laws  of  the  state,  the  board 
therefore  represents  the  state,  and  its  action  is  the  action  of  the  state.  The 
provisions  of  the  fourteenth  amendment  are  not  confined  to  the  action  of  the 
state  through  its  legislature,  or  through  the  executive  or  Judicial  authority. 
Those  provisions  relate  to  and  cover  all  the  instrumentalities  by  which  the 
state  acts;  and  so  it  has  been  held  that  whoever,  by  virtue  of  public  position 
under  a  state  government,  deprives  another  of  any  right  protected  by  that 
amendment  against  deprivation  by  the  state,  violates  the  constitutional  In- 
hibition; and  as  he  acts  in  the  name  of  the  state  and  for  the  state,  and  is 
clothed  with  the  state's  powers,  his  act  is  that  of  the  state." — Peckham,  J., 
in  Raymond  v.  Chicago  Onion  Traction  Co.,  207  1'.  S.  20.  35,  36,  28  Sup.  Ct 
7,  12,  52  L.  Ed.  78,  12  Ann.  Cas.  757  (1907). 

That  the  state  officer  is  acting  without  actual  state  authority,  or  even  in 
obvious  violation  of  his  authority,  does  not  prevent  the  application  of  the 
amendment.  See  lick  Wo  v.  Hopkins,  post,  p.  38.3,  and  Reagan  v.  Farmers' 
Loan  &  Trust  Co.,  154  17.  S.  302,  390,  14  Sup.  Ct  1047,  1051,  38  L.  Ed.  1014 
(1894),  Brewer,  J.,  saying:  "Neither  will  the  constitutionality  of  the  statute, 
if  that  be  conceded,  avail  to  oust  the  federal  court  of  jurisdiction.  A  valid 
law  may  be  wrongfully  administered  by  officers  of  the  state,  and  so  as  to 
make  such  administration  an  illegal  burden  and  exaction  upon  the  individ- 
ual." 

In  Home  Telephone  Co.  v.  City  of  Los  Angeles,  227  U.  S.  27S,  287,  33  Sup 

Ct  ::v~.  314,  57  L.  Kd. (1913),  White,  C.  J.,  said  (answering  a  contention  to 

ntrary):  "The  proposition  relied  upon  presupposes  that  the  terras  of 
the  fourteenth  amendment  reach  only  acts  done  by  state  Officers  which  are 
within  the  scope  of  the  power  conferred  by  the  state.  The  proposition,  hence, 
applies  to  the  prohibitions  of  the  amendment  the  law  of  principal  and  agent 
governing  contracts  between  Individuate,  and  Consequently  assumes  that  no 
act  done  by  an  officer  of  a  state  is  within  the  reach  of  the  amendment  unless 
such  act  can  be  held  to  be  the  act  of  the  state  by  the  application  of  such  law 


240  FUNDAMENTAL    RIGHTS  (Part  2 


CIVIL  RIGHTS  CASES. 

(Supreme  Court  of  United   States,     18S3.     109  U.  S.  3,  3  Sup.  Ct  18,  27  L. 
Ed.  S35.) 

[Writs  of  error  to  federal  Circuit  Courts  and  certificates  of  division 
of  opinion  among  the  judges  below  in  a  number  of  cases  involving  the 
constitutionality  of  the  act  of  Congress  known  as  the  Civil  Rights 
Act.  Various  colored  persons  had  been  denied  by  the  proprietors  of 
hotels,  theaters,  and  railway  companies  the  full  enjoyment  of  the  ac- 
commodations thereof,  for  reasons  other  than  those  excepted  by  said 
statute,  and  those  proprietors  had  been  indicted  or  sued  for  the  penalty 
prescribed  by  the  act.    The  act  provided  (see  note  below).1] 

Mr.  Justice  Bradley.  *  *  *  Are  these  sections  constitutional? 
The  first  section,  which  is  the  principal  one,  cannot  be  fairly  under- 
stood without  attending  to  the  last  clause,  which  qualifies  the  preceding 
part.  The  essence  of  the  law  is,  not  to  declare  broadly  that  all  persons 
shall  be  entitled  to  the  full  and  equal  enjoyment  of  the  accommodations, 
advantages,  facilities,  and  privileges  of  inns,  public  conveyances,  and 
theaters;    but  that  such  enjoyment  shall  not  be  subject  to  any  condi- 

of  agency.  In  other  words,  the  proposition  is  that  the  amendment  deals  only 
with  the  acts  of  state  officers  within  the  strict  scope  of  the  public  powers 
possessed  by  them,  and  does  not  include  an  abuse  of  power  by  an  officer  as 
the  result  of  a  wrong  done  in  excess  of  the  power  delegated.  Here  again  the 
settled  construction  of  the  amendment  is  that  it  presupposes  the  possibility  of 
an  abuse  by  a  state  officer  or  representative  of  the  powers  possessed,  and 
deals  with  such  a  contingency.  It  provides,  therefore,  for  a  case  where  one 
who  is  in  possession  of  state  power  uses  that  power  to  the  doing  of  the 
wrongs  which  the  amendment  forbids,  even  although  the  consummation  of 
the  wrong  may  not  be  within  the  powers  possessed,  if  the  commission  of  the 
wrong  itself  is  rendered  possible  or  is  efficiently  aided  by  the  state  authority 
lodged  in  the  wrongdoer.  That  is  to  say,  the  theory  of  the  amendment  is 
that  where  an  officer  or  other  representative  of  a  state,  in  the  exercise  of  the 
authority  with  which  he  is  clothed,  misuses  the  power  possessed  to  do  a 
wrong  forbidden  by  the  amendment,  inquiry  concerning  whether  the  state  has 
authorized  the  wrong  -is  irrelevant,  and  the  federal  judicial  power  is  com- 
petent to  afford  redress  for  the  wrong  by  dealing  with  the  officer  and  the  re- 
sult of  his  exertion  of  power." 

The  fourteenth  amendment  is  not  violated,  however,  merely  because  the 
acts  of  a  state  agency  are  illegal  under  the  existing  laws  or  Constitution  of 
the  state,  if  the  state  could  authorize  or  ratify  them  without  violation  of  the 
amendment.  Missouri  ex  rel.  Hill  v.  Dockery,  191  U.  S.  165,  171,  24  Sup.  Ct. 
53,  4S  L.  Ed.  133  (1903) :  Owensboro  Waterworks  Co.  v.  Owensboro,  200  U.  S. 
3S,  45-47,  26  Sup.  Ct.  249,  50  L.  Ed.  361  (1006). 

i  "Section  1.  That  all  persons  within  the  jurisdiction  of  the  United  States 
shall  be  entitled  to  the  full  and  equal  enjoyment  of  the  accommodations,  ad- 
vantages,  facilities,  and  privileges  of  inns,  public  conveyances  on  land  or 
water,  theaters,  and  other  places  of  public  amusement :  subject  only  to  the 
conditions  and  limitations  established  by  law,  and  applicable  alike  to  citizens 
of  every  race  and  color,  regardless  of  any  previous  condition  of  servitude. 

"Sec.  2.  That  any  person  who  shall  violate  the  foregoing  section  by  deny- 
ing to  any  citizen,  except  for  reasons  by  law  applicable  to  citizens  of  every 
race  and  color,  and  regardless  of  any  previous  condition  of  servitude,  the  full 
enjoyment  of  any  of  the"  aforesaid  accommodations,  etc.,  shall  for  each  offence 
forfeit  the  sum  of  $500  to  the  person  aggrieved  and  be  guilty  of  a  misde- 
meanor, these  remedies  being  enforceable  in  the  alternative. 


CI).  Sj     CIVIL  BIGHTS  .st:ei.i:i:i>  unkkk  tMJTjETEENl  ii  AMENDMENT    1'41 

tions  applicable  only  to  citizens  of  a  particular  race  or  color,  or  who 
had  been  in  a  previous  condition  of  servitude.  In  other  words,  it  is  the 
purpose  of  the  law  to  declare  that,  in  the  enjoyment  of  the  accommoda- 
tions and  privileges  of  inns,  public  conveyances,  theaters,  and  other 
places  of  public  amusement,  no  distinction  shall  be  made  between  citi- 
zens of  different  race  or  color,  or  between  th<  i  ve,  and  those 
who  have  not,  been  slaves.  Its  effect  is  to  declare  that  in  all  inns,  pub- 
lic conveyances,  and  places  of  amusement,  colored  citizens,  whether 
formerly  slaves  or  not,  and  citizens  of  other  races,  shall  have  the  same 
accommodations  and  privileges  in  all  inns,  public  conveyances,  and 
places  of  amusement,  as  are  enjoyed  by  white  citizens;  and  vice 
The  second  section  makes  it  a  penal  offense  in  any  person  to  deny  to 
any  citizen  of  any  race  or  color,  regardless  of  previous  servitude,  any 
of  the  accommodations  or  privileges  mentioned  in  the  first  section. 

'ingress  constitutional  power  to  make  such  a  law?  Of  course, 
no  one  will  contend  that  the  power  to  pass  it  was  contained  in  the 
Constitution  before  the  adoption  of  the  last  three  amendments.  The 
power  is  sought,  first,  in  the  fourteenth  amendment,  and  the  views 
and  arguments  of  distinguished  senators,  advanced  while  the  law  was 
under  consideration,  claiming  authority  to  pass  it  by  virtue  of  that 
amendment,  are  the  principal  arguments  adduced  in  favor  of  the 
power.  We  have  carefully  considered  those  arguments,  as  was  due 
to  the  eminent  ability  of  those  who  put  them  forward,  and  have  felt, 
in  all  its  force,  the  weight  of  authority  which  always  invests  a  law 
that  congress  deems  itself  competent  to  pass.  But  the  responsibility 
of  an  independent  judgment  is  now  thrown  upon  this  court;  and  we 
are  bound  to  exercise  it  according  to  the  best  lights  we  have. 

The  first  section  of  the  fourteenth  amendment, — which  is  the  one 
relied  on, — after  declaring  who  shall  be  citizens  of  the  United  States, 
and  of  the  several  states,  is  prohibitory  in  its  character,  and  prohib- 
itory upon  the  states.  It  declares  that  "no  state  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immunities  of  cit- 
izens of  the  United  States ;  nor  shall  any  state  deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of  law;  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws." 
It  is  state  action  of  a  particular  character  that  is  prohibited.  Indi- 
vidual invasion  of  individual  rights  is  not  the  subject-matter  of  the 
amendment.  It  has  a  deeper  and  broader  scope.  It  nullities  and 
makes  void  all  slate  legislation,  and  state  action  of  every  kind,  winch 
impairs  the  privileges  and  immunities  of  citizens  of  the  United  I 
or  which  injures  them  in  life,  liberty,  or  property  without  due  process 
of  law,  or  which  denies  to  any  of  them  the  equal  protection  of  the 
laws.  It  not  only  does  this,  but,  in  order  that  the  national  will,  thus 
declared,  may  not  be  a  mere  brutum  fulmen,  the  last  section  of  the 
amendment  invests  congress  with  power  to  enforce  it  by  appropriate 
legislation.  To  enforce  what?  To  enforce  the  prohibition.  To  adopt 
Hall  C'onst.L.— 10 


242  FUNDAMENTAL    RIGHTS  (Part  2 

appropriate  legislation  for  correcting  the  effects  of  such  prohibited 
state  law  and  state  acts,  and  thus  to  render  them  effectually  null, 
void,  and  innocuous.  This  is  the  legislative  power  conferred  upon 
congress,  and  this  is  the  whole  of  it.  It  does  not  invest  congress 
with  power  to  legislate  upon  subjects  which  are  within  the  domain  of 
state  legislation ;  but  to  provide  modes  of  relief  against  state  legisla- 
tion, or  state  action,  of  the  kind  referred  to.  It  does  not  authorize 
congress  to  create  a  code  of  municipal  law  for  the  regulation  of  pri- 
vate rights ;  but  to  provide  modes  of  redress  against  the  operation  of 
state  laws,  and  the  action  of  state  officers,  executive  or  judicial,  when 
these  are  subversive  of  the  fundamental  rights  specified  in  the  amend- 
ment. Positive  rights  and  privileges  are  undoubtedly  secured  by  the 
fourteenth  amendment ;  but  they  are  secured  by  way  of  prohibition 
against  state  laws  and  state  proceedings  affecting  those  rights  and 
privileges,  and  by  power  given  to  congress  to  legislate  for  the  purpose 
of  carrying  such  prohibition  into  effect ;  and  such  legislation  must 
necessarily  be  predicated  upon  such  supposed  state  laws  or  state  pro- 
ceedings, and  be  directed  to  the  correction  of  their  operation  and  ef- 
fect. A  quite  full  discussion  of  this  aspect  of  the  amendment  may 
be  found  in  U.  S.  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed.  588,  Virginia 
v.  Rives,  100  U.  S.  313,  25  L.  Ed.  667,  and  Ex  parte  Virginia,  100  U.  S. 
339,  25  L.  Ed.  676. 

An  apt  illustration  of  this  distinction  may  be  found  in  some  of  the 
provisions  of  the  original  Constitution.  Take  the  subject  of  contracts, 
for  example.  The  Constitution  prohibited  the  states  from  passing  any 
law  impairing  the  obligation  of  contracts.  This  did  not  give  to  con- 
gress power  to  provide  laws  for  the  general  enforcement  of  contracts ; 
nor  power  to  invest  the  courts  of  the  United  States  with  jurisdiction 
over  contracts,  so  as  to  enable  parties  to  sue  upon  them  in  those 
courts.  It  did,  however,  give  the  power  to  provide  remedies  by  which 
the  impairment  of  contracts  by  state  legislation  might  be  counter- 
acted and  corrected ;  and  this  power  was  exercised.  The  remedy 
which  congress  actually  provided  was  that  contained  in  the  twenty- 
fifth  section  of  the  judiciary  act  of  1789  [1  Stat.  85],  giving  to  the  Su- 
preme Court  of  the  United  States  jurisdiction  by  writ  of  error  to  re- 
view the  final  decisions  of  state  courts  whenever  they  should  sustain 
the  validity  of  a  state  statute  or  authority,  alleged  to  be  repugnant  to 
the  Constitution  or  laws  of  the  United  States.  By  this  means,  if  a 
state  law  was  passed  impairing  the  obligation  of  a  contract,  and  the 
state  tribunals  sustained  the  validity  of  the  law,  the  mischief  could  be 
corrected  in  this  court.  The  legislation  of  congress,  and  the  proceed- 
ings provided  for  under  it,  were  corrective  in  their  character.  No 
attempt  was  made  to  draw  into  the  United  States  courts  the  litigation 
of  contracts  generally,  and  no  such  attempt  would  have  been  sustained. 
We  do  not  say  that  the  remedy  provided  was  the  only  one  that  might 
have  been  provided  in  that  case.  Probably  congress  had  power  to  pass 
a  law  giving  to  the  courts  of  the  United  States  direct  jurisdiction  over 


Ch.  8)       CIVIL   RIGHTS  SECURED   UNDER   FOURTEENTH   AMENDMENT      24J 

contracts  alleged  to  be  impaired  by  a  state  law ;  and,  under  the  broad 
provisions  of  the  act  of  March  3,  1875  [18  Stat.  470,  c.  137],  giving  to 
the  circuit  courts  jurisdiction  of  all  cases  arising  under  the  Constitu- 
tion and  laws  of  the  United  States,  it  is  possible  that  such  jurisdiction 
now  exists.  But  under  that  or  any  other  law,  it  must  appear,  as  well 
by  allegation  as  proof  at  the  trial,  that  the  Constitution  had  been  violat- 
ed by  the  action  of  the  state  legislature.  Some  obnoxious  state  law 
passed,  or  that  might  be  passed,  is  necessary  to  be  assumed  in  order 
to  lay  the  foundation  of  any  federal  remedy  in  the  case,  and  for  the 
very  sufficient  reason  that  the  constitutional  prohibition  is  against  state 
laws  impairing  the  obligation  of  contracts. 

And  so  in  the  present  case,  until  some  state  law  has  been  passed, 
or  some  state  action  through  its  officers  or  agents  has  been  taken, 
adverse  to  the  rights  of  citizens  sought  to  be  protected  by  the  four- 
teenth amendment,  no  legislation  of  the  United  States  under  said 
amendment,  nor  any  proceeding  under  such  legislation,  can  be  called 
into  activity,  for  the  prohibitions  of  the  amendment  are  against  state 
laws  and  acts  done  under  state  authority.  Of  course,  legislation  may 
and  should  be  provided  in  advance  to  meet  the  exigency  when  it 
arises,  but  it  should  be  adapted  to  the  mischief  and  wrong  which  the 
amendment  was  intended  to  provide  against;  and  that  is,  state  laws 
or  state  action  of  some  kind  adverse  to  the  rights  of  the  citizen  se- 
cured by  the  amendment.  Such  legislation  cannot  properly  cover 
the  whole  domain  of  rights  appertaining  to  life,  liberty,  and  property, 
defining  them  and  providing  for  their  vindication.  That  would  be  to 
establish  a  code  of  municipal  law  regulative  of  all  private  rights  be- 
tween man  and  man  in  society.  It  would  be  to  make  congress  take 
the  place  of  the  state  legislatures  and  to  supersede  them.  It  is  ab- 
surd to  affirm  that,  because  the  rights  of  life,  liberty,  and  property 
(which  include  all  civil  rights  that  men  have)  are  by  the  amendment 
sought  to  be  protected  against  invasion  on  the  part  of  the  state  with- 
out due  process  of  law.  congress  may,  therefore,  provide  due  process 
of  law  for  their  vindication  in  every  case ;  and  that,  because  the  denial 
by  a  state  to  any  persons  of  the  equal  protection  of  the  laws  is  pro- 
hibited by  the  amendment,  therefore  congress  may  establish  laws  for 
their  equal  protection.  In  fine,  the  legislation  which  congress  is  au- 
thorized to  adopt  in  this  behalf  is  not  general  legislation  upon  the 
rights  of  the  citizen,  but  corrective  legislation;  that  is,  such  as  may 
be  necessary  and  proper  for  counteracting  such  laws  as  the  states 
may  adopt  or  enforce,  and  which  by  the  amendment  they  are  pro- 
hibited from  making  or  enforcing,  or  such  acts  and  proceedings  as 
the  states  may  commit  or  take,  and  which  by  the  amendment  they 
are  prohibited  from  committing  or  taking.  It  is  not  necessary  for  us 
to  state,  if  we  could,  what  legislation  would  be  proper  for  congress  to 
adopt.  It  is  sufficient  for  us  to  examine  whether  the  law  in  question 
is  of  that  character. 


244  FUNDAMENTAL    RIGHTS  (Part  2 

An  inspection  of  the  law  shows  that  it  makes  no  reference  what- 
ever to  any  supposed  or  apprehended  violation  of  the  fourteenth 
amendment  on  the  part  of  the  states.  It  is  not  predicated  on  any 
such  view.  It  proceeds  ex  directo  to  declare  that  certain  acts  com- 
mitted by  individuals  shall  be  deemed  offenses,  and  shall  be  prose- 
cuted and  punished  by  proceedings  in  the  courts  of  the  United  States. 
It  does  not  profess  to  be  corrective  of  any  constitutional  wrong  com- 
mitted by  the  states;  it  does  not  make  its  operation  to  depend  upon 
any  such  wrong  committed.  It  applies  equally  to  cases  arising  in 
states  which  have  the  justest  laws  respecting  the  personal  rights  of 
citizens,  and  whose  authorities  are  every  ready  to  enforce  such  laws 
as  to  those  which  arise  in  states  that  may  have  violated  the  prohibi- 
tion of  the  amendment.  In  other  words,  it  steps  into  the  domain  of 
local  jurisprudence,  and  lays  down  rules  for  the  conduct  of  individu- 
als in  society  towards  each  other,  and  imposes  sanctions  for  the  en- 
forcement of  those  rules,  without  referring  in  any  manner  to  any  sup- 
posed action  of  the  state  or  its  authorities. 

If  this  legislation  is  appropriate  for  enforcing  the  prohibitions  of 
the  amendment,  it  is  difficult  to  see  where  it  is  to  stop.  Why  may 
not  congress,  with  equal  show  of  authority,  enact  a  code  of  laws  for 
the  enforcement  and  vindication  of  all  rights  of  life,  liberty,  and 
property?  If  it  is  supposable  that  the  states  may  deprive  persons  of 
life,  liberty,  and  property  without  due  process  of  law,  (and  the 
amendment  itself  does  suppose  this,)  why  should  not  congress  pro- 
ceed at  once  to  prescribe  due  process  of  law  for  the  protection  of 
every  one  of  these  fundamental  rights,  in  every  possible  case,  as  well 
as  to  prescribe  equal  privileges  in  inns,  public  conveyances,  and  the- 
aters. The  truth  is  that  the  implication  of  a  power  to  legislate  in  this 
manner  is  based  upon  the  assumption  that  if  the  states  are  forbidden 
to  legislate  or  act  in  a  particular  way  on  a  particular  subject,  and 
power  is  conferred  upon  congress  to  enforce  the  prohibition,  this  gives 
congress  power  to  legislate  generally  upon  that  subject,  and  not  merely 
power  to  provide  modes  of  redress  against  such  state  legislation  or 
action.  The  assumption  is  certainly  unsound.  It  is  repugnant  to  the 
tenth  amendment  of  the  Constitution,  which  declares  that  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  states,  are  reserved  to  the  states  respectively  or  to  the  people. 

We  have  not  overlooked  the  fact  that  the  fourth  section  of  the  act 
now  under  consideration  has  been  held  by  this  court  to  be  constitu- 
tional. That  section  declares  "that  no  citizen,  possessing  all  other 
qualifications  which  are  or  may  be  prescribed  by  law,  shall  be  dis- 
qualified for  service  as  grand  or  petit  juror  in  any  court  of  the  United 
States,  or  of  any  state,  on  account  of  race,  color,  or  previous  condi- 
tion of  servitude;  and  any  officer  or  other  person  charged  with  any 
duty  in  the  selection  or  summoning  of  jurors  who  shall  exclude  or  fail 
to  summon  any  citizen  for  the  cause  aforesaid,  shall,  on  conviction 
thereof,  be  deemed  guilty  of  a  misdemeanor,  and  be  fined  not  more 


CIl.  8)       CIVIL    RIGHTS   SECURED    UNDER    fOV  It  TEE  NTH    AMENDMENT      245 

than  five  thousand  dollars."  In  Ex  parte  Virginia,  100  U.  S.  339,  25 
I  Ed.  676,  it  was  held  that  an  indictment  against  a  state  officer  under 
this  section  for  excluding  persons  of  color  from  the  jury  list  is  sustain- 
able. But  a  moment's  attention  to  its  terms  will  show  that  the  section 
is  entirely  corrective  in  its  character.  Disqualifications  for  service  on 
juries  arc  only  created  by  the  law,  and  the  first  part  of  the  section  is 
aimed  at  certain  disqualifying  laws,  namely,  those  which  make  mere 
race  or  color  a  disqualification ;  and  the  second  clause  is  directed 
against  those  who,  assuming  to  use  the  authority  of  the  state  govern- 
ment, carry  into  effect  such  a  rule  of  disqualification.  In  the  Virginia 
case,  the  state,  through  its  officer,  enforced  a  rule  of  disqualification 
which  the  law  was  intended  to  abrogate  and  counteract.  Whether 
the  statute-book  of  the  state  actually  laid  down  any  such  rule  of  dis- 
qualification or  not,  the  state,  through  its  officer,  enforced  such  a 
rule;  and  it  is  against  such  state  action,  through  its  officers  and 
agents,  that  the  last  clause  of  the  section  is  directed.  This  aspect 
of  the  law  was  deemed  sufficient  to  divest  it  of  any  unconstitutional 
character,  and  makes  it  differ  widely  from  the  first  and  second  sec- 
tions of  the  same  act  which  we  are  now  considering.    *    *    * 

[After  distinguishing  the  so-called  "Civil  Rights  Bill"  of  1866  and 
1868  (14  Stat.  27;  16  Stat.  140),  which  made  guilty  of  a  misdemeanor 
any  person  who,  under  color  of  any  law,  statute,  ordinance,  regula- 
tion or  custom,  subjected  any  inhabitant  of  a  state  or  territory  to  the 
deprivation  of  any  of  certain  enumerated  important  civil  rights:]  The 
civil  rights  bill  here  referred  to  is  analogous  in  its  character  to  what 
a  law  would  have  been  under  the  original  Constitution,  declaring  that 
the  validity  of  contracts  should  not  be  impaired,  and  that  if  any  person 
bound  by  a  contract  should  refuse  to  comply  with  it  under  color  or  pre- 
tence that  it  had  been  rendered  void  or  invalid  by  a  state  law,  he  should 
be  liable  to  an  action  upon  it  in  the  courts  of  the  United  States,  with 
the  addition  of  a  penalty  for  setting  up  such  an  unjust  and  unconstitu- 
tional defense. 

In  this  connection  it  is  proper  to  state  that  civil  rights,  such  as 
are  guaranteed  by  the  Constitution  against  state  aggression,  cannot 
be  impaired  by  the  wrongful  acts  of  individuals,  unsupported  by  state 
authority  in  the  shape  of  laws,  customs,  or  judicial  or  executive  pro- 
ceedings. The  wrongful  act  of  an  individual,  unsupported  by  any 
such  authority,  is  simply  a  private  wrong,  or  a  crime  of  that  individ- 
ual;  an  invasion  of  the  rights  of  the  injured  party,  it  is  true,  whether 
they  affect  his  person,  his  property,  or  his  reputation;  but  if  not 
sanctioned  in  some  way  by  the  state,  or  not  done  under  state  author- 
ity, his  rights  remain  in  full  force,  and  may  presumably  be  vindicated 
by  resort  to  the  laws  of  the  state  for  redress.  An  individual  cannot 
deprive  a  man  of  his  right  to  vote,  to  hold  property,  to  buy  and  sell. 
to  sue  in  the  courts,  or  to  be  a  witness  or  a  juror;  he  may,  by  force 
or  fraud,  interfere  with  the  enjoyment  of  the  right  in  a  particular 
case ;    he  may  commit  an  assault  against  the  person,  or  commit  mur- 


246  FUNDAMENTAL    RIGHTS  (Part  2 

der,  or  use  ruffian  violence  at  the  polls,  or  slander  the  good  name  of  a 
fellow-citizen ;  but  unless  protected  in  these  wrongful  acts  by  some 
shield  of  state  law  or  state  authority,  he  cannot  destroy  or  injure  the 
right;  he  will  only  render  himself  amenable  to  satisfaction  or  pun- 
ishment ;  and  amenable  therefor  to  the  laws  of  the  state  where  the 
wrongful  acts  are  committed.  Hence,  in  all  those  cases  where  the 
Constitution  seeks  to  protect  the  rights  of  the  citizen  against  discrim- 
inative and  unjust  laws  of  the  state  by  prohibiting  such  laws,  it  is 
not  individual  offenses,  but  abrogation  and  denial  of  rights,  which  it 
denounces,  and  for  which  it  clothes  the  congress  with  power  to  pro- 
vide a  remedy.  This  abrogation  and  denial  of  rights,  for  which  the 
states  alone  were  or  could  be  responsible,  was  the  great  seminal  and 
fundamental  wrong  which  was  intended  to  be  remedied.  And  the 
remedy  to  be  provided  must  necessarily  be  predicated  upon  that  wrong. 
It  must  assume  that  in  the  cases  provided  for,  the  evil  or  wrong  ac- 
tually committed  rests  upon  some  state  law  or  state  authority  for  its 
excuse  and  perpetration. 

Of  course,  these  remarks  do  not  apply  to  those  cases  in  which  con- 
gress is  clothed  with  direct  and  plenary  powers  of  legislation  over  the 
whole  subject,  accompanied  with  an  express  or  implied  denial  of  such 
power  to  the  states,  as  in  the  regulation  of  commerce  with  foreign 
nations,  among  the  several  states,  and  with  the  Indian  tribes,  the 
coining  of  money,  the  establishment  of  post-offices  and  post-roads, 
the  declaring  of  war,  etc.  In  these  cases  congress  has  power  to  pass 
laws  for  regulating  the  subjects  specified,  in  every  detail,  and  the 
conduct  and  transactions  of  individuals  in  respect  thereof.  But  where 
a  subject  is  not  submitted  to  the  general  legislative  power  of  congress, 
but  is  only  submitted  thereto  for  the  purpose  of  rendering  effective 
some  prohibition  against  particular  state  legislation  or  state  action 
in  reference  to  that  subject,  the  power  given  is  limited  by  its  object, 
and  any  legislation  by  congress  in  the  matter  must  necessarily  be  cor- 
rective in  its  character,  adapted  to  counteract  and  redress  the  opera- 
tion of  such  prohibited  state  laws  or  proceedings  of  state  officers. 

If  the  principles  of  interpretation  which  we  have  laid  down  are  cor- 
rect, as  we  deem  them  to  be, — and  they  are  in  accord  with  the  prin- 
ciples laid  down  in  the  cases  before  referred  to,  as  well  as  in  the 
recent  case  of  U.  S.  v.  Harris  [106  U.  S.  629,  1  Sup.  Ct.  601,  27  L-  Ed. 
290], — it  is  clear  that  the  law  in  question  cannot  be  sustained  by  any 
grant  of  legislative  power  made  to  congress  by  the  fourteenth  amend- 
ment. That  amendment  prohibits  the  states  from  denying  to  any  per- 
son the  equal  protection  of  the  laws,  and  declares  that  congress  shall 
have  power  to  enforce,  by  appropriate  legislation,  the  provisions  of  the 
amendment.  The  law  in  question,  without  any  reference  to  adverse 
state  legislation  on  the  subject,  declares  that  all  persons  shall  be  enti- 
tled to  equal  accommodations  and  privileges  of  inns,  public  conveyanc- 
es, and  places  of  public  amusement,  and  imposes  a  penalty  upon  any 
individual  who  shall  deny  to  any  citizen  such  equal  accommodations 


Ch.  8)     civil  bights  secured  under  fourteenth  amendment    l'17 

and  privileges.  This  is  not  corrective  legislation ;  it  is  primary  and 
direct;  it  takes  immediate  and  absolute  possession  of  the  subject  of 
the  right  of  admission  to  inns,  public  conveyances,  and  places  of 
amusement.  It  supersedes  and  displaces  state  legislation  on  the  same 
subject,  or  only  allows  it  permissive  force.  It  ignores  such  legislation, 
and  assumes  that  the  matter  is  one  that  belongs  to  the  domain  of 
national  regulation.  Whether  it  would  not  have  been  a  more  effective 
protection  of  the  rights  of  citizens  to  have  clothed  congress  with  ple- 
nary power  over  the  whole  subject,  is  not  now  the  question.  What  we 
have  to  decide  is,  whether  such  plenary  power  has  been  conferred  Upon 
congress  by  the  fourteenth  amendment,  and,  in  our  judgment,  it  has 
not.  *  *  *  [Portions  of  the  opinion  below  this  point,  dealing  with 
the  thirteenth  amendment,  are  omitted.     See  Chapter  V,  supra.] 

We  must  not  forget  that  the  province  and  scope  of  the  thirteenth 
and  fourteenth  amendments  are  different:  the  former  simply  abol- 
ished slavery:  the  latter  prohibited  the  slates  from  abridging  the 
privileges  or  immunities  of  citizens  of  the  I'nited  States,  from  de- 
priving them  of  life,  liberty,  or  property  without  due  process  of  law, 
and  from  denying  to  any  the  equal  protection  of  the  laws.  The 
amendments  are  different,  and  the  powers  of  congress  under  them 
are  different.  What  congress  has  power  to  do  under  one,  it  may  not 
have  power  to  do  under  the  other.  Under  the  thirteenth  amendment, 
it  has  only  to  do  with  slavery  and  its  incidents.  Under  the  four- 
teenth amendment,  it  has  power  to  counteract  and  render  nugatory 
all  state  laws  and  proceedings  which  have  the  effect  to  abridge  any 
of  the  privileges  or  immunities  of  citizens  of  the  United  States  ;  or  to 
deprive  them  of  life,  liberty,  or  property  without  due  process  of  law, 
or  to  deny  to  any  of  them  the  equal  protection  of  the  laws.  Under 
the  thirteenth  amendment  the  legislation,  so  far  as  necessary  or  proper 
to  eradicate  all  forms  and  incidents  of  slavery  and  involuntary  servi- 
tude, may  be  direct  and  primary,  operating  upon  the  acts  of  individ- 
uals, whether  sanctioned  by  state  legislation  or  not ;  under  the  four- 
teenth, as  we  have  already  shown,  it  must  necessarily  be,  and  can 
only  be,  corrective  in  its  character,  addressed  to  counteract  and  afford 
relief  against  state  regulations  or  proceedings.     *    *     * 

Innkeepers  and  public  carriers,  by  the  laws  of  all  the  states,  so  far 
as  we  arc  aware,  are  bound,  to  the  extent  of  their  facilities,  to  furnish 
proper  accommodation  to  all  unobjectionable  persons  who  in  good  faith 
apply  for  them.  If  the  laws  themselves  make  any  unjust  discrimina- 
tion, amenable  to  the  prohibitions  of  the  fourteenth  amendment,  con- 
gress has  full  power  to  afford  a  remedy  under  that  amendment  and  in 
accordance  with  it. 

When  a  man  has  emerged  from  slavery,  and  by  the  aid  of  benefi- 
cent legislation  has  shaken  off  the  inseparable  concomitants  of  that 
state,  there  must  be  some  stage  in  the  progress  of  his  elevation  when 
he  takes  the  rank  of  a  mere  citizen,  and  ceases  to  be  the  special  fa- 
vorite of  the  laws,  and  when  his  rights  as  a  citizen,  or  a  man,  are  to 


248  FUNDAMENTAL    EIGHTS  (Part  2 

be  protected  in  the  ordinary  modes  by  which  other  men's  rights  are 
protected.     *     *    * 

On  the  whole,  we  are  of  opinion  that  no  countenance  of  authority 
for  the  passage  of  the  law  in  question  can  be  found  in  either  the  thir- 
teenth or  fourteenth  amendment  of  the  Constitution ;  and  no  other 
ground  of  authority  for  its  passage  being  suggested,  it  must  necessa- 
rily be  declared  void,  at  least  so  far  as  its  operation  in  the  several 
states  is  concerned.2 

Judgment  accordingly.3 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


SECTION  2.— APPLICATION  TO  CORPORATIONS 


COUNTY  OF  SAN  MATEO  v.  SOUTHERN  PAC.  R.  CO. 
(1882)  13  Fed.  722,  743,  744,  746,  747,  Mr.  Justice  Field  (holding  a 
California  tax  upon  the  property  of  a  railroad  corporation  invalid, 
both  because  valued  in  an  improperly  discriminatory  manner,  and 
for  lack  of  due  process  of  law  under  the  fourteenth  amendment,  in 
failing  to  afford  proper  notice  and  hearing) : 

"Is  the  defendant,  being  a  corporation,  a  person  within  the  mean- 
ing of  the  fourteenth  amendment,  so  as  to  be  entitled,  with  respect 
to  its  property,  to  the  equal  protection  of  the  laws?  *  *  *  Pri- 
vate corporations  are,  it  is  true,  artificial  persons,  but  with  the  ex- 
ception of  a  sole  corporation,  with  which  we  are  not  concerned,  they 
consist  of  aggregations  of  individuals  united  for  some  legitimate  busi- 

2  See  Butts  v.  Mercantile  Transp.  Co.,  230  U.  S.  126,  33  Sup.  Ct.  964.  57  I. 

Ed. (1913)  (act  also  invalid  In  places  under  federal  jurisdiction  outside  of 

states  because  of  inseparability  of  provisions  of  act). 

s  Accord:  Hodges  v.  United  States,  203  U.  S.  1,  14,  27  Sup.  Ct.  6,  51  L.  Ed. 
65  (1906)  (semble).  So  as  to  fifteenth  amendment,  James  v.  Bowman,  190  U. 
S.  127,  23  Sup.  Ct.  67S,  49  L.  Ed.  979  (1903)  (conspiracy  of  individuals  to 
bribe  negroes  not  to  vote) :  and  as  to  interstate  privileges  and  immunities 
clause  (Const,  art.  IV.  §  2),  United  States  v.  Morris  (D.  C.)  125  Fed.  322  H903). 
Compare  Ex  parte  Riggins  (C.  C.)  134  Fed.  404  (1904),  and  United  States  v. 
Powell  (C.  C.)  151  Fed.  64S  (1907) ;  one  suggesting  and  the  other  denying 
that  the  act  of  private  individuals  in  lynching  a  prisoner  to  prevent  a  state 
from  affording  him  due  process  of  law  is  punishable  by  the  United  States 
under  the  fourteenth  amendment.  See,  also,  United  States  v.  Harris,  106  U. 
S.  629,  1  Sup.  Ct.  601.  27  L.  Ed.  290  (1883).  As  to  when  the  lynching  of  a 
state  prisoner  may  be  contempt  of  a  federal  court,  see  United  States  v.  Shipp, 
203  U.  S.  563,  27  Sup.  Ct.  165,  51  L.  Ed.  319,  S  Ann.  Cas.  265  (1906) :  Id.,  214 
U.  S.  386,  29  Sup.  Ct.  637,  53  L.  Ed.  1041  (1909) ;  Id.,  215  U.  S.  5S1,  30  Sup. 
Ct,  397,  54  L.  Ed.  337  (1909). 

A  state  may  alter  its  law  of  public  callings  so  as  to  permit  individuals  en- 
gaged therein  to  refuse  certain  kinds  of  service  to  any  or  all  persons.  State 
v.  Lasater,  9  Baxt.  (68  Tenn.)  584  (18771 ;  Allen  v.  Pullman  Palace  Car  Co., 
191  U.  S.  171,  1S2-1S3,  24  Sup.  Ct.  39,  4S  h.  Ed.  134  (1903) ;  McCabe  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.,  ISO  Fed.  066,  109  C.  C.  A.  110  (1911). 


Ch.  8)       CIVIL   RIGHTS  SECURED   UNDEK    KOL'UTEENTFJ    AMENDMENT     249 

ness.  In  this  state  they  are  formed  under  general  laws ;  and  the  Civil 
Code  provides  that  they  'may  be  formed  for  any  purpose  for  which 
individuals  may  lawfully  associate  themselves.'  Any  five  or  more 
persons  may  by  voluntary  association  form  themselves  into  a  corpora- 
tion. And,  as  a  matter  of  fact,  nearly  all  enterprises  in  this  state, 
requiring  for  their  execution  an  expenditure  of  large  capital,  are  un- 
dertaken by  corporations.  They  engage  in  commerce;  they  build  and 
sail  ships ;  they  cover  our  navigable  streams  with  steamers ;  they 
construct  houses ;  they  bring  the  products  of  earth  and  sea  to  market ; 
they  light  our  streets  and  buildings;  they  open  and  work  mines; 
they  carry  water  into  our  cities ;  they  build  railroads,  and  cross  moun- 
tains and  deserts  with  them ;  they  erect  churches,  colleges,  lyceums, 
and  theaters;  they  set  up  manufactories,  and  keep  the  spindle  and 
shuttle  in  motion ;  they  establish  banks  for  savings ;  they  insure 
against  accidents  on  land  and  sea ;  they  give  policies  on  life ;  they 
make  money  exchanges  with  all  parts  of  the  world;  they  publish 
newspapers  and  books,  and  send  news  by  lightning  across  the  con- 
tinent and  under  the  ocean.  Indeed,  there  is  nothing  which  is  law- 
ful to  be  done  to  feed  and  clothe  our  people,  to  beautify  and  adorn 
their  dwellings,  to  relieve  the  sick,  to  help  the  needy,  and  to  enrich 
and  ennoble  humanity,  which  is  not  to  a  great  extent  done  through 
the  instrumentalities  of  corporations.  There  are  over  500  corpora- 
tions in  this  state ;  there  are  30,000  in  the  United  States,  and  the 
aggregate  value  of  their  property  is  several  thousand  millions.  It 
would  be  a  most  singular  result  if  a  constitutional  provision  intended 
for  the  protection  of  every  person  against  partial  and  discriminating 
legislation  by  the  states,  should  cease  to  exert  such  protection  the 
moment  the  person  becomes  a  member  of  a  corporation.  We  cannot 
accept  such  a  conclusion.  On  the  contrary,  we  think  that  it  is  well 
established  by  numerous  adjudications  of  the  Supreme  Court  of  the 
United  States  and  of  the  several  states,  that  whenever  a  provision  of 
the  Constitution,  or  of  a  law,  guarantees  to  persons  the  enjoyment  of 
property,  or  affords  to  them  means  for  its  protection,  or  prohibits 
legislation  injuriously  affecting  it,  the  benefits  of  the  provision  extend 
to  corporations,  and  that  the  courts  will  always  look  beyond  the  name 
of  the  artificial  being  to  the  individuals  whom  it  represents.1 

"The  fifth  amendment  to  the  Constitution  declares  that  'no  per- 
son shall  be,  held  to  answer  for  a  capital  or  otherwise  infamous  crime. 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval   forces,  or  in  the  militia,  when  in 

County  v.  Southern  Par.  n.  Co..  118  V.  S.  391,  390.  6  Sup. 
Ct.  1131;.  30  L.  Ed.  IIS  (1S86),  Watte.  C.  J.,  sal  J:  -The  court  does  not  wish 
to  hear  argument  on  the  question  whether  the  provision  In  the  fourteenth 
amendment  to  Che  Constitution,  which  forbids  a  state  to  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws,  applies  to  these  cor- 
ns. We  are  all  of  opinion  that  it  does."  This  is  the  earliest  Judicial 
statement  to  this  effect  by  the  federal  Supreme  Court.  See,  also,  Gulf,  C.  & 
S.  F.  K.  Co.  v.  Ellis,  105  U.  S.  160.  151,  17  Sup.  Ct.  366,  41  L.  Ed.  000  UbOTi. 


250  FUNDAMENTAL    RIGHTS  (Part  2 

actual  service  in  time  of  war  or  public  danger;  nor  shall  any  person 
be  subject  for  the  same  offense  to  be  put  twice  in  jeopardy  of  life  or 
limb;  nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law ;  nor  shall  private  property  be  taken  for  public 
use  without  just  compensation.' 

"From  the  nature  of  the  prohibitions  in  this  amendment  it  would 
seem,  with  the  exception  of  the  last  one,  as  though  they  could  apply 
only  to  natural  persons.  No  others  can  be  witnesses ;  no  others  can 
be  twice  put  in  jeopardy  of  life  or  limb,  or  compelled  to  be  witnesses 
against  themselves ;  2  and  therefore  it  might  be  said  with  much  force 
that  the  word  'person,'  there  used  in  connection  with  the  prohibition 
against  the  deprivation  of  life,  liberty,  and  property  without  due  pro- 
cess of  law,  is  in  like  manner  limited  to  a  natural  person.  But  such 
has  not  been  the  construction  of  the  courts.  A  similar  provision  is 
found  in  nearly  all  of  the  state  Constitutions ;  and  everywhere,  and 
at  all  times,  and  in  all  courts,  it  has  been  held,  either  by  tacit  assent 
or  express  adjudication,  to  extend,  so  far  as  their  property  is  con- 
cerned, to  corporations.3  And  this  has  been  because  the  property 
of  a  corporation  is  in  fact  the  property  of  the  corporators.  To  de- 
prive the  corporation  of  its  property,  or  to  burden  it,  is,  in  fact,  to 
deprive  the  corporators  of  their  property  or  to  lessen  its  value.  Their 
interest,  undivided  though  it  be,  and  constituting  only  a  right  during 
the  continuance  of  the  corporation  to  participate  in  its  dividends, 
and  on  its  dissolution  to  receive  a  proportionate  share  of  its  assets, 
has  an  appreciable  value,  and  is  property  in  a  commercial  sense,  and 
whatever  affects  the  property  of  the  corporation  necessarily  affects 
the  commercial  value  of  their  interests.  If,  for  example,  to  take  the 
illustration  given  by  counsel,  a  corporation  created  for  banking  pur- 
poses acquires  land,  notes,  stocks,  bonds,  and  money,  no  stockholder 
can  claim  that  he  owns  any  particular  item  of  this  property,  but  he 
owns  an  interest  in  the  whole  of  it  which  the  courts  will  protect 
against  unlawful  seizure  or  appropriation  by  others,  and  on  the  dis- 
solution of  the  company  he  will  receive  a  proportionate  share  of  its 
assets.  Now,  if  a  statute  of  the  state  takes  the  entire  property,  who 
suffers  loss  by  the  legislation?  Whose  property  is  taken?  Certainly, 
the  corporation  is  deprived  of  its  property ;  but  at  the  same  time,  in 
every  just  sense  of  the  constitutional  guaranty,  corporators  are  also 
deprived  of  their  property. 

"The  prohibition  against  the  deprivation  of  life  and  liberty  in  the 

2  Accord:  Wilson  t.  United  States,  ante,  p.  193,  note.  See,  also,  Hale  v. 
Henkel,  ante,  p.  184. 

a  "It  is  now  settled  that  corporations  are  persons  within  the  meaning  of 
the  constitutional  provisions  forbidding  the  deprivation  of  property  without 
due  process  of  law,  as  well  as  a  denial  of  the  equal  protection  of  the  laws." 
— Harlan,  J.,  in  Covington  &  L.  Turnpike  Road  Co.  v.  Sandford,  164  U.  S.  578, 
682,  17  Sup.  Ot  198,  203,  41  L.  Ed.  560  (1896)  (citine  cases). 


Ch.  8)      CIVIL   RIGHTS  SECURED   OHDBB   POUBXBENTH   AMENDMENT     251 

same  clause  of  the  fifth  amendment  does  not  apply  to  corporations,* 
because,  as  stated  by  counsel,  the  lives  and  liberties  of  the  individual 
corporators  are  not  the  life  and  liberty  of  the  corporation." 


PEMBINA  CONSOL.  SILVER  MIN.  &  MILL.  CO.  v.  PENN- 
SYLVANIA (1888)  125  U.  S.  181,  188-190.  8  Sup.  Ct.  737,  31  L. 
Ed.  650,  Mr.  Justice  Field  (upholding  a  Pennsylvania  statute  requir- 
ing an  annual  license  fee  from  foreign  corporations  not  investing  or 
using  their  capital  in  the  state) : 

"3.  The  application  of  the  fourteenth  amendment  of  the  Constitu- 
tion to  the  statute  imposing  the  license  tax  in  question  is  not  more 
apparent  than  the  application  of  the  clause  of  the  Constitution  [as] 
to  the  rights  of  citizens  of  one  state  to  the  privileges  and  immunities 
of  citizens  in  other  states.  The  inhibition  of  the  amendment  that  no 
state  shall  deprive  any  person  within  its  jurisdiction  of  the  equal 
protection  of  the  laws  was  designed  to  prevent  any  person  or  class 
of  persons  from  being  singled  out  as  a  special  subject  for  discrim- 
inating and  hostile  legislation.  Under  the  designation  of  person  there 
is  no  doubt  that  a  private  corporation  is  included.  Such  corporations 
are  merely  associations  of  individuals  united  for  a  special  purpose, 
and  permitted  to  do  business  under  a  particular  name,  and  have  a 
succession  of  members  without  dissolution.  As  said  by  Chief  Justice 
Marshall,  'The  great  object  of  a  corporation  is  to  bestow  the  char- 
acter and  properties  of  individuality  on  a  collective  and  changing  body 
of  men.'  Providence  Bank  v.  Billings,  4  Pet.  514,  562  [7  L.  Ed.  939]. 
The  equal  protection  of  the  laws  which  these  bodies  may  claim  is 
only  such  as  is  accorded  to  similar  associations  within  the  jurisdic- 
tion of  the  state.  The  plaintiff  in  error  is  not  a  corporation  within 
the  jurisdiction  of  Pennsylvania.  The  office  it  hires  is  within  such 
jurisdiction,  and  on  condition  that  it  pays  the  required  license  tax  it 
can  claim  the  same  protection  in  the  use  of  the  office  that  any  other 
corporation  having  a  similar  office  may  claim.  It  would  then  have  the 
equal  protection  of  the  law  so  far  as  it  had  anything  within  the  juris- 
diction of  the  state,  and  the  constitutional  amendment  requires  noth- 
ing more.  The  state  is  not  prohibited  from  discriminating  in  the  priv- 
ileges it  may  grant  to  foreign  corporations  as  a  condition  of  their 
doing  business  or  hiring  offices  within  its  limits,  provided  always 
such  discrimination  does  not  interfere  with  any  transaction  by  such 
corporations  of  interstate  or  foreign  commerce.  It  is  not  every  cor- 
poration, lawful  in  the  state  of  its  creation,  that  other  states  may  be 
willing  to  admit  within  their  jurisdiction  or  consent  that  it  have  of- 

*  "The  liberty  guaranteed  by  the  fourteenth  amendment  against  depriva- 
tion without  due  process  of  law  is  the  liberty  of  natural,  not  artificial,  per- 
sons. Northwestern  Nat  L.  ins.  Co.  v.  Riggs,  203  V  S.  243  [27  Sup.  Ct.  L26, 
SI  L.  Ed.  168,  7  Ann.  Cas.  1104]."— Harlan.  J.,  in  Western  Turf  Ass'n  t.  Green- 
berg,  2/J4  U.  S.  359,  3G3,  27  Sup.  Ct  3S4,  3SU,  51  L.  Ed.  520  (1907). 


252         |  FUNDAMENTAL    EIGHTS  (Part  2 

fices  in  them;  such,  for  example,  as  a  corporation  for  lotteries.  And 
even  where  the  business  of  a  foreign  corporation  is  not  unlawful  in 
other  states  the  latter  may  wish  to  limit  the  number  of  such  corpora- 
tions, or  to  subject  their  business  to  such  control  as  would  be  in  ac- 
cordance with  the  policy  governing  domestic  corporations  of  a  similar 
character.  The  states  may,  therefore,  require  for  the  admission 
within  their  limits  of  the  corporations  of  other  states,  or  of  any  num- 
ber of  them,  such  conditions  as  they  may  choose,'  without  acting  in 
conflict  with  the  concluding  provision  of  the  first  section  of  the  four- 
teenth amendment.     *     *     * 

"The  only  limitation  upon  this  power  of  the  state  to  exclude  a 
foreign  corporation  from  doing  business  within  its  limits,  or  hiring 
offices  for  that  purpose,  or  to  exact  conditions,  for  allowing  the  cor- 
poration to  do  business  or  hire  offices  there,  arises  where  the  corpora- 
tion is  in  the  employ  of  the  federal  government,  or  where  its  business 
is  strictly  commerce,  interstate  or  foreign.  The  control  of  such  com- 
merce, being  in  the  federal  government,  is  not  to  be  restricted  by  state 
authority." 

[Bradley,  J.,  took  no  part  in  the  decision.] 


PHILADELPHIA  FIRE  ASS'N  v.  NEW  YORK  (1S86)  119  U. 
S.  110,  119,  120,  7  Sup.  Ct.  108,  30  L.  Ed.  342,  Mr.  Justice  Blatch- 
Ford  (upholding  the  imposition  by  New  York  upon  a  Pennsylvania 
corporation  of  a  discriminatory  annual  license  fee  for  the  privilege 
of  continuing  to  do  business  in  the  state,  in  retaliation  for  the  imposi- 
tion of  like  taxes  of  like  amount  by  Pennsylvania  upon  foreign  cor- 
porations doing  business  there) : 

"This  Pennsylvania  corporation  came  into  the  state  of  New  York 
to  do  business,  by  the  consent  of  the  state,  under  this  act  of  1853, 
with  a  license  granted  for  a  year,  and  has  received  such  license  an- 
nually, to  run  for  a  year.  It  is  within  the  state  for  any  given  year 
under  such  license,  and  subject  to  the  conditions  prescribed  by  statute. 
The  state,  having  the  power  to  exclude  entirely,  has  the  power  to 
change  the  conditions  of  admission  at  any  time  for  the  future,  and 
to  impose  as  a  condition  the  payment  of  a  new  tax,  or  a  further  tax, 
as  a  license  fee.  If  it  imposes  such  license  fee  as  a  prerequisite  for 
the  future,  the  foreign  corporation,  until  it  pays  such  license  fee.  is 
not  admitted  within  the  state,  or  within  its  jurisdiction.  It  is  outside, 
at  the  threshold,  seeking  admission,  with  consent  not  yet  given.  The 
act  of  1865  had  been  passed  when  the  corporation  first  established  an 
agency  in  the  state.  The  amendment  of  1875  changed  the  act  of  1865 
only  by  giving  to  the  superintendent  the  power  of  remitting  the  fees 
and  charges  required  to  be  collected  by  then  existing  laws.  There- 
fore the  corporation  was  at  all  times  after  1872  subject,  as  a  prereq- 
uisite to  its  power  to  do  business  in  New  York,  to  the  same  license 


Cll.  S)       CIVIL   RIGHTS   SECURED    UNDER    FOURTEENTH    AMENDMENT      253 

fee  its  own  state  might  thereafter  impose  on  New  York  companies 
doing  business  in  Pennsylvania.  By  going  into  the  state  of  New 
York  in  1872,  it  assented  to  such  prerequisite  as  a  condition  of  its  ad- 
mission within  the  jurisdiction  of  New  York.  It  could  not  be  of 
right  within  such  jurisdiction  until  it  should  receive  the  consent  of 
the  state  to  its  entrance  therein  under  the  new  provisions,  and  such 
consent  could  not  be  given  until  the  tax,  as  a  license  fee  lor  the  future 
should  be  paid." 

[Harlan,  J.,  dissented.] 


BLAKE  v.  McCLUNG  (1898)  172  U.  S.  239,  260,  261,  19  Sup. 
Ct.  165,  43  L.  Ed.  432,  Mr.  Justice  Harlan  (upholding  a  Tennessee 
statute  giving  a  preference  to  claims  of  resident  creditors  over  thase 
of  a  foreign  corporation  in  the  distribution  of  the  Tennessee  assets 
of  an  insolvent  foreign  corporation) : 

"It  is  equally  clear  that  the  Virginia  corporation  cannot  rely  upon 
the  clause  declaring  that  no  state  shall  'deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws.'  That  prohibition  mani- 
festly relates  only  to  the  denial  by  the  state  of  equal  protection  to  per- 
sons 'within  its  jurisdiction.'  Observe  that  the  prohibition  against 
the  deprivation  of  property  without  due  process  of  law  is  not  quali- 
fied by  the  words  'within  its  jurisdiction,'  while  those  words  are 
found  in  the  succeeding  clause  relating  to  the  equal  protection  of 
the  laws.  The  court  cannot  assume  that  those  words  were  inserted 
without  any  object,  nor  is  it  at  liberty  to  eliminate  them  from  the 
Constitution,  and  to  interpret  the  clause  in  question  as  if  they  were 
not  to  be  found  in  that  instrument.  Without  attempting  to  state 
what  is  the  full  import  of  the  words,  'within  its  jurisdiction,'  it  is 
safe  to  say  that  a  corporation  not  created  by  Tennessee,  nor  doing 
business  there  under  conditions  that  subjected  it  to  process  issuing 
from  the  courts  of  Tennessee  at  the  instance  of  suitors,  is  not.  under 
the  above  clause  of  the  fourteenth  amendment,  within  the  jurisdic- 
tion of  that  state.1  Certainly,  when  the  statute  in  question  was  en- 
acted, the  Virginia  corporation  was  not  within  the  jurisdiction  of 
Tennessee.  So  far  as  the  record  discloses,  its  claim  against  the  Em- 
breeville  Company  was  on  account  of  coke  sold  and  shipped  from 
\  frginia  to  the  latter  corporation  at  its  place  of  business  in  Tennes- 
see. It  does  not  appear  to  have  been  doing  business  in  Tennessee 
under  the  statute  here  involved,  or  under  any  statute  that  would 
bring  it  directly  under  the  jurisdiction  of  the  courts  of  Tennessee  by 
service  of  process  on  its  officers  or  agents.     Nor  do  we  think  it  came 

i  As  to   what   institutes  "doing  business"  within  a  state,  so  as  to 
a  corporation  to  i lie  service  of  process  there,  see  ' 

in  24  L.  R.  A.  205-297;    10  L.  U.  A.  (N.   S.)  693;    28  1-.  K    A.  i.\.  S.)  834;   1 
I,.  li.  A.  i\.  s.i  w_';   and  International  TextrBook  i'o.  v.  Plgg,  217  l'.  S.  81, 
BO  Sup.  Ct  181,  54  I..  Ed.  07s.  24  L.  K.  A.  (N.  BO  493,  IS  Ann.  (.'as.  1103  (1910). 


254  FUNDAMENTAL    RIGHT8  (Part  2 

within  the  jurisdiction  of  Tennessee,  within  the  meaning  of  the 
amendment,  simply  by  presenting  its  claim  in  the  state  court,  and 
thereby  becoming  a  party  to  this  cause.  Under  any  other  interpreta- 
tion, the  fourteenth  amendment  would  be  given  a  scope  not  con- 
templated by  its  framers  or  by  the  people,  nor  justified  by  its  lan- 
guage. We  adjudge  that  the  statute,  so  far  as  it  subordinates  the 
claims  of  private  business  corporations  not  within  the  jurisdiction  of 
the  state  of  Tennessee  (although  such  private  corporations  may  be 
creditors  of  a  corporation  doing  business  in  the  state  under  the  au- 
thority of  that  statute)  to  the  claims  against  the  latter  corporation  of 
creditors  residing  in  Tennessee,  is  not  a  denial  of  the  'equal  protec- 
tion of  the  laws'  secured  by  the  fourteenth  amendment  to  persons 
within  the  jurisdiction  of  the  state,  however  unjust  such  a  regulation 
may  be  deemed."  2 

[Fuller,  C.  J.,  and  Brewer,  J.,  dissented  upon  other  grounds.] 


SECURITY  MUT.  LIFE  INS.  CO.  v.  PREWITT  (1906)  202  U. 
S.  246,  248,  249,  252,  256-258,  26  Sup.  Ct.  619,  50  L.  Ed.  1013,  6 
Ann.  Cas.  317,  Mr.  Justice  Peckham  (upholding  a  Kentucky  statute 
authorizing  yearly  permits  to  be  granted  to  foreign  insurance  com- 
panies to  do  business  in  the  state,  and  making  it  the  duty  of  the  com- 
missioner of  insurance  at  once  to  revoke  such  permit  to  any  com- 
pany that  removed  to  a  federal  court  or  instituted  therein  any  suit 
between  it  and  citizens  of  Kentucky.  The  insurance  company  asked 
an  injunction  against  such  revocation  of  its  permit) : 

"The  matter  to  be  now  determined  is  whether  a  state  has  the  right 
to  provide  that  if  a  foreign  insurance  company  shall  remove  a  case 
to  the  federal  court,  which  has  been  commenced  in  a  state  court,  the 
license  of  such  company  to  do  business  within  the  state  shall  be  there- 
upon revoked.  *  *  *  A  state  has  the  right  to  prohibit  a  foreign 
corporation  from  doing  business  within  its  borders,  unless  such  pro- 
hibition is  so  conditioned  as  to  violate  some  provision  of  the  federal 
Constitution.  *  *  *  Having  the  power  to  prevent  a  foreign  in- 
surance company  from  doing  business  at  all  within  the  state,  we  think 
the  state  can  enact  a  statute  such  as  is  above  set  forth.  The  ques- 
tion is,  in  our  opinion,  settled  by  the  decisions  of  this  court.  *  *  * 
[Here  follow  statements  of  Home  Ins.  Co.  v.  Morse,  20  Wall.  445, 
22  L.  Ed.  365,  and  Doyle  v.  Continental  Ins.  Co.,  94  U.  S.  535,  24 
L.  Ed.  148.] 

"In  these  two  cases  this  court  decided  that  any  agreement  made  by 
a  foreign  insurance  company  not  to  remove  a  cause  to  the  federal 
court  was  void,  whether  made  pursuant  to  a  statute  of  the  state  pro- 

2  See,  also.  Paul  v.  Virginia,  ante.  p.  200.  A  non-resident  individual  mort- 
gagee of  land  in  Tennessee  is  likewise  not  "within  its  jurisdiction,"  as  against 
discriminating  legislation  by  that  state.  Sully  v.  American  Nat  Bank,  178  U, 
S.  2S9,  20  Sup.  Ct.  935,  44  I*  Ed.  1072  (.1900). 


Cll.  8)       CIVIL   RIGHTS  SECURED    DMDEB    ml  KIK1..NTH   AMENDMENT      255 

viding  for  such  agreement,  or  in  the  absence  of  such  statute ;  but 
that  the  state,  having  power  to  exclude  altogether  a  foreign  insur- 
ance company  from  doing  business  within  the  state,  had  power  to  en- 
act a  statute  which,  in  addition  to  providing  for  the  agreement  men- 
tioned, also  provided  that  if  the  company  did  remove  a  case  from  the 
state  to  a  federal  court,  its  right  to  do  business  within  the  state 
should  cease,  and  its  permit  should  be  revoked.  It  was  held  there 
was  a  distinction  between  the  two  propositions,  and  one  might  be 
held  void  and  the  other  not.     *     *     * 

[Here  follows  a  statement  of  Barron  v.  Burnside,  121  U.  S.  186, 
7  Sup.  Ct.  931,  30  L.  Ed.  915,  holding  invalid  an  Iowa  statute  requir- 
ing, as  a  condition  precedent  to  a  permit  to  do  business  in  the  state, 
that  a  foreign  corporation  agree  not  to  remove  into  a  federal  court 
suit  brought  against  it  in  the  state  courts.  A  railroad  had  not  taken 
out  this  permit  and  its  agents  were  held  not  punishable  by  the  state 
for  acting  without  such  a  permit.] 

"The  most  thaf  can  be  contended  for  is  that  the  Barron  Case  holds 
that  where  the  statute  exacts  a  stipulation  in  advance,  as  a  condition 
of  granting  a  permit,  and  the  statute  is  not  separable  into  parts,  the 
whole  statute  is  void,  and  a  provision  for  withdrawing  the  permit. 
if  a  case  is  removed,  is  not  saved.  That  principle,  as  we  have  said. 
does  not  touch  this  case,  as  there  is  no  exaction  of  a  stipulation  at 
any  time. 

"It  has  not  been  decided  that  a  statute  which  has  no  requirement 
for  a  stipulation  or  agreement  not  to  remove  is  void  if  there  be  simply 
a  provision  therein  for  a  revocation  of  the  permit,  such  as  is  con- 
tained in  the  statute  under  review. 

"As  a  state  has  power  to  refuse  permission  to  a  foreign  insurance 
company  to  do  business  at  all  within  its  confines,  and  as  it  has  power 
to  withdraw  that  permission  when  once  given,  without  stating  any 
reason  for  its  action,  the  fact  that  it  may  give  what  some  may  think 
a  poor  reason  or  none  for  a  valid  act  is  immaterial. 

"Counsel  for  the  companies,  in  their  brief,  admit  that  the  state  'has 
the  right  at  any  time  to  pass  a  statute  expelling  a  company  or  revok- 
ing its  license,  and  the  validity  of  the  statute  of  expulsion  would  not 
be  affected  by  the  motives  of  the  state  in  so  doing,  even  though  the 
preamble  expressly  recited  that  the  license  was  revoked  because  the 
company  had  removed  a  case.  The  statute  would  be  valid — for  the 
company  had  no  constitutional  right  to  remain  in  the  state  any  longer 
than  it  chose  to  allow ;  and  the  statute  would  not  abridge  any  right 
of  removal — for,  as  the  case  had  already  been  fully  removed  before 
the  statute  was  in  existence,  the  right  of  removal  could  not  be  said 
to  have  been  hindered  or  abridged  by  a  statute  not  even  in  existence.' 

"Thus  it  is  admitted  that  a  state  has  power  to  prevent  a  company 
from  coming  into  its  domain,  and  that  it  has  power  to  take  away  its 
right  to  remain  after  having  been  permitted  once  to  enter,  and  that 
right  may  be  exercised  from  good  or  bad  motives ;  but  what  the  coin- 


256  FUNDAMENTAL    RIGHTS  (Part  2 

panies  deny  is  the  right  of  a  state  to  enact  in  advance  that  if  a  com- 
pany remove  a  case  to  a  federal  court  its  license  shall  be  revoked. 

"We  think  this  distinction  is  not  well  founded.  The  truth  is  that 
the  effect  of  the  statute  is  simply  to  place  foreign  insurance  com- 
panies upon  a  par  with  the  domestic  ones  doing  business  in  Kentucky. 
No  stipulation  or  agreement  being  required  as  a  condition  for  com- 
ing into  the  state  and  obtaining  a  permit  to  do  business  therein,  the 
mere  enactment  of  a  statute  which,  in  substance,  says  if  you  choose 
to  exercise  your  right  to  remove  a  case  into  a  federal  court,  your 
right  to  further  do  business  within  the  state  shall  cease  and  your  per- 
mit shall  be  withdrawn,  is  not  open  to  any  constitutional  objection. 
The  reasoning  in  the  Doyle  Case  we  think  is  good."  x 

[Day  and  Harlan,  JJ.,  dissented  in  an  opinion  by  Day,  J.] 


WESTERN  UNION  TELEGRAPH  CO.  v.  KANSAS  ex  rel. 
COLEMAN. 

(Supreme  Court  of  United  States,  1910.     216  U.  S.  1,  30  Sup.  Ct  190,  54  I* 
Ed.  355.) 

[Error  to  the  Supreme  Court  of  Kansas.  Since  1854  defendant 
company  had  done  a  general  telegraph  business  in  Kansas,  having 
entered  the  state  unconditionally  in  accordance  with  its  laws,  and 
had  constructed  lines  and  established  over  800  offices  there.  A  stat- 
ute of  1908  made  it  a  condition  of  foreign  corporations  entering  the 
state  or  continuing  to  do  local  business  in  it  that  they  should  pay 
to  the  state  school  fund  a  fee  ranging  from  one-tenth  to  one-fiftieth 
of  1  per  cent,  of  their  total  authorized  capital.  Defendant's  entire 
capitalization  was  $100,000,000,  on  which  the  fee  would  be  $20,100. 
Most  of  this  capital  was  employed  outside  of  Kansas.  Defendant 
refused  to  pay  this  fee,  and  the  state  brought  suit  to  oust  defendant 
from  the  exercise  of  corporate  powers  in  doing  intrastate  business  in 
Kansas.  A  decree  enjoining  its  transaction  of  such  business  was 
rendered,  not  affecting  its  interstate  or  federal  governmental  busi- 
ness. The  opinion  of  the  United  States  Supreme  Court  by  Harlan, 
].,  reversed  this  decree  as  in  violation  both  of  the  commerce  and  the 
due  process  clauses  of  the  Constitution — the  latter  because  being  in 
substance  a  tax  upon  property  outside  of  the  state.  The  opinion 
upon  the  former  point  is  printed  post,  p.  1122.] 

Mr.  Justice  White,  concurring:  It  is  shown  that  the  telegraph 
company,  many  years  ago,  went  into  the  state  of  Kansas,  constructed 
its  lines,  established  its  offices,  etc.,  and  has  since  been  engaged  in 
business,  both  interstate  and  local.  It  is  not  disputed  that  there  was 
no  law  in  the   state  forbidding  the  company  from   doing  as   it  did. 

i  See  National  Council  v.  State  Council,  203  U.  S.  151.  27  Sup.  Ct.  46,  51  L. 
Ed.  132  (1906) ;  Hammond  Packing  Co.  v.  Arkansas,  212  U.  S.  322,  342-343,  29 
Sup.  Ct.  370,  53  L.  Ed.  530,  15  Ann.  Cas.  645  (1909). 


Ch.  8)       CIVIL   RIGHTS   SECURED   UNDER   FOURTEENTH    AMENDMENT     ^TiT 

From  this  it  results  that  the  corporation  went  into  the  state,  con- 
structed its  plant,  and  carried  on  its  business,  on  the  implied  invita- 
tion, or,  at  least,  with  the  tacit  consent,  of  the  state.  No  one  ques- 
tions that  the  tax  which  is  here  in  dispute,  imposed  by  the  law  of 
Kansas  upon  the  corporation,  is  repugnant  to  the  Constitution  of  the 
United  States  because  wanting  in  due  process,  and  that  it  is  there- 
fore confiscatory  in  character.  The  tax  being  thus  conceded  to  be  in- 
herently vicious,  there  is,  of  course,  no  attempt  to  sustain  its  validity 
on  its  intrinsic  merits.  The  sole  contention  is  that,  although  the  tax 
is  void,  the  telegraph  company  may  not  invoke  the  protection  of  the 
Constitution  of  the  United  States,  because  it  is  in  a  position  where 
it  is  not  entitled  to  avail  itself  of  the  fundamental  safeguards  which  it 
was  the  purpose  of  the  Constitution  to  secure  to  all.  The  reasoning 
by  which  it  is  thus  sought  to  sustain  the  right  of  the  state  to  exert  a 
power  prohibited  by  the  Constitution  of  the  United  States,  and  to 
outlaw  the  corporation  by  depriving  it  of  the  protection  afforded  by 
that  instrument,  is  this : 

The  state,  it  is  insisted,  has  the  right  to  prevent  a  foreign  corpora- 
tion from  coming  into  its  jurisdiction  and  engaging  there  in  local 
business,  and  this  power,  in  the  nature  of  things,  must  include  the 
right  to  affix  such  conditions  to  the  privilege  of  coming  in  as  the 
state  chooses  to  impose.  Under  these  circumstances,  the  argument 
proceeds,  it  becomes  immaterial  to  consider  the  character  of  the  con- 
dition annexed  by  the  state  to  the  enjoyment  of  the  right  to  come  in. 
since,  although  such  conditions  be  repugnant  to  the  Constitution  of 
the  United  States,  and  destructive  of  the  most  obvious  and  sacred 
rights,  as  the  condition  only  becomes  operative  provided  the  corpora- 
tion 'elects  to  come  in,  therefore  the  condition  is  not  obligatory,  but 
is  voluntarily  assented  to  by  the  corporation,  and  hence  may  not  be 
by  it  questioned. 

But  even  if,  for  the  sake  of  the  argument  only,  the  general  cor- 
rectness of  the  proposition  be  conceded,  it  has  no  application  to  the 
case  here  presented.  Such  is  the  case,  since  this  cause  is  concerned 
not  with  the  power  of  the  state  to  prevent  a  corporation  from  com- 
ing in  for  the  purpose  of  doing  local  business,  and  to  attach  condi- 
tions to  the  privilege  of  so  coming  in,  but  involves  the  right  of  the 
state  to  confiscate  the  property  of  the  corporation  already  within  the 
state,  and  which  has  been  there  for  years,  devoted  to  the  doing  of 
local  business,  as  the  result  of  the  implied  invitation  or  tacit  consent 
of  the  state,  arising  from  its  failure  to  forbid  or  to  regulate  the  com- 
ing in.  In  other  words,  this  case  involves  determining,  not  how  far 
a  state  may  arbitrarily  exclude,  but  to  what  extent,  after  allowing  a 
corporation  to  come  in  and  acquire  property,  a  state  may  take  its 
property  within  the  state  without  compensation,  upon  the  theory  that 
the  corporation  is  not  in  the  state,  and  has  no  property  right  therein 
which  is  not  subject  to  confiscation.  The  difference  between  the 
Hall  Const.L, — 17 


258  FUNDAMENTAL    RIGHTS  (Part  2 

premise  upon  which  the  proposition  contended  for  rests  and  the 
situation  here  presented  seems  to  me  self-evident.  I  say  this  because 
my  mind  fails  to  perceive  how  the  doctrine  of  election  or  voluntary 
assumption  of  an  unconstitutional  burden  can  have  any  possible  ap- 
plication to  a  case  like  this. 

Let  me  illustrate.  The  telegraph  company  has  expended  in  the 
state  large  sums  of  money,  adequate  for  the  purpose  of  enabling  it 
to  do  both  local  and  interstate  business.  The  investment  is  there, 
and  its  magnitude,  it  is  fair  to  assume,  is,  in  part,  a  resultant  of  the 
requirements  of  the  local  business.  The  continued  beneficial  exist- 
ence of  the  investment  depends  upon  the  right  to  use  the  property 
for  the  purpose  for  which  it  was  acquired;  that  is,  for  both  inter- 
state and  local  business.  The  state  law  takes  the  property,  or  what 
is  equivalent  thereto,  imposes  an  unconstitutional  and  confiscatory 
burden,  upon  the  condition  that  such  burden  be  discharged  or  the 
local  business  be  abandoned.  What  possible  election  can  there  be? 
The  property  is  in  the  state.  It  has  been  invested  therein  for  the  very 
purpose  of  doing  local  as  well  as  other  business.  If  the  unconstitu- 
tional burden  be  not  assumed,  local  business  must  cease,  and  hence 
the  property  established  for  the  purpose  of  doing  the  local  business 
becomes  worthless  and  is  in  effect  confiscated.  If,  on  the  other 
hand,  the  unconstitutional  burden  be  borne,  a  like  result  takes 
place.     *     *     * 

Mr.  Justice  Holmes,  dissenting:  I  think  that  the  judgment  of  the 
supreme  court  of  Kansas  was  right,  and  it  will  not  take  me  long  to 
give  my  reasons.  I  assume  that  a  state  cannot  tax  a  corporation  on 
commerce  carried  on  by  it  with  another  state,  or  on  property  outside 
the  jurisdiction  of  the  taxing  state,  and  I  assume  further  that,  for 
that  reason,  a  tax  on  or  measured  by  the  value  of  the  total  stock  of 
a  corporation  like  the  Western  Union  Telegraph  Company  is  void. 
But  I  also  assume  that  it  is  not  intended  to  deny  or  overrule  what  has 
been  regarded  as  unquestionable  since  Bank  of  Augusta  v.  Earle,  13 
Pet.  519,  10  L.  Ed.  284,  that,  as  to  foreign  corporations  seeking  to 
do  business  wholly  within  a  state,  that  state  is  the  master,  and  may 
prohibit  or  tax  such  business  at  will.  Security  Mut.  L.  Ins.  Co.  v. 
Prewitt,  202  U.  S.  246,  249,  26  Sup.  Ct.  619,  50  L.  Ed.  1013,  1014, 
6  Ann.  Cas.  317;  Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28,  20 
Sup.  Ct.  518,  44  L.  Ed.  657;  Paul  v.  Virginia,  8  Wall.  168,  19  L. 
Ed.  357.  I  make  the  same  assumption  as  to  what  has  been  decided 
twice,  at  least,  since  I  have  sat  on  this  bench,  that  the  right  to  pro- 
hibit, regulate,  or  tax  foreign  corporations  in  respect  of  business  done 
wholly  within  a  state  is  not  taken  away  by  the  fact  that  they  also  are 
engaged  there  in  commerce  among  the  states.  Pullman  Co.  v.  Adams, 
189  U.  S.  420,  23  Sup.  Ct.  494,  47  L.  Ed.  877;  Allen  v.  Pullman's 
Palace  Car  Co.,  191  U.  S.  171,  24  Sup.  Ct.  39,  48  L.  Ed.  134. 

If  it  should  be  said  that  the  corporation  had  a  right  to  enter  the 
state  for  commerce  with  other  states,  and,  being  there,  had  the  same 


Cb.  8)       CIVIL   RIGHTS   SECURED    UNDER   FOURTEENTH   AMENDMENT      259 

right  to  use  its  property  as  others,  I  reply  that  this  begs  the  ques- 
tion, if  the  premises  be  granted.  If  the  corporation  has  the  right  to 
enter  for  one  purpose,  and  the  state  has  a  right  to  exclude  its  entry 
for  another,  the  two  rights  can  coexist.  To  say  that  the  disappear- 
ance of  the  latter  is  an  incident  of  the  ownership  of  property  there 
is  to  declare  that  what  is  allowed  only  for  a  limited  purpose  must 
have  general  results.  I  think  it  more  logical  and  more  true  to  the 
scheme  of  the  Union  to  recognize  that  what  comes  in  only  for  a 
special  purpose  can  claim  constitutional  protection  only  in  its  use 
for  that  purpose,  and  for  nothing  else.  That,  at  all  events,  has  been 
decided  in  the  cases  to  which  I  have  referred. 

Now  what  has  Kansas  done?  She  has  not  undertaken  to  tax  the 
Western  Union.  She  has  not  attempted  to  impose  an  absolute  lia- 
bility for  a  single  dollar.  She  simply  has  said  to  the  company  that, 
if  it  wants  to  do  local  business,  it  must  pay  a  certain  sum  of  money, 
just  as  Mississippi  said  to  the  Pullman  Company  that,  if  it  wanted 
to  carry  on  local  traffic,  it  must  pay  a  certain  sum.  It  does  not  mat- 
ter if  the  sum  is  extravagant.  Even  in  the  law  the  whole  generally 
includes  its  parts.  If  the  state  may  prohibit,  it  may  prohibit  with  the 
privilege  of  avoiding  the  prohibition  in  a  certain  way.  I  hardly  can 
suppose  that  the  provision  is  made  any  the  worse  by  giving  a  bad 
reason  for  it  or  by  calling  it  by  a  bad  name.  I  quite  agree  that  we 
must  look  through  form  to  substance.  The  whole  matter  is  left  in 
the  Western  Union's  hands.  If  the  license  fee  is  more  than  the  local 
business  will  bear,  it  can  stop  that  business  and  avoid  the  fee. 
Whether  economically  wise  or  not,  I  am  far  from  thinking  that  the 
charge  is  inherently  vicious  or  bad.  If  the  imposition  were  absolute, 
or  if  the  attempt  were  to  oust  the  corporation  from  the  state  if  it 
did  not  pay,  the  arguments  that  prevail  would  be  apposite.  But  the 
state  seeks  only  to  oust  the  corporation  from  that  part  of  its  busi- 
ness that  the  corporation  has  no  right  to  do  unless  the  state  gives 
leave. 

Of  course,  the  suggestion  on  the  other  side  is  that  this  is  an  at- 
tempt by  indirection  to  break  the  taboo  on  the  telegraph  company's 
business  with  other  states.  The  local  and  the  interstate  business  may 
be  necessary  each  to  the  other  to  make  the  whole  pay.  Or  the  tele- 
graph company  might  carry  on  the  local  business  at  a  loss,  for  the 
sake  of  popularity  or  other  indirect  sources  of  gain.  In  the  last 
case  the  fee  would  come  out  of  earnings  that  the  state  has  no  right 
to  touch.  But  these  considerations  do  not  reach  their  aim.  To  deny 
the  right  of  Kansas  to  do  as  it  chooses  with  the  local  business  is  to 
require  the  local  business  to  help  to  sustain  that  between  the  states. 
If  the  latter  does  not  pay  alone,  that  is  no  reason  for  cutting  down 
powers  that  up  to  this  time  the  states  always  have  possessed.  If  the 
telegraph  company  chooses  to  pay  the  fee  out  of  its  other  earnings, 
that  is  its  affair.  It  is  master  of  the  situation  and  can  stop  if  it  sees 
fit.     Exactly   this  argument  was   pressed   in   Pullman  Co.  v.   Adams, 


260  FUNDAMENTAL    RIGHTS  (Part  2 

189  U.  S.  420,  421,  23  Sup.  Ct.  494,  47  L.  Ed.  877,  878,  and  was 
rejected  without  dissent.  See  Ashley  v.  Ryan,  153  U.  S.  436,  444, 
14  Sup.  Ct.  865,  38  L.  Ed.  773,  777,  4  Interest.  Com.  R.  CG4. 

What  I  have  said  shows,  I  think,  the  fallacy  involved  in  talking 
about  unconstitutional  conditions.  Of  course,  if  the  condition  was 
the  making  of  a  contract  contrary  to  the  policy  of  the  Constitution 
of  the  United  States,  the  contract  would  be  void.  That  was  all  that 
was  decided  in  Southern  P.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup. 
Ct.  44,  36  L.  Ed.  942.  But  it  does  not  follow  that,  if  keeping  the 
contract  was  made  a  condition  of  staying  in  the  state,  the  condition 
would  be  void.  I  confess  my  inability  to  understand  how  a  condi- 
tion can  be  unconstitutional  when  attached  to  a  matter  over  which  a 
state  has  absolute  arbitrary  power.  This  court  was  equally  unable 
to  understand  it  in  Horn  Silver  Min.  Co.  v.  New  York,  143  U.  S. 
305,  315,  12  Sup.  Ct.  403,  36  L.  Ed.  164,  16S,  4  Interest.  Com.  R.  57. 
In  that  case  it  was  said :  "Having  the  absolute  power  of.  excluding 
the  foreign  corporation,  the  state  may,  of  course,  impose  such  con- 
ditions upon  permitting  the  corporation  to  do  business  within  its  lim- 
its as  it  may  judge  expedient;  and  it  may  make  the  grant  or  priv- 
ilege dependent  upon  the  payment  of  a  specific  license  tax,  or  a  sum 
proportioned  to  the  amount  of  its  capital." 

The  consequence  is  the  measure  of  the  condition.  When  the  only 
consequence  of  a  breach  is  a  result  that  the  state  may  bring  about  di- 
rectly in  the  first  place,  the  condition  cannot  be  unconstitutional.  If, 
after  this  decision,  the  state  of  Kansas,  without  giving  any  reason, 
sees  fit  simply  to  prohibit  the  Western  Union  Telegraph  Company 
from  doing  any  more  local  business  there,  or  from  doing  local  busi- 
ness until  it  has  paid  $20,100,  I  shall  be  curious  to  see  upon  what 
ground  that  legislation  will  be  assailed.  I  am  aware  that  the  battle 
has  raged  with  varying  fortunes  over  this  matter  of  unconstitutional 
conditions,  but  it  appears  to  me  ground  for  regret  that  the  court  so 
soon  should  abandon  its  latest  decision.  Security  Mut.  L.  Ins.  Co.  v. 
Prewitt,  202  U.  S.  246,  26  Sup.  Ct.  619,  50  L.  Ed.  1013,  6  Ann.  Cas. 
317. 

Finally,  in  the  absence  of  contract,  the  power  of  the  state  is  not  af- 
fected by  the  fact  that  the  corporation  concerned  already  is  in  the 
state,  or  even  has  been  there  for  some  time.  Waters-Pierce  Oil  Co. 
v.  Texas,  177  U.  S.  28,  20  Sup.  Ct.  518,  44  L.  Ed.  657;  Na- 
tional Council  v.  State  Council  of  Virginia,  203  U.  S.  151,  163,  27- 
Sup.  Ct.  46,  51  L.  Ed.  132,  137.  Whatever  the  corporation  may  do 
or  acquire  there  is  infected  with  the  original  weakness  of  dependence 
upon  the  will  of  the  state.  This  is  a  general  principle,  illustrated  by 
many  cases.  *  *  *  In  Horn  Silver  Min.  Co.  v.  New  York,  143 
U.  S.  305,  12  Sup.  Ct.  403,  36  L.  Ed.  164,  4  Interst.  Com.  Rep.  57, 
the  corporation  showed  by  its  answer  that  it  had  employed  part  of 
its  capital  in  manufacturing  in  New  York.  It  had  got  intp  the 
state  and  was  at  work  there,  yet  it  was  held  liable  to  pay  a  percentage 


Ch.  8)       CIVIL    RiniTTS   SECURED   UNDER   FOURTEENTH   AMENDMENT      261 

of  its  entire  capital,  although  the  greater  part  was  outside  the  state. 
But  furthermore,  it  is  a  short  answer  to  this  part  of  the  argument 
that,  in  the  present  case,  according  to  decisions  relied  upon  by  the 
majority,  the  slate  could  not  have  prevented  the  entry  of  the  corpora- 
tion, because  it  entered  for  the  purpose  of  commerce  with  other  states. 
[Fuller,  C.  J.,  and  McKknna,  J.,  concurred  in  this  dissent,  as 
did  Peckham,  J.,  before  his  death.]  | 

i  Accord  (with  the  majority  opinion):  Pullman  Co.  v.  Kansas  ex  rel.  Cole- 
man, 216  U.  S.  50,  30  Sup.  Ct.  232.  54  U  Ed.  378  (1010)  (sleeping  car  company)  i 
Ludwig  v.  Western  Union  Tel.  Co.,  210  D.  S.  1  W,  30  Sup.  Ct.  280,  54  L.  Ed. 
423  0010);  Southern  R.  Co.  v.  Greene,  216  U.  S.  400,  30  Sup.  Ct.  2S7.  54  L. 
Ed.  530,  17  Ann.  Cas.  1247  (1010).  See  particularly  the  opinion  in  the  latter 
case,  post,  p.  623.  Compare  the  opinions  of  White,  J.,  and  of  Holmes,  J.,  in 
the  Pullman  Case  above  (where  the  property  in  use  could  be  easily  with- 
drawn from  the  state),  in  216  U.  S.  at  pages  63,  64,  and  75,  30  Sup.  Ct  232, 
54  L.  Ed.  378. 

In  Ilerndon  v.  Chicago,  R.  I.  &  P.  R.  Co.,  218  U.   S.  135,  158.   159,  30  Sup. 
Ct  833,  630,  54  L.  Ed.  970  (1910),  Day,  J.,  said  (holding  invalid  a  Missouri 
statute  requiring  the  secretary  of  state  to  revoke  the  license*  to  do  in' 
business  of  any  foreign  railway  corporation  that  removed  to  a  federal  court 
or  instituted  therein  any  suit  between  it  and  citizens  of  Missouri):   "Applying 
the  principles  announced  in  those  cases  [cited  above  in  this  note]  it  is  evident, 
that  the  act  in  controversy  cannot  stand,  in  view  of  the  provisions  of  the  Con- 
stitution of  the  United  States.     Moreover,  this  is  not  a  case  where  the  stale 
has  undertaken  to  prevent  the  coming  of  the  corporation  Into  its  borders  for 
the  purpose  of  carrying  on  business.     The  corporation  was  within   thi 
complying  with  its  laws,  and  had  acquired,  under  the  sanction  of  the  - 
large  amount  of  property  within  its  borders,  and  thus  had  become  a  person 
within  the  state,  within  the  meaning  of  the  Constitution,  and  entitled  to  its 
protection.     Under  the  statute  in  controversy,  a  domestic  railroad  i 
ring  an  action  in  the  federal  court,  or,  in  a  proper  case,  remi 
thereto,  without  being  subject  to  the  forfeiture  of  its  right  to  do  bus  i 
to  the  imposition  of  penalties  provided  for  in   the  act     In  all  the  cases  in 
this  court,  discussing  the  right  of  the  states  to  exclude  foreign  corporations, 
and  to  prevent  them  from  removing  cases  to  the  federal  court 
conceded  that  while  the  right  to  do  local  business  within  the  state  may  not 
have  been  derived  from  the  federal   Constitution,  the  right  to  resort  to  the 
federal  courts  is  a  creation  of  the  Constitution  of  the  United  States  and  the 
statutes  passed  in  pursuance  thereof." 

in  Waters-Pierce  OL1  Co.  v.  Texas,  177  O.  S  28,  20  Sup.  Ct  518,  -h  b.  Ed. 
657  (1900),  it  was  held  that  a  foreigu  corporation,  doing  both  local  and  inter- 
state business  in  Texas  under  an  unexpired  License,  might  be  excluded  from 
the  former  as  a  penalty  for  violating  the  state  auti-trust  act. 

Municipal  Corporations. — As  to  how  far  the  federal  Constitution  protects 
the  property  or  powers  of  municipal  corporations  from  state  legislative  action, 
see  Hunter  v.  Pittsburg,  207  U.  S.  161,  28  Sup.  Ct  -to.  52  L.  Kd.  151  (1 


262  FUNDAMENTAL    RIGHTS  (Part  2 


CHAPTER  IX 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW: 
PROCEDURE 


SECTION  1.— DUE  PROCESS 


DEN  ex  dem.  MURRAY  v.  HOBOKEN  LAND  AND  IMPROVE- 
MENT CO. 

(Supreme  Court  of  United  States,  1S55.     18  How.  272,  15  L.  Ed.  372.) 

[Certificate  of  division  of  opinion  from  the  federal  Circuit  Court 
for  New  Jersey.  An  act  of  Congress  of  May  15,  1820,  provided  that 
when  a  federal  revenue  collector  was  found  indebted  to  the  United 
States  by  the  Treasury  Department  a  distress  warrant  could  be  issued 
by  the  agent  of  the  department  for  the  balance  due,  and  that  from  the 
time  of  the  record  of  the  levy  on  the  debtor's  property  under  this 
warrant  a  lien  for  the  amount  due  should  exist  on  the  lands  of  the 
debtor.  Under  this  law  a  distress  warrant  was  issued  and  levy  made 
upon  the  lands  of  Swartwout,  federal  collector  of  the  port  of  New 
York,  and  defendant  claimed  title  under  a  sale  by  virtue  of  this  war- 
rant. Plaintiff  claimed  under  an  execution  upon  a  judgment  against 
Swartwout,  rendered  subsequently  to  the  record  of  the  levy  under  the 
warrant.  The  judges  were  divided  in  opinion  upon  plaintiff's  action 
of  ejectment,  and  asked  the  opinion  of  this  court  as  to  the  validity  of 
the  warrant.] 

Mr.  Justice  Curtis.  *  *  *  [The  validity  of  the  warrant]  is  de- 
nied by  the  plaintiffs,  upon  the  ground  that  so  much  of  the  act  of 
Congress  as  authorized  it,  is  in  conflict  with  the  Constitution  of  the 
United  States. 

In  support  of  this  position,  the  plaintiff  relies  on  that  part  of  the 
first  section  of  the  third  article  of  the  Constitution  which  requires  the 
judicial  power  of  the  United  States  to  be  vested  in  one  Supreme  Court 
and  in  such  inferior  courts  as  Congress  may,  from  time  to  time,  ordain 
and  establish;  the  judges  whereof  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  continuance  in  office. 
Also,  on  the  second  section  of  the  same  article,  which  declares  that  the 
judicial  power  shall  extend  to  controversies  to  which  the  United  States 
shall  be  a  party. 

It  must  be  admitted  that,  if  the  auditing  of  this  account,  and  the 
ascertainment  of  its  balance,  and  the  issuing  of  this  process,  was  an 


Ch.  0)  rn'E  process  and  equality:    proceduhk  263 

exercise  of  the  judicial  power  of  the  United  States,  the  proceeding 
was  void ;  for  the  officers  who  performed  these  acts  could  exercise  no 
part  of  that  judicial  power.  They  neither  constituted  a  court  of  the 
United  States,  nor  were  they,  or  either  of  them,  so  connected  with  any 
such  court  as  to  perform  even  any  of  the  ministerial  duties  which  arise 
out  of  judicial  proceedings. 

The  question,  whether  these  acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry,  raised  by  the  further  objection  of  the  plaintiff,  that  the  effect 
of  the  proceedings  authorized  by  the  act  in  question  is  to  deprive  the 
party,  against  whom  the  warrant  issues,  of  his  liberty  and  property, 
"without  due  process  of  law" ;  and,  therefore,  is  in  conflict  with  the 
fifth  article  of  the  amendments  of  the  Constitution. 

Taking  these  two  objections  together,  they  raise  the  questions, 
whether,  under  the  Constitution  of  the  United  States,  a  collector  of  the 
customs,  from  whom  a  balance  of  accoupt  has  been  found  to  be  due 
by  accounting  officers  of  the  treasury,  designated  for  that  purpose  by 
law,  can  be  deprived  of  his  liberty,  or  property,  in  order  to  enforce 
payment  of  that  balance,  without  the  exercise  of  the  judicial  power  of 
the  United  States,  and  yet  by  due  process  of  law,  within  the  meaning 
of  those  terms  in  the  Constitution;  and  if  so,  then,  secondly,  whether 
the  warrant  in  question  was  such  due  process  of  law  ? 

The  words,  "due  process  of  law,"  were  undoubtedly  intended  to 
convey  the  same  meaning  as  the  words,  "by  the  law  of  the  land,"  in 
Magna  Charta.  Lord  Coke,  in  his  commentary  on  those  words  (2  Inst. 
50),  says  they  mean  due  process  of  law.  The  constitutions  which  had 
been  adopted  by  the  several  states  before  the  formation  of  the  federal 
Constitution,  following  the  language  of  the  great  charter  more  closely, 
generally  contained  the  words,  "but  by  the  judgment  of  his  peers,  or  the 
law  of  the  land."  The  ordinance  of  Congress  of  July  13,  1787,  for 
the  government  of  the  territory  of  the  United  States  northwest  of  the 
river  Ohio,  used  the  same  words. 

The  Constitution  of  the  United  States,  as  adopted,  contained  the 
provision,  that  "the  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury."  When  the  fifth  article  of  amendment  contain- 
ing the  words  now  in  question  was  made,  the  trial  by  jury  in  criminal 
cases  had  thus  already  been  provided  for.  By  the  sixth  and  seventh 
articles  of  amendment,  further  special  provisions  were  separately  made 
for  that  mode  of  trial  in  civil  and  criminal  cases.  To  have  followed. 
as  in  the  state  Constitutions,  and  in  the  ordinance  of  1787,  the  words 
of  Magna  Charta,  and  declared  that  no  person  shall  be  deprived  of  his 
life,  liberty,  or  property  but  by  the  judgment  of  his  peers  or  the  law  of 
the  land,  would  have  been  in  part  superfluous  and  inappropriate.  To 
have  taken  the  clause,  "law  of  the  land,"  without  its  immediate  con- 
text, might  possibly  have  given  rise  to  doubts,  which  would  be  effect- 
ually dispelled  by  using  those  words  which  the  great  commentator  on 
Magna  Charta  had  declared  to  be  the  true  meaning  of  the  phrase,  "law 


264  FUNDAMENTAL    RIGHTS  (Part  2 

of  the  land,"  in  that  instrument,  and  which  were  undoubtedly  then 
received  a"s  their  true  meaning. 

That  the  warrant  now  in  question  is  legal  process,  is  not  denied.  It 
was  issued  in  conformity  with  an  act  of  Congress.  But  is  it  "due 
process  of  law"?  The  Constitution  contains  no  description  of  those 
processes  which  it  was  intended  to  allow  or  forbid.  It  does  not  even 
declare  what  principles  are  to  be  applied  to  ascertain  whether  it  be  due 
process.  It  is  manifest  that  it  was  not  left  to  the  legislative  power  to 
enact  any  process  which  might  be  devised.  The  article  is  a  restraint 
on  the  legislative  as  well  as  on  the  executive  and  judicial  powers  of  the 
government,  and  cannot  be  so  construed  as  to  leave  Congress  free  to 
make  any  process  "due  process  of  law,"  by  its  mere  will.  To  what 
principles,  then,  are  we  to  resort  to  ascertain  whether  this  process, 
enacted  by  Congress,  is  due  process  ?  To  this  the  answer  must  be  two- 
fold. We  must  examine  the  Constitution  itself,  to  see  whether  this 
process  be  in  conflict  with  any  of  its  provisions.  If  not  found  to  be 
so,  we  must  look  to  those  settled  usages  and  modes  of  proceeding 
existing  in  the  common  and  statute  law  of  England,  before  the  emigra- 
tion of  our  ancestors,  and  which  are  shown  not  to  have  been  unsuited 
to  their  civil  and  political  condition  by  having  been  acted  on  by  them 
after  the  settlement  of  this  country.  We  apprehend  there  has  been  no 
period,  since  the  establishment  of  the  English  monarchy,  when  there 
has  not  been,  by  the  law  of  the  land,  a  summary  method  for  the  re- 
covery of  debts  due  to  the  Crown,  and  especially  those  due  from 
receivers  of  the  revenues.  It  is  difficult,  at  this  day,  to  trace  with 
precision  all  the  proceedings  had  for  these  purposes  in  the  earliest 
ages  of  the  common  law.  That  they  were  summary  and  severe,  and 
had  been  used  for  purposes  of  oppression,  is  inferable  from  the  fact 
that  one  chapter  of  Magna  Charta  treats  of  their  restraint.  It  de- 
clares: "We  or  our  bailiffs  shall  not  seize  any  land  or  rent  for  any 
debt  as  long  as  the  present  goods  and  chattels  of  the  debtor  do  suffice 
to  pay  the  debt,  and  the  debtor  himself  be  ready  to  satisfy  there- 
for."    *     *     * 

By  the  common  law,  the  body,  lands,  and  goods  of  the  king's  debtor 
were  liable  to  be  levied  on  to  obtain  payment.  In  conformity  with  the 
above  provision  of  Magna  Charta,  a  conditional  writ  was  framed,  com- 
manding the  sheriff  to  inquire  of  the  goods  and  chattels  of  the  debtor, 
and,  if  they  were  insufficient,  then  to  extend  on  the  lands.  3  Co.  12  b ; 
Com.  Dig.  Debt,  G.  2 ;  2  Inst.  19.  But  it  is  said  that  since  the  statute 
33  Hen.  VIII,  c.  39,  the  practice  has  been  to  issue  the  writ  in  an  abso- 
lute form,  without  requiring  any  previous  inquisition  as  to  the  goods. 
Gilbert's  Exch.  127. 

To  authorize  a  writ  of  extent,  however,  the  debt  must  be  matter  of 
record  in  the  king's  exchequer.  The  33  Hen.  VIII,  c.  39,  §  50,  made  all 
specialty  debts  due  to  the  king  of  the  same  force  and  effect  as  debts 
by  statute  staple,  thus  giving  to  such  debts  the  effect  of  debts  of  rec- 
ord.   In  regard  to  debts  due  upon  simple  contract,  other  than  those  due 


Ch.  9)  DDE   PROCESS  AND   EQUALITY  i      PROCEDURE  2G5 

from  collectors  of  the  revenue  and  other  accountants  of  the  Crown,  the 
practice,  from  very  ancient  times,  has  been  to  issue  a  commission  to 
inquire  as  to  the  existence  of  the  debt. 

Tins  commission  being  returned,  the  debt  found  was  thereby  evi- 
denced by  a  record,  and  an  extent  could  issue  thereon.  No  notice  was 
required  to  be  given  to  the  alleged  debtor  of  the  execution  of  this 
commission  (2  Tidd's  Pr.  1047),  though  it  seems  that,  in  some  cases, 
an  order  for  notice  might  be  obtained  (1  Yes.  269).  Formerly,  no 
witnesses  were  examined  by  the  commission  (Chitty's  Prerog.  267 ; 
West,  22);  the  affidavit  prepared  to  obtain  an  order  for  an  immediate 
extent  being  the  only  evidence  introduced.  But  this  practice  has  been 
recently  changed.  11  Price,  29.  By  the  statute  13  Eliz.  ch.  4,  balances 
due  from  receivers  of  the  revenue  and  all  other  accountants  of  the 
Crown  were  placed  on  the  same  footing  as  debts  acknowledged  to  be 
due  by  statute  staple.  These  balances  were  found  by  auditors,  the 
particular  officers  acting  thereon  having  been,  from  time  to  time,  varied 
by  legislation  and  usage.  The  different  methods  of  accounting  in 
ancient  and  modern  times  are  described  in  Mr.  Price's  Treatise  on  the 
Law  and  Practice  of  the  Exchequer,  ch.  9.  Such  balances,  when  found, 
were  certified  to  what  was  called  the  pipe  office,  to  be  given  in  charge 
to  the  sheriffs  for  their  levy.    Price,  231. 

If  an  accountant  failed  to  render  his  accounts,  a  process  was  issued, 
termed  a  capias  nomine  districtionis,  against  the  body,  goods,  and 
lands  of  the  accountant.    Price,  162,  233,  note  3. 

This  brief  sketch  of  the  modes  of  proceeding  to  ascertain  and  en- 
force payment  of  balances  due  from  receivers  of  the  revenue  in  Eng- 
land, is  sufficient  to  show  that  the  methods  of  ascertaining  the  existence 
and  amount  of  such  debts,  and  compelling  their  payment,  have  varied 
widely  from  the  usual  course  of  the  common  law  on  other  subjects ; 
and  that,  as  respects  such  debts  due  from  such  officers,  "the  law  of 
the  land"  authorized  the  employment  of  auditors,  and  an  inquisi- 
tion without  notice,  and  a  species  of  execution  bearing  a  very  close 
resemblance  to  what  is  termed  a  warrant  of  distress  in  the  act  of  1820. 
now  in  question. 

It  is  certain  that  this  diversity  in  "the  law  of  the  land"  between 
public  defaulters  and  ordinary  debtors  was  understood  in  this  country, 
and  entered  into  the  legislation  of  the  colonies  and  provinces,  and  more 
especially  of  the  states,  after  the  Declaration  of  Independence  and  be- 
fore the  formal  inn  of  the  Constitution  of  the  United  States.  Not  only 
was  the  process  of  distress  in  nearly  or  quite  universal  use  for  the 
collection  of  taxes,  but  what  was  generally  termed  a  warrant  of  dis- 
tress, running  against  the  body,  goods,  and  chattels  of  defaulting  re- 
ceivers of  public  money,  was  issued  to  some  public  officer,  to  whom  was 
committed  the  power  to  ascertain  the  amount  of  the  default,  and  by 
such  warrant  proceed  to  collect  it.  *  *  *  [Here  follow  references  to 
similar  legislation  early  passed  by  the  states  and  by  Congress.] 

Tested  by  the  common  and  statute  law  of  England  prior  to  the  emi- 


266  t  FUNDAMENTAL    RIGHTS  (Part  2 

gration  of  our  ancestors,  and  by  the  laws  of  many  of  the  states  at  the 
time  of  the  adoption  of  this  amendment,  the  proceedings  authorized  by 
the  act  of  1820  cannot  be  denied  to  be  due  process  of  law,  when 
applied  to  the  ascertainment  and  recovery  of  balances  due  to  the 
government  from  a  collector  of  customs,  unless  there  exists  in  the 
Constitution  some  other  provision  which  restrains  Congress  from  au- 
thorizing such  proceedings.  For,  though  "due  process  of  law"  general- 
ly implies  and  includes,  actor,  reus,  judex,  regular  allegations,  oppor- 
tunity to  answer,  and  a  trial  according  to  some  settled  course  of  judi- 
cial proceedings  (2  Instv  47,  50;  Hoke  v.  Henderson,  15  N.  C.  15,  25 
Am.  Dec.  677;  Taylor  v.  Porter,  4  Hill  [N.  Y.]  146,  40  Am.  Dec.  274; 
Vanzant  v.  Waddel,  2  Yerg.  [Tenn.]  260;  State  Bank  v.  Cooper,  2 
Yerg.  [Tenn.]  599,  24  Am.  Dec.  517;  Jones'  Heirs  v.  Perry,  10  Yerg. 
[Tenn.]  59,  30  Am.  Dec.  430;  Greene  v.  Briggs,  1  Curt.  311,  Fed.  Cas. 
No.  5,764),  yet,  this  is  not  universally  true.  There  may  be,  and  we 
have  seen  that  there  are,  cases,  under  the  law  of  England  after  Magna 
Charta,  and  as  it  was  brought  to  this  country  and  acted  on  here,  in 
which  process,  in  its  nature  final,  issues  against  the  body,  lands,  and 
goods  of  certain  public  debtors  without  any  such  trial ;  and  this  brings 
us  to  the  question,  whether  those  provisions  of  the  Constitution  which 
relate  to  the  judicial  power  are  incompatible  with  these  proceedings? 

That  the  auditing  of  the  accounts  of  a  receiver  of  public  moneys 
may  be,  in  an  enlarged  sense,  a  judicial  act,  must  be  admitted  So  are 
all  those  administrative  duties  the  performance  of  which  involves  an ' 
inquiry  into  the  existence  of  facts  and  the  application  to  them  of  rules 
of  law.  In  this  sense  the  act  of  the  President  in  calling  out  the  militia 
under  the  act  of  1795  (Martin  v.  Mott,  12  Wheat.  19,  6  L.  Ed.  537), 
or  of  a  commissioner  who  makes  a  certificate  for  the  extradition  of  a 
criminal,  under  a  treaty,  is  judicial.  But  it  is  not  sufficient  'to  bring 
such  matters  under  the  judicial  power,  that  they  involve  the  exercise 
of  judgment  upon  law  and  fact.  United  States  v.  Ferreira,  13  How. 
40,  14  L.  Ed.  42.  It  is  necessary  to  go  further,  and  show  not  only 
that  the  adjustment  of  the  balances  due  from  accounting  officers  may 
be,  but  from  their  nature  must  be,  controversies  to  which  the  United 
States  is  a  party,  within'  the  meaning  of  the  second  section  of  the 
third  article  of  the  Constitution.  We  do  not  doubt  the  power  of  Con- 
gress to  provide  by  law  that  such  a  question  shall  form  the  subject- 
matter  of  a  suit  in  which  the  judicial  power  can  be  exerted.  The  act 
of  1820  makes  such  a  provision  for  reviewing  the  decision  of  the  ac- 
counting officers  of  the  treasury.  But,  until  reviewed,  it  is  final  and 
binding;  and  the  question  is,  whether  its  subject-matter  is  necessarily, 
and  without  regard  to  the  consent  of  Congress,  a  judicial  controversy. 
And  we  are  of  opinion  it  is  not. 

Among  the  legislative  powers  of  Congress  are  the  powers  "to  lay  and 
collect  taxes,  duties,  imposts,  and  excises,  to  pay  the  debts,  and  provide 
for  the  common  defence  and  welfare  of  the  United  States;  to  raise 
and  support  armies ;   to  provide  and  maintain  a  navy ;   and  to  make  all 


Ch.  9)  DUE   PUOCESS  AND   EQUALITY:      PKOCELH  i:i:  2tJ7 

laws  which  may  be  necessary  and  proper  for  carrying  into  execution 
those  powers."  What  officers  should  be  appointed  to  collect  the  reve- 
nue thus  authorized  to  be  raised,  and  to  disburse  it  in  payment  of  the 
debts  of  the  United  States;  what  duties  should  be  required  of  them; 
when  and  how,  and  to  whom  they  should  account,  and  what  security 
they  should  furnish,  and  to  what  remedies  they  should  be  subjected  to 
enforce  the  proper  discharge  of  their  duties,  Congress  was  to  deter- 
mine. In  the  exercise  of  their  powers,  they  have  required  collectors  of 
customs  to  be  appointed ;  made  it  incumbent  on  them  to  account,  from 
time  to  time,  with  certain  officers  of  the  treasury  department,  and  to 
furnish  sureties,  by  bond,  for  the  payment  of  all  balances  of  the  public 
money  which  may  become  due  from  them.  And  by  the  act  of  1820, 
now  in  question,  they  have  undertaken  to  provide  summary  means  to 
compel  these  officers — and  in  case  of  their  default,  their  sureties — to 
pay  such  balances  of  the  public  money  as  may  be  in  their  hands. 

The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  that  power  into  effect, 
includes  all  known  and  appropriate  means  of  effectually  collecting  and 
disbursing  that  revenue,  unless  some  such  means  should  be  forbidden 
in  some  other  part  of  the  Constitution.  The  power  has  not  been  ex- 
hausted by  the  receipt  of  the  money  by  the  collector.  Its  purpose  is 
to  raise  money  and  use  it  in  payment  of  the  debts  of  the  government ; 
and,  whoever  may  have  possession  of  the  public  money,  until  it  is 
actually  disbursed,  the  power  to  use  those  known  and  appropriate^ 
means  to  secure  its  due  application  continues. 

As  we  have  already  shown,  the  means  provided  by  the  act  of  1820. 
do  not  differ  in  principle  from  those  employed  in  England  from  remote 
antiquity — and  in  many  of  the  states,  so  far  as  we  know  without  ob- 
jection— for  this  purpose,  at  the  time  the  Constitution  was  formed. 
It  may  be  added,  that  probably  there  are  few  governments  which  do 
or  can  permit  their  claims  for  public  taxes,  either  on  the  citizen  or  the 
officer  employed  for  their  collection  or  disbursement,  to  become  sub- 
jects of  judicial  controversy,  according  to  the  course  of  the  law  of  the 
land.  Imperative  necessity  has  forced  a  distinction  between  -such 
claims  and  all  others,  which  has  sometimes  been  carried  out  by  sum- 
mary methods  of  proceeding,  and  sometimes  by  systems  of  fines  and 
penalties,  but  always  in  some  way  observed  and  yielded  to.    *    *     * 

ll  was  strongly  urged  by  the  plaintiff's  counsel,  that  though  the 
government  might  have  the  rightful  power  to  provide  a  summary 
remedy  for  the  recovery  of  its  public  dues,  aside  from  any  exercise  of 
the  judicial  power,  yet  it  had  not  done  so  in  this  instance.  That  it  had 
enabled  the  debtor  to  apply  to  the  judicial  power,  and  having  thus 
brought  the  subject-matter  under  its  cognizance,  it  was  not  for  the 
government  to  say  that  the  subject-matter  was  not  within  the  judicial 
power.  That  if  it  were  not  in  its  nature  a  judicial  controversy,  Con- 
gress could  not  make  it  such,  nor  give  jurisdiction  over  it  to  the  district 
courts.     In  short,  the  argument  is,  that  if  this  were  not,  in  its  nature. 


268  FUNDAMENTAL    EIGHTS  (Part    2 

a  judicial  controversy,  Congress  could  not  have  conferred  on  the  dis- 
trict court  power  to  determine  it  upon  a  bill  filed  by  the  collector.  If 
it  be  such  a  controversy,  then  it  is  subject  to  the  judicial  power  alone; 
and  the  fact  that  Congress  has  enabled  the  district  court  to  pass  upon 
it,  is  conclusive  evidence  that  it  is  a  judicial  controversy. 

We  cannot  admit  the  correctness  of  the  last  position.  If  we  were 
of  opinion  that  this  subject-matter  cannot  be  the  subject  of  a  judicial 
controversy,  and  that,  consequently,  it  cannot  be  made  a  subject  of 
judicial  cognizance,  the  consequence  would  be,  that  the  attempt  to 
bring  it  under  the  jurisdiction  of  a  court  of  the  United  States  would  be 
ineffectual.  But  the  previous  proceedings  of  the  executive  depart- 
ment would  not  necessarily  be  affected  thereby.  They  might  be  final, 
instead  of  being  subject  to  judicial  review. 

But  the  argument  leaves  out  of  view  an  essential  element  in  the  case, 
and  also  assumes  something  which  cannot  be  admitted. 

It  assumes  that  the  entire  subject-matter  is  or  is  not,  in  every  mode 
of  presentation,  a  judicial  controversy,  essentially  and  in  its  own  na- 
ture, aside  from  the  will  of  Congress  to  permit  it  to  be  so;  and  it  leaves 
out  of  view  the  fact  that  the  United  States  is  a  party. 

It  is  necessary  to  take  into  view  some  settled  rules. 

Though,  generally,  both  public  and  private  wrongs  are  redressed 
through  judicial  action,  there  are  more  summary  extra-judicial  reme- 
dies for  both.  An  instance  of  extra-judicial  redress  of  a  private  wrong 
is,  the  recapture  of  goods  by  their  lawful  owner ;  of  a  public  wrong,  by 
a  private  person,  is  the  abatement  of  a  public  nuisance;  and  the  re- 
covery of  public  dues  by  a  summary  process  of  distress,  issued  by 
some  public  officer  authorized  by  law,  is  an  instance  of  redress  of  a 
particular  kind  of  public  wrong,  by  the  act  of  the  public  through  its 
authorized  agents.  There  is,  however,  an  important  distinction  be- 
tween these.  Though  a  private  person  may  retake  his  property,  or 
abate  a  nuisance,  he  is  directly  responsible  for  his  acts  to  the  proper 
judicial  tribunals.  His  authority  to  do  these  acts  depends  not  merely 
on  the  law,  but  upon  the  existence  of  such  facts  as  are,  in  point  of 
law,  sufficient  to  constitute  that  authority ;  and  he  may  be  required,  by 
an  action  at  law,  to  prove  those  facts ;  but  a  public  agent,  who  acts 
pursuant  to  the  command  of  a  legal  precept,  can  justify  his  act  by  the 
production  of  such  precept.  He  cannot  be  made  responsible  in  a 
judicial  tribunal  for  obeying  the  lawful  command  of  the  government ; 
and  the  government  itself,  which  gave  the  command,  cannot  be  sued 
without  its  own  consent. 

At  the  same  time  there  can  be  no  doubt  that  the  mere  question, 
whether  a'  collector  of  the  customs  is  indebted  to  the  United  States, 
may  be  one  of  judicial  cognizance.  It  is  competent  for  the  United 
States  to  sue  any  of  its  debtors  in  a  court  of  law.  It  is  equally  clear 
that  the  United  States  may  consent  to  be  sued,  and  may  yield  this 
consent  upon  such  terms  and  under  such  restrictions  as  it  may  think 
just.    Though  both  the  marshal  and  the  government  are  exempt  from 


Ch.  9)  due  n;<>(  i'ss  and  kqkality:    PRorrcnuRE  209 

suit,  for  anything  done  by  the  former  in  obedience  to  legal  process, 
still,  Congress  may  provide  by  law,  that  both,  or  either,  shall,  in  a  par- 
ticular class  of  cases,  and  under  such  restrictions  as  they  may  think 
proper  to  impose,  come  into  a  court  of  law  or  equity  and  abide  by  its 
determination.  The  United  States  may  thus  place  the  government 
upon  the  same  ground  which  is  occupied  by  private  persons  who  pro- 
ceed to  take  extra-judicial  remedies  for  their  wrongs,  and  they  may 
do  so  to  such  extent,  and  with  such  restrictions,  as  may  be  thought  fit. 

When,  therefore,  the  act  of  1820  enacts,  that  after  the  levy  of  the 
distress  warrant  has  been  begun,  the  collector  may  bring  before  a  dis- 
trict court  the  question,  whether  he  is  indebted  as  recited  in  the  war- 
rant, it  simply  waives  a  privilege  which  belongs  to  the  government, 
and  consents  to  make  the  legality  of  its  future  proceedings  dependent 
on  the  judgment  of  the  court;  as  we  have  already  stated  in  case  of  a 
private  person,  every  fact  upon  which  the  legality  of  the  extra-judicial 
remedy  depends  may  be  drawn  in  question  by  a  suit  against  him.  The 
United  States  consents  that  this  fact  of  indebtedness  may  be  drawn 
in  question  by  a  suit  against  them.  Though  they  might  have  withheld 
their  consent,  we  think  that,  by  granting  it,  nothing  which  may  not 
be  a  subject  of  judicial  cognizance  is  brought  before  the  court. 

To  avoid  misconstruction  upon  so  grave  a  subject,  we  think  it  proper 
to  state  that  we  do  not  consider  Congress  can  either  withdraw  from 
judicial  cognizance  any  matter  which,  from  its  nature,  is  the  subject 
of  a  suit  at  the  common  law,  or  in  equity,  or  admiralty ;  nor,  on  the 
other  hand,  can  it  bring  under  the  judicial  power  a  matter  which,  from 
its  nature,  is  not  a  subject  for  judicial  determination.  At  the  same 
time  there  are  matters,  involving  public  rights,  which  may  be  presented 
in  such  form  that  the  judicial  power  is  capable  of  acting  on  them,  and 
which  are  susceptible  of  judicial  determination,  but  which  Congress 
may  or  may  not  bring  within  the  cognizance  of  the  courts  of  the  Unit-  ■ 
ed  States,  as  it  may  deem  proper.  Equitable  claims  to  land  bv  the  in- 
habitants of  ceded  territories  form  a  striking  instance  of  such  a  class  of 
cases;  and  as  it  depends  upon  the  will  of  Congress  whether  a  remedy 
in  the  courts  shall  be  allowed  at  all,  in  such  cases,  they  may  regulate  it 
and  prescribe  such  rules  of  determination  as  they  may  think  just  and 
needful.  Thus  it  has  been  repeatedly  decided  in  this  class  of  cases, 
that  upon  their  trial  the  acts  of  executive  officers,  done  under  the 
authority  of  Congress,  were  conclusive,  either  upon  particular 
involved  in  the  inquiry  or  upon  the  whole  title.  Folev  v.  Harrison, 
15  I  low.  433,  14  L.  Ed.  761 ;  Burgess  v.  Cray,  16  How.  48.  14  I 
839;  Minnesota  Mining  Co.  v.  National  Mining  Co.,  3  Wall.  33 
U.  Ed.  4_'.  at  the  present  term.  See,  also,  Cooper  v.  Roberts,  IS  How. 
173,  15  L.  Ed.  338. 

It  is  true,  also,  that  even  in  a  suit  between  private  persons  to  try  a 
question  of  private  right,  the  action  of  the  executive  power,  upon  a 
matter  committed  to  its  determination  by  the  Constitution  and  laws,  is 


270  FUNDAMENTAL    RIGHTS  (Part    2 

conclusive.  Luther  v.  Borden,  7  How.  1,  12  L.  Ed.  581 ;  Doe  ex  dem. 
Clark  v.  Braden,  16  How.  635,  14  L.  Ed.  1090. 

To  apply  these  principles  to  the  case  before  us,  we  say  that,  though 
a  suit  may  be  brought  against  the  marshal  for  seizing  property  under 
such  a  warrant  of  distress,  and  he  may  be  put  to  show  his  justification  ; 
yet  the  action  of  the  executive  power  in  issuing  the  warrant,  pursuant 
to  the  act  of  1820,  passed  under  the  powers  to  collect  and  disburse  the 
revenue  granted  by  the  Constitution,  is  conclusive  evidence  of  the  facts 
recited  in  it,  and  of  the  authority  to  make  the  levy ;  that  though  no 
suit  can  be  brought  against  the  United  States  without  the  consent  of 
Congress,  yet  Congress  may  consent  to  have  a  suit  brought,  to  try 
the  question  whether  the  collector  be  indebted,  that  being  a  subject 
capable  of  judicial  determination,  and  may  empower  a  court  to  act  on 
that  determination,  and  restrain  the  levy  of  the  warrant  of  distress 
within  the  limits  of  the  debt  judicially  found  to  exist.    *    *     * 

Questions  answered  in  favor  of  defendant.1 


HURTADO  v.  CALIFORNIA. 

(Supreme  Court  of  United  States.   1884.     HO  U.  S.  516,  4  Sup.  Ct.  Ill,  292. 
28  L.  Ed.  232.) 

[Error  to  the  Supreme  Court  of  California.  The  California  Con- 
stitution of  1879  provided  that  offences  theretofore  prosecuted  by 
indictment  should  be  prosecuted  by  information  after  examination 
and  commitment  by  a  magistrate,  or  by  indictment,  as  might  be  pre- 
scribed by  law.  Hurtado  was  found  guilty  of  murder  by  a  jury,  after 
an  information  had  been  filed  against  him,  and  was  sentenced  to 
death.  His  objections  to  the  proceeding  by  information  were  over- 
ruled by  the  California  Supreme  Court,  and  this  writ  of  error  was 
taken.] 

Mr.  Justice  Matthews.  *  *  *  It  is  claimed  on  behalf  of  the 
prisoner  that  the  conviction  and  sentence  are  void,  on  the  ground  that 
they  are  repugnant  to  that  clause  of  the  fourteenth  article  of  amend- 
ment of  the  Constitution  of  the  United  States,  which  is  in  these 
words:  "Nor  shall  any  state  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law." 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indict- 
ment or  presentment  by  a  grand  jury,  as  known  to  the  common  law 
of  England,  is  essential  to  that  "due  process  of  law,"  when  applied 
to  prosecutions  for  felonies,  which  is  secured  and  guaranteed  by  this 

i  Accord:  Springer  v.  United  States,  102  U.  S.  5S6,  26  L.  Ed.  253  (1881) 
(distraint  of  land  for  non-payment  of  tax) ;  Scottish  Union  &  Nat.  Ins.  Co.  v. 
Bowland,  196  U.  S.  611.  25  Sup.  Ct.  345,  49  L.  Ed.  610  (1906)  (same  of  personal 
property);  Palmer  v.  McMahon,  133  U.  S.  660,  10  Sup.  Ct.  324,  33  L.  Ed.  772 
1S90)  (seizure  of  person  for  same).  In  all  of  these  cases  the  prior  assess 
ment  of  the  tax  was  accompanied  by  notice  and  an  opportunity  for  a  hearing. 


Ch.9)  nn:  process  and  KQT-.w.nv:     PHOCEDOBE  271 

provision  of  the  Constitution  of  the  United  States,  and  which  ac- 
cordingly it  is  forbidden  to  the  states  respectively  to  dispense  with 
in  the  administration  of  criminal  law.     *     *     * 

It  is  maintained  on  behalf  of  the  plaintiff  in  error  that  the  phrase 
"due  process  of  law"  is  equivalent  to  "law  of  the  land,"  as  found  in 
the  29th  chapter  of  Magna  Charta ;  that  by  immemorial  usage  it  has 
acquired  a  fixed,  definite,  and  technical  meaning;  that  it  refers  to 
and  includes,  not  only  the  general  principles  of  public  liberty  and  pri- 
vate right,  which  lie  at  the  foundation  of  all  free  government,  but 
the  very  institutions  which,  venerable  by  time  and  custom,  have  been 
tried  by  experience  and  found  fit  and  necessary  for  the  preservation 
of  those  principles,  and  which,  having  been  the  birthright  and  in- 
heritance of  every  English  subject,  crossed  the  Atlantic  with  the  col- 
onists and  were  transplanted  and  established  in  the  fundamental  laws 
of  the  state;  that,  having  been  originally  introduced  into  the  Con- 
stitution of  the  United  States  as  a  limitation  upon  the  powers  of 
the  government,  brought  into  being  by  that  instrument,  it  has  now 
been  added  as  an  additional  security  to  the  individual  against  op- 
pression by  the  states  themselves;  that  one  of  these  institutions  is 
that  of  the  grand  jury,  an  indictment  or  presentment  by  which  against 
the  accused  in  cases  of  alleged  felonies  is  an  essential  part  of  due 
process  of  law,  in  order  that  he  may  not  be  harassed  or  destroyed 
by  prosecutions  founded  only  upon  private  malice  or  popular  fury. 

This  view  is  certainly  supported  by  the  authority  of  the  great  name 
of  Chief  Justice  Shaw  and  of  the  court  in  which  he  presided,  which, 
in  Jones  v.  Robbins.  8  Gray  (Mass.)  329,  decided  that  the  12th  ar- 
ticle of  the  Bill  of  Rights  of  Massachusetts,  a  transcript  of  Magna 
Charta  in  this  respect,  made  an  indictment  or  presentment  of  a  grand 
jury  essential  to  the  validity  of  a  conviction  in  cases  of  prosecutions 
for  felonies.     *     *     * 

Mr.  Reeve,  in  2  History  of  Eng.  Law,  43,  translates  the  phrase, 
nisi  per  legale  judicium  parium  suorum  vel  per  legem  terroe.  "But 
by  the  judgment  of  his  peers,  or  by  some  other  legal  process  or  pro- 
ceeding adapted  by  the  law  to  the  nature  of  the  case." 

Chancellor  Kent,  2  Com.  13,  adopts  this  mode  of  construing  the 
phrase.  Quoting  the  language  of  Magna  Charta,  and  referring  to 
Lord  Coke's  comment  upon  it,  he  says:  "The  better  and  larger  def- 
inition of  due  process  of  law  is  that  it  means  law  in  its  regular 
course  of  administration  through  courts  of  justice." 

This  accords  with  what  is  said  in  Wcstervclt  v.  Gresg,  12  N.  Y.  202, 
212,  62  Am.  Dec.  160,  by  Denio,  J.:  "The  provision  was  designed 
to  protect  the  citizen  against  all  mere  acts  of  power,  whether  flowing 
from  the  legislative  or  executive  branches  of  the  government." 

The  principal  and  true  meaning  of  the  phrase  has  never  been  more 
tersely  or  accurately  stated  than  by  Mr.  Justice  Johnson,  in  Bank  of 
Columbia  v.  Okely,  4  Wheat.  235-244,  4  I..  Ed.  559:    "As  to  the 
from  Magna  Charta,  incorporated  into  the  Constitution  of  Maryland, 


272  FUNDAMENTAL    RIGHTS  (Part    2 

after  volumes  spoken  and  written  with  a. view  to  their  exposition,  the 
good  sense  of  mankind  has  at  last  settled  down  to  this :  that  they  were 
intended  to  secure  the  individual  from  the  arbitrary  exercise  of  the 
powers  of  government,  unrestrained  by  the  established  principles  of 
private  right  and  distributive  justice." 

And  the  conclusion  rightly  deduced  is,  as  stated  by  Mr.  Cooley,  Con- 
stitutional Limitations,  356:  "The  principles,  then,  upon  which  the 
process  is  based,  are  to  determine  whether  it  is  'due  process'  or  not, 
and  not  any  considerations  of  mere  form.  Administrative  and  remedial 
process  may  be  changed  from  time  to  time,  but  only  with  due  regard  to 
the  landmarks  established  for  the  protection  of  the  citizen." 

It  is  urged  upon  us,  however,  in  argument,  that  the  claim  made  in 
behalf  of  the  plaintiff  in  error  is  supported  by  the  decision  of  this  court 
in  Den  dex  dem.  Murray  v.  Hoboken  Land  &  Improvement  Company, 
18  How.  272,  15  L.  Ed.  372.  *  *  *  [Here  is  quoted  a  passage  from 
this  case,  printed  ante,  at  p.  264.  J 

This,  it  is  argued,  furnishes  an  indispensable  test  of  what  consti- 
tutes "due  process  of  law" ;  that  any  proceeding  otherwise  authorized 
by  law,  which  is  not  thus  sanctioned  by  usage,  or  which  supersedes  and 
displaces  one  that  is,  cannot  be  regarded  as  due  process  of  law. 

But  this  inference  is  unwarranted.  The  real  syllabus  of  the  passage 
quoted  is,  that  a  process  of  law,  which  is  not  otherwise  forbidden,  must 
be  taken  to  be  due  process  of  law,  if  it  can  show  the  sanction  of  settled 
usage  both  in  England  and  in  this  country ;  but  it  by  no  means  follows 
that  nothing  else  can  be  due  process  of  law.  The  point  in  the  case 
cited  arose  in  reference  to  a  summary  proceeding,  questioned  on  that 
account,  as  not  due  process  of  law.  The  answer  was :  however  ex- 
ceptional it  may  be,  as  tested  by  definitions  and  principles  of  ordinary 
procedure,  nevertheless,  this,  in  substance,  has  been  immemorially  the 
actual  law  of  the  land,  and,  therefore,  is  due  process  of  law.  But  to 
hold  that  such  a  characteristic  is  essential  to  due  process  of  law,  would 
be  to  deny  every  quality  of  the  law  but  its  age,  and  to  render  it  incap- 
able of  progress  or  improvement.  It  would  be  to  stamp  upon  our 
jurisprudence  the  unchangeableness  attributed  to  the  laws  of  the  Medes 
and  Persians. 

This  would  be  all  the  more  singular  and  surprising,  in  this  quick  and 
active  age,  when  we  consider  that,  owing  to  the  progressive  develop- 
ment of  legal  ideas  and  institutions  in  England,  the  words  of  Magna 
Charta  stood  for  very  different  things  at  the  time  of  the  separation  of 
the  American  colonies  from  what  they  represented  originally.  For  at 
first  the  words  nisi  per  legale  judicium  parium  had  no  reference  to  a 
jury;  they  applied  only  to  the  pares  regni,  who  were  the  constitutional 
judges  in  the  court  of  exchequer  and  coram  rege.  Bac.  Abr.  "Juries," 
(7th  Ed.  Lond.)  note ;  2  Reeve,  Hist.  Eng.  Law,  41.  And  as  to  the 
grand  jury  itself,  we  learn  of  its  constitution  and  functions  from  the 
assize  of  Clarendon,  (A.  D.  1164,)  and  that  of  Northampton,  (A.  D. 
1176,)  Stubbs,  Chart.  143-150    *    *    *    "The  system  thus  established," 


Cll.  !))  DDE   PEOCESS  AND    EQUALITY:      PROCEDUHE  273 

says  Mr.  Justice  Stephens,  (1  Hist.  Crim.  Law  Eng.  252.)  "is  sim- 
ple. The  body  of  the  country  are  the  accusers.  Their  accusation  is 
practically  equivalent  to  a  conviction,  subject  to  the  chance  of  a  favor- 
able termination  of  the  ordeal  by  water.  If  the  ordeal  fails,  the  ac- 
cused person  loses  his  foot  and  his  hand.  If  it  succeeds,  he  is,  never- 
theless, to  be  banished.  Accusation,  therefore,  was  equivalent  to 
banishment,  at  least."  When  we  add  to  this  that  the  primitive  grand 
jury  heard  no  witnesses  in  support  of  the  truth  of  the  charges  to  be 
preferred,  but  presented  upon  their  own  knowledge,  or  indicted  upon 
common  fame  and  general  suspicion,  we  shall  be  ready  to  acknowledge 
that  it  is  better  not  to  go  too  far  back  into  antiquity  for  the  best  se- 
curities for  our  "ancient  liberties."  It  is  more  consonant  to  the  true 
philosophy  of  our  historical  legal  institutions  to  say  that  the  spirit  of 
personal  liberty  and  individual  right,  which  they  embodied,  was  pre- 
served and  developed  by  a  progressive  growth  and  wise  adaptation  to 
new  circumstances  and  situations  of  the  forms  and  processes  found  fit 
to  give,  from  time  to  time,  new  expression  and  greater  effect  to  mod- 
ern ideas  of  self-government.    *    *    * 

The  Constitution  of  the  United  States  was  ordained,  it  is  true,  by 
descendants  of  Englishmen,  who  inherited  the  traditions  of  English 
law  and  history ;  but  it  was  made  for  an  undefined  and  expanding  fu- 
ture, and  for  a  people  gathered,  and  to  be  gathered,  from  many  na- 
tions and  of  many  tongues;  and  while  we  take  just  pride  in  the  prin- 
ciples and  institutions  of  the  common  law,  we  are  not  to  forget  that  in 
lands  where  other  systems  of  jurisprudence  prevail,  the  ideas  and 
processes  of  civil  justice  are  also  not  unknown.  Due  process  of  law, 
in  spite  of  the  absolutism  of  continental  governments,  is  not  alien  to 
that  Code  which  survived  the  Roman  empire  as  the  foundation  of 
modern  civilization  in  Europe,  and  which  has  given  us  that  fundamental 
maxim  of  distributive  justice,  suum  cuique  tribuere.  There  is  nothing 
in  Magna  Charta,  rightly  construed  as  a  broad  charter  of  public  right 
and  law,  which  ought  to  exclude  the  best  ideas  of  all  systems  and  of 
every  age ;  and  as  it  was  the  characteristic  principle  of  the  common 
law  to  draw  its  inspiration  from  every  fountain  of  justice,  we  are  not 
to  assume  that  the  sources  of  its  supply  have  been  exhausted.  On  the 
contrary,  we  should  expect  that  the  new  and  various  experiences  of 
our  own  situation  and  system  will  mould  and  shape  it  into  new  and  not 
less  useful  forms.  *  *  *  [Here  follows  the  passage  printed  ante, 
at  p.  231,  and  quotations  from  various  cases  in  this  court.] 

We  are  to  construe  this  phrase  in  the  fourteenth  amendment  by  the 
usus  loquendi  of  the  Constitution  itself.  The  same  words  are  contained 
in  the  fifth  amendment.  That  article  makes  specific  and  express  pro- 
vision for  perpetuating  the  institution  of  the  grand  jury,  so  far  as 
relates  to  prosecutions  for  the  more  aggravated  crimes  under  the  laws 
of  the  United  States.  It  declares  that:  "No  person  shall  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime,  unless  on  a  present- 
Hali.  Const.L. — 16 


274  FUNDAMENTAL    RIGHTS  (Part    2 

merit  or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service  in  time  of  war 
or  public  danger;  nor  shall  any  person  be  subject  for  the  same  offence 
to  be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  he  be  compelled 
in  any  criminal  case  to  be  witness  against  himself."  It  then  imme- 
diately adds:  "Nor  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law." 

According  to  a  recognized  canon  of  interpretation,  especially  appli- 
cable to  formal  and  solemn  instruments  of  constitutional  law,  we  are 
forbidden  to  assume,  without  clear  reason  to  the  contrary,  that  any  part 
of  this  most  important  amendment  is  superfluous.  The  natural  and 
obvious  inference  is,  that  in  the  sense  of  the  Constitution,  "due  process 
of  law"  was  not  meant  or  intended  to  include,  ex  vi  termini,  the  institu- 
tion and  procedure  of  a  grand  jury  in  any  case.  The  conclusion  is 
equally  irresistible,  that  when  the  same  phrase  was  employed  in  the 
fourteenth  amendment  to  restrain  the  action  of  the  states,  it  was  used 
in  the  same  sense  and  with  no  greater  extent ;  and  that  if  in  the  adop- 
tion of  that  amendment  it  had  been  part  of  its  purpose  to  perpetuate 
the  institution  of  the  grand  jury  in  all  the  states,  it  would  have  em- 
bodied, as  did  the  fifth  amendment,  express  declarations  to  that  effect. 
Due  process  of  law  in  the  latter  refers  to  that  law  of  the  land  which 
derives  its  authority  from  the  legislative  powers  conferred  upon  Con- 
gress by  the  Constitution  of  the  United  States,  exercised  within  the 
limits  therein  prescribed,  and  "interpreted  according  to  the  principles 
of  the  common  law.  In  the  fourteenth  amendment,  by  parity  of  rea- 
son, it  refers  to  that  law  of  the  land  in  each  state  which  derives  its 
authority  from  the  inherent  and  reserved  powers  of  the  state,  exerted 
within  the  limits  of  those  fundamental  principles  of  liberty  and  justice 
which  lie  at  the  base  of  all  our  civil  and  political  institutions,  and 
the  greatest  security  for  which  resides  in  the  right  of  the'  people  to 
make  their  own  laws,  and  alter  them  at  their  pleasure.  *  *  *  [Here 
follows  the  passage  printed  ante,  at  p. 232.] 

It  follows  that  any  legal  proceeding  enforced  by  public  authority, 
whether  sanctioned  by  age  and  custom,  or  newly  devised  in  the  discre- 
tion of  the  legislative  power,  in  furtherance  of  the  general  public  good, 
which  regards  and  preserves  these  principles  of  liberty  and  justice, 
must  be  held  to  be  due  process  of  law.  *  *  *  Tried  by  these  prin- 
ciples, we  are  unable  to  say  that  the  substitution  for  a  presentment  or 
indictment  by  a  grand  jury  of  the  proceeding  by  information,  after 
examination  and  commitment  by  a  magistrate,  certifying  to  the  proba- 
ble guilt  of  the  defendant,  with  the  right  on  his  part  to  the  aid  of 
counsel,  and  to  the  cross-examination  of  the  witnesses  produced  for 
the  prosecution,  is  not  due  process  of  law.  It  is,  as  we  have  seen,  an 
ancient  proceeding  at  common  law,  which  might  include  every  case  of 
an  offence  of  less  grade  than  a  felony,  except  misprision  of  treason ; 
and  in  every  circumstance  of  its  administration,  as  authorized  by  the 
statute  of  California,  it  carefully  considers  and  guards  the  substantial 


Ch.  9)  DTTK   PTinrRSS    AND    KQFAT.ITT :      PROCEDURE  275 

interest  of  the  prisoner.  It  is  merely  a  preliminary  proceeding,  and 
can  result  in  no  final  judgment,  except  as  the  consequence  of  a  reg- 
ular judicial  trial,  conducted  precisely  as  in  cases  of  indict- 
ments.    *    *     * 

Judgment  affirmed.1 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


ITAOAR  v.  RECLAMATION  DIST.  NO.  108. 

(Supreme  Court  of  United  States,  1884.     Ill  U.  S.  701,  4  Sup.  Ct.  CG3,  28  L. 
Ed.  689.) 

[Appeal  from  the  federal  Circuit  Court  for  California.  A  Califor- 
nia statute  provided  for  the  creation  by  county  boards  of  supervisors 
of  reclamation  districts  out  of  overflowed  lands  so  situated  as  to  be 
susceptible  of  one  mode  of  reclamation.  After  the  necessary  expenses 
of  reclamation  had  been  estimated  commissioners  appointed  by  the  su- 
pervisors were  to  assess  upon  each  acre  reclaimed  or  benefited  an 
amount  proportionate  to  the  whole  expense  and  to  the  benefits  of  the 
reclamation.  Hagar's  land  was  included  in  such  a  district  and  he 
refused  to  pay  his  assessment.     Suits  were  brought  against  him  to 

i  Accord:  Eilenbecker  v.  Plymouth  Co..  134  r.  S.  31.  io  Sup.  Ct  424,  S3 
I&  Ed.  801  (1S00)  (enforcement  of  prohibition  law  by  Injunction  and  contempt 
proceedings);  Iowa  Cent.  Ry.  Co.  v.  Iowa,  n;o  U.  S.  :;s;i,  ic  sup.  Ct.  :J44,  -)<> 
L.  Ed.  107  (1S9G)  (common-law  jury  not  necessary  In  civil  cases);  Maxwell 
v.  Dow,  176  U.  S.  5S1.  20  Sup.  Ct.  44S,  494,  44  L.  Ed.  f.97  (1900)  (same  in  crim- 
inal cases).  As  to  procedural  changes  in  general,  see  Holden  v.  Hardv,  post, 
at  pp.  409-410. 

"II  is  dear  that  the  fourteenth  amendment  in  no  way  undertakes  to  control 
the  power  of  a  state  to  determine  by  what  process  legal  rights  may  be  assert- 
ed el'  legal  obligations  be  enforced,  provided  the  method  of  procedure  adopted 
for  these  purposes  gives  reasonable  notice,  and  affords  fair  opportunity  to  be 
In  a rd  In  fore  the  issues  are  decided." — White.  J.,  in  Iowa  Cent  By.  v.  Iowa, 
above  (100  U.  S.  393,  16  Sup.  Ct.  345,  40  L.  Ed.  467). 

Jury  Trial  in  Civil  Cases. — Though  due  process  of  law  does  not  require  a 
jury  trial  in  either  civil  or  criminal  cases,  the  federal  Constitution  and  most 
of  the  state  Constitutions  have  other  provisions  expressly  requiring  jury 
trials  in  all  criminal  prosecutions  and  in  civil  suits  at  common  law.  The  pro- 
vision for  criminal  cases  is  considered  in  Thompson  v.  Utah,  ante,  p.  193. 

Eor  the  interpretation  of  the  seventh  amendment,  regarding  the  right  of  trial 
by  jury  in  suits  at  common  law.  see  Capital  Traction  Co.  v.  Ilof.  174  1".  S.  l.  lit 
Sup.  Ct.  580,  43  L.  Ed.  873  (1899)  (in  general);    Maxwell   v.   Dow,  ante,  at  p. 
226  (unanimity) ;    Henderson's  Distilled  Spirits.  14  Wall.  4  1.  5:;.  20  I..   Ed.  815 
(1872)   (waiver);    Slocum   v.   New   York  Life   Ins.   Co.,  228  U.  S.  364,  3 
ct.  623,  67  E.  Ed.  —  (1913)  (control  by  appellate  courts).    As  to  what  kinds 
of  actions  are  "suits  at  common  law,"  under  such  constitutional   provisions. 
see  Parsons  v.  Bedford,  3  Pet  -)•"■".  7  I.,  l :<  1 .  7:;u  C1830);    Scott  v.  Neeiy,  140 
U.  S.  106,  11  Sup.  ct.  711'.  :;:.  I..  Ed.  358  (1891);    McElrath  v.  United  States 
102  U.  S.  420,  440,  26  L.  Ed.  is.'  (1880);   41:;  can.  ,.f  Egg  Product  v.  United 
states.  226  r.  S.  172.  :;;t  Sup.  Ct.  00,  57  E.  Ed.  —  (1912).    Not  only  equity  and 
admiralty  eases,  but  most  special,  summary,  and  administrative  pro 
are  generally  bald  to  be  excluded.    See  24  Cye  100  ill;   0  Am.  &  Bug 
I2d  Ed.)  974-986;    State  v.  Clausen,  post  P.  517,  note;    Cunningham  v.  North- 
western Imp.  Co.,  44  Mont  180,  215-217,  119  Pac.  554  (1911). 


■276  FUNDAMENTAL    RIGHTS  (Part   2 

enforce  liens  on  his  land  for  the  assessment.  These  suits  were  removed 
to  the  federal  Circuit  Court,  which  held  the  liens  valid  and  ordered 
the  land  sold  to  satisfy  them.] 

Mr.  Justice  Field.  *  *  *  The  objections  urged  to  the  validity 
of  the  assessment  on  federal  grounds  are  substantially  these :  that  the 
law  under  which  the  assessment  was  made  and  levied  conflicts  with 
the  clause  of  the  fourteenth  amendment  of  the  Constitution  declaring 
•that  no  state  shall  deprive  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law.  *  *  *  It  is  sufficient  to  observe  here  that 
by  "due  process"  is  meant  one  which,  following  the  forms  of  law,  is 
appropriate  to  the  case,1  and  just  to  the  parties  to  be  affected.  It  must 
be  pursued  in  the  ordinary  mode  prescribed  by  the  law;  it  must  be 
adapted  to  the  end  to  be  attained;  and  wherever  it  is  necessary  for 
the  protection  of  the  parties,  it  must  give  them  an  opportunity  to  be 
heard  respecting  the  justice  of  the  judgment  sought.  The  clause  in 
question  means,  therefore,  that  there  can  be  no  proceeding  against 
life,  liberty,  or  property  which  may  result  in  the  deprivation  of  either, 
without  the  observance  of  those  general  rules  established  in  our  sys- 
tem of  jurisprudence  for  the  security  of  private  rights.  Hurtado  v. 
California,  110  U.  S.  516,  536,  4  Sup.  Ct.  Ill,  292,  28  L.  Ed.  232. 

The  appellant  contends  that  this  fundamental  principle  was  violated 
in  the  assessment  of  his  property,  inasmuch  as  it  was  made  without 
notice  to  him,  or  without  his  being  afforded  any  opportunity  to  be 
heard  respecting  it;  the  law  authorizing  it  containing  no  provision  for 
such  notice  or  hearing.  His  contention  is  that  notice  and  opportunity 
to  be  heard  are  essential  to  render  any  proceeding  due  process  of  law 
which  may  lead  to  the  deprivation  of  life,  liberty,  or  property.  Un- 
doubtedly where  life  and  liberty  are  involved,  due  process  requires 
that  there  be  a  regular  course  of  judicial  proceedings,  which  imply 
that  the  party  to  be  affected  shall  have  notice  and  an  opportunity  to  be 
heard ;  so,  also,  where  title  or  possession  of  property  is  involved.  But 
where  the  taking  of  property  is  in  the  enforcement  of  a  tax,  the  pro- 
ceeding is  necessarily  less  formal,  and  whether  notice  to  him  is  at  all 
necessary  may  depend  upon  the  character  of  the  tax,  and  the  manner 
in  which  its  amount  is  determinable.  The  necessity  of  revenue  for  the 
support  of  the  government  does  not  admit  of  the  delay  attendant  upon 
proceedings  in  a  court  of  justice,  and  they  are  not  required  for  the 
enforcement  of  taxes  or  assessments.  As  stated  by  Mr.  Justice  Brad- 
ley, in  his  concurring  opinion  in  Davidson  v.  New  Orleans,  96  U.  S. 

i  See,  also,  for  the  dependence  of  the  requisites  of  due  process  upon  the 
nature  of  the  case,  In  re  Wall,  107  U.  S.  265,  2S8-290,  2  Sup.  Ct.  569,  27  L. 
Ed.  552  (18S3)  (disbarment  of  attorney) ;  Moyer  v.  Peabody,  212  U.  S.  78,  84, 
29  Sup.  Ct.  235,  53  L.  Ed.  410  (1909)  (executive  acts  to  suppress  insurrection) ; 
Reaves  v.  Ainsworth,  219  TJ.  S.  296,  304,  31  Sup.  Ct.  230,  233,  55  L.  Ed.  225 
(1911),  in  which  MeKenna,  J.,  said :  "What  is  due  process  of  law  must  be  de- 
termined by  circumstances.  To  those  in  the  military  or  naval  service  of  the 
United  States  the  military  law  is  due  process.  The  decision,  therefore,  of  a 
military  tribunal  acting  within  the  scope  of  its  lawful  powers  cannot  be  re- 
viewed or  set  aside  by  the  courts." 


Ch.  9)  DUE  PROCESS  AND   EQUALITY:      PBOCBDTJBH  277 

97,  24  L.  Ed.  616:  "In  judging  what  is  'due  process  of  law'  respect 
must  be  had  to  the  cause  and  object  of  the  taking,  whether  under  the 
taxing  power,  the  power  of  eminent  domain,  or  the  power  of  assess- 
ment for  local  improvements,  or  some  of  these:  and.  if  found  to  be 
suitable  or  admissible  in  the  special  case,  it  will  be  adjudged  to  be  'due 
process  of  law.'  but  if  found  to  be  arbitrary,  oppressive,  and  unjust, 
it  may  be  declared  to  be  not  'due  process  of  la 

The  power  of  taxation  possessed  by  the  state  may  be  exercised  upon 
any  subject  within  its  jurisdiction,  and  to  any  extent  not  prohibited  by 
the  Constitution  of  the  United  States.  As  said  by  this  court:  "It  may 
touch  property  in  every  shape,  in  its  natural  condition,  in  its  manufac- 
tured form,  and  in  its  various  transmutations.  And  the  amount  of 
the  taxation  may  be  determined  by  the  value  of  the  property,  or  its 
use,  or  its  capacity,  or  its  productiveness.  It  may. touch  business  in 
the  almost  infinite  forms  in  which  it  is  conducted,  in  professions,  in 
commerce,  in  manufactures,  and  in  transportation.  Unless  restrained 
by  provisions  of  the  federal  Constitution,  the  power  of  the  state,  as  to 
the  mode,  form,  and  extent  of  taxation,  is  unlimited  where  the  subjects 
to  which  it  applies  are  within  her  jurisdiction."  State  Tax  on  Foreign- 
Held  Bonds,  15  Wall.  300,  319,  21  L.  Ed.  179. 

Of  the  different  kinds  of  taxes  which  the  state  may  impose,  there  is 
a  vast  number  of  which,  from  their  nature,  no  notice  can  be  given  to 
the  tax-payer,  nor  would  notice  be  of  any  possible  advantage  to  him, 
such  as  poll-taxes,  license  taxes,  (not  dependent  upon  the  extent  of  his 
business,)  and,  generally,  specific  taxes  on  things  or  persons  or  occupa- 
tions. In  such  cases  the  legislature  in  authorizing  the  tax  fixes  its 
amount,  and  that  is  the  end  of  the  matter.  If  the  tax  be  not  paid  the 
property  of  the  delinquent  may  be  sold,  and  he  be  thus  deprived  of  his 
property.  Yet  there  can  be  no  question  that  the  proceeding  is  due 
process  of  law,  as  there  is  no  inquiry  into  the  weight  of  evidence,  or 
other  element  of  a  judicial  nature,  and  nothing  could  be  changed  by 
hearing  the  tax-payer.  No  right  of  his  is  therefore  invaded.  Thus, 
if  the  tax  on  animals  be  a  fixed  sum  per  head,  or  on  articles  a  fixed  sum 
per  yard  or  bushel  or  gallon,  there  is  nothing  the  owner  can  do  which 
can  affect  the  amount  to  be  collected  from  him.  So,  if  a  person  wishes 
a  license  to  do  business  of  a  particular  kind,  or  at  a  particular  place, 
such  as  keeping  a  hotel  or  a  restaurant,  or  selling  liquors  or  cigars  or 
clothes,  he  has  only  to  pay  the  amount  required  by  the  law  and  go  into 
the  business.  There  is  no  need  in  such  cases  for  notice  or  hearing.  So. 
also,  if  taxes  are  imposed  in  the  shape  of  licenses  for  privileges,  such 
as  those  on  foreign  corporations  for  doing  business  in  the  state,  or  on 
domestic  corporations  for  franchises,  if  the  parties  desire  the  privilege 
they  have  only  to  pay  the  amount  required.  In  such  cases  there  is  no 
ity  for  notice  or  hearing.  The  amount  of  the  tax  would  not  be 
changed  by  it.  But  where  a  tax  is  levied  on  property  not  specifically, 
but  according  to  its  value,  to  be  ascertained  by  assessors  appointed  for 
that  purpose,  upon  such  evidence  as  they  may  obtain,  a  different  prin- 


278  FUNDAMENTAL    RIGHTS  (Part    2 

ciple  comes  in.  The  officers  in  estimating  the  value  act  judicially,  and 
in  most  of  the  states  provision  is  made  for  the  correction  of  errors 
rommitted  by  them,  through  boards  of  revision  or  equalization,  sitting 
at  designated  periods  provided  by  law,  to  hear  complaints  respecting 
the  justice  of  the  assessments.  The  law,  in  prescribing  the  time  when 
such  complaints  will  be  heard,  gives  all  the  notice  required,  and  the 
proceeding  by  which  .the  valuation  is  determined,  though  it  may  be 
followed,  if  the  tax  be  not  paid,  by  a  sale  of  the  delinquent's  property, 
is  due  process  of  law.2 

In  some  states,  instead  of  a  board  of  revision  or  equalization,  the 
assessment  may  be  revised  by  proceedings  in  the  courts  and  be  there 
corrected  if  erroneous,  or  set  aside  if  invalid ;  or  objections  to  the 
validity  or  amount  of  the  assessment  may  be  taken  when  the  attempt 
is  made  to  enforce  it.  In  such  cases  all  the  opportunity  is  given  to  the 
tax-payer  to  be  heard  respecting  the  assessment  which  can  be  deemed 
essential  to  render  the  proceedings  due  process  of  law.  In  Davidson 
v.  New  Orleans,  this  court  decided  this  precise  point.  *  *  *  The 
court,  speaking  by  Mr.  Justice  Miller,  said  that  it  would  lay  down  the 
following  proposition  as  applicable  to  the  case :  "That  whenever  by 
the  laws  of  a  state,  or  by  state  authority,  a  tax,  assessment,  servitude, 
or  other  burden  is  imposed  upon  property  for  the  public  use,  whether 
it  be  for  the  whole  state  or  of  some  more  limited  portion  of  the  com- 
munity, and  those  laws  provide  for  a  mode  of  confirming  or  contesting 
the  charge  thus  imposed  in  the  ordinary  courts  of  justice,  with  such 
notice  to  the  person,  or  such  proceeding  in  regard  to  the  property  as  is 
appropriate  to  the  nature  of  the  case,  the  judgment  in  such  proceed- 
ings cannot  be  said  to  deprive  the  owner  of  his  property  without  due 
process  of  law,  however  obnoxious  it  may  be  to  other  objections." 
96  U.  S.  97,  24  L.  Ed.  616. 

This  decision  covers  the  cases  at  bar.  The  assessment  under  con- 
sideration could,  by  the  law  of  California,  be  enforced  only  by  legal 
proceedings,  and  in  them  any  defense  going  either  to  its  validity  or 
amount  could  be  pleaded.  In  ordinary  taxation  assessments,  if  not 
altered  by  a  board  of  revision  or  of  equalization,  stand  good,  and  the 
tax  levied  may  be  collected  by  a  sale  of  the  delinquent's  property ;  but 
assessments  in  California,  for  the  purpose  of  reclaiming  overflowed 
and  swamp  lands,  can  be  enforced  only  by  suits,  and,  of  course,  to 
their  validity  it  is  essential  that  notice  be  given  to  the  tax-payer,  and 
opportunity  be  afforded  him  to  be  heard  respecting  the  assessment.  In 
them  he  may  set  forth,  by  way  of  defense,  all  his  grievances.    Recla- 

2  That  the  duties  of  assessors  in  estimating  the  value  of  property  for  pur- 
poses of  general  taxation  are  judicial,  see  Barhyte  v.  Shepherd,  35  N.  Y.  23S, 
250;  Hassan  v.  City  of  Rochester,  67  N.  Y.  52S,  536;  Stuart  v.  Palmer,  74  N. 
Y.  183,  30  Am.  Rep.  289 ;  Williams  v.  Weaver,  75  N.  Y.  30,  33 ;  Cooley,  Tax'n, 
266 ;  Burroughs,  Tax'n,  §  102 ;  Jordan  v.  Hyatt,  3  Barb.  275,  283 ;  Ireland  v. 
City  of  Rochester,  51  Barb.  (N.  Y.)  416,  430,  431;  State  r.  Mayor,  etc.,  of 
Jersey  City,  24  N.  J.  Law,  662,  666 ;  State  v.  Mayor,  etc.,  of  Town  of  Morris- 
town,  34  N.  J.  Law,  445 ;    Griffin  v.  Mixon,  38  Miss.  437,  438.— Rep. 


Ch.  9)  DOE  PROCESS   AND    EQUALITY  \      PROCEDURE  279 

mation  Dist.  No.  108  v.  Evans,  61  Cal.  104.  If  property  taken  upon 
an  assessment,  which  can  only  be  enforced  in  this  way,  be  not  taken 
by  due  process  of  law,  then,  as  said  by  Mr.  Justice  Miller  in  the  New 
Orleans  Case,  these  words,  as  used  in  the  Constitution,  can  have  no 

definite  meaning.    *     *     * 
Decrees  affirmed.* 

»  For  the  procedure  necessary  tn  taxation,  flee,  also,  Spencer  r.  Merchant, 
pi.st.  p.  640;  Norwood  v.  Baker,  post,  p.  .649.  and  notes. 

In  Turpin  v.  Lemon,  187  U.  S.  51,  60,  23  Sup.  Ct.  20,  24,  47  L.  Ed.  70  (1902), 
Brown,  J.,  said  (holding  a  tax  deed  might  be  made  prima  facie  evidence  of 
tin'  regularity  of  all  prior  proceedings  upon  which  it  was  based):  "Under  the 
fourteenth  amendment  the  legislature  is  bound  to  provide  a  method  for  the 
assessment  and  collection  of  taxes  that  shall  not  be  inconsistent  with  natural 
lustlce;  but  it  is  not  bound  to  provide  that  the  particular  steps  of  a  procedure 
for  the  collection  of  such  taxes  shall  be  proved  by  written  evidence:  and  it 
may  properly  impose  upon  the  taxpayer  the  burden  of  showing  that  in  a 
particular  case  the  statutory  method  was  not  observed." 

As  to  the  power  of  the  legislature  over  presumptions  and  prima  facie  evi- 
dence in  general,  see  the  cases  below  under  Chapter  X,  section  8,  pp.  381-3S3. 

As  to  the  kind  of  notice  and  hearing  necessary  in  taxation,  see  Londoner  v. 
City  &  County  of  Denver,  210  U.  S.  373,  385,  386,  28  Sup.  Ct  70S,  714,  52  L. 
Ed.  1103  (W08),  in  which  Moody,  J.,  said:  "Where  the  legislature  of  a  state, 
Instead  of  fixing  the  tax  itself,  commits  to  some  subordinate  body  the  duty 
of  determining  whether,  in  what  amount,  and  upon  whom  it  shall  be  levied, 
and  of  making  its  assessment  and  apportionment,  due  process  of  law  requires 
that,  at  some  stage  of  the  proceedings,  before  the  tax  becomes  Irrevocably 
tixoil,  the  taxpayer  shall  have  an  opportunity  to  be  heard,  of  which  he  must 
have  notice,  either  personal,  by  publication,  or  by  a  law  fixing  the  time  and 
place  of  the  hearing.  »  «  *  if  it  la  enough  that,  under  such  circumstances, 
an  opportunity  Is  given  to  submit  in  writing  all  objections  to  and  complaints 
of  the  tax  to  the  board,  then  there  was  a  hearing  afforded  in  the  case  at 
bur.  But  we  think  that  something  more  than  that,  even  in  proceedings 
for  taxation,  is  required  by  due  process  of  law.  Many  requirements  essential 
In  strictly  judicial  proceedings  may  be  dispensed  with  In  proceedings  of  this 
nature.  Cut  even  here  a  hearing,  in  its  very  essence,  demands  that  he  who 
is  entitled  to  it  shall  have  the  right  to  support  his  allegations  by  argument, 
however  brief:  and,  If  need  be,  bv  proof,  however  informal.  Pittsburgh,  C, 
C.  *  St.  L.  R.  Co.  v.  Backus,  154  O.  S.  421.  426,  14  Sup.  Ct  1114.  38  L  Ed.  1031, 
1086;  Eallhrook  Irrig.  Dist  v.  Bradley,  164  U.  S.  112,  171  et  sea,.,  17  Sup.  Ct 
66,   11  L.  Ed.  369,  393." 

In  Stuart  v.  Palmer,  74  N.  T.  183,  188,  80  Am.  Rep.  2S9  (1S7S).  Karl,  J., 
said  (regarding  an  assessment  for  local  Improvements):  "It  is  not  enough 
that  the  owners  may  by  chance  have  notice,  or  that  they  may  as  a  matter 
of  favor  have  a  hearing.  The  law  must  require  notice  to  them,  and  give  them 
the  right  to  a  hearing  and  an  opportunity  to  be  heard.  It  matters  nut,  upon 
the  question  of  the  constitutionality  of  such  a  law,  that  the  assessment  has 
in  fact  been  fairly  apportioned.  The  constitutional  validity  of  a  law  is  to  be 
tested,  not  by  what  has  been  done  under  it,  but  by  what  may  by  its  authority 
be  done." 

See,  also.  Winona  &  St.  P.  Land  Co.  v.  Minnesota,  159  U.  S.  526.  16  Sup. 
Ct.  88,  -10  L.  Ed.  217  (1895);  Gliddeu  v.  Harrington,  1S9  U.  S.  25.").  2::  Sup 
ct.  574,  17  L.  Ed.  70S  (1903);  Central  of  Georgia  By.  Co.  v.  Wright,  207  U. 
S.  127,  2S  Sup.  Ct  47,  52  L.  Ed.  134,  12  Ann.  Cas.  163  <1!M7I  .bearing  condi- 
tional only  upon  admitting  taxability  of  property  is  Insufficient). 

Collection  of  Taxes  from  Property  oi  Stbani  EBS  TO  THE  Tax.— See  cases 
in  note  to  Tappan  v.  Bank,  post,  at  p.  560,  and  also  Common  <  louncl]  of  Citj  of 
Detroit  v.  Board  of  Assessors  of  City  of  Detroit,  01  Mich.  78.  51  N.  W.  TsT. 
16  L.  R.  A.  59  (1S92)  (tax  on  interest  of  mortgagee  a  lien  on  mortgagor's  feel; 
Hodge  v.  Muscatine  County.  196  D.  S.  276,  2:.  Soil  ct.  287,  49  1..  Ed.  477 
(1905)  (tax  on  business  of  tenant  a  lien  on  laud)  ;  Morrow  v.  Dows,  as  N.  J.  l'.o 


2S0  FUNDAMENTAL    RIGHTS  (Part   2 


TWINING  v.  NEW  JERSEY. 

(Supreme  Court  of  United  States,  1908.     211  U.  S.  78,  20  Sup.  Ct.  14,  53  I*. 
Ed.  97.) 

[Error  to  the  Court  of  Errors  and  Appeals  of  New  Jersey.  Twin- 
ing and  another  were  convicted  in  the  Monmouth  court  of  quarter 
sessions  of  a  high  misdemeanor  in  deceiving  a  state  bank  examiner, 
and  were  sentenced  to  six  and  four  years  of  imprisonment  respec- 
tively. In  accordance  with  the  law  of  the  state,  the  jury  were  in- 
structed that  they  might  draw  an  unfavorable  inference  against  the 
defendants'  failure  to  testify  in  denial  of  evidence  tending  to  incrim- 
inate him.  The  convictions  being  affirmed  by  the  state  appellate 
courts,  this  writ  was  taken  on  the  ground  that  compulsory  self-in- 
crimination had  been  enforced  against  the  defendants  in  violation  of 
due  process  of  law.] 

Mr.  Justice  Moody.  *  *  *  The  exemption  from  testimonial 
compulsion,  that  is,  from  disclosure  as  a  witness  of  evidence  against 
oneself,  forced  by  any  form  of  legal  process,  is  universal  in  American 
law,  though  there  may  be  differences  as  to  its  exact  scope  and  limits. 
At  the  time  of  the  formation  of  the  Union  the  principle  that  no  per- 
son could  be  compelled  to  be  a  witness  against  himself  had  become 
embodied  in  the  common  law  and  distinguished  it  from  all  other  sys- 
tems of  jurisprudence.  It  was  generally  regarded  then,  as  now,  as 
a  privilege  of  great  value,  a  protection  to  the  innocent,  though  a  shel- 
ter to  the  guilty,  and  a  safeguard  against  heedless,  unfounded,  or 
tyrannical  prosecutions.  *  *  *  The  privilege  was  not  included 
in  the  federal  Constitution  as  originally  adopted,  but  was  placed  in 
one  of  the  ten  amendments  which  were  recommended  to  the  states  by 
the  first  Congress,  and  by  them  adopted.  Since  then  all  the  states  of 
the  Union  have,  from  time  to  time,  with  varying  form,  but  uniform 
meaning,  included  the  privilege  in  their  Constitutions,  except  the 
states  of  New  Jersey  and  Iowa,  and  in  those  states  it  is  held  to  be 
part  of  the  existing  law.  *  *  *  [After  referring  to  the  historical 
interpretation  of  "due  process  of  law"  set  forth  in  Murray  v.  Ho- 
boken  Land  Co.,  ante,  p.  262.  and  in  Hurtado  v.  California,  ante,  p. 
270:] 

The  question  under  consideration  may  first  be  tested  by  the  ap- 
plication of  these  settled  doctrines  of  this  court.  If  the  statement  of 
Mr.  Justice  Curtis,  as  elucidated  in  Hurtado  v.  California,  is  to  be 
taken  literally,  that  alone  might  almost  be  decisive.  For  nothing  is 
more  certain,  in  point  of  historical  fact,  than  that  the  practice  of  com- 

450  (1S77)  (goods  of  tenant  seizable  for  tax  on  land);  Hersee  v.  Porter,  100 
N.  Y.  403,  3  N.  E.  338  (18S5)  (goods  of  A.,  with  A.'s  consent  in  possession  of 
B.,  seizable  for  tax  on  any  land  of  B.).  Compare  (contra  in  part  to  these 
doctrines):  Daniels  v.  Nelson.  41  Vt.  161.  9S  Am.  Dec.  577  (1868):  Qhauvui 
v.  Valiton,  8  Mont.  451,  20  Pac.  058,  3  L.  R.  A.  194  (1SS9);  Knoxville  Traction 
Co.  v.  McMillaD,  111  Tenn.  521,  77  S.  W.  605,  05  L.  11.  A.  290  (1903). 


Ch.  !))        DUE  PROCESS  AND  EQOALITi:   PROCEDURE  281 

pulsory  self-incrimination  in  the  courts  and  elsewhere  existed  for  four 
hundred  years  after  the  granting  of  Magna  Charta,  continued 
throughout  the  reign  of  Charles  I  (though  then  beginning  to  be  seri- 
ously questioned),  gained  at  least  some  foothold  among  the  early 
colonists  of  this  country,  and  was  not  entirely  omitted  at  trials  in 
England  until  the  eighteenth  century.  Wigmore,  Ev.  §  2250  (see  for 
the  colonies,  note  108) ;  Hallam's  Constitutional  History  of  Eng- 
land, chapter  8,  Widdleton's  American  Ed.  vol.  2,  p.  37  (describing 
the  criminal  jurisdiction  of  the  court  of  star  chamber);  Bentham's 
Rationale  of  Judicial  Evidence,  book  9,  chap.  3,  §  4.  [Here  follow 
references  to  particular  English  and  colonial  practices  in  this  regard.] 

But,  without  repudiating  or  questioning  the  test  proposed  by  Mr. 
Justice  Curtis  for  the  court,  or  rejecting  the  inference  drawn  from 
English  law,  we  prefer  to  rest  our  decision  on  broader  grounds,  and 
inquire  whether  the  exemption  from  self-incrimination  is  of  such  a 
nature  that  it  must  be  included  in  the  conception  of  due  process.  Is 
it  a  fundamental  principle  of  liberty  and  justice  which  inheres  in  the 
very  idea  of  free  government  and  is  the  inalienable  right  of  a  citizen 
of  such  a  government?  *  *  *  \n  the  decision  of  this  ques- 
tion weJhave  the  authority  to  take  into  account  only  those  fundamen- 
tal rights  which  are  expressed  in  that  provision ;  not  the  rights  fund- 
amental in  citizenship,  state  or  national,  for  they  are  secured  other- 
wise ;  but  the  rights  fundamental  in  due  process,  and  therefore  an 
tia.1  part  of  it.  We  have  to  consider  whether  the  right  is  so 
fundamental  in  due  process  that  a  refusal  of  the  right  is  a  denial 
of  due  process. 

One  aid  to  the  solution  of  the  question  is  to  inquire  how  the  right 
was  rated  during  the  time  when  the  meaning  of  due  process  was  in 
a  formative  state,  and  before  it  was  incorporated  in  American  con- 
stitutional law.  Did  those  who  then  were  formulating  and  insisting 
upon  the  rights  of  the  people  entertain  the  view  that  the  right  was 
so  fundamental  that  there  could  be  no  due  process  without  it?  It 
has  already  appeared  that,  prior  to  the  formation  of  the  American 
Constitutions,  in  which  the  exemption  from  compulsory  self-incrim- 
ination was  specifically  secured,  separately,  independently,  and  side 
by  side  with  the  requirement  of  due  process,  the  doctrine  was  formed, 
as  other  doctrines  of  the  law  of  evidence  have  been  formed,  by  the 
course  of  decision  in  the  courts,  covering  a  long  period  of  time. 
Searching  further,  we  find  nothing  to  show  that  it  was  then  thought 
to  be  other  than  a  just  and  useful  principle  of  law.  None  of  the 
great  instruments  in  which  we  are  accustomed  to  look  for  the  dec- 
laration of  the  fundamental  rights  made  reference  to  it.  The  priv- 
ilege was  not  dreamed  of  for  hundreds  of  years  after  Magna  Charta 
(1215).  and  could  not  have  been  implied  in  the  "law  of  the  land"  there 
secured.  The  Petition  of  Right  (1629),  though  it  insists  upon  the 
right  secured  by  Magna  Charta  to  be  condemned  only  by  the  law  of 
the  land,  and  sets  forth,  by  way  of  grievance,  divers  violations  of 


282  FUNDAMENTAL    RIGHTS  (Part    2 

ft,  is  silent  upon  the  practice  of  compulsory  self-incrimination,  though 
it  was  then  a  matter  of  common  occurrence  in  all  the  courts  of  the 
realm.  The  Bill  of  Rights  of  the  first  year  of  the  reign  of  William 
and  Mary  (1689)  is  likewise  silent,  though  the  practice  of  questioning 
the  prisoner  at  his  trial  had  not  then  ceased. 

The  negative  argument  which  arises  out  of  the  omission  of  all 
reference  to  any  exemption  from  compulsory  self-incrimination  in 
these  three  great  declarations  of  English  liberty  (though  it  is  not 
supposed  to  amount  to  a  demonstration)  is  supported  by  the  positive 
argument  that  the  English  courts  and  Parliaments,  as  we  have  seen, 
have  dealt  with  the  exemption  as  they  would  have  dealt  with  any 
other  rule  of  evidence,  apparently  without  a  thought  that  the  ques- 
tion was  affected  by  the  law  of  the  land  of  Magna  Charta,  or  the 
due  process  of  law  which  is  its  equivalent.  *  *  *  [Here  follow 
references  to  the  amendments  to  the  original  Constitution  proposed 
by  the  states  ratifying  it.] 

Thus  it  appears  that  four  only  of  the  thirteen  original  states  in- 
sisted upon  incorporating  the  privilege  in  the  Constitution,  and  they 
separately  and  simultaneously  with  the  requirement  of  due  process  of 
law,  and  that  three  states  proposing  amendments  were  silent  upon 
this  subject.  It  is  worthy  of  note  that  two  of  these  four  states  did 
not  incorporate  the  privilege  in  their  own  Constitutions,  where  it  would 
have  had  a  much  wider  field  of  usefulness,  until  many  years  after. 
New  York  in  1821  and  Rhode  Island  in  1842  (its  first  Constitu- 
tion). This  survey  does  not  tend  to  show  that  it  was  then  in  this 
country  the  universal  or  even  general  belief  that  the  privilege  ranked 
among  the  fundamental  and  inalienable  rights  of  mankind ;  and  what 
is  more  important  here,  it  affirmatively  shows  that  the  privilege  was 
not  conceived  to  be  inherent  in  due  process  of  law,  but,  on  the  other 
hand,  a  right  separate,  independent,  and  outside  of  due  process.  Con- 
gress, in  submitting  the  amendments  to  the  several  states,  treated 
the  two  rights  as  exclusive  of  each  other.  Such  also  has  been  the 
view  of  the  states  in  framing  their  own  Constitutions,  for  in  every 
case,  except  in  New  Jersey  and  Iowa,  where  the  due  process  clause 
or  its  equivalent  is  included,  it  has  been  thought  necessary  to  include 
separately  the  privilege  clause.  Nor  have  we  been  referred  to  any 
decision  of  a  state  court,  save  one  (State  v.  Height,  117  Iowa,  650, 
91  N.  W.  935,  59  L.  R.  A.  437,  94  Am.  St.  Rep.  323),  where  the 
exemption  has  been  held  to  be  required  by  due  process  of  law.  The 
inference  is  irresistible  that  it  has  been  the  opinion  of  constitution 
makers  that  the  privilege,  if  fundamental  in  any  sense,  is  not  funda- 
mental in  due  process  of  law,  nor  an  essential  part  of  it.  We  be- 
lieve that  this  opinion  is  proved  to  have  been  correct  by  every  his- 
torical test  by  which  the  meaning  of  the  phrase  can  be  tried. 

The  decisions  of  this  court,  though  they  are  silent  on  the  precise 
question  before  us,  ought  to  be  searched  to  discover  if  they  present 
any  analogies  which  are  helpful  in  its  decision.     The  essential  ele- 


Cll.  9)  DUB    PROCESS   AND    EQUALITY:      PROCEDURE  283 

mcnts  of  due  process  of  law,  already  established  by  them,  are  singu- 
larly few,  though  of  wide  application  and  deep  significance.  We 
are  not  here  concerned  with  the  effect  of  due  process  in  restraining 
substantive  laws,  as,  for  example,  that  which  forbids  the  taking  of 
private  property  for  public  use  without  compensation.  We  need  no- 
tice now  only  those  cases  which  deal  with  the  principles  which  must 
be  observed  in  the  trial  of  criminal  and  civil  causes.  Due  process 
requires  that  the  court  which  assumes  to  determine  the  rights  of 
parties  shall  have  jurisdiction  (Pennoyer  v.  Neff,  95  U.  S.  714,  733, 
24  L.  Ed.  565,  572;  Scott  v.  McXeal.  154  U.  S.  34,  14  Sup.  Ct.  1108, 
38  L.  Ed.  896;  Old  Wayne  Mut.  Life  Asso.  v.  McDonough,  204  U. 
S.  8,  27  Sup.  Ct.  236,  51  L.  Ed.  345),  and  that  there  shall  be  notice 
and  opportunity  for  hearing  given  the  parties  (Ilovey  v.  Elliott,  167 
U.  S.  409,  17  Sup.  Ct.  841,  42  L.  Ed.  215;  Roller  v.  Holly,  176  U. 
S.  398.  20  Sup.  Ct.  410,  44  L.  Ed.  520;  and  see  Londoner  v.  Denver, 
210  U.  S.  373.  28  Sup.  Ct.  708,  52  L.  Ed.  1103).  Subject  to  these 
two  fundamental  conditions,  which  seem  to  be  universally  prescribed 
in  all  systems  of  law  established  by  civilized  countries,  this  court  has, 
up  to  this  time,  sustained  all  state  laws,  statutory  or  judicially  de- 
clared, regulating  procedure,  evidence,  and  methods  of  trial,  and  held 
them  to  be  consistent  with  due  process  of  law.1     *     *     * 

The  cases  proceed  upon  the  theory  that,  given  a  court  of  justice 
which  has  jurisdiction,  and  acts,  not  arbitrarily,  but  in  conformity, 
with  a  general  law,  upon  evidence,  and  after  inquiry  made  with  no- 
tice to  the  parties  affected  and  opportunity  to  be  heard,  then  all  the 
requirements  of  due  process,  so  far  as  it  relates  to  procedure  in 
court  and  methods  of  trial  and  character  and  effect  of  evidence,  are 
complied  with.  *  *  *  [Here  follow  quotations  from  various 
cases  to  this  effect.] 

In  Missouri  v.  Lewis  (Bowman  v.  Lewis)  101  U.  S.  22,  25  L.  Ed. 
989,  Mr.  Justice  Bradley,  speaking  for  the  whole  court,  said,  in  ef- 
fect, that  the  fourteenth  amendment  would  not  prevent  a  state  from 
adopting  or  continuing  the  civil  law  instead  of  the  common  law.  This 
dictum  has  been  approved  and  made  an  essential  part  of  the  reason- 

»  Here  follows  a  rather  full  citation  of  cases.  See  Hopt  v.  Utah.  110  U.  S. 
574  579,  4  Sup.  Ct  202,  28  L.  Ed.  262  (1SS4)  (presence  of  accused  at  trial); 
Howard  v.  Kentucky,  200  U.  S.  1G4,  26  Sup.  Ct.  189,  50  L.  Ed.  421  (1906) 
(same):  Diaz  v.  United  States,  223  U.  S.  442.  32  Sup.  Ct  250,  56  L.  Ed. 
500  (1912)  (same) :  Simon  v.  Craft.  182  U.  S.  427,  21  Sup.  Ct  836,  45  L.  Ed. 
1165  (1901)  (same — lunacy  proceedings) ;  Schwab  v.  Berggren,  143  U.  S.  442, 
12  Sup.  Ct.  525,  36  L.  Ed.  21S  (1892)  (same — appellate  proceedings);  Felts  v. 
Murphy,  201  U.  S.  123,  26  Sup.  Ct.  366,  50  U  Ed.  689  (1908)  (accused  too 
deaf  t"  near  evidence);  Louisville  &  N.  By.  Co.  v.  Schmidt,  177  U.  S.  230,  20 
Sup.  ct.  620,  44  L.  Ed.  747  (1900)  (Judgment  against  non-party);  West  v. 
Louisiana,  101  U.  S.  258,  24  Sup.  Ct  650.  48  L.  Ed.  965  (1904)  (use  of 
lions  as  criminal  evidence):  Reetz  v.  Michigan,  1SS  U.  S.  505,  23  .Sup.  Ct 
390,  47  L.  Ed.  563  11903)  (no  appeal  necessary);  Rawlins  v.  Georgia,  201  U. 
S.  638,  26  Sup.  Ct.  560,  50  L.  Ed.  899,  5  Ann.  Oas,  783  (1900)  (constitution 
of  jury):  Cram  v.  United  States,  162  U.  S.  625,  16  Sup.  Ct  952,  40  I*  Ed. 
1097  (1S!M)  (necessity  of  criminal  pleadings);  Mobile,  etc.,  Ry.  v.  Tumipseed, 
post  P.  3S1  (presumptions). 


284  FUNDAMENTAL    RIGHTS  (Part    2 

ing  of  the  decision  in  Holden  v.  Hardy,  169  U.  S.  387,  389,  18  Sup.  Ct. 
383,  42  L.  Ed.  789,  790,  and  Maxwell  v.  Dow,  176  U.  S.  598,  20  Sup. 
Ct.  448,  494,  44  L.  Ed.  597.  The  statement  excludes  the  possibility 
that  the  privilege  is  essential  to  due  process,  for  it  hardly  need  be  said 
that  the  interrogation  of  the  accused  at  his  trial  is  the  practice  in 
the  civil  law. 

Even  if  the  historical  meaning  of  due  process  of  law  and  the  deci- 
sions of  this  court  did  not  exclude  the  privilege  from  it,  it  would 
be  going  far  to  rate  it  as  an  immutable  principle  of  justice  which  is 
the  inalienable  possession  of  every  citizen  of  a  free  government. 
Salutary  as  the  principle  may  seem  to  the  great  majority,  it  cannot 
be  ranked  with  the  right  to  hearing  before  condemnation,  the  im- 
munity from  arbitrary  power  not  acting  by  general  laws,  and  the  in- 
violability of  private  property.  The  -wisdom  of  the  exemption  has 
never  been  universally  assented  to  since  the  days  of  Bentham,  many 
doubt  it  to-day,  and  it  is  best  defended  not  as  an  unchangeable  prin- 
ciple of  universal  justice,  but  as  a  law  proved  by  experience  to  be 
expedient.  See  Wigmore,  Ev.'  §  2251.  It  has  no  place  in  the  juris- 
prudence of  civilized  and  free  countries  outside  the  domain  of  the 
common  law,  and  it  is  nowhere  observed  among  our  own  people  in 
the  search  for  truth  outside  the  administration  of  the  law.  It  should, 
must,  and  will  be  rigidly  observed  where  it  is  secured  by  specific  con- 
stitutional safeguards,  but  there  is  nothing  in  it  which  gives  it  a  sanc- 
tity above  and  before  Constitutions  themselves.     *     *     * 

Judgment  affirmed.2 

[Harlan,  J.,  gave  a  dissenting  opinion.] 

2  Jurisdiction. — Whnt  constitutes  Jurisdiction  of  a  court  to  render  JniJg- 
ments  in  personam  and  in  rem  is  generally  discussed  in  connection  with  the 
subject  of  Conflict  of  Laws.  See,  however,  in  addition  to  the  cases  cited  in 
the  principal  case:  York  v.  Texas,  137  U.  S.  15,  11  Sup.  Ct.  9,  34  L.  Ed.  604 
(1890);  Fitzgerald  &  M.  Constr.  Co.  v.  Fitzgerald,  137  U.  S.  9S.  11  Sup.  Ct.  36, 
34  L.  Ed.  60S  (1S90):  Goldey  v.  Morning  News,  156  U.  S.  518.  15  Sup.  Ct. 
559,  39  L.  Ed.  517  (1S95) ;  Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley,  172  U.  S. 
602,  19  Sup.  Ct.  308,  43  L.  Ed.  569  (1899) ;  Schibsby  v.  Westenholz,  L.  R.  6  Q. 
B.  155  (1S70) ;  De  La  Montanya  v.  De  La  Montanya,  112  Cal.  101,  44  Pac.  345, 
32  L.  R.  A.  S2  (1890),  annotated  in  53  Am.  St.  Rep.  179-191;  Grover  &  B. 
Sewing  Mach.  Co.  v.  Radcliffe,  137  U.  S.  2S7,  11  Sup.  Ct.  92,  34  L.  Ed.  670 
(1890);  Peyerick  v.  Hubbard,  71  L.  J.  K.  B.  509  (1902);  Arndt  v.  Griggs,  134 
U.  S.  316,  10  Sup.  Ct.  557,  33  L.  Ed.  918  (1890)  (proceedings  in  rem) ;  Cunnius 
v.  Reading  School  Dist,  198  U.  S.  458,  25  Sup.  Ct.  721,  49  L.  Ed.  1125,  3 
Ann.  Cas.  1121  (1905)  (same) ;  Haddock  v.  Haddock,  201  U.  S.  562,  26  Sup.  Ct. 
525,  50  L.  Ed.  867,  5  Ann.  Cas.  1  (1906)  (divorce) ;  Michigan  Trust  Co.  v. 
Ferry,  22S  U.  S.  346,  33  Sup.  Ct.  550,  57  L.  Ed.  (1913)  (accounts  of  ad- 
ministrator) ;  Selover,  Bates  &  Co.  v.  Walsh,  226  U.  S.  112,  33  Sup.  Ct.  69,  57 
L.  Ed.  (1912)  (contract  to  sell  foreign  land). 

As  to  jurisdiction  to  impose  personal  obligations  (other  than  judgments) 
upon  non-residents  not  subject  to  state  process,  see  Dewey  v.  Des  Moines, 
post,  p.  571  (land  taxes) ;  Bernheimer  v.  Converse,  206  U.  S.  516,  27  Sup.  Ct 
755,  51  L.  Ed.  1163  (1907)  (stockholder's  liability  for  corporate  debts);  Corry 
v. 'Baltimore,  196  U.  S.  466,  25  Sup.  Ct.  297,  49  L.  Ed.  556  (1905)  (same— for 
taxes  on  shares  of  stock).  As  to  jurisdiction  to  penalize  extraterritorial  acts, 
see  United  States  v.  Holmes,  5  Wheat.  412.  5  I/.  Ed.  122  (1820)  (pirate  vessel) : 
United   States  v.   Rodgers,   150   TJ.   S.  249,   14   Sup.  Ct.  109,   37  L.  Ed.    1071 


Ch  9)      M  i:  process  and  equality:  ppoCEDURB        285 


UNITED  STATES  v.  JU  TOY. 

(Supreme  Court  of  United  States,   1905     19S  U.  S.  203,  25  Sup.  Ct  644,  49  L. 
Ed.  1040.) 

Mr.  Justice  Holmes.  This  case  comes  here  on  a  certificate  from 
the  circuit  court  of  appeals  presenting  certain  questions  of  law.  It 
appears  that  the  appellee,  being  detained  by  the  master  of  the  steam- 
ship Doric  for  return  to  China,  presented  a  petition  for  habeas  corpus 
to  the  district  court,  alleging  that  he  was  a  native-born  citizen  of  the 
United  States,  returning  after  a  temporary  departure,  and  was  denied 
permission,  to  land  by  the  collector  of  the  port  of  San  Francisco.  It 
also  appears  from  the  petition  that  he  took  an  appeal  from  the  denial, 
ami  that  the  decision  was  affirmed  by  the  Secretary  of  Commerce  and 
Labor.  No  further  grounds  are  stated.  The  writ  issued,  and  the 
United  States  made  return,  and  answered,  showing  all  the  proceed- 
ifore  the  Department,  which  are  not  denied  to  have  been  in  reg- 
ular form,  and  setting  forth  all  of  the  evidence  and  the  orders  made. 
The  answer  also  denied  the  allegations  of  the  petition.  Motions  to 
dismiss  the  writ  were  made  on  the  grounds  that  the  decision  of  the 
Secretary  was  conclusive,  and  that  no  abuse  of  authority  was  shown. 
These  were  denied,  and  the  district  court  decided,  seemingly  on  new 
evidence,  subject  to  exceptions,  that  Ju  Toy  was  a  native-born  citizen 
of  the  United  States.  An  appeal  was  taken  to  the  circuit  court  of 
appeals,  alleging  errors  the  nature  of  which  has  been  indicated.  There- 
upon the  latter  court  certified  the  following  questions :     *     *     * 

"Third.  In  a  habeas  corpus  proceeding  in  a  district  court  of  the 

(1803)  (domestic  vessel);  Nielsen  v.  Oregon,  212  V.  S.  315,  29  Sup.  Ct  383, 
63  L.  Ed.  628  (1909)  (non-resident);  American  Banana  Co.  v.  United  Fruit 
Co.,  213  D.  S.  347,  29  Sup.  Ct.  611,  63  L.  Ed.  826,  16  Ann.  Cas.  1041 
(Domestic  corporation):  D.  S.  v.  Nord-Deutscher  Lloyd,  223  V.  s.  512,  32  Sup 
ct.  244,  56  I*  Ed.  531  (1912)  (foreign  corporation);  Straasbeim  v.  Daily.  221 
IT.  S.  280,  284,  285,  "1  Sup.  Ct  558,  65  L.  Ed.  735  (1911)  (foreign  acts  pro- 
ducing effect  within  state). 

As  to  jurisdiction  for  taxation,  sec  post.  pp.  535-678. 

Nonet:,     As  to  what  constitutes  a  proper  mode  of  giving  notice,  see  Hamil- 
ton v.  Brown,  n;i  D.  S.  255  1('>  Sop,  Ct  586,  40  r..  Ed  69]  (1896)  (pul 

at);  Cunnius  v.  Reading  School  Dlst,  198  U.  8,  168,  25  Sup.  Ct  721, 
40  L.  Ed.  L125,  8  Ann.  ('.is.  1121  (1905)  (Same— distributing  estate  of  ab- 
sentee); Jacob  v.  Rob(  >;s.  223  O.  B.  261,  32  Sup.  Ot  303,  56  I..  Ed  429  (1912) 
(same  quieting  title);  ReetZ  v.  Michigan,  188  V.  S.  606,  609,  23  Sup.  Ct 
390.  -IT  I..  Ed.  563  (1903)  (statutory  notice);  Roller  v.  Holly,  176  O.  S.  898,  20 
Sup.  Ct.  410,  it  l..  Ed.  520(1900)  (length  of  m  try);    in  re  Lennon, 

166  r.  s.  548,  it  Sup.  Ct  658,  41  I..  Ed,  ill"  (1897)  (notice  valid  aga 

io   suit);     Straub  v.   Lyman  Land   Co.   (S.   D.)   138    N.    W.  957   (1912) 
.mi  of  state);    Wetmc       I       ot  McKay,  \.  Karri,  u.  206  D.  S, 
Ml.  UT  Sup.  Ct  484,  51  L.  Ed.  745  (1907)  (vacation  of  judgment). 

As  to  necessary  content  of  notice,  see  Ontario  Land  Co.  v.  Wlifong,  22.".  I", 
s.  643,  32  sup.  Ot,  828,  66  L.  Kd.  5-14  (1512)  (description  of  property  taxed); 
Standard  Oil  Co.  of  Indiana  v.  Missouri  ex  inf.  Hadley,  22  (  D.  S.  270,  32  Sup 
Ct  406.  66  L.  Eld.  760  (1912)  (Judgment  must  be  responsive  to  complaint). 
Washington  v.  Falrchlld  221  V.  s  610,  32  sup.  ct.  685  68  L.  Ed.  si 
isMiue  of  raJ  .'  l]   commission's  orders). 

liKAiuNO.— As  to  what  constitutes  a  proper  hearing,  see  Louisville  &  N.  K.v 


'2S6  FUNDAMENTAL    RIGHTS  (Part    2 

United  States,  instituted  *  *  *  [upon  the  grounds  of  this  case], 
should  the  court  treat  the  finding  and  action  of  such  executive  officers 
upon  the  question  of  citizenship  and  other  questions  of  fact  as  having 
been  made  by  a  tribunal  authorized  to  decide  the  same,  and  as  final  and 
conclusive  unless  it  be  made  affirmatively  to  appear  that  such  officers, 
in  the  case  submitted  to  them,  abused  the  discretion  vested  in  them,  or, 
in  some  other  way,  in  hearing  and  determining  the  same,  committed 
prejudicial  error?"    »    *    * 

The  broad  question  is  presented  whether  or  not  the  decision  of  the 
Secretary  of  Commerce  and  Labor  is  conclusive.  '  It  was  held  in  United 
States  v.  Sing  Tuck,  194  U.  S.  161,  167,  920,  24  Sup.  Ct.  621,  48  L.  Ed. 
917,  that  the  act  of  August  18,  1894  (28  Stat.  372,  390,  c.  301,  §  1, 
[U.  S.  Comp.  St.  1901,  p.  1303]),  purported  to  make  it  so,  but  wheth- 
er the  statute  could  have  that  effect  constitutionally  was  left  untouched, 
except  by  a  reference  to  cases  where  an  opinion  already  had  been 
expressed.  To  quote  the  latest  first,  in  Japanese  Immigrant  Case 
(Yamataya  v.  Fisher)  189  U.  S.  86,  97,  724,  23  Sup.  Ct.  611,  613,  47 
L.  Ed.  721,  it  was  said:  "That  Congress  may  exclude  aliens  of  a 
particular  race  from  the  United  States,  prescribe  the  terms  and  condi- 
tions upon  which  certain  classes  of  aliens  may  come  to  this  country, 
establish  regulations  for  sending  out  of  the  country  such  aliens  as 
come  here  in  violation  of  law,  and  commit  the  enforcement  of  such 
provisions,  conditions,  and  regulations  exclusively  to  executive  offi- 
cers, without  judicial  intervention,  are  principles  firmly  established  by 
the  decisions  of  this  court."  See,  also,  United  States  ex  rel.  Turner 
v.  Williams,  194  U.  S.  279,  290,  291,  24  Sup.  Ct.  719,  48  L.  Ed.  979, 

Co.  v.  Woodson,  134  U.  S.  614,  10  Sup.  Ct  628,  33  L.  Ed.  1032  (1S90) ;  Lowe 
v.  Kansas,  163  U.  S.  81,  16  Sup.  Ct.  1031,  41  L.  Ed.  78  (1896) ;  Chin  Tow  v. 
United  States,  208  U.  S.  8,  28  Snp.  Ct  201,  52  L.  Ed.  369  (190S);  Londoner  v. 
Denver,  ante,  p.  279,  note;    United  States  C.  &  C.  Traction  Co.  v.  Baltimore  & 

O.  S.  W.  Ry.  Co.,  226  U.  S.  14,  20.  33  Sup.  Ct.  5,  57  L.  Ed.  (1912)  (private 

investigation  by  tribunal) ;  Low  Wan  Suey  v.  Backus,  225  U.  S.  460,  32  Sup. 
Ct  734,  56  L.  Ed.  1165  (1912)  (power  to  compel  attendance  of  witnesses  in 
alien  exclusion  case  not  necessary).  It  is  sufficient  if  a  hearing  is  afforded 
at  any  time  before  final  judgment.  Wilson  v.  Standefer,  184  U.  S.  399,  415, 
22  Sup.  Ct  384,  46  L.  Ed.  612  (1902). 

As  to  how  far  a  party's  own  misconduct  may  validly  operate  to  deprive  him 
of  a  hearing,  see  Allen  v.  Georgia,  166  U.  S.  138,  17  Sup.  Ct  525,  41  L.  Ed. 
B49  (1S97);  Hovey  v.  Elliott  167  U.  S.  409,  17  Sup.  Ct  841,  42  L.  Ed.  215 
(1897);  Hammond  Packing  Co.  v.  Arkansas,  212  U.  S.  322,  349  ff.,  29  Sup.  Ct 
370,  53  L.  Ed.  530,  15  Ann.  Cas.  645  (1909). 

Non-Procedural  Protection  to  Persons  Accused  of  Crime. — The  princi- 
pal case  and  its  notes  consider  how  far  various  procedural  requirements  (some 
of  which  are  usually  specifically  secured  by  other  constitutional  provisions) 
are  necessary  to  due  process  of  law.  Most  Constitutions  also  secure  to  per- 
sons accused  of  crime  certain  additional  privileges  not  strictly  of  a  pro- 
cedural character.  As  to  how  far  some  of  these  are  also  included  in  the  no- 
tion of  due  process,  see  Ex  parte  Ulrich  (D.  C.)  42  Fed.  5S7  (1890)  (double 
jeopardy)  [reversed  on  other  grounds  in  (C.  C.)  43  Fed.  661  (1890)];  In  re 
Kemmler,  136  U.  S.  436,  10  Sup.  Ct.  930,  34  L.  Ed.  519  (1880)  (punishment) ; 
Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S.  86,  111,  29  Sup.  Ct.  220,  53  L.  Ed. 
417  (1909)  (same) ;  Consolidated  Rendering  Co.  v.  Vermont,  207  U.  S.  541,  28 
Sup.  Ct  178,  52  L.  Ed.  327,  12  Ann.  Cas.  658  (1908)  (searches  and  seizures). 


Ch.  9)  DUE   PROCESS   AND   EQUALITY  I      PROCEDURE  287 

983,  984;  Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  200,  22  Sup. 
Ct.  891,  46  L.  Ed.  1121,  1125.  In  Fok  Young  Yo  v.  United  States. 
185  U.  S.  296,  304,  305,  22  Sup.  Ct.  6S6,  46  L.  Ed.  917,  921,  it  was 
held  that  the  decision  of  the  collector  of  customs  on  the  right  of  transit 
across  the  territory  of  the  United  States  was  conclusive,  and,  still  more 
to  the  point,  in  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  15 
Sup.  Ct.  967,  39  L.  Ed.  1082,  where  the  petitioner  for  habeas  corpus 
alleged  facts  which,  if  true,  gave  him  a  right  to  enter  and  remain  in 
the  country,  it  was  held  that  the  decision  of  the  collector  was  final 
as  to  whether  or  not  he  belonged  to  the  privileged  class. 

It  is  true  that  it  may  be  argued  that  these  cases  are  not  directly  con- 
clusive of  the  point  now  under  decision.  It  may  be  said  that  the  par- 
ties concerned  were  aliens,  and  that  although  they  alleged  absolute 
rights,  and  facts  which  it  was  contended  went  to  the  jurisdiction  of  the 
officer  making  the  decision,  still  their  rights  were  only  treaty  or  stat- 
utory rights,  and  therefore  were  subject  to  the  implied  qualification  im- 
posed by  the  later  statute,  which  made  the  decision  of  the  collector 
with  regard  to  them  final.  The  meaning  of  the  cases,  and  the  lan- 
guage which  we  have  quoted,  is  not  satisfied  by  so  narrow  an  inter- 
pretation, but  we  do  not  delay  upon  them.    They  can  be  read. 

It  is  established,  as  we  have  said,  that  the  act  purports  to  make  the 
decision  of  the  Department  final,  whatever  the  ground  on  which  the 
right  to  enter  the  country  is  claimed, — as  well  when  it  is  citizenship 
as  when  it  is  domicil,  and  the  belonging  to  a  class  excepted  from  the 
exclusion  acts.  United  States  v.  Sing  Tuck,  194  U.  S.  161,  167,  24 
Sup.  Ct.  621,  48  L.  Ed.  917,  920;  Lem  Moon  Sing  v.  United  States, 
158  U.  S.  538,  546,  547,  39  L.  Ed.  1082,  15  Sup.  Ct.  Rep.  967.  It  also 
is  established  by  the  former  case  and  others  w'hich  it  cites  that  the 
relevant  portion  of  the  act  of  August  18,  1894  (28  Stat.  372,  c.  301). 
is  not  void  as  a  whole.  The  statute  has  been  upheld  and  enforced.  But 
the  relevant  portion  being  a  single  section,  accomplishing  all  its  results 
by  the  same  general  words,  must  be  valid  as  to  all  that  it  embraces,  or 
altogether  void.  An  exception  of  a  class  constitutionally  exempted 
cannot  be  read  into  those  general  words  merely  for  the  purpose  of 
saving  what  remains.  That  has  been  decided  over  and  over  again 
*  *  *  [citing  U.  S.  v.  Reese,  92  U.  S.  214,  and  other  cases].  It 
necessarily  follows  that  wVien  such  words  are  sustained,  they  are  sus- 
tained to  their  full  extent. 

In  view  of  the  cases  which  we  have  cited  it  seems  no  longer  open 
to  discuss  the  question  propounded  as  a  new  one.  Therefore  we  do  not 
analyze  the  nature  of  the  right  of  a  person  presenting  himself  at  the 
frontier  for  admission.  In  re  Ross  (Ross  v.  Mclntyre)  140  U.  S.  453, 
464,  11  Sup.  Ct.  897,  35  L  Ed.  581,  586.  But  it  is  not  improper  to 
add  a  few  words.  The  petitioner,  although  physically  within  our 
boundaries,  is  to  be  regarded  as  if  he  had  been  stopped  at  the  limit  oi 
our  jurisdiction,  and  kept  there  while  his  right  to  enter  was  under 
debate.     If,  for  the  purpose  of  argument,  we  assume  that  the  fifth 


288  FUNDAMENTAL    EIGHTS  (Part  2 

amendment  applies  to  him,  and  that  to  deny  entrance  to  a  citizen  is  to 
deprive  him  of  liberty,  we  nevertheless  are  of  opinion  that  with  regard 
to  him  due  process  of  law  does  not  require  judicial  trial.  That  is  the 
result  of  the  cases  which  we  have  cited,  and  the  almost  necessary 
result  of  the  power  of  Congress  to  pass  exclusion  laws.  That  the  de- 
cision may  be  intrusted  to  an  executive  officer,  and  that  his  decision  is 
due  process  of  law,  was  affirmed  and  explained  in  Nishimura  Ekiu  v. 
United  States,  142  U.  S.  651,  660,  12  Sup.  Ct.  336,  35  L.  Ed.  1146, 
1149,  and  in  Fong  Yue  Ting  v.  United  States,  149  U.  S.  69S,  713,  13 
Sup.  Ct.  1016,  37  L.  Ed.  905,  913,  before  the  authorities  to  which  we 
already  have  referred.  It  is  unnecessary  to  repeat  the  often-quoted 
remarks  of  Mr.  Justice  Curtis,  speaking  for  the  whole  court  in  Den  ex 
dem.  Murray  v.  Hoboken  Land  &  Improv.  Co.,  18  How.  272,  280,  15 
L.  Ed.  372,  376,  to  show  that  the  requirement  of  a  judicial  trial  does 
not  prevail  in  every  case.  Lem  Moon  Sing  v.  United  States,  158  U. 
S.  538,  546,  547,  15  Sup.  Ct.  967,.39  L.  Ed.  1082,  1085;  Tapanese  Im- 
migrant Case  (Yamataya  v.  Fisher)  189  U.  S.  86.  100,  23  Sup.  Ct.  611, 
47  L.  Ed.  721,  725 ;  Public  Clearing  House  v.  Coyne,  194  U.  S.  497, 
50S,  509,  24  Sup.  Ct.  789,  48  L,  Ed.  1092,  1098. 

We  are  of  opinion  that  *  *  *  the  third  question  should  be  an- 
swered, "Yes."    *    *    * 

So  certified. 

[Brewer,  J.,  gave  a  dissenting  opinion,  in  which  Peckham,  J.,  con- 
curred.    Day,  J.,  also  dissented.] 

Administrative  Determination  of  Facts. — In  respect  to  controversies 
arising  out  of  the  administration  of  law  on  behalf  of  the  public,  not  involving 
the  punishment  of  offenses,  due  process  of  law  is  afforded,  in  the  absence  of 
fraud  or  other  manifest  abuse  of  authority,  by  submitting  to  an  adminis- 
trative tribunal  the  final  determination  of  facts,  after  a  fair  hearing.  Hilton 
v.  Merritt,  110  U.  S.  97,  3  Sup.  Ct  548,  28  L.  Ed.  83  (1884)  (appraisal  of  im- 
ports);  Burfenmng  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  163  U.  S.  321,  16 
Sup.  Ct.  1018.  41  L.  Ed.  175  (1896)  (administration  of  public  land  system) : 
Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U.  S.  112,  167-170,  17  Sup.  Ct  56.  41 
L.  Ed.  369  (1S96)  (lands  benefited  by  an  irrigation  scheme) ;  Bushnell  v.  Ice- 
land, 164  U.  S.  684,  17  Sup.  Ct.  209,  41  L.  Ed.  598  (1S97)  (appointment  of  na- 
tional bank  receiver) ;  Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U. 
S.  6S5,  695,  17  Sup.  Ct  718,  41  L.  Ed.  1165  (1897)  (value  of  property  taken  by 
eminent  domain) ;  United  States  ex  rel.  Bernardin  v.  Duell,  172  U.  S.  576, 
583,  19  Sup.  Ct.  2S6,  43  L.  Ed.  559  (1899)  (issuing  of  patents  prior  to  1836) ; 
Louisville  &  N.  Ry.  Co.  v.  Kentucky,  183  U.  S.  503,  515,  516,  22  Sup.  Ct.  95, 
46  L.  Ed.  298  (1902)  (long  and  short  haul  regulation) ;  Hibben  v.  Smith,  191 
U.  S.  310,  24  Sup.  Ct  88,  48  L.  Ed.  195  (1903)  (benefits  from  street  improve- 
ment) ;  Bates  &  G.  Co.  v.  Payne,  194  U.  S.  106,  24  Sup.  Ct.  595,  48  L.  Ed  894 
(1904)  (classification  of  mail  matter);  Public  Clearing  House  v.  Coyne,  194 
U.  S.  407,  24  Sup.  Ct.  7S9,  48  L.  Ed.  1092  (1904)  (excluding  fraudulent  matter 
from  the  mails);  Union  Bridge  Co.  v.  United  States,  204  U.  S.  364,  27  Sup. 
Ct.  367,  51  L.  Ed.  523  (1907)  (obstruction  of  navigation  by  bridge). 

Administrative  Determination  of  Law. — Likewise,  whenever  the  deter- 
mination of  questions  of  law  arising  in  administrative  proceedings  is  clearly 
left  to  the  final  decision  of  an  administrative  tribunal,  there  can  be  no  appeal 
to  the  courts  save  for  abuse  of  authority.  United  States  ex  rel.  Riverside  Oil 
Co.  v.  Hitchcock,  190  U.  S.  316,  23  Sup.  Ct  698,  47  L.  Ed.  1074  (1903),  ap- 
proved in  Bates  &  G.  Co.  v.  Payne,  194  U.  S.  106,  109,  24  Sup.  Ct  595,  48  U 
Ed.  894  (1904)  (citing  earlier  cases). 


Ch.  9)        DUE  PROCESS  AND  EQUALITY  l      PROCEDURE  289 

In  Reetz  v.  Michigan,  1S8  U.  S.  505,  507,  23  Sup.  Ct.  .°.00,  391,  47  L.  Ed   563 
(1903),  upholding  the  action  of  a  state  board  vested  with  power  Anally  to  de- 
termine certain  questions  of  law  and  fact  upon  which  depended  an  applicant's 
right  to  practice  medicine,  Brewer,  J.,  said:    "We  know  of  no  provision  in  (he- 
federal  Constitution  which  forbids  a  state  from  granting  to  a  tribunal 
er  called  a  court  or  a  board  of  registration,  the  final  determination  ol 
question.     Indeed,  It  not  infrequently  happens  lhat  a  full  discharge  of  their 
duties  compels  boards,  or  officers  of  a   purely  ministerial  character,  to  eon- 
sider'and  determine  questions  of  a  legal  nature.     Due  process  Is  not  neces- 
sarily judicial  process.    Den  ex  dem.  Murray  v.  Iloboken  Land  &  [mproT.  Co., 
18  How.  272,  15  L.  Ed.  372;    Davidson  v.  New  Orleans,  96  D.  S.  07,  24  L.  Ed. 
616;   In  re  Wall,  107  U.  S.  265,  2S9.  2  Sup.  Ct.  509.  27  L.  EdL  r,:c.  562;    Drever 
v.  Illinois,  187  U.  S.  71.  83,  23  Sup.  Ct.  28,  32,  47  L.  Ed.  79;    People  v.  Has- 
broucU,   11    Utah,  291,  39  Pae.  918.     In  the  last  ease  this  verj 
presented,  and  in  the  opinion,   on  page  305,  of  11   Utah,  on  page  921,  of  39 
Pac,  it  was  said:   'The  objection  that  the  statute  attempts  to  confer  judicial 
power  on  the  board  is  not  well  founded.     Many  executive  officers,  even  those 
who  are  spoken  of  as   purely  ministerial  officers,  act  Judicially  in 
termination  of  facts  in  the  performance  of  their  official  nd   In  so 

doing  they  do  not  exercise  "judicial  power,"  as  that  phrase  is  commonly  used, 
and  as  it  is  used  in  the  organic  act  in  conferring  judicial  power  upon 
courts.     The  powers  conferred  on  the  board  ol 

different  in  character  In  this  respect  from  those  exercised  by  the  examiners  ol 
candidates  to  teach  in  our  public  schools,  or  by  tax  assessors  or  boards  of 
equalization  in  determining  for  purposes  of  taxation,  the  value  of  pr 
The  ascertainment  and  determination  of  qualifications  to  practice  medicine 
by  a  board  of  competent  experts,  appointed  for  that  purpose,  is  not  the  exer- 
cise of  a  power  which  appropriately  belongs  to  the  judicial  department  of  the 
government' " 

So,  also,  Meffert  v.  State  Board  of  Medical   Registration  &  Examination, 
66  Kan.   710,  72  Pac.   247  (1903)  (revocation  i  q's  license),  a 

Meffert  v.  Packer,  195  U.  S.  625,  25  Sup.  Ct  790,  49  L.  Ed.  350,  annotated  in 
1   L.  It.  A.  (N.  S.)  811-813. 

See,  also,   State  v.  Thome,   ante,  p.  72,  note  for   the   distinction  between 
"acting  judicially"  and  exorcising  such  particular  judicial  powers  as  ai 
erally  vested  in  courts. 

Detebminatton    of    Administrative    Jurisdiction. — Questions    as    to    the 
existence  or  extent  of  the  jurisdiction   or  authority   claimed   by  an   adminis- 
trative tribunal  are  seldom  left  to  its  final  determination,  even  if  this 
be  consistent  with  due  process,  American  Si  netic  Healing  v.  Me- 

Annultv.  187  U.  S.  91.  23  Sup.  Ct.  33,  47  L.  Ed.  90  (1902);    Gonzales  v.  Wil- 
liams, 192  U.  S.  1,  24  Sup.  Ct.  171.  48  L.  Ed.  317  (1904);    and   D 
ates  will  be  less  readily  interpreted  as  designed  to  give  such  tri'"  ■ 
final  word  in  questions  of  law  than  in  questions  of  fact.    As  to  th 
between  a  tribunal's  power  to  determine  its  jurisdiction  and  to  di 
troversies  within  its  jurisdiction,  see  FaunHeroy   v.  l.um,  210  U.    S.  2 
235.  28  Sup.  Ct.  641,  52  L.  Ed.  1039  (1908);    interstate  Commerce  Commission 
v.  Northern  Pac.  Ry.  Co.,  216  CJ.  S.  538,  30  Sup.  Ct.   117.  54  L.   Ed    608  (1910); 
Interstate  Commerce  Commission  v.  United  '.  Ilumbolt  S.  S.  Co., 

224  r.  S.  -174,  4S4,  32  Sup.  Ct  556,  56  L.  Ed.  849  (1912). 

In  Interstate  Commerce  Commis  ion  v.   Louisville  &  N.  Ry.  Co.,  227  '■'■  S 
88,  91,  92,  33  Sup.  Ct.  18S,  Inc.  57  L.  Ed.    -  -  (1913),  the  inters!  it 
Commission  had  acted  under  Its  statutory  power  to  set  aside  a  railroad  rate, 
if,  after  a  hearing,  it  was  of  the  opinion  that  the  rate  was  unreasonable.     In 
discussing  the  extent  to  which  a  Judicial  review  of  this  determination  was 
permissible,  Lamar,  J.,  said:    "The  statute  gave  the  right  to  a   full   hearing. 
ai  a  thai  confi  rred   the  prii  lies  :  ol    introdt    ing  testimony,  and  i 
time  imposed  the  duty  of  deciding  in  accordance  with  the  facts  proi 
Chiding  without:  evidence  is  arbitrary  and  baselesa    And  if  the  go 
contention  is  correct,  it  would  mean  that  the  Commission  had  a  power  pos 
sessed  by  do  other  officer;  administrative  body,  or  tribunal  undei  ■ 
ment     It  would  mean  that,  where  rights  depended  upon  facts,  the  Commis- 
Hall  Const.L. — 19 


2d0  FUNDAMENTAL    RIGHTS  (Part  2 

sion  could  disregard  all  rules  of  evidence,  and  capriciously  make  findings  by 
administrative  fiat  Such  authority,  however  beneficently  exercised  in  one 
case,  could  be  injuriously  exerted  in  another,  is  inconsistent  with  rational 
justice,  and  comes  under  the  Constitution's  condemnation  of  all  arbitrary 
exercise  of  power.  In  the  comparatively  few  cases  in  which  such  questions 
have  arisen  it  has  been  distinctly  recognized  that  administrative  orders, 
quasi  judicial  In  character,  are  void  If  a  hearing  was  denied;  if  that  granted 
was  inadequate  or  manifestly  unfair;  if  the  finding  was  contrary  to  the  'in- 
disputable character  of  the  evidence*  (Tang  Tun  v.  Edsell,  223  U.  S.  681,  32 
Sup.  Ct.  359,  56  L.  Ed.  610;  Chin  Yow  v.  United  States.  20S  U.  S.  13,  28  Sup. 
Ct.  201,  52  L.  Ed.  370 ;  Low  Wah  Suey  v.  Backus,  225  D.  S.  46S,  32  Sup.  Ct. 
734,  56  L.  Ed.  1167 ;   Zakonaite  v.  Wolf,  226  U.  S.  272,  33  Sup.  Ct.  31,  57  L.  Ed. 

),  or  if  the  facts  found  do  not,  as  a  matter  of  law,  support  the  order  made. 

*  *  *  Whether  the  order  deprives  the  carrier  of  a  constitutional  or  stat- 
utory right,  whether  the  hearing  was  adequate  and  fair,  or  whether  for  any 
reason  the  order  is  contrary  to  law — are  all  matters  within  the  scope  of  ju- 
dicial power.  Under  the  statute  the  carrier  retains  the  primary  right  to 
make  rates,  but  If,  after  hearing,  they  are  shown  to  be  unreasonable,  the  Com- 
mission may  set  them  aside  and  require  the  substitution  of  just  for  unjust 
charges.  The  Commission's  right  to  act  depends  upon  the  existence  of  this 
fact,  and  if  there  was  no  evidence  to  show  that  the  rates  were  unreasonable 
there  was  no  jurisdiction  to  make  the  order.  Interstate  Commerce  Commis- 
sion v.  Northern  Pac.  R.  Co..  216  U.  S.  544,  30  Sup.  Ct.  417,  54  L.  Ed.  609. 
In  a  case  like  the  present  the  courts  will  not  review  the  Commission's  conclu- 
sions of  fact  (Interstate  Commerce  Commission  v.  Delaware,  L.  &  W.  R.  Co., 
220  U.  S.  251,  31  Sup.  Ct.  392,  55  L.  Ed.  456)  by  passing  upon  the  credibility 
of  witnesses  or  conflicts  in  the  testimony.  But  the  legal  effect  of  evidence  is 
a  question  of  law.  A  finding  without  evidence  is  beyond  the  power  of  the 
Commission." 

See,  also,  the  rules  for  reviewing  the  Commission's  orders  laid  down  in  In- 
terstate Commerce  Commission  v.  Union  Pac.  Ry.  Co.,  222  U.  S.  541,  547,  32 
Sup.  Ct.  108,  56  L.  Ed.  308  (1912).  For  the  practical  application  of  these 
rules  see  the  discussion  in  the  same  case  on  the  merits,  and  in  Southern  Pac. 
Co.  v.  Interstate  Commerce  Commission,  219  U.  S.  433,  31  Sup.  Ct.  2SS,  55 
L.  Ed.  2S3  (1911)  [compare  Southern  Pac.  Co.  v.  United  States  (Com.  C.)  197 
Fed.  167  (1912)] ;  Interstate  Commerce  Commission  v.  Louisville  &  N.  Ry.  Co., 
above;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Interstate  Commerce  Commission  (Com. 
C.)  190  Fed.  591  (1911)  [compare  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States 
(Com.  C.)  203  Fed.  56  (1913)]. 

Separation  of  Departments  of  Government. — Due  process  of  law  does 
not  necessarily  require  a  separation  of  departments  in  the  administration  of 
government.  Forsvth  v.  Hammond,  166  U.  S.  506,  519,  17  Sup.  Ct.  665,  41 
L.  Ed.  1095  (1S97) :  Dreyer  v.  Illinois,  187  U.  S.  71,  83,  S4,  23  Sup.  Ct.  28, 
47  L.  Ed.  79  (1902);  Michigan  Cent.  Ry.  Co.  v.  Powers,  201  U.  S.  245,  294. 
26  Sup.  Ct.  459,  50  L.  Ed.  744  (1906);  Prentis  v.  Atlantic  Coast  Line  Co.,  211 
U.  S.  210,  225,  29  Sup.  Ct.  67,  53  L.  Ed.  150  (190S) ;  Winchester,  etc.,  Ry. 
v.  Com.,  supra,  p.  95,  note. 

Criminal  Punishment  by  Administrative  Tribunal. — An  administrative 
tribunal  cannot  "under  our  system  of  government  and  consistently  with  due 
process  of  law  be  invested  with  authority  to  compel  obedience  to  its  orders 
by  a  judgment  of  fine  or  imprisonment.  *  *  *  [This]  can  only  be  exerted, 
under  the  law  of  the  land,  by  a  competent  judicial  tribunal  having  jurisdic- 
tion in  the  premises." — Harlan,  J.,  in  Interstate  Commerce  Commission  v. 
Brimson,  154  U.  S.  447,  485,  155  U.  S.  3,  14  Sup.  Ct.  1125.  15  Sup.  Ct.  19,  38  L. 
Ed.  1047,  39  L.  Ed.  49  (1S94),  ante,  at  p.  74.  See,  also,  Wong  Wing  v.  United 
States,  post,  p.  091  note.  16  Sup.  Ct.  977.  41  L.  Ed.  140.  Compare  Oceanic 
Steam  Nav.  Co.  v.  Stranahan,  214  U.  S.  320,  338-340,  29  Sup.  Ct.  671,  53  L. 
Ed.  1013  (1909),  permitting  the  infliction  of  a  quasi-criminal  pecuniary  penalty 
by  administrative  coercion.  See  the  reasoning  of  the  extract  from  this  case 
printed  post,  p.  298, 


Ch.  9)  DOTS    PROCESS    AND    EQUALITY:      PROCEDURE*  291 

FALLBROOK  IRRIGATION  DIST.  v.  BRADLEY  (1896)  164 
U.  S.  112,  167-170,  17  Sup.  Ct.  56,  41  L.  Ed.  369,  Mr.  Justice 
HAM  (reversing  the  judgment  of  the  federal  Circuit  Court  for  the 
Southern  District  of  California,  and  upholding  the  creation  of  an  ir- 
rigation taxing  district  under  a  state  statute  authorizing  a  county 
board  of  supervisors,  upon  certain  proceedings  being  taken,  to  in- 
clude in  said  district  all  lands  that  would  be  benefited  by  a  common 
system  of  irrigation.  It  was  alleged  that  certain  lands  not  benefited 
had  been  improperly  included  by  said  board) : 

"Assuming  for  the  purpose  of  this  objection  that  the  owner  of 
these  lands  had,  by  the  provisions  of  the  act,  and  before  the  lands 
were  finally  included  in  the  district,  an  opportunity  to  be  heard  be- 
fore a  proper  tribunal  upon  the  question  of  benefits,  we  are  of  opin- 
ion that  the  decision  of  such  a  tribunal,  in  the  absence  of  actual  fraud 
and  bad  faith,  would  be,  so  far  as  this  court  is  concerned,  conclusive 
upon  that  question.  It  cannot  be  that  upon  a  question  of  fact,  of 
such  a  nature,  this  court  has  the  power  to  review  the  decision  of  the 
state  tribunal  which  has  been  pronounced  under  a  statute  providing 
for  a  hearing 'upon  notice.  The  erroneous  decision  of  such  a  ques- 
tion of  fact  violates  no  constitutional  provision.  The  circuit  court 
in  this  case  has  not  assumed  to  undertake  any  such  review  of  a  ques- 
tion of  fact.     *     *     * 

"In  view  of  the  finding  of  the  board  of  supervisors  on  this  ques- 
tion of  benefits,  assuming  that  there  has  been  one,  this  court  cannot 
say,  as  a  matter  of  law,  that  the  lands  of  the  plaintiff  in  this  case 
have  not  been,  or  cannot  be,  benefited  by  this  proposed  irrigation. 
There  can  be  no  doubt  that  the  board  of  supervisors  (if  it  have  power 
to  hear  the  question  of  benefits,  as  to  which  something  will  be  said 
under  another  head  of  this  discussion)  would  be  a  proper  and  suf- 
ficient tribunal  to  satisfy  the  constitutional  requirement  in  such  case. 
In  speaking  of  a  board  of  supervisors,  Mr.  Chief  Justice  Waite,  in 
Spring  Valley  Waterworks  Co.  v.  Schottler,  110  U.  S.  347,  354,  4 
Sup.  Ct.  48,  52,  28  L.  Ed.  173.  said:  'Like  every  other  tribunal  estab- 
lished by  the  legislature  for  such  a  purpose,  their  duties  are  judicial 
in  their  nature,  and  they  are  bound,  in  morals  and  in  law,  to  exercise 
an  honest  judgment  as  to  all  matters  submitted  for  their  official  de- 
termination. It  is  not  to  be  presumed  that  they  will  act  otherwise 
than  according  to  this  rule.'  In  that  case  the  board  was  to  fix  the 
price  of  water,  while  in  this  it  is  to  determine  the  fact  of  benefits  to 
lands.    The  principle  is  the  same  in  each  case. 

"It  may  be  that  the  action  of  the  board  upon  any  question  of  fact 
as  to  contents  or  sufficiencv  of  the  petition,  or  upon  any  other  fact 
of  a  jurisdictional  nature,  is  open  to  review  in  the  state  courts.  It 
would  seem  to  be  so  held  in  the  Tregea  Case,  decided  in  1891.  SS 
Cal.  334,  26  Pac.  237. 


292  FUNDAMENTAL    RIGHTS  (Part  2 

"If  the  state  courts  would  have  had  the  right  to  review  these  find- 
ings of  fact,  jurisdictional  in  their  nature,  the  United  States  circuit 
court  had  the  same  right  in  this  case;  but  it  has  not  done  so,  its  judg- 
ment being  based  upon  the  sole  ground  that  the  act  was  a  violation 
of  the  fourteenth  amendment  of  the  federal  Constitution.  Upon 
the  question  of  fact  as  to  benefits,  decided  by  the  board,  it  is  held  in 
the  Trcgea  Case  that  its  decision  is  conclusive.  SS  Cal.  334,  and  26 
Pac.  237,  supra.  Whether  a  review  is  or  is  not  given  upon  any  of  these 
questions  of  fact  (if  the  tribunal  created  by  the  state  had  power  to 
decide  them,  and  if  an  opportunity  for  a  hearing  were  given  by  the 
act)  is  a  mere  question  of  legislative  discretion.  It  is  not  constitu- 
tionally necessary  in  such  cases  to  give  a  rehearing  or  an  appeal. 
Missouri  v.  Lewis,  101  U.  S.  22,  25  L.  Ed.  9S9;  Pearson  v.  Yewdall, 
95  U.  S.  294,  24  L.  Ed.  436. 

"Very  possibly  a  decision  by  the  statutory  tribunal  which  included 
tracts  of  land  within  the  district  that  plainly  could  not,  by  any  fair 
or  proper  view  of  the  facts,  be  benefited  by  irrigation,  would  be  the 
subject  of  a  review  in  some  form,  and  of  a  reversal  by  the  courts, 
on  the  ground  that  the  decision  was  based  not  alone  upon  no  evidence 
in  its  favor,  but  that  it  was  actually  opposed  to  all  the  evidence,  and 
to  the  plain  and  uncontradicted  facts  of  common  knowledge,  and  was 
given  in  bad  faith.  In  such  case  the  decision  would  not  have  been  the 
result  of  fair  or  honest,  although  grossly  mistaken,  judgment,  but 
would  be  one  based  upon  bad  faith  and  fraud,  and  so  could  not  be 
conclusive,  in  the  nature  of  things." 

[Fuller,  C.  J.,  and  Field,  J.,  dissented.] 

Erroneous  Decisions. — Mere  error  In  a  decision,  whether  of  law  or  of 
fact,  of  a  board  or  of  a  court,  or  in  a  civil  or  a  criminal  case,  is  not  a  denial 
of  due  process  of  law.  In  re  Converse,  137  U.  S.  624,  11  Sup.  Ct.  191,  34  L. 
Ed.  TOG  (1S90)  (crime) ;  Abbott  v.  National  Bank  of  Commerce,  175  U.  S. 
409,  20  Sup.  Ct.  153,  44  B.  Ed.  217  (1S99)  (tort) ;  Chicago.  B.  &  Q.  Ry.  Co.  v. 
Babcock,  204  U.  S.  5S5,  27  Sup.  Ct.  326,  51  B.  Ed.  036  (1907)  (taxation); 
Tracy  v.  Ginzberg,  205  U.  S.  170,  27  Sup.  Ct.  461,  51  L.  Ed.  755  (1907)  (title 
of  property);  Thompson  v.  Kentucky,  209  U.  S.  340,  346,  28  Sup.  Ct.  5.33,  536 
(52  L.  Ed.  822  [190S]),  in  which  McKenna,  J.,  said:  "Due  process  of  law 
does  not  assure  to  a  taxpayer  the  interpretation  of  laws  by  the  executive 
officers  of  a  state  as  against  their  interpretation  by  the  courts  of  the  stale,  or 
relief  from  the  consequences  of  a  misinterpretation  by  either.  *  *  *  At 
any  rate,  it  is  the  province  of  the  courts  to  interpret  the  laws  of  the  state, 
and  he  who  acts  under  them  must  take  his  chance  of  being  in  accord  with  the 
final  decision.  And  this  is  a  hazard  under  every  law,  and  from  which  or  the 
consequences  of  which  we  know  of  no  security." 

In  Patterson  v.  Colorado  ex  rel.  Attorney  General,  205  U.  S.  454,  460.  461, 
27  Sup.  Ct.  556,  557,  51  L.  Ed.  879,  10  Ann.  Cas.  6S9  (1907),  Holmes,  J.,  said: 
"It  is  argued  that  the  decisions  criticised,  and  in  some  degree  that  in  the 
present  case,  were  contrary  to  well-settled  previous  adjudications  of  the  same 
court,  and  this  allegation  is  regarded  as  giving  some  sort  of  constitutional 
right  to  the  plaintiff  in  error.  But  while  it  is  true  that  the  United  States 
courts  do  not  always  hold  themselves  bound  by  state  decisions  in  cases  aris- 
ing before  them,  that  principle  has  but  a  limited  application  to  cases  brought 
from  the  state  courts  here  on  writs  of  error.  Except  in  exceptional  cases 
the  grounds  on  which  the  circuit  courts  are  held  authorized  to  follow  an 
earlier  state  decision  rather  than  a  later  one,  or  to  apply  the  rules  of  com- 


Ch.  9)  DUE   PROCESS   AND   EQUALITY  •      PROCEDURE  298 

merclal  law  as  understood  by  this  court  rather  than  those  laid  down  by  tbe 
local  tribunals,  are  not  grounds  of  constitutional  right,  but  considerations  of 
justice  or  expediency.     There  is  no  con  tlrutlonal   righl  to  have  nil  general 
propositions  of  law  once  adopted  remain  unchanged.     Even  If  :t   be 
the  plaintiff  in  error  says,  that  the  Bupreme  court  at  Colorado 
earlier  and  well-established  precedents  to  meet  the  exigencies  of  thl 
whatever  might  he  thought  of  the  justice  or  wisdom  of  such  a  step,  the  '  Ion- 
stitmioti  of  the  United  .States  is  not  infringed.    It  is  unnecessary  to  lay  down 
an  absolute  rule  beyond  the  possibility  of  exception.     Exceptions  have  been 
held  to  exist.     But,  in  general,  the  decision  of  a  court  upon  a  question  of  law. 
however  wrong  and  however  contrary  to  previous  decisions,  is  not  an  in  frac- 
tion  of   the  fourteenth  amendment    merely   because  it  Is   wrong   or   because 
earlier  decisions  are  reversed." 

So.  also,  Central  Land  Co.  v.  Laidley,  159  D.  S.  103,  112,  16  Sup.  Ct.  80,  40 
L.  Ed.  91  (1895). 

May  an  error  in  the  administration  of  state  law  be  so  gross,  even  though 
not  fraudulent,  as  to  constitute  a  denial  of  due  process?  See  i.ent  v.  Tillson, 
140  D.  S.  310,  381,  11  Sup.  Ct.  825,  35  L.  Ed.  419  (1S01) ;  Chicago,  B.  &  Q. 
Ry.  Co.  v.  Chicago,  166  U.  S.  226.  232-2:15,  17  Sup.  Ct.  581,  41  L.  Ed.  979 
(1897);  San  Diego  Land  &  Town  Co.  v.  National  City,  174  U.  S.  789,  760, 
19  Sup.  Ct.  804,  43  L.  Ed.  1154  (1S99) ;  Thomas  v.  Texas,  212  U.  S.  278,  281, 
29  Sup.  Ct.  393,  53  L.  Ed.  512  (1909);    McGovern  v.  New  Tori;.  229  D 

370,  371,  33  Sup.  Ct.  876,  57  L.  Ed.  (1913);    II.  Schofleld  in  3  111.  I..    I:. 

l!i.~>.  As  to  the  propriety  of  reviewing  the  mental  operations  of  a  tribunal  in 
reaching  a  particular  decision,  see  Chicago,  B.  &  Q,  Itv.  Co.  v.  Babcock.  204 
V.  S.  585.  593-698,  27  Sup.  Ct  326,  51    L.    I'd    636  (1907). 

Fraudulent  Decisions. — As  stated  in  the  principal  case,  such  decisions 
deny  due  process.  Dicta  to  this  effect  occur  in  Chicago,  M.  &  St.  P.  Rj  .Co 
v.  Minnesota  ex  rel.  Railroad  &  W.  Commission,  134  U.  S.  418,  466,  10  Sup.  Ct. 
462,  Til.'.:;:;  L.  Ed.  970  (1890);  in  Louisville  &  v  Ry,  Co.  v.  Kentucky,  183  D. 
S.  503,  515,  516,  22  Sup.  Ct.  95,  46  L.  Ed.  298  (1902):  and  in  Chicago,  B.  &  Q 
Ry.  CO.  v.  Babcock,  204  U.  S.  585,  27  Sup.  Ct  326,  51  L.  Ed.  636  (1007) 
what  the  fraud  must  consist  of,  in  administrative  cases,  see  Ross  v.  Stewart. 
227  D.  S    530,  539,  33  Sup.  Ct.  345,  57  L.  Ed.  (1913). 

Partiality  or  Incompetence  of  Tbibunal. — In  Jordan  v.  Massai 
225  U.  S.  167,  176,  32  Sup.  Ct  651,  652,  :>f,  L.  Ed.  1038  (1912),  Lurton.  J.,  said: 
"Hue  process  implies  a  tribunal  both  Impartial  and  mentally  competent  t" 
afford  a  hearing."  ,  As  to  what  will  satisfy  these  requirements,  see  Jordan  v. 
Massachusetts,  above;  Hibben  v.  Smith.  191  C.  S.  810,  323  (T..  21  Sup.  Ct  88, 
48  L.  Ed.  195  (1903);  Home  Telephone  &  Telegraph  Co.  v.  Los  Angeles,  211  r 
S.  265,  279,  2S0,  29  Sup.  Ct  50,  53  L.  Ed.  176  (1908).  For  the 
disqualification  of  a  judge  tor  li  ten  I   Ryers,  72  N.  Y.  I 

28  Am.  Rep.  88  (1878);  and  as  to  special  political  tribunals,  see  State  ex  rel. 
Cook  v.   Bouser,   122  Wis.  534,  IOO   X.   YV.  964   (1904)       Due      '  not  af- 

forded by  a  bearing  before  a  judge  who  has  in  advance  decided  the  case  and 
written  his  opinion.     Ex  parte  Nelson  (Mo.)  157  S.  W.  794,  S00-80S  (1913). 


LAWTON  v.  STEELE. 

(Supreme  Court  of  United  States,  iv.'t.     162  U.  8.  133,  14  Sup.  Ct.  40D.  88  I. 
K.l.  385.) 

[Error  to  the  Supreme  Court  of  New  York.  Steele,  an  officer  of 
New  York,  acting  under  the  authority  of  the  statute  quoted  in  the 
opinion  below,  seized  and  destroyed  fifteen  nets  owned  by  Lawton, 
found  to  be  worth  $216.  Lawton  was  a  fisherman,  and  at  the  time 
most  of  the  nets  were  being  used  in  fishing  in  New  York  waters  in 


294  FUNDAMENTAL    RIGHTS  (Part  2 

Jefferson  county,  and  the  rest  were  lying  on  the  shore,  having  been 
recently  used  for  the  same  purpose.  Lawton  sued  Steele  for  the  value 
of  the  destroyed  nets,  and  a  judgment  for  plaintiff  was  reversed  by 
the  state  Court  of  Appeals,  and  judgment  for  defendant  ordered  to 
be  entered  in  the  state  Supreme  Court.] 

Mr.  Justice  Brown.  This  case  involves  the  constitutionality  of  an 
act  of  the  Legislature  of  the  state  of  New  York  [printed  in  the  note 
below.1]  *  *  *  This  last  section  was  alleged  to  be  unconstitu- 
tional and  void  for  three  reasons :  ( 1)  As  depriving  the  citizen  of 
his  property  without  due  process  of  law.     *     *     * 

The  main,  and  only  real  difficulty  connected  with  the  act  in  ques- 
tion is  in  its  declaration  that  any  net,  etc.,  maintained  in  violation  of 
any  law  for  the  protection  of  fisheries,  is  to  be  treated  as  a  public 
nuisance,  "and  may  be  abated  and  summarily  destroyed  by  any  per- 
son, and  it  shall  be  the  duty  of  each  and  every  protector  aforesaid 
and  ever  game  constable  to  seize,  remove,  and  forthwith  destroy  the 
same."  The  legislature,  however,  undoubtedly  possessed  the  power 
not  only  to  prohibit  fishing  by  nets  in  these  waters,  but  to  make  it 
a  criminal  offence,  and  to  take  such  measures  as  were  reasonable  and 
necessary  to  prevent  such  offences  in  the  future.  It  certainly  could 
not  do  this  more  effectually  than  by  destroying  the  means  of  the  of- 
fence. If  the  nets  were  being  used  in  a  manner  detrimental  to  the 
interests  of  the  public,  we  think  it  was  within  the  power  of  the  legis- 
lature to  declare  them  to  be  nuisances,  and  to  authorize  the  officers 
of  the  state  to  abate  them.  Hart  v.  The  Mayor,  9  Wend.  (N.  Y.) 
571,  24  Am.  Dec.  165;  Meeker  v.  Van  Rensselaer,  15  Wend.  (N. 
Y.)  397. 

An  act  of  the  Legislature  which  has  for  its  object  the  preserva- 
tion of  the  public  interests  against  the  illegal  depredations  of  private 
individuals  ought  to  be  sustained,  unless  it  is  plainly  violative  of  the 
Constitution,  or  subversive  of  private  rights.  In  this  case  there  can 
be  no  doubt  of  the  right  of  the  legislature  to  authorize  judicial  pro- 
ceedings to  be  taken  for  the  condemnation  of  the  nets  in  question, 
and  their  sale  or  destruction. by  process  of  law.  Congress  has  as- 
sumed this  power  in  a  large  number  of  cases,  by  authorizing  the  con- 
demnation of  property  which  has  been  made  use  of  for  the  purpose 
of  defrauding  the  revenue.    Examples  of  this  are  vessels  illegally  reg- 

i  By  the  act  of  1880  (Laws  1880,  c.  591)  as  amended  by  the  act  of  1883  (Laws 
1883,  c.  317): 

"Sec.  2.  Any  net,  pound,  or  other  means  or  device  for  taking  or  capturing  fish, 
or  whereby  they  may  be  taken  or  captured,  set,  put,  floated,  had,  found,  or 
maintained,  in  or  upon  any  of  the  waters  of  this  state,  or  upon  the  shores  of 
or  islands  in  any  of  the  waters  of  this  state,  in  violation  of  any  existing  or 
hereafter  enacted  statutes  or  laws  for  the  protection  of  fish,  is  hereby  declared 
to  be,  and  is,  a  public  nuisance,  and  may  be  abated  and  summarily  destroyed 
by  any  person,  and  it  shall  be  the  duty  of  each  and  every  protector  aforesaid 
and  of  every  game  constable  to  seize  and  remove  and  forthwith  destroy  the 
same  *  *  *  and  no  action  for  damages  shall  lie  or  be  maintained  against 
any  person  for  or  on  account  of  any  such  seizure  and  destruction." 


Ch.  9)  DUB  process  ami  i:yi  alii  v  :     PROCEDURE  20."> 

istered  or  owned,  or  employed  in  smuggling  or  other  illegal  traffic ; 
distilleries  or  breweries  illegally  carried  on  or  operated,  and  buildings 
standing  upon  or  near  the  boundary  line  between  the  United  States 
and  another  country,  and  used  as  depots  for  smuggling  goods.  In 
all  these  cases,  however,  the  forfeiture  was  decreed  by  judicial  pro- 
ceeding. But  where  the  property  is  of  little  value,  and  its  use  for 
the  illegal  purpose  is  clear,  the  legislature  may  declare  it  to  be  a  nui- 
sance, and  subject  to  summary  abatement.  Instances  of  this  are  the 
power  to  kill  diseased  cattle;  to  pull  down  houses  in  the  path  of  con- 
flagrations; the  destruction  of  decayed  fruit  or  fish  or  unwholesome 
meats,  or  infected  clothing,  obscene  books  or  pictures,  or  instruments 
which  can  only  be  used  for  illegal  purposes.  While  the  legislature 
has  no  right  arbitrarily  to  declare  that  to  be  a  nuisance  which  is 
clearly  not  so,  a  good  deal  must  be  left  to  its  discretion  in  that  re- 
gard, and  if  the  object  to  be  accomplished  is  conducive  to  the  public 
interests,  it  may  exercise  a  large  liberty  of  choice  in  the  means  em- 
ployed. Newark,  etc.,  Ry.  Co.  v.  Hunt,  50  X.  J.  Law,  308,  12  Atl. 
697;  Blazier  v.  Miller,  10  Hun  (N.  Y.)  435;  Mouse's  Case,  12  Coke. 
62;  Stone  v.  The  Mayor,  25  Wend.  (N.  Y.)  157,  173;  Am.  Print 
Works  v.  Lawrence,  21  N.  J.  Law,  248;  Same  v.  Same,  23  N.  J.  Law, 
590,  57  Am.  Dec.  420. 

It  is  not  easy  to  draw  the  line  between  cases  where  property  illegally 
used  may  be  destroyed  summarily  and  where  judicial  proceedings 
are  necessary  for  its  condemnation.  If  the  property  were  of  great 
value,  as,  for  instance,  if  it  were  a  vessel  employed  for  smuggling 
or  other  illegal  purposes,  it  would  be  putting  a  dangerous  power  in 
the  hands  of  a  custom  officer  to  permit  him  to  sell  or  destroy  it  as 
a  public  nuisance,  and  the  owner  would  have  good  reason  to  com- 
plain of  such  act  as  depriving  him  of  his  property  without  due  process 
of  law.  But  where  the  property  is  of  trifling  value,  and  its  destruc- 
tion is  necessary  to  effect  the  object  of  a  certain  statute,  we  think  it 
is  within  the  power  of  the  legislature  to  order  its  summary  abatement. 
For  instance,  if  the  legislature  should  prohibit  the  killing  of  fish  by 
explosive  shells,  and  should  order  the  cartridges  so  used  to  be  de- 
stroyed, it  would  seem  like  belittling  the  dignity  of  the  judiciary  to 
require  such  destruction  to  be  preceded  by  a  solemn  condemnation 
in  a  court  of  justice.  The  same  remark  might  be  made  of  the  cards, 
chips,  and  dice  of  a  gambling-room. 

The  value  of  the  nets  in  question  was  but  $15  apiece.  The  cost  of 
condemning  one  (and  the  use  of  one  is  as  illegal  as  the  use  of  a  dozen), 
by  judicial  proceedings,  would  largely  exceed  the  value  of  the  net, 
and  doubtless  the  state  would,  in  many  cases,  be  deterred  from  ex- 
ecuting the  law  by  the  expense.  They  could  only  be  removed  from 
the  water  with  difficulty,  and  were  liable  to  injury  in  the  process  of 
removal.  The  object  of  the  law  is  undoubtedly  a  beneficent  one, 
and  the  state  ought  not  to  be  hampered  in  its  enforcement  by  the  ap- 


296  FUNDAMENTAL    RIGHTS  (Part  2 

plication  of  constitutional  provisions  which  are  intended  for  the  pro- 
tection of  substantial  rights  of  property.  It  is  evident  that  the  ef- 
ficacy of  this  statute  would  be  very  seriously  impaired  by  requiring 
every  net  illegally  used  to  be  carefully  taken  from  the  water,  carried 
before  a  court  or  magistrate,  notice  of  the  seizure  to  be  given  by  pub- 
lication, and  regular  judicial  proceedings  to  be  instituted  for  its  con- 
demnation. 

There  is  not  a  state  in  the  Union  which  has  not  a  constitutional  pro- 
vision entitling  persons  charged  with  crime  to  a  trial  by  jury,  and  yet 
from  time  immemorial  the  practice  has  been  to  try  persons  charged 
with  petty  offences  before  a  police  magistrate,  who  not  only  passes 
upon  the  question  of  guilt,  but  metes  out  the  proper  punishment.  This 
has  never  been  treated  as  an  infraction  of  the  Constitution,  though 
technically  a  person  may  in  this  way  be  deprived  of  his  liberty  with- 
out the  intervention  of  a  jury.  Callan  v.  Wilson,  127  U.  S.  540,  8 
Sup.  Ct.  1301,  32  L.  Ed.  223,  and  cases  cited.  So  the  summary  abate- 
ment of  nuisances  without  judicial  process  or  proceeding  was  well 
known  to  the  common  law  long  prior  to  the  adoption  of  the  Con- 
stitution, and  it  has  never  been  supposed  that  the  constitutional  pro- 
vision in  question  in  this  case  was  intended  to  interfere  with  the  es- 
tablished principles  in  that  regard. 

Nor  is  a  person  whose  property  is  seized  under  the  act  in  question 
without  his  legal  remedy.  If  in  fact  his  property  has  been  used  in 
violation  of  the  act,  he  has  no  just  reason  to  complain;  if  not,  he 
may  replevy  his  nets  from  the  officer  seizing  them,  or,  if  they  have 
been  destroyed,  may  have  his  action  for  their  value.2  In  such  cases 
the  burden  would  be  upon  the  defendant  to  prove  a  justification  un- 
der the  statute.  As  was  said  by  the  Supreme  Court  of  New  Jersey 
in  a  similar  case  (Am.  Print  Works  v.  Lawrence,  21  N.  J.  Law,  248, 
259):  "The  party  is  not,  in  point  of  fact,  deprived  of  a  trial  by  jury. 
The  evidence  necessary  to  sustain  the  defence  is  changed.     Even  if 

2  This  is  essential  In  cases  of  this  character.  See  North  American  Cold 
Storage  Co.  v.  Chicago,  211  U.  S.  300,  318,  319,  29  Sup.  Ct.  101,  53  L.  Ed.  193. 
15  Ann.  Cas.  276  (19081  (cases),  in  which  Peckham,  J.,  quoted  with  approval 
the  following  extract  from  Miller  v.  Horton,  152  Mass.  540,  543,  544,  26  N.  E. 
100,  101  (10  L.  R.  A.  116,  23  Am.  St.  Rep.  850)  (1891):  "Of  course  there  cannot 
be  a  trial  by  jury  before  killing  an  animal  supposed  to  have  a  contagious 
disease,  and  we  assume  that  the  legislature  may  authorize  its  destruction  in 
such  emergencies  without  a  hearing  beforehand.  But  it  does  not  follow 
that  it  can  throw  the  loss  on  the  owner  without  a  hearing.  If  he  cannot  be 
beard  beforehand  he  may  he  heard  afterwards.  The  statute  may  provide  for 
paying  him  in  case  it  should  appear  that  his  property  was  not  what  the  legis- 
lature has  declared  to  be  a  nuisance,  and  may  give  him  his  hearing  in 
that  way.  If  it  does  not  do  so  the  statute  may  leave  those  who  act  under  it 
to  proceed  at  their  peril,  and  the  owner  gets  his  hearing  in  an  action  against 
them." 

See  Adams  v.  Milwaukee,  228  U.  S.  572,  584,  585,  33  Sup.  Ct.  610,  57  L. 

Ed. (1913)  (summary  destruction  of  Impure  milk).     But  compare  Raymond 

v.  Fish,  51  Conn.  80,  50  Am.  Rep.  3  (1883)  (destruction  of  oyster  bed,  thought 
to  contain  disease  germs). 


Ch.  ft)  DUE  PROr F.SS  AND   EQUALITY  :      I'ROCEDORE 

the  party  were  deprived  of  a  trial  by  jury,  the  statute  is  not,  there- 
fore, necessarily  unconstitutional."  Indeed,  it  is  scarcely  possible 
that  any  actual  injustice  could  be  done  in  the  practical  administra- 
tion of  the  act. 

It  is  said,  however,  that  the  nets  are  not  in  themselves  a  nuisance, 
but  are  perfectly  lawful  acts  of  manufacture,  and  are  ordinarily  used 
for  a  lawful  purpose.  This  is,  however,  by  no  means  a  conclusive  an- 
swer. Many  articles,  such,  for  instance,  as  cards,  dice,  and  ottier  ar- 
ticles used  for  gambling  purposes,  are  perfectly  harmless  in  them- 
selves, but  may  become  nuisances  by  being  put  to  an  illegal  use,  and 
in  such  cases  fall  within  the  ban  of  the  law  and  may  be  summarily 
destroyed.  It  is  true  that  this  rule  does  not  always  follow  from  the 
illegal  use  of  a  harmless  article.  A  house  may  not  be  torn  down  be- 
cause it  is  put  to  an  illegal  use,  since  it  may  be  as  readily  used  for  a 
lawful  purpose  (Ely  v.  Supervisors.  36  N.  Y.  297),  but  where  minor 
articles  of  personal  property  are  devoted  to  such  use  the  fact  that 
they  may  be  used  for  a  lawful  purpose  would  not  deprive  the  legisla- 
ture of  the  power  to  destroy  them.  The  power  of  the  legislature  to 
declare  that  which  is  perfectly  innocent  in  itself  to  be  unlawful  is  be- 
yond question  (People  v.  West,  106  N.  Y.  293,  12  N.  E.  610,  60  Am. 
Rep.  452),  and  in  such  case  the  legislature  may  annex  to  the  prohibited 
act  all  the  incidents  of  a  criminal  offence,  including  the  destruction 
of  property  denounced  by  it  as  a  public  nuisance. 

In  Weller  v.  Snover,  42  N.  J.  Law,  341,  it  was  held  that  a  fish  war- 
den for  a  county,  appointed  by  the  Governor,  had  the  right,  under 
an  act  of  the  Legislature,  to  enter  upon  land  and  destroy  a  fish  basket 
constructed  in  violation  of  the  statute,  together  with  the  materials  of 
which  it  was  composed,  so  that  it  might  not  again  be  used.  It  was 
stated  in  that  case  that  "after  a  statute  has  declared  an  invasion  of  a 
public  right  to  be  a  nuisance  it  may  be  abated  by  the  destruction  of 
the  object  used  to  effect  it.  The  person  who,  with  actual  or  construc- 
tive notice  of  the  law,  sets  up  such  nuisance  cannot  sue  the  officer 
whose  duty  it  has  been  made  by  the  statute  to  execute  its  provisions." 
So  in  Williams  v.  Blackwall,  2  H.  &  C.  33,  the  right  to  take  posses- 
sion of  or  destroy  any  engine  placed  or  used  for  catching  salmon  in 
contravention  of  law  was  held  to  extend  to  all  persons,  and  was  not 
limited  to  conservators  or  officers  appointed  under  the  act. 

It  is  true  there  are  several  cases  of  a  contrary  purport.  Some  of 
these  cases,  however,  may  be  explained  upon  the  ground  that  the 
property  seized  was  of  considerable  value  (lick  v.  Ander 
251,  40  Am.  Rep.  115,  boats  as  well  as  nets;  Dunn  v.  Burleigh,  62 
Me.  24,  teams  and  supplies  in  lumbering;  King  v.  Hayes,  80  V. 
13  Atl.  SS2,  a  horse) — in  others  the  court  seems  to  have  taken  a 
more  technical  view  of  the  law  than  the  necessities  of  the  case  or  an 
adequate  protection  of  the  owner  required.     Lowry  v.  Rainwater.  70 


298  FUNDAMENTAL    RIGHTS  (Part  2 

Mo.  152,  35  Am.  Rep.  420;  State  v.  Robbins,  124  Ind.  308,  24  N. 
E.  978,  8  L.  R.  A.  438;   Ridgeway  v.  West,  60  Ind.  371.     *     *     * 

Judgment  affirmed.3 

[Fuller,  C.  J.,  gave  a  dissenting  opinion,  in  which  concurred  Field 
and  Brewer,  JJ.] 


OCEANIC  STEAM  NAVIGATION  CO.  v.  STRANAHAN 
(1909)  214  U.  S.  320,  340-343,  29  Sup.  Ct.  671,  53  L.  Ed.  1013,  Mr. 
Justice  White  (affirming  a  judgment  of  the  federal  Circuit  Court  for 
the  Southern  District  of  New  York,  upholding  a  federal  statute  for- 
bidding any  person  to  bring  into  the  United  States  any  alien  afflicted 
with  certain  diseases,  and  providing  [section  9]  that,  if  it  should  appear 
to  the  satisfaction  of  the  Secretary  of  Commerce  and  Labor  that  the 
existence  of  such  disease  might  have  been  detected  by  a  competent 
medical  examination  at  the  time  of  foreign  embarkation,  then  the 
transportation  company  bringing  in  such  alien  should  be  liable  to  the 
port  collector  for  $100  for  each  such  case,  and  that  none  of  its  vessels 
should  be  granted  clearance  papers  while  said  fine  was  unpaid.  Plain- 
tiff company  sued  to  recover  from  the  New  York  collector  such  a 
fine,  payment  of  which  was  coerced  by  the  certainty  of  great  pecuniary 
loss  if  its  vessels  were  not  allowed  to  leave  the  port ;  other  facts  ap- 
pearing in  the  opinion) : 

"It  is  urged  that  the  fines  which  constituted  the  exactions  were 
repugnant  to  the  fifth  amendment,  because  amounting  to  a  taking  of 
property  without  due  process  of  law,  since,  as  asserted,  the  fines  were 
imposed,  in  some  cases,  without  any  previous  notice,  and  in  all  cases 
without  any  adequate  notice  or  opportunity  to  defend.  Stated  in  the 
briefest  form,  the  findings  below  show  that  on  the  arrival  of  a  vessel, 
if  the  examining  medical  officers  discovered  that  an  immigrant  was 
afflicted  with  one  of  the  prohibited  diseases,  the  owner  of  the  vessel 
was  notified  of  the  fact.  *  *  *  The  findings  also  established  that, 
where  a  fine  was  imposed  under  section  9  by  the  Secretary  of  Com- 
merce and  Labor,  it  was  only  done  after  the  transmission  to  that  offi- 
cial of  the  certificate  of  the  examining  medical  officer  that  a  particular 
alien  immigrant  had  been  found  to  be  afflicted  with  one  of  the  pro- 
hibited diseases,  and  that  the  state  of  the  disease  established  in  the 
opinion  of  the  medical  officer  that  it  existed  at  the  time  of  embarka- 
tion, and  could  then  have  been  detected  by  a  competent  medical  exam- 
ination. *  *  *  It  is  evident  that  the  statute  unambiguously  excludes 
the  conception  that  the  steamship  company  was  entitled  to  be  heard, 
in  the  sense  of  raising  an  issue  and  tendering  evidence  concerning  the 

a  Accord:    See  cases  in  note  to  Cal.  Reduc.  Co.  v.  Sanitary  Co.,  post,  p.  451. 

Contra:  Wagner  v.  Upshur,  95  Md.  519,  52  Atl.  509,  93  Am.  St.  Rep.  412 
(1902)  (judicial  proceeding  must  precede  seizure  of  slot  machine  susceptible  of 
Innocent  use). 


Ch.  9)  DUE  PBOCBSS; AND  EQUALITY:      PBOCBDDBH  299 

condition  of  the  alien  immigrant  upon  arrival  at  the  point  of  disembar- 
kation, as  the  plain  purpose  of  the  statute  was  to  exclusively  commit 
that  subject  to  the  medical  officers  for  which  the  statute  provided. 
We  shall,  therefore,  test  the  soundness  of  the  proposition  we  are  con- 
sidering upon  that  assumption. 

"In  view  of  the  absolute  power  of  Congress  over  the  right  to  bring 
aliens  into  the  United  States  we  think  it  may  not  be  doubted  that  the 
act  would  be  beyond  all  question  constitutional  if  it  forbade  the  intro- 
duction of  aliens  afflicted  with  contagious  diseases,  and,  as  a  condition 
to  the  right  to  bring  in  aliens,  imposed  upon  every  vessel  bringing 
them  in,  as  a  condition  of  the  right  to  do  so,  a  penalty  for  every  alien 
brought  to  the  United  States  afflicted  with  the  prohibited  disease, 
wholly  without  reference  to  when  and  where  the  disease  originated. 
It  must  then  follow  that  the  provision  contained  in  the  statute  is  of 
course  valid,  since  it  only  subjects  the  vessel  to  the  exaction  when,  as 
the  result  of  the  medical  examination  for  which  the  statute  provides, 
it  appears  that  the  alien  immigrant  afflicted  with  the  prohibited  malady 
is  in  such  a  stage  of  the  disease  that  it  must,  in  the  opinion  of  the 
medical  officer,  have  existed  and  been  susceptible  of  discovery  at  the 
point  of  embarkation.  Indeed,  it  is  not  denied  that  there  was  full 
power  in  Congress  to  provide  for  the  examination  of  the  alien  by 
medical  officers,  and  to  attach  conclusive  effect  to  the  result  of  that 
examination  for  the  purposes  of  exclusion  or  deportation.  But  it  is 
said  the  power  to  do  so  does  not  include  the  right  to  make  the  medical 
examination  conclusive  for  the  purpose  of  imposing  a  penalty  upon 
the  vessel  for  the  negligent  bringing  in  of  an  alien.  We  think  the 
argument  rests  upon  a  distinction  without  a  difference.  It  disregards 
the  purpose  which,  as  we  have  already  pointed  out,  congress  had  in 
view  in  the  enactment  of  the  provision;  that  is,  the  guarding  against 
the  danger  to  arise  from  the  wrongful  taking  on  board  of  an  alien 
afflicted  with  a  contagious  malady,  net  only  to  other  immigrant  pas- 
sengers, but  ultimately,  it  might  be,  to  the  entire  people  of  the  United 
States,— a  danger  arising  from  the  possible  admission  of  aliens  who 
might  contract  the  contagion  during  the  voyage,  and  yet  be  entitled  to 
admission  because  apparently  not  afflicted  with  the  prohibited  disease, 
owing  to  the  fact  that  the  time  had  not  elapsed  for  the  manifestation 
of  its  presence.  In  effect,  all  the  contentions  pressed  in  argument  con- 
cerning the  repugnancy  of  the  statute  to  the  due  process  clause  really 
disregarded  the  complete  and  absolute  power  of  Congress  over  the 
subject  with  which  the  statute  deals.  They  mistakenly  assume  that 
mere  form,  and  not  substance,  may  be  made  by  the  courts  the  conclu- 
sive test  as  to  the  constitutional  power  of  Congress  to  enact  a  statute. 
These  conclusions  are  apparent,  we  think,  since  the  plenary  power  of 
Congress  as  to  the  admission  of  aliens  leaves  no  room  for  doubt  as  to 
its  authority  to  impose  the  penalty,  and  its  complete  administrative 
control  over  the  granting  or  refusal  of  a  clearance  also  leaves  no 
doubt  of  the  right  to  endow  administrative  officers  with  discretion  to 


300  FUNDAMENTAL    RIOIITS  (Part  2 

refuse  to  perform  the  administrative  act  of  granting  a  clearance,  as  a 
means  of  enforcing  the  penalty  which  there  was  lawful  authority  to 
impose."  * 


CHICAGO,  M.  &  ST.  P.  RY.  CO.  v.  MINNESOTA  ex  rel.  RAIL- 
ROAD &  WAREHOUSE  COMMISSION. 

(Supreme  Court  of  United  States,  1890.     134  U.  S.  418,  10  Sup.  Ct  462,  702, 
33  L.  Ed.  970.) 

[Error  to  the  Supreme  Court  of  Minnesota.  By  statute  'a  state 
railroad  and  warehouse  commission  was  created,  empowered,  among 
other  things,  to  alter  railroad  rates  within  the  state  wherever  they 
were  found  by  the  commission  to  be  unequal  or  unreasonable.  If  a 
railroad  did  not  adopt  the  rate  prescribed  by  the  commission,  within 
ten  days  after  notice  of  the  commission's  action,  the  commission  was 
to  publish  said  rate  as  the  lawful  one  thereafter,  and  might  compel 
the  railroad  to  carry  out  its  order  by  a  mandamus  to  be  issued  by  a 
state  court  on  the  application  of  the  commission.  Acting  under  this 
statute  the  commission  reduced  the  rate  on  milk  over  a  certain  part 
of  defendants'  line,  and  applied  for  a  mandamus  to  compel  obedience 
to  its  order.  The  defendant's  answer  alleged  its  old  rate  to  be  reason- 
able and  the  new  one  unreasonable  and  a  taking  of  its  property  without 
due  process  of  law.  The  state  Supreme  Court  refused  to  allow  de- 
fendant to  take  testimony  as  to  the  reasonableness  of  the  new  rate 
and  issued  the  mandamus.     This  writ  of  error  was  then  taken.] 

Mr.  Justice  Blatchford.  The  opinion  of  the  Supreme  Court  of 
Minnesota  is  reported  in  38  Minn.  281,  37  N.  W.  782.  In  it  the  court 
in  the  first  place  construed  the  statute  on  the  question  as  to  whether 
the  court  itself  had  jurisdiction  to  entertain  the  proceeding,  and  held 
that  it  had.     Of  course,  we  cannot  review  this  decision. 

It  next  proceeded  to  consider  the  question  as  to  the  nature  and  ex- 
tent of  the  powers  granted  to  the  commission  by  the  statute  in  the  mat- 
ter of  fixing  the  rates  of  charges.    On  that  subject  it  said:    "It  seems 

i  Accord  (no  hearing  permitted):  Buttrield  y.  Stranahan,  192  U.  S.  470,  24 
Sup.  Ct  349,  48  L.  Ed.  525  (1904)  (inspection  of  imported  tea) ;  Wilson  v. 
North  Carolina  ex  rel.  Caldwell,  169  U.  S.  586,  18  Sup.  Ct.  435,  42  L.  Ed.  S65 
(1898)  (suspension  of  state  otficer  by  governor).  Compare  Murray  v.  Hoboken 
Land  Co.,  ante,  p.  262;  and  see,  also,  Cary  v.  Curtis,  3  How.  236,  11  L.  Ed. 
576  (1845)  (limitation  of  importer's  right  to  recover  illegal  duties  paid  under 
protest)  [but  see  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  O'Connor,  223  U.  S.  280,  32 
Sup.  Ct  216,  56  L.  Ed.  436  (1912)]. 

In  Japanese  Immigrant  Case,  189  U.  S.  86,  100,  101,  23  Sup.  Ct.  611,  47  L.  Ed. 
721  (1903),  it  was  said  that  an  alien  could  not  be  deported  by  administrative 
officers  without  a  hearing,  inasmuch  as  liberty  of  the  person  was  Involved; 
and  in  Chin  Yow  v.  United  States,  208  U.  S.  S,  28  Sup.  Ct.  201,  52  L.  Ed.  369 
(190S)  it  was  decided  that  a  Chinese  person  could  not  be  excluded  from  the 
country  without  a  hearing  on  the  question  of  his  alleged  citizenship,  though 
an  erroneous  administrative  decision  thereof  could  not  be  corrected  by  the 
foiirts. 


Ch.  9)  DDE  PROCESS  AND   BQVlOATTi     PEOCBDDRH  301 

to  us  that,  if  language  means  anything,  it  is  perfectly  evident  that  the 
expressed  intention  of  the  legislature  is  that  the  rates  recommended 
and  published  by  the  commission  (assuming  that  they  have  proceeded 
in  the  manner  pointed  out  by  the  act)  should  be  not  simply  advisory, 
nor  merely  prima  facie  equal  and  reasonable  but  final  and  conclusive  as 
to  what  are  lawful  or  equal  and  reasonable  charges;  that,  in  proceed- 
ings to  compel  compliance  with  the  rates  thus  published,  the  law  neither 
contemplates  nor  allows  any  issue  to  be  made  or  inquiry  had  as  to  their 
equality  and  reasonableness  in  fact.  Under  the  provisions  of  the  act, 
the  rates  thus  published  are  the  only  ones  that  are  lawful,  and  there- 
fore, in  contemplation  of  law,  the  only  ones  that  are  equal  and  reason- 
able ;  and,  hence,  in  proceedings  like  the  present,  there  is,  as  said 
before,  no  fact  to  traverse,  except  the  violation  of  the  law  in  refusing 
compliance  with  the  recommendations  of  the  commission.  Indeed,  the 
language  of  the  act  is  so  plain  on  that  point  that  argument  can  add 
nothing  to'  its  force." 

It  then  proceeded  to  examine  the  question  of  the  validity  of  the  act 
under  the  Constitution  of  Minnesota,  as  to  whether  the  legislature  was 
authorized  to  confer  upon  the  commission  the  powers  given  to  the  lat- 
ter by  the  statute.  It  held  that,  as  the  legislature  had  the  power  itself 
to  regulate  charges  by  railroads,  it  could  delegate  to  a  commission 
the  power  of  fixing  such  charges,  and  could  make  the  judgment  or 
determination  of  the  commission  as  to  what  were  reasonable  charges 
final  and  conclusive.  *  *  *  In  other  words,  although  the  railroad 
company  is  forbidden  to  establish  rates  that  are  not  equal  and  reason- 
able, there  is  no  power  in  the  courts  to  stay  the  hands  of  the  commis- 
sion, if  it  chooses  to  establish  rates  that  are  unequal  and  unreasonable. 

This  being  the  construction  of  the  statute  by  which  we  are  bound  in 
considering  the  present  case,  we  are  of  opinion  that,  so  construed,  it 
conflicts  with  the  Constitution  of  the  United  States  in  the  particulars 
complained  of  bv  the  railroad  company.  It  deprives  the  company  of 
its  right  to  a  judicial  investigation,  by  due  process  of  law,  under  the 
forms  and  with  the  machinery  provided  by  the  wisdom  of  successive 
ages  for  the  investigation  judicially  of  the  truth  of  a  matter  in  contro- 
versy, and  substitutes  therefor,  as  an  absolute  finality,  the  action  of  a 
railroad  commission  which,  in  view  of  the  powers  conceded  to  it  by 
the  state  court,  cannot  be  regarded  as  clothed  with  judicial  functions 
or  possessing  the  machinery  of  a  court  of  justice. 

Under  section  8  of  the  statute,  which  the  Supreme  Court  of  .Minne- 
sota says  is  the  only  one  which  relates  to  the  matter  of  the  fixing  by 
the  commission  of  general  schedules  of  rates,  and  which  section,  it 
says,  fully  and  exclusively  provides  for  that  subject,  and  is  complete  in 
itself,  all  that  the  commission  is  required  to  do  is,  on  the  filing  with  it 
by  a  railroad  company  of  copies  of  its  schedules  of  charges,  to  "find" 
that  any  part  thereof  is  in  any  respect  unequal  or  unreasonable,  and 
then  it  is  authorized  and  directed  to  compel  the  company  to  change  the 
same  and  adopt  such  charge  as  the  commission  "shall  declare  to  be 


302  FUNDAMENTAL    RIGHTS  (Part  2 

equal  and  reasonable,"  and,  to  that  end,  it  is  required  to  inform  the 
company  in  writing  in  what  respect  its  charges  are  unequal  and  un- 
reasonable. No  hearing  is  provided  for,  no  summons  or  notice  to  the 
company  before  the  commission  has  found  what  it  is  to  find  and 
declared  what  it  is  to  declare,  no  opportunity  provided  for  the  company 
to  introduce  witnesses  before  the  commission,  in  fact,  nothing  which 
has  the  semblance  of  due  process  of  law ;  and  although,  in  the  present 
case,  it  appears  that,  prior  to  the  decision  of  the  commission,  the  com- 
pany appeared  before  it  by  its  agent,  and  the  commission  investigated 
the  rates  charged  by  the  company  for  transporting  milk,  yet  it  does 
not  appear  what  the  character  of  the  investigation  was  or  how  the 
result  was  arrived  at. 

By  the  second  section  of  the  statute  in  question,  it  is  provided  that 
all  charges  made  by  a  common  carrier  for  the  transportation  of  pas- 
sengers or  property  shall  be  equal  and  reasonable.  Under  this  pro- 
vision, the  carrier  has  a  right  to  make  equal  and  reasonable  charges  for 
such  transportation.  In  the  present  case,  the  return  alleged  that  the 
rate  of  charge  fixed  by  the  commission  was  not  equal  or  reasonable,  and 
the  Supreme  Court  held  that  the  statute  deprived  the  company  of  the 
right  to  show  that  judicially.  The  question  of  the  reasonableness  of  a 
rate  of  charge  for  transportation  by  a  railroad  company,  involving  as  it 
does  the  element  of  reasonableness  both  as  regards  the  company  and 
as  regards  the  public,  is  eminently  a  question  for  judicial  investigation; 
requiring  due  process  of  law  for  its  determination.  If  the  company  is 
deprived  of  the  power  of  charging  reasonable  rates  for  the  use  of  its 
property,  and  such  deprivation  takes  place  in  the  absence  of  an  investi- 
gation by  judicial  machinery,  it  is  deprived  of  the  lawful  use  of  its 
property,  and  thus,  in  substance  and  effect,  of  the  property  itself,  with- 
out due  process  of  law  and  in  violation  of  the  Constitution  of  the 
United  States;  and  in  so  far  as  it  is  thus  deprived,  while  other  persons 
are  permitted  to  receive  reasonable  profits  upon  their  invested  capital, 
the  company  is  deprived  of  the  equal  protection  of  the  laws.     *     *     * 

Judgment  reversed. 

[Miller,  J.,  concurred  on  the  ground  that  a  railroad  could  not  be 
deprived  of  the  right  judicially  to  attack  rates  prescribed  for  it  that 
were  unreasonably  low.  He  thought,  however,  that  the  legislature 
could  delegate  to  a  commission  the  power  to  establish  rates  in  the  first 
instance  without  a  hearing  to  the  railroads.] 

Mr.  Justice  Bradley  [with  whom  concurred  Gray  and  Lamar,  JJ.], 
dissenting.  *  *  *  I  think  it  is  perfectly  clear,  and  well  settled  by 
the  decisions  of  this  court,  that  the  legislature  might  have  fixed  the 
rates  in  question.  If  it  had  done  so,  it  would  have  done  it  through  the 
aid  of  committees  appointed  to  investigate  the  subject,  to  acquire  in- 
formation, to  cite  parties,  to  get  all  the  facts  before  them,  and  finally 
to  decide  and  report.  No  one  could  have  said  that  this  was  not  due 
process  of  law.  And  if  the  legislature  itself  could  do  this,  acting  by  its 
committees,  and  proceeding  according  to  the  usual  forms  adopted  by 


Ch.  9)  DUE   PROCESS   AND    EQUALITY:      PROCEDURE  803 

sucli  bodies,  I  can  see  no  good  reason  why  it  might  not  delegate  the 
duty  to  a  board  of  commissioners,  charged,  as  the  board  in  this  case 
was,  to  regulate  and  fix  the  charges  so  as  to  be  equal  and  reasonable. 
Such  a  board  would  have  at  its  command  all  the  means  of  getting  at 
the  truth  and  ascertaining  the  reasonableness  of  fares  and  freights, 
which  a  legislative  committee  has.  It  might,  or  it  might  not,  swear 
witnesses  and  examine  parties.  Its  duties  being  of  an  administrative 
character,  it  would  have  the  widest  scope  for  examination  and  inquiry. 
All  means  of  knowledge  and  information  would  be  at  its  command, — 
just  as  they  would  be  at  the  command  of  the  legislature  which  created 
it.  Such  a  body,  though  not  a  court,  is  a  proper  tribunal  for  the  duties 
imposed  upon  it.  *  *  *  Due  process  of  law  does  not  always  require 
a  court.  It  merely  requires  such  tribunals  and  proceedings  as  are 
proper  to  the  subject  in  hand.     *     *     * 

It  is  complained  that  the  decisions  of  the  board  are  final  and  with- 
out appeal.  So  are  the  decisions  of  the  courts  in  matters  within  their 
jurisdiction.  There  must  be  a  final  tribunal  somewhere  for  deciding 
every  question  in  the  world.  Injustice  may  take  place  in  all  tribunals. 
All  human  institutions  are  imperfect — courts  as  well  as  commissions 
and  legislatures.  Whatever  tribunal  has  jurisdiction,  its  decisions  are 
final  and  conclusive  unless  an  appeal  is  given  therefrom.  The  im- 
portant question  always  is,  what  is  the  lawful  tribunal  for  the  partic- 
ular case?  In  my  judgment,  in  the  present  case,  the  proper  tribunal 
was  the  legislature,  or  the  board  of  commissioners  which  it  created  for 
the  purpose.  *  *  *  It  was  alleged  in  Davidson  v.  New  Orleans,  % 
U.  S.  97,  106,  24  L.  Ed.  616,  that  the  property  assessed  was  not  bene- 
fited by  the  improvement;  but  we  held  that  that  was  a  matter  with 
which  we  would  not  interfere ;  the  question  was,  whether  there  was 
due  process  of  law.  If  a  state  court  renders  an  unjust  judgment,  we 
cannot  remedy  it. 

I  do  not  mean  to  say  that  the  legislature,  or  its  constituted  lx>ard  of 
commissioners,  or  other  legislative  agency,  may  not  so  act  as  to  deprive 
parties  of  their  property  without  due  process  of  law.  The  Constitution 
contemplates  the  possibility  of  such  an  invasion  of  rights.  But,  acting 
within  their  jurisdiction  (as  in  these  cases  they  have  done),  the  inva- 
sion should  be  clear  and  unmistakable  to  bring  the  case  within  that 
category.  Nothing  of  the  kind  exists  in  the  cases  before  us.  The  leg- 
islature, in  establishing  the  commission,  did  not  exceed  its  power:  and 
the  commission,  in  acting  upon  the  cases,  did  not  exceed  its  jurisdic- 
tion, and  was  not  chargeable  with  fraudulent  behavior.  There  was 
merely  a  difference  of  judgment  as  to  amount,  between  the  commis- 
sion and  the  companies,  without  any  indication  of  intent  on  the  part 
of  the  former  to  do  injustice.  The  board  may  have  erred;  but  if  they 
did,  as  the  matter  was  within  their  rightful  jurisdiction,  their  deci- 
sion was  final  and  conclusive  unless  their  proceedings  could  be  im- 
peached for  fraud.  Deprivation  of  property  by  mere  arbitrary  power 
on  the  part  of  the  legislature,  or  fraud  on  the  part  of  the  commission, 


304  FUNDAMENTAL    RIGHTS  (Part  2 

are  the  only  grounds  on  which  judicial  relief  may  be  sought  against 
their  action.  There  was,  in  truth,  no  deprivation  of  property  in  these 
cases  at  all.  There  was  merely  a  regulation  as  to  the  enjoyment  of 
property,  made  by  a  strictly  competent  authority,  in  a  matter  entirely 
within  its  jurisdiction.    *     *     *  l 

i  In  Budd  v.  New  York,  143  U.  S.  517,  12  Sup.  Ct.  46S,  36  L.  Ed.  247  (1S02), 
it  was  held  that  the  legislature  might  directly  prescribe  the  rates  to  be 
charged  by  grain  elevators,  without  a  previous  hearing  to  the  elevator  own- 
ers;   it  not  appearing  that  the  charges  fixed  were  actually  unreasonably  low. 

In  Ex  parte  Young,  209  U.  S.  123,  14.6-14S,  2S  Sup.  Ct  441,  52  L.  Ed.  714, 
13  L.  R.  A.  (N.  S.)  932,  14  Ann.  Cas.  7C4  (1908),  the  Minnesota  legislature  fixed 
certain  railway  rates,  alleged  by  the  railroads  to  be  unreasonably  low,  and 
imposed,  for  each  violation  thereof,  fines  of  $5,000  to  $10,000  upon  the  rail- 
road companies,  and  upon  individual  railroad  agents  fines  not  exceeding  $5,- 
000  and  imprisonment  for  not  over  five  years.  Various  railroads  obtained  in 
the  Minnesota  federal  courts  a  temporary  injunction  against  the  enforcement 
of  this  law  until  the  validity  of  the  rates  established  by  it  could  be  judicially 
ascertained,  and  one  of  the  grounds  urged  for  this  was  that  the  character  of 
the  penalties  themselves  operated  in  effect  to  deny  the  railroads  a  hearing. 
In  contempt  proceedings  consequent  upon  a  violation  of  this  injunction  by  the 
state  attorney  general,  this  ground  was  discussed  as  follows  by  Peckham.  J.: 

"The  necessary  effect  and  result  of  such  legislation  must  be  to  preclude  a 
resort  to  the  courts  (either  state  or  federal)  for  the  purpose  of  testing  its 
validity.  The  officers  and  employees  could  not  be  expected  to  disobey  any 
of  the  provisions  of  the  acts  or  orders  at  the  risk  of  such  fines  and  penalties 
being  imposed  upon  them,  in  case  the  court  should  decide  that  the  law  was 
valid.  The  result  would  be  a  denial  of  any  hearing  to  the  company.  *  *  » 
[Here  follow  quotations  to  this  effect  from  Cotting  v.  Kansas  City  Stock 
Yards,  1S3  U.  S.  79.  99-102,  22  Sup.  Ct.  30,  46  L.  Ed.  92.] 

"If  the  law  be  such  as  to  make  the  decision  of  the  legislature  or  of  a 
commission  conclusive  as  to  the  sufficiency  of  the  rates,  this  court  has 
held  such  a  law  to  be  unconstitutional.  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Minnesota,  supra  [134  U.  S.  418,  10  Sup.  Ct.  462,  702,  33  L.  Ed.  970].  A  law 
which  indirectly  accomplishes  a  like  result  by  Imposing  such  conditions 
upon  the  right  to  appeal  for  judicial  relief  as  work  an  abandonment  of  the 
right  rather  than  face  the  conditions  upon  which  it  is  offered  or  may  be  ob- 
tained is  also  unconstitutional.  It  may  therefore  be  said  that  when  the  pen- 
alties for  disobedience  are  by  fines  so  enormous  and  imprisonment  so  severe 
as  to  intimidate  the  company  and  its  officers  from  resorting  to  the  courts 
to  test  the  validity  of  the  legislation,  the  result  is  the  same  as  if  the  law  in 
terms  prohibited  the  company  from  seeking  judicial  construction  of  laws 
which  deeply  affect  its  rights. 

"It  is  urged  that  there  is  no  principle  upon  which  to  base  the  claim  that 
a  person  is  entitled  to  disobey  a  statute  at  least  once,  for  the  purpose  of 
testing  its  validity,  without  subjecting  himself  to  the  penalties  for  diso- 
bedience provided  by  the  statute  in  case  it  is  valid.  This  is  not  an  accurate 
statement  of  the  case.  Ordinarily  a  law  creating  offenses  in  the  nature  of 
misdemeanors  or  felonies  relates  to  a  subject  over  which  the  jurisdiction  of 
the  legislature  is  complete  in  any  event.  In  the  case,  however,  of  the  estab- 
lishment of  certain  rates  without  any  hearing,  the  validity  of  such  rates  neces- 
sarily depends  upon  whether  they  are  high  enough  to  permit  at  least  some  re- 
turn upon  the  investment  (how  much  it  is  not  now  necessary  to  state),  and  an 
inquiry  as  to  that  fact  is  a  proper  subject  of  judicial  investigation.  If  it 
turns  out  that  the  rates  are  too  low  for  that  purpose,  then  they  are  illegal. 
Now,  to  impose  upon  a  party  interested  the  burden  of  obtaining  a  judicial 
decision  of  such  a  question  (no  prior  hearing  having  ever  been  given)  only 
upon  the  condition  that,  if  unsuccessful,  he  must  suffer  imprisonment  and  pay 
fines,  as  provided  in  these  acts,  is,  in  effect,  to  close  up  all  approaches  to  the 
courts,  and  thus  prevent  any  hearing  upon  the  question  whether  the  rates  as 
provided  by  the  acts  are  not  too  low,  and  therefore  invalid.    The  distinction 


Ch.  9)        DUE  PROCESS  A3D  EQUALITY  I   PBOCBDORB  3u."V 


COMMONWEALTH  v.  SISS 

(Supreme  Judicial  Court  of  Massachusetts,  1905.    189  Haas,  lit,  7."  N.  E.  619, 

1  L.  R.  A.  [N.  S.]  752,  109  Am.  St   I 

[Appeal  upon  exceptions  taken  to  rulings  at  the  trial  in  the 
Superior  Court.  Acting  under  a  Massachusetts  statute,  the  fish  and 
game  commission  of  the  state  had  ordered  Sisson  to  cease  to  dis- 
charge sawdust  from  his  sawmill  into  the  Konkapot  river  upon  which 
the  mill  was  located.  Complaint  was  made  against  him  for  violating 
'this  order.  At  the  trial  Sisson  offered  to  show,  inter  alia,  that  in 
making  the  order  the  commission  did  not  act  upon  sworn  evidence 
or  personal  knowledge,  and  that  it  refused  to  give  him  a  hearing. 
There  were  admitted  to  be  edible  fish  in  the  river.  Exceptions  were 
taken  to  the  exclusion  of  this  evidence,  and  Sisson  was  found  guilty.] 

Loring,  J.  *  *  *  The  defendants'  grievance  is  that  by  an  or- 
der of  the  board  of  fish  and  game  commissioners  they  have  been 
deprived,  without  compensation  being  made  therefor,  of  the  right  to 
conduct  the  business  of  sawing  wood  as  they  and  their  predecessors 
in  title  have  conducted  it  for  30  years  last  past,  that  from  this  de- 
cision there  is  no  appeal,  and  that  not  only  was  the  order  made  with- 
out a  hearing,  but,  when  a  hearing  was  asked  for  by  the  defendants, 
it  was  denied.     *     *     * 

In  support  of  their  contention  they  argue  that  the  board,  in  deter- 
mining (1)  that  the  fish  in  Konkapot  river  are  of  sufficient  value  to 

is  obvious  between  a  case  where  the  validity  of  the  act  depends  upon  the 
existence  of  a  fact  which  can  be  determined  only  after  investigation  of  a  very 
complicated  and  technical  character,  and  the  ordinary  case  of  a  statute  upon 
a  subject  requiring  no  such  investigation;  and  over  which  the  jurisdiction  of 
the  legislature  is  complete  in  any  event 

"We  hold,  therefore,  that  the  provisions  of  the  acts  relating  to  the  enforce- 
ment of  the  rates,  either  for  freight  or  passengers,  by  Imposing  such  enormous 
fines  and  possible  imprisonment  as  a  result  of  an  unsuccessful  effort 
the  validity  of  the  laws  themselves,  are  unconstitutional  on  their  face,  with- 
out regard  to  the  question  of  the  insufficiency  of  those  rates." 

And  50  Missouri  Pac.  R.  Co.  v.  Tucker,  230  r    B.  340,  33  Sup.  Ct.  I 

T,.    i:<l.  (1913)  ($600  liquidated  damages  to  shipper  for  each  violation  of 

doul  tfui  rate  law). 

See.  also,  Missouri  Pac.  Rv.  Co.  v.  Nebraska,  217  U.  S.  19G.  207.  20S.  30  Sup. 
Ct  461,  54  L.  Ed.  727,  IS  Ann.  Cas.  AM)  (1oiO>   (railway   Dot  liable  to  $500 
fine  for  falling  to  build  siding  demanded  by  shipper  in  advance  of  hearing  as 
to  reasonableness  of  request);    Atchison,  T.  &  S.  F.  By.  Co.  v.  O'Com 
1  .  S.  280,  32  Sup.  Ct  216,  56  L.  Ed.  436  (1912)  (right  of  party  to  pay  ■', 
tax  under  protest  to  escape  penalties,  and  then  to  test  tax  in  suit  to  recover 
payment);    St.  Louis.  I.  M.  &  8.  By.  Co.  v.  Wynne.  224  D 
493,  56  L,  Ed  T'.r.i  (1912)  (railway  cannot  be  penalised  by  double  actu 

r  failure  to  pay  excessive  claim)  [but  see  Mobile  &  O.  Ry.  v.  Brandou. 
98  Miss.  4t;i.  ,r.:;  South,  957,  42  I*  B.  A.  (N.   S.)   106  (1910)  ($25  •■ 
failure  to  tender  within  CO  days  actual  amount  of  shipper's  damage,  despite 
latter/a  excessive  claim)].     Compare  Sbevlin-Carpenter  Co.  v.  Minn.,  i 
508,  note  (indefinlteness  of  description  of  statutory  crime). 

IIai.i.  Const.L. — 20 


•?06  FUNDAMENTAL    RIGHTS  (Part  2 

warrant  the  prohibition  or  regulation  of  the  discharge  of  sawdust 
therein,  and  (2)  that  the  discharge  of  sawdust  from  the  defendants' 
mill  materially  injured  such  fish,  was  [acting  judicially]  ;  and,  in  con- 
nection with  this  argument,  they  rely  on  the  distinction  pointed  out 
in  Salem  v.  Eastern  Railroad  Co.,  98  Mass.  431,  96  Am.  Dec.  650, 
between  the  action  of  a  local  board  of  health  in  making  general  reg- 
ulations respecting  articles  capable  of  conveying  infection  or  creating 
sickness  and  the  authority  of  such  a  board  to  examine  into  the  ex- 
istence of  any  specific  case  of  nuisance,  filth,  or  cause  of  sickness 
dangerous  to  the  public  health  and  to  make  an  order  for  the  removal 
of  it.  The  former,  being  a  rule  for  all,  is  legislative  in  character ; 
the  latter,  being  a  determination  as  to  a  particular  thing,  resulting  in 
an  order  to  the  owner  of  it  to  do  a  specified  act,  is  judicial  in  char- 
acter. For  a  later  case,  where  it  is  pointed  out  that  similar  legislative 
and  judicial  powers  are  given  to  the  state  board  of  health  in  connec- 
tion with  the  pollution  of  a  body  of  water  used  as  a  supply  of  a  city 
or  town,  see  Nelson  v.  State  Board  of  Health,  186  Mass.  330,  71  N. 
E.  693. 

We  agree  with  the  defendant's  counsel  as  to  what  the  order  here 
in  question  is  not.  We  agree  that  it  is  not  a  general  regulation. 
What  is  determined  by  it  is  that  the  discharge  of  sawdust  from  the 
-defendants'  mill  materially  injures  the  fish  in  Konkapot  river,  and  it 
orders  the  defendants  to  erect  a  blower,  and  forbids  the  defendants 
making  a  pile  of  sawdust  in  connection  with  the  mill ;  and  it  resulted 
in  an  order  served  on  these  defendants  to  do  these  acts.  This  is  not 
a  general  regulation.  But  we  do  not  agree  that,  because  it  is  not  a 
general  regulation,  it  is  a  judicial  action.  The  question  to  be  de- 
cided here  does  not  depend  upon  a  choice  between  the  two  classes 
dealt  with  in  Salem  v.  Eastern  Railroad,  98  Mass.  431,  96  Am.  Dec. 
650,  and  in  Nelson  v.  State  Board  of  Health,  186  Mass.  330,  71  N. 
E.  693,  and  for  these  reasons : 

We  are  of  opinion,  in  the  first  place,  that  it  is  within  the  power  of 
the  Legislature  to  protect  and  preserve  edible  fish  in  the  rivers  and 
brooks  of  the  commonwealth,  and  for  that  purpose,  if  they  think 
proper,  to  forbid  any  sawdust  being  discharged  into  any  brook  con- 
taining such  fish.     *     *     * 

We  are  of  opinion,  in  the  second  place,  that  in  case  the  Legislature 
thought  that  in  regulating  the  conflicting  rights  of  individuals  to  run 
sawmills  on  the  banks  of  a  river  on  the  one  hand,  and  of  the  public, 
on  the  other  hand,  to  have  fish  live  and  increase  in  the  same  stream, 
it  was  not  worth  while  to  forbid  sawdust  being  discharged  into  every 
stream  in  which  there  were  edible  fish,  they  could  leave  to  a  board 
having  peculiar  knowledge  on  the  subject  the  selection  of  the  brooks 
and  rivers  in  which  the  fish  were  of  sufficient  value  to  warrant  the 
prohibition  or  regulation  of  the  discharge  of  sawdust.  The  right  of 
the  Legislature  to  delegate  some  legislative  functions  to  state  boards 
was  considered  by  this  court  in  Brodbine  v.  Revere,  182  Mass.  598, 


Ch.  9)        DUE  PROCESS  AND  EQUALITY  :   PROCEDURE  807 

66  N.  E.  607.  And,  further,  in  case  the  Legislature  thought  that  an 
act  which  forbade  any  sawdust  to  be  discharged  into  any  of  the 
streams  selected  by  the  board  was  an  unnecessarily  stringent  one,  they 
could,  in  our  opinion,  leave  it  to  the  board  to  settle  in  each  particular 
case  the  practical  details  required  to  harmonize  best  these  two  con- 
flicting rights. 

The  power  thus  delegated  to  the  board  of  fitting  the  details  of  reg- 
ulation to  the  particular  circumstances  of  each  case  is  of  the  same 
character  as  that  long  exercised  by  the  fish  and  game  commissioners 
and  their  predecessors,  the  board  of  inland  fisheries,  in  prescribing 
the  details  of  the  construction  of  the  fishways  to  be  constructed  in 
dams  where  by  law  fishways  have  to  be  maintained.  See  St.  1866, 
pp.  231,  232,  c.  238,  §§  2,  6;  St.  1867,  p.  741,  c.  344;  Pub.  St.  1882, 
c.  91,  §  4.  See,  also,  3  Province  Laws,  1745^6  (State  Ed.)  c.  20, 
p.  267.  These  acts  provide  that  the  board,  after  examination  of 
dams  upon  rivers  where  the  law  requires  fishways,  is  to  determine 
whether  the  fishways  in  existence  are  sufficient,  and  to  prescribe  by 
an  order  in  writing  what  changes  or  repairs,  if  any,  shall  be  made, 
and  at  what  times  the  fishways  are  to  be  kept  open,  and  to  give  no- 
tice thereof  to  the  owners  of  such  dams.  The  action  of  the  fish  com- 
missioners under  these  acts  is  unquestionably  legislative  in  character, 
and  we  cannot  doubt  that  their  action  under  them,  exercised  and 
acquiesced  in  by  the  public  for  this  length  of  time,  is  valid. 

The  result  is  that  in  our  opinion  the  action  of  the  board  in  the 
case  at  bar  was  the  working  out  of  details  under  a  legislative  act. 
The  board  is  no  more  required  to  act  on  sworn  evidence  than  is  the 
Legislature  itself,  and  no  more  than  in  case  of  the  Legislature  itself 
is  it  bound  to  act  only  after  a  hearing,  or  to  give  a  hearing  to  the 
plaintiff  when  he  asks  for  one ;  and  its  action  is  final,  as  is  the  ac- 
tion of  the  Legislature  in  enacting  a  statute,  and,  being  legislative, 
it  is  plain  that  fhe  questions  of  fact  passed  upon  by  the  commissioners 
in  adopting  the  provisions  enacted  by  them  cannot  be  tried  over  by 
the  court.  This  court  has  been  recently  asked  to  try  over  the  ex- 
pediency of  compulsory  vaccination  in  an  action  under  a  statute  re- 
quiring it.  Com.  v.  Jacobson,  183  Mass.  242.  66  N.  E.  719,  67  L.  R. 
A.  935.  On  its  declining  to  do  so  an  appeal  was  taken  to  the  Su- 
preme Court  of  the  United  States,  and  its  refusal  to  do  so  was  held 
to  be  correct.  Jacobson  v.  Mass.,  197  U.  S.  11,  25  Sup.  Ct.  3:s.  49 
L.  Ed.  643,  3  Ann.  Cas.  765.  See  particularly  page  30  of  197  U. 
S.,  page  363  of  25  Sup.  Ct.,  49  L.  Ed.  643.  See,  also,  Devens,  J.. 
in  Train  v.  Boston  Disinfecting  Co.,  144  Mass.  523,  531,  11  X.  E 
929,  59  Am.  Rep.  113. 

The  practical  result  is  that  the  defendants  are  forbidden  to  con- 
duct their  sawmill  as  they  had  conducted  it  for  30  years  by  a  board 
who  have  not  heard  evidence  and  have  refused  the  defendants  a 
hearing,  that  the  action  of  the  board  is  final,  and  that  no  compensa- 


308  FUNDAMENTAL    RIGHTS  (Part  2 

tion  is  due  to  them.  This  result  may  seem  strange.  But  it  is  no  less 
strange  than  the  practical  results  in  cases  which  are  decided  law. 
Take  the  case  before  the  court  in  Nelson  v.  State  Board  of  Health, 
186  Mass.  330,  71  N.  E.  693,  namely,  a  farm  on  the  banks  of  a  pond 
used  as  the  water  supply  of  a  town.  The  state  board  of  health  can 
pass  a  general  regulation  under  section  113,  c.  75,  Rev.  Laws,  for- 
bidding privies  within  a  specified  distance  from  its  shore;  and,  if 
the  defendant  had  had  a  privy  there  for  30  years,  his  right  to  main- 
tain it  would  cease,  although  the  order  was  made  without  hearing; 
and  the  action  of  the  board  is  final.  On  the  other  hand,  if  the  board 
had  proceeded,  under  section  118,  to  investigate  this  particular  privy, 
the  defendant  would  have  been  entitled  to  a  hearing  and  on  appeal 
to  a  jury,  as  provided  by  section  119.  Again,  take,  for  example, 
the  regulation  of  a  local  board  of  health  in  question  in  Train  v.  Bos- 
ton Disinfecting  Co.,  144  Mass.  523,  11  N.  E.  929,  59  Am.  Rep.  113, 
requiring  all  rags  arriving  at  the  port  of  Boston  from  any  foreign 
port  to  be  disinfected  at  the  expense  of  the  owner  before  being  dis- 
charged. The  power  of  the  local  board  of  health  to  declare  these 
rags  a  nuisance  per  se,  so  as  to  impose  upon  the  owner  without  trial 
the  expense  of  disinfecting  them,  was  established  by  this  court  in 
that  case.  Had  the  local  board  undertaken  to  investigate  the  particu- 
lar rags  in  question  in  Train  v.  Boston  Disinfecting  Co.,  under  their 
jurisdiction  to  inquire  into  sources  of  filth,  and  they  had  been  au- 
thorized under  that  act  to  abate  the  nuisance  if  they  found  the  rags 
to  be  a  nuisance,  by  ordering  them  to  be  disinfected  at  the  expense 
of  the  defendant,  they  would  have  had  to  give  the  defendant  a  hear- 
ing on  notice,  and  from  their  decision  the  defendant  would  have  had 
a  right  to  a  trial  by  jury.  That  is  what  was  decided  in  Salem  v.  East- 
ern Railroad,  98  Mass.  431,  96  Am.  Dec.  650. 

That  is  to  say,  on  the  one  hand,  where  the  law  is  general  and  the 
question  is  whether  under  it  the  defendants  are  committing  a  nui- 
sance, the  facts  are  determined  by  judicial  action;  on  the  other  hand, 
the  determination  of  the  same  facts  is  legislative  in  case  the  Legis- 
lature decides  to  make  the  thing  a  nuisance  per  se.  And  where  it  is 
legislative  it  is  final,  and  no  hearing  is  necessary;  and  where,  as  is 
the  case  here,  it  is  made  in  the  exercise  of  the  police  power,  no  com- 
pensation is  due.  The  delegation  of  such  legislative  powers  to  a 
board  is  going  a  great  way.  But  the  remedy  is  by  application  to  the 
Legislature,  if  a  remedy  should  be  given.  In  our  opinion  it  is  within 
its  constitutional  power,  and  the  court  can  give  no  remedy. 

For  similar  cases,  where  the  use  which  can  be  made  of  property 
has  been  left  to  the  final  determination  of  boards,  see  Newton  v. 
Joyce,  166  Mass.  83,  41  N.  E.  116,  55  Am.  St.  Rep.  385;  Com.  v. 
Roberts,  155  Mass.  281,  29  N.  E.  522,  16  L.  R.  A.  4C0.  See,  also,  in 
this  connection,  In  re  Wares,  Petitioners,  161  Mass.  70,  36  N.  E. 
586.     The  difference  between  the  majority  and  the  minority  of  the 


Ch.  9)  DUE   PB0CEB8   AND    BQUAHTX:      PBOI  BD1  BB  309 

court  in  Miller  v.  Horton,  152  Mass.  540,  26  N.  E.  100,  10  L.  R.  A. 
116,  23  Am.  St.  Rep.  S50,  was  on  the  construction  of  the  act  there  in 
question. 

Exceptions  overruled.1 

PRENTIS  v.  ATLANTIC  COAST  LINE  CO. 

(Supreme  Court  of  United  States,  190*.     211  U.   S.  210,  29  Sup.  Ct.  C7,  53  L. 
Ed.  150.) 

[Appeals  from  the  federal  Circuit  Court  for  the  Eastern  District  of 
Virginia.  The  Virginia  Constitution  of  1902  established  a  state  cor- 
poration commission  empowered,  among  other  things,  to  regulate 
transportation  rates  within  the  state.  Before  fixing  any  rate  it  was 
required  to  give  notice  and  a  hearing  to  parties  affected  thereby,  and 
any  party  aggrieved  by  its  orders  was  given  an  appeal  to  the  highest 
state  court,  which  was  empowered,  if  it  reversed  the  commission's  or- 
ders, to  substitute  therefor  such  orders  as  in  its  opinion  should  have 
been  made.  No  other  state  court  was  given  jurisdiction  over  the  action 
of  the  commission.  After  a  rate  was  fixed,  the  commission  was  em- 
powered, by  its  own  process,  to  enforce  against  offenders  the  penalties 
established  by  law  for  disobedience  to  its  orders.  In  this  proceeding 
also  a  hearing  was  required,  the  validity  and  reasonableness  of  orders 
might  be  attacked  again,  and  all  defenses  were  open  to  alleged  offend- 

1  As  due  process  in  the  exercise  of  legislative  power  depends  upon  the 
validity  of  the  resulting  enactment  and  not  upon  the  mode  in  which  the  legis- 
lative determination  was  reached  (notice  and  hearing  being  the 
essary),  it  would  seem  that  where  legislative  power  may  be  delegated  at  all 
to  an  administrative  tribunal  (see  Chapter  II,  section  2,  supra)  it  may  be 
delegated  as  in  the  principal  case,  to  be  exercised  without  notice  and  hearing, 
provided  that  the  legislature's  intention  to  do  this  clearly  appears.  The  l  td 
eral  authorities,  chiefly  dicta,  are  not  harmonious,  however.  See,  as  to  crea 
tion  of  municipal  taxing  districts,  Spencer  v.  Merchant,  post,  at  p.  C44,  and 
note  1;  rate  regulation,  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minn.,  ante 
opinion  of  Bradley,  J.;  Budd  v.  New  York,  143  D.  S.  517.  545-54S,  12  Sup.  ft. 
4GS,  30  L.  Ed.  247  (1892);  Home  Telephone  &  Telegraph  Co.  v.  Los  Angeles.  211 
D.  s.  265,  i'7s  29  8np.  ft.  .".o.  58  I..  Ed.  176  1908);  extent  and  expedlenc)  ol 
taking  in  eminent  domain,  People  v.  Smith.  21  N.  T.  595  (1860)  ;  Lynch  v. 
Forbes,  161  Mass.  302,  308,  309,  37  N.  E.  437,  42  Am.  St.  Rei 
United  States  v.  Gettysburg  Electric  Ry.  Co.,  1G0  U.  S.  668,  685,  16  Sup.  Ct 
427,  40  L.  Ed.  576  (1S9S). 

]>ie  Puocess  in  Executive  Action. — Notice  and  bearing  are  not  es 
to  due  process  in  any  purely  executive  determination.  Mover  v.  Peabody,  212 
U.  S.  78,  29  Sup.  Ct,  235,  53  L.  Ed.  410  (1909)  (right  of  state  executive  to 
kill  or  imprison  persons  in  bona  fide  efforts  to  suppress  insurrection,  even 
assuming  such  acts  to  be  actually  unnecessary) ;  Marbles  v.  Creecy,  21."  1"  s. 
63,  ::n  Sup.  Ct.  32,  04  L.  Ed.  92  (1909)  (issuance  of  extradition  warrant  upon 
requisition  papers)  [see,  also,  Pettibone  v.  Nichols,  203  D.  S.  192.  20::  206,  27 
Sup.  Ct  111,  51  L.  Ed.  148;  7  Ann.  Cas.  1047  (1906)]  So  of  removals  from 
office  by  executive  authority,  In  re  Bennen,  13  l'^t.  230,  10  I-  Ed.  138  (1839): 
Blake  v.  United  States,  103  U.  S.  227.  21;  !..  Ed  162  (1881);  Tralnor  v.  Board 
of  An. liters,  89  Mich.  1G2,  50  N.  W.  809,  17.  I-  B.  A.  '.'".  (1891);  except  where 
the  removal  must  be  for  cause,  when  the  power  exercised  is  judicial  in  it- 
nature  and  requires  a  hearing,  Dullam  v.  Willson,  63  Mi.  h.  892,  19  V  VV.  112. 
51  Am.  Rep.  128  (1884).  See,  also,  Caldwell  v.  Wilson.  121  V  G 
554  (1897),  affirmed  in  Wilson  v.  North  Carolina  ex  rel,  Caldwi 
5S6,  IS  Sup.  Ct.  -135.  42  L.  Ed.  866  (1898). 


310  FUNDAMENTAL    RIGHTS  (Part  2 

ers.  In  1906,  upon  notice,  a  hearing  was  given  to  complainant  rail- 
roads upon  the  question  of  passenger  rates,  and  in  April,  1907,  an  or- 
der was  made  fixing  various  such  rates  for  different  roads.  Complain- 
ants then  filed  bills  in  equity  in  the  above-mentioned  court  to  enjoin 
the  commission  from  enforcing  this  order  as  confiscatory  under  the 
fourteenth  amendment.  The  defendants  alleged  by  demurrer  and  plea 
that  the  proceedings  before  the  commission  were  proceedings  in  a 
court  of  the  state,  which  the  courts  of  the  United  States  were  forbidden 
to  enjoin  (Rev.  St.  §  720,  U.  S.  Comp.  St.  1901,  p.  581),  and  that  the 
decision  of  the  commission  made  the  legality  of  the  rates  res  judicata. 
From  a  decree  for  complainants  on  these  pleadings,  the  defendants 
appealed.] 

Mr.  Justice  Holmes.  *  *  *  We  shall  assume  that  when,  as  here, 
a  state  Constitution  sees  fit  to  unite  legislative  and  judicial  powers  in 
a  single  hand,  there  is  nothing  to  hinder,  so  far  as  the  Constitution  of 
the  United  States  is  concerned.  Dreyer  v.  Illinois,  187  U.  S.  71,  83,  84. 
23  Sup.  Ct.  28,  47  L.  Ed.  79,  85 ;  Winchester  &  S.  R.  Co.  v.  Com.,  106 
Va.  264,  268,  55  S.  E.  692.  We  shall  assume,  as  we  have  said,  that 
some  of  the  powers  of  the  commission  are  judicial,  and  we  shall  as- 
sume, without  deciding,  that,  if  it  was  proceeding  against  the  appellees 
to  enforce  this  order  and  to  punish  them  for  a  breach,  it  then  would 
be  sitting  as  a  court  and  would  be  protected  from  interference  on  the 
part  of  courts  of  the  United  States. 

But  we  think  it  equally  plain  that  the  proceedings  drawn  in  ques- 
tion here  are  legislative  in  their  nature,  and  none  the  less  so  that  they 
have  taken  place  with  a  body  which,  at  another  moment,  or  in  its  prin- 
cipal or  dominant  aspect,  is  a  court  such  as  is  meant  by  section  720. 
A  judicial  inquiry  investigates,  declares,  and  enforces  liabilities  as 
they  stand  on  present  or  past  facts  and  under  laws  supposed  already 
to  exist.  That  is  its  purpose  and  end.  Legislation,  on  the  other  hand, 
looks  to  the  future  and  changes  existing  conditions  by  making  a  new 
rule,  to  be  applied  thereafter  to  all  or  some  part  of  those  subject  to  its 
power.  The  establishment  of  a  rate  is  the  making  of  a  rule  for  the 
future,  and  therefore  is  an  act  legislative,  not  judicial,  in  kind,  as 
seems  to  be  fullv  recognized  by  the  supreme  court  of  appeals  (Com. 
v.  Atlantic  Coast"  Line  R.  Co.,  106  Va.  61,  64,  55  S.  E.  572,  7  L.  R.  A. 
[N.  S.]  1086,  117  Am.  St.  Rep.  983).  and  especially  by  its  learned 
president  in  his  pointed  remarks  in  Winchester  &  S.  R.  Co.  v.  Com., 
106  Va.  264,  281,  55  S.  E.  692.  See,  further,  Interstate  Commerce 
Commission  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  167  U.  S.  479,  499, 
500,  505,  17  Sup.  Ct.  896,  42  L.  Ed.  243,  253,  255;  San  Diego  Land 
&  Town  Co.  v.  Jasper,  189  U.  S.  439,  440,  23  Sup.  Ct.  571,  47  L.  Ed. 
892,  893. 

Proceedings  legislative  in  nature  are  not  proceedings  in  a  court, 
within  the  meaning  of  Rev.  St.  §  720,  no  matter  what  may  be  the  gen- 
eral or  dominant  character  of  the  body  in  which  they  may  take  place. 
Southern  R.  Co.  v.  Greensboro  Ice  &  Coal  Co.  (C.  C.)  134  Fed.  82,  94, 


Ch.  9)        DUB  PROCESS  AND  EQUALITY  :   PROCEDCRB  311 

affirmed  sub  nom.  McNeill  v.  Southern  Ry.  Co.,  202  U.  S.  543,  26 
Sup.  Ct.  722,  SO  L.  Ed.  1142.  That  question  depends  not  upon  the 
character  of  the  body,  but  upon  the  character  of  the  proceedings.  In 
re  Virginia,  100  U.  S.  339,  348,  25  L.  Ed.  676,  680.  They  are  not  a 
suit  in  which  a  writ  of  error  would  lie  under  Rev.  St.  §  709r  and  Act 
Feb.  18,  1875,  c.  80,  18  Stat.  318  (U.  S.  Comp.  St.  1901,  p.  575).  See 
Upshur  County  v.  Rich,  135  U.  S.  467,  10  Sup.  Ct.  651,  34  L.  Ed.  196; 
Wallace  v.  Adams,  204  U.  S.  415,  423,  27  Sup.  Ct.  363,  51  L.  Ed.  547, 
551.  The  decision  upon  them  cannot  be  res  judicata  when  a  suit  is 
brought.  See  Reagan  v.  Fanners'  Loan  &  T.  Co.,  154  U.  S.  362,  14 
Sup.  Ct.  1047,  38  L.  Ed.  1014,  4  Inters.  Com.  Rep.  560.  And  it  does 
not  matter  what  inquiries  may  have  been  made  as  a  preliminary  to  the 
legislative  act.  Most  legislation  is  preceded  by  hearings  and  investiga- 
tions. But  the  effect  of  the  inquiry,  and  of  the  decision  upon  it,  is 
determined  by  the  nature  of  the  act  to  which  the  inquiry  and  decision 
lead  up. 

A  judge  sitting  with  a  jury  is  not  competent  to  decide  issues  of  fact ; 
but  matters  of  fact  that  are  merely  premises  to  a  rule  of  law  he  may 
decide.  He  may  find  out  for  himself,  in  whatever  way  seems  best, 
whether  a  supposed  statute  ever  really  was  passed.  In  Pickering  v. 
Barkley,  Style,  132,  merchants  were  asked  by  the  court  to  state  their 
understanding  as  an  aid  to  the  decision  of  a  demurrer.  The  nature  of 
the  final  act  determines  the  nature  of  the  previous  inquiry.  As  the 
judge  is  bound  to  declare  the  law,  he  must  know  or  discover  the  facts 
that  establish  the  law.  So,  when  the  final  act  is  legislative,  the  deci- 
sion which  induces  it  cannot  be  judicial  in  the  practical  sense,  although 
the  questions  considered  might  be  the  same  that  would  arise  in  the 
trial  of  a  case.1  If  a  state  Constitution  should  provide  for  a  hearing 
before  any  law  should  be  passed,  and  should  declare  that  it  should  be 
a  judicial  proceeding  in  rem  and  the  decision  binding  upon  all  the 
world,  it  hardly  is  to  be  supposed  that  the  simple  device  could  make 
the  constitutionality  of  the  law  res  judicata,  if  it  subsequently  should  be 
drawn  in  question  before  a  court  of  the  United  States.  And  all  that 
we  have  said  would  be  equally  true  if  an  appeal  had  been  taken  to 
the  supreme  court  of  appeals  and  it  had  confirmed  the  rate.  Its  action 
in  doing  so  would  not  have  been  judicial,  although  the  questions  debated 
by  it  might  have  been  the  same  that  might  come  before  it  as  a  court, 
and  would  have  been  discussed  and  passed  upon  by  it  in  the  same 
way  that  it  would  deal  with  them  if  they  arose  afterwards  in  a  case 
properly  so  called.  We  gather  that  these  are  the  views  of  the  supreme 
court  of  appeals  itself.  Atlantic  Coast  Line  R.  Co.  v.  Com.,  102  Va. 
599,  621,  46  S.  E.  911.  They  are  implied  in  many  cases  in  this  and 
other  United  States  courts  in  which  the  enforcement  of  rates  has  been 
enjoined,  notwithstanding  notice  and  hearing,  and  what  counsel  in  this 

i  Accord:    Bradley  v.  City  of  Richmond.  227  U.  S.  477,  33  Sup.  Ct  318.  .r>7 

L.  Ed. (1913)  (classification  of  occui>a lions  for  graded  license  tax  la  legis 

hitivc  not,  though  accompanied  by  notice  and  hearing). 


312  FUNDAMENTAL    RIGHTS  (Part  2 

case  call  "litigation"  in  advance.  Legislation  cannot  bolster  itself  up  in 
that  way.  Litigation  cannot  arise  until  the  moment  of  legislation  is 
past.  See  Southern  R.  Co.  v.  Com.,  107  Va.  771,  772,  60  S.  E.  70,  17 
L.  R.  A.  (N.  S.)  364.    *   *    * 

Our  hesitation  has  been  on  the  narrower  question  whether  the  rail- 
roads, before  they  resorted  to  the  circuit  court,  should  not  have  taken 
the  appeal  allowed  to  them  by  the  Virginia  Constitution  at  the  legisla- 
tive stage,  so  as  to  make  it  absolutely  certain  that  the  officials  of  the 
state  would  try  to  establish  and  enforce  an  unconstitutional  rule.  Con- 
siderations of  comity  and  convenience  have  led  this  court  ordinarily  to 
decline  to  interfere  by  habeas  corpus  where  the  petitioner  had  open  to 
him  a  writ  of  error  to  a  higher  court  of  a  state,  in  cases  where  there 
was  no  merely  logical  reason  for  refusing  the  writ.  The  question  is 
whether  somewhat  similar  considerations  ought  not  to  have  some 
weight  here. 

We  admit  at  once  that  they  have  not  the  same  weight  in  this  case. 
The  question  to  be  decided,  we  repeat,  is  legislative,  whether  a  certain 
rule  shall  be  made.  Although  the  appeal  is  given  as  a  right,  it  is  not  a 
remedy,  properly  so  called.  At  that  time  no  case  exists.  We  should 
hesitate  to  say,  as  a  general  rule,  that  a  right  to  resort  to  the  courts 
could  be  made  always  to  depend  upon  keeping  a  previous  watch  upon 
the  bodies  that  make  laws,  and  using  every  effort  and  all  the  machinery 
available  to  prevent  unconstitutional  laws  from  being  passed.  It 
might  be  said  that  a  citizen  has  a  right  to  assume  that  the  Constitution 
will  be  respected,  and  that  the  very  meaning  of  our  system  in  giving 
the  last  word  upon  constitutional  questions  to  the  courts  is  that  he  may 
rest  upon  that  assumption,  and  is  not  bound  to  be  continually  on  the 
alert  against  covert  or  open  attacks  upon  his  rights  in  bodies  that  can- 
not finally  take  them  away.  It  is  a  novel  ground  for  denying  a  man  a 
resort  to  the  courts  that  he  has  not  used  due  diligence  to  prevent  a 
law  from  being  passed. 

But  this  case  hardly  can  be  disposed  of  on  purely  general  principles. 
The  question  that  we  are  considering  may  be  termed  a  question  of 
equitable  fitness  or  propriety,  and  must  be  answered  on  the  particular 
facts.  The  establishment  of  railroad  rates  is  not  like  a  law  that  affects 
private  persons,  who  may  never  have  heard  of  it  till  it  was  passed.  It 
is  a  matter  of  great  interest,  both  to  the  railroads  and  to  the  public,  and 
is  watched  by  both  with  scrutinizing  care.  The  railroads  went  into  evi- 
dence before  the  commission.  They  very  well  might  have  taken  the 
matter  before  the  supreme  court  of  appeals.  No  new  evidence  and  no 
great  additional  expense  would  have  been  involved. 

The  state  of  Virginia  has  endeavored  to  impose  the  highest  safe- 
guards possible  upon  the  exercise  of  the  great  power  given  to  the 
state  corporation  commission,  not  only  by  the  character  of  the  members 
of  that  commission,  but  by  making  its  decisions  dependent  upon  the 
assent  of  the  same  historic  body  that  is  intrusted  with  the  preservation 
of  the  most  valued  constitutional  rights,  if  the  railroads  see  fit  to  ap- 


Ch.  9)  DUE   PROCESS   AND    EQUALITY  I      PROCEDURE  BIS 

peal.  It  seems  to  us  only  a  just  recognition  of  the  solicitude  with  which 
their  rights  have  been  guarded,  that  they  should  make  sure  that  the 
state,  in  its  final  legislative  action,  would  not  respect  what  they  think 
their  rights  to  be,  before  resorting  to  the  courts  of  the  United  States. 

If  the  rate  should  be  affirmed  by  the  supreme  court  of  appeals  and 
the  railroads  still  should  regard  it  as  confiscatory,  it  will  be  under- 
stood from  what  we  have  said  that  they  will  be  at  liberty  then  to  renew 
their  application  to  the  circuit  court,  without  fear  of  being  met  by  a 
plea  of  res  judicata.  It  will  not  be  necessary  to  wait  for  a  prosecution 
by  the  commission.     *     *    * 

Decrees  reversed.2 

[Brewer,  J.,  dissented.  Fuller,  C.  J.,  and  Harlan,  J.,  concurred 
in  the  result,  but  gave  opinions  dissenting  from  the  reasoning  of  the 
majority  and  holding  the  action  of  the  Virginia  commission  to  be 
judicial  and  that  of  a  court,  and  hence  protected  by  Rev.  St.  §  720 
(U.  S.  Comp.  St.  1901,  p.  581).  Fuller,  C.  J.,  said  (211  U.  S.  237. 
29  Sup.  Ct.  74,  53  L.  Ed.  150):  "I  cannot  see  why  the  reasonableness 
and  justness  of  a  rate  may  not  be  judicially  inquired  into  and  judicial- 
ly determined  at  the  time  of  the  fixing  of  the  rate,  as  well  as  after- 
wards."] 

2  In  Winchester,  etc.,  Ry.  v.  Commonwealth.  106  Va.  264,  281,  55  S.  B.  COL'. 
69S  (1900),  referring  to  the  Virginia  corporation  commission,  Keith,  I 
"I  do  not  doubt  that  it  was  competent  for  the  state  to  create  a  commlssloD 
and  confer  upon  it  executive,  legislative,  and  judicial  functions  without  trench- 
ing upon  any  provision  of  the  Constitution  of  the  United  States :  but  the 
commission,  in  the  exercise  of  those  powers,  must  acquire  jurisdieti 
the  parties  to  be  affected  by  Its  action  by  due  process  of  law,  and  conform  Its 
proceedings  to  the  law  of  the  land.  When,  In  the  exercise  of  its  legislative 
functions,  it  has  in  obedience  to  the  law  of  the  state  summoned  persons, 
natural  or  artificial,  before  it  to  protect  their  rights,  it  has  done  what  is  not 
required  to  be  done  by  the  fourteenth  amendment  to  the  United  States  Consti- 
tution, and  what  it  might  have  omitted  to  do.  so  far  as  that  instrument  is  con- 
cerned ;  but  when  it  comes  to  enforce  its  rules  and  regulations  and  to  ad- 
judge the  penalties  for  their  violation,  a  stage  has  been  reached  at  which  the 
fourteenth  amendment  throws  its  negis  over  the  litigant,  who  must  be  sum- 
moned to  appear  and  permitted  to  defend  in  accordance  with  the  law  of  the 
land,  and  this  right  to  be  summoned  to  answer  is  not  satislied  by  the  ante- 
cedent summons  and  appearance  before  the  commission  at  a  time  when  the 
adoption  of  the  rule  or  regulation  was  under  consideration.  The  conn 
may  exercise  legislative  and  Judicial  functions,  but  cannot  confuse  and  blend 
them  in  one  procedure,  but  when  considering  the  adoption  of  a  regulation  is 
in  the  exercise  of  one  department  or  bead  "i"  its  authority,  and.  when  passing 
upon  the  violation  of  such  regulation,  Is  exercising  a  wholly  separate  func- 
tion, and  is  to  be  controlled  by  wholly  different  considerations  in  order  to 
meet  the  requirements  of  due  process  of  law  and  to  adjudicate  rights  in 
accordance  with  the  law  of  the  land." 

Compare  People  v.  Wilcox,  ante.  p.  100,  note. 

A  party  entitled  to  offer  all  competent  evidence  at  a  legislative  hearing 
before  a  commission  may.  at  least  In  the  absence  of  surprise,  mistake,  or  other 
extraordinary  circumstance,  be  confined  to  the  evidence  offered  before  the 
Commission,  when  the  order  of  the  latter  is  judicially  review. 
Washington  v.  Fairehild,  2U4  U.  S.  510,  524-528,  32  Sup.  Ct.  585,  5G  1,.  Ed. 
863  !1912).  And  if  he  refuses  to  appear  at  such  legislative  hearing,  he  is  not 
entitled  to  a  judicial  review  to  correct  errors  in  the  legislative  detenu 
Bradiev  v.  City  of  Richmond,  227  D.  S.  477.  488,  88  Bttp.  Ct  3is,  57  L.  Bd 
(1913). 


314  FUNDAMENTAL    RIGHTS  (Part  2 

SECTION  2.— EQUAL  PROTECTION  OF  LAW 


STRAUDER  v.  WEST  VIRGINIA. 
(Supreme  Court  of  United  States.  1S80.     100  U.  S.  303,  25  E.  Ed.  604.) 

[Writ  of  error  to  the  Supreme  Court  of  West  Virginia.  Strauder 
was  indicted  for  murder  in  West  Virginia,  was  tried,  convicted  and 
sentenced;  the  judgment  being  affirmed  by  the  state  Supreme  Court. 
At  the  time  the  laws  of  the  state  confined  the  right  to  serve  upon 
grand  and  petit  juries  to  white  male  citizens  of  the  state  over  twenty- 
one  years  old.  Strauder  was  a  negro,  and  appropriate  exceptions 
to  his  trial  by  such  juries  were  made  on  his  behalf  and  overruled. ] 

Mr.  Justice  Strong.  *  *  *  In  this  court,  several  errors  have 
been  assigned,  and  the  controlling  questions  underlying  them  all  are, 
first,  whether,  by  the  Constitution  and  laws  of  the  United  States, 
every  citizen  of  the  United  States  has  a  right  to  a  trial  of  an  indict- 
ment against  him  by  a  jury  selected  and  impanelled  without  discrim- 
ination against  his  race  or  color,  because  of  race  or  color.     *     *     * 

It  is  to  be  observed  that  the  first  of  these  questions  is  not  whether 
a  colored  man,  when  an  indictment  has  been  preferred  against  him, 
has  a  right  to  a  grand  or  a  petit  jury  composed  in  whole  or  in  part 
of  persons  of  his  own  race  or  color,1  but  it  is  whether,  in  the  com- 
position or  selection  of  jurors  by  whom  he  is  to  be  indicted  or  tried,  all 
persons  of  his  race  or  color  may  be  excluded  by  law,  solely  because  of 
their  race  or  color,  so  that  by  no  possibility  can  any  colored  man  sit 
upon  the  jury.     *     *     * 

[After  quoting  section  1  of  the  fourteenth  amendment:]  This  is 
one  of  a  series  of  constitutional  provisions  having  a  common  pur- 
pose, namely,  securing  to  a  race  recently  emancipated,  a  race  that 
through  many  generations  had  been  held  in  slavery,  all  the  civil  rights 
that  the  superior  race  enjoy.  The  true  spirit  and  meaning  of  the 
amendments,  as  we  said  in  the  Slaughter-House  Cases,  16  Wall.  36, 
21  L.  Ed.  394,  cannot  be  understood  without  keeping  in  view  the 
history  of  the  times  when  they  were  adopted,  and  the  general  ob- 
jects they  plainly  sought  to  accomplish.  At  the  time  when  they  were 
incorporated  into  the  Constitution,  it  required  little  knowledge  of 
human  nature  to  anticipate  that  those  who  had  long  been  regarded 
as  an  inferior  and  subject  race  would,  when  suddenly  raised  to  the 
rank  of  citizenship,  be  looked   upon  with  jealousy  and  positive  dis- 

>  The  equal  protection  of  the  laws  does  not  require  that  any  part  of  a  jury 
trying  a  negro  shall  necessarily  be  composed  of  negroes.  In  re  Wood,  140  U. 
S.  278,  11  Sup.  Ct.  738,  35  L.  Ed.  505  (1891) ;  In  re  Jugiro,  140  U.  S.  686,  11 
Sup.  Ct.  1022,  35  L.  Ed.  749  (1891)  (Japanese).  Nor  is  a  white  male  defend- 
ant entitled  to  an  opportunity  to  have  women  or  negroes  drawn  upon  his 
jury.  McKinney  v.  Wyoming,  3  Wyo.  719,  30  Pac.  293,  16  L.  R.  A.  710  (1892) 
(cases). 


Ch.  9)  DUE   PROCESS   AND    EQUALITY:      PROCEDURH  315 

like,  and  that  state  laws  might  be  enacted  or  enforced  to  perpetuate 
the  distinctions  that  had  before  existed.  Discriminations  against 
them  had  been  habitual.  It  was  well  known  that  in  some  states  laws 
making  such  discriminations  then  existed,  and  others  might  well  be 
expected.  The  colored  race,  as  a  race,  was  abject  and  ignorant,  and 
in  that  condition  was  unfitted  to  command  the  respect  of  those  who 
had  superior  intelligence.  Their  training  had  left  them  mere  chil- 
dren, and  a.s  such  they  needed  the  protection  which  a  wise  govern- 
ment extends  to  those  who  are  unable  to  protect  themselves.  They 
especially  needed  protection  against  unfriendly  action  in  the  states 
where  they  were  resident.  It  was  in  view  of  these  considerations 
the  fourteenth  amendment  was  framed  and  adopted.  It  was  designed 
to  assure  to  the  colored  race  the  enjoyment  of  all  the  civil  rights  that 
under  the  law  are  enjoyed  by  white  persons,  and  to  give  to  that  race 
the  protection  of  the  general  government,  in  that  enjoyment,  when- 
ever it  should  be  denied  by  the  states.  It  not  only  gave  citizenship 
and  the  privileges  of  citizenship  to  persons  of  color,  but  it  denied  to 
any  state  the  power  to  withhold  from  them  the  equal  protection  of 
the  laws,  and  authorized  Congress  to  enforce  its  provisions  by  ap- 
propriate legislation.     *     *     *  • 

If  this  is  the  spirit  and  meaning  of  the  amendment,  whether  it 
means  more  or  not,  it  is  to  be  construed  liberally,  to  carry  out  the 
purposes  of  its  framers..  It  ordains  that  no  state  shall  make  or  en- 
force any  laws  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States  (evidently  referring  to  the  newly  made 
citizens,  who,  being  citizens  of  the  United  States,  are  declared  to  be 
also  citizens  of  the  state  in  which  they  reside).  It  ordains  that  no 
state  shall  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  or  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws.  What  is  this  but  declaring  that  the  law 
in  the  states  shall  be  the  same  for  the  black  as  for  the  white :  that  all 
persons,  whether  colored  or  white,  shall  stand  equal  before  the  laws 
of  the  states,  and,  in  regard  to  the  colored  race,  for  whose  protection 
the  amendment  was  primarily  designed,  that  no  discrimination  shall 
be  made  against  them  by  law  because  of  their  color?  The  words  of 
the  amendment,  it  is  true,  are  prohibitory,  but  they  contain  a  neces- 
sary implication  of  a  positive  immunity,  or  right,  most  valuable  to 
the  colored  race, — the  right  to  exemption  from  unfriendly  legislation 
against  them  distinctively  as  colored, — exemption  from  legal  discrim- 
inations, implying  inferiority  in  civil  society,  lessening  the  security 
of  their  enjoyment  of  the  rights  which  others  enjoy,  and  discrimina- 
tions which  are  steps  towards  reducing  them  to  the  condition  of  a 
subject  race. 

That  the  West  Virginia  statute  respecting  juries — the  statute  that 
controlled  the  selection  of  the  grand  and  petit  jury  in  the  case  of  the 
plaintiff  in  error — is  such  a  discrimination  ought  not  to  be  doubted. 
Xor  would  it  be  if  the  persons  excluded  by  it  were  white  men.     If 


316  FUNDAMENTAL    RIGHTS  (Part  2 

in  those  states  where  the  colored  people  constitute  a  majority  of  the 
entire  population  a  law  should  be  enacted  excluding  all  white  men 
from  jury  service,  thus  denying  to  them  the  privilege  of  participating 
equally  with  the  blacks  in  the  administration  of  justice,  we  apprehend 
no  one  would  be  heard  to  claim  that  it  would  not  be  a  denial  to  white 
men  of  the  equal  protection  of  the  laws.  Nor  if  a  law  should  be 
passed  excluding  all  naturalized  Celtic  Irishmen,  would  there  be  any 
doubt  of  its  inconsistency  with  the  spirit  of  the  amendment.  The 
very  fact  that  colored  people  are  singled  out  and  expressly  denied  by 
a  statute  all  right  to  participate  in  the  administration  of  the  law,  as 
jurors,  because  of  their  color,  though  they  are  citizens,  and  may  be 
in  other  respects  fully  qualified,  is  practically  a  brand  upon  them,  af- 
fixed by  the  law,  an  assertion  of  their  inferiority,  and  a  stimulant  to 
that  race  prejudice  which  is  an  impediment  to  securing  to  individuals 
of  the  race  that  equal  justice  which  the  law  aims  to  secure  to  all 
others. 

The  right  to  a  trial  by  jury  is  guaranteed  to  every  citizen  of  'West 
Virginia  by  the  Constitution  of  that  state,  and  the  constitution  of 
juries  is  a  very  essential  part  of  the  protection  such  a  mode  of  trial 
is  intended  to  secure.  The  very  idea  of  a  jury  is  a  body  of  men 
composed  of  the  peers  or  equals  of  the  person  whose  rights  it  is  se- 
lected or  summoned  to  determine ;  that  is,  of  his  neighbors,  fellows, 
associates,  persons  having  the  same  legal  status  in  society  as  that 
which  he  holds.  Blackstone,  in  his  Commentaries,  says,  "The  right 
of  trial  by  jury,  or  the  country,  is  a  trial  by  the  peers  of  every  Eng- 
lishman, and  is  the  grand  bulwark  of  his  liberties,  and  is  secured  to 
him  by  the  Great  Charter."  It  is  also  guarded  by  statutory  enact- 
ments intended  to  make  impossible  what  Mr.  Bentham  called  "pack- 
ing juries."  It  is  well  known  that  prejudices  often  exist  against  par- 
ticular classes  in  the  community,  which  sway  the  judgment  of  jurors, 
and  which,  therefore,  operate  in  some  cases  to  deny  to  persons  of 
those  classes  the  full  enjoyment  of  that  protection  which  others  en- 
joy. Prejudice  in  a  local  community  is  held  to  be  a  reason  for  a 
change  of  venue.  The  framers  of  the  constitutional  amendment  must 
have  known  full  well  the  existence  o,f  such  prejudice  and  its  likeli- 
hood to  continue  against  the  manumitted  slaves  and  their  race,  and 
that  knowledge  was  doubtless  a  motive  that  led  to  the  amendment. 
By  their  manumission  and  citizenship  the  colored  race  became  entitled 
to  the  equal  protection  of  the  laws  of  the  states  in  which  they  re- 
sided; and  the  apprehension  that  through  prejudice  they  might  be 
denied  that  equal  protection,  that  is,  that  there  might  be  discrimina- 
tion against  them,  was  the  inducement  to  bestow  upon  the  national 
government  the  power  to  enforce  the  provision  that  no  state  shall 
deny  to  them  the  equal  protection  of  the  laws.  Without  the  appre- 
hended existence  of  prejudice  that  portion  of  the  amendment  would 
have  been  unnecessary,  and  it  might  have  been  left  to  the  states  to 
extend  equality  of  protection.     *     *     * 


Ch.  9)        DUE  PROCESS  AND  EQUALITY  :   PHOCBDUBB  317 

We  do  not  say  that  within  the  limits  from  which  it  is  not  excluded 
by  the  amendment,  a  state  may  not  prescribe  the  qualifications  of  its 
jurors,  and  in  so  doing  make  discriminations.  It  may  confine  the  se- 
lection to  males,  to  freeholders,  to  citizens,  to  persons  within  certain 
ages,  or  to  persons  having  educational  qualifications.2  We  do  not  be- 
lieve the  fourteenth  amendment  was  ever  intended  to  prohibit  this. 
Looking  at  its  history,  it  is  clear  it  had  no  such  purpose.  Its  aim 
was  against  discrimination  because  of  race  or  color.  As  we  have  said 
more  than  once,  its  design  was  to  protect  an  emancipated  race,  and 
to  strike  down  all  possible  legal  discriminations  against  those  who 
belong  to  it.  To  quote  further  from  16  Wall.,  supra:  "In  giving 
construction  to  any  of  these  articles  [amendments],  it  is  necessary 
to  keep  the  main  purpose  steadily  in  view."  "It  is  so  clearly  a  provi- 
sion for  that  race  and  that  emergency,  that  a  strong  case  would  be 
necessary  for  its  application  to  any  other."  We  are  not  now  called 
upon  to  affirm  or  deny  that  it  had  other  purposes. 

The  fourteenth  amendment  makes  no  attempt  to  enumerate  the 
rights  it  designed  to  protect.  It  speaks  in  general  terms,  and  those 
are  as  comprehensive  as  possible.  Its  language  is  prohibitory;  but 
every  prohibition  implies  the  existence  of  rights  and  immunities, 
prominent  among  which  is  an  immunity  from  inequality  of  legal  pro- 
tection, either  for  life,  liberty,  or  property.  Any  state  action  that 
denies  this  immunity  to  a  colored  man  is  in  conflict  with  the  Con- 
stitution.    *     *     * 

Judgment  reversed.* 

[Field.  J.,  dissented  on  grounds  stated  in  In  re  Virginia,  note  3. 
below.    Clifford,  J.,  concurred  with  him.] 

2  Lawyers,  ministers,  doctors,  teachers,  railroad  engineers  and  firemen,  and 
similar  classes  of  persons  may  be  excluded  from  jury  duty  so  as  not  to  inter- 
rupt their  regular  work  for  the  community.     Bawlins  v.  Georgia,  201    I 
688,  20  Sup.  Ct.  560,  50  L.  Ed.  899,  5  Ann.  Cas.  783  il906>. 

a  Accord :    Carter  v.  Texas,  177  U.  S.  442,  20  Sup.  Ct.  687,  44  L.  Ed.  839 

(19 'grand  juryi;    Martin  v.  Texas.  200   I".   S.  316,  26  Sup.  Ct  338,  50  L. 

Ed.  497  (1906)  (collecting  cases — complainant  must  offer  evidence  to   - 
contrition,  where  based  upon  alleged  unequal  administration  of 

In   In  re  Virginia,  100  U.  S.  o.:9.  367,  308,  25  L.  Ed.  871  leld.  J.. 

dissenting,  said : 

"The  fourth  clause  in  the  first  section  of  the  amendment  declares  that  no 
state  shall     deny  to  any  person  within  its  jurisdiction  the  equal  pr. 
of  the  laws.'      Upon  this  clause  the  counsel  of  the  district  judge  chietly  rely 
to  sustain  the  validity  of  the  legislation  in  question.    But  the  universality   .it 
the  protection  secured  necessarily  renders  their  position  untenable.     All  per- 
sons within  the  jurisdiction  of  the  state,  whether  permanent  residents  or  tem- 
porary sojourners,  whether  old  or  young,  male  or  female,  are  to  be  equally 
protected.     Yet  no  one  will  contend  that  equal  protection  to  women,  to  chil- 
dren, to  the  aged,  to  aliens,  can  only  be  secured  by  allowing  persons  of  the 
class  to  which  they  belong  to  act  as  jurors  in  cases  affecting  their  \:  I 
The  equality  of  protection  intended  does  not  require  that  all   persons  shall 
be  permitted  to  participate  in  the  government  of  the  state  and  the  adminis- 
tration of  its  laws,  to  hold  its  offices,  or  be  clothed  with  any  public 
As  already  said,  the  universality  of  the  protection  assured  repels  ai 
conclusion. 

"The  equality  of  the  protection  secured  extends  only  to  civil  rights  as  dlfl 


318  FUNDAMENTAL    RIGHTS  (Part  2 


CHAPTER  X 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW:  PRO- 
TECTIVE AND  REGULATIVE  POWER 
(POLICE  POWER) 


SECTION  1.— IN  GENERAL 


COMMONWEALTH  v.  ALGER. 
(Supreme  Judicial  Court  of  Massachusetts,  1S51.    7  Cush.  53.) 

[Alger  was  convicted  in  the  Boston  municipal  court  of  erecting  a 
wharf  from  his  riparian  land  into  Boston  harbor  beyond  the  established 
harbor  lines,  in  violation  of  a  statute.  The  wharf  was  not  below 
low-water  mark  and  did  not  actually  impede  navigation.  The  case 
was  reported  to  the  state  Supreme  Judicial  Court  for  the  decision  of 
doubtful  legal  questions  involved.] 

Shaw,  C.  J.  *  *  *  The  manifest  object  of  these  statutes  is  to 
prevent  injurious  obstructions  in  the  harbor  of  Boston,  and  to  secure 
the  free,  common,  and  unobstructed  use  thereof,  for  the  citizens  of  the 

liuguished  from  those  which  are  political,  or  arise  from  the  form  of  the  gov- 
ernment and  its  mode  of  administration.  *  *  •  It  has  no  more  refer- 
ence to  them  than  it  has  to  social  rights  and  duties,  which  do  not  rest  upon 
any  positive  law,  though  they  are  more  potential  in  controlling  the  inter- 
course of  individuals.  In  the  consideration  of  questions  growing  out  of  these 
amendments  much  confusion  has  arisen  from  a  failure  to  distinguish  between 
the  civil  and  the  political  rights  of  citizens.  Civil  rights  are  absolute  and 
personal.  Political  rights,  on  the  other  hand,  are  conditioned  and  dependent 
upon  the  discretion  of  the  elective  or  appointing  power,  whether  that  be  the 
people  acting  through  the  ballot,  or  one  of  the  departments  of  their  gov- 
ernment. The  civil  rights  of  the  individual  are  never  to  be  withheld,  and 
may  be  always  judicially  enforced.  The  political  rights  which  he  may  en- 
joy, such  as  holding  office  and  discharging  a  public  trust,  are  qualified  be- 
cause their  possession  depends  on  his  fitness,  to  be  adjudged  by  those  whom 
society  has  clothed  with  the  elective  authority.  The  thirteenth  and  four- 
teenth amendments  were  designed  to  secure  the  civil  rights  of  all  persons, 
of  every  race,  color,  and  condition;  but  they  left  to  the  states  to  determine 
to  whom  the  possession  of  political  powers  should  be  intrusted.  This  is  mani- 
fest from  the  fact  that  when  it  was  desired  to  confer  political  power  upon  the 
newly  made  citizens  of  the  states,  as  was  done  by  inhibiting  the  denial  to 
them  of  the  suffrage  on  account  of  race,  color,  or  previous  condition  of  servi- 
tude, a  new  amendment  was  required." 

Classification  of  Parties  foe  Pubpose  of  Differences  in  Procedure. — 
Any  reasonable  differences  between  parties  to  litigation  or  their  situations 
with  regard  thereto  affords  a  valid  basis  for  the  application  to  them  of  ap- 
propriately differing  rules  of  procedure.  See  District  of  Columbia  v.  Brooke, 
post,  p.  380,  note;  Ballard  v.  Hunter,  204  U.  S.  241,  27  Sup.  Ct.  261,  51  L. 
Ed.  461  (1907)  (constructive  service  of  process  on  non-resident  taxpayers  only) ; 
Central  Loan  &  T.  Co.  v.  Campbell  Commission  Co.,  173  U.  S.  84,  19  Sup. 
•Ct.   346,   43   L.   Ed.   623   (1899)   (same,   as   to   attachment  bond) ;     St.   Mary's 


Ch.  10)  DUE   PROCESS   AND    KQIAUTY:      POLICE    POWBB  31i> 

commonwealth,  and  all  other  persons,  for  navigation  with  ships,  boats, 
and  vessels  of  all  kinds,  as  a  common  and  public  right.  If  this  can  be 
done,  without  an  unwarrantable  encroachment  on  the  rights  of  private- 
property,  it  is  an  object  of  great  importance,  and  one  in  which  the 
holders  of  riparian  rights,  as  well  as  all  other  holders  of  real  estate, 
and  the  whole  community,  have  a  deep  and  abiding  interest. 

We  think  it  is  a  settled  principle,  growing  out  of  the  nature  of  well- 
ordered  civil  society,  that  every  holder  of  property,  however  absolute 
and  unqualified  may  be  his  title,  holds  it  under  the  implied  liability 
that  his  use  of  it  may  be  so  regulated,  that  it  shall  not  be  injurious  to 
the  equal  enjoyment  of  others,  having  an  equal  right  to  the  enjoyment 
of  their  property,  nor  injurious  to  the  rights  of  the  community.  All 
property  in  this  commonwealth,  as  well  that  in  the  interior  as  that 
bordering  on  tide-waters,  is  derived  directly  or  indirectly  from  the  gov- 
ernment, and  held  subject  to  those  general  regulations  which  are  neces- 
sary to  the  common  good  and  general  welfare.  Rights  of  property,  like 
all  other  social  and  conventional  rights,  are  subject  to  such  reasonable 
limitations  in  their  enjoyment,  as  shall  prevent  them  from  being  inju- 
rious, and  to  such  reasonable  restraints  and  regulations  established  by 
law,  as  the  legislature,  under  the  governing  and  controlling  power  vest- 
ed in  them  by  the  Constitution,  may  think  necessary  and  expedient. 

This  is  very  different  from  the  right  of  eminent  domain,  the  right  of 
a  government  to  take  and  appropriate  private  property  to  public  use. 

Franco-American  Petroleum  Co.  v.  West  Virginia,  203  U.  S.  183,  27  Sup.  Ct. 
132,  51  L.  Ed.  144  (1906)  (different  mode  of  service  ou  non-resident  corpora- 
tions);  Consolidated  Rendering  Co.  v.  Vermont,  207  U.  S.  541,  28  Sup.  Ct. 
178,  52  L.  Ed.  327,  12  Ann.  Cas.  658  (1908)  (corporations  alone  required  to 
produce  papers);  United  States  v.  Heinze,  218  U.  S.  532,  31  Sup.  Ct.  98,  64 
L.  Ed.  1139,  21  Ann.  Cas.  884  (1910)  (interlocutory  appeal  to  government  only 
— semble);  Standard  Oil  Co.  of  Kentucky  v.  Tennessee  ex  rel.  Catcs.  217 
U.  S.  413,  30  Sup.  Ct  543,  54  L.  Ed.  817  (1910)  (enforcement  of  anti-trust 
laws  against  corporations  in  equity  Instead  of  by  indictment). 

As  to  territorial  differences  in  procedure,  see  Missouri  v.  Lewis,  post,  p,  .;.  •< 
In  Cincinnati  St  Ry.  Co.  v.  Snell,  193  U.  S.  30.  36,  37,  24  Sup.  Ct.  319,  321, 
48  L.  Ed.  604  (1904),  an  Ohio  statute  was  upheld  permitting  to  opponents  of 
corporations  having  over  50  stockholders,  but  not  to  such  corporations  them 
selves,  a  change  of  venue  for  local  prejudice;  Mr.  Justice  White,  saying: 
"The  proposition  to  which  the  case  reduces  itself  is  therefore  this :  That  al- 
though the  protection  of  equal  laws  equally  administered  has  been  enjoyed, 
nevertheless  there  has  been  a  denial  of  the  equal  protection  of  the  law  within 
the  purview  of  the  fourteenth  amendment,  only  because  the  state  has  allowed 
one  person  to  seek  one  forum  and  has  not  'allowed  another  person,  a 
to  be  in  the  same  class,  to  seek  the  same  forum,  although  as  to  both  per 
sons  the  law  has  afforded  a  forum  in  which  the  same  and  equal  laws  ar< 
applicable  and  administered.  But  it  is  fundamental  rights  which  the  four- 
teenth amendment  safeguards,  and  not  the  mere  forum  which  a  state  may  ne 
proper  to  designate  for  the  enforcement  and  protection  of  such  rights.  Given, 
therefore,  a  condition  where  fundamental  rights  are  equally  protected  and 
preserved,  it  is  impossible  to  say  that  the  rights  which  are  thus  protected 
and  preserved  have  been  denied  because  the  state  has  deemed  best  to  pro- 
vide for  a  trial  in  one  forum  or  another.  It  is  not,  under  any  view,  tin' 
mere  tribunal  into  which  a  person  is  authorized  to  proceed  by  a  state  which 
determines  whether  the  equal  protection  of  the  law  has  been  afforded,  but 
whether  in  the  tribunals  which  the  state  has  provided  equal  laws  prevail." 


320  FUNDAMENTAL    RIGHTS  (Part  2 

whenever  the  public  exigency  requires  it;  which  can  be  done  only 
on  condition  of  providing  a  reasonable  compensation  therefor.  The 
power  we  allude  to  is  rather  the  police  power,  the  power  vested  in  the 
legislature  by  the  Constitution,  to  make,  ordain,  and  establish  all  man- 
ner of  wholesome  and  reasonable  laws,  statutes,  and  ordinances,  either 
with  penalties  or  without,  not  repugnant  to  the  Constitution,  as  they 
shall  judge  to  be  for  the  good  and  welfare  of  the  commonwealth  and 
of  the  subjects  of  the  same. 

It  is  much  easier  to  perceive  and  realize  the  existence  and  sources  of 
this  power,  than  to  mark  its  boundaries,  or  prescribe  limits  to  its  exer- 
cise. There  are  many  cases  in  which  such  a  power  is  exercised  by  all 
well-ordered  governments,  and  where  its  fitness  is  so  obvious,  that  all 
well-regulated  minds  will  regard  it  as  reasonable.  Such  are  the  laws  to 
prohibit  the  use  of  warehouses  for  the  storage  of  gunpowder  near 
habitations  or  highways ;  to  restrain  the  height  to  which  wooden  build- 
ings may  be  erected  in  populous  neighborhoods,  and  require  them  to 
be  covered  with  slate  or  other  incombustible  material ;  to  prohibit 
buildings  from  being  used  for  hospitals  for  contagious  diseases,  or  for 
the  carrying  on  of  noxious  or  offensive  trades ;  to  prohibit  the  raising 
of  a  dam,  and  causing  stagnant  water  to  spread  over  meadows,  near 
inhabited  villages,  thereby  raising  noxious  exhalations,  injurious  to 
health  and  dangerous  to  life. 

Nor  does  the  prohibition  of  such  noxious  use  of  property,  a  prohibi- 
tion imposed  because  such  use  would  be  injurious  to  the  public,  al- 
though it  may  diminish  the  profits  of  the  owner,  make  it  an  appropria- 
tion to  a  public  use,  so  as  to  entitle  the  owner  to  compensation.  If  the 
owner  of  a  vacant  lot  in  the  midst  of  a  city  could  erect  thereon  a  great 
wooden  building,  and  cover  it  with  shingles,  he  might  obtain  a  larger 
profit  of  his  land,  than  if  obliged  to  build  of  stone  or  brick,  with  a 
slated  roof.  If  the  owner  of  a  warehouse  in  a  cluster  of  other  buildings 
could  store  quantities  of  gunpowder  in  it  for  himself  and  others,  he 
might  be  saved  the  great  expense  of  transportation.  If  a  landlord 
could  let  his  building  for  a  small-pox  hospital,  or  a  slaughter-house,  he 
might  obtain  an  increased  rent.  But  he  is  restrained ;  not  because  the 
public  have  occasion  to  make  the  like  use,  or  to  make  any  use  of  the 
property,  or  to  take  any  benefit  or  profit  to  themselves  from  it;  but 
because  it  would  be  a  noxious  use,  contrary  to  the  maxim,  "Sic  utere 
tuo,  ut  alienum  non  lasdas."  It  is  not  an  appropriation  of  the  property 
to  a  public  use,  but  the  restraint  of  an  injurious  private  use  by  the 
owner,  and  is  therefore  not  within  the  principle  of  property  taken  under 
the  right  of  eminent  domain.  The  distinction,  we  think,  is  manifest  in 
principle,  although  the  facts  and  circumstances  of  different  cases  are 
so  various,  that  it  is  often  difficult  to  decide  whether  a  particular  exer- 
cise of  legislation  is  properly  attributable  to  the  one  or  the  other  of 
these  two  acknowledged  powers.     *    *    *  * 

i  See  Beidler  v.  Sanitary  Dlst.  of  Chicago,  211  111.  628,  638,  71  N.  E.  1118, 
67  L.  R.  A.  820  (1904). 


Ch.  10)  DUE   PROCESS   AND    EQUALITY:      POLICE    TOWER  JJJl 

Wherever  there  is  a  general  right  on  the  part  of  the  public,  and  a 
general  duty  on  the  part  of  a  land-owner,  or  any  other  person,  to  re- 
spect such  right,  we  think  it  is  competent  for  the  legislature,  by  a 
specific  enactment,  to  prescribe  a  precise,  practical  rule  for  declaring, 
establishing,  and  securing  such  right,  and  enforcing  respect  for  it.  It 
may  be  said  in  general  terms,  independently  of  any  positive  enact- 
ment, that  it  is  the  right  of  society,  in  the  midst  of  a  populous  settle- 
ment, to  be  exempt  from  the  proximity  of  dangerous  and  noxious 
trades ;  and  that  it  is  the  duty  of  the  owner  of  real  estate,  in  the  midst 
of  many  habitations,  to  abstain  from  erecting  buildings  thereon,  or 
otherwise  using  it,  for  carrying  on  a  trade  dangerous  to  the  lives, 
health,  or  comfort  of  the  inhabitants  of  such  dwellings;  although  a 
trade  in  itself  useful  and  beneficial  to  the  public.  But  such  general 
duty  and  obligation  not  being  fixed  by  a  rule  precise  enough  for  prac- 
tical purposes,  we  think  it  is  competent  for  the  legislature  to  interpose, 
and  by  a  specific  enactment  to  declare  what  shall  be  deemed  a  danger- 
ous or  noxious  trade,  under  what  circumstances  and  within  what  dis- 
tance of  habitations  it  may  or  shall  not  be  set  up,  how  the  use  of  it 
shall  be  regulated,  and  to  prohibit  any  other  than  such  regulated  use. 
by  specific  penalties. 

This  principle  of  legislation  is  of  great  importance  and  extensive  use. 
and  lies  at  the  foundation  of  most  enactments  of  positive  law,  which 
define  and  punish  mala  prohibita.  Things  done  may  or  may  not  be 
wrong  in  themselves,  or  necessarily  injurious  and  punishable  as  such  at 
common  law ;  but  laws  are  passed  declaring  them  offences,  and  making 
them  punishable,  because  they  tend  to  injurious  consequences ;  but 
more  especially  for  the  sake  of  having  a  definite,  known,  and  authori- 
tative rule  which  all  can  understand  and  obey.  In  the  case  already 
put,  of  erecting  a  powder  magazine  or  slaughter-house,  it  would  be 
indictable  at  common  law,  and  punishable  as  a  nuisance,  if  in  fact 
erected  so  near  an  inhabited  village  as  to  be  actually  dangerous  or 
noxious  to  life  or  health.  Without  a  positive  law,  everybody  might 
agree  that  two  hundred  feet  would  be  too  near,  and  that  two  thousand 
feet  would  not  be  too  near;  but  within  this  wide  margin,  who  shall 
say,  who  can  know,  what  distance  shall  be  too  near  or  otherwise?  An 
authoritative  rule,  carrying  with  it  the  character  of  certainty  and  preci- 
sion, is  needed.  The  tradesman  needs  to  know,  before  incun 
pense,  how  near  he  may  build  his  works  without  violating  the  law  or 
committing  a  nuisance ;  builders  of  houses  need  to  know,  to  what  dis- 
tance they  must  keep  from  the  obnoxious  works  already  ere 
order  to  be  sure  of  the  protection  of  the  law  for  their  habitations. 
This  requisite  certainty  and  precision  can  only  be  obtained  by  a  ; 
enactment,  fixing  the  distance,  within  which  the  use  shall  be  prohibited 
as  noxious,  and  beyond  which  it  will  be  allowed,  and  enforcing  the  rule 
thus  fixed,  by  penalties.  *  *  * 
Hall  Const. L.— L!l 


322  FUNDAMENTAL    RIGHTS  (Part  - 

The  reason  why  it  is  necessary  to  have  a  certain  and  authoritative 

law,  is  shown  by  the  difficulty,  not  to  say  impracticability,  of  inquiring 
and  deciding  as  a  fact,  in  each  particular  case,  whether  a  certain  erec- 
tion in  tide-water  is  a  nuisance  at  common  law  or  not ;  and  when  ascer- 
tained and  adjudged,  it  affords  no  rule  for  any  other  case,  and  can  have 
little  effect  in  maintaining  and  protecting  the  acknowledged  public 
right.  It  is  this  consideration  (the  expediency  and  necessity  of  defin- 
ing and  securing  the  rights  of  the  public),  which  creates  the  exigency, 
and  furnishes  the  legislature  with  the  authority  to  make  a  general  and 
precise  law;  but  when  made,  because  it  was  just  and  expedient,  and 
because  it  is  law,  it  becomes  the  duty  of  every  person  to  obey  it  and 
comply  with  it.  The  question  under  the  statute  therefore  is,  not 
whether  any  wharf,  built  after  the  statute  was  made  and  promulgated, 
was  an  actual  obstruction  to  navigation,  but  whether  it  was  within  the 
prohibited  limit.  *  *  * 
Judgment  affirmed. 


MUTUAL  LOAN  CO.  v.  MARTELL  (1911)  222  U.  S.  225,  232, 
233,  32  Sup.  Ct.  74,  56  L.  Ed.  175,  Mr.  Justice  McKenna  (affirming 
a  Massachusetts  judgment  which  upheld  a  statute  invalidating  the 
assignment  of  future  wages  without  the  consent  of  the  wage-earner's 
wife  and  employer) : 

"The  contention  of  plaintiff  is  (1)  that  the  provisions  of  section  7 
and  8  deprive  it  of  due  process  of  law.     *     *     * 

"(1)  To  sustain  this  contention  it  is  urged  that  the  statute  being 
an  exercise  of  the  police  power  of  the  state,  its  purpose  must  have 
'some  clear,  real,  and  substantial  connection'  with  the  preservation 
of  the  public  health,  safety,  morals,  or  general  welfare;  and  it  is 
insisted  that  the  statute  of  Massachusetts  has  not  such  connection 
and  is  therefore  invalid. 

"This  court  has  had  many  occasions  to  define,  in  general  terms, 
the  police  power,  and  to  give  particularity  to  the  definitions  by  special 
applications.  In  Chicago,  B.  &  Q.  R.  Co.  v.  Illinois,  200  U.  S.  561, 
592,  26  Sup.  Ct.  341,  50  L.  Ed.  596,  609,  4  Ann.  Cas.  J1175,  it  was 
said  that  'the  police  power  of  a  state  embraces  regulations  designed 
to  promote  the  public  convenience  or  the  general  prosperity,  as  well 
as  regulations  designed  to  promote  the  public  health,  the  public 
morals,  or  the  public  safety,'  and  that  the  validity  of  a  police  regu- 
lation 'must  depend  upon  the  circumstances  of  each  case  and  the  char- 
acter of  the  regulation,  whether  arbitrary  or  reasonable,  and  whether 
really  designed  to  accomplish  a  legitimate  public  purpose.' 

"In  Bacon  v.  Walker,  204  U.  S.  311,  318,  27  Sup.  Ct.  289,  51  L. 
Ed.  499,  502,  it  was  decided  that  the  police  power  is  not  confined  'to 
the  suppression  of  what  is  offensive,  disorderly,  or  unsanitary,'  but 
'extends  to  so  dealing  with  the  conditions  which  exist  in  the  state  as 
to  bring  out  of  them  the  greatest  welfare  of  its  people.' 


Ch.  10)  DUE    PROCESS   AND    EQUALITY:      POLICE   POWER  323 

"In  a  sense,  the  police  power  is  but  another  name  for  the  power  of 
government;1  and  a  contention  that  a  particular  exercise  of  it  of- 
fends the  due  process  clause  of  the  Constitution  is  apt  to  be  very  in- 
tangible to  a  precise  consideration  and  answer.  Certain  general  prin- 
ciples, however,  must  be  taken  for  granted.  It  is  certainly  the  province 
of  the  state,  by  its  legislature,  to  adopt  such  policy  as  to  it  seems  best. 
There  are  constitutional  limitations,  of  course,  but  these  allow  a  very 
comprehensive  range  of  judgment.  And  within  that  range  the  Mas- 
sachusetts statute  can  be  justified.  Legislation  cannot  be  judged  by 
theoretical  standards.  It  must  be  tested  by  the  concrete  conditions 
which  induced  it;  and  this  test  was  applied  by  the  supreme  judicial 
court  of  Massachusetts  in  passing  on  the  validity  of  the  statute  under 
review." 


IJCENSE  CASES  (1847)  5  How.  504,  582,  583,  12  L.  Ed.  256, 
Mr.  Chief  Justice  Taney  (affirming  a  New  Hampshire  judgment 
which  upheld  a  state  statute  regulating  the  sale  of  liquor) : 

"It  has  been  said,  indeed,  that  quarantine  and  health  laws  are 
passed  by  the  states,  not  by  virtue  of  a  power  to  regulate  commerce, 
but  by  virtue  of  their  police  powers,  and  in  order  to  guard  the  lives 
and  health  of  their  citizens.  This,  however,  cannot  be  said  of  the 
pilot  laws,  which  are  yet  admitted  to  be  equally  valid.  But  what  are 
the  police  powers  of  a  state?  They  are  nothing  more  or  less  than 
the  powers  of  government  inherent  in  every  sovereignty  to  the  ex- 
tent of  its  dominions.  And  whether  a  state  passes  a  quarantine  law, 
or  a  law  to  punish  offences,  or  to  establish  courts  of  justice,  or  re- 
quiring certain  instruments  to  be  recorded,  or  to  regulate  commerce 
within  its  own  limits,  in  every  case  it  exercises  the  same  power;  that 
is  to  say,  the  power  of  sovereignty,  the  power  to  govern  men  and 
things  within  the  limits  of  its  dominion.  It  is  by  virtue  of  this  power 
that  it  legislates;  and  its  authority  to  make  regulations  of  commerce 
is  as  absolute  as  its  power  to  pass  health  laws,  except  in  so  far  as  it 
has  been  restricted  by  the  Constitution  of  the  United  States.  And 
when  the  validity  of  a  state  law  making  regulations  of  commerce  is 
drawn  into  question  in  a  judicial  tribunal,  the  authority  to  pass  it 
cannot  be  made  to  depend  upon  the  motives  that  may  be  supposed  to 
have  influenced  the  legislature,  nor  can  the  court  inquire  whether  it 

i  "In  Its  boadest  sense,  as  sometimes  defined,  It  [the  police  power]  includes 
all  legislation  and  almost  every  function  of  government." — New  Orleans  Gas 
Light  Co.  v.  Louisiana  Light  &  Heat  Producing  Co.,  115  U.  S.  650,  061,  6  Sup. 
Ct.  252,  258,  29  L.  Ed.  516  (1885).  by  Harlan,  J. 

"It  may  be  said  in  a  general  way  that  the  police  power  extends  to  all  the 
great,  public  needs.  Cornfield  v.  United  Slates.  167  D.  S.  518,  17  Sup  i 
42  L.  Ed.  260.  It  may  be  put  forth  Is  aid  of  what  is  sanctioned  by  usage,  or 
held  by  the  prevailing  morality  or  strong  and  preponderant  opinion  to  be 
greatly  and  immediately  necessary  to  the  public  welfare." — Noble  Slat*;  Bank 
v.  Haskell.  219  0.  S.  104,  111,  :i!  Sup.  Ct  186,  188,  55  L.  Kd.  112,  32  L.  K.  -\. 
(N.  S.)  1062,  Ann.  Cas.  1912A,  487  (1911),  by  Holmes,  J. 


324  FUNDAMENTAL    RIGHTS  (Part  2 

was  intended  to  guard  the  citizens  of  the  state  from  pestilence  and 
disease,  or  to  make  regulations  of  commerce  for  the  interests  and 
convenience  of  trade. 

"Upon  this  question,  the  object  and  motive  of  the  state  are  of  no 
importance,  and  cannot  influence  the  decision.  It  is  a  question  of 
power.  Are  the  states  absolutely  prohibited  by  the  Constitution  from 
making  any  regulations  of  foreign  commerce?  If  they  are,  then  such 
regulations  are  null  and  void,  whatever  may  have  been  the  motive 
of  the  state,  or  whatever  the  real  object  of  the  law;  and  it  requires 
no  law  of  Congress  to  control  or  annul  them." 


LAKE  SHORE  &  M.  S.  RY.  CO.  v.  OHIO  ex  rel.  LAWRENCE 
(1899)  173  U.  S.  285,  289,  290-292,  296-298,  19  Sup.  Ct.  465,  43  L. 
Ed.  702,  Mr.  Justice  Harlan  (upholding  a  state  statute  requiring 
railways  to  stop  certain  trains  at  places  of  3,000  inhabitants) : 

"In  the  argument  at  the  bar,  as  well  as  in  the  printed  brief  of  coun- 
sel, reference  was  made  to  the  numerous  cases  in  this  court  adjudging 
that  what  are  called  the  police  powers  of  the  states  were  not  sur- 
rendered to  the  general  government  when  the  Constitution  was  or- 
dained, but  remained  with  the  several  states  of  the  Union.  And  it 
was  asserted  with  much  confidence  that,  while  regulations  adopted 
by  competent  local  authority  in  order  to  protect  or  promote  the  pub- 
lic health,  the  public  morals,  or  the  public  safety  have  been  sustained 
where  such  regulations  only  incidentally  affected  commerce  among 
the  states,  the  principles  announced  in  former  adjudications  con- 
demn, as  repugnant  to  the  Constitution  of  the  United  States,  all  local 
regulations  that  affect  interstate  commerce  in  any  degree  if  estab- 
lished merely  to  subserve  the  public  convenience. 

"One  of  the  cases  cited  in  support  of  this  position  is  Hennington  v. 
Georgia,  163  U.  S.  299,  303,  30S,  317,  16  Sup.  Ct.  1086,  which  in- 
volved the  validity  of  a  statute  of  Georgia  [forbidding  the  running  of. 
freight  trains  on  Sunday  save  in  certain  cases  of  necessity].     *     *     * 

"After  observing  that  the  argument  in  behalf  of  the  defendant 
rested  upon  the  erroneous  assumption  that  the  statute  of  Georgia 
was  such  a  regulation  of  interstate  commerce  as  was  forbidden  by 
the  Constitution  without  reference  to  affirmative  action  by  Congress, 
and  not  merely  a  statute  enacted  by  the  state  under  its  police  power, 
and  which,  although  in  some  degree  affecting  interstate  commerce, 
did  not  go  beyond  the  necessities  of  the  case,  and  therefore  was  valid, 
at  least  until  Congress  intervened,  this  court,  upon  a  review  of  the  ad- 
judged cases,  said:  'These  authorities  make  it  clear  that  the  legisla- 
tive enactments  of  the  states,  passed  under  their  admitted  police  pow- 
ers, and  having  a  real  relation  to  the  domestic  peace,  order,  health, 
and  safety  of  their  people,  but  which,  by  their  necessary  operation, 
affect  to  some  extent  or  for  a  limited  time  the  conduct  of  commerce 


Ch.  10)  DUE   PHOCBSS  AND    EQUALITY  :      POLITE   POWER  325 

among  the  states,  are  yet  not  invalid  by  force  alone  of  the  grant  of 
power  to  Congress  to  regulate  such  commerce,  and,  if  not  obnoxious 
to  some  other  constitutional  provision  or  destructive  of  some  right 
secured  by  the  fundamental  law,  are  to  be  respected  in  the  courts 
of  the  Union  until  they  are  superseded  and  displaced  by  some  act 
of  Congress  passed  in  execution  of  the  power  granted  to  it  by  the 
Constitution.  Local  laws  of  the  character  mentioned  have  their  source 
in  the  powers  which  the  states  reserved,  and  never  surrendered  to 
Congress,  of  providing  for  the  public  health,  the  public  morals,  and 
the  public  safety;  and  are  not,  within  the  meaning  of  the  Constitu- 
tion, and  considered  in  their  own  nature,  regulation?  of  interstate 
commerce  simply  because,  for  a  limited  time  or  to  a  limited  extent, 
they  cover  the  field  occupied  by  those  engaged  in  such  com- 
merce.'    *     *     * 

"It  is  insisted  by  counsel  that  these  and  observations  to  the  same 
effect  in  different  cases  show  that  the  police  powers  of  the  states, 
when  exerted  with  reference  to  matters  more  or  less  connected  with 
interstate  commerce,  are  restricted  in  their  exercise,  so  far  as  the  na- 
tional Constitution  is  concerned,  to  regulations  pertaining  to  the  health, 
morals,  or  safety  of  the  public,  and  do  not  embrace  regulations  de- 
signed merely  to  promote  the  public  convenience. 

"This  is  an  erroneous  view  of  the  adjudications  of  this  court. 
While  cases  to  which  counsel  refer  involved  the  validity  of  state  laws 
having  reference  directly  to  the  public  health,  the  public  morals,  or 
the  public  safety,  in  no  one  of  them  was  there  any  occasion  to  deter- 
mine whether  the  police  powers  of  the  states  extended  to  regulations 
incidentally  affecting  interstate  commerce,  but  which  were  designed 
only  to  promote  the  public  convenience  or  the  general  welfare.  There 
are,  however,  numerous  decisions  by  this  court  to  the  effect  that  the 
states  may  legislate  with  reference  simply  to  the  public  convenience, 
subject,  of  course,  to  the  condition  that  such  legislation  be  not  incon- 
sistent with  the  national  Constitution,  nor  with  any  act  of  Congress 
passed  in  pursuance  of  that  instrument,  nor  in  derogation  of  any 
right  granted  or  secured  by  it.  As  the  question  now  presented  is  one 
of  great  importance,  it  will  be  well  to  refer  to  some  cases  of  the 
latter  class.  [Here  are  discussed  various  cases  upholding  state  laws 
regulating  the  use  of  bridges  and  rivers  and  the  obligations  of  car- 
riers.]    *     *     * 

"Now,  it  is  evident  that  these  cases  had  no  reference  to  the  health. 
morals,  or  safety  of  the  people  of  the  state,  but  only  to  the  public 
convenience.  They  recognized  the  fundamental  principle  that,  out- 
side of  the  field  directly  occupied  by  the  general  government  under 
the  powers  granted  to  it  by  the  Constitution,  all  questions  arising 
within  a  state  that  relate  to  its  internal  order,  or  that  involve  the  pub- 
lic convenience  or  the  general  good,  are  primarily  for  the  determina- 
tion of  the  state,  and  that  its  legislative  enactments  relating  to 
subjects,  and  which  are  not  inconsistent  with  the  state  Constitution, 


326  FUNDAMENTAL    RIGHTS  (Part  2 

are  to  be  respected  and  enforced  in  the  courts  of  the  Union  if  they  do 
not  by  their  operation  directly  entrench  upon  the  authority  of  the 
United  States,  or  violate  some  right  protected  by  the  national  Con- 
stitution.    *     *     * 

"It  may  be  that  such  legislation  is  not  within  the  'police  power'  of 
a  state,  as  those  words  have  been  sometimes,  although  inaccurately, 
used.  But,  in  our  opinion,  the  power,  whether  called  'police,'  'gov- 
ernmental,' or  'legislative,'  exists  in  each  state,  by  appropriate  enact- 
ments not  forbidden  by  its  own  Constitution  or  by  the  Constitution  of 
the  United  States,  to  regulate  the  relative  rights  and  duties  of  all  per- 
sons and  corporations  within  its  jurisdiction,  and  therefore  to  provide 
for  the  public  convenience  and  the  public  good.  This  power  in  the 
states  is  entirely  distinct  from  any  power  granted  to  the  general  gov- 
ernment, although,  when  exercised,  it  may  sometimes  reach  subjects 
over  which  national  legislation  can  be  constitutionally  extended. 
When  Congress  acts  with  reference  to  a  matter  confided  to  it  by  the 
Constitution,  then  its  statutes  displace  all  conflicting  local  regulations 
touching  that  matter,  although  such  regulations  may  have  been  es- 
tablished in  pursuance  of  a  power  not  surrendered  by  the  states  to 
the  general  government.  Gibbons  v.  Ogden,  9  Wheat.  1,  210,  6  L.  Ed. 
23 ;  Sinnot  v.  Davenport,  22  How.  227,  243,  16  L.  Ed.  243 ;  Railway 
Co.  v.  Haber,  169  U.  S.  613,  626,  18  Sup.  Ct.  488,  42  L.  Ed. 
878.     *     *     *" 

[Shiras,  J.,  gave  a  dissenting  opinion,  in  which  Brewer,  White, 
and  Peckham,  JJ.,  concurred,  on  the  ground  that  the  Ohio  statute 
improperly  burdened  interstate  commerce.  White,  J.,  also  gave  a 
dissenting  opinion.] 


HENDERSON  v.  MAYOR  OF  NEW  YORK  (1875)  92  U.  S. 
259,  271,  272,  23  L.  Ed.  543,  Mr.  Justice  Miller  (discussing  a  state 
statute  regulating  the  landing  of  immigrants  at  the  port  of  New  York) : 

"Assuming  that,  in  the  formation  of  our  government,  certain  pow- 
ers necessary  to  the  administration  of  their  internal  affairs  are  re- 
served to  the  states,  and  that  among  these  powers  are  those  for  the 
preservation  of  good  order,  of  the  health  and  comfort  of  the  citizens, 
and  their  protection  against  pauperism  and  against  contagious  and  in- 
fectious diseases,  and  other  matters  of  legislation  of  like  character, 
[it  is  insisted]  that  the  power  here  exercised  falls  within  this  class, 
and  belongs  rightfully  to  the  states. 

"This  power,  frequently  referred  to  in  the  decisions  of  this  court, 
has  been,  in  general  terms,  somewhat  loosely  called  the  police  power. 
It  is  not  necessary  for  the  course  of  this  discussion  to  attempt  to  de- 
fine it  more  accurately  than  it  has  been  defined  already.  It  is  not 
necessary,  because  whatever  may  be  the  nature  and  extent  of  that 
power,  where  not  otherwise  restricted,  no  definition  of  it,  and  no  ur- 
gency for  its  use,  can  authorize  a  state  to  exercise  it  in  regard  to  a 


Ch.  10)  DUB   PROCESS  AND   BQ1   u.nv:     POLICE   PO  321 

subject-matter  which  lias  been  confided  exclusively  to  the  discretion 
of  Congress  by  the  Constitution. 

"Nothing  is  gained  in  the  argument  by  calling  it  the  police  power. 
Very  many  statutes,  when  the  authority  on  which  their  enactments 
rest  is  examined,  may  be  referred  to  different  sources  of  power,  and 
supported  equally  well  under  any  of  them.  A  statute  may  at  the  same 
time  be  an  exercise  of  the  taxing  power  and  of  the  power  of  eminent 
domain.  A  statute  punishing  counterfeiting  may  be  for  the  protec- 
tion of  the  private  citizen  against  fraud,  and  a  measure  for  the  pro- 
tection of  the  currency  and  for  the  safety  of  the  government  which 
issues  it.  It  must  occur  very  often  that  the  shading  which  marks  the 
line  between  one  class  of  legislation  and  another  is  very  nice,  and  not 
easily  distinguishable. 

"But,  however  difficult  this  may  be,  it  is  clear,  from  the  nature  of 
our  complex  form  of  government,  that,  whenever  the  statute  of  a 
state  invades  the  domain  of  legislation  which  belongs  exclusively  to 
the  Congress  of  the  United  States,  it  is  void,  no  matter  under  what 
class  of  powers  it  may  fall,  or  how  closely  allied  to  powers  conceded 
to  belong  to  the  states."  * 


In  re  RAPIER  (1892)  143  U.  S.  110.  134,  12  Sup.  Ct.  374.  36  L.  Ed. 
93,  Mr.  Chief  Justice  Fuller  (upholding  the  power  of  the  United 
States  to  exclude  lottery  matter  from  the  mails) : 

"The  states,  before  the  Union  was  formed,  could  establish  post- 
offices  and  post-roads,  and  in  doing  so  could  bring  into  play  the  police 
power  in  the  protection  of  their  citizens  from  the  use  of  the  means 

i  "Definitions  of  the  police  power  must,  however,  be  taken  subject  to  the 
condition  that  the  state  cannot  In  Its  exercise  for  any  purpose  whatever,  en- 
croach upon  the  powers  of  the  general  government,  or  rights  granted  or  se- 
cured bv  the  supreme  law  of  the  land." — New  Orleans  Gas  Light  Co.  v. 
Louisiana  Light  &  Heat  Producing  &  Mfg.  Co.,  115  U.  S.  650,  661,  6  Sup.  Ct. 
252,  258,  29  L.  Ed.  516  (1S85),  by  Harlan,  J. 

"It  Is  true  that  the  police  power  of  a  state  is  the  least  limitable  of  its 
powers,  but  even  it  may  not  transcend  the  prohibition  of  the  Constitution  of 
the  United  States." — Shevlin-Carpenter  Co.  v.  Minnesota,  218  U.  S.  57 
30  Sup.  Ct.  663,  666,  54  L.  Ed.  930  (1910),  by  McKenua.  J. 

"The  phrase  'police  power'  has  been  sometimes  used  by  writers  upon  legal 
subjects  as  if  it  denoted  some  peculiar  and  transcendent  form  of  Legislative 
authority.  The  word  'police'  does  not  naturally  carry  any  such  meaning,  lis 
use  in  this  connection  came  into  our  law  early  in  the  nineteenth  cental;. 
Rubs.  Police  Power  of  State,  231.  *  *  •  As  applied  to  the  stati 
laws  are  laws  of  general  administration  and  government  Its  power  to  enact 
such  laws  extends  over  all  subjects  within  its  territorial  limits.  1' 
Pennsylvania,  16  Pet.  539,  625,  10  L.  Ed.  1060.  Dhe  police  powers  of  a  state. 
in  the  apt  words  of  Chief  Justice  Taney,  'are  nothing  more  or  less  than  the 
powers  of  government  inherent  in  every  sovereignty  to  the  extent  of  its 
dominions.'  The  License  Cases,  5  How.  504.  583,  12  L.  Ed.  256.  If  thej  are 
exercised  by  legislation  which  violates  any  ri^lit  guaranteed  by  the  i 
or  state  Constitution,  they  are  so  far  forth  invalid.  Leisy  v.  Hardin.  135  D. 
S.  100,  108,  10  Sup.  Ct.  681,  34  L.  Ed.  128;  State  v.  Conlon,  65  Conn.  478,  33 
Atl.  519,  31  L.  K.  A.  55.  48  Am.  St.  Bep.  227."— McKeon  v.  N.  Y.  ft  N.  11.  K. 
Co.,  75  Conn.  343,  347,  53  Atl.  656,  61  L.  K.  A.  736  (1902),  by  Baldwin,  J. 


328  FUNDAMENTAL    RIGHTS  (Part  2 

so  provided  for  purposes  supposed  to  exert  a  demoralizing  influence 
upon  the  people.  When  the  power  to  establish  post-offices  and  post- 
roads  was  surrendered  to  the  Congress,  it  was  as  a  complete  power ; 
and  the  grant  carried  with  it  the  right  to  exercise  all  the  powers  which 
made  that  power  effective.  It  is  not  necessary  that  Congress  should 
have  the  power  to  deal  with  crime  or  immorality  within  the  states  in 
order  to  maintain  that  it  possesses  the  power  to  forbid  the  use  of  the 
mails  in  aid  of  the  perpetration  of  crime  or  immorality." 


SECOND  EMPLOYERS'  LIABILITY  CASES  (1912)  223  U.  S. 
1,  54,  55,  32  Sup.  Ct.  169,  56  L.Ed.  327,  38  L.  R.  A.  (N.  S.)  44,  Mr. 
Justice  Van  Devanter  (upholding  the  federal  act  regulating  the  lia- 
bility of  interstate  railway  carriers  to  their  employees) : 

"True,  prior  to  the  present  act,  the  laws  of  the  several  states  were 
regarded  as  determinative  of  the  liability  of  employers  engaged  in 
interstate  commerce  for  injuries  received  by  their  employees  while  en- 
gaged in  such  commerce.  But  that  was  because  Congress,  although 
empowered  to  regulate  that  subject,  had  not  acted  thereon,  and  because 
the  subject  is  one  which  falls  within  the  police  power  of  the  states  in 
the  absence  of  action  by  Congress.  *  *  *  The  inaction  of  Congress, 
however,  in  no  wise  affected  its  power  over  the  subject.  *  *  *  And 
now  that  Congress  has  acted,  the  laws  of  the  states,  in  so  far  as  they 
cover  the  same  field,  are  superseded,  for  necessarily  that  which  is  not 
supreme  must  yield  to  that  which  is."  1 

i  Regarding  the  subjects  over  which  Congress  has  exercised  a  "police  pow- 
er" incidental  to  the  powers  specifically  conferred  upon  the  United  States  by 
the  Constitution,  it  has  been  said  (upholding  the  federal  pure  food  and  drags 
act):  "Congress  has  enacted  a  safety  appliance  law  for  the  preservation  of 
life  and  limb.  Congress  has  enacted  the  anti-trust  statute  to  prevent  im- 
morality in  contracts  and  business  affairs.  Congress  has  enacted  the  live  stock 
sanitation  act  to  prevent  cruelty  to  animals.  Congress  has  enacted  the  cattle 
contagious  disease  act  to  more  effectively  suppress  and  prevent  the  spread  of 
contagious  and  infectious  diseases  of  live  stock.  Congress  has  enacted  a  stat- 
ute to  enable  the  Secretary  of  Agriculture  to  establish  and  maintain  quaran- 
tine districts.  Congress  has  enacted  the  meat  inspection  act.  Congress  has 
enacted  a  second  employer's  liability  act.  Congress  has  enacted  the  obscene 
literature  act.  Congress  has  enacted  the  lottery  statute  above  referred  to. 
Congress  has  enacted  (but  a  year  ago)  statutes  prohibiting  the  sending  of 
liquors  by  interstate  shipment  with  the  privilege  of  the  vendor  to  have  the 
liquors  delivered  c.  o.  d..  and  to  prohibit  shipments  of  liquors  except  when  the 
name  and  address  of  the  consignee  and  the  quantity  and  kind  of  liquor  is 
plainly  labeled  on  the  package.  These  statutes,  police  regulations  in  many 
respects,  are  alike  in  principle  to  the  act  of  June  30,  1906,  under  considera- 
tion. Can  it  be  possible  they  are  all  void?" — Shawnee  Milling  Co.  v.  Temple 
(C.  C.)  179  Fed.  517,  524  (1910),  by  McPherson,  J. 

Regulation  bt  Taxation. — The  regulative  powers  of  both  the  states  and 
the  United  States  may  be  exercised  through  appropriate  forms  of  taxation 
(not  otherwise  incompetent),  as  well  as  by  direct  legislative  mandate.  See 
Head  Money  Cases,  112  U.  S.  580,  594-500,  5  Sup.  Ct.  247,  28  L-.  Ed.  798 
(1884) ;  Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  17,  25  Sup.  Ct.  552,  49  L. 
Ed.  925  (1905);  Delamater  v.  South  Dakota,  205  U.  S.  93,  104,  27  Sup.  Ct. 
447,  51  L.  Ed.  724,  10  Ann.  Cas.  733  (1907) ;  De  Bary  &  Co.  v.  Louisiana,  227 
C.  S.  108,  33  Sup.  Ct.  230,  57  L.  Ed.  (1913). 


Ch.  10)  DUE  PROCESS  AND  EQUALITY:     POLICE  POWEB  ''-'J 

SECTION  2.— CLASSIFICATION  (EQUALITY) 


SLAUGHTER  HOUSE  CASES. 

(Supreme  Court  of  United  States,  1873.    16  Wall.  36,  81,  21  L.  Ed.  301.) 

See  ante,  p.  223,  for  that  part  of  the  opinion  of  Mr.  Justice  Miller 
beginning,  "Nor  shall  any  state  deny  to  any  person  within  its  jurisdic- 
tion," and  ending,  "as  it  may  have  relation  to  this  particular  clause 
of  the  amendment." 


MISSOURI   v.   LEWIS. 
(Supreme  Court  of  United  States,  1880.    101  U.  S.  22.  25  I,.  Ed.  0S<1.) 

[Error  to  the  Supreme  Court  of  Missouri.  The  law  of  Missouri 
permitted  an  appeal  to  the  state  Supreme  Court  from  all  of  the  circuit 
courts  of  the  state,  except  those  of  St.  Charles,  Lincoln,  Warren,  and 
St.  Louis  counties,  and  of  the  city  of  St.  Louis.  From  the  circuit 
courts  of  the  latter  places  an  appeal  was  allowed  only  to  the  St.  Louis 
Court  of  Appeals,  save  in  certain  enumerated  classes  of  cases.  A 
judgment  of  disbarment  having  been  affirmed  by  the  latter  court 
against  one  Bowman,  the  Supreme  Court  of  Missouri  refused  to  man- 
damus the  St.  Louis  Court  of  Appeals  to  grant  an  appeal  from  this 
affirmance.  From  a  similar  judgment  of  disbarment  in  other  counties 
of  the  state  an  appeal  would  have  lain  to  the  state  Supreme  Court.] 

Mr.  Justice  Bradley.  *  *  *  The  plaintiff  in  error  contends  that 
this  feature  of  the  judicial  system  of  Missouri  is  in  conflict  with  the 
fourteenth  amendment  of  the  Constitution  of  the  United  States,  be- 
cause it  denies  to  suitors  in  the  courts  of  St.  Louis  and  the  counties 
named  the  equal  protection  of  the  laws,  in  that  it  denies  to  them  the 
right  of  appeal  to  the  Supreme  Court  of  Missouri  in  cases  where  it 
gives  that  right  to  suitors  in  the  courts  of  the  other  counties  of  the 
state. 

If  this  position  is  correct,  the  fourteenth  amendment  has  a  much 
more  far-reaching  effect  than  has  been  supposed.  It  would  render 
invalid  all  limitations  of  jurisdiction  based  on  the  amount  or  charac- 
ter of  the  demand.  A  party  having  a  claim  for  only  five  dollars  could 
with  equal  propriety  complain  that  he  is  deprived  of  a  right  O 
by  other  citizens,  because  he  cannot  prosecute  it  in  the  superior  courts ; 
and  another  might  equally  complain  that  he  cannot  bring  a  suit  for 
real  estate  in  a  justice's  court,  where  the  expense  is  small  and  the  pro- 
ceedings are  expeditious.    There  is  no  difference  in  principle  between 


330  FUNDAMENTAL    RIGHTS  (Part  2 

such  discriminations  as  these  in  the  jurisdictions  of  courts  and  that 
which  the  plaintiff  in  error  complains  of  in  the  present  case. 

If,  however,  we  take  into  view  the  general  objects  and  purposes  of 
the  fourteenth  amendment,  we  shall  find  no  reasonable  ground  for 
giving  it  any  such  application.  These  are  to  extend  United  States 
citizenship  to  all  natives  and  naturalized  persons,  and  to  prohibit  the 
states  from  abridging  their  privileges  or  immunities,  and  from  depriving 
any  person  of  life,  liberty,  or  property  without  due  process  of  law,  and 
from  denying  to  any  person  within  their  jurisdiction  the  equal  protec- 
tion of  the  laws.  It  contemplates  persons  and  classes  of  persons.  It 
has  not  respect  to  local  and  municipal  regulations  that  do  not  injurious- 
ly affect  or  discriminate  between  persons  or  classes  of  persons  within 
the  places  or  municipalities  for  which  such  regulations  are  made.  The 
amendment  could  never  have  been  intended  to  prevent  a  state  from 
arranging  and  parceling  out  the  jurisdiction  of  its  several  courts  at  its 
discretion.  No  such  restriction  as  this  could  have  been  in  view,  or 
could  have  been  included,  in  the  prohibition  that  "no  state  shall  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws." 
It  is  the  right  of  every  state  to  establish  such  courts  as  it  sees  fit,  and 
to  prescribe  their  several  jurisdictions  as  to  territorial  extent,  subject- 
matter,  and  amount,  and  the  finality  and  effect  of  their  decisions,  pro- 
vided it  does  not  encroach  upon  the  proper  jurisdiction  of  the  United 
States,  and  does  not  abridge  the  privileges  and  immunities  of  citizens  of 
the  United  States,  and  does, not  deprive  any  person  of  his  rights  with- 
out due  process  of  law,  nor  deny  to  any  person  the  equal  protection 
of  the  laws,  including  the  equal  right  to  resort  to  the  appropriate  courts 
for  redress.  The  last  restriction,  as  to  the  equal  protection  of  the 
laws,  is  not  violated  by  any  diversity  in  the  jurisdiction  of  the  several 
courts  as  to  subject-matter,  amount,  or  finality  of  decision,  if  all  per- 
sons within  the  territorial  limits  of  their  respective  jurisdictions  have 
an  equal  right,  in  like  cases  and  under  like  circumstances,  to  resort  to 
them  for  redress.  Each  state  has  the  right  to  make  political  subdivi- 
sions of  its  territory  for  municipal  purposes,  and  to  regulate  their 
local  government.  As  respects  the  administration  of  justice,  it  may 
establish  one  system  of  courts  for  cities  and  another  for  rural  dis- 
tricts, one  system  for  one  portion  of  its  territory  and  another  system 
for  another  portion.  Convenience,  if  not  necessity,  often  requires 
this  to  be  done,  and  it  would  seriously  interfere  with  the  power  of  a 
state  to  regulate  its  internal  affairs  to  deny  to  it  this  right.  We  think 
it  is  not  denied  or  taken  away  by  anything  in  the  Constitution  of  the 
United  States,  including  the  amendments  thereto. 

We  might  go  still  further,  and  say,  with  undoubted  truth,  that  there 
is  nothing  in  the  Constitution  to  prevent  any  state  from  adopting  any 
system  of  laws  or  judicature  it  sees  fit  for  all  or  any  part  of  its  terri- 
tory. If  the  state  of  New  York,  for  example,  should  see  fit  to  adopt 
the  civil  law  and  its  method  of  procedure  for  New  York  City  and  the 


Cll.  10)  DUE  PROCESS  AND  EQUALITY:     POLICE  POWEB  831 

surrounding  counties,  and  the  common  law  and  its  method  of  procedure 
for  the  rest  of  the  state,  there  is  nothing  in  the  Constitution  of  the 
United  States  to  prevent  its  doing  so.  This  would  not,  of  itself,  within 
the  meaning  of  the  fourteenth  amendment,  be  a  denial  to  any  person 
of  the  equal  protection  of  the  laws.  If  every  person  residing  or  being 
in  either  portion  of  the  state  should  be  accorded  the  equal  protection  of 
the  laws  prevailing  there,  he  could  not  justly  complain  of  a  violation  of 
the  clause  referred  to.  For  as  before  said  it  has  respect  to  persons 
and  classes  of  persons.  It  means  that  no  person  or  class  of  persons 
shall  be  denied  the  same  protection  of  the  laws  which  is  enjoyed  by 
other  persons  or  other  classes  in  the  same  place  and  under  like  cir- 
cumstances. 

The  fourteenth  amendment  does  not  profe,ss  to  secure  to  all  persons 
in  the  United  States  the  benefit  of  the  same  laws  and  the  same  reme- 
dies. Great  diversities  in  these  respects  may  exist  in  two  states  sep- 
arated only  by  an  imaginary  line.  On  one  side  of  this  line  there  may 
be  a  right  of  trial  by  jury,  and  on  the  other  side  no  such  right.  Each 
state  prescribes  its  own  modes  of  judicial  proceeding.  If  diversities  of 
laws  and  judicial  proceedings  may  exist  in  the  several  states  without 
violating  the  equality  clause  in  the  fourteenth  amendment,  there  is  no 
solid  reason  why  there  may  not  be  such  diversities  in  different  parts 
of  the  same  state.  A  uniformity  which  is  not  essential  as  regards  dif- 
ferent states  cannot  be  essential  as  regards  different  parts  of  a  state, 
provided  that  in  each  and  all  there  is  no  infraction  of  the  constitu- 
tional provision.  Diversities  which  are  allowable  in  different  states 
are  allowable  in  different  parts  of  the  same  state.  Where  part  of  a 
state  is  thickly  settled,  and  another  part  has  but  few  inhabitants,  it 
may  be  desirable  to  have  different  systems  of  judicature  for  the  two 
portions — trial  by  jury  in  one,  for  example,  and  not  in  the  otlu  i 
Large  cities  may  require  a  multiplication  of  courts  and  a  peculiar  ar- 
rangement of  jurisdictions.  It  would  be  an  unfortunate  restriction  of 
the  powers  of  the  state  government  if  it  could  not,  in  its  discretion, 
provide  for  these  various  exigencies. 

If  a  Mexican  state  should  be  acquired  by  treaty  and  added  to  an 
adjoining  state,  or  part  of  a  state,  in  the  United  States,  and  the  two 
should  be  erected  into  a  new  state,  it  cannot  be  doubted  that  such  new 
state  might  allow  the  Mexican  laws  and  judicature  to  continue  un- 
changed in  the  one  portion,  and  the  common  law  and  its  corresponding 
judicature  in  the  other  portion.  Such  arrangement  would  not  be  pro- 
"hibitcd  by  any  fair  construction  of  the  fourteenth  amendment.  It 
would  not  be  based  on  any  respect  of  persons  or  classes,  but  on  mu- 
nicipal considerations  alone,  and  a  regard  to  the  welfare  of  all  classes 
within  the  particular  territory  or  jurisdiction. 

It  is  not  impossible  that  a  distinct  territorial  establishment  and  ju- 
risdiction might  be  intended  as,  or  might  have  the  effect  of,  a  discrim- 
ination against  a  particular  race  or  class,  where  such  race  or  class 
should  happen  to  be  the  principal  occupants  of  the  disfavored  district 


332                                                   FUNDAMENTAL    RIGHTS  (Part  2 

Should  such  a  case  ever  arise,  it  will  be  time  enough  then  to  consider 

it    No  such  case  is  pretended  to  exist  in  the  present  instance.  *    *    * 
Judgment  affirmed.1 


BARBIER  v.  CONNOLLY  (18S5)  113  U.  S.  27,  30-32,  5  Sup. 
Ct.  357,  28  L.  Ed.  923,  Mr.  Justice  Field  (upholding  an  ordinance 
of  San  Francisco,  the  contested  part  of  which  appears  in  the  quota- 
tion below) : 

"That  fourth  section,  so  far  as  jt  is  involved  in  the  case  before 
the  police  judge,  was  simply  a  prohibition  to  carry  on  the  washing 
and  ironing  of  clothes  in  public  laundries  and  wash-houses,  within 
certain  prescribed  limits  of  the  city  and  county,  from  ten  o'clock  at 
night  until  six  o'clock  on"  the  morning  of  the  following  day.  The 
prohibition  against  labor  on  Sunday  is  not  involved.  The  provi- 
sion is  purely  a  police  regulation  within  the  competency  of  any  mu- 
nicipality possessed  of  the  ordinary  powers  belonging  to  such  bodies. 
And  it  would  be  an  extraordinary  usurpation  of  the  authority  of 
a  municipality,  if  a  federal  tribunal  should  undertake  to  supervise 
such  regulations.  It  may  be  a  necessary  measure  of  precaution  in  a 
city  composed  largely  of  wooden  buildings  like  San  Francisco,  that  oc- 
cupations in  which  fires  are  constantly  required,  should  cease  after  cer- 
tain hours  at  night  until  the  following  morning;  and  of  the  necessity 
of  such  regulations  the  municipal  bodies  are  the  exclusive  judges; 
at  least  any  correction  of  their  action  in  such  matters  can  come 
only  from  state  legislation  or  state  tribunals.  The  same  municipal 
authority  which  directs  the  cessation  of  labor  must  necessarily  pre- 
scribe the  limits  within  which  it  shall  be  enforced,  as  it  does  the  limits 
in  a  city  within  which  wooden  buildings  cannot  be  constructed.  There 
is  no  invidious  discrimination  against  any  one  within  the  prescribed 
limits  by  such  regulations.  There  is  none  in  the  regulation  under 
consideration.  The  specification  of  the  limits  within  which  the  busi- 
ness cannot  be  carried  on  without  the  certificates  of  the  health  of- 
ficer and  board  of  fire  wardens  is  merely  a  designation  of  the  por- 
tion of  the  city  in  which  the  precautionary  measures  against  fire  and 
to  secure  proper  drainage  must  be  taken  for  the  public  health  and 

i  Accord:  Hayes  v.  Missouri,  120  U.  S.  68,  7  Sup.  Ct.  350,  30  L.  Ed.  578 
(1887);  Mallett  v.  North  Carolina,  1S1  U.  S.  589.  59S-599,  21  Sup.  Ct.  730, 
45  L.  Ed.  1015  (1901) ;  Gardner  v.  Michigan,  199  U.  S.  325,  26  Sup.  Ct.  106, 
50  L.  Ed.  212  (1905) ;  Guild  v.  First  Nat.  Bank,  4  S.  D.  566,  581-5S4,  57  S.  W. 
499  (1894)  (interest  rate);  United  States  v.  Press  Pub.  Co.,  219  U.  S.  1,  31' 
Sup.  Ct  212,  55  L.  Ed.  05,  21  Ann.  Cas.  942  (1911)  (federal  criminal  law); 
People  v.  Ilavuor,  149  N.  Y.  195,  43  N.  E.  541,  31  L.  R.  A.  689,  52  Am.  St. 
Rep.  707  (1896)  (barber  shops  on  Sunday  allowed  in  two  cities  only).  Contra  : 
State  ex  rel.  Johnson  v.  Chicago,  B.  &  Q.  R.  Co.,  195  Mo.  228,  245-248,  93 
S.  W.  784,  113  Am.  St.  Rep.  661  (1906).  So-called  "local  option"  laws  are  of 
course  valid  under  the  federal  Constitution.  Ohio  ex  rel.  Lloyd  v.  Dollison, 
194  U.  S.  445,  24  Sup.  Ct  703,  48  L.  Ed.  1062  (1904). 

As  to  the  effect  of  local  constitutional  restrictions  upon  special  and  local 
legislation,  see  Opinion  of  Justices,  ante,  p.  122,  note ;  and  Cotting  v.  Kansas 
City  Stock  Yards  Co.,  post,  p.  349,  note. 


Ch.  10)  DUB  PBOCEJ?e  AND  equality:    police  towi-r 

safety.  It  is  not  legislation  discriminating  against  any  one.  All  per- 
sons engaged  in  the  same  business  within  it  are  treated  alike;  are 
subject  to  the  same  restrictions  and  are  entitled  to  the  same  priv- 
ileges under  similar  conditions. 

"The  fourteenth  amendment,  in  declaring  that  no  state  'shall  de- 
prive any  person  of  life,  liberty,  or  property,  without  due  process  of 
law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws.'  undoubtedly  intended  not  only  that  there  should  be 
no  arbitrary  deprivation  of  life  or  liberty,  or  arbitrary  spoliation  of 
property,  but  that  equal  protection  and  security  should  be  given  to 
all  under  like  circumstances  in  the  enjoyment  of  their  personal  and 
civil  rights ;  that  all  persons  should  be  equally  entitled  to  pursue  their 
happiness  and  acquire  and  enjoy  property;  that  they  should  have 
like  access  to  the  courts  of  the  country  for  the  protection  of  their 
persons  and  property,  the  prevention  and  redress  of  wrongs,  and 
the  enforcement  of  contracts ;  that  no  impediment  should  be  inter- 
posed to  the  pursuits  of  any  one  except  as  applied  to  the  same  pur- 
suits by  others  under  like  circumstances ;  that  no  greater  burdens 
should  be  laid  upon  one  than  are  laid  upon  others  in  the  same  call- 
ing and  condition,  and  thai  in  the  administration  of  criminal  justice 
no  different  or  higher  punishment  should  be  imposed  upon  one  than 
such  as  is  prescribed  to  all  for  like  offences.  But  neither  the  amend- 
ment— broad  and  comprehensive  as  it  is — nor  any  other  amendment, 
was  designed  to  interfere  with  the  power  of  the  state,  sometimes 
termed  its  police  power,  to  prescribe  regulations  to  promote  the  health, 
peace,  morals,  education,  and  good  order  of  the  people,  and  to  legis- 
late so  as  to  increase  the  industries  of  the  state,  develop  its  resources, 
and  add  to  its  wealth  and  prosperity.  From  the  very  necessities  of 
society,  legislation  of  a  special  character,  having  these  objects  in 
view,  must  often  be  had  in  certain  districts,  such  as  for  draining 
marshes  and  irrigating  arid  plains.  Special  burdens  are  often  neces- 
sary for  general  benefits — for  supplying  water,  preventing  fires,  light- 
ing districts,  cleaning  streets,  opening  parks,  and  many  other  objects. 
Regulations  for  these  purposes  may  press  with  more  or  less  weight 
upon  one  than  upon  another,  but  they  are  designed,  not  to  impose  un- 
equal or  unnecessary  restrictions  upon  any  one,  but  to  promote,  with 
as  little  individual  inconvenience  as  possible,  the  general  good. 
Though,  in  many  respects,  necessarily  special  in  their  character,  they 
do  not  furnish  just  ground  of  complaint  if  they  operate  alike  upon 
all  persons  and  property  under  the  same  circumstances  and  conditions. 
Class  legislation,  discriminating  against  some  and  favoring  others,  is 
prohibited),  but  legislation  which,  in  carrying  out  a  public  pi 
is  limited  in  its  application,  if  within  the  sphere  of  its  open 
affects  alike  all  persons  similarly  situated,  is  not  within  the  .. 
ment."  1 

i  And  so  iu  Soon  Hing  v.  Crowley,  113  U.  S.  703,  708,  709.  5  Sup.  I 
733,  28  L.  Ed.  1145  (1SS5),  by  Field,  J.,  upholding  the  sume  ordinance:   "There 


334  FUNDAMENTAL    RIGHTS  (Part  2 


GULF,  C.  &  S.  F.  RY.  CO.  v.  ELLIS. 

(Supreme  Court  of  United  States,  1897.     1G5  U.  S.  150,  17  Sup.  Ct.  255,  41  L. 
Ed.  660.) 

[Error  to  the  Supreme  Court  of  Texas.  A  Texas  statute  provided 
that  when  any  person,  having  a  valid  claim  not  exceeding  $50  against 
a  railway  corporation  for  personal  service  or  labor,  or  for  damages  or 
overcharges  on  freight,  or  for  injuries  to  stock  by  trains,  should  pre- 
sent such  claim  to  the  company  under  oath,  and  such  claim  should 
remain  unpaid  more  than  30  days  thereafter,  the  claimant  might  sue : 
and  if  he  finally  obtained  judgment  for  the  full  amount  of  said  claim 
he  should  be  entitled  in  addition  to  an  attorney  fee  of  not  over  $10. 
Ellis,  after  complying  with  this  statute,  obtained  judgment  against 
the  defendant  company  for  $50  for  a  colt  killed  by  it,  and  for  a  $10 
attorney  fee.  The  judgment  for  the  attorney  fee  was  appealed  by  de- 
fendant through  two  intermediate  appellate  courts  to  the  state  Supreme 
Court  and  was  there  affirmed.] 

Mr.  Justice  Brewer.  The  single  question  in  this  case  is  the  con- 
stitutionality of  the  act  allowing  attorney  fees.  The  contention  is  that 
it  operates  to  deprive  the  railroad  companies  of  property  without  due 
process  of  law,  and  denies  to  them  the  equal  protection  of  the  law,  in 
that  it  singles  them  out  of  all  citizens  and  corporations,  and  requires 

is  uo  force  in  the  objection  that  an  unwarrantable  discrimination  is  made 
against  persons  engaged  in  the  laundry  business,  because  persons  in  other 
kinds  of  business  are  not  required  to  cease  from  their  labors  during  the  same 
hours  at  night.  There  may  be  no  risks  attending  the  business  of  others ; 
certainly  not  as  great  as  where  fires  are  constantly  required  to  carry  them 
ou.  The  specific  regulations  for  one  kind  of  business,  which  may  be  neces- 
sary for  the  protection  of  the  public,  can  never  be  the  just  ground  of  com- 
plaint because  like  restrictions  are  not  imposed  upon  other  business  of  a 
different  kind.  The  discriminations  which  are  open  to  objection  are  those 
where  persons  engaged  in  the  same  business  are  subjected  to  different  restric- 
tions, or  are  held  entitled  to  different  privileges  under  the  same  conditions. 
It  is  only  then  that  the  discrimination  can  be  said  to  impair  that  equal  right 
which  all  can  claim  in  the  enforcement  of  the  laws." 

In  New  York  ex  rel.  Lieberman  v.  Van  De  Carr,  109  IT.  S.  552,  563,  26 
Sup.  Ct.  144.  147,  50  L.  Ed.  005  (1905),  Day,  J.,  said :  "Nor  do  we  think  there 
is  force  in  the  contention  that  the  plaintiff  in  error  has  been  denied  the  equal 
protection  of  the  laws  because  of  the  allegation  that  the  milk  business  is  the 
only  business  dealing  in  foods  which  is  thus  regulated  by  the  sanitary  code. 
All  milk  dealers  within  the  city  are  equally  affected  by  the  regulations  of  the 
sanitary  code.  It  is  primarily  for  the  state  to  select  the  kinds  of  business 
which  shall  be  the  subjects  of  regulation,  and  if  the  business  affected  is  one 
which  may  be  properly  the  subject  of  such  legislation,  it  is  no  valid  objec- 
tion that  similar  regulations  are  not  imposed  upon  other  businesses  of  a 
different  kind." 

See,  also,  Fischer  v.  St.  Louis,  194  U.  S.  361,  24  Sup.  Ct.  673,  4S  L.  Ed.  101 S 
(1904)  (dairies  and  cow  stables  within  city  forbidden  without  a  permit  from 
city  council). 

Classification  is  not  invalid  because  it  excludes  similar  objects  of  regula- 
tion that  are  legally  outside  the  authority  of  the  regulating  body.  So,  e.  g.. 
as  to  state  bank  regulation  not  including  national  banks,  Dolley  v.  Abilene 
Nat.  Bank,  179  Fed.  461,  102  C.  C.  A.  607,  32  L.  R.  A.  (N.  S.)  1065  (1910),  af 
finned  228  U.  S.  1,  33  Sup.  Ct.  409,  57  L.  Ed.  (1913). 


Ch.  10)  di'k  PBOCE8S  .\\r>  eqi'ai.ity:    police  powbb  835 

them  to  pay  in  certain  cases  attorney  fees  to  the  parties  successfully 
suing  them,  while  it  gives  to  them  no  like  or  corresponding  benefit. 
Only  against  railroad  companies  is  such  exaction  made,  and  only  in 
certain  cases.     *    *    * 

While  good  faith  and  a  knowledge  of  existing  conditions  on  the  part 
of  a  legislature  is  to  be  presumed,  yet  to  carry  that  presumption  to  the 
extent  of  always  holding  that  there  must  be  some  undisclosed  and  un- 
known reason  for  subjecting  certain  individuals  or  corporations  to  hos- 
tile and  discriminating  legislation  is  to  make  the  protecting  clauses  of 
the  fourteenth  amendment  a  mere  rope  of  sand,  in  no  manner  restrain- 
ing state  action.    *    *    * 

But  it  is  said  that  it  is  not  within  the  scope  of  the  fourteenth  amend- 
ment to  withhold  from  states  the  power  of  classification,  and  that,  if 
the  law  deals  alike  with  all  of  a  certain  class,  it  is  not  obnoxious  to 
the  charge  of  a  denial  of  equal  protection.  While,  as  a  general  proposi- 
tion, this  is  undeniably  true,  *  *  *  yet  it  is  equally  true  that  such 
classification  cannot  be  made  arbitrarily.  The  state  may  not  say  thai 
all  white  men  shall  be  subjected  to  the  payment  of  the  attorney's  fees  of 
parties  successfully  suing  them,  and  all  black  men  not.  It  may  not  siv 
that  all  men  beyond  a  certain  age  shall  be  alone  thus  subjected,  or  all 
men  possessed  of  a  certain  wealth.  These  are  distinctions  which  do 
not  furnish  any  proper  basis  for  the  attempted  classification.  That 
must  always  rest  upon  some  difference  which  bears  a  reasonable  and 
just  relation  to  the  act  in  respect  to  which  the  classification  is  proposed, 
and  can  never  be  made  arbitrarily,  and  without  any  such  basis. 

As  well  said  by  Black,  J.,  in  State  v.  Loomis,  115  Mo.  307,  314.  22 
S.  W.  350.  351,  21  L.  R.  A.  789,  in  which  a  statute  making  it  a  mis- 
demeanor for  any  corporation  engaged  in  manufacturing  or  mining  to 
issue  in  payment  of  the  wages  of  its  employes  any  order,  check,  etc.. 
payable  otherwise  than  in  lawful  money  of  the  United  States,  unless 
negotiable  and  redeemable  at  its  face  value  in  cash  or  in  goods  and 
supplies  at  the  option  of  the  holder  at  the  store  or  other  place  of  busi- 
ness of  the  corporation,  was  held  class  legislation  and  void  :  "I 
fication  for  legislative  purposes  must  have  some  reasonable  basis  upon 
which  to  stand.  It  must  be  evident  that  differences  which  would  serve 
for  a  classification  for  some  purposes  furnish  no  reason  whatever  for 
a  classification  for  legislative  purposes,  The  differences  which  will 
support  class  legislation  must  be  such  as,  in  the  nature  of  things,  fur- 
nish a  reasonable  basis  for  separate  laws  and  regulations.  Thus  the 
legislature  may  fix  the  age  at  which  persons  shall  be  deemed  competent 
to  contract  for  themselves,  but  no  one  will  claim  that  competency  to 
contract  can  be  made  to  depend  upon  statute  or  color  of  the  hair.  Such 
a  classification  for  such  a  purpose  would  be  arbitrary,  and  a  piece  of 
legislative  despotism,  and  therefore  not  the  law  of  the  land."     *     *     * 

In  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232,  10  Sup.  Ct.  533, 
33  L.  Ed.  892,  the  question  was  presented  as  to  the  power  of  the  state 
to  classify  for  purposes  of  taxation,  and  while  it  was  conceded  that 


336  FUNDAMENTAL    RIGHTS  (Part  2 

a  large  discretion  in  these  respects  was  vested  in  the  various  legisla- 
tures, the  fact  of  a  limit  to  such  discretion  was  recognized,  the  court, 
by  Mr.  Justice  Bradley,  saying,  on  page  237,  134  U.  S.,  and  page  535, 
10  Sup.  Ct.  (33  L.  Ed.  892):  "All  such  regulations,  and  those  of  like 
character,  so  long  as  they  proceed  within  reasonable  limits  and  gen- 
eral usage,  are  within  the  discretion  of  the  state  legislature  or  the 
people  of  the  state  in  framing  their  constitution.  But  clear  and  hos- 
tile discriminations  against  particular  persons  and  classes,  especially 
such  as  are  of  an  unusual  character,  unknown  to  the  practice  of  our 
governments,  might  be  obnoxious  to  the  constitutional  prohibition." 

It  is,  of  course,  proper  that  every  debtor  should  pay  his  debts,  and 
there  might  be  no  impropriety  in  giving  to  every  successful  suitor  at- 
torney's fees.  Such  a  provision  would  bear  a  reasonable  relation  to 
the  delinquency  of  the  debtor,  and  would  certainly  create  no  inequality 
of  right  or  protection.  But  before  a  distinction  can  be  made  between 
debtors,  and  one  be  punished  for  a  failure  to  pay  his  debts,  while  an- 
other is  permitted  to  become  in  like  manner  delinquent  without  any 
punishment,  there  must  be  some  difference  in  the  obligation  to  pay, 
some  reason  why  the  duty  of  payment  is  more  imperative  in  the  one 
instance  than  in  the  other. 

If  it  be  said  that  this  penalty  is  cast  only  upon  corporations,  that  to 
them  special  privileges  are  granted,  and  therefore  upon  them  special 
burdens  may  be  imposed,  it  is  a  sufficient  answer  to  say  that  the  penalty 
is  not  imposed  upon  all  corporations.  The  burden  does  not  go  with  the 
privilege.  Only  railroads  of  all  corporations  are  selected  to  bear  this 
penalty.    The  rule  of  equality  is  ignored. 

It  may  be  said  that  certain  corporations  are  chartered  for  charita- 
ble, educational,  or  religious  purposes,  and  abundant  reason  for  not 
visiting  them  with  a  penalty  for  the  nonpayment  of  debts  is  found  in 
the  fact  that  their  chartered  privileges  are  not  given  for  pecuniary 
profit.  But  the  penalty  is  not  imposed  upon  all  business  corporations, 
all  chartered  for  the  purpose  of  private  gain.  The  banking  corpora- 
tions, the  manufacturing  corporations,  and  others  like  them,  are  ex- 
empt. Further,  the  penalty  is  imposed,  not  upon  all  corporations 
charged  with  the  quasi  public  duty  of  transportation,  but  only  upon 
those  charged  with  a  particular  form  of  that  duty.  So  the  classifica- 
tion is  not  based  on  any  idea  of  special  privileges  by  way  of  incorpora- 
tion, nor  of  special  privileges  given  thereby  for  purposes  of  private 
gain,  nor  even  of  such  privileges  granted  for  the  discharge  of  one 
general  class  of  public  duties. 

But,  if  the  classification  is  not  based  upon  the  idea  of  special  privi- 
leges, can  it  be  sustained  upon  the  basis  of  the  business  in  which  the 
corporations  to  be  punished  are  engaged  ?  That  such  corporations  may 
be  classified  for  some  purposes  is  unquestioned.  The  business  in  which 
they  are  engaged  is  of  a  peculiarly  dangerous  nature,  and  the  legisla- 
ture, in  the  exercise  of  its  police  powers,  may  justly  require  many 
things  to  be  done  by  them  in  order  to  secure  life  and  property.    Fenc- 


Ch.  10)  DUE   PROCESS   AND   EQUALITY  I     POLICB    POWEB 

ing  of  railroad  tracks,  use  of  safety  couplers,  and  a  multitude  of  other 
things  easily  suggest  themselves.  And  any  classification  for  the  impo- 
sition of  such  special  duties — duties  arising  out  of  the  peculiar  business 
in  which  they  are  engaged — is  a  just  classification,  and  not  one  within 
the  prohibition  of  the  fourteenth  amendment.  Thus  it  is  frequently 
required  that  they  fence  their  tracks,  and  as  a  penalty  for  a  failure  to 
fence  double  damages  in  case  of  loss  are  inflicted.  Railway  Co.  v. 
Humes,  115  U.  S.  512,  6  Sup.  Ct.  110,  29  L.  Ed.  463.  But  this  and  all 
kindred  cases  proceed  upon  the  theory  of  a  special  duty  resting  upon 
railroad  corporations  by  reason  of  the  business  in  which  they  are  en- 
gaged,— a  duty  not  resting  upon  others ;  a  duty  which  can  be  enforced 
by  the  legislature  in  any  proper  manner;  and  whether  it  enforces  it  by 
penalties  in  the  way  of  fines  coming  to  the  state,  or  by  double  damages 
to  a  party  injured,  is  immaterial.  It  is  all  done  in  the  exercise  of  the 
police  power  of  the  state,  and  with  a  view  to  enforce  just  and  reason- 
able police  regulations. 

While  this  action  is  for  stock  killed,  the  recovery  of  attorneys'  fees 
cannot  be  sustained  upon  the  theory  just  suggested.  There  is  no  fence 
law  in  Texas.  The  legislature  of  the  state  has  not  deemed  it  necessary 
for  the  protection  of  life  or  property  to  require  railroads  to  fence  their 
tracks,  and,  as  no  duty  is  imposed,  there  can  be  no  penalty  for  non- 
performance. Indeed,  the  statute  does  not  proceed  upon  any  such 
theory;  it  is  broader  in  its  scope.  Its  object  is  to  compel  the  payment 
of  the  several  classes  of  debts  named,  and  was  so  regarded  by  the  su- 
preme court  of  the  state. 

But  a  mere  statute  to  compel  the  payment  of  indebtedness  does  not 
come  within  the  scope  of  police  regulations.  The  hazardous  business 
of  railroading  carries  with  it  no  special  necessity  for  the  prompt  pay- 
ment of  debts.  That  is  a  duty  resting  upon  all  debtors,  and  while,  in 
certain  cases,  there  may  be  a  peculiar  obligation  which  may  be  enforced 
by  penalties,  yet  nothing  of  that  kind  springs  from  the  mere  work  of 
railroad  transportation.  Statutes  have  been  sustained  giving  special 
protection  to  the  claims  of  laborers  and  mechanics,  but  no  such  idea 
underlies  this  legislation.  It  does  not  aim  to  protect  the  laborer  or  the 
mechanic  alone,  for  its  benefits  are  conferred  upon  every  individual  in 
the  state,  rich  or  poor,  high  or  low,  who  has  a  claim  of  the  character 
described.  It  is  not  a  statute  for  the  protection  of  particular  classes 
of  individuals  supposed  to  need  protection,  but  for  the  punishment  of 
certain  corporations  on  account  of  their  delinquency. 

Neither  can  it  be  sustained  as  a  proper  means  of  enforcing  the  pay- 
ment of  small  debts,  and  preventing  any  unnecessary  litigation  in  re- 
spect to  them,  because  it  does  not  impose  the  penalty  in  all  cases  where 
the  amount  in  controversy  is  within  the  limit  named  in  the  statute. 
Indeed,  the  statute  arbitrarily  singles  out  one  class  of  debtors,  and 
punishes  it  for  a  failure  to  perform  certain  duties, — duties  which  are 
equally  obligatory  upon  all  debtors;  a  punishment  not  visited  by  rea- 
Hall  Const.L. — '£1 


'538  FUNDAMENTAL    RIGHTS  (Part  2 

son  of  the  failure  to  comply  with  any  proper  police  regulations,  or  for 
the  protection  of  the  laboring  classes,  or  to  prevent  litigation  about 
trifling  matters,  or  in  consequence  of  any  special  corporate  privileges 
bestowed  by  the  state.  Unless  the  legislature  may  arbitrarily  select 
one  corporation  or  one  class  of  corporations,  one  individual  or  one 
class  of  individuals,  and  visit  a  penalty  upon  them  which  is  not  im- 
posed upon  others  guilty  of  like  delinquency,  this  statute  cannot  be 
sustained.     *     *    * 

Judgment  reversed. 

Mr.  Justice  Gray  [with  whom  concurred  Fuller,  C.  J.,  and  White. 
J.],  dissenting: 

*  *  *  The  legislature  of  a  state  must  be  presumed  to  have  acted 
from  lawful  motives,  unless  the  contrary  appears  upon  the  face  of  the 
statute.  If,  for  instance,  the  legislature  of  Texas  was  satisfied,  from 
observation  and  experience,  that  railroad  corporations  within  the  state 
were  accustomed,  beyond  other  corporations  or  persons,  to  unconscion- 
ably resist  the  payment  of  such  petty  claims,  with  the  object  of  ex- 
hausting the  patience  and  the  means  of  the  claimants,  by  prolonged 
litigation,  and  perhaps  repeated  appeals,  railroad  corporations  alone 
might  well  be  required,  when  ultimately  defeated  in  a  suit  upon  such  a 
claim,  to  pay  a  moderate  attorney's  fee,  as  a  just,  though  often  inade- 
quate, contribution  to  the  expenses  to  which  they  had  put  the  plaintiff 
in  establishing  a  rightful  demand.  Whether  such  a  state  of  things  as 
above  supposed  did  in  fact  exist,  and  whether,  for  that  or  other  rea- 
sons, sound  policy  required  the  allowance  of  such  a  fee  to  either  party, 
or  to  the  plaintiff  only,  were  questions  to  be  determined  by  the  legisla- 
ture, when  dealing  with  the  subject  of  costs,  except  in  so  far  as  it  saw 
tit  to  commit  the  matter  to  the  decision  of  the  courts.    *    *    *  l 


ATCHISON,  T.  &  S.  F.  R.  CO.  v.  MATTHEWS  (1899)  174 
U.  S.  96,  98-100,  19  Sup.  Ct.  609,  43  L.  Ed.  909,  Mr.  Justice  Brewer 
(sustaining  a  Kansas  statute  allowing  a  reasonable  attorney  fee  to 
successful  plaintiffs  in  actions  against  railroad  companies  for  dam- 
age due  to  the  negligent  escape  of  fire) : 

[Referring  to  the  case  of  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U. 
S.  150,  17  Sup.  Ct.  255,  41  L.  Ed.  666].  "It  was  held  to  be  simply 
a  statute  imposing  a  penalty  on  railroad  corporations  for  failing  to 
pay  certain  debts,  and  not  one  to  enforce  compliance  with  any  police 
regulations.  *  *  *  And  there  is  no  good  reason  why  railroad 
corporations  alone  should  be  punished  for  not  paying  their  debts. 
Compelling  the  payment  of  debts  is  not  a  police  regulation.  We  see 
no  reason  to  change  the  views  then  expressed,  and,  if  the  statute  be- 
fore us  were  the  counterpart  of  that,  we  should  be  content  to  refer 
to  that  case  as  conclusive. 

i  See,  also,  Chicago  v.  Xeteher,  post  p.  -162,  and  note. 


Ch.  10)  DUE   PROCESS   AND   EQUALITY  :     POLICE    POWEB  B39 

"But  while  there  is  a  similarity,  yet  there  are  important  differences, 
and  differences  which,  in  our  judgment,  compel  an  opposite  conclusion. 
The  purpose  of  this  statute  is  not  to  compel  the  payment  of  debts,  but 
to  secure  the  utmost  care  on  the  part  of  railroad  companies  to  prevent 
the  escape  of  fire  from  their  moving  trains.  This  is  obvious  from  the 
fact  that  liability  for  damages  by  fire  is  not  cast  upon  such  corpora- 
tions in  all  cases,  but  only  in  those  in  which  the  fire  is  'caused  by  the 
operating'  of  the  road.  It  is  true  that  no  special  act  of  precaution 
was  required  of  the  railroad  companies,  failure  to  do  which  was 
to  be  visited  with  this  penalty,  so  that  it  is  not  precisely  like  the 
statutes  imposing  double  damages  for  stock  killed  where  there  has 
been  afailure  to  fence.  Railway  Co.  v.  Humes,  115  U.  S.  512,  6  Sup. 
Ct.  110,  29  L.  Ed.  463.  And  yet  its  purpose  is  not  different.  Its 
monition  to  the  railroads  is  not,  'Pay  your  debts  without  suit  or  you 
will,  in  addition,  have  to  pay  attorney's  fees;'  but  rather,  'See  to  it 
that  no  fire  escapes  from  your  locomotives,  for  if  it  does  you  will 
be  liable,  not  merely  for  the  damage  it  causes,  but  also  for  the  rea- 
sonable attorney's  fees  of  the  owner  of  the  property  injured  or  de- 
stroyed.' It  has  been  frequently  before  the  supreme  court  of  Kan- 
sas, has  always  been  so  interpreted  by  that  court,  and  its  validity  si^- 
tained  on  that  ground.  In  Railway  Co.  v.  Merrill,  40  Kan.  404,  408. 
19  Pac.  795,  it  was  said:  'The  objection  that  this  legislation  is  spe- 
cial and  unequal  cannot  be  sustained.  The  dangerous  element  em- 
ployed, and  the  hazards  to  persons  and  property  arising  from  the  run- 
ning of  trains  and  the  operation  of  railroads,  justifies  such  a  law  : 
and  the  fact  that  all  persons  and  corporations  brought  under  its  in- 
fluence are  subjected  to  the  same  duties  and  liabilities,  under  similar 
circumstances,  disposes  of  the  objections  raised.' 

"And  in  the  opinion  filed  in  the  present  case  that  court  (58  Kan. 
447,  450,  49  Pac.  602)  observed :  'Our  statute  is  somewhat  in  the 
nature  of  a  police  regulation,  designed  to  enforce  care  on  the  part  of 
railroad  companies  to  prevent  the  communication  of  fire  and  the  de- 
struction of  property  along  railroad  lines.  It  is  not  intended  merely 
to  impose  a  burden  on  railroad  corporations  that  private  persons  are 
not  required  to  bear,  and  the  remedy  offered  is  one  the  legislature 
has  the  right  to  give  in  such  cases.  This  is  the  view  heretofore  held 
by  this  court,  which  we  see  no  reason  for  changing.  Railway  Co.  v. 
Snaveley,  47  Kan.  637,  28  Pac.  615;  Same  v.  Curtis,  48  Kan.  179, 
29  Pac.  146;  Same  v.  McMullen,  48  Kan.  281,  29  Pac.  147;  Railroad 
Co.  v.  Henning,  48  Kan'.  465,  29  Pac.  597.' 

"It  is  true  that  the  Ellis  Case  was  one  to  recover  damages  for  the 
killing  of  a  colt  by  a  passing  train.  And  so  it  might  be  argued  that 
the  protection  of  the  track  from  straying  stock  and  the  protection  of 
stock  from  moving  trains  would,  within  the  foregoing  principles,  up- 
hold legislation  imposing  an  attorney's  fee  in  actions  against  railroad 
corporations.  We  were  not  insensible  to  this  argument  when  that 
case  was  considered,  but  we  accepted  the  interpretation  of  the  statute 


-340  FUNDAMENTAL    RIGHTS  (Part  2 

and  its  purpose  given  by  the  supreme  court  of  Texas.  *  *  *  In- 
deed, the  limit  in  amount  ($50),  found  in  that  statute,  made  it  clear 
that  no  police  regulation  was  intended ;  for,  if  it  were,  the  more 
stock  found  on  the  track  the  greater  would  be  the  danger  and  the 
more  imperative  the  need  of  regulation  and  penalty. 

"So  that,  according  to  the  interpretation  placed  upon  the  Texas  stat- 
ute by  its  supreme  court,  its  purpose  was  generally  to  compel  the  pay- 
ment of  small  debts,  and  the  fact  that  among  the  debts  so  provided  for 
was  the  liability  for  stock  killed  was  not  sufficient  to  justify  us  in 
separating  the  statute  into  fragments,  and  upholding  one  part  on  a 
theory  inconsistent  with  the  policy  of  the  state,  while,  on  the  other 
hand,  the  purpose  of  this  statute  is,  as  declared  by  the  supreme  court 
of  Kansas,  protection  against  fire, — a  matter  in  the  nature  of  a  police 
regulation." 

[Harlan,  Brown,  Peckham,  and  McKenna,  JJ.,  dissented  in  an 
opinion  by  Harlan,  J.]  l 

i  In  Fidelity  Mut  Life  Ass'n  v.  Mettler,  1S5  U.  S.  308,  320,  22  Sup.  Ct.  002, 
009,  40  L.  Ed.  922  (1902),  iu  sustaining  a  Texas  statute  imposing  a  penalty  of 
12  per  cent,  damages  and  an  attorney  fee  upon  life  and  health  insurance 
companies  that  unsuccessfully  defended  suits  against  them.  Fuller,  C.  J.,  said: 
"The  reasoning  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Matthews,  174  U.  S.  90,  19 
Sup.  Ct.  009,  43  L.  Ed.  909,  applies  rather  than  that  in  Gulf,  C.  &  S.  F.  R.  Co. 
v.  Ellis.  The  ground  for  placing  life  and  health  insurance  companies  in  a 
different  class  from  fire,  marine,  and  inland  insurance  companies  is  obvious, 
and  we  think  that  putting  them  in  a  different  class  from  mutual  benefit  and 
relief  associations  doing  business  through  lodges,  and  benevolent  associations 
of  the  character  mentioned  in  the  Texas  statutes,  is  not  an  arbitrary  classi- 
fication, but  rests  on  sufficient  reason.  The  legislature  evidently  intended  to 
distinguish  between  life  aud  health  insurance  companies  engaged  in  business  for 
profit  (and  we  are  not  called  on  to  refine  as  to  the  distribution  of  such  profits) 
and  lodges  and  associations  of  a  mutual  benefit  or  benevolent  character,  hav- 
ing in  mind  also  the  necessity  of  the  prompt  payment  of  the  insurance  money 
in  very  many  cases,  in  order  to  provide  the  means  of  living  of  which  the  ben- 
eficiaries had  been  deprived  by  the  death  of  the  insured."  [Harlan  and  Brown, 
JJ.,  dissented.] 

In  Farmers'  &  M.  Ins.  Co.  v.  Dobney,  1S9  U.  S.  301,  305,  300,  23  Sup.  Ct.  505, 
507,  47  L.  Ed.  S2  (1903),  in  sustaining  a  Nebraska  statute  allowing  an  attor- 
ney fee  to  a  successful  plaintiff  in  a  suit  upon  a  fire  insurance  policy  for  a 
total  loss  of  real  property  insured,  White,  J.,  said:  "As  the  rule  settled  by 
the  previous  cases  is  that  contracts  of  insurance  from  their  very  nature  are 
susceptible  of  classification,  not  only  apart  from  other  contracts,  but  from 
each  other,  it  must  follow,  as  the  lesser  is  included  in  the  greater,  that  the 
character  of  the  property  insured  and  the  extent  of  the  loss  afford  reasons 
for  subclassification.  It  is,  however,  argued  that  no  reason  could  have  existed 
for  classifying  losses  on  real  estate  separately  from  losses  on  other  property. 
And  by  what  process  of  reasoning,  it  is  asked,  could  the  legislative  mind  have 
discovered  the  foundation  for  allowing  the  recovery  of  a  reasonable  attorney's 
fee  in  case  of  a  total  loss  of  real  estate  insured,  and  not  permit  recovery  of 
such  fee  when  the  property  insured  has  been  only  partially  destroyed?  The 
distinction  between  real  and  personal  property  has  in  all  systems  of  law  con- 
stantly given  rise  to  different  regulations  concerning  such  property.  The 
differences  of  relation  which  may  arise  between  the  insurer  and  the  insured, 
depending  upon  whether  the  property  insured  has  been  only  partially  dam- 
aged or  has  been  totally  destroyed,  needs  but  to  be  suggested.  In  the  one 
case,  the  amount  of  the  damage  affords  possibilities  for  a  reasonable  differ- 
ence of  opinion  between  the  parties  in  adjusting  the  payment  under  the  policy. 
In  the  other,  the  amount  being  determined  under  the  statute  by   the  value 


Ch.  10)  DUE   PROCESS   AND   EQUALITY  i     POLICE    POWEB  ''II 


SEABOARD  AIR  LINE  RY.  v.  SEEGERS  (1907)  207  U.  S.  73, 
77-79,  28  Sup.  Ct.  28,  52  L.  Ed.  108,  Mr.  Justice  Day  (sustaining  a 
South  Carolina  statute  imposing  a  penalty  of  $50  in  favor  of  plaintiffs, 
recovering  their  full  claims  in  suits  against  common  carriers  for  dam- 
age to  property  while  in  their  possession,  provided  the  claim  was  not 
settled  within  40  days  after  presentment  to  the  defendant) : 

"We  are  of  the  opinion  that  this  case  comes  within  the  limits  of 
constitutionality.  It  is  not  an  act  imposing  a  penalty  for  the  non- 
payment of  debts.  As  the  supreme  court  of  South  Carolina  said  in 
Best  v.  Seaboard  Air  Line  R.  Co.,  72  S.  C.  479,  484,  52  S.  E.  223, 
225 :  'The  object  of  the  statute  was  not  to  penalize  the  carrier  for 
merely  refusing  to  pay  a  claim  within  the  time  required,  whether  just 
or  unjust,  but  the  design  was  to  bring  about  a  reasonably  prompt 
settlement  of  all  proper  claims,  the  penalty,  in  case  of  a  recovery  in 
court,  operating  as  a  deterrent  of  the  carrier  in  refusing  to  settle 
just  claims,  and  as  compensation  of  the  claimant  for  the  trouble  and 
expense  of  the  suit  which  the  carrier's  unreasonable  delay  and  refusal 
made  necessary.' 

"This  ruling  of  the  supreme  court  finds  support,  if  any  be  needed, 
in  the  preamble  of  the  statute,  which  reads:  'An  act  to  regulate  the 
maimer  in  which  common  carriers  doing  business  in  this  state  shall 
adjust  freight  charges  and  claims  for  loss  of  or  damage  to  freight.' 
It  is  not  an  act  leveled  against  corporations  alone,  but  includes  all 
common  carriers.  The  classification  is  based  solely  upon  the  nature 
of  the  business,  that  being  of  a  public  character.  It  is  true  that  no 
penalty  is  cast  upon  the  shipper,  yet  there  is  some  guaranty  against 
excessive  claims  in  that,  as  held  by  the  supreme  court  of  the  state 
in  Best  v.  Seaboard  Air  Line  R.  Co.  supra,  there  can  be  no  award  of  a 
penalty  unless  there  be  a  recovery  of  the  full  amount  claimed. 

"Further,  the  matter  to  be  adjusted  is  one  peculiarly  within  the* 
knowledge  of  the  carrier.  It  receives  the  goods  and  has  them  in  its 
custody  until  the  carriage  is  completed.  It  knows  what  it  received 
and  what  it  delivered.  It  knows  what  injury  was  done  during  the 
shipment,  and  how  it  was  clone.  The  consignee  may  not  know  what 
was  in  fact  delivered  at  the  time  of  the  shipment,  and  the  shipper  may 
not  know  what  was  delivered  to  the  consignee  at  the  close  of  the 
transportation.  The  carrier  can  determine  the  amount  of  the  loss 
more  accurately  and  promptly  and  with  less  delay  and  expense  than 
anyone  else,  and  for  the  adjustment  of  loss  or  damage  to  shipments 

fixed  by  both  parties  in  the  policy,  the  question  of  le^'al  liability  under  the 
policy  would  be,  as  a  general  rule,  the  only  matter  to  be  considered  iu  deter- 
mining whether  payment  under  the  contract  will  be  made.  I 
obvious  that  the  total  destruction  of  real  estate  covered  by  Insurance  neces- 
sarily concerns  the  homes  of  many  of  the  people  of  the  state.  If.  In  regulating 
and  classifying  insurance  contracts,  tl  e   look  the  fore) 

tons  Into  view  and  provided  for  irmot  say  that  In  0 

it   acted   arbitrarily    and    wholly    without   reason."      [Harlan.    Brew 
Brown,  JJ.  dissented.] 


342  FUNDAMENTAL    RIGHTS  (Part    2 

within  the  state  forty  days  cannot  be  said  to  be  an  unreasonably  short 
length  of  time.  It  may  be  stated  as  a  general  rule  that  an  act  which 
puts  in  one  class  all  engaged  in  business  of  a  special  and  public  char- 
acter, requires  of-them  the  performance  of  a  duty  which  they  can  do 
better  and  more  quickly  than  others,  and  imposes  a  not  exorbitant 
penalty  for  a  failure  to  perform  that  duty  within  a  reasonable  time, 
cannot  be  adjudged  unconstitutional  as  a  purely  arbitrary  classifica- 
tion. 

"While  in  this  case  the  penalty  may  be  large  as  compared  with  tne 
value  of  the  shipment,  yet  it  must  be  remembered  that  small  ship- 
ments are  the  ones  which  especially  need  the  protection  of  penal  stat- 
utes like  this.  If  a  large  amount  is  in  controversy,  the  claimant  can 
afford  to  litigate.  But  he  cannot  well  do  so  when  there  is  but  the 
trifle  of  a  dollar  or  two  in  dispute,  and  yet  justice  requires  that  his 
claim  be  adjusted  and  paid  with  reasonable  promptness.  Further, 
it  must  be  remembered  that  the  purpose  of  this  legislation  is  not 
primarily  to  enforce  the  collection  of  debts,  but  to  compel  the  per- 
formance of  duties  which  the  carrier  assumes  when  it  enters  upon  the 
discharge  of  its  public  functions.  We  know  there  are  limits  beyond 
which  penalties  may  not  go  even  in  cases  where  classification  is  legiti- 
mate ;  but  we  are  not  prepared  to  hold  that  the  amount  of  penalty  im- 
posed is  so  great,  or  the  length  of  time  within  which  the  adjustment 
and  payment  are  to  be  made  is  so  short,  that  the  act  imposing  the 
penalty  and  fixing  the  time  is  beyond  the  power  of  the  state."1 

[Peckham,  J.,  dissented.] 


CHARLOTTE,  C.  &  A.  R.  CO.  v.  GIBBES  (1892)  142  U.  S.  3S6. 
391,  393-395,  12  Sup.  Ct.  255,  35  L.  Ed.  1051,  Mr.  Justice  Field 
(upholding  a  South  Carolina  statute  imposing  upon  railroad  corpora- 
tions alone  the  expenses  of  the  state  railroad  commission) : 

"If  the  tax  were  levied  to  pay  for  services  in  no  way  connected 
with  the  railroads,  as,  for  instance,  to  pay  the  salary  of  the  executive 
or  judicial  officers  of  the  state,  whilst  railroad  corporations  were  at 
the  same  time  subjected  to  taxation  upon  their  property  equally  with 
other  corporations  for  such  expenses,  and  other  corporations  were 
not  taxed  for  the  salaries  mentioned,  there  would  be  just  ground  of 
complaint  of  unlawful  discrimination  against  the  railroad  corpora- 
tions, and  of  their  not  receiving  the  equal  protection  of  the  laws. 
But  there  is  nothing  of  this  nature  in  the  tax  in  question.  The  rail- 
road commissioners  are  charged  with  a  variety  of  duties  in  connec- 
tion with  railroads,  the  performance  of  which  is  of  great  importance 
in  the  regulation  of  those  instruments  of  transportation.  *  *  * 
That   regulation  may   extend   to   all    measures   deemed    essential    not 

i  Compare  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Wynne,  224  U.  S.  354,  32  Sup.  Ct. 
493,  56  L.  Ed.  799  (1912)  and  Mobile  &  O.  R  Co.  v.  Brandon,  98  Miss.  461,  53 
South.  957,  42  L.  R.  A.  (N.  S.)  106  (1910). 


Cll.  10)  DDE  PROCESS  ANT)  equality:    police  poweb  843 

merely  to  secure  the  safety  of  passengers  and  freight,  but  to  pro- 
mote the  convenience  of  the  public  in  the  transaction  of  business  with 
them,  and  to  prevent  abuses  by  extortionate  charges  and  unjust  dis- 
crimination. It  may  embrace  a  general  supervision  of  the  operation 
of  their  roads,  which  may  be  exercised  by  direct  legislation  com- 
manding or  forbidding,  under  severe  penalties,  the  doing  or  omission 
of  particular  acts,  or  it  may  be  exercised  through  commissioners 
specially  appointed  for  that  purpose.  The  mode  or  manner  of  reg- 
ulation is  a  matter  of  legislative  discretion.  When  exercised  through 
commissioners,  their  services  are  for  the  benefit  of  the  railroad  cor- 
porations as  well  as  of  the  public.  Both  are  served  by  the  required 
supervision  over  the  roads  and  means  of  transportation,  and  there 
would  seem  to  be  no  sound  reason  why  the  compensation  of  the  com- 
missioners in  such  case  should  not  be  met  by  the  corporations,  the 
operation  of  whose  roads  and  the  exercise  of  whose  franchises  are 
supervised.  In  exacting  this  there  is  no  encroachment  upon  the  four- 
teenth amendment. 

"Requiring  that  the  burden  of  a  service  deemed  essential  to  the 
public,  in  consequence  of  the  existence  of  the  corporations  and  the 
exercise  of  privileges  obtained  at  their  request,  should  be  borne  by 
the  corporations  in  relation  to  whom  the  service  is  rendered,  and  to 
whom  it  is  useful,  is  neither  denying  to  the  corporations  the  equal 
protection  of  the  laws  or  making  any  unjust  discrimination  against 
them.  All  railroad  corporations  in  the  state  are  treated  alike  in  this 
respect.  The  necessity  of  supervision  extends  to  them  all,  and  for 
that  supervision  the  like  proportional  charge  is  made  against  all. 
There  is  no  occasion  for  similar  regulations  for  the  government  of 
other  than  railroad  corporations,  and  therefore  no  charge  is  made 
against  them  for  the  expenses  and  salaries  of  the  commissioners.  The 
rule  .of  equality  is  not  invaded  where  all  corporations  of  the  same 
kind  are  subjected  to  like  charges  for  similar  services,  though  no 
charge  at  all  is  made  against  other  corporations.  There  is  no  charge 
where  there  is  no  service  rendered.  The  legislative  and  constitutional 
provision  of  the  state,  that  taxation  of  property  shall  be  equal  and 
uniform  and  in  proportion  to  its  value,  is  not  violated  by  exacting  a 
contribution  according  to  their  gross  income  in  proportion  to  the 
number  of  miles  of  railroad  operated  in  the  state  to  meet  the  special 
service  required.  Barbier  v.  Connolly,  113  U.  S.  27,  5  Sup.  Ct.  357, 
28  L.  Ed.  923;  Soon  Hing  v.  Crowley.  113  U.  S.  703,  5  Sup.  Ct.  730. 
28  L.  Ed.  1145;  Missouri  Pacific  Railway  v.  Humes,  115  U.  S.  512. 
6  Sup.  Ct.  110,  29  L.  Ed.  463. 

"There  are  many  instances  where  parties  are  compelled  to  perform 
certain  acts  and  to  bear  certain  expenses  when  the  public  is  interested 
in  the  acts  which  are  performed  as  much  as  the  parties  themselves. 
Thus  in  opening,  widening,  or  improving  streets  the  owners  of  adjoin- 
ing property  are  often  compelled  to  bear  the  expenses,  or  at  least  a 
portion  of  them,  notwithstanding  the   work   done   is   chiefly   for  the 


344  FUNDAMENTAL    RIGHTS  (Part  2 

benefit  of  the  public.  So,  also,  in  the  draining  of  marsh  lands,  the 
public  is  directly  interested  in  removing  the  causes  of  malaria,  and 
yet  the  expense  of  such  labor  is  usually  thrown  upon  the  owners  of 
the  property.  Quarantine  regulations  are  adopted  for  the  protection 
of  the  public  against  the  spread  of  disease,  yet  the  requirement  that 
the  vessel  examined  shall  pay  for  the  examination  is  a  part  of  all 
quarantine  systems.  Morgan  v.  Louisiana,  118  U.  S.  455,  466,  6  Sup. 
Ct.  1114,  30  L.  Ed.  237.  So,  the  expense  of  a  compulsory  examina- 
tion of  a  railroad  engineer,  to  ascertain  whether  he  is  free  from  color 
blindness,  has  been  held  to  be  properly  chargeable  against  the  rail- 
road company.  Nashville,  Chattanooga  &  St.  Louis  Railway  v.  Ala- 
bama, 128  U.  S.  96,  101,  9  Sup.  Ct.  28,  32  L.  Ed.  352.  So.  where 
work  is  done  in  a  particular  county  for  the  benefit  of  the  public,  the 
cost  is  oftentimes  cast  upon  the  county  itself  instead  of  upon  the 
whole  state.  Thus,  in  County  of  Mobile  v.  Kimball,  102  U.  S.  691, 
26  L.  Ed.  238,  it  was  held  that  a  provision  for  the  issuing  of  bonds 
by  a  county  in  Alabama  could  not  be  declared  invalid,  although  it 
imposed  upon  one  county  the  expense  of  an  improvement  in  which 
the  whole  state  was  interested.  In  such  instances,  where  the  interests 
of  the  public  and  of  individuals  are  blended  in  any  work  or  service 
imposed  by  law,  whether  the  cost  shall  be  thrown  entirely  upon  the 
individuals,  or  upon  the  state,  or  be  apportioned  between  them,  is 
matter  of  legislative  direction."     *     *     *  1 

[Messrs.  Justices  Bradley  and  Gray  did  not  sit.] 


FINLEY  v.  CALIFORNIA  (1911)   222  U.  S.  28,  32  Sup.  Ct.  13, 

56  L.  Ed.  75,  Mr.  Justice  McKenna  (affirming  a  California  judgment 
which  upheld  a  statute  punishing  life  convicts  alone  with  death,  for  an 
assault  with  a  deadly  weapon) : 

"It  is  elementary  that  the  contention  [denial  of  the  equal  protection 
of  the  laws]  is  to  be  tested  by  considering  whether  there  is  a  basis  for 

i  Accord :  New  York  &  N.  E.  R.  Co.  v.  Bristol,  151  U.  S.  556,  14  Sup.  Ct  437, 
38  L.  Ed.  269  (1894)  (expense  of  abolishing  grade  crossings) ;  St.  Louis  Con- 
solidated Coal  Co.  v.  Illinois,  185  U.  S.  203,  22  Sup.  Ct.  616,  46  L.  Ed.  872 
(1902)  (cost  of  inspecting  mines) ;  Atlantic  &  P.  Telegraph  Co.  v.  Philadelphia, 
190  TJ.  S.  160,  23  Sup.  Ct.  S17,  47  L.  Ed.  995  (1903)  (cost  of  governmental  super- 
vision);  Comm.  v.  Carter.  132  Mass.  12  (1882)  (samples  of  milk  for  inspec- 
tion). 

The  imposition  is  invalid  if  unreasonably  excessive  for  its  purpose,  Postal 
Tel.  Cable  Co.  v.  Taylor.  192  U.  S.  64,  24  Sup.  Ct.  208,  48  L.  Ed.  342  (1904); 
or  if  the  expenditure  to  be  defrayed  has  not  been  made  specially  necessary  by 
the  object  of  taxation,  In  re  Gardner,  84  Kan.  264,  113  Pac.  1054,  35  L.  R.  A. 
(N.  S.)  956  (1911);  ;Etna  Fire  Ins.  Co.  v.  Jones,  78  S.  C.  445,  59  S.  E.  14S 
(1907),  annotated  in  13  L.  R.  A.  (N.  S.)  1147,  1148,  125  Am.  St.  Rep.  818.  But 
compare  State  v.  Sutton  (N.  J.)  84  Atl.  1057  (1912),  and  the  doctrine  of  cases 
like  WilKox  v.  Consolidated  Gas  Co.,  212  U.  S.  19,  54,  29  Sup.  Ct.  192,  53  L. 
Ed.  382,  15  Ann.  Cas.  1034  (1909) ;  Com.  v.  Boston  &  N.  St.  R.  Co.,  212  Mass. 
62,  98  N.  E.  1075  (1912).  See  Chicago  v.  Pennsylvania  Co.,  252  111.  185,  9(1 
N.  E.  S33,  36  L.  R.  A.  (N.  S.)  1081.  Ann.  Cas.  1912D,  400  (1911)  (railroad  cannot 
be  required  to  light  highway  under  its  crossing  above  grade). 


Ch.  10)      DUE  PROCESS  AND  EQUALITY:  POLICE  POWER         "  1  5 

the  classification  made  by  the  statute.  Applying  that  test,  we  see  nc 
error  in  the  ruling.  As  said  by  Mr.  Justice  Henshaw,  delivering  the 
opinion  of  the  court,  'The  classification  of  the  statute  in  question  is  not 
arbitrary,  but  is  based  upon  valid  reasons  and  distinctions.'  And 
pointing  out  the  distinction  between  life  prisoners  and  other  convicts, 
he  said  that  'the  "life  termers,"  as  has  been  said,  while  within  the 
prison  walls,  constitute  a  class  by  themselves. — a  class  recognized  as 
such  by  penologists  the  world  over.  Their  situation  is  legally  different. 
Their  civic  death  is  perpetual.'  [153  Cal.  62,  94  Pac.  24S.]  Mani- 
festly there  could  be  no  extension  of  the  term  of  imprisonment  as  a 
punishment  for  crimes  they  might  commit,  and  whatever  other  pun- 
ishment should  be  imposed  was  for  the  legislature  to  determine.  The 
power  of  classification  which  the  lawmaking  power  possesses  has  been 
illustrated  by  many  cases  which  need  not  be  cited.  They  demonstrate 
that  the  legislature  of  California  did  not  transcend  its  power  in  the 
enactment  of  section  246."  * 

i  So  McDonald  v.  Massachusetts.  ISO  D.  S.  311,  21  Sup.  Ct  389,  45  C*  Ed 
542  (1901)  (heavier  penalty  for  habitual  criminals).  Compart?  State  v.  Lewln, 
53  Kan.  679,  37  Pac.  168  (1S94)  (escaped  convicts  cannot  be  required  to  re- 
serve original  term). 

In  State  v.  Hogan,  63  Ohio  St.  202.  58  N.  E.  r.72.  52  L.  B.  A.  863,  81  Am. 
St.  Rep.  626  (1900),  an  Ohio  statute  defined  a  "tramp"  as  any  person,  not  a 
female  or  blind,  who  was  found  begging  elsewhere  than  in  the  county  of  his 
residence,  and  various  offences  and  threats  by  such  persons  were  crimlnall] 
punished  much  more  severely  than  when  not  committed  by  "tramps."  This 
was  upheld,  Spear.  J.,  saying  (63  Ohio  St.  210,  211,  217,  218,  5S  N.  E.  57.".. 
575,  52  L.  R.  A.  863,  81  Am.  St.  Rep.  626): 

"Nor  is  it  an  objection  to  a  penal  statute  that  it  does  not  apply  to  all  per- 
sons who  might  by  any  possibility  commit  the  act  Interdicted.     It  is  for  the 
legislature  to  determine   how  far  to  go  in  order  to  afford  the  desired   pro- 
tection to  society.     The  exemption  of  some,  where  it  does  not  Interfere  with 
the  rights  of  others,  is  not  open  to  objection  on  constitutional  grounds.     Tin 
principle  is  illustrated  in  the  statute  under  review.     Females  and  blind  per 
sons  are  not  included  within  its  terms.     This,  presumably,  from  considera- 
tions of  humanity,  but  principally  because  but  little,  if  any,  danger  is  threat- 
ened from  such:    and  this  exemption  has  not  met  with  objection  in  tbJ 
The  act  in  question  undertakes  to  define  a  tramp  or  vagrant,  by  stati- 
acts  shall  constitute  such  character.     It  is,  in  the  main,  the  old  method  of 
describing  a  vagrant,  and  vagrancy,  time  "itt  of  mind,  has  been 
dition  calling  for  special  statutory  provisions;    1.  e.  such  as  may   tend  to 
suppress  the  mischief  and  protect  society.     •     •     • 

"Is  there  not  sufficient  difference  between  the  condition  and  opportunity  of 
a  pauper  in  his  own  county,  and  the  same  character  abroad,  and  between 
the  situation  of  the  people  of  the  county  whore  the  pauper  resides  and  those 
of  tlistant  neighborhoods,  to  warrant  a  legal  distinction?  In  the  county  of  hi-* 
residence  the  pauper,  when  in  ne  ■  and  unable  t.>  sup- 

ply his  own  physical  needs, — and  he  is  often  in  the  ie  legal 

right  to  call  upon  the  poor  authorities  for  support,  and  those  authori: 
the  right  and  the  power  to  use  the  proper  public  funds  for  that  purpt 
dinarily  such  persons  become  quite  well  known,  and  the  p< 
be  terrified  by  them  and  induced  through  fear  to  yield  to  their  d 
where  they  are  strangers;    and  the  paupers  themselves  are  much  less  likely 
to  become" ruffians  when  at  home  ami  comparatively  isolated  than  when  they 
have  burned  their  bridges,  so  to  speak,  and  started  on  a  tramp  in  pastures 
new.  and  joined  their  fortunes   with   others  of  like  Ilk.      In  short,   tl 
makes   a   different  character  of  the  same  person.     And   why   may   i 
•when  thus  grouped,  be  regarded  as  a 


'■'•id  FUNDAMENTAL    RIGHTS  (Part    2 

COTTING  v.  KANSAS  CITY  STOCK  YARDS  CO.  (1901)  183 
U.  S.  79,  103-105,  22  Sup.  Ct.  30,  46  L.  Ed.  92  (holding  invalid  a 
Kansas  statute  regulating  the  rates  of  stock  yards  within  the  state 
doing  more  than  a  certain  volume  of  business,  an  amount  actually  ex- 
ceeded only  by  the  yards  at  Kansas  City),  Mr.  Justice  Brewer: 

"It  appears  that  a  classification  is  attempted  between  stock  yards 
doing  a  large  and  those  doing  a  small  business.  The  express  and  only 
basis  of  classification  is  in  the  amount  of  business  done  by  the  two 
classes.  As  evidence  that  we  are  right  in  our  construction,  we  mav 
refer  to  the  brief  of  the  learned  attorney  general,  in  which  he  says : 
'The  legislature  has  by  this  act  classified  the  stock  yards  of  the  state 
into  two  classes,  and  has  adopted  the  most  natural  and  reasonable  basis 
for  such  purposes  that  could  be  used,  namely,  the  volume  of  business 
done.  The  reason  for  this  is  obvious;  the  stock  yards  doing  a  large 
volume  of  business  are  necessarily  more  of  monopolies  than  those  doing 
a  smaller  business.  The  public  has  greater  interest  in  the  business  of 
large  stock  yards  than  it  has  in  the  business  of  smaller  ones.  *  *  * 
Another  reason  why  the  classification  should  be  based  upon  the  volume 
of  business  done  is  that  rates  which  are  reasonable  and  proper  and 
furnish  a  sufficient  return  upon  the  capital  invested  can  very  properly 
be  made  lower  and  different  in  a  plant  where  the  volume  of  business 
is  large,  while  in  a  smaller  plant  doing  a  smaller  volume  of  business 
higher  rates  may  be  necessary  in  order  to  afford  adequate  returns.' 

"If  the  average  daily  receipts  of  a  stock  yard  are  more  than  100 
head  of  cattle,  or  more  than  300  head  of  hogs,  or  more  than  300  head 
of  sheep,  it  comes  within  the  purview  of  this  statute.  If  less  than 
that  amount  it  is  free  from  legislative  restriction.  No  matter  what 
yards  it  may  touch  to-day  or  in  the  near  or  far  future,  the  express  dec- 
laration of  the  statute  is  that  stock  yards  doing  a  business  in  excess 
of  a  certain  amount  of  stock  shall  be  subjected  to  this  regulation,  and 
that  all  others  doing  less  business  shall  be  free  from  its  provisions. 
Clearly  the  classification  is  based  solely  on  the  amount  of  business 
done,  and  without  any  reference  to  the  character  or  value  of  the  serv- 
ices rendered.  Kindred  legislation  would  be  found  in  a  statute  like 
this:  requiring  a  railroad  company  hauling  ten  tons  or  over  of  freight 
a  day  to  charge  only  a  certain  sum  per  ton,  leaving  to  other  railroad 
companies  hauling  a  less  amount  of  freight  the  right  to  make  any  rea- 
sonable charge;  or,  one  requiring  a  railroad  company  hauling  100  or 
more  passengers  a  day  to  charge  only  a  specified  amount  per  mile  for 
each,  leaving  those  hauling  99  or  less  to  make  any  charge  which  would 
be  reasonable  for  the  service ;  or  if  we  may  indulge  in  the  supposition 
that  the  legislature  has  a  right  to  interfere  with  the  freedom  of  private 
contracts,  one  which  would  forbid  a  dealer  in  shoes  and  selling  more 
than  ten  pairs  a  day  from  charging  more  than  a  certain  price  per 
pair,  leaving  the  others  selling  a  less  number  to  charge  that  which  they 
deemed    reasonable;    or    forbidding   farmers   selling    more    than    ten 


Ch.  10)  DDE    PBOCEM   AND   EQUALITY:     POLICE   POWEB  "IT 

bushels  of  wheat  to  charge  above  a  specified  sum  per  bushel,  leaving 
to  those  selling  a  less  amount  the  privilege  of  charging  and  collecting 
whatever  they  and  the  buyers  may  see  fit  to  agree  upon.  In  short,  we 
come  back  to  the  thought  that  the  classification  is  one  not  based  upon 
the  character  or  value  of  the  services  rendered,  but  simply  on  the 
amount  of  the  business  which  the  party  does,  and  upon  the  theory 
that  although  he  makes  a  charge  which  everybody  else  in  the  same 
business  makes,  and  which  is  perfectly  reasonable  so  far  as  the  value 
of  the  services  rendered  to  the  individuals  seeking  them  is  concerned, 
yet  if  by  the  aggregation  of  .business  he  is  enabled  to  make  large 
profits  his  charges  may  be  cut  down. 

"The  question  thus  presented  is  of  profoundest  significance.  Is  it 
true  in  this  country  that  one  who  by  his  attention  to  business,  by  his 
efforts  to  satisfy  customers,  by  his  sagacity  in  discerning  the  probable 
courses  of  trade,  and  by  contributing  of  his  means  to  bring  trade  into 
those  lines,  succeeds  in  building  up  a  large  and  profitable  business, 
becomes  thereby  a  legitimate  object  of  the  legislative  scalping  knife? 
Having  created  the  facilities  which  the  many  enjoy,  can  the  many 
turn  around  and  say,  you  are  making  too  much  out  of  those  facilities, 
and  you  must  divide  with  us  your  profits  ?  We  cannot  shut  our  eyes  to 
well-known  facts.  Kansas  is  an  agricultural  state.  Its  extensive  and 
fertile  prairies  produce  each  year  enormous  crops  of  corn  and  other 
grains.  While  portions  of  these  crops  are  shipped  to  mills  to  be  man- 
ufactured into  meal  and  flour,  it  is  found  by  many  that  there  is  a 
profit  in  feeding  them  to  stock,  so  that  the  amount  of  stock  which  is 
raised  and  fattened  in  Kansas  is  large,  and  makes  one  of  the  great  in- 
dustries of  the  state.  Now,  shall  they  whose  interests  arc  all  along 
the  line  of  production,  having  by  virtue  of  their  numerical  majority  the 
control  of  legislation,  be  permitted  to  say  to  one  who  acts  as  an  inter- 
mediary between  transportation  and  sale,  that  while  we  permit  no  in- 
terference with  the  prices  which  we  put  upon  our  products,  neverthe- 
less we  cut  down  your  charges  for  intermediate  services;  and  this, 
not  because  any  particular  charge  is  unreasonable,  but  because  you  are 
making  by  the  aggregate  of  those  charges  too  large  a  sum,  and  ought 
therefore  to  divide  with  us.    *    *    * 

"It  has  been  more  than  once  said  judicially  that  one  of  the  principles 
upon  which  this  government  was  founded  is  that  of  equality  of  right. 
It  is  emphasized  in  that  clause  of  the  fourteenth  amendment  which 
prohibits  any  state  to  deny  to  any  individual  the  equal  protection  of  the 
laws.  That  constitutional  provision  does  not,  it  is  true,  invalidate  leg- 
islation on  the  mere  ground  of  inequality  in  actual  result.  Tax  laws, 
for  instance,  in  their  nature  are  and  must  be  general  in  scope,  and  it 
may  often  happen  that  in  their  practical  application  they  touch  one 
person  unequally  from  another.  But  that  inequality  is  something 
which  it  is  impossible  to  foresee  and  guard  against,  and  therefore  such 
resultant  inequality  in  the  operation  of  a  law  does  not  defeat  its  vali- 
dity.   *    *    * 


348  FUNDAMENTAL    RIGIITS  (Part    2 

"So,  again,  exercising  the  undoubted  right  of  classification  it  may 
often  happen  that  some  classes  are  subjected  to  regulations,  and  some 
individuals  are  burdened  with  obligations  which  do  not  rest  upon  other 
classes  or  other  individuals  not  similarly  situated.  License  taxes  are 
imposed  on  certain  classes  of  business  while  others  are  exempt.  It 
would  practically  defeat  legislation  if  it  was  laid  down  as  a  rule  that  a 
statute  was  necessarily  adjudged  invalid  if  it  did  not  bring  all  within 
its  scope,  or  subject  all  to  the  same  burdens.  It  would  strip  the  legis- 
lature of  its  inherent  power  to  determine  generally  what  is  for  the 
general  interests,  which  interests  may.  of  ten  be  promoted  by  certain 
regulations  affecting  one  class  which  do  not  affect  another,  certain 
burdens  imposed  on  one  which  do  not  rest  upon  another. 

"But  while  recognizing  to  the  full  extent  the  impossibility  of  an  im- 
position of  duties  and  obligatons  mathematically  equal  upon  all,  and 
also  recognizing  the  right  of  classification  of  industries  and  occupa- 
tions, we  must  nevertheless  always  remember  that  the  equal  protection 
of  the  laws  is  guaranteed,  and  that  such  equal  protection  is  denied 
when  upon  one  of  two  parties  engaged  in  the  same  kind  of  business  and 
under  the  same  conditions  burdens  are  cast  which  are  not  cast  upon 
the  other.  There  can  be  no  pretense  that  a  stock  yard  which  receives 
99  head  of  cattle  per  day  a  year  is  not  doing  precisely  the  same  busi- 
ness as  one  receiving  101  head  of  cattle  per  day  each  year.  It  is  the 
same  business  in  all  its  essential  elements,  and  the  only  difference  is 
that  one  does  more  business  than  the  other.  But  the  receipt  of  an 
extra  2  head  of  cattle  per  day  does  not  change  the  character  of  the 
business.  If  once  the  door  is  opened  to  the  affirmance  of  the  proposi- 
tion that  a  state  may  regulate  one  who  does  much  business,  while  not 
regulating  another  who  does  the  same  but  less  business,  then  all  sig- 
nificance in  the  guaranty  of  the  equal  protection  of  the  laws  is  lost, 
and  the  door  is  opened  to  that  inequality  of  legislation  which  Mr.  Jus- 
tice Catron  referred  to  in  the  quotation  above  made.  This  statute  is 
not  simply  legislation  which  in  its  indirect  results  affects  different  in- 
dividuals or  corporations  differently,  nor  with  those  in  which  a  classi- 
fication is  based  upon  inherent  differences  in  the  character  of  the  busi- 
ness, but  is  a  positive  and  direct  discrimination  between  persons  en- 
gaged in  the  same  class  of  business,  and  based  simply  upon  the  quanti- 
ty of  business  which  each  may  do.  If  such  legislation  does  not  deny 
the  equal  protection  of  the  laws,  we  are  unable  to  perceive  what  legisla- 
tion would.1    *    *    * " 

i  In  St.  Louis  Consolidated  Coal  Co.  v.  Illinois,  1S5  U.  S.  203,  207-20S,  22 
Sup.  Ct.  616,  618,  46  L.  Ed.  872  (1902),  a  coal  mine  inspection  law  was  upheld; 
Brown,  J.,  saying:  "It  is  true  that  the  act  of  1897  amended  the  former  law 
of  1895,  by  limiting  its  application  to  coal  mines  'where  more  than  five  men 
are  employed  at  any  one  time.'  This  is  a  species  of  classification  which  the 
legislature  is  at  liberty  to  adopt,  provided  it  be  not  wholly  arbitrary  or  un- 
reasonable, as  it  was  in  Cotting  v.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  79, 
sub  nom.  Cotting  v.  Godard,  22  Sup.  Ct  30,  46  L.  Ed.  92,  in  which  an  act 
defining  what  should  constitute  public  stock  yards,  and  regulating  all  charges 
connected  therewith,  was  held  to  be  unconstitutional,  because  it  applied  only 


Ch.  10)  DUE  PROCESS  AND   EQUALITY:     POLICE  POWEH  349 


CONNOLLY  v.  UNION  SEWER  PIPE  CO. 

(Supreme  Court  of  United  States,   1902.     184  U.  S.  010,  22  Sup.  Ct  431,  46 
L.  Ed.  679.) 

[Error  to  the  United  States  Circuit  Court  for  the  Northern  Dis- 
trict of  Illinois.  Plaintiff,  an  Ohio  corporation  doing  business  in  Il- 
linois, sued  Connolly  in  this  court  upon  two  notes  given  in  purchase 

to  one  particular  company,  and  not  to  other  companies  or  corporate 
gaged  in  a  like  business  in  Kansas,  and  thereby  denied  to  that  company  the 
equal  protection  of  the  laws.  In  the  case  under  consideration  there  is  no 
attempt  arbitrarily  to  select  one  mine  for  inspection,  but  only  to  assume  that 
mines  which  are  worked  upon  so  small  a  scale  as  to  require  only  five  op- 
eratives would  not  be  likely  to  need  the  careful  inspection  provided  for  the 
larger  mines,  where  the  workings  were  carried  on  upon  a  larger  scale  or  at 
a  greater  depth  from  the  surface,  and  where  a  much  larger  force  would  be 
necessary  for  their  successful  operation.  It  is  quite  evident  that  a  mine 
which  is  operated  by  only  five  men  could  scarcely  have  passed  the  experi- 
mental stage,  or  that  precautions  necessary  in  the  operation  of  coal  mines 
of  ordinary  magnitude  would  be  required  in  sueh  cases.  There  was  clearly 
reasonable  foundation  for  a  discrimination  here." 

So,  McLean  v.  Arkansas,  211  U.  S.  530,  29  Sup.  Ct.  206,  53  L.  Ed.  315  (1909) 
(mines  employing  at  least  10  men  required  to  pay  miners  on  basis  of  weight  of 
coal  dug  before  screening). 

In  Borgnis  v.  Falk  Co.,  147  Wis.  327,  355-356,  133  N.  W.  200.  21ST.  37  L.  R. 
A.  (N.  S.)  4S9  (1911),  a  workmen's  compensation  act  restricted  to  employers  of 
more  than  three  men  was  upheld:  YVinslow.  C.  J.,  savins:  "Of  course,  there 
will  be  cases  on  the  border  line,  where  the  difference  in  situation  Avill  be  very 
slight,  or  perhaps  entirely  nonexistent.  There  will  probably  be  no  practical 
difference  between  the  situation  of  the  man  who  Is  one  ol  tour  or  B 
ployOs  in  a  given  employment  and  the  situation  of  the  man  who  is  one  of 
three;  but  this  docs  not  militate  against  the  legitimacy  of  the  classification. 
This  is  a  necessary  defect  in  all  cases  of  classification  based  upon  Ot 
The  question  is  not  whether  there  may  be  6ome  on  one  side  ot  the  line  who* 
situation  is  practically  the  same  as  that  of  some  on  the  other  side  but  whether 
there  'is  a  distinction  between  the  classes  as  classes,  whether  there  are  char- 
acteristics which,  in  a  greater  degree,  persist  through  the  one  class  than  In  the 
other  which  justify  legal  discrimination  between  them.'  State  v.  Evans.  130 
Wis.  381,  110  N.  W.  241." 

A  classification  of  cities  according  to  population  is  ordinarily  valid.  Mason 
v.  Missouri  ex  rel.  McCaffery.  179  V.  S.  328,  21  Sup.  Ct  125,  46  h.  Ed.  21  l 
(1900).  But  see  Sutton  v.  State,  96  Tenn.  696,  36  S.  W.  697,  33  L.  I!.  A  S89 
(1896)  (classification  bad  if  inflexibly  based  on  population  at  a  past 
Under  the  doctrine  of  Missouri  v.  Lewis,  ante,  p.  320.  such  objections  musl 
ordinarily  be  based  upon  local  constitutional  restrictions  upon  special  and 
local  legislation.  As  to  this,  see  Gray  v.  Taylor,  227  D.  S.  51,  33  Sup.  Ct  199, 
57  L.  Ed.  —  (1913).  As  to  the  classification  of  cities  by  various  minute  lo<  al 
details,  see  Mattel'  of  llcnnel  erger,  25  App.  Div.  164,  19  X.  V.  Supp.  230 
(1898),  affd.  in  155  N.  Y.  420,  50  N.  E.  61,  42  L.  R.  A.  132;  Sutton  v.  State. 
above  even  when  details  concern  population). 

Railroads  under  r,0  miles  in  length  may  be  excepted  from  various 
requirements.     New  York,  N.  II.  &  II.  K.  R.  Co.  v.   New   York.   165  1.   S.  62J 
17    Sup.    Ct    448,   41    L.   Ed.   S03    (1897)    (forbidding   beating   cars   In,    - 
Chicago,  R-   I.  &  P.  H.  Co.  v.  Arkansas,  219  U.  S.   153,  31   Sup,  Ct  273 
Ed.  290  (1911)  (number  of  brakemen  on  freight  trains).     Individuals  or  part- 
nerships may  be  forbidden  to  receive  money  for  deposit  without  a  state  license. 
unless  the  average  amount  received   for  deposit  is  at  least  $500.     1 
O'Malley,  219  U.  S.  128,  31  Sup.  Ct.  190,  55  L.   Ed.   12S  (1911).     See  King  v. 
MulHns,  171  U.  S.   W4,  18  Sup.  C(    926    13  L.  Ed.  214  (1898)  (forfeiting  ( 
over  1,000  acres  for  non-payment  of  taxes). 


350  FUNDAMENTAL    RIGHTS  (Part    2 

of  sewer  pipe  from  plaintiff.  One  of  the  defences  alleged  that  plain- 
tiff was  a  member  of  a  trust  prohibited  by  the  Illinois  statute  of  June 
20,  1893,  section  10  of  which  disabled  such  members  from  collecting 
the  purchase  price  of  goods  sold  by  them.  This  statute  forbade  any 
persons  or  corporations  to  combine  for  the  restriction  of  competition 
in  commodities  as  set  forth  in  the  opinion  below,  but  section  9  ex- 
cepted from  its  operation  agricultural  products  or  live  stock  in  the 
hands  of  producer  or  raiser.  The  Circuit  Court  held  this  statute  in- 
valid, and  defendant  took  this  writ  of  error.] 

Mr.  Justice  Harlan.  *  *  *  The  vital  question,  however,  is 
whether  the  statute  of  Illinois  of  1893  is  not  inconsistent  with  the 
Constitution  of  the  United  States,  by  reason  of  the  fact  that  by  the 
ninth  section  it  declares  that  "the  provisions  of  this  act  shall  not  ap- 
ply to  agricultural  products  or  live  stock  while  in  the  hands  of  pro- 
ducer or  raiser."  The  Circuit  Court  held  this  section  to  be  repugnant 
to  the  fourteenth  amendment  of  the  Constitution  of  the  United  States, 
and  to  be  so  connected  and  interwoven  with  other  sections  that  its 
invalidity  affected  the  entire  act. 

Looking  specially  at  its  provisions,  it  will  be  seen  that,  so  far  as 
the  statute  is  concerned,  two  or  more  agriculturalists  or  two  or  more 
live-stock  raisers  may,  in  respect  of  their  products  or  live  stock  in 
hand,  combine  their  capital,  skill,  or  acts  for  the  purpose  of  creating 
or  carrying  out  restrictions  in  the  sale  of  such  products  or  live  stock ; 
or  limiting,  increasing,  or  reducing  their  price;  or  preventing  com- 
petition in  their  sale  or  purchase;  or  fixing  a  standard  or  figure 
whereby  the  price  thereof  to  the  public  may  be  controlled ;  or  mak- 
ing contracts  whereby  they  would  become  bound  not  to  sell  or  dis- 
pose of  such  agricultural  products  or  live  stock  below  a  common 
standard  figure  or  card  or  list  price ;  or  establishing  the  price  of  such 
products  or  stock  in  hand,  so  as  to  preclude  free  and  unrestricted 
competition  among  themselves  or  others ;  or  by  agreeing  to  pool, 
combine,  or  unite  any  interest  they  may  have  in  connection  with  the 
sale  or  transportation  of  their  products  or  live  stock  that  the  price 
might  be  affected.  All  this,  so  far  as  the  statute  is  concerned,  may 
be  done  by  agriculturalists  or  live-stock  raisers  in  Illinois  without 
subjecting  them  to  the  fine  imposed  by  the  statute.  But  exactly  the 
same  things,  if  done  by  two  or  more  persons,  firms,  corporations,  or 
associations  of  persons  who  shall  have  combined  their  capital,  skill, 
or  acts,  in  respect  of  their  property,  merchandise,  or  commodities  held 
for  sale  or  exchange,  is  made  by  the  statute  a  public  offense,  and 
every  principal,  manager,  director,  agent,  servant,  or  employee  know- 
ingly carrying  out  the  purposes,  stipulations,  and  orders  of  such  com- 
bination is  punishable  by  a  fine  of  not  less  than  $2,000  nor  more  than 
$5,000.  Is  not  this  such  discrimination  against  those  engaged  in 
business  (other  than  the  sale  of  agricultural  products  and  live  stock 
in  the  hands  of  producers  and  raisers)  as  is  forbidden  by  that  clause 


Ch.  10)  DUE   PROCESS   AND   EQUALITY:     POLICE    POWEB  "."1 

of   the   fourteenth   amendment   which   declares   that  "no  state   shall 

*  *  *  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws?"     *     *     * 

What  may  be  regarded  as  a  denial  of  the  equal  protection  of  the 
laws  is  a  question  not  always  easily  determined,  as  the  decisions  of 
this  court  and  of  the  highest  courts  of  the  states  will  show.  It  is 
sometimes  difficult  to  show  that  a  state  enactment,  having  its  source 
in  a  power  not  controverted,  infringes  rights  protected  by  the  na- 
tional Constitution.  No  rule  can  be  formulated  that  will  cover  every 
case.  But  upon  this  general  question  we  have  said  that  the  guaranty 
of  the  equal  protection  of  the  laws  means  "that  no  person  or  class  of 
persons  shall  be  denied  the  same  protection  of  the  laws  which  is 
enjoyed  by  other  persons  or  other  classes  in  the  same  place  and  in 
like  circumstances."  Missouri  v.  Lewis,  101  U.  S.  22,  31,  25  L.  Ed. 
989.  *  *  *  [Here  follow  a  quotation  from  Barbier  v.  Connolly. 
113  U.  S.  27,  31,  5  Sup.  Ct.  357,  28  L.  Ed.  923,  ante,  page  332 
references  to  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  369,  6  Sup.  Ct.  1064, 
30  L.  Ed.  220,  post,  page  383,  Hayes  v.  Missouri,  120  U.  S.  68,  71, 
7  Sup.  Ct.  350,  30  L.  Ed.  578,  and  Duncan  v.  Missouri,  152  U.  S.  377, 
382,  14  Sup.  Ct.  570,  38  L.  Ed.  485.] 

These  principles,  applied  to  the  case  before  us,  condemn  the  statute 
of  Illinois.  We  have  seen  that  under  that  statute  all  except  producers 
of  agricultural  commodities  and  raisers  of  live  stock,  who  combine 
their  capital,  skill,  or  acts  for  any  of  the  purposes  named  in  the  act. 
may  be  punished  as  criminals,  while  agriculturalists  and  live-stock 
raisers,  in  respect  of  their  products  or  live  stock  in  hand,  are  ex- 
empted from  the  operation  of  the  statute,  and  may  combine  and  do 
that  which,  if  done  by  others,  would  be  a  crime  against  the  state.  The 
statute  so  provides  notwithstanding  persons  engaged  in  trade  or  in 
the  sale  of  merchandise  and  commodities,  within  the  limits  of  a  state, 
and  agriculturalists  and  raisers  of  live  stock,  are  all  in  the  same  gen- 
eral class,  that  is,  they  are  all  alike  engaged  in  domestic  trade,  which 
is,  of  right  open  to  all,  subject  to  such  regulations,  applicable  alike  to 
all  in  like  conditions,  as  the  state  may  legally  prescribe. 

The  difficulty  is  not  met  by  saying  that,  generally  speaking,  the 
state  when  enacting  laws  may,  in  its  discretion,  make  a  classification 
of  persons,  firms,  corporations,  and  associations,  in  order  to  subserve 
public  objects.  For  this  court  has  held  that  classification  "must  al- 
ways rest  upon  some  difference  which  bears  a  reasonable  and  just 
relation  to  the  act  in  respect  to  which  the  classification  is  proposed, 
and  can   never  be   made   arbitrarily    and   without   any   such   basis." 

*  *  *  [Here  follows  a  further  quotation  from  Gulf,  etc.,  Ry.  v. 
Ellis,  ante,  p.  334,  and  references  to  Cotting  v.  K.  C.  Stock  Yard- 
Co.,  ante,  p   346,  and  to  Magoun  v.  111.  T.  &  S.  Bank,  post,  p 

In  American  Sugar  Ref.  Co.  v.  Louisiana  [179  U.  S.  89.  21 
Ct.  43,  45  L.  Ed.  102 1  we  held  that  a  statute  of  Louisiana  exempting 
from  its  operation  planters  and   farmers  grinding  and  refining 


352  FUNDAMENTAL    RIGHTS  (Part    2 

own  sugar  and  molasses,  but  which  imposed  a  license  tax  upon  per- 
sons and  corporations  carrying  on  the  business  of  refining  sugar  and 
molasses,  did  not  deny  the  equal  protection  of  the  laws  to  such  per- 
sons and  corporations  as  were  thus  taxed.  It  was  as  if  the  statute 
had  imposed  a  tax  upon  the  business  of  refining  sugar  and  molasses, 
and  had  declared,  as  reasonably  it  might  have  done,  that  those  who 
only  refined  their  own  sugar  and  molasses  should  not  be  regarded  as 
belonging  to  that  class.     *     *     * 

The  decision  now  rendered  is  not  at  all  in  conflict  with  the  views 
expressed  in  the  two  cases  just  cited.  It  is  sufficient  to  say  that  those 
cases  had  reference  to  the  taxing  power  of  the  state,  and  involved  - 
considerations  that  could  not,  in  the  nature  of  things,  apply  to  a  state 
enactment  like  the  one  involved  in  the  present  case.  The  power  to 
tax  persons  and  property  is  an  incident,  of  sovereignty,  and  the  ex- 
tent to  which  it  may  be  exerted  has  been  indicated  in  numerous  cases. 
Taxing  laws,  it  has  been  well  said,  furnish  the  measure  of  every 
man's  duty  in  support  of  the  public  burdens  and  the  means  of  en- 
forcing it.  A  tax  may  be  imposed  only  upon  certain  callings  and 
trades,  for  when  the  state  exerts  its  power  to  tax,  it  is  not  bound  to 
tax  all  pursuits  or  all  property  that  may  be  legitimately  taxed  for 
governmental  purposes.  It  would  be  an  intolerable  burden  if  a  state 
could  not  tax  any  property  or  calling  unless,  at  the  same  time,  it 
taxed  all  property  or  all  callings.  Its  discretion  in  such  matters  is 
very  great,  and  should  be  exercised  solely  with  reference  to  the  gen- 
eral welfare  as  involved  in  the  necessity -of  taxation  for  the  support 
of  the  state.  A  state  may,  in  its  wisdom,  classify  property  for  pur- 
poses of  taxation,  and  the  exercise  of  its  discretion  is  not  to  be  ques- 
tioned in  a  court  of  the  United  States,  so  long  as  the  classification 
does  not  invade  rights  secured  by  the  Constitution  of  the  United 
States.  But  different  considerations  control  when  the  state,  by  legis- 
lation, seeks  to  regulate  the  enjoyment  of  rights  and  the  pursuit  of 
callings  connected  with  domestic  trade.  In  prescribing  regulations 
for  the  conduct  of  trade,  it  cannot  divide  those  engaged  in  trade  into 
classes  and  make  criminals  of  one  class  if  they  do  certain  forbidden 
things,  while  allowing  another  and  favored  class  engaged  in  the  same 
domestic  trade  to  do  the  same  things  with  impunity.  It  is  one  thing 
to  exert  the  power  of  taxation  so  as  to  meet  the  expenses  of  gov- 
ernment, and  at  the  same  time,  indirectly,  to  build  up  or  protect 
particular  interests  or  industries.  It  is  quite  a  different  thing  for 
the  state,  under  its  general  police  power,  to  enter  the  domain  of  trade 
or  commerce,  and  discriminate  against  some  by  declaring  that  par- 
ticular classes  within  its  jurisdiction  shall  be  exempt  from  the  opera- 
tion of  a  general  statute  making  it  criminal  to  do  certain  things  con- 
nected with  domestic  trade  or  commerce.  Such  a  statute  is  not  a 
legitimate  exertion  of  the  power  of  classification,  rests  upon  no  rea- 
sonable basis,  is  purely  arbitrary,  and  plainly  denies  the  equal  pro- 
tection of  the  laws  to  those  against  whom  it  discriminates.     *     *     * 


Ch.  10)  DUE    PROCESS   AND   EQUALITY:     POLICE    i 

Returning  to  the  particular  case  before  us,  and  repeating  or  sum- 
marizing some  thoughts  already  expressed,  it  may  be  observed  that  if 
combinations  of  capital,  skill,  or  acts,  in  respect  of  the  sale  or  pur- 
chase of  goods,  merchandise,  or  commodities,  whereby  such  combi- 
nations may,  for  their  benefit  exclusively,  control  or  establish  prices, 
are  hurtful  to  the  public  interests  and  should  be  suppressed,  it  is  im- 
possible to  perceive  why  like  combinations  in  respect  of  agricultural 
products  and  live  stock  are  not  also  hurtful.  Two  or  more  engaged 
in  selling  dry  goods,  or  groceries,  or  meats,  or  fuel,  or  clothing,  or 
medicines,  are  under  the  statute,  criminals,  and  subject  to  a  fine,  if 
they  combine  their  capital,  skill,  or  acts  for  the  purpose  of  establish- 
ing, controlling,  increasing,  or  reducing  prices,  or  of  preventing  free 
and  unrestrained  competition  amongst  themselves  or  others  in  the 
sale  of  their  goods  or  merchandise ;  but  their  neighbors,  who  hap- 
pen to  be  agriculturalists  and  live-stock  raisers,  may  make  combina- 
tions of  that  character  in  reference  to  their  grain  or  live  stock  with- 
out incurring  the  prescribed  penalty.  Under  what  rule  of  permissible 
classification  can  such  legislation  be  sustained  as  consistent  with  the 
equal  protection  of  the  laws?  It  cannot  be  said  that  the  exemption 
made  by  the  ninth  section  of  the  statute  was  of  slight  consequence,  as 
affecting  the  general  public  interested  in  domestic  trade  and  entitled 
to  be  protected  against  combinations  formed  to  control  prices  for 
their  own  benefit ;   for  it  cannot  be  disp  ricultural  products 

and  live  stock  in  Illinois  constitute  a  very  large  part  of  the  wealth 
and  property  of  that  state.     *     *     * 

We  therefore  hold  that  the  act  of  1893  is  repugnant  to  the  Con- 
stitution of  the  United  States,  unless  its  ninth  section  can  be  elimi- 
nated, leaving  the  rest  of  the  act  in  operation.     *     *     * 

[It  was  held  that  the  elimination  of  this  section  alone,  making  the 
act  apply  as  well  to  the  excepted  classes,  would  not  have  been  ac- 
cepted by  the  legislature,  and  so  the  whole  act  failed.] 

Judgment  affirmed. 

Mr.  Justice  McKexna,  dissenting.  *  *  *  It  seems  like  a  con- 
tradiction to  say  that  a  law  having  inequality  of  operation  may  yet 
give  equality  of  protection.  Viewed  rightly,  however,  the  contradic- 
tion disappears;  indeed,  need  not  even  be  expressed.  There  are  very 
few  exertions  of  government  which  can  be  made  applicable  to  all  per- 
sons as  such.  Government  is  not  a  simple  thing.  It  encounters  and 
must  deal  with  the  problems  which  come  from  persons  in  an  infinite 
variety  of  relations.  Classification  is  the  recognition  of  those  rela- 
tions, and  in  making  it  a  legislature  must  be  allowed  a  wide  latitude 
of  discretion  and  judgment.  This  has  been  decided  many  times 
against  contentions  based  on  a  variety  of  facts.  I  will  content  my- 
self by  citing  the  later  cases  and  commenting  upon  them  very  I 
The  cases  are  Magoun  v.  Illinois  Trust  &  Sav.  Bank.  170 
18  Sup.  Ct.  594.  42  L.  Ed.  1037;  Clark  v.  Kansas  City,  176  U.  S. 
Hail  Const.L. — -'i 


o54  FUNDAMENTAL    RIGHTS  (Part    2 

114,  20  Sup.  Ct.  284,  44  L.  Ed.  392;  Gundling  v.  Chicago,  177  U.  S. 
183,  20  Sup.  Ct.  633,  44  L.  Ed.  725;  Petit  v.  Minnesota.  177 
U.  S.  164,  20  Sup.  Ct.  666,  44  L.  Ed.  716;  Williams  v.  Fears,  179  U. 
S.  270,  21  Sup.  Ct.  128,  45  L.  Ed.  186;  American  Sugar  Ref.  Co. 
v.  Louisiana,  179  U.  S.  89,  21  Sup.  Ct.  43,  45  L.  Ed.  102. 

In  tnese  cases  and  the  cases  cited  in  them  classifications  were  sus- 
tained which  depended  upon  differences  in  the  amounts  of  legacies ; 
on  differences  between  corporations ;  on  differences  between  land 
dependent  on  its  use  for  agriculture  and  other  purposes  in  regard  to 
the  power  of  a  city  to  annex  it;  on  differences  between  fire  insur- 
ance and  other  insurance ;  on  the  right  of  a  legislature  to  declare,  as 
a  matter  of  law,  that  the  work  of  a  barber  was  not  a  work  of  neces- 
sity, while  as  to  all  other  kinds  of  labor  the  fact  was  to  be  determined 
by  a  jury ;  on  the  difference  between  hiring  persons  to  labor  in  the 
state  and  hiring  persons  to  labor  out  of  the  state ;  on  differences  be- 
tween sugar  refiners  based  entirely  and  only  on  the  fact  of  the  pro- 
duction or  purchase  of  the  sugar  refined. 

In  American  Sugar  Ref.  Co.  v.  Louisiana  a  license  tax  was  imposed 
on  those  engaged  in  carrying  on  the  business  of  refining  sugar  and 
molasses.  It  was  provided,  however,  that  the  law  should  not  apply 
to  "planters  and  farmers  grinding  and  refining  their  own  sugar." 

Wherein  did  the  Louisiana  statute,  which  was  held  constitutional, 
differ  from  the  Illinois  statute,  which  is  held  to  be  unconstitutional  ? 
In  the  former  case  the  distinction  (in  the  opinion  in  the  case  it  is 
called  "discrimination")  was  between  manufacturers  of  sugar  and 
growers  of  it.  In  the  case  at  bar  the  distinction  is  between  traders 
in  products  and  growers  of  them.  Is  not  a  parallel  obvious?  Can 
the  cases  be  distinguished  because  in  one  a  tax  was  imposed  and  in 
the  other  conduct  is  regulated  or  penalized?  Indeed,  is  not  the  dis- 
tinction verbal,  each  being  means  to  an  end?  Besides,  what  justifica- 
tion for  the  distinction  is  there  under  the  Constitution  ?  None,  I  sub- 
mit, can  be  found  in  the  words  of  that  instrument.  Any  state  legisla- 
tion which  denies  the  equal  protection  of  the  laws  is  prohibited.  The 
prohibition  is  independent  of  form  or  means.  It  would  he  strange, 
indeed,  if  the  power  of  a  state  is  limited  and  confined  by  the  Constitu- 
tion of  the  United  States,  when  the  state  attempts  by  law  to  regulate 
conduct,  and  is  unbounded  in  its  discretion  when  it  imposes  taxes ; 
that  in  one  case  it  may  see  a  difference  between  manufacturers  and 
planters,  and  in  the  other  case  may  not  see  a  difference  between  trad- 
ers in  commodities  acquired  for  the  purposes  of  sale  and  such  prop- 
erty when  held  by  farmers  by  whose  labor  they  were  produced. 
*  *  *  What  ingenuity  can  find  a  difference  in  the  act  and  process 
of  sugar  refining  wlien  done  by  a  purchaser  of  raw  sugar  and  a  raiser 
(planter)  of  it;  what  difference  in  the  product  after  it  shall  be  re- 
fined, or  in  any  element,  thing,  or  circumstance,  which  can  affect  its 
use  or  sale.  The  whole  and  only  distinction  in  the  classes  which  the 
statute  made  was  between  the  grower  of  sugar  and  the  buyer  of  it — 


Ch.  10)  nr-E  process  and  equality:    police  power  855 

the  exact  and  only  distinction  of  the  Illinois  law  now  held  to  be  void, 
and  yet  the  Louisiana  law  was  sustained  as  constitutional.     *     *     * 

What  was  the  purpose  of  the  Illinois  statute,  and  what  were  the 
relations  of  its  classes  to  that  purpose?  The  statute  was  the  expres- 
sion of  the  purpose  of  the  state  to  suppress  combinations  to  control 
the  prices  of  commodities,  not,  however,  in  the  hands  of  the  pro- 
ducers, but  in  the  hands  of  traders,  persons,  or  corporations.  Shall 
we  say  that  such  suppression  must  be  universal  or  not  at  all?  How 
can  we?  What  knowledge  have  we  of  the  condition  in  Illinois  which 
invoked  the  legislation,  or  in  what  form  and  extent  the  evil  of  com- 
binations to  control  prices  appeared  in  that  state?  Indeed,  whether 
such  combinations  are  evils  or  blessings,  or  to  what  extent  either,  is 
not  a  judicial  inquiry.  If  we  can  assume  them  to  be  evil  because  the 
statute  does  so,  can  we  go  beyond  the  statute  and  determine  for  our- 
selves the  local  conditions  and  condemn  the  legislation  dependent 
thereon?  But  are  there  not,  between  the  classes  which  the  statute 
makes,  distinctions  which  the  legislature  had  a  right  to  consider? 
Of  whom  are  the  classes  composed?  The  excluded  class  is  composed 
of  farmers  and  stockraisers  while  holding  the  products  or  live  stock 
produced  or  raised  by  them.  The  included  class  is  composed  of  mer- 
chants, traders,  manufacturers,  all  engaged  in  commercial  transac- 
tions. That  is,  one  class  is  composed  of  persons  who  are  scattered 
on  farms;  the  other  class  is  composed  of  persons  congregate i  in 
cities  and  towns,  not  only  of  natural  persons,  but  of  corporate  or- 
ganizations. In  the  difference  of  these  situations,  and  in  other  dif- 
ferences which  will  occur  to  any  reflection,  might  not  the  legislature 
see  difference  in  opportunities  and  power  between  the  classes  in  re- 
gard to  the  prohibited  acts?  That  differences  exist  cannot  be  denied. 
To  describe  and  contrast  them  might  be  invidious.  To  consider  their 
effect  would  take  us  from  legal  problems  to  economic  ones,  and  this 
demonstrates  to  my  mind  how  essentially  any  judgment  or  action 
based  upon  those  differences  is  legislative  and  cannot  be  reviewed 
by  the  judiciary.     *     *     * 

[Gray,  J.,  did  not  sit.]1 

»  Compare  Holmes,  J.,  in  Carroll  v.  Greenwich  Ins.  Co.,  100  V.  S.  401,  410, 
ill.  26  sup.  Ct  66,  67  (50  L.  Ed.  246)  (1905)  (upholding  an  Iowa  statute  for- 
bidding fire  insurance  companies  to  combine  in  regard  to  rates):  "At  the 
argument  before  us  more  special  reasons  were  assigned.  It  was  pressed  that 
there  is  no  justification  for  the  particular  selection  of  fire  Insurance  companies 
for  the  prohibitions  discussed.  With  regard  to  this  It  should  be  observed,  as 
is  noticed  by  the  appellees,  that  a  general  statute  of  Iowa  prolines  all  con- 
tracts or  combinations  to  tix  the  price  of  anj  article  at  merchandise  "r  com 
modity,  or  to  limit  the  quantity  of  the  same  produced  or  sold  in  the  state 
(Code  of  1S97  §  5060),  and  that  this  section  covers  fire  Insurance.  B 
v.  Mulville,  102  Iowa,  602,  70  X.  \V.  107,  71  X.  W.  128,  63  Am.  St  Rep.  IT'.i 
Therefore  the  act  in  question  docs  little  if  anything  more  than  apply  and 
work  out  the  policy  of  the  general  law  in  a  particular  case.  Again,  If  an 
evil  is  specially  experienced  In  a  parti  ul  ir  branch  of  business,  the  C 
tion  embodies  no  prohibition  of  laws  confined  to  the  evil,  or  doctrinaire  re- 
quirement that  they  should  be  coudied  In  all  embracing  terms.    It  does  not  for- 


356  FUNDAMENTAL   RIGHTS  (Part   2 

WILLIAMS  v.  ARKANSAS  (1910)  217  U.  S.  79,  89-90,  30  Sup. 
Ct.  493,  54  L.  Ed.  673,  18  Ann.  Cas.  865,  Mr.  Chief  Justice  Fuller 
(sustaining  an  Arkansas  statute  forbidding  soliciting  for  certain  kinds 
of  business  upon  trains  in  the  state) : 

"In  the  present  case,  the  supreme  court  of  Arkansas  (85  Ark.  470, 
108  S.  W.  838,  26  L.  R.  A.  [N.  S.]  482,  122  Am.  St.  Rep.  47),  said: 

"  'The  legislature  clearly  has  the  power  to  make  regulations  for 
the  convenience  and  comfort  of  travelers  on  railroads,  and  this  appears 
to  be  a  reasonable  regulation  for  their  benefit.  It  prevents  annoyance 
from  the  importunities  of  drummers.  It  is  suggested  in  argument  that 
the  statute  was  especially  aimed  at  the  protection  of  travelers  to  the 
city  of  Hot  Springs.  If  this  be  so,  we  can  readily  see  additional  rea- 
son why  the  regulation  is  a  wholesome  one.  A  large  percentage  of 
those  travelers  are  persons  from  distant  states,  who  are  mostly  com- 
plete strangers  here,  and  many  are  sick.  Drummers  who  swarm 
through  the  trains  soliciting  for  physicians,  bath  houses,  hotels,  etc., 
make  existence  a  burden  to  those  who  are  subjected  to  their  repeated 
solicitations.  It  is  true  that  the  traveler  may  turn  a  deaf  ear  to  these 
importunities,  but  this  does  not  render  it  any  the  less  unpleasant  and 

bid  the  cautious  advance,  step  by  step,  and  the  distrust  of  generalities  which 
sometimes  have  been  the  weakness,  but  often  the  strength,  of  English  legis- 
lation. Otis  v.  Parker,  187  TJ.  S.  GOG,  G10,  611,  23  Sup.  Ct.  168,  47  L.  Ed.  323; 
328.  And  if  this  is  true,  then,  in  view  of  the  possible  teachings  to  he  drawn 
from  a  practical  knowledge  of  the  business  concerned,  it  is  proper  that  courts 
should  be  very  cautious  in  condemning  what  legislatures  have  approved.  If 
the  legislature  of  the  state  of  Iowa  deems  it  desirable  artificially  to  present, 
so  far  as  it  can.  the  substitution  of  combination  for  competition,  this  court 
cannot  say  that  fire  insurance  may  not  present  so  conspicuous  an  example  of 
what  that  legislature  thinks  an  evil  as  to  justify  special  treatment." 

In  Cleland  v.  Anderson,  66  Neb.  252,  25S-262,  92  N.  W.  306,  9G  N.  W.  212. 
9S  N.  W.  1075,  5  L.  R.  A.  (N.  S.)  136  (1902),  it  was  held  that  the  prohibition  of 
combinations  between  persons  engaged  in  the  manufacture,  sale,  or  trans- 
portation of  goods  need  not  include  persons,  such  as  laborers  or  launderers, 
who  merely  bestowed  labor  or  skill  upon  goods.  In  W.  W.  Cargill  Co.  v. 
Minnesota  ex  rel.  Railroad  &  W.  Commission.  180  TJ.  S.  4"2.  21  Sup.  <'t.  IL'.;. 
45  L.  Ed.  619  (1901),  it  was  held  the  state  might  regulate  the  business  and 
rates  of  elevators  and  warehouses,  excluding  those  not  located  on  railway 
rights  of  way. 

See,  also,  German  Alliance  Ins.  Co.  v.  Hale,  219  U.  S.  307,  31  Sup.  Ct.  246, 
55  L.  Ed.  229  (1911):  Western  Union  Tel.  Co.  v.  Commercial  Mill.  Co..  218  U. 
S.  40G,  31  Sup.  Ct.  59,  54  L.  Ed.  10S8,  3G  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas. 
815  (1910)  (telegraph  companies  alone  forbidden  to  limit  liability  for  neg- 
ligence). In  Opinion  of  Justices,  211  Mass.  CIS,  98  N.  E.  337  (1912),  it  was 
denied  that  trades  unions  or  associations  of  employers  could  alone  be  ex- 
empted from  suit  for  tortious  acts  committed  on  their  behalf.  Compare  Stat. 
6  Edw.  VII  (1006)  c.  47. 

As  to  the  validity  of  classifications  requiring  wages  to  be  paid  at  certain 
intervals  in  certain  enumerated  employments,  see  Braceville  Coal  Co.  v. 
People,  147  111.  66,  35  N.  E.  62,  22  L.  R.  A.  340,  37  Am.  St.  Rep.  206  (1893) ; 
State  v.  Loomis,  115  Mo.  307,  22  S.  W.  350,  21  L.  R.  A.  7S9  (1S93)  (majority 
and  dissenting  opinions) ;  Opinion  of  Justices,  1G3  Mass.  589.  40  N.  E.  713, 
28  L.  R.  A  344  (1S95) ;  Lawrence  v.  Rutland  R.  Co.,  80  Vt.  370,  384-386,  67 
Atl.  1091,  13  Ann.  Cas.  47.".  (1907),  annotated  in  15  L.  R.  A.  (X.  S.)  350-352. 

A  ten-hour  law  for  working  women  may  be  confined  to  those  who  work  in 


Ch.  10)  due  rnocESS  and  equality:    police  poweb  C">7 

annoying.  The  drummer  may  keep  within  the  law  against  disorderly 
conduct,  and  still  render  himself  a  source  of  annoyance  to  travelers  by 
his  much  beseeching  to  be  allowed  to  lead  the  way  to  a  doctor  or  a 
hotel. 

"  'It  is  also  argued  that  the  act,  literally  construed,  would  prevent 
any  person  of  the  classes  named  from  carrying  on  a  private  conversa- 
tion on  a  train  concerning  his  business.  This  is  quite  an  extreme  con- 
struction to  place  upon  the  statute,  and  one  which  the  legislature  man- 
ifestly did  not  intend.  We  have  no  such  question,  however,  before  us 
on  the  facts  presented  in  the  record. 

"  'This  statute  is  not  an  unreasonable  restriction  upon  the  privilege 
one  should  enjoy  to  solicit  for  his  lawful  business,  which,  it  is  rightly 
urged,  is  an  incident  to  any  business.  It  does  not  prevent  anyone 
from  advertising  his  business,  or  from  soliciting  patronage,  except 
upon  trains,  etc.  This  privilege  is  denied  him  for  the  public  good. 
It  is  a  principle  which  underlies  every  reasonable  exercise  of  the  police 
power,  that  private  rights  must  yield  to  the  common  welfare.' 

"As  to  the  objection  that  the  act  discriminated  against  plaintiff  in 
error  and  denied  him  the  equal  protection  of  the  law,  because  forbid- 

meehanical  establishments,  factories,  and  laundries,  Ritchie  ft  Co.  v.  Way- 
man,  244  111.  509,  91  N.  E.  G95,  27  L.  K.  A.  IN.  S.)  901  (1910)  ;  or  a 
law  of  this  character  may  validly  except  women  employed  in  pn 
perishable  products  in  canning  establishments,  Withey  v.  Bloem,  163  Mi'-h. 
419,429-433,  128  N.  W.  913,  35  L.  It.  A.  i.\.  S.)  828  (1910).  As  to  exemptions 
from  the  general  operation  of  Sunday  laws,  see  Carr  v.  State,  175  Ind.  241, 
93  N.  E.  1071,  32  L.  R,  A.  (N.  S.)  1190  (1911)  (exemption  of  professional  ball 
players  valid). 

In  Josma  v.  Western  Stcd  Car  &  Foundry  Co.,  '.'lit  li!.  508,  M  N.  !■'■  B45 
(1911),  a  statute  imposed  criminal  and  civil  liability  (with  an  attorney  fee  for 
the  latter)  upon  persons  who  persuaded  workmen  to  change  from  one  place 
to  another  by  false  representations  concerning  certain  matters.  In  a 
civil  damages  by  a  workman  thus  misled,  (he  statute  was  held  invalid  for 
the  imposition  of  criminal  liability  and  an  attorney's  fee  for  this  kind  of 
deceit  only.     Dunn.  J.,  said  (249  111.  516,  94  N.   E.  917):    "The  class  to  whom 

i  applies  is  workmen  changing  from  one  place  to  another.    Thi 
sentations  aimed  at  are  those  which  concern  the  kind  and  character  Of  tin- 
work,   of   the   compensation,    the   sanitary    and   other   conditions   of   the  em- 
I  I  \  in  nt  and  the  existence  of  a  strike  or  other  labor  trouble. 
tions  or  some  of  them  are  as  important  to  the  stenographers  in  an  •>: 
clerks  in  a  store  or  a  bank,  the  teachers  in  a  school,  or  any  of  the  profes 
or  semiproli  ssional  people  who  are  employed  by  others,  as  to  the  workmen 
mentioned  in  the  act.     They  are  as  important  to  the  workman  who  does  not 
leave  his  home  for  employment  as  to  him  who  dees,     if  persona  entering  into 
contracts  of  employment  may  be  placed  Cerent  footing  from  persons 

entering  into  other  contracts  in  the  manner  provided  in  this  ant,  it  can  be  only 
by  an  act  sufficiently  comprehensive  to  Include  all  persons  subject  to  the  evil 
aimed  at — the  deception  of  employes  as  to  the  terms,  character,  and  conditions 
of  their  employment" 

So  Spokane  v.  Macho,  51  Wash.  322,  9S  Pac.  755,  21  I..  It.  A.  (N,  - 
130  Am.  St.  Rep.  1100  (1909),  where  a  city  ordinance  punishing  wilful  mis 
representations  by  keepers  of  employment  agencies  to  persons  seeking  em- 
ployment was  held  invalid  because  not  including  such  conduct  in  all  other 
businesses.  "The  crime  defined  is  not  common  to  the  business  of  employment 
agencies,  but  common  to  all,  and  to  be  sustained  must  include  within  its 
terms  all  who  may  be  likewise  guilty."    51  Wash 


358  FUNDAMENTAL    RIGHTS  (Part  2 

ding  the  drumming  or  soliciting  business  or  patronage  on  the  trains  for 
any  'hotel,  lodging  house,  eating  house,  bath  house,  physician,  masseur, 
surgeon,  or  other  medical  practitioner,'  which,  it  was  contended,  was 
an  unreasonable  classification,  the  state  supreme  court  said : 

"  'The  legislature,  in  framing  this  statute,  met  a  condition  which  ex- 
isted, and  not  an  imaginary  or  improbable  one.  The  class  of  drum- 
mers or  solicitors  mentioned  in  the  act  are  doubtless  the  only  ones  who 
ply  their  vocation  to  any  extent  on  railroad  trains.  It  is  rare  that  the 
commercial  drummer  finds  opportunity  to  meet  customers  and  solicit 
trade  on  trains,  therefore  the  lawmakers  deemed  it  unnecessary  to  leg- 
islate against  an  occasional  act  of  that  kind.'  " 1 

i  In  Otis  v.  Parker,  187  U.  S.  606.  610,  611,  23  Sup.  Ct.  168,  170,  47  L.  Ed. 
323  (1903),  a  California  statute  avoiding  all  contracts  for  the  sale  of  shares 
of  corporate  stock  on  margin  was  upheld,  Holmes,  J.,  saying:  "With  regard 
to  the  objection  that  this  provision  strikes  at  only  some,  not  all,  of  the  objects 
of  possible  speculation,  it  is  enough  to  say  that  probably  in  California  the 
evil  sought  to  be  stopped  was  confined  in  the  main  to  stocks  in  corporations. 
California  is  a  mining  state,  and  mines  offer  the  most  striking  temptations 
to  people  in  a  hurry  to  get  rich.  Mines  generally  are  represented  by  stocks. 
Stock  is  convenient  for  purposes  of  speculation,  because  of  the  ease  with 
which  it  is  transferred  from  hand  to  hand,  as  well  as  for  other  reasons.  If 
stopping  the  purchase  and  sale  of  stocks  on  margin  would  stop  the  gambling 
which  it  was  desired  to  prevent,  it  was  proper  for  the  people  of  California 
to  go  no  farther  in  what  they  forbade.  The  circumstances  disclose  a  reason- 
able ground  for  the  classification,  and  thus  distinguish  the  case  from  Con- 
nolly v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  22  Sup.  Ct  431,  46  L.  Ed. 
679.  We  ttinnot  say  that  treating  stocks  of  corporations  as  a  class  subject 
to  special  restrictions  was  unjust  discrimination  or  the  denial  of  the  equal 
protection  of  the  laws."     [Brewer  and  Peckham,  J  J.,  dissented.] 

In  Petit  v.  Minnesota,  177  U.  S.  164,  168,  20  Sup.  Ct.  666,  667,  44  L.  Ed.  716 
(1900),  Puller,  C.  J.,  said  (quoting  with  approval  from  the  opinion  of  the  state 
court  below):  "Courts  will  take  judicial  notice  of  the  fact  that,  In  view  of 
the  custom  to  keep  barber  shops  open  in  the  evening  as  well  as  in  the  day, 
the  employees  in  them  work  more,  and  during  later,  hours  than  those  engaged 
in  most  other  occupations,  and  that  this  is  especially  true  on  Saturday  after- 
noons and  evenings ;  also  that,  owing  to  the  habit  of  so  many  men  to  post- 
pone getting  shaved  until  Sunday,  if  such  shops  were  to  be  permitted  to  be 
kept  open  on  Sunday,  the  employees  would  ordinarily  be  deprived  of  rest  dur- 
ing half  of  that  day.  In  view  of  all  these  facts  we  cannot  say  that  the  legis- 
lature has  exceeded  the  limits  of  its  legislative  police  power  in  declaring  that, 
as  a  matter  of  law,  keeping  barber  shops  open  on  Sunday  is  not  a  work  of 
necessity  or  charity,  while  as  to  all  other  kinds  of  labor  they  have  left  that 
question  to  be  determined  as  one  of  fact" 

Compare  Eden  v.  People,  161  111.  296,  43  N.  E.  1108,  32  L.  R.  A.  659,  52  Am. 
St.  Rep.  365  (1S96)  (prohibition  of  Sunday  work  for  barbers  alone  invalid). 

In  Richmond,  F.  &  P.  R.  Co.  v.  Richmond,  96  U.  S.  521,  24  L.  Ed.  734  US78). 
a  city  ordinance  was  upheld  forbidding  a  single  named  railroad  from  using 
locomotives  on  part  of  a  certain  street,  no  other  railroad  having  or  being 
able  to  acquire  this  privilege  without  the  city's  consent 


Ch.  10)  DUE   PROCESS  AND   EQUALITY:     POLH'i;   POWBB  359 

MISSOURI,  K.  &  T.  R.  CO.  OF  TEXAS  v.  MAY. 

(Supreme  Court  of  United  States,  1904.     194  U.  S.  26T,  24  Sup.   Ot  638,  4t> 
L.  Ed.  971.) 

[Error  to  the  county  court  of  Bell  county,  Texas,  to  review  a  judg- 
ment against  defendant  railroad  company  under  the  statute  set  forth 
in  the  opinion  below.] 

Mr.  Justice  Holmes.  This  is  an  action  to  recover  a  penalty  of  $25, 
brought  by  the  owner  of  a  farm  contiguous  to  the  railroad  of  the 
plaintiff  in  error,  on  the  ground  that  the  latter  has  allowed  Johnson 
grass  to  mature  and  go  to  seed  upon  its  road.  The  penalty  is  given 
to  contiguous  owners  by  a  Texas  statute  of  1901  (chapter  117)  directed 
solely  against  railroad  companies  for  permitting  such  grass  or  Russian 
thistle  to  go  to  seed  upon  their  right  of  way,  subject,  however,  to  the 
condition  that  the  plaintiff  has  not  done  the  same  thing.  The  case  is 
brought  here  on  the  ground  that  the  statute  is  contrary  to  the  four- 
teenth amendment  of  the  Constitution  of  the  United  States. 

It  is  admitted  that  Johnson  grass  is  a  menace  to  crops,  that  it  is 
propagated  only  by  seed,  and  that  a  general  regulation  of  it  for  the 
protection  of  farming  would  be  valid.  It  is  admitted  also  that  legisla- 
tion may  be  directed  against  a  class  when  any  fair  ground  for  the  dis- 
crimination exists.  But  it  is  said  that  this  particular  subjection  of 
railroad  companies  to  a  liability  not  imposed  on  other  owners  of  land 
on  which  Johnson  grass  may  grow  is  so  arbitrary  as  to  amount  to  a 
denial  of  the  equal  protection  of  the  laws.  There  is  no  dispute  about 
general  principles.  The  question  is  whether  this  case  lies  on  one  side 
or  the  other  of  a  line  which  has  to  be  worked  out  between  cases  differ- 
ing only  in  degree. 

With  regard  to  the  manner  in  which  such  a  question  should  be  ap- 
proached, it  is  obvious  that  the  legislature  is  the  only  judge  of  the 
policy  of  a  proposed  discrimination.  The  principle  is  similar  to  that 
which  is  established  with  regard  to  a  decision  of  Congress  that  certain 
means  are  necessary  and  proper  to  carry  out  one  of  its  express  powers.. 
M'Culloch  v.  Maryland,  4  Wheat.  316,  4  L.  Ed.  579.  When  a  state 
legislature  has  declared  that,  in  its  opinion,  policy  requires  a  certain 
measure,  its  action  should  not  be  disturbed  by  the  courts  under  the 
fourteenth  amendment,  unless  they  can  see  clearly  that  there  is  no  fair 
reason  for  the  law  that  would  not  require  with  equal  force  its  exten- 
sion to  others  whom  it  leaves  untouched. 

Approaching  the  question  in  this  way  we  feel  unable  to  say  that  the 
law  before  us  may  not  have  been  justified  by  local  conditions.  It  would 
have  been  more  obviously  fair  to  extend  the  regulation  at  least  to 
highways.  But  it  may  have  been  found,  for  all  that  we  know,  that  the 
seed  of  Johnson  grass  is  dropped  from  the  cars  in  such  quantities  as  to 
cause  special  trouble.  It  may  be  that  the  neglected  strips  occupied  by 
railroads  afford   a  ground  where  noxious  weeds  especially  flourish, 


360  FUNDAMENTAL    RIGHTS  (Part  2 

and  that  whereas  self-interest  leads  the  owners  of  farms  to  keep  down 
pests,  the  railroad  companies  have  done  nothing  in  a  matter  which  con- 
cerns their  neighbors  only.  Other  reasons  may  be  imagined.  Great 
constitutional  provisions  must  be  administered  with  caution.  Some 
play  must  be  allowed  for  the  joints  of  the  machine,  and  it  must  be 
remembered  that  legislatures  are  ultimate  guardians  of  the  liberties  and 
welfare  of  the  people  in  quite  as  great  a  degree  as  the  courts. 

Judgment  affirmed.1 

[Brown,  J.,  gave  a  dissenting  opinion,  in  which  White  and  Mc- 
Kj'nna,  J  J.,  concurred.] 

i  The  disposing  of  liquor  in  a  pumic  saioon  may  be  treated  differently  from 
similar  acts  done  in  a  drug  store,  a  brewery,  a  private  dwelling,  or  a  dining 
car.  Ohio  ex  rel.  Lloyd  v.  Pollison,  194  U.  S.  445,  24  Sup.  Ct.  703,  48  L.  Ed. 
1062  0.904):  Reymann  Brewing  Co.  v.  Brister,  179  U.  S.  445,  21  Sup.  Ct.  201, 
45   L.   Ed.   269  (1900). 

A  license  from  a  board  of  medical  examiners  may  be  required  from  all 
medical  practitioners  except  those  who  have  practiced  at  least  four  years  in 
the  state,  resident  physicians  or  students  in  hospitals,  students  in  physician's 
offices,  midwives,  and  masseurs.  Watson  v.  Maryland,  218  U.  S.  173.  30  Sup. 
Ct.  644,  54  L.  Ed.  987  (1910).  Those  who  administer  free  treatment  may  also 
be  excepted.  Collins  v.  Texas,  223  U.  S.  288,  32  Sup.  Ct.  2S6,  56  L,  Ed.  439 
(1912). 

In  Chicago  Dock  Co.  v.  Fraley,  228  U.  S.  6S0,  6S6-6S7,  33  Sup.  Ct.  715,  716, 
717  (57  L.  Ed.  — -)  (1913),  in  upholding  an  Illinois  statute  requiring  the  pro- 
tection of  openings  used  for  hoisting  materials  in  buildings  in  course  of  con- 
struction, McKenna,  J.,  said:  "That  danger  is  the  test  may  be  conceded,  but 
there  may  be  degrees  of  it,  and  a  difference  in  degree  may  justify  classifica- 
tion. Mutual  Loan  Co.  v.  Martell,  222  U.  S.  225,  236,  32  Sup.  Ct  74,  56  L. 
Ed.  175,  180,  Ann.  Cas.  1913B,  529.  Who  is  to  judge  of  the  danger,  whether 
absolutely  considered  or  comparatively  considered?  Is  it  a  matter  of  belief 
or  proof?  If  of  belief,  we  should  be  very  reluctant  to  oppose  ours  to  that 
of  the  legislature  of  the  state,  informed,  no  doubt,  by  experience,  of  condi- 
tions, and  fortified  by  presumptions  of  legality,  and  confirmed,  besides,  by  the 
opinion  of  the  supreme  court  of  the  state.  Laurel  HOI  Cemetery  v.  San 
Francisco,  216  U.  S.  358,  365,  30  Sup.  Ct.  301,  54  L.  Ed.  515,  51S ;    Adams  v. 

Milwaukee,  228  U.  S.  572,  33  Sup.  Ct.  610,  57  L.  Ed. .     If  of  proof,  there  is 

none  in  the  record.  There  are  assertions  by  counsel,  and  considering  alone 
the  openings  necessary  for  hoisting  machinery  and  the  openings  for  stairs  and 
other  openings,  an  employee  or  materials  can  be  imagined  as  falling  through 
one  of  them  with  the  same  ease  as  he  or  the  materials  can  through  the  others. 
But  other  things  must  be  taken  into  account.  The  setting  of  the  openings 
must  be  considered,  the  varying  relations  of  the  employees  to  them,  and  other 
circumstances.  The  legislation  cannot  be  judged  by  abstract  or  theoretical 
comparisons.  It  must  be  presumed  that  it  was  induced  by  actual  experience, 
and  New  York,  it  is  said,  has  been  induced  by  a  like  experience  to  enact  like 
legislation.  If  it  be  granted  that  the  legislative  judgment  be  disputable  or 
crude,  it  is,  notwithstanding,  not  .subject  to  judicial  review.  We  have  said 
many  times  that  the  crudities  or  even  the  injustice  of  state  laws  are  not 
redressed  by  the  fourteenth  amendment.  The  law  may  not  be  the  best  that 
can  be  drawn,  nor  accurately  adapted  to  all  of  the  conditions  to  which  it  was 
addressed.  It  may  be  that  it  would  have  been  more  complete  if  it  had  gone 
farther  and  recognized  and  provided  against  the  danger  that  all  uninelosed 
openings  in  a  building  might  cause,  and  should  not  have  distinguished  be- 
tween hoists  inside  of  a  building  and  those  outside;  but  we  do  not  see  how 
plaintiff  in  error  is  concerned  with  the  omissions.  It  is  not  discriminated 
against.    All  in  its  situation  are  treated  alike." 

In  Rosenthal  v.  New  York,  226  U.  S.  260,  271,  33  Sup.  Ct.  27,  30,  57  L.  Ed. 

(1912),  a   similar  objection  to  a  New  York  statute,   requiring  all  junk 

dealers  who  bought  various  metal  articles  used  by  railroad,  telephone,  tele- 


Ch.  10)  doe  pnocEsa  and  equality:    police  POWBB  861 

OZAN  LUMBER  CO.  v.  UNION  COUNTY  NAT.  BANK. 

(Supreme  Court  of  United  States,  190T.    207  U.  S.  251,  28  Sup.  CL  80,  62  U 
Ed.  195.) 

[Certiorari  to  United  States  Circuit  Court  of  Appeals  for  the  i 
Circuit.  An  Arkansas  statute  made  void  all  negotiable  instruments 
given  in  payment  for  patented  articles  which  did  not  show  this  fact 
upon  their  face,  but  by  section  4  excepted  from  its  operation  "mer- 
chants and  dealers  who  sell  patented  things  in  the  usual  course  of 
business."  Plaintiff  bank  demurred  to  a  defence  under  this  statute 
set  up  by  defendant  in  a  suit  on  certain  notes.  The  federal  Circuit 
Court  for  the  Western  District  of  Arkansas  sustained  the  demurrer, 
and  this  judgment  was  affirmed  by  the  Circuit  Court  of  Appeals.] 

Mr.  Justice  Peckham.  *  *  *  We  are  of  opinion  that  the  ex- 
ception contained  in  section  4  does  not  render  the  statute  invalid.  The 
plain  purpose  of  the  whole  statute  is  to  create  and  enforce  a  proper 
police  regulation.  Its  passage  showed  that  the  legislature  was  of 
opinion  that  fraud  and  imposition  were  frequent  in  the  sale  of  proper- 
ty of  this  nature,  except  in  the  cases  mentioned  in  section  4,  and  that 
temptations  to  false  representations  in  regard  to  the  virtues  and  value- 
of  the  article  sold  were  also  frequently  yielded  to.  When  the  sale  of 
the  article  was  effected  by  such  representations,  and  a  note  given  for 
the  amount  of  the  sale,  a  transfer  of  the  note  to  a  bona  fide  purchaser 
for  value  before  its  maturity  prevented  the  vendee  from  showing  the 
fraud  by  which  the  sale  had  been  accomplished.  In  order  to  reach 
such  a  transaction  and  to  permit  the  vendee  to  show  the  fraud,  the 
statute  was  passed.  It  was  doubtless  thought  that  merchants  and 
dealers,  as  mentioned  in  the  statute,  while  dealing  with  the  patented 
things  in  the  manner  stated,  would  not  be  so  likely  to  make  representa- 
tions or  to  engage  in  a  fraud  to  effect  a  sale,  as  those  covered  by  the 
statute.  The  various  itinerant  venders  of  patented  articles,  whose 
fluency  of  speech  and  carelessness  regarding  the  truth  of  their  repre- 
sentations might  almost  be  said  to  have  become  proverbial,  were,  of 
course,  in  the  mind  of  the  legislature,  and  were  included  in  this  legis- 
lation.    Indeed,  they  are  the  principal  people  to  be  affected  by  it. 

The  manufacturer  of  a  patented  article,  who  also  sells  it  in  the  usual 
course  of  business  in  his  store  or  factory,  would  probably  come  within 
the  exception  of  section  4.  He  may  be  none  the  less  a  dealer,  selling  in 
the  usual  course  of  his  business,  because  he  is  also  a  manufacturer  of 
the  article  dealt  in.    Exceptional  and  rare  cases,  not  arising  out  of  the 

graph,  gas,  or  electric  light  companies  to  make  diligent  Inquiry  as  to  tin- 
title  of  the  vendors  thereof,  was  answered  l>y  Pitney,  .1.,  saying:  "The  argu 
ment  under  this  head  concedes,  and  must  concede,  that  the  act  Is  I  i 
as  far  as  it  goes,  the  complaint  being  that  it  does  not  go  far  enough.  But  tin- 
federal  Constitution  does  not  require  that  all  slate  laws  shall  be  perfect,  nor 
that  the  entire  field  of  proper  legislation  shall  be  covered  by  a  single  enact- 
ment." 


362  FUNDAMENTAL    BIGHTS  (Part  2 

sale  of  patented  things  in  the  ordinary  way,  may  be  imagined  where 
this  general  classification  separating  the  merchants  and  dealers  from 
the  rest  of  the  people  might  be  regarded  as  not  sufficiently  comprehen- 
sive, because  in  such  unforeseen,  unusual,  and  exceptional  cases  the 
people  affected  by  the  statute  ought,  in  strictness,  to  have  been  included 
in  the  exception.  See  opinion  of  Circuit  Court  herein,  127  Fed.  206. 
But  we  do  not  think  the  statute  should  be  condemned  on  that  account. 
It  is  because  such  imaginary  and  unforeseen  cases  are  so  rare  and  ex- 
ceptional as  to  have  been  overlooked  that  the  general  classification 
ought  not  to  be  rendered  invalid.  In  such  case  there  is  really  no  sub- 
stantial denial  of  the  equal  protection  of  the  laws  within  the  meaning  of 
the  amendment.1 

It  is  almost  impossible,  in  some  matters,  to  foresee  and  provide  for 
every  imaginable  and  exceptional  case,  and  a  legislature  ought  not  to 
be  required  to  do  so  at  the  risk  of  having  its  legislation  declared  void, 
although  appropriate  and  proper  upon  the  general  subject  upon  which 
such  legislation  is  to  act,  so  long  as  there  is  no  substantial  and  fair 
ground  to  say  that  the  statute  makes  an  unreasonable  and  unfounded 
general  classification,  and  thereby  denies  to  any  person  the  equal  pro- 
tection of  the  laws.  In  a  classification  for  governmental  purposes 
there  cannot  be  an  exact  exclusion  or  inclusion  of  persons  and  things. 
See  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  150,  17  Sup.  Ct,  255, 
41  L.  Ed.  666,  and  cases  cited ;  Missouri,  K.  &  T.  R.  Co.  v.  May,  194 
U.  S.  267,  24  Sup.  Ct.  638,-48  L.  Ed.  971.  We  can  see  reasons  for  ex- 
cepting merchants  and  dealers  who  sell  patented  things,  in  the  usual 
course  of  business,  from  the  provisions  of  the  statute,  and  we  think  the 
failure  to  exempt  some  few  others,  as  above  suggested,  ought  not  to 
render  the  whole  statute  void  as  resulting  in  an  unjust  and  unreason- 
able discrimination.    *     *     * 

Judgment  reversed.2 

i  "If  the  legislature  thinks  thiit  a  year  is  long  enough  to  allow  a  party  to 
recover  his  property  from  a  third  hand,  and  establishes  that  time  in  cases 
where  he  has  not  been  heard  of  for  fourteen  years,  and  presumably  is  dead,  it 
acts  within  its  constitutional  discretion.  Now  and  then  an  extraordinary 
case  may  turn  up,  but  constitutional  law,  like  other  mortal  contrivances,  has 
to  take  some  chances,  and  in  the  great  majority  of  instances,  no  doubt,  justice 
will  be  done."— Holmes,  J.,  in  Blinn  v.  Nelson,  222  TJ.  S.  1,  7,  32  Sup.  Ct  1,  2, 
56  L.  Ed.  65  (1011). 

See  Provident  Institution  for  Savings  in  Town  of  Boston  v.  Malone,  221 
U.  S.  660,  31  Sup.  Ct.  G61,  55  L.  Ed.  S00,  34  L.  R.  A.  (N.  S.)  1129  (1911)  (for- 
feiting to  the  state  savings  bank  deposits  unclaimed  for  30  years). 

2  In  Mutual  Loan  Co.  v.  Martell,  222  U.  S.  225,  235-236,  32  Sup.  Ct  74,  75, 
56  L.  Ed.  175  (1911),  a  Massachusetts  statute  was  upheld  which  restricted 
assignments  of  future  wages  unless  made  to  national  banks  and  certain  other 
financial  institutions  under  public  supervision;  McKenna,  J.,  saying:  "We 
have  declared  so  often  the  wide  range  of  discretion  which  the  legislature 
possesses  in  classifying  the  objects  of  its  legislation  that  we  may  be  excused 
from  a  citation  of  the  cases.  We  shall  only  repeat  that  the  classification  need 
not  be  scientific  nor  logically  appropriate,  and  if  not  palpably  arbitrary,  and 
is  uniform  within  the  class,  it  is  within  such  discretion.  The  legislation 
under  review  was  directed  at  certain  evils  which  had  arisen,  and  the  legis- 


Ch.  10)  DUE  PROCESS  AND  EQUALITY  I     POLICE  POWER  S63 

BORGNIS  v.  FALK  CO.  (1911)  147  Wis.  327,  353-355,  133  N. 
W.  209,  37  L.  R.  A.  (N.  S.)  489,  Winslovv,  C.  J.  (upholding  a  work- 
men's compensation  act  taking  away  the  defences  of  fellow  service  and 
assumed  risk  from  employers  electing  not  to  accept  the  act,  but  re- 
taining them  for  those  who  accepted  the  act,  when  sued  by  non-accept- 
ing employes) : 

"The  rules  governing  classification  are  familiar  and  are  in  brief  as 
follows :  It  must  be  based  on  substantial  distinctions  which  make  real 
differences  ;  it  must  be  germane  to  the  purposes  of  the  law  ;  it  must  not 
be  limited  to  existing  conditions  only  and  must  apply  equally  to  each 
member  of  the  class.  It  seems  to  us  that  this  classification  fully  meets 
these  requirements;  certainly  there  will  be  very  real  differences  be- 
tween the  situation  of  the  employer  who  elects  to  come  under  the  law 
and  the  employer  who  does  not.  If  the  consenting  employer  only  em- 
ploys workmen  who  also  elect  to  come  under  the  law,  he  can  never 
be  mulcted  in  heavy  damages,  and  will  know  whenever  an  employe  is 
injured  practically  just  what  must  be  paid  for  the  injury.  Surely  this 
is  a  different  situation  from  the  situation  of  the  man  who  is  liable  to 
be  brought  into  court  by  an  injured  employe  at  any  time  and  obliged  to 
defend  common-law  actions  upon  heavy  claims  unliquidated  in  their 
character,  the  outcome  of  which  actions  none  can  foretell.  On  tin- 
other  hand,  if,  as  seems  quite  likely,  the  greater  part  of  the  consenting 
employer's  workmen  consent,  but  some  do  not,  and  these  latter  are 
still  retained  in  the  employment,  the  same  considerations  will  apply 
with  somewhat  less  force. 

"On  the  one  hand,  there  is  a  class  of  consenting  employers  employing 
wholly  or  largely  consenting  workmen,  and  having  definite  and  fixed 
obligations  to  their  workmen  in  case  of  injury;  on  the  other  hand  is 
a  class  of  nonconsenting  employers  who  have  no  such  fixed  obligation? 
in  case  of  injury  to  their  workmen,  but  choose  to  meet  every  such 
workman  in  court  and  fight  out  the  question  of  liability.     There  seems 

lature.  considering  them  nnd  from  whence  they  arose,  might  have  thought  or 
discerned   that   they  could  not  or  would   not   arise  from 
to  the  institutions  mentioned  than  to  individuals.    •    •    •    But  even  it"  nine 
degree  of  evil  which  the  statute  was  Intended  to  prevent  could  be  ascribed  to 
loans  made  by  the  exempted  institutions,  the  would  Dot  m 

law   unconstitutional.      Legislation   may    recognize   degrees   of  evil    without 
Icing  arbitrary,  unreasonable,  or  in  conflict  with  the  equal-protection  provi- 
sion of  the  fourteenth  amendment  to  the  Constitution  of  the  ' 
Ozan  Lumber  Co.  v.  Union  County  Nat  Bank,  207   1'.  S. 
52  L.  Ed.  195;    Heath  &  M.  Mfg.  Co.  v.  Worst,  207  D.  S.  Ot  ill 

52  L.  Ed.  236." 

So,  Griffith  v.  Connecticut.  218  U.  S.  563,  31  Pup.  Ct.  132,  54  L.  I" 
(1910)  (banks  and  mortgagees  exempted  from  usurj  laws);  Lemieux  v.  Young. 
1211  U.  S.  489,  29  Sup.  Ct.  174,  53  L.  Ed.  295  (1909)  (retail  dealers  alone  for- 
bidden to  sell  bulk  of  stock  at  once  without  notice  to  creditors):  Murphy  v. 
California,  1225  IT.  S.  623,  32  Sup.  Ct.  697,  56  L.  EM.  1229.  41  L.  H.  A.  (N.  8.) 
153  (1912)  (keeping  billiard  tables  for  hire  forbidden  except  by  hotels  for 
registered  guests). 


364  FUNDAMENTAL    RIGHTS  (Part  2 

a  very  robust  difference  between  these  two  classes.  But  after  all  there 
is  another  distinction  which  seems  perhaps  more  satisfactory.  The 
consenting  employer  has  done  his  share,  and  it  must  be  considered  a 
considerable  share,  in  rendering1  successful  the  legislative  attempt  to 
meet  and  solve  a  difficult  social  and  economic  problem.  Even  if  it  be 
true  (which,  as  before  stated,  is  not  decided)  that  he  may  not  be  com- 
pelled under  our  Constitutions,  state  and  national,  to  assist  in  the  solu- 
tion of  this  problem,  still  does  not  his  voluntary  act  in  giving  that  as- 
sistance constitute  a  substantial  distinction,  making  a  real  difference 
of  situation  between  him  and  the  employer  who  refuses  his  aid — a  dif- 
ference which  justifies  a  difference  in  treatment?" 


COMMONWEALTH  v.  HANA  (1907)  195  Mass.  262,  264-267, 
81  N.  E.  149,  11  L.  R.  A.  (N.  S.)  799,  122,  Am.  St.  Rep.  251,  11  Ann. 
Cas.  514,  Knowlton,  C.  J.  (discussing  the  validity  of  a  Massachusetts 
statute  requiring  peddlers  to  procure  licenses)  : 

"Under  section  19,  no  one  can  obtain  a  license  unless  he  is,  or  has 
declared  his  intention  to  become  a  citizen  of  the  United  States.  It  is 
contended  that  this  provision  is  in  violation  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States  which  provides  that  no 
state  shall  'deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction,  the  equal 
protection  of  the  laws.'  It  is  decided  that  this  provision  applies  to 
aliens  as  well  as  to  citizens  of  the  United  States,  and  it  is  clear  that 
a  statute,  arbitrarily  forbidding  aliens  to  engage  in  ordinary  kinds  of 
business  to  earn  their  living,  would  be  unconstitutional  and  void.  Yick 
Wo  Lee  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L  Ed.  220; 
In  re  Ah  Chong  (C.  C.)  2  Fed.  733 ;  In  re  Lee  Sing  (C.  C.)  43  Fed. 
359;  Pearson  v.  Portland,  69  Me.  278,  31  Am.  Rep.  276.  Accord- 
ingly, it  was  held  in  an  elaborate  opinion  in  State  v.  Montgomery,  94 
Me.  192,  47  Atl.  165,  80  Am.  St.  Rep.  386,  that  a  statute  for  the  licens- 
ing of  hawkers  and  peddlers  in  that  state  was  unconstitutional  and 
wholly  void,  because  of  a  discrimination  between  aliens  and  citizens 
like  that  in  our  statute.  See,  also,  State  v.  Mitchell,  97  Me.  66,  53  Atl. 
SS7,  94  Am.  St.  Rep.  4S1.  There  is,  however,  an  important  question 
which  was  not  much  discussed  in  that  case,  whether  the  Legislature,  in 
the  exercise  of  the  police  power,  could  discover  a  reason  for  withhold- 
ing peddlers'  licenses  from  aliens.  The  business  of  peddling  furnishes 
such  opportunities  for  the  practice  of  fraud  that  it  is  a  proper  subject 
for  legislative  regulation.  That  such  regulation  has  been  practiced 
from  early  times,  both  in  Europe  and  America,  is  shown  at  length  by 
Mr.  Justice  Gray  in  Emert  v.  State  of  Missouri,  156  U.  S.  296,  15 
Sup.  Ct.  367,  39  L.  Ed.  430.  The  requirement  of  Rev.  Laws,  c.  65,  § 
19,  that  before  receiving  a  license  the  applicant  shall  file  a  certificate 
from  the  mayor  of  a  city  or  the  majority  of  the  selectmen  of  a  town 


Ch.  10)  DDE   PROCESS  AND   EQT'ALITY:     POLICE   POWEB 

that  to  the  best  of  his  or  their  knowledge  and  belief  he  is  of  g 
pute  for  morals  and  integrity,  is  a  reasonable  regulation  for  the  pro- 
tection of  the  public.  If,  in  the  same  interest,  the  Legislature  <!• 
important  that  licenses  shall  be  granted  only  to  citizens  of  the  United 
States,  or  to  those  who  have  declared  their  intention  to  become  citi- 
zens, it  can  hardly  be  said  that  they  have  exceeded  their  constitutional 
right  in  passing  a  law  to  that  effect. 

"Upon  a  similar  question  in  reference  to  the  granting  of  licenses  to 
sell  intoxicating  liquors,  decided  in  Trageser  v.  Gray,  73  Md.  250,  254, 
255.  257,  20  Atl.  905,  906  (9  L.  R.  A.  7S0,  25  Am.'  St.  Rep.  58; 
court  used  this  language:  'It  is  thought  proper  to  confine  the  license 
to  citizens  of  the  United  States,  of  temperate  habits  and  good  moral- 
character.  The  privilege  is  very  liable  to  be  abused,  and  abuses  would 
produce  great  public  detriment.  It  therefore  seemed  wise  to  the 
lature  to  confer  it  only  on  those  who,  being  natives  of  the  country, 
might  reasonably  be  supposed  to  have  a  regard  for  its  welfare,  or  who, 
not  being  natives,  had,  as  required  by  the  naturalization  law,  proven 
by  credible  testimony  before  a  court  of  justice  that  they  were  attached 
to  the  principles  of  the  Constitution  of  the  United  States  an  ' 
well  disposed  to  their  good  order  and  happiness.  It  was  certa:: 
function  of  the  lawmaking  department  to  exercise  its  judgment  on  this 
question,  and  this  court  has  no  right  to  criticise  its  conclusion.'  The 
opinion  then  goes  on  to  say  that  the  right  so  to  legislate  is  within  the 
police  power  reserved  to  the  states,  and  after  a  full  discussion,  to  de- 
clare that  it  is  not  at  variance  with  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States.  The  same  reasoning  is  equally  ap- 
plicable to  the  granting  of  licenses  to  hawkers  and  peddlers.  Indeed, 
the  nature  of  their  business  is  such  that  their  possession  of  a  domicile 
and  citizenship  in  this  country  might  be  important  to  those  seeking 
remedies  for  wrongs  done  in  their  business.  Notwithstanding  the  deci- 
sion in  State  v.  Montgomery,  ubi  supra,  we  are  of  opinion  that  the 
Legislature,  in  the  exercise  of  the  police  power,  might  make  this  re- 
quirement as  to  the  qualifications  of  applicants  for  a  peddler's  license.1 

"The  defendant  also  contends  that  the  statute  is  unconstitutional  in 
making  a  discrimination  in  section  19  by  which  a  resident,  in  a  city 
or  town  in  which  he  pays  taxes  upon  his  stock  in  trade  and  is  qualified 
to  vote,  shall  not  be  required  to  pay  any  fee  for  his  license  for  said  city 
or  town.    There  is  also  a  provision  in  section  21,  which  has  ru  ; 

i  Accord:    Rloomfield  v.  State,  86  Ohio  St.  253.  99  N.  E.  309,  41  L.  R.  A. 
(N.  9  i  726  (1012)  (license  to  sell  liquor)  (cases),  Johnson, 
gard  to  statutes  barring  aliens  from  the  retail  liquor  traffic  (86  OUo  - 
09  v  B.  312,  41  L.  R.  A.  [N.  S.]  726):   "They  are  based  on  the 
alien  cannot  be  sufficiently  acquainted  with  cur  Institutions  and  our  life  to 
enable  him  to  appreciate  the  relation  of  tlds  particular  business  to  oui 
KM  i.'il  fabric." 

Contra:    Templar  v.  State  Board  <>t  Examiners  of  Barbers,  131  Ml 
90  N.  W.  105S.  100  Am.  St.   Rep.   ''.in  (1902)  (barber's  license* 
also,  11  L.  R.  A.  (N.  S.)  799,  SOO,  note  (collecting  all  cases  on  question). 


366  FUNDAMENTAL    RIGHTS  (Part    2 

referred  to  in  the  argument,  by  which  licenses  may  be  granted  without 
charge  to  a  person  seventy  years  of  age  or  upwards,  or  to  any  soldier 
or  sailor  resident  in  this  commonwealth  who  served  in  the  army  or 
navy  'during  the  War  of  the  Rebellion  or  the  War  against  Spain,  and 
who  has  an  honorable  discharge  from  such  service.  Even  before  the 
adoption  of  the  fourteenth  amendment  it  was  a  settled  principle  of  con- 
stitutional law  that  statutes  in  regard  to  the  transaction  of  business 
must  operate  equally  upon  all  citizens  who  desire  to  engage  in  the 
business,  and  that  there  shall  be  no  arbitrary  discrimination  between 
different  classes  of  citizens.  Under  the  fourteenth  amendment,  all  per- 
sons are  entitled  to  the  equal  protection  of  the  laws.  In  several  states 
■  such  a  discrimination  in  the  granting  of  licenses  in  favor  of  soldiers 
and  sailors  has  come  before  the  courts,  and  in  all  of  them,  so  far  as 
we  are  aware,  the  provision  has  been  held  unconstitutional.  State  v. 
Shedroi,  75  Vt.  277,  54  Atl.  1081,  63  L.  R.  A.  179,  98  Am.  St.  Rep. 
825;  State  v.  Garbroski,  111  Iowa,  496,  82  N.  W.  959.  56  L.  R.  A. 
570,  82  Am.  St.  Rep.  524;  State  v.  Whitcom,  122  Wis.  110,  99  N.  W. 
468.  See,  also,  In  re  Keymer,  148  N.  Y.  219,  42  N.  E.  667,  35  L.  R.  A. 
447;  Brown  v.  Russell,  166  Mass.  14,  43  N.  E-  1005,  32  L.  R.  A.  253, 
55  Am.  St.  Rep.  357. 

"These  cases  and  others  show  that  a  discrimination,  founded  on  the 
residence  of  the  applicant  for  a  license  or  the  amount  of  tax  paid  by 
him,  cannot  be  sustained  under  the  Constitution.  State  v.  Mitchell.  97 
Me.  66,  53  Atl.  887,  94  Am.  St.  Rep.  481 ;  State  v.  Gardner,  58  Ohio 
St.  599,  51  N.  E.  136,  41  L.  R.  A.  689,  65  Am.  St.  Rep.  785;  Com. 
v.  Snyder,  182  Pa.  630,  38  Atl.  356;  State  v.  Hoyt,  71  Vt.  59,  42  Atl. 
973 ;  In  re  Ah  Chong  (C.  C.)  2  Fed.  733 ;  In  re  Lee  Sing  (C.  C.)  43 
Fed.  359;  Ex  parte  Jones,  38  Tex.  Cr.  R.  482,  43  S.  W.  513.  We  see 
no  justifiable  ground,  under  the  Constitution,  for  a  discrimination  in 
favor  of  residents  of  a  city  or  town  who  pay  taxes  there  on  their  stock- 
in  trade,  and  who  are  qualified  to  vote  there,  nor  of  those  who  are  70 
years  of  age  or  upwards.  As  the  discrimination  in  favor  of  former 
soldiers  and  sailors  was  not  referred  to  in  argument,  it  is  unnecessary 
to  pass  upon  it ;  but  as  we  have  already  seen,  a  similar  discrimination 
has  been  held  unconstitutional  in  other  states."2 
[The  act  was  held  invalid  on  other  grounds.] 

2  As  to  the  validity  of  legal  discriminations  in  favor  of  Civil  War  veterans 
for  appointment  to  public  offices  in  the  state  civil  service,  see  Brown  v.  Bus- 
sel,  166  Mass.  14,  43  N.  E.  1005,  32  L.  R.  A.  253,  55  Am.  St.  Rep.  357  (1S96) ; 
Opinion  of  Justices,  160  Mass.  5S9,  44  N.  E.  625,  34  L.  R.  A.  58  (1896). 

Discrimination  Against  Non-Residents. — Discrimination  by  a  state  in 
favor  of  its  own  citizens  against  those  of  other  states  is  governed  by  Const. 
art.  4,  §  2,  discussed  in  Chapter  VII,  ante.  Doubtless  any  discrimination  valid 
under  this  clause  against  citizens  of  other  states  as  such  does  not  violate  the 
fourteenth  amendment.  Discrimination  against  non-residents  (not  citizens  of 
other  states)  does  not  violate  the  "equal  protection  of  the  laws"  guaranteed 
by  this  amendment,  for  this  applies  only  in  favor  of  "persons  within  the 
.iurisdiction."  Blake  v.  McClung.  ante,  p.  253,  Chapter  VIII.  Such  discrim- 
ination   (giving    resident    creditors    a   preference   in    the   distribution    of   the 


Ch.  10)  DDE    PROCESS   AND    EQUALITY:     POLICE   POWEB  "«!T 


PLESSY  v.  FERGUSON. 

(Supreme  Court  of  United  States,  1890.    163  U.  S.  537,  16  Sup.  Ct.  1138,  41 
L.  !•;<].  256.) 

[Error  to  the  Supreme  Court  of  Louisiana.  A  Louisiana  statute 
required  railway  companies  to  provide  equal,  but  separate,  accom- 
modations for  white  and  colored  passengers,  and  made  it  a  misde- 
meanor for  any  passenger  to  insist  upon  going  into  a  coach  reserved 
for  persons  of  the  other  race.  Plessy,  a  person  of  one-eighth  African 
blood,  was  prosecuted  for  a  violation  of  this  statute  before  Ferguson, 
judge  of  the  criminal  court  in  the  parish  of  Orleans.  Plessy  peti- 
tioned the  state  Supreme  Court  for  writs  of  prohibition  and  certiorari 
to  enjoin  said  judge  from  punishing  him  under  said  statute.  From 
a  denial  of  this  petition  this  writ  of  error  was  taken.] 

Mr.  Justice  Brown.  *  *  *  The  object  of  the  [fourteenth] 
amendment  was  undoubtedly  to  enforce  the  absolute  equality  of  the 
two  races  before  the  law,  but,  in  the  nature  of  things,  it  could  not 
have  been  intended  to  abolish  distinctions  based  upon  color,  or  to  en- 
force social,  as  distinguished  from  political,  equality,  or  a  commin- 
gling of  the  two  races  upon  terms  unsatisfactory  to  either.  Laws 
permitting,  and  even  requiring,  their  separation,  in  places  where  they 
are  liable  to  be  brought  into  contact,  do  not  necessarily  imply  the  in- 
feriority of  either  race  to  the  other,  and  have  been  generally,  if  not 
universally,  recognized  as  within  the  competency  of  the  state  legis- 
latures in  the  exercise  of  their  police  power.  The  most  common  in- 
stance of  this  is  connected  with  the  establishment  of  separate  schools 
for  white  and  colored  children,  which  has  been  held  to  be  a  valid  ex- 
ercise of  the  legislative  power  even  by  courts  of  states  where  the 
political  rights  of  the  colored  race  have  been  longest  and  most  ear- 
nestly enforced. 

One  of  the  earliest  of  these  cases  is  that  of  Roberts  v.  City  of  Bos- 
ton, 5  Cush.  (Mass.)  198,  in  which  the  supreme  judicial  court  of  -Mas- 
sachusetts held  that  the  general  school  committee  of  Boston  had  power 
to  make  provision  for  the  instruction  of  colored  children  in  separate 
schools  established  exclusively  for  them,  and  to  prohibit  their  at- 
tendance upon  the  other  schools.  *  *  *  Similar  laws  have  been 
enacted  by  congress  under  its  general  power  of  legislation  over  the 
District  of  Columbia  (sections  2S1-2S3.  310,  319,  Rev.  St.  D.  C),  as 
well  as  by  the  legislatures  of  many  of  the  states,  and  have  bei 
erally,  if  not  uniformly,  sustained  by  the  courts.  State  v.  McCann. 
21-  Ohio  St.  210;    Lehew  v.  Brummell,  103  Mo.  546,  15  S.  V\ 

assets  of  a  bankrupt  corporation)  was  said  to  be  no  taking  of  a  non-n 
property  without  due  process  in   Blake  vt  McClung,  172  0.   8.  289,  259,  260, 
19  Sup."  Ct.   165,  48  It   Ed.    182  (1898),  and  in  Sully   v.   American  Nat.   Bank, 

ITS  U.  S.  2S9.  302,  303,  20  Sup.  ci.  935,  44  L.  Ed.  1072  (11 

See  Anglo-American  Provision  Co.  v.   Davis  Provision  Co.,   191  U. 
•24  Sup.  Ct.  9-J.  4s  L.  VA.  225  (1903). 


368  FUNDAMENTAL    RIGHTS  (Part    2 

11  L.  R.  A.  82S.  23  Am.  St.  Rep.  895;  Ward  v.  Flood,  48  Cal.  36; 
Bertonneau  v.  Directors  of  City  Schools,  3  Woods,  177,  Fed.  Cas. 
Xo.  1,361 ;  People  v.  Gallagher,  93  N.  Y.  438,  45  Am.  Rep.  232 ;  Cory 
v.  Carter,  48  Ind.  337,  17  Am.  Rep.  738;   Dawson  v.  Lee,  83  Ky.  49. 

Laws  forbidding  the  intermarriage  of  the  two  races  may  be  said 
in  a  technical  sense  to  interfere  with  the  freedom  of  contract,  and 
yet  have  been  universally  recognized  as  within  the  police  power  of 
the  state.    State  v.  Gibson,  36  Ind.  389,  10  Am.  Rep.  42.     *     *     * 

In  this  connection,  it  is  also  suggested  by  the  learned  counsel  for 
the  plaintiff  in  error  that  the  same  argument  that  will  justify  the  state 
legislature  in  requiring  railways  to  provide  separate  accommodations 
for  the  two  races  will  also  authorize  them  to  require  separate  cars 
to  be  provided  for  people  whose  hair  is  of  a  certain  color,  or  who 
are  aliens,  or  who  belong  to  certain  nationalities,  or  to  enact  laws  re- 
quiring colored  people  to  walk  upon  one  side  of  the  street,  and  white 
people  upon  the  other,  or  requiring  white  men's  houses  to  be  painted 
white,  and  colored  men's  black,  or  their  vehicles  or  business  signs  to 
be  of  different  colors,  upon  the  theory  that  one  side  of  the  street  is 
as  good  as  the  other,  or  that  a  house  or  vehicle  of  one  color  is  as 
good  as  one  of  another  color.  The  reply  to  all  this  is  that  every  ex- 
ercise of  the  police  power  must  be  reasonable,  and  extend  only  to 
such  laws  as  are  enacted  in  good  faith  for  the  promotion  of  the 
public  good,  and  not  for  the  annoyance  or  oppression  of  a  particular 
class.     *     *     * 

So  far,  then,  as  a  conflict  with  the  fourteenth  amendment  is  con- 
cerned, the  case  reduces  itself  to  the  question  whether  the  statute  of 
Louisiana  is  a  reasonable  regulation,  and  with  respect  to  this  there 
must  necessarily  be  a  large  discretion  on  the  part  of  the  legislature. 
In  determining  the  question  of  reasonableness,  it  is  at  liberty  to  act 
with  reference  to  the  established  usages,  customs,  and  traditions  of 
the  people,  and  with  a  view  to  the  promotion  of  their  comfort,  and 
the  preservation  of  the  public  peace  and  good  order.  Gauged  by  this 
standard,  we  cannot  say  that  a  law  which  authorizes  or  even  re- 
quires the  separation  of  the  two  races  in  public  conveyances  is  un- 
reasonable, or  more  obnoxious  to  the  fourteenth  amendment  than 
the  acts  of  congress  requiring  separate  schools  for  colored  children 
in  the  District  of  Columbia,  the  constitutionality  of  which  does  not 
seem  to  have  been  questioned,  or  the  corresponding  acts  of  state  leg- 
islatures. 

We  consider  the  underlying  fallacy  of  the  plaintiff's  argument  to 
consist  in  the  assumption  that  the  enforced  separation  of  the  two 
races  stamps  the  colored  race  with  a  badge  of  inferiority.  If  this 
be  so,  it  is  not  by  reason  of  anything  found  in  the  act,  but  solely  be- 
cause the  colored  race  chooses  to  put  that  construction  upon  it. 
*  *  *  The  argument  also  assumes  that  social  prejudices  may  be 
overcome  by  legislation,  and  that  equal  rights  cannot  be  secured  to 
the  negro  except  by  an  enforced  commingling  of  the  two  races.     We 


Ch.  10)  DUE   PROCESS  AND   EQ1  '.W.I  i  V  :     ROLICB   POWBB 

cannot  accept  this  proposition.  If  the  two  races  are  to  meet  upon 
terms  of  social  equality,  it  must  be  the  result  of  natural  affinities, 
a  mutual  appreciation  of  each  other's  merits,  and  a  voluntary  consent 
of  individuals.  *  *  *  Legislation  is  powerless  to  eradicate  racial 
instincts,  or  to  abolish  distinctions  based  upon  physical  differences, 
and  the  attempt  to  do  so  can  only  result  in  accentuating  the  difficulties 
of  the  present  situation.  If  the  civil  and  political  rights  of  both  races 
be  equal,  one  cannot  be  inferior  to  the  other  civilly  or  politically.  If 
one  race  be  inferior  to  the  other  socially,  the  Constitution  of  the 
United  States  cannot  put  them  upon  the  same  plane.     *     *     * 

Judgment  affirmed.1 

[Harlan,  J.,  gave  a  dissenting  opinion.     Brewer,  J.,  did  not  sit.] 

i  See  Berea  College  v.  Commonwealth,  123  Ky.  209,  94  S.  W.  623,  124  Am. 
St.  Rep.  844,  13  Ann.  ('as.  837  (1906)  holding  a  state  may  prohibit  private 
educational  institutions  from  teaching  the  two  races  at  the  same  time  and 
place.  The  cases  on  all  phases  of  statutory  race  segregation  . 
The  decision  was  affirmed  in  211  U.  S.  45,  2D  Sup.  ft.  33,  63  I..  Ed  SI  (1008), 
on  another  ground.  For  the  validity  of  attempts  at  residential  segregation  of 
races,  see  In  re  Lee  Sin^-  (C.  C.)  43  Fed.  359  (1890)  (Chinese);  11  CoL  Law 
Rev.  24  (negroes),  article  by  W,  R.  Hunting;  Royd  v.  Board  of  Council  of 
City  of  Frankfort,  117  Ky.  199,  77  S.  W.  669,  111  Am.  St.  Rep.  240 
(negro  church  building). 

"Equality  and  not  identity  of  privileges  and  rights  Is  what  Is  guaranteed 
to  the  citizen."— People  v.  Gallagher,  93  N.  Y.  438,   155,  45  Am.  Rep.  232 
by  Ruger,  C.  J. 

A   carrier   may   be  authorized  by  statute   to   furnish   separate  dining  and 
sleeping  cars  for  either  race  only,  as  it  sees  fit.     McCabe  v.  Atchison,  T.  & 
S.  F.  Ry.  Co.,  186  Fed.  9C6,  109  C.  C.  A.  110  (1911).     Compare  the  Tim 
statute  abrogating  altogether  the  common-law  duty  of  carriers  and  Innl 
to  serve  all  applicants.     State  v.  Lasater,  68  Tenn.  (!)  Baxt.)  584  1 1  ^TTt :    Allen 
v.  Pullman's  Palace  Car  Co.,  191  U.  S.  171,  1S2.  is::.  24  Sup.  <t.  39.  48  L. 
Ed.  134,  (1903).    Without  statutory  authority  a  carrier  may  lawfully  separate 
the  races.    Chiles  v.  Chesapeake  &  O.  Ry.  Co.,  218  U.  S.  71,  30  Sup.  I 
54  L.  Ed.  936  (1910). 

A  school  district  may  use  public  money  for  a  white  high  school  only,  where 
so  few  colored  children  would  attend  a  colored  high  school  that  the  cost  of 
maintaining  it  would  cripple  the  colored  elementary  BChools,  Camming  v. 
County  Board  of  Education,  175  U.  S.  528.  20  Sup.  Ct.  197.  44  L.  Bid.  282 
(1S99)  (semble) ;  but  it  is  unconstitutional  to  require  the  people  of  each  race 
to  support  their  own  schools,  Olaybrook  v.  City  of  Owensboro  (D.  C.)  16  Fed. 
297  (1SS3) ;    Puitt  v.  Commissioners,  94  N.  C.  709  (18S6). 

in  Opinion  of  Justices  to  House  of  Representatives,  207  M 
605.  94  N.  E.  55S,  560,  34  L.  R.  A.  iN.  S.)  604  (1911),  validity  was  denied  to 
proposed  legislation  excluding  young  women  from  hotels  or  restaurants  con- 
ducted by  Chinese,  the  judges  saying:  "This  legislation  does  not  refer  to  the 
character  or  condition  of  the  hotel  or  restaurant  that  a  young  woman  may 
not  enter,  but  refers  only  to  the  nationality  of  the  person  who  conducts  it. 
*  *  *  It  forbids  the  entry  of  a  young  woman  Into  the  bote!  or  restaurant 
of  a  Chinese  proprietor,  even  if  it  is  a  model  of  orderly  and  moral  manage 
ment,  and  it  permits  the  entry  of  voting  women  into  a  hotel  or  restaurant 
kept  by  an  American,  when  it  is  known  to  be  maintained  in  part  for  the  pro- 
motion of  Immoral  or  criminal  practices.  The  classification  of  boh 
restaurants  into  those  that  are  open  to  young  won, en  and  those  that  are 
closed  to  young  women  is  not  founded  upon  a  difference  that  has  any  Jusl 
or  proper  relation  to  the  professed  purpose  of  the  classification.  •  •  •  The 
fact  that  a  man  is  white,  or  black,  or  yellow  is  not  a  just  and  constitutional 
Hall  Const.I,. — 24 


370  FUNDAMENTAL    RIGHTS  (Part  2 


MULLER  v.  OREGON. 

(Supreme  Court  of  United  States,  1908.     208  D.  S.  412,  28  Sup.  Ct  324,  52 
L.  Ed.  551,  13  Ann.-Cas.  957.) 

[Error  to  the  Supreme  Court  of  Oregon.  An  Oregon  statute  (Laws 
1903,  p.  148)  forbade  the  employment  of  any  female  in  any  mechanical 
establishment,  factory,  or  laundry  in  the  state  for  more  than  ten  hours 
during  any  one  day.  Muller  was  convicted  and  fined  for  violating  this 
statute  in  the  conduct  of  his  laundry.  This  judgment  of  the  circuit 
court  of  Multnomah  county  was  affirmed  by  the  state  Supreme  Court.] 

Mr.  Justice  Brewer.  *  *  *  The  single  question  is  the  constitu- 
tionality of  the  statute  under  which  the  defendant  was  convicted,  so 
far  as  it  affects  the  work  of  a  female  in  a  laundry.     *     *     * 

It  is  the  law  of  Oregon  that  women,  whether  married  or  single,  have 
equal  contractual  and  personal  rights  with  men.     *     *     * 

It  thus  appears  that,  putting  to  one  side  the  elective  franchise,  in 
the  matter  of  personal  and  contractual  rights  they  stand  on  the  same 
plane  as  the  other  sex.  Their  rights  in  these  respects  can  no  more  be 
infringed  than  the  equal  rights  of  their  brothers.  We  held  in  Lochner 
v.  New  York,  198  U.  S.  45,  25  Sup.  Ct.  539,  49  L.  Ed.  937,  3  Ann.  Cas. 
1133,  that  a  law  providing  that  no  laborer  shall  be  required  or  permit- 
ted to  work  in  a  bakery  more  than  sixty  hours  in  a  week  or  ten  hours 
in  a  day  was  not  as  to  men  a  legitimate  exercise  of  the  police  power  of 
the  state,  but  an  unreasonable,  unnecessary,  and  arbitrary  interference 
with  the  right  and  liberty  of  the  individual  to  contract  in  relation  to  his 
labor,  and  as  such  was  in  conflict  with,  and  void  under,  the  federal 
Constitution.  That  decision  is  invoked  by  plaintiff  in  error  as  decisive 
of  the  question  before  us.  But  this  assumes  that  the  difference  be- 
tween the  sexes  does  not  justify  a  different  rule  respecting  a  restriction 
of  the  hours  of  labor. 

In  patent  cases  counsel  are  apt  to  open  the  argument  with  a  discus- 
sion of  the  state  of  the  art.  It  may  not  be  amiss,  in  the  present  case, 
before  examining  the  constitutional  question,  to  notice  the  course  of 
legislation,  as  well  as  expressions  of  opinion  from  other  than  judicial 
sources.  In  the  brief  filed  by  Mr.  Louis  D.  Brandeis  for  the  defendant 
in  error  is  a  very  copious  collection  of  all  these  matters,  an  epitome  of 
which  is  found  in  the  margin.1 

While  there  have  been  but  few  decisions  bearing  directly  upon  the 
question,  the  following  sustain  the  constitutionality  of  such  legislation  : 

ground  for  making  certain  conduct  a  crime  in  him,  when  it  is  treated  as  per- 
missible and  innocent  in  a  person  of  a  different  color." 

As  to  discrimination  against  Chinese  witnesses,  see  Fong  Yue  Ting  v. 
United  States,  149  U.  S.  69S,  13  Sup.  Ct.  1016,  37  L.  Ed.  905  (1893) ;  Li  Sing 
t.  United  States,  180  U.  S.  486,  21  Sup.  Ct  449,  45  L.  Ed.  634  (1901). 

i  Here  are  collected  references  to  all  American  and  European  legislation 
restricting  the  hours  of  labor  of  women,  and  a  summary  of  extracts  from 
over  90  official  reports  to  the  effect  that  long  hours  of  labor  are  dangerous 
to  women. 


Ch.  10)  DUE    PROCESS   AND    EQ1AUTY  I     POLICE    POWBB  .'IT  I 

Com.  v.  Hamilton  Mfg.  Co.,  120  Mass.  383;  Wenham  v.  State,  65  Neb. 

394,  400,  406,  91  N.  W.  421,  58  L.  R.  A.  S25;   State  v.  Buchanan,  29 

Wash.  602,  70  Pac.  52,  59  h.  R.  A.  342,  92  Am.  St.  Rep.  930 . 

v.  Beatty,  15  Pa.  Super.  Ct.  5,  17.    Against  them  is  the  case  of  Ritchie 

v.  People,  155  111.  98,  40  N.  E.  454,  29  L.  R.  A.  79,  46  Am.  St.  Rep. 

315. 

The  legislation  and  opinions  referred  to  in  the  margin  may  not  be, 
technically  speaking,  authorities,  and  in  them  is  little  or  no  discussion 
of  the  constitutional  question  presented  to  us  for  determination,  yet 
they  are  significant  of  a  widespread  belief  that  woman's  physical  struc- 
ture, and  the  functions  she  performs  in  consequence  thereof,  justify 
special  legislation  restricting  or  qualifying  the  conditions  under  which 
she  should  be  permitted  to  toil.  Constitutional  questions,  it  is  true,  are 
not  settled  by  even  a  consensus  of  present  public  opinion,  for  it  is  the 
peculiar  value  of  a  written  constitution  that  it  places  in  unchanging 
form  limitations  upon  legislative  action,  and  thus  gives  a  permanence 
and  stability  to  popular  government  which  otherwise  would  be  lacking. 
At  the  same  time,  when  a  question  of  fact  is  debated  and  debatable,  and 
the  extent  to  which  a  special  constitutional  limitation  goes  is  affected 
by  the  truth  in  respect  to  that  fact,  a  widespread  and  long-continued  be- 
lief concerning  it  is  worthy  of  consideration.  We  take  judicial  cog- 
nizance of  all  matters  of  general  knowledge.     *     *     * 

That  woman's  physical  structure  and  the  performance  of  maternal 
functions  place  her  at  a  disadvantage  in  the  struggle  for  subsistence  k 
obvious.  This  is  especially  true  when  the  burdens  of  motherhood  are 
upon  her.  Even  when  they  are  not,  by  abundant  testimony  of  the  med- 
ical fraternity  continuance  for  a  long  time  on  her  feet  at  work,  repeat- 
ing this  from  day  to  day,  tends  to  injurious  effects  upon  the  body,  and. 
as  healthy  mothers  are  essential  to  vigorous  offspring,  the  physical  well- 
being  of  woman  becomes  an  object  of  public  interest  and  care  in  order 
to  preserve  the  strength  and  vigor  of  the  race. 

Still  again,  history  discloses  the  fact  that  woman  has  always  been 
dependent  upon  man.  He  established  his  control  at  the  outset  by  su- 
perior physical  strength,  and  this  control  in  various  forms,  with  dimin- 
ishing intensity,  has  continued  to  the  present.  As  [a]  minor,  though  not 
to  the  same  extent,  she  has  been  looked  upon  in  the  courts  as  needing 
especial  care  that  her  rights  may  be  preserved.  Education  was  long  de- 
nied her,  and  while  now  the  doors  of  the  schoolroom  are  opened  and 
her  opportunities  for  acquiring  knowledge  are  great,  yet  even  with  that 
and  the  consequent  increase  of  capacity  for  business  affairs  it  is  still 
true  that  in  the  struggle  for  subsistence  she  is  not  an  equal  competitor 
with  her  brother.  Though  limitations  upon  personal  and  contractual 
rights  may  be  removed  by  legislation,  there  is  that  in  her  disposition 
and  habits  of  life  which  will  operate  against  a  full  assertion  of  those 
rights.  She  will  still  be  where  some  legislation  to  protect  her  seems 
necessary  to  secure  a  real  equality  of  right.  Doubtless  there  are  in- 
dividual exceptions,  and  there  are  many  respects  in  which  she  has  an 


372  FUNDAMENTAL    RIGHTS  (Part  2 

advantage  over  him ;  but  looking  at  it  from  the  viewpoint  of  the  effort 
to  maintain  an  independent  position  in  life,  she  is  not  upon  an  equality. 

Differentiated  by  these  matters  from  the  other  sex,  she  is  properly 
placed  in  a  class  by  herself,  and  legislation  designed  for  her  protection 
may  be  sustained,  even  when  like  legislation  is  not  necessary  for  men, 
and  could  not  be  sustained.  It  is  impossible  to  close  one's  eyes  to  the 
fact  that  she  still  looks  to  her  brother  and  depends  upon  him.  Even 
though  all  restrictions  on  political,  personal,  and  contractual  rights 
were  taken  away,  and  she  stood,  so  far  as  statutes  are  concerned,  up- 
on an  absolutely  equal  plane  with  him,  it  would  still  be  true  that  she  is 
so  constituted  that  she  will  rest  upon  and  look  to  him  for  protection ; 
that  her  physical  structure  and  a  proper  discharge  of  her  maternal 
functions — having  in  view  not  merely  her  own  health,  but  the  well-be- 
ing of  the  race — justify  legislation  to  protect  her  from  the  greed  as  well 
as  the  passion  of  man.  The  limitations  which  this  statute  places  upon 
her  contractual  powers,  upon  her  right  to  agree  with  her  employer  as 
to  the  time  she  shall  labor,  are  not  imposed  solely  for  her  benefit,  but 
also  largely  for  the  benefit  of  all.  Many  words  cannot  make  this  plain- 
er. The  two  sexes  differ  in  structure  of  body,  in  the  functions  to  be 
performed  by  each,  in  the  amount  of  physical  strength,  in  the  capacity 
for  long  continued  labor,  particularly  when  done  standing,  the  influence 
of  vigorous  health  upon  the  future  well-being  of  the  race,  the  self- 
reliance  which  enables  one  to  assert  full  rights,  and  in  the  capacity  to 
maintain  the  struggle  for  subsistence.  This  difference  justifies  a  dif- 
ference in  legislation,  and  upholds  that  which  is  designed  to  compen- 
sate for  some  of  the  burdens  which  rest  upon  her.     *     *     * 

For  these  reasons,  and  without  questioning  in  any  respect  the  deci- 
sion in  Lochner  v.  New  York,  we  are  of  the  opinion  that  it  cannot  be 
adjudged  that  the  act  in  question  is  in  conflict  with  the  federal  Consti- 
tution, so  far  as  it  respects  the  work  of  a  female  in  a  laundry,  and  the 
judgment  of  the  Supreme  Court  of  Oregon  is  affirmed.2 


LOUISVILLE  &  N.  R.  CO.  v.  MELTON. 

(Supreme  Court  of  United   States,  1910.     218  U.   S.  36,  30  Sup.  Ct.  G76,  54 
L.  Ed.  921.) 

[Error  to  the  Court  of  Appeals  of  Kentucky.  An  Indiana  statute 
made  railroad  companies  liable  for  injuries  to  any  employe  resulting 
from  the  negligence  of  any  fellow  employe  under  whose  direction  the 

a  Accord :  Ritchie  &  Co.  v.  Wayman,  244  111.  509,  91  N.  E.  695,  27  L.  R. 
A.  (N.  S.)  994  (1910),  perhaps  overruling  Ritchie  v.  People,  155  111.  9S,  40 
N.  E.  454,  29  L.  R.  A.  79,  46  Am.  St.  Rep.  315  (1895),  which,  however,  re- 
quired an  eight-hour  day ;  Commonwealth  v.  Riley,  210  Mass.  387,  97  N. 
E.  367,  Ann.  Cas.  1912D,  3SS  (1912)  (cases).  See  People  v.  Williams,  189 
N.  Y.  131,  81  N.  E.  778,  12  L.  R.  A.  (N.  S.)  1130,  121  Am.  St.  Rep.  8f,4.  12 
Ann.  Cas.  79S  (1907),  holding  invalid  a  prohibition  against  women  working 
in  factories  between  9  p.  m.  and  6  a.  m.     Compare  Bradwell  v.  Illinois,  16 


Ch.  10)  DUE   PROCESS   AND    EQUALITY:     POLICE    POWEB  373 

Injured  employe  was  hurt.  Melton,  a  bridge  carpenter,  was  one  of  a 
crew  of  six  men  and  a  foreman  engaged  in  constructing  in  defendant's 
service  a  heavy  timbered  frame  for  the  foundations  of  a  coal 
alongside  defendant's  track  in  Indiana.  In  lifting  part  of  the  frame 
to  its  place  by  a  block  and  tackle,  it  fell  upon  Melton  through  the  neg- 
ligence of  the  foreman,  inflicting  serious  injuries.  Melton  sued  in 
Kentucky,  where  he  lived,  and  a  circuit  court  decision  in  his  favor 
was  affirmed  by  the  Court  of  Appeals.] 

Mr.  Justice  White.  *  *  *  The  equal  protection  of  the  law 
clause.  That  the  fourteenth  amendment  was  not  intended  to  and  does 
not  strip  the  states  of  the  power  to  exert  their  lawful  police  authority 
is  settled,  and  requires  no  reference  to  authorities.  And  it  is  equally 
settled — as  we  shall  hereafter  take  occasion  to  show — as  the  essential 
result  of  the  elementary  doctrine  that  the  equal  protection  of  the  law 
clause  does  not  restrain  the  normal  exercise  of  governmental  power, 
but  only  abuse  in  the  exertion  of  such  authority,  therefore  that  clause 
is  not  offended  against  simply  because,  as  the  result  of  the  exercise  of 
the  power  to  classify,  some  inequality  may  be  occasioned.  That  is  to 
say,  as  the  power  to  classify  is  not  taken  away  by  the  operation  of  the 
equal  protection  of  the  law  clause,  a  wide  scope  of  legislative  discre- 
tion may  be  exerted  in  classifying  without  conflicting  with  the  consti- 
tutional prohibiton. 

It  is  beyond  doubt  foreclosed  that  the  Indiana  statute  does  not  offend 
against  the  equal  protection  clause  of  the  fourteenth  amendment,  be- 
cause it  subjects  railroad  employees  to  a  different  rule  as  to  the  doc- 
trine of  fellow  servant  from  that  which  prevails  as  to  other  employ- 
ments in  that  state.  Tullis  v.  Lake  Erie  &  W.  R.  Co.,  175  U.  S.  348, 
20  Sup.  Ct.  136,  44  L.  Ed.  192;  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v. 
Ross,  212  U.  S.  560,  29  Sup.  Ct.  688,  53  L.  Ed.  652.  But  while  con- 
ceding this,  the  argument  is  that  classification  of  railroad  employees  for 
the  purpose  of  the  doctrine  of  fellow  servant  can  only,  consistently 
with  equality  and  uniformity,  embrace  such  employees  when  exposed 
to  dangers  peculiarly  resulting  from  the  operation  of  a  railroad,  thus 
affording  ground  for  distinguishing  them  for  the  purpose  of  classifica- 
tion from  coemployees  not  subject  to  like  hazards  or  employees  en- 
gaged in  other  occupations.    The  argument  is  thus  stated:     "Plaintiff 

Wall.  130,  21  L.  Ed.  442  US73)  (denying  women  admission  to  the  bar);  Cronin 
v.  Adams,  192  U.  S.  10S,  24  Sup.  Ct.  219,  48  L.   Ed.  365  (1904)   (forbidding 
women  in  wine  rooms);    Blair  v.  Kllpatrick,  10  Ind.  312  1 1 --7'Ji  (restricting 
liquor  licenses  to  men);     People  ex   rel.  Barone   v.   Fox.    lit  App.   Dfo  « ■  1 1 . 
129  N.  Y.  Supp.  (Vic  (1911)  (examination  and  medical  treatment  of  di 
prostitutes),  reversed  In  202  N.  Y.  616,  96  N.  E.  1126,  on  other  ground 
know  v.  City  of  Atlanta,  9  Ga.  App.  594,  597i  71  s.  E.  L015,  L016  (1911) 
log  removal  of  women's  bats  at  theaters),  in  which  Russell,  J.,  said:  "The  psdl- 
nauce  is  not  discriminatory  because  ii  i  lude  men  within  ii- 

Hon.    Men  do  not  need  any  regulatii  Public  opinion,  which 

u  that  a  man  shall  take  off  his  hat  in  the  presence  of  ladies, 
dent,  and  does  not  need  the  aid  of  any  police  regulation," 

See  Quong  Wong  v.  EUrkendall,  pi  >~  to  sex  dlscrimlna 

tion  generally,  see  Freund,  Police  Power.   §5  701-703. 


374  FUNDAMENTAL    RIGHTS  (Part  2 

in  error  does  not  question  the  right  of  the  legislature  of  Indiana  to 
classify  railroads  in  order  to  impose  liability  upon  them  for  injuries 
to  their  employees  incident  to  railroad  hazards,  but  it  does  insist  that, 
to  make  this  a  constitutional  exercise  of  legislative  power,  the  liability 
of  the  railroads  must  be  made  to  depend  upon  the  character  of  the 
employment,  and  not  upon  the  character  of  the  employer." 

Thus  stated,  the  argument  tends  to  confuse  the  question  for  deci- 
sion, since  there  is  no  contention  that  the  statute  as  construed  bases 
any  classification  upon  some  supposed  distinction  in  the  person  of 
the  employer.  The  idea  evidently  intended  to  be  expressed  by  the 
argument  is,  that  although,  speaking  in  a  general  sense,  it  be  true 
that  the  hazards  arising  from  the  operation  of  railroads  are  such  that 
a  classification  of  railroad  employees  is  justified,  yet,  as  in  operating 
railroads  some  employees  are  subject  to  risks  peculiar  to  such  oper- 
ation, and  others  to  risks  which,  however  serious  they  may  be,  are  not, 
in  the  proper  sense,  risks  arising  from  the  fact  that  the  employees 
are  engaged  in  railroad  work,  the  legislative  authority  in  classifying 
may  not  confound  the  two  by  considering  in  a  generic  sense  the  na- 
ture and  character  of  the  work  performed  by  railroad  employees  col- 
lectively considered,  but  must  consider  and  separately  provide  for  the 
distinctions  occasioned  by  the  varying  nature  and  character  of  the 
duties  which  railroad  operatives  may  be  called  upon  to  discharge. 

In  other  words,  reduced  to  its  ultimate  analysis  the  contention 
comes  to  this:  That  by  the  operation  of  the  equal  protection  clause 
of  the  fourteenth  amendment,  the  states  are  prohibited  from  exerting 
their  legitimate  police  powers  upon  grounds  of  the  generic  distinc- 
tion obtaining  between  persons  and  things,  however  apparent  such 
distinction  may  be ;  but,  on  the  contrary,  must  legislate  upon  the  basis 
of  a  minute  consideration  of  the  distinctions  which  may  arise  from 
accidental  circumstances  as  to  the  persons  and  things  coming  within 
the  general  class  provided  for.  When  the  proposition  is  thus  accurate- 
ly fixed,  it  necessarily  results  that  in  effect  it  denies  the  existence  of 
the  power  to  classify,  and  hence  must  rest  upon  the  assumption  that  the 
equal  protection  clause  of  the  fourteenth  amendment  has  a  scope  and 
effect  upon  the  lawful  authority  of  the  states  contrary  to  the  doctrine 
maintained  by  this  court  without  deviation.  This  follows,  since  the 
necessary  consequence  of  the  argument  is  to  virtually  challenge  the 
legislative  power  to  classify,  and  the  numerous  decisions  upholding 
that  authority.  To  this  destructive  end  it  is  apparent  the  argument 
must  come,  since  it  assumes  that  however  completely  a  classification 
may  be  justified  by  general  considerations,  such  classification  may  not 
be  made  if  inequalities  be  detected  as  to  some  persons  embraced  with- 
in the  general  class  by  a  critical  analysis  of  the  relation  of  the  persons 
or  things  otherwise  embraced  within  the  general  class.  A  brief  ref- 
erence to  some  of  the  cases  dealing  with  the  power  of  a  state  to 
classify  will  make  the  error  of  the  contention  apparent. 

In  Magoun  v.  Illinois  Trust  &  Sav.  Bank,  170  U.  S.  294,  18  Sup. 


Ch.  10)  DDE    PROCESS    AND    SODALITY!     POI.H'E    POWEB  875 

Ct.  594,  42  L.  Ed.  1043,  while  declaring  that  the  power  of  a  state  to 
distinguish,  select,  and  classify  objects  of  legislation  was,  of  course, 
not  without  limitation,  it  was  said,  "necessarily  this  power  must  have 
a  wide  range  of  discretion."  After  referring  to  various  decisions  of 
this  court,  it  was  observed :  "There  is  therefore  no  precise  applica- 
tion of  the  rule  of  reasonableness  of  classification,  and  the  rule  of 
equality  permits  many  practical  inequalities.  And  necessarily  so.  In 
a  classification  for  governmental  purposes  there  cannot  be  an  exact 
exclusion  or  inclusion  of  persons  and  things." 

Again  considering  the  subject  in  Orient  Ins.  Co.  v.  Daggs,  172  U.  S. 
557,  19  Sup.  Ct.  281,  43  L.  Ed.  552,  it  was  reiterated  that  the  legis- 
lature of  a  state  has  necessarily  a  wide  range  of  discretion  in  distin- 
guishing, selecting,  and  classifying,  and  it  was  declared  that  it  was 
sufficient  to  satisfy  the  demand  of  the  Constitution  if  a  classification 
was  practical,  and  not  palpably  arbitrary. 

In  Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593,  26  Sup.  Ct.  159,  50 
L.  Ed.  322,  a  statute  of  Minnesota,  providing  that  the  liability  of  rail- 
road companies  for  damages  to  employees  should  not  be  diminished 
by  reason  of  accident  occurring  through  the  negligence  of  fellow  serv- 
ants, was  held  not  to  discriminate  against  any  class  of  railroads,  or  to 
deny  the  equal  protection  of  the  laws  because  of  a  proviso  which 
excepted  employees  engaged  in  construction  of  new  and  unopened 
railroads.  In  the  course  of  the  opinion  the  court  said  (199  U.  S.  598, 
26  Sup.  Ct.  161  [50  L.  Ed.  322]):  "The  whole  case  is  put  on  the 
proviso,  and  the  argument  with  regard  to  that  is  merely  one  of  the 
many  attempts  to  impart  an  overmathematical  nicety  to  the  prohibi- 
tions of  the  fourteenth  amendment."  These  principles  were  again 
applied  in  Martin  v.  Pittsburg  &  L.  E.  R.  Co.,  203  U.  S.  284,  27  Sup. 
Ct.  100.  51  L.  Ed.  184,  8  Ann.  Cas.  87,  and  the  doctrines  were  also 
fully  considered  and  reiterated  at  this  term  in  Southwestern  Oil  Co. 
v.  Texas,  217  U.  S.  114,  54  L.  Ed.  688,  30  Sup.  Ct.  496. 

And  coming  to  consider  the  concrete  application  made  of  these 
general  principles  in  the  decisions  of  this  court  which  have  construed 
the  statute  here  in  question,  and  statutes  of  the  same  general  charac- 
ter enacted  in  states  other  than  Indiana,  we  think,  when  rightly  ana- 
lyzed, it  will  appear  that  they  are  decisive  against  the  contention  now 
made.  It  is  true  that  in  the  Tullis  Case,  which  came  here  on  certificate, 
the  nature  and  character  of  the  work  of  the  railroad  employee  who  was 
injured  was  not  stated,  and  that  reference  in  the  course  of  the  opinion 
was  made  to  some  state  cases,  limiting  the  right  to  classify  to  em- 
ployees engaged  in  the  movement  of  trains.  But  that  it  was  not  the 
intention  of  the  court  to  thereby  intimate  that  a  classification,  if  not 
so  restricted,  would  be  repugnant  to  the  equal  protection  clause  of 
the  fourteenth  amendment,  will  be  made  clear  by  observing  that  the 
previous  case  of  Chicago,  K.  &  W.  R.  Co.  v.  Pontius,  157  U.  S 
15  Sup.  Ct.  585,  39  L.  Ed.  675,  was  cited  approvingly,  in  which,  under 
a  statute  of  Kansas  classifying  railroad  employees,  recovery  was  al- 


376  FUNDAMENTAL,   RIGHTS  (Part  2 

lowed  to  a  bridge  carpenter  employed  by  the  railroad  company,  who 
was  injured  while  attempting  to  load  timber  on  a  car.  And  in  the 
opinion  in  the  Pontius  Case  there  was  approvingly  cited  a  decision  of 
the  court  of  appeals  of  the  eighth  circuit  (Chicago,  R.  I.  &  P.  R.  Co. 
v.  Stahley,  11  C.  C.  A.  88,  27  U.  S.  App.  157,  62  Fed.  362),  wherein  it 
was  held  that,  under  the  same  statute,  an  employee  injured  in  a  round- 
house while  engaged  in  lifting  a  driving  rod  for  attachment  to  a  new 
engine  could  recover  by  virtue  of  the  statute.  All  this  is  made  plainer 
by  the  ruling  in  St.  Louis  Merchants'  Bridge  Terminal  R.  Co.  v.  Calla- 
han, 194  U.  S.  628,  24  Sup.  Ct.  857,  48  L.  Ed.  1157,  where,  upon  the 
authority  of  the  Tullis  Case,  the  court  affirmed  a  judgment  of  the  su- 
preme court  of  Missouri,  which  held  that  recovery  might  be  had  by 
a  section  hand  upon  a  railroad,  who,  while  engaged  in  warning  passers- 
by  in  a  street  beneath  an  overhead  bridge,  was  struck  by  a  tie  thrown 
from  the  structure. 

While,  as  we  have  previously  said,  it  is  true  there  are  state  decisions 
dealing  with  statutes  classifying  railroad  employees  sustaining  the 
restricted  power  to  classify  which  is  here  insisted  upon,  we  do  not 
think  it  is  necessary  to  review  them  or  to  notice  those  tending  to  the 
contrary.  They  are  referred  to  in  the  opinions  rendered  in  the  court 
below.  Nor  do  we  think  our  duty  in  this  respect  is  enlarged  because, 
since  the  judgment  below  was  rendered,  the  court  of  last  resort  in 
Indiana  (Indianapolis  Traction  Co.  v.  Kinney,  171  Ind.  612,  85  N.  E. 
954,  23  L.  R.  A.  (N.  S.)  711,  and  Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 
Poland,  174  Ind.  411,  91  N.  E.  594,  92  N.  E.  165)  has,  upon  the  theory 
that  it  was  necessary  to  save  the  statute  in  question  from  being  de- 
clared repugnant  to  the  equality  clause  of  the  state  Constitution  and  the 
fourteenth  amendment,  unequivocally  held  that  the  statute  must  be  con- 
strued as  restricted  to  employees  engaged  in  train  service. 

Judgment  affirmed.1 


LINDSLEY  v.  NATURAL  CARBONIC  GAS  CO. 

(Supreme  Court  of  United    States,   1911.     220  U.  S.  61,  31   Sup.  Ct.  337,  55 
L.  Ed.  369.) 

[Appeal  from  United  States  Circuit  Court  for  the  Southern  Dis- 
trict of  New  York.  A  New  York  statute,  as  interpreted  by  the  local 
courts,  forbade  the  wasteful  or  unreasonable  pumping  from  wells 
bored  into  the  rock  of  a  certain  class  of  mineral  waters  having  an 
excess  of  carbonic  acid  gas,  for  the  purpose  of  extracting  or  vending 
such  gas  as  a  commodity  separate  from  the  water  in  which  it  oc- 
curred, provided  that  said  mineral  water  was  drawn  from  a  source 

i  Would  an  act  like  that  in  the  principal  case  be  valid  if  alone  applicable 
to  all  railway  employees,  regardless  of  the  branch  of  service  in  which  em- 
ployed? See  Chicago  H.  L.  Ry.  Co.  v.  Hackett,  228  U.  S.  559,  33  Sup.  Ct. 
581,  57  L.  Ed.  (1913). 


Ch.  10)  DDE   PROCESS  AND   EQUALITY!     POLICE    POWEB 

of  supply  common  to  other  surface  owners  and  that  such  pumping 
was  injurious  to  such  other  owners.  Plaintiff  company  was  engaged 
at  Saratoga  Springs,  N.  Y.,  in  the  occupation  thus  forbidden,  and 
sought  an  injunction  in  the  Circuit  Court  against  the  enforcement  of 
the  statute.  Upon  demurrer  plaintiff's  bill  was  dismissed,  and  plain- 
tiff appealed.] 

Mr.  Justice  Van  Devanter.  *  *  *  Because  the  statute  is  di- 
rected against  pumping  from  wells  bored  or  drilled  into  the  rock, 
but  not  against  pumping  from  wells  not  penetrating  the  rock,  and 
because  it  is  directed  against  pumping  for  the  purpose  of  collecting 
the  gas  and  vending  it  apart  from  the  waters,  but  not  against  pump- 
ing for  other  purposes,  the  contention  is  made  that  it  is  arbitrary  in 
its  classification,  and  consequently  denies  the  equal  protection  of  the 
laws  to  those  whom  it  affects. 

The  rules  by  which  this  contention  must  be  tested,  as  is  shown  by 
repeated  decisions  of  this  court,  are  these:  1.  The  equal-protection 
clause  of  the  fourteenth  amendment  does  not  take  from  the  state 
the  power  to  classify  in  the  adoption  of  police  laws,  but  admits  of  the 
exercise  of  a  wide  scope  of  discretion  in  that  regard,  and  avoids 
what  is  done  only  when  it  is  without  any  reasonable  basis,  and  there- 
fore is  purely  arbitrary.  2.  A  classification  having  some  reasonable 
basis  does  not  offend  against  that  clause  merely  because  it  is  not  made 
with  mathematical  nicety,  or  because  in  practice  it  results  in  some  in- 
equality. 3.  When  the  classification  in  such  a  law  is  called  in  ques- 
tion, if  any  state  of  facts  reasonably  can  be  conceived  that  would 
sustain  it,  the  existence  of  that  state  of  facts  at  the  time  the  law  was 
enacted  must  be  assumed.  4.  One  who  assails  the  classification  in 
such  a  law  must  carry  the  burden  of  showing  that  it  does  not  rest 
upon  any  reasonable  basis,  but  is  essentially  arbitrary.  Bachtel  v. 
Wilson,  204  U.  S.  36,  41,  27  Sup.  Ct.  243.  51  L.  Ed.  357.  359;  Louis- 
ville &  N.  R.  Co.  v.  Melton,  218  U.  S.  36,  30  Sup.  Ct.  676,  54  L.  Ed. 
921;  Ozan  Lumber  Co.  v.  Union  County  Nat.  Bank,  207  U.  S.  251, 
256,  28  Sup.  Ct.  89,  52  L.  Ed.  195.  197:  Munn  v.  Illinois.  94  U.  S. 
113,  132,  24  L.  Ed.  77,  86;  Henderson  Bridge  Co.  v.  Henderson. 
173  U.  S.  592,  615,  19  Sup.  Ct.  553.  43  L.  Ed.  *23.  831. 

Unfortunately,  the  allegations  of  the  bill  shed  but  little  light  upon 
the  classification  in  question.  They  do  not  indicate  that  pumping 
from  wells  not  penetrating  the  rock  appreciably  affects  the  common 
supply  therein,  or  is  calculated  to  result  in  injury  to  the  rights  of 
others,  and  neither  do  they  indicate  that  such  pumping  as  is  done 
for  purposes  other  than  collecting  and  vending  the  gas  apart  from 
the  waters  is  excessive  or  wasteful,  or  otherwise  operates  to  impair 
the  rights  of  others.  In  other  words,  for  aught  that  appears  in  the 
bill,  the  classification  may  rest  upon  some  substantial  difference  be- 
tween pumping  from  wells  penetrating  the  rock  and  pumping  from 
those  not  penetrating  it,  and  between  pumping  for  the  purpose  of 
collecting  and  vending  the  gas  apart  from  the  waters  and  pumping 


378  FUNDAMENTAL    RIGHTS  (Part  2 

for  other  purposes,  and  this  difference  may  afford  a  reasonable  basis 
for  the  classification. 

In  thus  criticising  the  bill,  we  do  not  mean  that  its  allegations  are 
alone  to  be  considered,  for  due  regard  also  must  be  had  for  what 
is  within  the  range  of  common  knowledge  and  what  is  otherwise 
plainly  subject  to  judicial  notice.  Brown  v.  Piper,  91  U.  S.  37,  43, 
23  L.  Ed.  200,  202;  Brown  v.  Spilman,  155  U.  S.  665,  670,  15  Sup. 
Ct.  245,  39  L.  Ed.  304,  305 ;  New  Mexico  ex  rel.  McLean  v.  Denver 
&  R.  G.  R.  Co.,  203  U.  S.  38,  51,  27  Sup.  Ct.  1,  51  L.  Ed.  78,  86; 
Illinois  ex  rel.  McNichols  v.  Pease,  207  U.  S.  100,  111,  28  Sup.  Ct. 
58,  52  L.  Ed.  121,  126.  But  we  rest  our  criticism  upon  the  fact  that 
the  bill  is  silent  in  respect  of  some  matters  which,  although  essential 
to  the  success  of  the  present  contention,  are  neither  within  the  range 
of  common  knowledge  nor  otherwise  plainly  subject  to  judicial  no- 
tice. So,  applying  the  rule  that  one  who  assails  the  classification  in 
such  a  law  must  carry  the  burden  of  showing  that  it  is  arbitrary,  we 
properly  might  dismiss  the  contention  without  saying  more.  But  it 
may  be  well  to  mention  other  considerations  which  make  for  the  same 
result. 

From  statements  made  in  the  briefs  of  counsel  and  in  oral  argu- 
ment, we  infer  that  wells  not  penetrating  the  rock  reach  such  waters 
only  as  escape  naturally  therefrom  through  breaks  or  fissures;  and 
if  this  be  so,  it  well  may  be  doubted  that  pumping  from  such  wells 
has  anything  like  the  same  effect — if,  indeed,  it  has  any — upon  the 
common  supply  or  upon  the  rights  of  others,  as  does  pumping  from 
wells  which  take  the  waters  from  within  the  rock,  where  they  exist 
under  great  hydrostatic  pressure. 

As  respects  the  discrimination  made  between  pumping  for  the  pur- 
pose of  collecting  and  vending  the  gas  apart  from  the  waters,  and 
pumping  for  other  purposes,  this  is  to  be  said:  The  greater  demand 
for  the  gas  alone,  and  the  value  which  attaches  to  it  in  consequence 
of  this  demand,  furnish  a  greater  incentive  for  exercising  the  com- 
mon right  excessively  and  waste  fully  when  the  pumping  is  for  the 
purpose  prescribed  than  when  it  is  for  other  purposes ;  and  this  sug- 
gestion becomes  stronger  when  it  is  reflected  that  the  proportion  of 
gas  in  the  commingled  fluids  as  they  exist  in  the  rock  is  so  small  that 
to  obtain  a  given  quantity  of  gas  involves  the  taking  of  an  enormously 
greater  quantity  of  water,  and  to  satisfy  appreciably  the  demand  for 
the  gas  alone  involves  a  great  waste  of  the  water  from  which  it  is 
collected.  Thus,  it  well  may  be  that  in  actual  practice  the  pumping  is 
not  excessive  or  wasteful  save  when  it  is  done  for  the  purpose  pre- 
scribed. 

These  considerations  point  with  more  or  less  persuasive  force  to  a 
substantial  difference,  in  point  of  harmful  results,  between  pumping 
from  wells  penetrating  the  rock,  and  pumping  from  those  not  pene- 
trating it,  and  between  pumping  for  the  purpose  of  collecting  and 
vending  the  gas  apart  from  the  waters,  and  pumping  for  other  pur- 


Ch.  10)  DTTE   PBOCHB8   AND   EQUALITY:     POLICE   POWER  879 

poses.  If  there  be  such  a  difference,  it  justifies  the  classification,  for 
plainly  a  police  law  may  be  confined  to  the  occasion  for  its  existence. 
As  is  said  in  Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  401,  411,  26 
Sup.  Ct.  66,  50  L.  Ed.  246,  250;  "If  an  evil  is  specially  experienced 
in  a  particular  branch  of  business,  the  Constitution  embodies  no  pro- 
hibition of  laws  confined  to  the  evil,  or  doctrinaire  requirement  that 
they  should  be  couched  in  all-embracing  terms."  *  *  * 
Decree  affirmed. 


SECTION  3.— ADMINISTRATIVE  REGULATIONS  AND  DIS- 
CRETION 


ST.  JOHN  v.  NEW  YORK  (1906)  201  U.  S.  633,  636-638,  26 
Sup.  Ct.  554,  50  L.  Ed.  896,  5  Ann.  Cas.  909,  Mr.  Justice  McKi.nn*. 
(upholding  a  New  York  statute  absolutely  penalizing  nonproducing 
vendors  for  selling  milk  below  a  certain  test,  while  producing  ven- 
ders might  exempt  themselves  as  indicated  below) : 

"The  contention  of  plaintiff  in  error  is  that  nonproducing  venders 
are  discriminated  against,  and  hence  denied  the  equal  protection  of 
the  laws,  contrary  to  the  provisions  of  the  fourteenth  amendment  of  the 
Constitution  of  the  United  States,  in  that  they  may  not,  as  producing 
venders  may,  exempt  themselves  from  actions  or  penalties  for  viola- 
tions of  subdivisions  1,  2,  3,  7,  and  8  of  section  20  by  showing  that 
the  milk  sold  or  offered  for  sale  by  them  is  in  the  same  condition  as 
when  it  left  the  herd  of  the  producer. 

"It  has  been  decided  many  times  that  a  state  may  classify  persons 
and  objects  for  the  purpose  of  legislation.  We  will  assume  the  cases 
are  known  and  proceed  immediately  to  consider  whether  the  classifica- 
tion of  the  law  is  based  on  proper  and  justifiable  distinctions,  con- 
sidering the  purpose  of  the  law  and  the  means  to  be  observed  to  effect 
that  purpose.  *  *  *  The  purpose  of  the  law  is  to  secure  to  the 
population,  adult  and  infant,  milk  attaining  a  certain  standard  of 
purity  and  strength.     *     *     * 

"It  is  not  contended  that  such  purpose  is  not  within  the  power  of 
the  state,  but  it  is  contended  that  the  power  is  not  exercised  on  all 
alike  who  stand  in  the  same  relation  to  the  purpose,  and  quite  dra- 
matic illustrations  are  used  to  show  discrimination.  A  picture  is  ex- 
hibited of  producing  and  nonproducing  venders  selling  milk  side  by 
side;  the  latter,  it  may  be,  a  purchaser  from  the  former;  the  act  of 
one  permitted,  the  act  of  the  other  prohibited  or  penalized.  If  we 
could  look  no  farther  than  the  mere  act  of  selling,  the  injustice  of 
the  law  might  be  demonstrated;  but  something  more  must  be  con- 
sidered. Not  only  the  final  purpose  of  the  law  must  be  considered, 
but  the  means  of  its  administration,— the  ways  it  may  be  defeated 
Legislation,  to  be  practical  and  efficient,  must  regard  this  special  pur- 


380  FUNDAMENTAL    RIGHTS  (Part  2 

pose  as  well  as  the  ultimate  purpose.  The  ultimate  purpose  is  that 
wholesome  milk  shall  reach  the  consumer,  and  it  is  the  conception 
of  the  law  that  milk  below  a  certain  strength  is  not  wholesome,  but 
a  difference  is  made  between  milk  naturally  deficient  and  milk  made 
so  by  dilution.  It  is  not  for  us  to  say  that  this  is  not  a  proper  dif- 
ference, and  regarding  it  the  law  fixes  its  standard  by  milk  in  the 
condition  that  it  comes  from  the  herd.  It  is  certain  that  if  milk 
starts  pure  from  the  producer  it  will  reach  the  consumer  pure,  if  not 
tampered  with  on  the  way.  To  prevent  such  tampering  the  law  is 
framed  and  its  penalties  adjusted.  As  the  standard  established  can 
be  proved  in  the  hands  of  a  producing  vender,  he  is  exempt  from 
the  penalty ;  as  it  cannot  certainly  be  proved  in  the  hands  of  other 
venders  so  as  to  prevent  evasions  of  the  law,  such  venders  are  not 
exempt.  In  the  one  case  the  source  of  milk  can  be  known  and  the 
tests  of  the  statute  applied;  in  the  other  case  this  would  be  impos- 
sible, except  in  few  instances.  We  cannot  see  that  any  particular 
hardship  results.  The  nonproducing  vender  must  exercise  care  in 
his  purchases,  and  good  all  around  may  be  accomplished.  Through 
penalty  on  the  nonproducing  vender  the  producer  is  ultimately 
reached,  though  he  may  seem  to  be  indulged.  He  will  have  to  raise 
the  standard  of  the  milk  of  his  herd  if  he  would  keep  or  extend  his 
trade  as  anything  but  a  mere  retailer  of  his  product."  1 

i  Accord :  Adams  v.  Milwaukee,  228  TJ.  S.  572,  33  Sup.  Ct.  610.  57  L.  Ed. 
(1013)  (different  regulations  for  milk  producers  within  and  without  city). 

In  District  of  Columbia  v.  Brooke,  214  U.  S.  13S,  150,  151,  29  Sup.  Ct. 
560,  563,  53  L.  Ed.  941  (1909),  a  statute  was  upheld  that  provided  different 
remedies  against  resident  and  non-resident  house  owners  who  failed  to  make 
sewer  connections ;  McKenna,  J.,  saying :  "Classification  need  not  be  either 
logically  appropriate  or  scientifically  accurate.  The  problems  which  are  met 
in  the  government  of  human  beings  are  different  from  those  involved  in  the 
examination  of  the  objects  of  the  physical  world,  and  assigning  them  to  their 
proper  associates.  *  *  *  The  act  in  controversy  makes  a  distinction  in 
its  provision  between  resident  and  nonresident  lot  owners,  but  this  is  a 
proper  basis  for  classification.  Regarded  abstractly  as  human  beings,  re- 
garded abstractly  as  lot  owners,  no  legal  difference  may  be  observed  between 
residents  and  nonresidents;  but,  regarded  in  their  relation  to  their  respec- 
tive lots  under  regulating  laws,  the  limitations  upon  jurisdiction,  and  the 
power  to  reach  one  and  not  the  other,  important  differences  immediately  ap- 
pear. We  said  in  St.  John  v.  New  Xork,  201  U.  S.  at  page  037,  26  Sup.  Ct. 
554,  50  L.  Ed.  898,  5  Ann.  Cas.  909,  not  only  the  purpose  of  a  law  must  be 
considered,  but  the  means  of  its  administration,— the  ways  it  may  be  de- 
feated. Legislation,  to  be  practical  and  efficient,  must  regard  this  special  pur- 
pose as  well  as  the  ultimate  purpose.  This  was  in  effect  repeated  in  Field 
v.  Barber  Asphalt  Paving  Co.,  194  U.  S.  618,  24  Sup.  Ct.  7S4,  4S  L.  Ed.  1142, 
where  a  privilege  to  protest  against  a  street  improvement,  given  by  the  stat- 
ute assailed  to  resident  property  owners  and  denied  to  nonresident  property 
owners,  was  sustained,  and  the  statute  held  not  to  violate  the  equality  clause 
of  the  fourteenth  amendment.  See  Travelers'  Ins.  Co.  v.  Connecticut,  185 
U.  S.  364,  22  Sup.  Ct.  673,  46  L.  Ed.  949.  »  •  *  Against  resident  owners 
the  coercion  of  the  law  is  by  criminal  punishment,  while  against  nonresident 
owners  the  remedy  is  by  civil  proceedings, — the  District  does  the  work  that 
the  nonresident  owners  neglect,  and  charges  the  expense  thereof  on  their 
property.  This  Is  a  distinction,  a  discrimination,  it  may  be  called,  but  it 
has  even  more  justification  than  that  sustained  in  Field  v.  Barber  Asphalt 
Paving  Co.,  supra.     The  statute  under  consideration  in   the  case  at  bar  en- 


Ch.  10)  DUE   PROCESS  AND   EQUALITI I     POLICE   POWBB  3^1 

MOBILE,  J.  &  K.  C.  R.  CO,  v.  TURNIPSEED  (1910)  219  U.  S 
35,  42^4,  31  Sup.  Ct.  136,  55  L.  Ed.  78,  32  L.  R.  A.  (N.  S.)  226,  Ann. 
Cas.  1912A,  463,  Mr.  Justice  Luuton  (sustaining  a  Mississippi  statute 
making  injuries  inflicted  by  the  running  of  locomotives  or  cars  prima 
facie  evidence  of  negligence  on  the  part  of  railroads) : 

"The  law  of  evidence  is  full  of  presumptions  either  of  fact  or  law 
The  former  are,  of  course,  disputable,  and  the  strength  of  any  infer- 
ence of  one  fact  from  proof  of  another  depends  upon  the  generality  of 
the  experience  upon  which  it  is  founded.     For  a  discussion  of  some 

joins  a  duty  on  both  resident  and  nonresident  lot  owners. — a  duty  necessary 
to  be  followed  to  preserve  the  health  of  the  city.    There  Is  a  difference  only 
In   the  manner  of  enforcing  It, — a  difference  arising  from  the  different  sit- 
uation of  the  lot  owners,  and  therefore  competent  for  Congress   I 
its  legislation.     In  other  words,  under  the  circumstances  presented   by   this 
record,  the  distinction  between  residents  and  nonresidents  is  a   proper  basis 
for  classification.     It  might  not  be  under  other  circumstances.     Blake  v.   Mr 
Clung,  172  TJ.    S.  239,    19   Sup.   Ct.   165,   43    L.   Ed.    432;     Blake   v.   M 
176  U.  S.  59,  20  Sup.  Ct.  307,  44  L.  Ed.  371  ;    Sully  v.  American  Nat  Bank. 
178  U.  S.  2S9,  20  Sup.  Ct.  935,  44  L.  Ed.  1072." 

As  to  the  validity  of  various  procedural  distinctions  between  different 
classes  of  parties  to  litigation,  see  note  to  Strauder  v.  W.  Va..  ante,  p.  31S. 

More  effectively  to  enforce  its  laws  against  the  sale  of  wild  game  killed 
within  the  state  during  the  closed  season,  a  state  may  also  forbid  the  Bale 
of  all  imported  game  of  a  similar  species,  ev(  the  latter  In   : 

lar  cases  may  have  readily  distinguishable  physical  characteristics,  New 
York  ex  rel.  Silz  v.  Hesterberg,  211  TJ.  S.  31,  29  Sup.  Ct  H>,  58  E.  EM.  7.". 
(1908);  as  well  as  game  artificially  propagated  in  confinement  by  private 
owners.  Commonwealth  v.  Gilbert,  1C0  Mass.  157.  35  X.  E.  454,  22  L.  II.  A 
439  (1S93).  See  Plumley  v.  Massachusetts,  155  D.  S.  461,  15  Sup.  Ct  154, 
.",9  E.  Ed.  22.':  (1894)  (sale  of  all  colored  oleo 

Ah  Sin  v.  Wittruan,  19S  U.  S.  500.  500.  25  Sup.  Ct  756,  4!)  E.  Ed.  1142  U905' 
(can   innocent  visit   to   gaming  house  be   ]>■ 

In  Purity  Extract  &  Tonic  Co.  v.  Lynch,  226   0,   S.   192,   201,  '-'"l. 

Ct.  44,  4G,  47,  57  L.   Ed.  (1912),   Hughes.  .1..  said  (upholding  I  he  prohlU 

tion  of  the  sale  of  a  harmless  beverage  Containing  a  low  p  >J    malt): 

"When  a  state  exerting  its  recognized  authority,  undertakes  to    up]  ress  whal 
it  is  free  to  regard  as  a  public  evil,  it  may  adopt  such  measures  bavin;;  rea- 
Bonable  relation  to  that  end  as  it  may  deem  necessary   in   order  to  make  its 
action  effective.    It  does  not  follow  that  because  a   transaction,  si , 
considered,  is  innocuous,  it  may  not  be  Included   in  a  prohibition  the 
of  which  is  regarded  as  essential  in  the  legislative  judgment  to  accomplish  a 
purpose    within    the    admitted   power    of    the   government.     •     •     •     It    was 
competent  for  the  legislature  of  Mississippi  to  recognize  the  dlfficull 
setting  tin'  administration  of  laws  aimed  at  the  prevention  of  traffic  in  Intoxl 
cants.     It  prohibited,  among  other  things,  the  sale  of   •malt  liquors.'      In  thus 
dealing  with  a   class  of  beverages  which,  in  general,  are  regarded   as  Intoxl 
eating,  it   was  not  hound  to  resort  to  a  discrimination  with  respect   to  ingredi- 
ents and  processes  of  manufacture  which,   in  the  endeavor   to  eliminate  In 
nocuous  beverages  from  the  Condemnation,  would  facilitate  subterfuges  an.: 
frauds  and  fetter  the  enforcement  of  the  law.     •    •    »     The   existence  of 
this  power,  as  the  authorities  we  have  cited  abundantly  denii  nstrat. 
to  be  denied  simply  because  some  innocent  articles  or  transactions  may  be 
found  within   the  proscribed  class.     The  inquiry   must   be  whether.  Q 
lng  the  end  in  view,  the  statt  the  bounds  of  reason  uud  assumes  the 

character  of  a  merely  arbitrary 

See,  also,  Commonwealth  v.  Alger,   ante.   p.  321,    and   Schmldlnger   \     • 

eago,   226   1'.  S.  678,   .:.•'.  Sup.  Ct.    182,  67   L.   Ed. (1013)   (fixing  standard 

weights  for  loaves  of  bread  and  forbidding  sale  of  other  sizes). 


382  FUNDAMENTAL    EIGHTS  (Part  2 

common-law  aspects  of  the  subject,  see  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  v.  South  Fork  Coal  Co.,  71  C.  C.  A.  316,  139  Fed.  528  et  seq.,  1 
L.  R.  A.  (N.  S.)  533. 

"Legislation  providing  that  proof  of  one  fact  shall  constitute  prima 
facie  evidence  of  the  main  fact  in  issue  is  but  to  enact  a  rule  of  evi- 
dence, and  quite  within  the  general  power  of  government.  Statutes, 
national  and  state,  dealing  with  such  methods  of  proof  in  both  civil 
and  criminal  cases,  abound,  and  the  decisions  upholding  them  are  nu- 
merous. A  few  of  the  leading  ones  are  Adams  v.  New  York,  192  U. 
S.  585,  24  Sup.  Ct.  372,  48  L.  Ed.  575 ;  People  v.  Cannon,  139  N.  Y. 
32,  34  N.  E.  759,  36  Am.  St.  Rep.  668 ;  Home  v.  Memphis  &  O.  R. 
Co.,  1  Cold.  (Tenn.)  72;  Meadowcroft  v.  People,  163  111.  56,  45  N.  E. 
991,  35  L.  R.  A.  176,  54  Am.  St.  Rep.  447;  Com.  v.  Williams,  6  Gray 
(Mass.)  1;  State  v.  Thomas,  144  Ala.  77,  40  South.  271,  2  L.  R.  A. 
(N.  S.)  1011,  113  Am.  St.  Rep.  17,  6  Ann.  Cas.  744. 

"We  are  not  impressed  with  the  argument  that  the  supreme  court  of 
Mississippi,  in  construing  the  act,  has  declared  that  the  effect  of  the 
statute  is  to  create  a  presumption  of  liability,  giving  to  it,  thereby,  an 
effect  in  excess  of  a  mere  temporary  inference  of  fact.  The  statutory 
effect  of  the  rule  is  to  provide  that  evidence  of  an  injury  arising  from 
the  actual  operation  of  trains  shall  create  an  inference  of  negligence, 
which  is  the  main  fact  in  issue.  The  only  legal  effect  of  this  inference 
is  to  cast  upon  the  railroad  company  the  duty  of  producing  some  evi- 
dence to  the  contrary.  When  that  is  done  the  inference  is  at  an  end, 
and  the  question  of  negligence  is  one  for  the  jury,  upon  all  of  the  evi- 
dence. In  default  of  such  evidence,  the  defendant,  in  a  civil  case,  must 
lose,  for  the  prima  facie  case  is  enough  as  matter  of  law. 

"The  statute  does  not,  therefore,  deny  the  equal  protection  of  the 
law,  or  otherwise  fail  in  due  process  of  law,  because  it  creates  a  pre- 
sumption of  liability,  since  its  operation  is  only  to  supply  an  inference 
of  liability  in  the  absence  of  other  evidence  contradicting  such  infer- 
ence. 

"That  a  legislative  presumption  of  one  fact  from  evidence  of  anoth- 
er may  not  constitute  a  denial  of  due  process  of  law  or  a  denial  of  the 
equal  protection  of  the  law,  it  is  only  essential  that  there  shall  be  some 
rational  connection  between  the  fact  proved  and  the  ultimate  fact  pre- 
sumed, and  that  the  inference  of  one  fact  from  proof  of  another  shall 
not  be  so  unreasonable  as  to  be  a  purely  arbitrary  mandate.  So,  also, 
it  must  not,  under  guise  of  regulating  the  presentation  of  evidence,  op- 
erate to  preclude  the  party  from  the  right  to  present  his  defense  to  the 
main  fact  thus  presumed. 

"If  a  legislative  provision  not  unreasonable  in  itself,  prescribing  a 
rule  of  evidence,  in  either  criminal  or  civil  cases,  does  not  shut  out 
from  the  party  affected  a  reasonable  opportunity  to  submit  to  the  jury 
in  his  defense  all  of  the  facts  bearing  upon  the  issue,  there  is  no  ground 
for  holding  that  due  process  of  law  has  been  denied  him. 

"Tested  by  these  principles,  the  statute  as  construed  and  applied  by 


Ch.  10)  DIE   PROCESS  AND   !:<..(  Al.Il  V  :     POLICB    I 

the  Mississippi  court  in  this  case  is  unobjectionable.  It  is  not  an  unrea- 
sonable inference  that  a  derailment  of  railway  cars  is  due  to  some  neg- 
ligence, either  in  construction  or  maintenance  of  the  track  or  trains, 
or  some  carelessness  in  operation. 

"From  the  foregoing  considerations  it  must  be  obvious  that  the  ap- 
plication of  the  act  to  injuries  resulting  from  'the  running  of  locomo- 
tives and  cars'  is  not  an  arbitrary  classification,  but  one  resting  upon 
considerations  of  public  policy,  arising  out  of  the  character  of  the  busi- 
ness." l 


YICK  WO  v.  HOPKIXS. 

(Supreme  Court  of  United  States,  1886.     118  U.  S.  350,  6  Pup.  Ct.  1004,  30  L. 
Ed.  220.) 

[Error  to  the  Supreme  Court  of  California.  An  ordinance  of  San 
Francisco  forbade  any  person  to  carry  on  a  laundry  within  the  city 
without  the  consent  of  the  board  of  supervisors,  except  in  buildings  of 
brick  or  stone.  Yick  Wo,  a  native  of  China,  who  had  conducted  a 
laundry  in  a  certain  wooden  building  in  that  city  for  22  years,  and  who 
had  there  complied  with  all  existing  regulations  for  the  prevention  of 
fire  and  the  protection  of  health,  was  refused  such  consent  by  said 
board,  upon  his  application  ;  and  he  was  later  convicted  and  imprisoned 
by  order  of  the  local  police  court  for  conducting  his  laundry  without 
such  consent.  The  state  Supreme  Court  denied  his  petition  for  a  writ 
of  habeas  corpus.  One  Wo  Lee,  in  a  similar  situation,  was  denied  a 
writ  of  habeas  corpus  by  the  United  States  Circuit  Court,  in  California. 
Yick  Wo  took  a  writ  of  error,  and  Wo  Lee  an  appeal.  Other  facts  ap- 
pear in  the  opinion.] 

Mr.  Justice  Matthews.  *  *  *  In  the  case  of  the  petitioner, 
brought  here  by  writ  of  error  to  the  Supreme  Court  of  California,  our 
jurisdiction  is  limited  to  the  question,  whether  the  plaintiff  in  error 
has  been  denied  a  right  in  violation  of  the  Constitution,  laws,  or  treaties 
of  the  United  States.  The  question  whether  his  imprisonment  is 
illegal,  under  the  Constitution  and  laws  of  the  state,  is  not  open  to  us. 
And  although  that  question  might  have  been  considered  in  the  Circuit 
Court  in  the  application  made  to  it,  and  by  this  court  on  appeal  from 
its  order,  yet  judicial  propriety  is  best  consulted  by  accepting  the  judg- 
ment of  the  state  court  upon  the  points  involved  in  that  inquiry. 

That,  however,  does  not  preclude  this  court  from  putting  upon  the 
ordinances  of  the  supervisors  of  the  county  and  city  of  San  Francisco 

•  Accord:    tdndsley  ▼.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  81 
Sup.  Ct,  337,  55  L.   Ed.  309,  Ann.  Cns.  1912C,  160  (1911),     See  particularly 
Adams  v.   New   York,  192   U.   S.  585,   598.  599,  24  Sup.   Ct.   372,   18 
575  (1904);    People  v.  Cannon,  139   N.  V.  32,  34  N.  E.  759,  36  Am.   S 
668  (1893),  and  the  cases  there  cited  and  discussed;   Opinion  of  Jusii 
Mass.  619,  623,  624,  94  N.  E.  1044,  34   L.  K.  A.  (N.  S.)  771   (1911).     Compare 
Bailey  v.  Ala.,  ante,  p.  1B8  (statutory  presumptions  regarding  a  constitutionally 
protected  subject-matter). 


3S4  FDNDAMENTAL    RIGHTS  (Part  2 

an  independent  construction ;  for  the  determination  of  the  question 
whether  the  proceedings  under  these  ordinances  and  in  enforcement  of 
them  are  in  conflict  with  the  Constitution  and  laws  of  the  United 
States,  necessarily  involves  the  meaning-  of  the  ordinances,  which,  for 
that  purpose,  we  are  required  to  ascertain  and  adjudge.1 

We  are  consequently  constrained,  at  the  outset,  to  differ  from  the 
Supreme  Court  of  California  upon  the  real  meaning  of  the  ordinances 
in  question.  That  court  considered  these  ordinances  as  vesting  in  the 
board  of  supervisors  a  not  unusual  discretion  in  granting  or  withhold- 
ing their  assent  to  the  use  of  wooden  buildings  as  laundries,  to  be  ex- 
ercised in  reference  to  the  circumstances  of  each  case,  with  a  view  to 
the  protection  of  the  public  against  the  dangers  of  fire.  We  are  not 
able  to  concur  in  that  interpretation  of  the  power  conferred  upon  the 
supervisors.  There  is  nothing  in  the  ordinances  which  points  to  such  a 
regulation  of  the  business  of  keeping  and  conducting  laundries.  They 
seem  intended  to  confer,  and  actually  do  confer,  not  a  discretion  to  be 
exercised  upon  a  consideration  of  the  circumstances  of  each  case,  but  a 
naked  and  arbitrary  power  to  give  or  withhold  consent,  not  only  as  to 
places,  but  as  to  persons.  So  that,  if  an  applicant  for  such  consent, 
being  in  every  way  a  competent  and  qualified  person,  and  having  com- 
plied with  every  reasonable  condition  demanded  by  any  public  interest, 
should,  failing  to  obtain  the  requisite  consent  of  the  supervisors  to  the 
prosecution  of  his  business,  apply  for  redress  by  the  judicial  process  of 
mandamus,  to  require  the  supervisors  to  consider  and  act  upon  his  case, 
it  would  be  a  sufficient  answer  for  them  to  say  that  the  law  had  con- 
ferred upon  them  authority  to  withhold  their  assent,  without  reason 
and  without  responsibility.  The  power  given  to  them  is  not  confided  to 
their  discretion  in  the  legal  sense  of  that  term,  but  is  granted  to  their 
mere  will.  It  is  purely  arbitrary,  and  acknowledges  neither  guidance 
nor  restraint. 

This  erroneous  view  of  the  ordinances  in  question  led  the  Supreme 
Court  of  California  into  the  further  error  of  holding  that  they  were 
justified  by  the  decisions  of  this  court  in  the  cases  of  Barbier  v.  Con- 
nolly, 113  U.  S.  27,  5  Sup.  Ct.  357,  28  L.  Ed.  923,  and  Soon  Hing  v. 
Crowley,  113  U.  S.  703,  5  Sup.  Ct.  730,  28  L.  Ed.  1145.    *    *    * 

i  It  is  now  well  settled  that,  on  writ  of  error  to  a  state  court  under  the 
fourteenth  amendment,  the  state  court's  construction  of  its  own  statutes  is  con- 
clusive. Tullis  v.  Lake  Erie  &  W.  Ry.  Co.,  175  U.  S.  348,  20  Sup.  Ct.  136,  44 
L.  Ed.  192  (1899):  W.  W.  Cargill  Co.  v.  Minnesota  ex  rel.  Railroad  &  W.  Com- 
mission, ISO  U.  S.  452,  21  Sup.  Ct.  423,  45  L.  Ed.  619  (1901) ;  Missouri  ex  rel. 
Hill  v.  Dockery,  191  U.  S.  165,  24  Sup.  Ct  53,  48  L.  Ed.  133  (1903) ;  National 
Cotton  Oil  Co.  v.  Texas,  197  U.  S.  115,  25  Sup.  Ct.  379.  49  h.  Ed.  689  (19051 ; 
Lindsley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  31  Sup.  Ct.  337,  55  L.  Ed. 
369,  Ann.  Cas.  1912C,  160  (1911).  See,  also,  Olsen  v.  Smith,  195  U.  S.  332, 
342,  25  Sup.  Ct.  52,  49  L.  Ed.  224  (1904)  (under  the  commerce  clause).  For 
perhaps  a  certain  confusion  of  thought  between  a  statute's  meaning  and  the 
power  of  which  it  may  be  thought  to  be  an  exercise,  see  Atchison,  T.  &  S.  F. 
Ry.  Co.  v.  Matthews,  174  TJ.  S.  96,  100,  101,  19  Sup.  Ct.  609,  43  L.  Ed.  909 
flS99);  Hodge  v.  Muscatine  County,  196  U.  S.  276,  25  Sup.  Ct  237,  49  L.  Ed. 
477  (1905). 


Ch.  10)  DUE   PROCESS   AND    EQUALITY:     POLICE   POWEB 

The  ordinance  drawn  in  question  in  the  present  case  is  of  a  very 
different  character.  It  does  not  prescribe  a  rule  and  conditions  for 
the  regulation  of  the  use  of  property  for  laundry  purposes,  to  which 
all  similarly  situated  may  conform.  It  allows  without  restriction  the 
use  for  such  purposes  of  buildings  of  brick  or  stone;  but,  as  to  wooden 
buildings,  constituting  nearly  all  those  in  previous  use,  it  divides  the 
owners  or  occupiers  into  two  classes,  not  having  respect  to  their  per- 
sonal character  and  qualifications  for  the  business,  nor  the  situation 
and  nature  and  adaptation  of  the  buildings  themselves,  but  merely  by 
an  arbitrary  line,  on  one  side  of  which  are  those  who  are  permitted  to 
pursue  their  industry  by  the  mere  will  and  consent  of  the  supervisors, 
and  on  the  other  those  from  whom  that  consent  is  withheld,  at  their 
mere  will  and  pleasure.  And  both  clashes  are  alike  only  in  this,  that 
they  are  tenants  at  will,  under  the  supervisors,  of  their  means  "f  living. 
The  ordinance,  therefore,  also  differs  from  the  not  unusual  case,  where 
discretion  is  lodged  by  law  in  public  officers  or  bodies  to  grant  or 
withhold  licenses  to  keep  taverns,  or  places  for  the  sale  of  spirituous 
liquors,  and  the  like,  when  one  of  the  conditions  is  that  the  applicant 
shall  be  a  fit  person  for  the  exercise  of  the  privilege,  because  in  such 
cases  the  fact  of  fitness  is  submitted  to  the  judgment  of  the  officer,  and 
calls  for  the  exercise  of  a  discretion  of  a  judicial  nature.     *     *    ' 

The  fourteenth  amendment  to  the  Constitution  is  not  confined  to 
the  protection  of  citizens.  It  says:  "Xor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property  without  due  process  of  law  ;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws."  These  provisions  are  universal  in  their  application,  to  all  per- 
sons within  the  territorial  jurisdiction,  without  regard  to  any 
ences  of  race,  of  color,  or  of  nationality ;  and  the  equal  protection  of 
the  laws  is  a  pledge  of  the  protection  of  equal  laws.    *     *     * 

It  is  contended  on  the  part  of  the  petitioners,  that  the  ordinances  for 
violations  of  which  they  are  severally  sentenced  to 'imprisonment,  are 
void  on  their  face,  as  being  within  the  prohibitions  of  the  fourteenth 
amendment ;  and,  in  the  alternative,  if  not  so,  that  they  are  void  by  rea- 
son of  their  administration,  operating  unequally,  so  as  to  punish  in  the 
present  petitioners  what  is  permitted  to  others  as  lawful,  without  any 
distinction  of  circumstances — an  unjust  and  illegal  discrimination,  it  :- 
claimed,  which,  though  not  made  expressly  by  the  ordinances,  is  made 
possible  by  them. 

When  we  consider  the  nature  and  the  theory  of  our  instituti 
government,  the  principles  upon  which  they  are  supposed  to  rest,  and 
review  the  history  of  their  development,  we  are  constrained  to  conclude 
that  they  do  not  mean  to  leave  room  for  the  play  and  action  erf  purely 
personal  and  arbitrary  power.  Sovereignty  itself  is,  of  course,  not  sub- 
ject to  law,  for  it  is  the  author  and  source  of  law ;  hut  in  our  system, 
while  sovereign  powers  are  delegated  to  the  agencies  of  government, 
sovereignty  itself  remains  with  the  people,  by  whom  and  for  whom  all 
Hall  Const. L. — 25 


386  fundamental  rights  (Part  2 

government  exists  and  acts.  And  the  law  is  the  definition  and  limita- 
tion of  power.  It  is,  indeed,  quite  true,  that  there  must  always  be 
lodged  somewhere,  and  in  some  person  or  body,  the  authority  of  final 
decision ;  and  in  many  cases  of  mere  administration  the  responsibility 
is  purely  political,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opinion  or  by 
means  of  the  suffrage.  But  the  fundamental  rights  to  life,  liberty,  and 
the'  pursuit  of  happiness,  considered  as  individual  possessions,  are  se- 
cured by  those  maxims  of  constitutional  law  which  are  the  monu- 
ments showing  the  victorious  progress  of  the  race  in  securing  to  men 
the  blessings  of  civilization  under  the  reign  of  just  and  equal  laws,  so 
that,  in  the  famous  language  of  the  Massachusetts  Bill  of  Rights,  the 
government  of  the  commonwealth  "may  be  a  government  of  laws  and 
not  of  men."  For,  the  very  idea  that  one  man  may  be  compelled  to 
hold  his  life,  or  the  means  of  living,  or  any  material  right  essential  to 
the  enjoyment  of  life,  at  the  mere  will  of  another,  seems  to  be  intol- 
erable in  any  country  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself.    *    *     * 

This  conclusion,  and  the  reasoning  on  which  it  is  based,  are  deduc- 
tions from  the  face  of  the  ordinance,  as  to  its  necessary  tendency  and 
ultimate  actual  operation.  In  the  present  cases  we  are  not  obliged  to 
reason  from  the  probable  to  the  actual,  and  pass  upon  the  validity  of 
the  ordinances  complained  of,  as  tried  merely  by  the  opportunities 
which  their  terms  afford,  of  unequal  and  unjust  discrimination  in  their 
administration.  For  the  cases  present  the  ordinances  in  actual  opera- 
tion, and  the  facts  shown  establish  an  administration  directed  so  exclu- 
sively against  a  particular  class  of  persons  as  to  warrant  and  require 
the  conclusion,  that,  whatever  may  have  been  the  intent  of  the  ordi- 
nances as  adopted,  they  are  applied  by  the  public  authorities  charged 
with  their  administration,  and  thus  representing  the  state  itself,  with  a 
mind  so  unequal  and  oppressive  as  to  amount  to  a  practical  denial  by 
the  state  of  that  equal  protection  of  the  laws  which  is  secured  to  the 
petitioners,  as  to  all  other  persons,  by  the  broad  and  benign  provisions 
of  the  fourteenth  amendment  to  the  Constitution  of  the  United  States. 
Though  the  law  itself  be  fair  on  its  face  and  impartial  in  appearance, 
yet,  if  it  is  applied  and  administered  by  public  authority  with  an  evil 
eye  and  an  unequal  hand,  so  as  practically  to  make  unjust  and  illegal 
discriminations  between  persons  in  similar  circumstances,  material  to 
their  rights,  the  denial  of  equal  justice  is  still  within  the  prohibition  of 
the  Constitution.2  This  principle  of  interpretation  has  been  sanctioned 
by  this  court  in  Henderson  v.  Mayor  of  New  York,  92  U.  S.  259,  23 
L.  Ed.  543,  Chy  Lung  v.  Freeman,  92  U.  S.  275,  23  L.  Ed.  550,  In  re 
Virginia,  100  U.  S.  339,  25  L.  Ed.  676,  Neal  v.  Delaware,  103  U.  S. 
370,  26  L.  Ed.  567,  and  Soon  Hing  v.  Crowley,  113  U.  S.  703,  5  Sup. 
Ct.  730,  28  L.  Ed.  1145. 

-  See  Ex  parte  Virginia,  note  ■".  ante,  p.  230. 


Ch.  10)  DUE    PROCESS   AND    EQUALITY:     PCM 

The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record,  are 
within  this  class.  It  appears  that  both  petitioners  have  complied  with 
every  requisite,  deemed  by  the  law  or  by  the  public  officers  ch 
with  its  administration,  necessary  for  the  protection  of  neighboring 
property  from  fire,  or  as  a  precaution  against  injury  to  the  public 
health.  No  reason  whatever,  except  the  will  of  the  supervisors,  is 
assigned  why  they  should  not  be  permitted  to  carry  on,  in  the  accus- 
tomed manner,  their  harmless  and  useful  occupation,  on  which  they 
depend  for  a  livelihood.  And  while  this  consent  of  the  supervisors 
is  withheld  from  them  and  from  two  hundred  others  who  have  also 
petitioned,  all  of  whom  happen  to  be  Chinese  subjects,  eighty  others, 
not  Chinese  subjects,  are  permitted  to  carry  on  the  same  business  under 
similar  conditions.  The  fact  of  this  discrimination  is  admitted.  No 
reason  for  it  is  shown,  and  the  conclusion  cannot  be  resisted,  that  no 
reason  for  it  exists  except  hostility  to  the  race  and  nationality  to  which 
the  petitioners  belong,  and  which  in  the  eye  of  the  law  is  not  justified. 
The  discrimination  is,  therefore,  illegal,  and  the  public  administration 
which  enforces  it  is  a  denial  of  the  equal  protection  of  the  laws  and  a 
violation  of  the  fourteenth  amendment  of  the  Constitution.  The  im- 
prisonment of  the  petitioners  is,  therefore,  illegal,  and  they  must  be 
discharged. 

Judgment  reversed." 


CROWLEY  v.  CHRISTENSEN  (1890)  137  U.  S.  86.  91,  92,  94.  95, 
11  Sup.  Ct.  13,  34  L.  Ed.  620,  Mr.  Justice  Field  (sustaining  Christen- 
sen's  conviction  for  violating  a  San  Francisco  ordinance  forbidding 
the  granting  of  liquor  licenses  except  to  persons  who  obtained  the  writ- 
ten consent  of  a  majority  of  the  city  board  of  police  commissioners,  or 
of  twelve  citizens  owning  real  estate  in  the  block  where  the  business 
was  to  be  carried  on) : 

"There  is  no  inherent  right  in  a  citizen  to  thus  sell  intoxicating  liq- 
uors by  retail.  It  is  not  a  privilege  of  a  citizen  of  the  state  or  of  a 
citizen  of  the  United  States.  As  it  is  a  business  attended  with  danger 
to  the  community,  it  may,  as  already  said,  be  entirely  prohibited,  or  be 
permitted  under  such  conditions  as  will  limit  to  the  utmost  its  evils. 
The  manner  and  extent  of  regulation  rest  in  the  discretion  of  the  gov- 
erning authority.    That  authority  may  vest  in  such  officers  as  it  may 

•  Accord:   Raymond  v.  Chicago  Union  Traction  Co.,  207  D.  S.  20,  28  Sup.  ct. 
7,  52  h.  Ed.  78,  12  Ann.  Cas.  757  (1907)  (state  board  made  unequal  ass 
In  violation  of  state  Constitution).     In  Ah  Sin  v.  Wittman,  108  I'.  s. 
Sup.  Ct  756,  49  L.  Ed.  1142  (1905),  a  San  Francisco  gambling  ordinance  was 
alleged  to  be  enforced  only  against  Chinese,  but  the  case  was  dlsmis 
failure  to  aver  that  others  violated  it. 

No  relief  can  be  granted  against  a  law  meroly  because  It  con  Tors  a  dlscre- 
tion  readily  susceptible  of  abuse,  if  no  actual  discriminatory  admluistrati.m  I* 
shown.    Williams  v.  Mississippi,  170  0.  S.  213,  18  Sup.  Ct  683,  42  I..  I 
(1898)  (registration  board  passing  on  ability  of  electors  to  inter] 
slitution). 


388  FUNDAMENTAL    RIGHTS  (Part  2 

deem  proper  the  power  of  passing  upon  applications  for  permission  to 
carry  it  on,  and  to  issue  licenses  for  that  purpose.  It  is  a  matter  of  leg- 
islative will  only.  As  in  many  other  cases,  the  officers  may  not  always 
exercise  the  power  conferred  upon  them  with  wisdom  or  justice  to  the 
parties  affected.  But  that  is  a  matter  which  does  not  affect  the  author- 
ity of  the  state,  or  one  which  can  be  brought  under  the  cognizance  of 
the  courts  of  the  United  States. 

"The  Constitution  of  California  vests  in  the  municipality  of  the  city 
and  county  of  San  Francisco  the  right  to  make  'all  such  local,  police, 
sanitary,  and  other  regulations  as  are  not  in  conflict  with  general  laws.' 
The  supreme  court  of  the  state  has  decided  that  the  ordinance  in  ques- 
tion, under  which  the  petitioner  was  arrested,  and  is  held  in  custody, 
was  thus  authorized,  and  is  valid.  That  decision  is  binding  upon  us 
unless  some  inhibition  of  the  Constitution  or  of  a  law  of  the  United 
States  is  violated  by  it.  We  do  not  perceive  that  there  is  any  such  viola- 
tion. The  learned  circuit  judge  saw  in  the  provisions  of  the  ordinance 
empowering  the  police  commissioners  to  grant  or  refuse  their  assent  to 
the  application  of  the  petitioner  for  a  license,  or,  failing  to  obtain  their 
assent  upon  application,  requiring  it  to  be  given  upon  the  recommenda- 
tion of  twelve  citizens  owning  real  estate  in  the  block  or  square  in 
which  his  business  as  a  retail  dealer  in  liquors  was  to  be  carried  on,  the 
delegation  of  arbitrary  discretion  to  the  police  commissioners,  and  to 
real-estate  owners  of  the  block,  which  might  be  and  was  exercised  to 
deprive  the  petitioner  of  the  equal  protection  of  the  laws.  And  he  con- 
siders that  his  view  in  this  respect  is  supported  by  the  decision  in  Yick 
Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  Ed.  220  [ante, 
p.  383 J.    *     *     * 

[After  discussing  this  case:]  "It  will  thus  be  seen  that  that  case 
was  essentially  different  from  the  one  now  under  consideration,  the 
ordinance  there  held  invalid  vesting  uncontrolled  discretion  in  the  board 
of  supervisors  with  reference  to  a  business  harmless  in  itself  and  useful 
to  the  community,  and  the  discretion  appearing  to  have  been  exercised 
for  the  express  purpose  of  depriving  the  petitioner  of  a  privilege  that 
was  extended  to  others.  In  the  present  case  the  business  is  not  one 
that  any  person  is  permitted  to  carry  on  without  a  license,  but  one  that 
may  be  entirely  prohibited  or  subjected  to  such  restrictions  as  the  gov- 
erning authority  of  the  city  may  prescribe.     *     *     * 

"If  there  were  no  property  holders  in  the  block  the  discretionary  au- 
thority would  be  exercised  finally  by  the  police  commissioners,  and 
their  refusal  to  grant  the  license  is  not  a  matter  for  review  by  this 
court,  as  it  violates  no  principle  of  federal  law.  We,  however,  find  in 
the  return  a  statement  which  would  fully  justify  the  action  of  the  com- 
missioners. It  is  averred  that,  in  the  conduct  of  the  liquor  business, 
the  petitioner  was  assisted  by  his  wife,  and  that  she  was  twice  arrested 
for  larcenies  committed  from  persons  visiting  his  saloon,  and  in  one 
case  convicted  of  the  offense,  and  sentenced  to  be  imprisoned,  and  in 
the  other  held  to  answer.    These  larcenies  alone  were  a  sufficient  indi- 


Ch.  10)  DUE   PROCESS  AND    EQUALITY:     POLICE    POWER  389 

cation  of  the  character  of  the  place  in  which  the  business  was  con- 
ducted for  the  exercise  of  the  discretion  of  the  police  commissioners 
in  refusing  a  further  license  to  the  petitioner."  l 


PEOPLE  OF  STATE  OF  NEW  YORK  ex  rel.  LIEBERMAN  v. 
VAN  DE  CARR. 

(Supreme  Court  of  United  States,  1905.     199  U.  £.  552,  26  Sup.  CL  144,  50  L. 
Ed.  305.) 

[Error  to  the  Supreme  Court  of  New  York.  Lieberman  was  ar- 
rested for  violating  section  66  of  the  New  York  City  sanitary  code. 
His  writ  of  habeas  corpus  was  dismissed  by  the  state  Supreme  Court, 
and  this  judgment  was  affirmed  by  the  Appellate  Division  and  by  the 
Court  of  Appeals,  and  then  brought  here.  The  facts  appear  in  the 
opinion.] 

Mr.  Justice  Day.  *  *  *  The  section  of  the  sanitary  code  com- 
plained of  is  as  follows : 

"Sec.  66.  No  milk  shall  be  received,  held,  kept,  either  for  sale  or 
delivered  in  the  city  of  New  York,  without  a  permit  in  writing  from 
the  board  of  health,  and  subject  to  the  conditions  thereof." 

The  violation  of  the  sanitary  code  is  made  a  misdemeanor.  That 
the  board  of  health  had  power  to  pass  the  sanitary  code,  which  includes 
this  section,  is  not  open  to  question  here,  as  it  has  been  affirmatively 
decided  in  the  state  court.  The  objections  on  federal  grounds  for  our 
consideration  are  two-fold :  First,  that  the  section  under  consideration 
devolves  upon  the  board  of  health  absolute  and  despotic  power  to  grant 
or  withhold  permits  to  milk  dealers,  and  is,  therefore,  not  due  process 
of  law ;  second,  that  singling  out  the  milk  business  for  regulation  is  a 
denial  of  the  equal  protection  of  the  laws  to  people  engaged  therein. 

The  record  discloses  that  the  plaintiff  in  error,  engaged  in  selling 
milk  in  the  city  of  New  York  before  his  arrest,  had  a  permit,  which 
was  revoked  by  the  board  of  health.  He  was  thereafter  found  engaged 
through  an  agent  in  selling  milk  without  a  permit.  In  the  testimony 
it  appears,  in  a  conversation  between  the  plaintiff  in  error  and  an  in- 
spector in  the  department  of  health,  the  latter  admitted  that  Lieber- 
man's  milk  "stood  well." 

The  right  of  the  state  to  regulate  certain  occupations  which  may  be- 
come unsafe  or  dangerous  when  unrestrained,  in  the  exercise  of  the 
police  power,  with  a  view  to  protect  the  public  health  and  welfare,  has 
been  so  often  and  so  recently  before  this  court  that  it  is  only  necessary 
to  refer  to  some  of  the  cases  which  sustain  the  proposition  that  the 
state  has  a  right,  by  reasonable  regulations,  to  protect  the  public  health 
and  safety.    Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  24  I 

i  Compare  Ex  parte  Sing  Lee,  96  Cal.  354,  31  Pac.  245,  24  L.  P..  A.  195,  31 
Am.  St.  Rep.  218  (1892)  (laundries). 


390  FUNDAMENTAL    RIGHTS  (Part  2 

989;  New  Orleans  Gaslight  Co.  v.  Louisiana  Light  &  H.  P.  &  Mfg. 
Co.,  115  U.  S.  650,  6  Sup.  Ct.  252,  29  L.  Ed.  516;  Crowley  v.  Chris- 
tensen,  137  U.  S.  86,  11  Sup.  Ct.  13,  34  L.  Ed.  620;  Lawton  v.  Steele, 
152  U.  S.  133,  14  Sup.  Ct.  499,  38  L.  Ed.  385 ;  Jacobson  v.  Massachu- 
setts, 197  U.  S.  11,  25  Sup.  Ct.  358,  49  L.  Ed.  643,  3  Ann.  Cas.  765; 
California  Reduction  Co.  v.  Sanitary  Reduction  Works,  199  U.  S.  306, 
26  Sup.  Ct.  100,  50  L.  Ed.  204;  Gardner  v.  Michigan,  199  U.  S.  325, 
26  Sup.  Ct.  106,  50  L.  Ed.  212. 

The  contention  of  counsel  for  plaintiff  in  error  is  not  that  a  business 
so  directly  affecting  the  health  of  the  inhabitants  of  the  city  as  the  fur- 
nishing of  milk  may  not  be  the  subject  of  regulation  under  the  author- 
ity of  the  state,  but  that  the  Court  of  Appeals  of  New  York  has  sus- 
tained this  right  of  regulation  to  the  extent  of  authorizing  the  board 
of  health  to  exercise  arbitrary  power  in  the  selection  of  those  it  may 
see  fit  to  permit  to  sell  milk  under  the  section  quoted ;  and,  thus  con- 
strued, it  works  the  deprivation  of  the  plaintiff  in  error's  liberty  and 
property  without  due  process  of  law.  We  do  not  so  understand  the 
decision  of  the  highest  court  of  New  York.  As  we  read  it,  the  author- 
ity sustained  is  the  grant  of  power  to  issue  or  withhold  permits  in  the 
honest  exercise  of  a  reasonable  discretion.  In  the  opinion  of  the  Ap- 
pellate Division,  whose  judgment  was  affirmed  in  the  Court  of  Appeals, 
it  was  said:  "Such  regulations,  however,  should  be  uniform,  and  the 
board  should  not  act  arbitrarily ;  and  if  this  section  of  the  sanitary 
code  vested  in  them  arbitrary  power  to  license  one  dealer  [in  a  lawful 
commodity]  and  refuse  a  license  to  another  similarly  situated,  undoubt- 
edly it  would  be  invalid  (Yick  Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup. 
Ct.  1064,  30  L.  Ed.  220 ;  Gundling  v.  Chicago,  177  U.  S.  183,  20  Sup. 
Ct.  633,  44  L.  Ed.  725 ;  Noel  v.  People,  187  111.  587,  5S  N.  E.  616,  52 
L.  R.  A.  287,  79  Am.  St.  Rep.  238 ;  Dunham  v.  Rochester,  5  Cow. 
(N.  Y.)  462 ;  Brooklyn  v.  Breslin,  57  N.  Y.  591) ;  but  such  was  not  its 
purpose,  nor  is  that  its  fair  construction.  It  is  unnecessary  now  to 
determine  whether  the  action  of  the  board  in  refusing  or  revoking  such 
a  permit  would  be  judicial,  and  thus  reviewable  by  mandamus  or  cer- 
tiorari, or  whether,  if  the  authority  should  be  arbitrarily  or  improperly 
exercised,  the  only  remedy  would  be  an  application  for  the  removal  of 
the  officers;  for  those  are  questions  that  may  arise  in  the  administra- 
tion of  the  law,  but  do  not  go  to  its  validity.  The  section,  properly 
construed,  does  not  permit  unjust  discrimination,  and,  therefore,  it  is 
valid."  People  ex  rel.  Lieberman  v.  Vandecarr,  81  App.  Div.  132,  80 
N.  Y.  Supp.  1108. 

The  Court  of  Appeals,  affirming  the  decision  of  the  Appellate  Divi- 
sion, did  not  speak  with  equal  emphasis  upon  this  point,  but  it  leaves 
no  doubt  that  it  sustained  the  statute  as  authorizing  the  exercise  of  a 
reasonable  discretion.  While  that  court  held  that  the  discretion  to 
grant  or  withhold  permits  might  be  vested  in  a  board  of  health  with 
opportunities  to  know  and  investigate  local  conditions  and  surround- 
ings, it  further  said :  "In  the  case  before  us  the  requirement  of  section 


Gh.  10)  DOB   PROCESS   AND    EQUALITY!     POLICE   POWEB  o'.'l 

66  of  the  sanitary  code,  that  the  relator  should  not  sell  milk  without  a 
permit,  is  reasonable,  and  violates  neither  federal  nor  state  Constitu- 
tion, is  in  accordance  with  law  and  long-established  precedent.  In  the 
argument  of  this  case  several  questions  have  been  discussed  that  arc 
not  presented  by  the  appeal.  It  is,  for  instance,  argued  that,  even  con- 
ceding a  permit  to  be  necessary,  the  provision  that  the  holder  is  to  be 
'subject  to  the  conditions  thereof  cannot  be  sustained  for  a  variety  of 
reasons  suggested.  It  is  a  complete  answer  that  the  form  of  the  permit 
is  not  in  the  record ;  it  does  not  appear  that  it  has  attached  to  it  con- 
ditions reasonable  or  otherwise.  We  consequently  express  no  opinion 
on  the  subject.  What  we  have  already  said  applies  with  equal  force  to 
the  argument  that  the  permit  might  be  loaded  with  conditions,  the  na- 
ture of  which  is  not  limited  or  stated ;  that  it  may  be  used  to  build  up 
monopoly,  to  help  a  favored  few  as  opposed  to  the  many ;  that  there 
is  no  other  statute  which  presents  such  possibilities  for  blackmail  and 
oppression.  These  and  many  other  like  criticisms  are  indulged  in  by 
appellant.  If  the  question  was  before  us,  the  well-settled  canon  of  con- 
struction permits  of  no  such  argument.  It  is  presumed  that  public  offi- 
cials will  discharge  their  duties  honestly  and  in  accordance  with  the 
rules  of  law." 

We  do  not  think  that  this  language  leaves  any  question  as  to  the  dis- 
position of  the  highest  court  of  New  York  to  prevent  the  oppression 
of  the  citizen,  or  the  deprivation  of  his  rights,  by  an  arbitrary  and  op- 
pressive exercise  of  the  power  conferred.  That  this  court  will  not  in- 
terfere because  the  states  have  seen  fit  to  give  administrative  discre- 
tion to  local  boards  to  grant  or  withhold  licenses  or  permits  to  carry 
on  trades  or  occupations,  or  perform  acts  which  are  properly  the  sub- 
ject of  regulation  in  the  exercise  of  the  reserved  power  of  the  states 
to  protect  the  health  and  safety  of  its  people,  there  can  be  no  doubt. 

In  Davis  v.  Massachusetts,  167  U.  S.  43,  17  Sup.  Ct.  731,  42  L.  Ed. 
71,  an  ordinance  of  the  city  of  Boston,  providing  that  no  person  shall 
make  any  public  address  in  or  upon  the  public  grounds,  except  in  ac- 
cordance with  a  permit  from  the  mayor,  was  held  not  in  conflict  witli 
the  fourteenth  amendment  to  the  Constitution  of  the  United  States. 

In  Wilson  v.  Eureka  City,  173  U.  S.  32,  19  Sup.  Ct.  317.  43  L.  Ed. 
603,  an  ordinance  requiring  persons  to  obtain  written  permission  from 
the  mayor  or  president  of  the  city  council,  or,  in  their  absence,  a  coun- 
cilor, before  moving  a  building  upon  any  of  the  public  streets  of  the 
city,  was  sustained  as  not  violative  of  the  federal  Constitution.  In  the 
opinion  of  the  court  a  number  of  instances  were  given  in  which  acts 
were  prohibited  except  with  the  consent  of  an  administrative  board, 
and  which  were  sustained  as  proper  exercises  of  the  police  power. 

In  Gundling  v.  Chicago,  177  U.  S.  1S3,  20  Sup.  Ct.  633,  44  L-  Ed. 
725,  an  ordinance  was  sustained  permitting  the  mayor  to  license  per- 
sons to  deal  in  cigarettes  when  he  was  satisfied  that  the  person  apply- 
ing for  the  license  was  of  good  character  and  reputation,  and  a  suitable 
person  to  be  intrusted  with  their  sale.    And  in  the  recent  case  of  Ja- 


392  FUNDAMENTAL    RIGHTS  (Part  2 

cobson  v.  Massachusetts,  197  U.  S.  11,  25  Sup.  Ct.  358,  49  L.  Ed.  643, 
3  Ann.  Cas.  765,  this  court  sustained  a  compulsory  vaccination  law 
which  delegated  to  the  boards  of  health  of  cities  or  towns  the  determi- 
nation of  the  necessity  of  requiring  the  inhabitants  to  submit  to  com- 
pulsory vaccination. 

And  in  Fischer  v.  St.  Louis,  194  U.  S.  361,  24  Sup.  Ct.  673,  48  L. 
Ed.  1018,  an  ordinance  of  the  city  of  St.  Louis  providing  that  no  dairy 
or  cow  stable  should  thereafter  be  built  or  established  within  the  limits 
of  the  city,  and  no  such  stable  not  in  existence  at  the  time  of  the  pas- 
sage of  the  ordinance  should  be  maintained  on  any  premises,  unless 
permission  should  have  been  first  obtained  from  the  municipal  assem- 
bly by  ordinance,  was  sustained  as  a  proper  exercise  of  the  police  pow- 
er. After  sustaining  the  right  to  vest  in  a  board  of  men  acquainted 
with  the  local  conditions  of  the  business  to  be  carried  on,  power  to 
grant  or  withhold  permits,  this  court  said :  "It  has  been  held  in  some 
of  the  state  courts  to  be  contrary  to  the  spirit  of  American  institutions 
to  vest  this  dispensing  power  in  the  hands  of  a  single  individual  (Chi- 
cago v.  Trotter,  136  111.  430,  26  N.  E.  359;  Re  Frazee,  63  Mich.  396, 
30  N.  W.  72,  6  Am.  St.  Rep.  310;  State  v.  Fiske,  9  R.  I.  94;  Balti- 
more v.  Radecke,  49  Md.  217,  33  Am.  Rep.  239;  Sioux  Falls  v.  Kirby, 
6  S.  D.  62,  60  N.  W.  156,  25  L.  R.  A.  621),  and  in  others  that  such  au- 
thority cannot  be  delegated  to  the  adjoining  lot  owners  (St.  Louis  v. 
Russell,  116  Mo.  248,  22  S.  W.  470,  20  L.  R.  A.  721 ;  Ex  parte  Sing 
Lee,  96  Cal.  354,  31  Pac.  245,  24  L.  R.  A.  195,  31  Am.  St.  Rep.  218). 
But  the  authority  to  delegate  that  discretion  to  a  board  appointed  for 
that  purpose  is  sustained  by  the  great  weight  of  authority  (Quincy  v. 
Kennard,  151  Mass.  563,  24  N.  E.  860;  Com.  v.  Davis,  162  Mass.  510, 
39  N.  E.  113,  26  L.  R.  A.  712,  44  Am.  St.  Rep.  389),  and  by  this  court 
the  delegation  of  such  power,  even  to  a  single  individual,  was  sustained 
in  Wilson  v.  Eureka  City,  173  U.  S.  32,  19Sup.  Ct.  317,  43  L.  Ed.  603. 
and  Gundling  v.  Chicago,  177  U.  S.  183,  20  Sup.  Ct.  633,  44  L.  Ed. 
725." 

These  cases  leave  in  no  doubt  the  proposition  that  the  conferring  of 
discretionary  power  upon  administrative  boards  to  grant  or  withhold 
permission  to  carry  on  a  trade  or  business  which  is  the  proper  subject 
of  regulation  within  the  police  power  of  the  state  is  not  violative  of 
rights  secured  by  the  fourteenth  amendment.  There  is  no  presumption 
that  the  power  will  be  arbitrarily  exercised,  and  when  it  is  shown  to 
be  thus  exercised  against  the  individual,  under  sanction  of  state  au- 
thority, this  court  has  not  hesitated  to  interfere  for  his  protection, 
when  the  case  has  come  before  it  in  such  manner  as  to  authorize  the 
interference  of  a  federal  court.  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  6 
Sup.  Ct.  1064,  30  L.  Ed.  220.    *     *     * 

There  is  nothing  to  show  upon  what  ground  the  action  of  the  board 
was  taken.  For  aught  that  appears,  he  may  have  been  conducting  his 
business  in  such  wise,  or  with  such  surroundings  and  means,  as  to  ren- 
der it  dangerous  to  the  health  of  the  community;   or  his  manner  of 


Ch.  10)  DUE   PROCESS  AND   EQUALITY  :     POLICE  POWHB  39:! 

selling  or  delivering  the  milk  may  have  been  objectionable.  There  is 
nothing  in  the  record  to  show  that  the  action  against  him  was  arbitra- 
ry or  oppressive  and  without  a  fair  and  reasonable  exercise  of  that 
discretion  which  the  law  reposed  in  the  board  of  health.  We  have, 
then,  an  ordinance  which,  as  construed  in  the  highest  court  of  the  state, 
authorizes  the  exercise  of  a  legal  discretion  in  the  granting  or  with- 
holding of  permits  to  transact  a  business  which,  unless  controlled,  may 
be  highly  dangerous  to  the  health  of  the  community,  and  no  affirm- 
ative showing  that  the  power  has  been  exerted  in  so  arbitrary  and  op- 
pressive a  manner  as  to  deprive  the  appellant  of  his  property  or  liberty 
without  due  process  of  law. 

In  such  cases  it  is  the  settled  doctrine  of  this  court  that  no  federal 
right  is  invaded,  and  no  authority  exists  for  declaring  a  law  unconsti- 
tutional, duly  passed  by  the  legislative  authority,  and  approved  by  the 
highest  court  of  the  state.     *     *     * 

Judgment  affirmed.1 


SECTION  4.— VALIDITY  OF  LEGISLATIVE  OBJECT 


MUGLER  v.  KANSAS. 

(Supreme  Court  of  United  States,  1887.    123  U.  S.  623,  8  Sup.  Ct  273,  31  L. 
Ed.  205.) 

[Writs  of  error  from  Supreme  Court  of  Kansas  and  an  appeal 
from  the  United  States  Circuit  Court  for  Kansas.  Mugler  was  con- 
victed of  violating  a  Kansas  statute  enacted  to  carry  into  effect  an 
amendment  of  the  state  Constitution  forbidding  the  manufacture  or 
sale  of  intoxicating  liquor  except  for  medical,  mechanical,  and  scien- 
tific purposes.  His  offences  consisted  of  selling  beer  manufactured 
before  the  statute  went  into  effect,  and  of  manufacturing  beer  in  a 
brewery  built  several  years  before  the  adoption  of  the  amendment. 
Both  convictions  were  upheld  by  the  state  Supreme  Court.  The  third 
case  was  a  proceeding  against  one  Ziebold  and  his  partner  to  have 
their  brewery  closed  as  a  common  nuisance  under  the  statute,  and 
to  have  them  enjoined  from  using  the  premises  for  the  disposal  of 
liquor.  The  case  was  removed  to  the  federal  Circuit  Court,  where 
the  state's  suit  was  dismissed.    x\ll  cases  were  then  brought  here.] 

Mr.  Justice  Harlan.     *     *     *     That  legislation  by  a  state  pro- 

i  The  legislative  propriety  of  granting  an  administrative  discretion  to  make 
exceptions  of  a  character  difficult  to  define  In  advance  by  general  ralea  la 
approved  in  Fischer  v.  St.  Louis,   194  1  .  S.  361,  371,  '■•'-.  -4  Sup,  Ot  673,    Is 
L.  Ed.  1018  (1904).     In  t lie  absence  of  such  general  rules  to  guide  Lhi 
cise  of  administrative  discretion,  it  will  be  assumed  that  it  is  to  be  <•■ 
reasonably  and  for  appropriate  cause.     Bngel  v.  O'Malley,  219  0.  8.  ; 
31  sup.  Ct  190,  55  L.  Ed.  128  (1913  i  ommonwealUi  v.  Maietsky. 

203  Mass.  241,  S9  N.  E.  245,  24  L.  R.  A.  (N.  S.)  1168  (1909). 


394  FUNDAMENTAL    RIGHTS  (Part  - 

hibiting  the  manufacture  within  her  limits  of  intoxicating  liquors,  to 
be  there  sold  or  bartered  for  general  use  as  a  beverage,  does  not  nec- 
essarily infringe  any  right,  privilege,  or  immunity  secured  by  the 
Constitution  of  the  United  States,  is  made  clear  by  the  decisions  of 
this  court,  rendered  before  and  since  the  adoption  of  the  fourteenth 
amendment ;  to  some  of  which,  in  view  of  questions  to  be  presently 
considered,  it  will  be  well  to  refer.  *  *  *  [Here  follow  quota- 
tions from  the  License  Cases,  5  How.  504,  12  L.  Ed.  256,  Bartemeyer 
v.  Iowa,  18  Wall.  129,  21  L.  Ed.  929,  Boston  Beer  Co.  v.  Massachu- 
setts, 97  U.  S.  33,  24  L.  Ed.  989,  and  Foster  v.  Kansas  ex  rel.  John- 
ston, 112  U.  S.  206,  5  Sup.  Ct.  8,  97,  28  L.  Ed.  696.] 

It  is,  however,  contended,  that,  although  the  state  may  prohibit  the 
manufacture  of  intoxicating  liquors  for  sale  or  barter  within  her  lim- 
its, for  general  use  as  a  beverage,  "no  convention  or  legislature  has 
the  right,  under  our  form  of  government,  to  prohibit  any  citizen  from 
manufacturing  for  his  own  use,  or  for  export,  or  storage,  any  article 
of  food  or  drink  not  endangering  or  affecting  the  rights  of  others." 
The  argument  made  in  support  of  the  first  branch  of  this  proposition, 
briefly  stated,  is,  that  in  the  implied  compact  between  the  state  and 
the  citizen  certain  rights  are  reserved  by  the  latter,  which  are  guaran- 
teed by  the  constitutional  provision  protecting  persons  against  being 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law,  and 
with  which  the  state  cannot  interfere ;  that  among  those  rights  is 
that  of  manufacturing  for  one's  use  either  food  or  drink ;  and  that 
while,  according  to  the  doctrines  of  the  Commune,  the  state  may  con- 
trol the  tastes,  appetites,  habits,  dress,  food,  and  .drink  of  the  people, 
our  system  of  government,  based  upon  the  individuality  and  intel- 
ligence of  the  citizen,  does  not  claim  to  control  him,  except  as  to  his 
conduct  to  others,  leaving  him  the  sole  judge  as  to  all  that  only  af- 
fects himself. 

It  will  be  observed  that  the  proposition,  and  the  argument  made  in 
support  of  it,  equally  concede  that  the  right  to  manufacture  drink  for 
one's  personal  use  is  subject  to  the  condition  that  such  manufacture 
does  not  endanger  or  affect  the  rights  of  others.  If  such  manufac- 
ture does  prejudicially  affect  the  rights  and  interests  of  the  com- 
munity, it  follows,  from  the  very  premises  stated,  that  society  has  the 
power  to  protect  itself,  by  legislation,  against  the  injurious  conse- 
quences of  that  business.  As  was  said  in  Munn  v.  Illinois,  94  U.  S. 
113,  124,  24  L.  Ed.  77,  while  power  does  not  exist  with  the  whole 
people  to  control  rights  that  are  purely  and  exclusively  private,  gov- 
ernment may  require  ''each  citizen  to  so  conduct  himself,  and  so  use 
his  own  property,  as  not  unnecessarily  to  injure  another." 

But  by  whom,  or  by  what  authority,  is  it  to  be  determined  whether 
the  manufacture  of  particular  articles  of  drink,  either  for  general 
use  or  for  the  personal  use  of  the  maker,  will  injuriously  affect  the 
public?  Power  to  determine  such  questions,  so  as  to  bind  all,  must 
exist  somewhere ;    else  society  will  be  at  the  mercy  of  the  few,  who, 


Cll.  10)  DUE  PROCESS  AND  equality:    police  poweb  395 

regarding  only  their  own  appetites  or  passions,  may  be  willing  to  im- 
peril the  peace  and  security  of  the  many,  provided  only  they  are  per- 
mitted to  do  as  they  please.  Under  our  system  that  power  is  lodged 
with  the  legislative  branch  of  the  government.  It  belongs  to  that 
department  to  exert  what  are  known  as  the  police  powers  of  the 
state,  and  to  determine,  primarily  what  measures  are  appropriate  or 
needful  for  the  protection  of  the  public  morals,  the  public  health,  or 
the  public  safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly  for 
the  promotion  of  these  ends,  is  to  be  accepted  as  a  legitimate  exer- 
tion of  the  police  powers  of  the  state.  There  are,  of  necessity,  limits 
beyond  which  legislation  cannot  rightfully  go.  *  *  *  If,  therefore, 
a  statute  purporting  to  have  been  enacted  to  protect  the  public  health, 
the  public  morals,  or  the  public  safety,  has  no  real  or  substantial  re- 
lation to  those  objects,  or  is  a  palpable  invasion  of  rights  secured  by 
the  fundamental  law,  it  is  the  duty  of  the  courts  to  so  adjudge,  and 
thereby  give  effect  to  the  Constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations  of  the 
judicial  and  legislative  departments  of  government  with  each  other, 
it  is  difficult  to  perceive  any  ground  for  the  judiciary  to  declare  that 
the  prohibition  by  Kansas  of  the  manufacture  or  sale,  within  her  lim- 
its, of  intoxicating  liquors  for  general  use  there  as  a  beverage,  is  not 
fairly  adapted  to  the  end  of  protecting  the  community  against  the 
evils  which  confessedly  result  from  the  excessive  use  of  ardent  spir- 
its. There  is  no  justification  for  holding  that  the  state,  under  the 
guise  merely  of  police  regulations,  is  here  aiming  to  deprive  the  cit- 
izen of  his  constitutional  rights ;  for  we  cannot  shut  out  of  view  the 
fact,  within  the  knowledge  of  all,  that  the  public  health,  the  public 
morals,  and  the  public,  safety,  may  be  endangered  by  the  general  use 
of  intoxicating  drinks ;  nor  the  fact,  established  by  statistics  accessible 
to  every  one,  that  the  idleness,  disorder,  pauperism,  and  crime  exist- 
ing in  the  country  are,  in  some  degree  at  least,  traceable  to  this  evil. 
If,  therefore,  a  state  deems  the  absolute  prohibition  of  the  manufac- 
ture and  sale,  within  her  limits,  of  intoxicating  liquors  for  other  than 
medical,  scientific,  and  manufacturing  purposes,  to  be  necessary  ti- 
the peace  and  security  of  society,  the  courts  cannot,  without  usurping 
legislative  functions,  override  the  will  of  the  people  as  thus  expressed 
by  their  chosen  representatives.  They  have  nothing  to  do  with  the 
mere  policy  of  legislation. 

Indeed,  it  is  a  fundamental  principle  in  our  institutions,  indispen- 
sable to  the  preservation  of  public  liberty,  that  one  of  the  separate 
departments  of  government  shall  not  usurp  powers  committed  by  tin- 
Constitution  to  another  department.  And  so,  if,  in  the  judgment  of 
the  legislature,  the  manufacture  of  intoxicating  liquors  for  the  mak- 
er's own  use,  as  a  beverage,  would  tend  to  cripple,  if  it  did  not  defeat. 
the  effort  to  guard  the  community  against  the  evils  attending  the  ex- 
cessive use  of  such  liquors,  it  is  not  for  the  courts,  upon  their  view- 


."596  FUNDAMENTAL    RIGHTS  (Part  2 

as  to  what  is  best  and  safest  for  the  community,  to  disregard  the  legis- 
lative determination  of  that  question.  So  far  from  such  a  regula- 
tion having  no  relation  to  the  general  end  sought  to  be  accomplished, 
the  entire  scheme  of  prohibition,  as  embodied  in  the  Constitution  and 
laws  of  Kansas,  might  fail,  if  the  right  of  each  citizen  to  manufac- 
ture intoxicating  liquors  for  his  own  use  as  a  beverage  were  recog- 
nized. Such  a  right  does  not  inhere  in  citizenship.  Nor  can  it  be 
said  that  government  interferes  with  or  impairs  any  one's  constitu- 
tional rights  of  liberty  or  of  property,  when  it  determines  that  the 
manufacture  and  sale  of  intoxicating  drinks,  for  general  or  individual 
use,  as  a  beverage,  are,  or  may  become,  hurtful  to  society,  and  con- 
stitute, therefore,  a  business  in  which  no  one  may  lawfully  engage. 
Those  rights  are  best  secured,  in  our  government,  by  the  observance, 
upon  the  part  of  all,  of  such  regulations  as  are  established  by  com- 
petent authority  to  promote  the  common  good.  No  one  may  right- 
fully do  that  which  the  law-making  power,  upon  reasonable  grounds, 
declares  to  be  prejudicial  to  the  general  welfare.     *     *     * 

It  is  contended  that,  as  the  primary  and  principal  use  of  beer  is 
as  a  beverage ;  as  their  respective  breweries  were  erected  when  it  was 
lawful  to  engage  in  the  manufacture  of  beer  for  every  purpose;  as 
such  establishments  will  become  of  no  value  as  property,  or,  at  least, 
will  be  materially  diminished  in  value,  if  not  employed  in  the  manu- 
facture of  beer  for  every  purpose;  the  prohibition  upon  their  being 
so  employed  is,  in  effect,  a  taking  of  property  for  public  use  without 
compensation,  and  depriving  the  citizen  of  his  property  without  due 
process  of  law.  In  other  words,  although  the  state,  in  the  exercise 
of  her  police  powers,  may  lawfully  prohibit  the  manufacture  and  sale, 
within  her  limits,  of  intoxicating  liquors  to  be  used  as  a  beverage, 
legislation  having  that  object  in  view  cannot  be  enforced  against  those 
'  who,  at  the  time,  happen  to  own  property,  the  chief  value  of  which 
consists  in  its  fitness  for  such  manufacturing  purposes,  unless  com- 
pensation is  first  made  for  the  diminution  in  the  value  of  their  prop- 
erty, resulting  from  such  prohibitory  enactments. 

This  interpretation  of  the  fourteenth  amendment  is  inadmissible. 
It  cannot  be  supposed  that  the  states  intended,  by  adopting  that 
amendment,  to  impose  restraints  upon  the  exercise  of  their  powers 
for  the  protection  of  the  safety,  health,  or  morals  of  the  community. 
*  *  *  [Here  follow  statements  of  or  quotations  from  Butchers' 
Union  Co.  v.  Crescent  City  Co.,  post,  p.  863,  Stone  v.  Mississippi,  post, 
p.  860,  and  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  post,  p.  865, 
— all  to  the  effect  that  the  state  cannot,  even  by  contract,  restrict  its 
power  to  protect  the  public  health,  morals,  or  safety.] 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law,  was  embodied,  in  substance, 
in  the  Constitutions  of  nearly  all,  if  not  all,  of  the  states  at  the  time 
of  the  adoption  of  the  fourteenth  amendment ;  and  it  has  never  been 
regarded  as  incompatible  with  the  principle,  equally  vital,  because  es- 


Ch.  10)  DUE   PROCESS   AND    r.giAI.ITV:     POLICE    POWEB  8J>7 

sential  to  the  peace  and  safety  of  society,  that  all  property  in  this 
country  is  held  under  the  implied  obligation  that  the  owner's  use  of 
it  shall  not  be  injurious  to  the  community.     Ceer  Co.  v.  Massachu- 
setts, 97  U.  S.  25,  32,  24  L.  Ed.  9S9;    Commonwealth  v.  A 
Cush.  (Mass.)  53.     *     *     * 

As  already  stated,  the  present  case  must  be  governed  by  principles 
that  do  not  involve  the  power  of  eminent  domain,  in  the  exercise  of 
which  property  may  not  be  taken  for  public  use  without  compensa- 
tion. A  prohibition  simply  upon  the  use  of  property  for  pui 
that  are  declared,  by  valid  legislation,  to  be  injurious  to  the  health, 
morals,  or  safety  of  the  community,  cannot,  in  any  just  sense,  be 
deemed  a  taking  or  an  appropriation  of  property  for  the  public  bene- 
fit. Such  legislation  does  not  disturb  the  owner  in  the  control  or  use 
of  his  property  for  lawful  purposes,  nor  restrict  his  right  to  dispose 
of  it,  but  is  only  a  declaration  by  the  state  that  its  use  by  any  one, 
for  certain  forbidden  purposes,  is  prejudicial  to  the  public  inl 
Nor  can  legislation  of  that  character  come  within  the  fourteenth 
amendment,  in  any  case,  unless  it  is  apparent  that  its  real  object  is 
not  to  protect  the  community,  or  to  promote  the  general  well-being, 
but,  under  the  guise  of  police  regulation,  to  deprive  the  owner  of  his 
liberty  and  property,  without  due  process  of  law.  The  power  which 
the  states  have  of  prohibiting  such  use  by  individuals  of  their  prop- 
erty as  will  be  prejudicial  to  the  health,  the  morals,  or  the  safety  of 
the  public,  is  not — and,  consistently  with  the  existence  and  safety  of 
organized  society,  cannot  be — burdened  with  the  condition  that  the 
state  must  compensate  such  individual  owners  for  pecuniary  losses 
they  may  sustain,  by  reason  of  their  not  being  permitted,  by  a  noxious 
use  of  their  property,  to  inflict  injury  upon  the  community.  The  ex- 
ercise of  the  police  power  by  the  destruction  of  property  which  is  it- 
self a  public  nuisance,  or  the  prohibition  of  its  use  in  a  particular 
way,  whereby  its  value  becomes  depreciated,  is  very  different  from 
taking  property  for  public  use,  or  from  depriving  a  person  of  his 
property  without  due  process  of  law.  In  the  one  case,  a  nuisance 
only  is  abated ;  in  the  other,  unoffending  property  is  taken  away  from 
an  innocent  owner. 

It  is  true,  that,  when  the  defendants  in  these  cases  purchased  or 
erected  their  breweries,  the  laws  of  the  state  did  not  forbid  the  manu- 
facture of  intoxicating  liquors.  But  the  state  did  not  thereby  give 
any  assurance,  or  come  under  an  obligation,  that  its  legislation  upon 
that  subject  would  remain  unchanged.  Indeed,  as  was  said  in  Stone 
v.  Mississippi,  above  cited,  the  supervision  of  the  public  health  and 
the  public  morals  is  a  governmental  power,  "continuing  in  its  na- 
ture," and  "to  be  dealt  with  as  the  special  exigencies  of  the  moment 
may  require;"  and  that,  "for  this  purpose,  the  largest  le| 
cretion  is  allowed,  and  the  discretion  cannot  be  parted  with  any  more 
than  the  power  itself."  So  in  Beer  Co.  v.  Massachusetts.  97 
32,  24  L.  Ed.  989:   "If  the  public  safety  or  the  public  morals  require 


:596 


FUNDAMENTAL    RIGHTS 


(Part  2 


as  to  what  is  best  and  safest  for  the  community,  to  disregard  the  legis- 
lative determination  of  that  question.  So  far  from  such  a  regula- 
tion having  no  relation  to  the  general  end  sought  to  be  accomplished, 
the  entire  scheme  of  prohibition,  as  embodied  in  the  Constitution  and 
laws  of  Kansas,  might  fail,  if  the  right  of  each  citizen  to  manufac- 
ture intoxicating  liquors  for  his  own  use  as  a  beverage  were  recog- 
nized. Such  a  right  does  not  inhere  in  citizenship.  Nor  can  it  be 
said  that  government  interferes  with  or  impairs  any  one's  constitu- 
tional rights  of  liberty  or  of  property,  when  it  determines  that  the 
manufacture  and  sale  of  intoxicating  drinks,  for  general  or  individual 
use,  as  a  beverage,  are,  or  may  become,  hurtful  to  society,  and  con- 
stitute, therefore,  a  business  in  which  no  one  may  lawfully  engage. 
Those  rights  are  best  secured,  in  our  government,  by  the  observance, 
upon  the  part  of  all,  of  such  regulations  as  are  established  by  com- 
petent authority  to  promote  the  common  good.  No  one  may  right- 
fully do  that  which  the  law-making  power,  upon  reasonable  grounds, 
declares  to  be  prejudicial  to  the  general  welfare.     *     *     * 

It  is  contended  that,  as  the  primary  and  principal  use  of  beer  is 
as  a  beverage ;  as  their  respective  breweries  were  erected  when  it  was 
lawful  to  engage  in  the  manufacture  of  beer  for  every  purpose;  as 
such  establishments  will  become  of  no  value  as  property,  or,  at  least, 
will  be  materially  diminished  in  value,  if  not  employed  in  the  manu- 
facture of  beer  for  every  purpose;  the  prohibition  upon  their  being 
so  employed  is,  in  effect,  a  taking  of  property  for  public  use  without 
compensation,  and  depriving  the  citizen  of  his  property  without  due 
process  of  law.  In  other  words,  although  the  state,  in  the  exercise 
of  her  police  powers,  may  lawfully  prohibit  the  manufacture  and  sale, 
within  her  limits,  of  intoxicating  liquors  to  be  used  as  a  beverage, 
legislation  having  that  object  in  view  cannot  be  enforced  against  those 
who,  at  the  time,  happen  to  own  property,  the  chief  value  of  which 
consists  in  its  fitness  for  such  manufacturing  purposes,  unless  com- 
pensation is  first  made  for  the  diminution  in  the  value  of  their  prop- 
erty, resulting  from  such  prohibitory  enactments. 

This  interpretation  of  the  fourteenth  amendment  is  inadmissible. 
It  cannot  be  supposed  that  the  states  intended,  by  adopting  that 
amendment,  to  impose  restraints  upon  the  exercise  of  their  powers 
for  the  protection  of  the  safety,  health,  or  morals  of  the  community. 
*  *  *  [Here  follow  statements  of  or  quotations  from  Butchers' 
Union  Co.  v.  Crescent  City  Co.,  post,  p.  863,  Stone  v.  Mississippi,  post, 
p.  860,  and  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  post,  p.  865, 
— all  to  the  effect  that  the  state  cannot,  even  by  contract,  restrict  its 
power  to  protect  the  public  health,  morals,  or  safety.] 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law,  was  embodied,  in  substance, 
in  the  Constitutions  of  nearly  all,  if  not  all,  of  the  states  at  the  time 
of  the  adoption  of  the  fourteenth  amendment;  and  it  has  never  been 
regarded  as  incompatible  with  the  principle,  equally  vital,  because  es- 


Cll.  10)  DUE    PHOCESS   AND    EQUALITY:     POLICE   POWEB  399 

such  regulations  are  essential,  and  its  determination  in  this  regard,  in 
view  of  its  better  knowledge  of  all  the  circumstances,  and  the  presump- 
tion that  it  is  acting  with  a  due  regard  for  the  rights  of  all  parties,  will 
not  be  disturbed  in  the  courts,  unless  it  can  plainly  be  seen  that  the 
regulation  has  no  relation  to  the  ends  above  stated,  but  is  a  clear  inva- 
sion of  personal  or  property  rights  under  the  guise  of  police  i 
tion.  In  the  case  of  Grumbach  v.  Lelande,  154  Cal.  679,  98  Pat 
in  which  this  court  declared  the  well-settled  rule  last  stated,  it  is  said : 
"It  is  well  settled  that  it  is  entirely  within  the  police  power  to  limit 
the  conduct  of  the  liquor  or  other  businesses  coming  within  its  regu- 
latory scope  or  to  exclude  such  businesses  from  specified  districts" 
citing  cases.  The  limitation  in  the  case  last  cited  was  in  regard  to  the 
business  of  selling  intoxicating  liquors,  but  the  power  is  by  no  means 
confuted  to  occupations  of  that  character,  and,  whatever  be  the  business 
or  occupation  to  which  it  is  attempted  to  be  applied,  the  question  of  the 
validity  of  the  limitation  depends  on  whether  it  has  some  relation  to  the 
ends  for  which  the  police  power  is  conferred. 

The  necessity  of  such  regulation  in  the  case  of  necessary  and  law 
tul  occupations  carried  on  in  cities  and  towns  was  recognized  by  the 
Supreme  Court  of  the  United  States  in  Crowley  v.  Christcnsen,  137 
U.  S.  90,  11  Sup.  Ct.  15,  34  L.  Ed.  620,  where  it  is  said:  "Some  occu- 
pations by  the  noise  made  in  their  pursuit,  some  by  the  odors  they  en- 
gender, and  some  by  the  dangers  accompanying  them  require  regula- 
tion as  to  the  locality  in  which  they  shall  be  conducted."  That  the 
power  to  regulate  includes  the  power  to  confine  certain  occupations 
within  prescribed  limits  in  a  city  has  been  held  in  many  cases,  of  which 
the  following  are  examples:  Ex  parte  Byrd,  84  Ala.  17,  4  Sura; 
5  Am.  St.  Rep.  328;  In  re  Wilson,  32  Minn.  145,  19  N.  W.  723;  Shea 
v.  City  of  Muncie,  148  Ind.  14,  46  X.  E.  138;  Cronin  v.  PeO| 
N.  Y.  318,  37  Am.  Rep.  564;  City  of  Newton  v.  Joyce,  166  Mass.  83. 
44  N.  E.  116;  State  v.  Beattie,  16  Mo.  App.  131 ;  Ex  parte  Lacey,  108 
Cal.  326,  41  Pac.  411,  38  L.  R.  A.  640.  49  Am.  St.  Rep.  93.  In  the 
last-mentioned  case,  the  limitation  was,  as  we  have  seen,  regarding  the 
operation  of  a  steam  shoddy  or  steam  carpetT>eating  machine;  in 
State  v.  Beattie,  supra,  a  livery  stable;  in  Cit)  of  Newton  v.  Joyce, 
supra,  a  livery  stable  for  more  than  four  horses:  in  Cronin  v.  People, 
supra,  the  slaughtering  of  cattle;  in  Ex  parte  Byrd,  supra,  the  selling 
of  fresh  meat;  and  in  the  other  cases  the  sale  of  intoxicating  liquor. 
Warrant  for  this  character  of  regulation  in  regard  to  all  these  occupa- 
tions and  many  others  that  might  be  named  is  to  be  found  in  the  fact 
that  it  may  reasonably  be  determined  necessary  to  the  health,  morals, 
safety,  or  comfort  of  the  people  of  a  city.     *     *     * 

The   design    of    the   ordinance   here    involved    undoubtedly   was    to 
protect  such  portions  of  the  city  of  I.os  Angeles  as  are  devoted  prin- 
cipally to  residcr.ee  purposes  from  the  dangers  and  discomfort  attend 
ant  upon  the  operation  of  certain  kinds  of  business  which,  while  not 
irily  nuisances  per  se.  have  always  been  recognized  as 


400  FUNDAMENTAL    RIOIITS  (Part  2 

subjects  of  police  regulation.  We  do  not  feel  warranted  in  saying 
that,  as  to  public  laundries  and  washhouses,  the  conclusion  of  the  city 
council  was  clearly  unreasonable.  *  *  *  Owing  to  the  peculiar 
conditions  existing  in  cities,  courts  are  not  keen  to  question  the  wis- 
dom of  the  legislative  exercise  of  their  police  power  in  these  respects. 
*  *  *  The  mere  fact  that  "large  portions  of  the  residence  district  are 
sparsely  built  up"  cannot  affect  the  determination  of  this  proceeding. 
Doubtless  it  was  assumed  by  the  city  council  that  such  portions  would 
not  be  "sparsely  populated"  for  any  great  length  of  time,  an  assump- 
tion probably  warranted  by  the  growth  and  population  of  the  city 
during  the  last  few  years.  *  *  * 
Writ  discharged.1 


CITY  OF  PASSAIC  v.  PATERSON  BILL  POSTING,  ADVER- 
TISING &  SIGN  PAINTING  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey  1005.     72  N.   J.  Law,  2S5,  62 
Atl.  267,  111  Am.  St.  Rep.  676,  5  Ann.  Cas.  995.) 

[Error  to  the  Supreme  Court  of  New  Jersey.  The  facts  appear  in 
the  opinion  below.] 

Swayze,  J.  The  plaintiff  in  error  was  convicted  of  the  violation  of 
an  ordinance  of  the  city  of  Passaic  regulating  signs  or  billboards  and 
the  conviction  was  affirmed  by  the  Supreme  Court.  71  N.  J.  Law,  75, 
5S  Atl.  343.  The  ordinance  provides  that  no  sign  or  billboard  shall  be 
at  any  point  more  than  eight  feet  above  the  surface  of  the  ground,  and 
requires  that  it  shall  be  constructed  not  less  than  ten  feet  from  the 
street  line.    *    *    * 

It  is  obvious  that  the  effect  of  the  ordinance  is  to  deprive  the  land- 
owner of  the  ordinary  use  for  a  lawful  business  purpose  of  a  portion 
of  his  land.  Such  deprivation  is  a  taking  within  the  meaning  of  the 
constitutional  provision  (Trenton  Water  Power  Co.  v.  Raff,  36  N.  J. 
Law,  335,  approved  by  this  court  in  Pennsylvania  R.  R.  Co.  v.  Angel, 
41  N.  J.  Eq.  316,  7  Atl.  432,  56  Am.  Rep.  1) ;  and  where  no  compensa- 
tion is  given  to  the  land  owner,  the  taking  can  only  be  justified  if  it  is 
done  in  the  exercise  of  the  police  power  of  the  state.     *    *    * 

The  Supreme  Court  held  that  because  the  erection  of  such  signs 

i  "Nuisances  may  thus  be  classified:  First,  those  which  in  their  nature  are 
nuisances  per  se  or  are  so  denounced  by  the  common  law  or  by  statute; 
second,  those  which  in  their  nature  are  not  nuisances,  but  may  become  so  by 
reason  of  their  locality,  surroundings,  or  the  manner  in  which  they  may  lie 
conducted,  managed,  etc. ;  third,  those  which  in  their  nature  may  be  nuisanc- 
es, but  as  to  which  there  may  be  honest  differences  of  opinion  in  impartial 
minds.  The  power  granted  by  the  statute  to  the  governing  bodies  of  munici- 
pal corporations  to  declare  what  shall  be  nuisances,  and  to  abate  the  same, 
etc.,  authorizes  such  bodies  to  conclusively  denounce  those  things  falling  with- 
in the  first  and  third  of  these  classes  to  be  nuisances,  but  as  to  those  things 
falling  within  the  second  class  the  power  possessed  is  only  to  declare  such  of 
them  to  be  nuisances  as  are  in  fact  so." — Laugel  v.  City  of  Bushnell,  197  I1L 
20.  26,  27,  63  N.  E.  10S6,  1088,  58  L.  K.  A.  266  (1902),  by  Boggs,  J. 


Cll.  10)  DTJB   I'ltOCESS  AND   equality:     POLK  1.    i  4(1! 

might  be  attended  with  danger  to  the  public  at  times  of  severe  storms 
or  by  the  decay  of  their  supports,  the  ordinance  was  riot  without  legal 
authority.  In  our  opinion  the  legality  of  the  ordinance  does  not  de- 
pend upon  the  possibility  of  danger  thus  suggested,  but  upon  whether 
such  a  regulation  is  reasonably  necessary  for  the  public  safety.  There 
must  always  be  a  possibility  of  danger  from  the  erection  of  any  struc- 
ture, and  from  its  decay ;  but  such  a  possibility  is  not  sufficient  to 
justify  the  municipal  authorities  in  depriving  a  man  of  the  ordinary 
use  of  his  land.  In  all  our  cities  ami  towns,  fences  and  buildings  are 
erected  upon  the  street  line,  involving  the  same  or  even  greater  pos- 
sibility of  danger  from  severe  storms  or  natural  decay,  but  it  would 
hardly  be  maintained  that  a  municipality  could  be  authorized  by  the 
Legislature  to  compel  the  owners  of  buildings  already  erected  to  take 
them  down  or  move  them  back  ten  feet  from  the  street  line.  Yet  the 
danger  to  the  public  from  bricks  or  slates,  ice  and  snow,  falling  from 
a  building  is  much  greater  than  any  possible  danger  from  a  billboard. 
In  determining  whether  a  regulation  is  reasonably  necessary  to  secure 
the  public  safety,  and  therefore  within  the  legitimate  exercise  of  the 
police  power,  existing  habits  and  customs  are  of  great  weight,  and  the 
universal  custom  of  building  upon  the  street  line  is  cogent  evidence 
that  the  public  safety  does  not  require  that  structures  like  billboards 
should  be  set  back  from  the  line.  The  very  fact  that  this  ordinance 
is  directed  against  signs  and  billboards  only,  and  not  against  fences, 
indicates  that  some  consideration  other  than  the  public  safety  led  to 
its  passage.  It  is  obvious  from  the  face  of  the  ordinance  that  the 
object  of  the  first  section  was  not  to  secure  the  public  safety;  that 
section  contains  no  reference  to  a  dangerous  condition  of  billboards, 
while  the  second  section  expressly  undertakes  to  deal  with  those  that 
become  dangerous. 

We  think  the  control  attempted  to  be  exercised  is  in  excess  of  that 
essential  to  effect  the  security  of  the  public.  It  is  probable  that  the 
enactment  of  section  1  of  the  ordinance  was  due  rather  to  aesthetic 
considerations  than  to  considerations  of  the  public  safety.  No  case 
has  been  cited,  nor  are  we  aware  of  any  case  which  holds  that  a  man 
may  be  deprived  of  his  property  because  his  tastes  are  not  those  of 
his  neighbors.  ^Esthetic  considerations  are  a  matter  of  luxury  and 
indulgence  rather  than  of  necessity,  and  it  is  necessity  alone  which 
justifies  the  exercise  of  the  police  power  to  take  private  property 
without  compensation.  In  two  similar  cases,  the  courts  of  other  states 
have  reached  the  same  result.  Crawford  v.  Topeka,  51  Kan.  "56,  33 
Pac.  476,  20  L.  R.  A.  692,  37  Am.  St.  Rep.  323 ;  Commonwealth  v. 
Boston  Advertising  Co.,  188  Mass.  348.  74  N.  E.  601,  69  L.  R.  A.  817, 
108  Am.  St.  Rep.  494.  The  view  taken  by  the  majority  of  the 
late  Division  in  New  York  is  to  the  same  effect.  People  v.  Green,  85 
App.  Div.  400,  S3  N.  Y.  Supp.  460. 

In  Missouri  it  was  held  that  the  owners  of  property  along  a  boule 
Hall  Const. L. — L'C 


402  FUNDAMENTAL    RIGHTS  (Part  2 

vard  could  not  be  restricted  from  building  within  forty  feet  of  the 
street.  St.  Louis  v.  Hill,  116  Mo.  527,  22  S.  W.  861,  21  L.  R.  A.  226.' 
And  in  Maryland  it  was  held  that  an  ordinance  of  Baltimore  forbidding 
the  grant  of  a  building  permit  unless  in  the  judgment  of  the  municipal 
board,  the  size,  general  character,  and  appearance  of  the  building 
would  conform  to  the  general  character  of  the  buildings  previously 
erected  in  the  same  locality,  was  invalid.  The  proposed  building  in 
that  case  was  for  the  purpose  of  showing  wild  animals  and  in  reality 
conducting  a  continuous  circus  performance  upon  one  of  the  most 
beautiful  streets  in  Baltimore.  Bostock  v.  Sams,  95  Md.  400,  52  Atl. 
665,  59  L.  R.  A.  282,  93  Am.  St.  Rep.  394. 

The  case  differs  from  Rideout  v.  Knox,  148  Mass.  368,  19  N.  E. 
390,  2  L.  R.  A.  81,  12  Am.  St.  Rep.  560.  The  statute  in  that  case  gave 
a  right  of  action  in  tort  to  an  adjoining  owner  where  a  fence  unnec- 
essarily exceeding  six  feet  in  height  was  maliciously  erected  and  main- 
tained. Two  elements  were  necessary  for  the  right  of  action ;  the 
unnecessary  character  of  the  fence,  and  the  malicious  motive;  and  the 
court  held  that  not  only  must  the  motive  be  malicious  but  the  male- 
volence must  be  the  dominant  motive.  Such  a  statute  does  not  deprive 
the  landowner  of  any  ordinary  or  beneficial  use  of  his  property.  It 
merely  prevents  him  from  using  it  to  injure  his  neighbors  without  ben- 
efit to  himself. 

In  Rochester  v.  West,  164  N.  Y.  510,  58  N.  E.  673,  53  L.  R.  A.  548, 
79  Am.  St.  Rep.  659,  the  ordinance  under  consideration  went  no  fur- 
ther than  to  require  the  permission  of  the  common  council  for  the  erec- 
tion of  a  billboard  more  than  6  feet  in  height,  and  that  permission 
could  only  be  given  after  notice  to  owners  and  occupants  of  land  with- 
in 200  feet.  The  ordinance  did  not  authorize  the  council  to  regulate 
the  location  and  position  of  the  billboard,  and  we  must  assume  that  in 
granting  or  withholding  the  permission,  the  council  would  act  judicial- 
ly and  solely  with  reference  to  considerations  of  the  safety,  health,  or 
morals  of  the  public.  The  court  said :  "We  think  this  statute  con- 
ferred upon  the  common  council  of  the  city  authority  to  regulate  boards 
erected  for  the  purpose  of  bill  posting,  so  far,  at  least,  as  such  regula- 
tion was  necessary  to  the  safety  or  welfare  of  the  inhabitants  of  the 
city  or  persons  passing  along  its  streets."  2    . 

i  Accord:  Eubank  v.  Richmond,  226  U.  S.  137,  33  Sup.  Ct.  76,  57  L.  Ed. 
— ,  42  L.  R.  A.  (N.  S.)  1123  (1912)  (building  line  established  for  each  block 
at  will  of  owners  of  two-thirds  of  frontage) :  Water  Power  Cases,  148  Wis. 
124  (1912)  (riparian  owners  deprived  of  right  to  create  water  power).  Sim- 
ilarly a  city  may  not,  without  compensation,  plat  streets  upon  private  prop- 
erty and  refuse  to  pay  for  the  destruction  of  buildings  erected  across  such 
proposed  streets  before  they  are  afterwards  opened.  Forster  v.  Scott,  13(5 
N.  Y.  577,  32  N.  E.  976,  18  L.  R.  A.  543  (1893).  See,  also,  Koch  v.  Delaware, 
L.  &  W.  R.  Co.,  53  N.  J.  Law,  256,  21  Atl.  2S4  (1S91).  Compare  Matter  of  New 
York,  196  N.  Y.  255,  89  N.  E.  814,  36  L.  R.  A.  (N.  S.)  273,  17  Ann.  Cas.  1032 
(1909) ;    In  re  Chestnut  St,  US  Pa.  593,  12  Atl.  585  (1888). 

2  See  St.  Louis  Gunning  Advertising  Co.  v.  City  of  St.  Louis,  235  Mo.  99, 
137  S.  W.  929  (1911),  for  an  elaborate  opinion  sustaining  such  legislation  upon 


Ch.  10)  DUE   PROCESS  AND   EQUALITY :     pi.I.P  I.    POWBB  40:; 

The  invalidity  of  the  ordinance  in  the  present  case,  in  our  opinion, 
lies  in  the  fact  that  it  exceeds  that  necessity.  Since  the  effect  of  the 
ordinance  is  to  take  private  property  without  compensation,  and  cannot 
be  justified  as  an  exercise  of  the  police  power,  it  is  invalid. 

Judgment  reversed." 

various  grounds  of   public   welfare.     So   of  statutes   limiting  the   height   of 
buildings.     Welch  v.  Swasey,  193  Mass.  304,  79  N.  E.  746,  28  E  It.  A.  (N    S.) 
1160,  118  Am.  St.  Rep.  523  (1907),  affirmed  in  214  U.  S.  91,  29  Sup.  • 
53  L.  Ed.  923  (1909). 

b  Accord:  People  ex  rel.  Wineburgh  Advertising  Co.  v.  Murphy,  195  N.  y 
126,  88  N.  E.  17  (1909)  (signs  on  tops  of  private  buildings),  annotated  in  21 
L.  R.  A.  (N.  S.)  735-737. 

In  Commonwealth  v.  Boston  Advertising  Co.,  188  Mass.  318,  851,  852    71   N 
E.  601,  602,  69  L.  R.  A.  817,  108  Am.   St.  Rep.  494   (1905),  Barker,  J.,  said 
(holding  invalid  a  regulation  forbidding  the  display  of  large  advertising  signs 
upon  land  or  buildings  near  public  parka  or  parkways):    "The  question  bere 
is  not  of  the  power  of  the  state  to  expend  money  or  to  lay  taxes  to  promote 
testhetic  ends,  or  to  regulate  the  use  of  property  with  a  view  to  promo 
ends.     It  is  of  the  right  of  the  state  by  such  regulations  to  deprive  the  owner 
of  property  of  a  natural  use  of  that  property  without  giving  con 
the  resulting  loss  to  the  owner.     Probably  no  one  would  care  a:   pi 
deny  that  without  compensation  'the  possession  and  enjoyment  of  all  rights 
are  subject  to  such  reasonable  conditions  as  may  he  deemed  by  the  governing 
authority  of  the  country  essential  to  the  safety,  health,  peace,  good  order,  ami 
morals  of  the  community.'     Field,   J.,  in  Crowley   v.   Christensen,    137   0.   S 

S6,  89,  11  Sup.  Ct  13,  34  L.  Ed.  (120.    Beyond  the  pun 

many   others  of  a   public  nature,   the   promotion   of    which    may    involve   the 
taking  or  damaging  of  the  property  of  individuals,  and  ns  to  Which  there  well 
may  be  differences  of  opinion  as  to  whether  the  state  must  afford  ••■• 
tion  if  such   loss  or  damage  is  inflicted.     One  of  them  is   tin-   • 
youth.     Probably  all  will  agree  that,  judged  by  any  fair  standard,  the  promo 
tion  of  education  stands  upon  a  higher  plane  than  the  promotion  of    i 
culture  or  enjoyment,  and  would  the  better  justify  the  imposition  of  a  burden 
without  compensation.     But  no  one  would  contend  that  the  state  could  au- 
thorize the  taking  of  land  for  a  schoolhouse  without  providing  compel 
for  the  owner.     In  a  very  recent  case  this   court,   in  dealing  with  a   statute 
requiring  street  railway  companies  to   transport  school   children  at   reduced 
rates  of  fare,  has  held  that,  if  it  appeared   that  the  enforcement  of  - 
would  cause  expense  which  the  carrier  must   heir  or  put  upon  other  | 
we  should  be  obliged  to  hold  that  there  was  a  taking  of  property  without  due 
process  of  law.    Com.  v.  Interstate  Cons.  St.  Ry.  Co.,  1^7  Mass.  436,  ?■"•  N.  E. 
530  [11  E.  R.  A.  (N.  S.)  973,  2  Ann.  ('as.  419}.     If  the  police  power,  technically 
so  called,  will  not  justify  a   taking  of  property  without  compensation  to  pro 
mote  the  education  of  youth,  it  cannot  justify  such  a  taking  for  the  pro 
of  merely  aesthetic  purposes." 

Advertising   vans   may    be   prohibited   In    crowded    city   streets.      Fifth    Ave. 
Coach  Co.  v.  City  of  New  York,  194  N.  Y.  19.  86  N.  E.  824,  Jl   1..  B,  A    .V  s  , 
744,  10  Ann.  Cas.  695  (1909),  affirmed  in  221  D.  S.  467,  31  Sup.  Ct.  709 
Ed.  815  (1911). 

Compare  Questions  and  Answers,  108  Me,  509,  69  All.  627  (1907)  'restriction 
of  tree  cutting  on  wild  private  land);  BlgelOW  v.  WhltCOmb,  72  N.  II.  473. 
57  Atl.  680;  05  L.  R.  A.  676  (1904)  (same  on  highways  where  public  has  onlj 
an  easement). 


404  FUNDAMENTAL    RIGHTS  (Part  2 

DOBBINS  v.  LOS  ANGELES  (1904)  195  U.  S.  223,  23S-241,  25 
Sup.  Ct.  18,  49  L.  Ed.  169,  Mr.  Justice  Day  (holding  invalid  as  against 
plaintiff  an  ordinance  suddenly  changing  the  limits  within  which  gas- 
works might  be  operated  in  the  city) : 

"We  think  a  case  is  made  which  called  for  the  protection  of  the 
courts  against  arbitrary  interference  with  the  rights  of  the  plaintiff  in 
error.  Complying  with  the  terms  of  the  ordinance  which  was  in  force 
when  the  plaintiff  in  error  was  about  to  begin  the  erection  of  the  gas- 
works in  controversy,  a  tract  of  land  was  purchased  within  the  district 
wherein  the  erection  of  such  works  was  permitted,  a  contract  was  en- 
tered into  for  the  construction  of  the  works,  a  considerable  sum  of  mon- 
ey was  expended.  It  may  be  admitted  as  being  a  correct  statement  of 
the  law  as  held  by  the  California  supreme  court  that,  notwithstanding 
the  grant  of  the  permit,  and  even  after  the  erection  of  the  works,  the 
city  might  still,  for  the  protection  of  the  public  health  and  safety,  prohib- 
it the  further  maintenance  and  continuance  of  such  works,  and  the  pros- 
ecution of  the  business,  originally  harmless,  may  become  by  reason  of 
the  manner  of  its  prosecution  or  a  changed  condition  of  the  community, 
a  menace  to  the  public  health  and  safety.  In  other  words,  the  right  to 
exercise  the  police  power  is  a  continuing  one,  and  a  business  lawful  to- 
day may,  in  the  future,  because  of  the  changed  situation,  the  growth 
of  population,  or  other  causes,  become  a  menace  to  the  public  health 
and  welfare,  and  be  required  to  yield  to  the  public  good.  Northwest- 
ern Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  24  L.  Ed.  1036 ;  New 
Orleans  Gaslight  Co.  v.  Louisiana  Light  &  H.  P.  &  Mfg.  Co.,  115  U. 
S.  672,  6  Sup.  Ct.  252,  29  L.  Ed.  524. 

"But  the  exercise  of  the  police  power  is  subject  to  judicial  review, 
and  property  rights  cannot  be  wrongfully  destroyed  by  arbitrary  en- 
actment. It  was  averred  that  the  works  would  be  so  constructed  so 
as  not  to  interfere  with  the  health  or  safety  of  the  people.  No  rea- 
sonable explanation  for  the  arbitrary  exercise  of  power  in  the  case  is 
suggested.  The  narrowing  of  the  limits  within  which  the  plaintiff  in 
error,  in  compliance  with  the  ordinance  of  the  city  and  the  permit  of 
the  board  of  fire  commissioners,  was  proceeding  to  erect  the  gasworks, 
to  the  smaller  and  more  limited  section,  was  not  demanded  by  the  pub- 
lic welfare,  and,  taking  the  facts  as  alleged  in  the  bill,  seems  rather  to 
have  been  actuated  by  the  purpose  to  exclude  the  plaintiff  in  error 
from  further  prosecution  of  the  enterprise.  The  limits  of  the  priv- 
ileged district  were  fixed  late  in  August.  In  September  the  complain- 
ant began  the  construction  of  the  works.  In  November,  without  changed 
conditions  or  adequate  reason,  the  council,  by  an  amended  ordi- 
nance, draw  a  line  embracing  a  part  of  the  district  including  the  com- 
plainant's property,  and  declare  that,  too,  shall  be  prohibited  territory. 
This  action  is  strongly  corroborative  of  the  allegations  of  the  bill  that 
the  purpose  was  not  police  regulation  in  the  interest  of  the  public,  but 
the  destruction  of  the  plaintiff's  rights,  and  the  building  up  of  another 


Ch.  10)  DUB  PROCESS  AND  EQUALITY,:     POI  408 

company  still  within  the  privileged  district  after  the  passage  of  the 
amendment.  Being  the  owner  of  the  land,  and  having  partially  erected 
the  works,  the  plaintiff  in  error  had  acquired  property  rights,  and  was 
entitled  to  protection  against  unconstitutional  encroachments  which 
would  have  the  effect  to  deprive  her  of  her  property  without  due  pro- 
cess of  law. 

"It  is  averred  in  the  bill  of  complaint  that  the  district  within  which 
the  works  were  being  erected  was  oue  given  over  to  manufacturing 
enterprises,  some  of  which  were  fully  as  obnoxious  as  gasworks  possi- 
bly could  be ;  that  it  contained  large  spaces  of  unoccupied  lands,  worth- 
less except  for  manufacturing  purposes,  and,  by  clear  inference,  that 
there  was  nothing  in  the  situation  which  rendered  it  necessary,  in  order 
to  protect  the  city  from  a  noisome  and  unhealthy  business,  to  decrease 
the  area  within  which  gasworks  could  lawfully  be  erected. 

"It  is  urged  that,  where  the  exercise  of  legislative  or  municipal  pow- 
er is  clearly  within  constitutional  limits,  the  courts  will  not  inquire  in- 
to the  motives  which  may  have  actuated  the  legislative  body  in  pass- 
ing the  law  or  ordinance  in  question.  Whether,  when  it  appears  that 
the  facts  would  authorize  the  exercise  of  the  power,  the  courts  will 
restrain  its  exercise  because  of  alleged  wrongful  motives  inducing  the 
passage  of  an  ordinance,  is  not  a  question  necessary  to  be  determined 
in  this  case;  but  where  the  facts  as  to  the  situation  and  conditions  are 
such  as  to  establish  the  exercise  of  the  police  power  in  such  manner 
as  to  oppress  or  discriminate  against  a  class  or  an  individual,  the  courts 
may  consider  and  give  weight  to  such  purpose  in  considering  the  va- 
lidity of  the  ordinance.  This  court  in  the  case  of  Yick  Wo  v.  1  [opkins, 
118  U.  S.  356.  6  Sup.  Ct.  1064,  30  L.  Ed.  220.  held  that,  although  an 
ordinance  might  be  lawful  upon  its  face,  and  apparently  fair  in  its 
terms,  yet,  if  it  was  enforced  in  such  a  manner  as  to  work  a  discrim- 
ination against  a  part  of  the  community,  for  no  lawful  reason,  such 
exercise  of  power  would  be  invalidated  by  the  courts.     *     *     * 

"In  this  case  we  think  the  allegations  of  the  bill  disclose  such  char- 
acter of  territory,  such  sudden  and  unexplained  change  of  its  limits 
after  the  plaintiff  in  error  had  purchased  the  property  and  gone  for- 
ward with  the  erection  of  the  works,  as  to  bring  it  within  that  class  of 
cases  wherein  the  court  may  restrain  the  arbitrary  and  discriminatory 
exercise  of  the  police  power  which  amounts  to  a  taking  of  property 
without  due  process  of  law  and  an  impairment  of  property  rights 
protected  by  the  fourteenth  amendment  to  the  federal  Constitution." 


POWELL  v.  PENNSYLVANIA. 

(Supreme  Court  of  United  St.-itos.  l.W.     127  V.  S.  07S.  S  Sup.  Ct.  002.  12.'7. 
32  L.  Ed 

[Error  to  the  Supreme  Court  of  Pennsylvania.  A  Pennsylvania 
statute  forbade  the  manufacture,  sale,  or  the  keeping  with  intent  to 
sell,  of  any  oleaginous  article  designed  to  take  the  place  of  bu 


406  FUNDAMENTAL    EIGHTS  (Part  2 

cheese  produced  from  pure,  unadulterated  milk  or  cream.  Powell  was 
convicted  in  a  county  quarter  sessions  court  of  violating  this  statute 
by  selling  and  keeping  for  sale  packages  of  oleomargarine  plainly  la- 
beled and  sold  as  such,  which  had  been  lawfully  made  in  the  state  prior 
to  the  passage  of  the  statute.  The  trial  court  refused  to  allow  Powell 
to  prove  that  the  articles  sold  by  him  were  wholesome  articles  of  food, 
cleanly  manufactured,  and  only  differed  from  dairy  butter  in  composi- 
tion, in  that  they  contained  a  slightly  smaller  percentage  of  butterine, 
a  substance  giving  flavor  to  butter,  but  adding  nothing  to  its  whole- 
someness.    The  conviction  was  affirmed  by  the  state  Supreme  Court.] 

Mr.  Justice  Harlan.  *  *  *  This  case  in  its  important  aspects 
is  governed  by  the  principles  announced  in  Mugler  v.  Kansas,  123 
U.  S.  623,  8  Sup.  Ct.  273,  31  L.  Ed.  205.  *  *  *  The  question, 
therefore,  is  whether  the  prohibition  of  the  manufacture  out  of 
oleaginous  substances,  or  out  of  any  compound  thereof  other  than 
that  produced  from  unadulterated  milk  or  cream  from  unadulterated 
milk,  of  an  article  designed  to  take  the  place  of  butter  or  cheese  pro- 
duced from  pure  unadulterated  milk  or  cream  from  unadulterated 
milk,  or  the  prohibition  upon  the  manufacture  of  any  imitation  or 
adulterated  butter  or  cheese,  or  upon  the  selling  or  offering  for  sale, 
or  having  in  possession  with  intent  to  sell,  the  same,  as  an  article 
of  food,  is  a  lawful  exercise  by  the  state  of  the  power  to  protect,  by 
police  regulations,  the  public  health. 

The  main  proposition  advanced  by  the  defendant  is  that  his  enjoy- 
ment upon  terms  of  equality  with  all  others  in  similar  circumstances 
of  the  privilege  of  pursuing  an  ordinary  calling  or  trade,  and  of  ac- 
quiring, holding,  and  selling  property,  is  an  essential  part  of  his  rights 
of  liberty  and  property,  as  guaranteed  by  the  fourteenth  amendment. 
The  court  assents  to  this  general  proposition  as  embodying  a  sound 
principle  of  constitutional  law.  But  it  cannot  adjudge  that  the  de- 
fendant's rights  of  liberty  and  property,  as  thus  defined,  have  been 
infringed  by  the  statute  of  Pennsylvania,  without  holding  that,  al- 
though it  may  have  been  enacted  in  good  faith  for  the  objects  ex- 
pressed in  its  title,  namely,  to  protect  the  public  health  and  to  pre- 
vent the  adulteration  of  dairy  products  and  fraud  in  the  sale  thereof, 
it  has,  in  fact,  no  real  or  substantial  relation  to  those  objects.  Mug- 
ler v.  Kansas,  123  U.  S.  623,  661,  8  Sup.  Ct.  273,  31  L.  Ed.  205.  The 
court  is  unable  to  affirm  that  this  legislation  has  no  real  or  substan- 
tial relation  to  such  objects. 

It  will  be  observed  that  the  offer  in  the  court  below  was  to  show 
by  proof  that  the  particular  articles  the  defendant  sold,  and  those  in 
his  possession  for  sale,  in  violation  of  the  statute,  were,  in  fact, 
wholesome  or  nutritious  articles  of  food.  It  is  entirely  consistent 
with  that  offer  that  many,  indeed,  that  most  kinds  of  oleomargarine 
butter  in  the  market  contain  ingredients  that  are  or  may  become  in- 
jurious to  health.  The  court  cannot  say,  from  anything  of  which 
it  may  take  judicial  cognizance,  that  such  is  not  the  fact.     Under  the 


Ch.  10)  Dti:    PROCESS   AND    EQUALITY  :     POLICE    POWBB  407 

circumstances  disclosed  in  the  record,  and  in  obedience  to  settled  rules 
of  constitutional  construction,  it  must  be  assumed  that  such  is  the 
fact.  "Every  possible  presumption,"  Chief  Justice  Waitc  said,  speak- 
ing for  the  court  in  Sinking  Fund  Cases,  99  U.  S.  700,  718,  25  L.  Ed. 
496,  "is  in  favor  of  the  validity  of  a  statute,  and  this  continues  until 
the  contrary  is  shown  beyond  a  rational  doubt.  One  branch  of  the 
government  cannot  encroach  on  the  domain  of  another  without  dan- 
ger. The  safety  of  our  institutions  depends  in  no  small  degree  on  a 
strict  observance  of  this  salutary  rule."  See,  also,  Fletcher  v.  Peck, 
6  Cranch,  87,  128,  3  L.  Ed.  162;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518,  625,  4  L.  Ed.  629;  Livingston  v.  Darlington,  101  U. 
S.  407,  25  L.  Ed.  1015. 

Whether  the  manufacture  of  oleomargarine,  or  imitation  butter,  of 
the  kind  described  in  the  statute,  is,  or  may  be,  conducted  in  such  a 
way,  or  with  such  skill  and  secrecy,  as  to  baffle  ordinary  inspection, 
or  whether  it  involves  such  danger  to  the  public  health  as  to  require, 
for  the  protection  of  the  people,  the  entire  suppression  of  the  busi- 
ness, rather  than  its  regulation  in  such  manner  as  to  permit  the  manu- 
facture and  sale  of  articles  of  that  class  that  do  not  contain  noxious 
ingredients,  are  questions  of  fact  and  of  public  policy  which  belong 
to  the  legislative  department  to  determine.  And  as  it  does  not  appear 
upon  the  face  of  the  statute,  or  from  any  facts  of  which  the  court 
must  take  judicial  cognizance,  that  it  infringes  rights  secured  by  the 
fundamental  law,  the  legislative  determination  of  those  questions  is 
conclusive  upon  the  courts.  It  is  not  a  part  of  their  functions  to 
conduct  investigations  of  facts  entering  into  questions  of  public 
policy  merely,  and  to  sustain  or  frustrate  the  legislative  will,  em- 
bodied in  statutes,  as  they  may  happen  to  approve  or  disapprove  its 
determination  of  such  questions.  The  power  which  the  legislature 
has  to  promote  the  general  welfare  is  very  great,  and  the  discretion 
which  that  department  of  the  government  has.  in  the  employment  of 
means  to  that  end,  is  very  large.  While  both  its  power  and  its  dis- 
cretion must  be  so  exercised  as  not  to  impair  the  fundamental  rights 
of  life,  liberty,  and  property ;  and  while,  according  to  the  principles 
upon  which  our  institutions  rest,  "the  very  ilea  that  one  man  may 
be  compelled  to  hold  his  life,  or  the  means  of  living,  or  any  material 
right  essential  to  the  enjoyment  of  life,  at  the  mere  will  of  another, 
seems  to  be  intolerable  in  any  country  where  freedom  prevails,  as  be- 
ing the  essence  of  slavery  itself;"  yet,  "in  many  cases  of  mere  ad- 
ministration, the  responsibility  is  purely  political,  no  appeal  lying 
except  to  the  ultimate  tribunal  of  the  public  judgment,  exercised  ei- 
ther in  the  pressure  of  public  opinion  or  by  means  of  the  sin 
Yick  Wo  v.  Hopkins,  118  V.  S.  370,  6  Sup.  Ct.  1064,  30  I..  V 

The  case  before  us  belongs  to  the  latter  class.  The  Legislature  of 
Pennsylvania,  upon  the  fullest  investigation,  as  we  must  conclusively 
presume,  and  upon  reasonable  grounds,  as  must  be  assumed  from  the 
record,  has  determined  that   the  prohibition  of  the  sale,  or  offering 


408  FUNDAMENTAL    RIGHTS  (Part  2 

for  sale,  or  having  in  possession  to  sell,  for  purposes  of  food,  of  any 
article  manufactured  out  of  oleaginous  substances  or  compounds 
other  than  those  produced  from  unadulterated  milk  or  cream  from 
unadulterated  milk,  to  take  the  place  of  butter  produced  from  un- 
adulterated milk  or  cream  from  unadulterated  milk,  will  promote  the 
public  health,  and  prevent  frauds  in  the  sale  of  such  articles.  If  all 
that  can  "be  said  of  this  legislation  is  that  it  is  unwise,  or  unnecessarily 
oppressive  to  those  manufacturing  or  selling  wholesome  oleomar- 
garine, as  an  article  of  food,  their  appeal  must  be  to  the  legislature, 
or  to  the  ballot-box,  not  to  the  judiciary.  The  latter  cannot  interfere 
without  usurping  powers  committed  to  another  department  of  gov- 
ernment. 

It  is  argued,  in  behalf  of  the  defendant,  that  if  the  statute  in  ques- 
tion is  sustained  as  a  valid  exercise  of  legislative  power,  then  noth- 
ing stands  in  the  way  of  the  destruction  by  the  legislative  department 
of  the  constitutional  guarantees  of  liberty  and  property.  But  the 
possibility  of  the  abuse  of  legislative  power  does  not  disprove  its  ex- 
istence. That  possibility  exists  even  in  reference  to  powers  that  are 
conceded  to  exist.  Besides,  the  judiciary  department  is  bound  not 
to  give  effect  to  statutory  enactments  that  are  plainly  forbidden  by 
the  Constitution.  This  duty,  the  court  has  said,  is  always  one  of  ex- 
treme delicacy ;  for,  apart  from  the  necessity  of  avoiding  conflicts 
between  co-ordinate  branches  of  the  government,  whether  state  or 
.  national,  it  is  often  difficult  to  determine  whether  such  enactments 
are  within  the  powers  granted  to  or  possessed  by  the  legislature. 
Nevertheless,  if  the  incompatibility  of  the  Constitution  and  the  stat- 
ute is  clear  or  palpable,  the  courts  must  give  effect  to  the  former. 
And  such  would  be  the  duty  of  the  court  if  the  state  legislature,  un- 
der the  pretence  of  guarding  the  public  health,  the  public  morals,  or 
the  public  safety,  should  invade  the  rights  of  life,  liberty,  or  property, 
or  other  rights,  secured  by  the  supreme  law  of  the  land.     *     *     * 

Judgment  affirmed.1 

[Mr.  Justice  Field  gave  a  dissenting  opinion.] 


ALLGEYER  v.  LOUISIANA. 

(Supreme  Court  of  United  States,  1897.    1G5  U.  S.  57S,  17  Sup.  Ct.  427,  41  L. 
Ed.  S32.) 

See  ante,  p.  232,  for  a  report  of  this  case. 

i  Contra:  People  v.  Marx,  99  N.  Y.  377,  2  N.  E.  29.  52  Am.  Rep.  34  (1SS5) 
(where,  however,  assumed  object  of  statute  was  protection  of  dairy  interests 
from  competition).  As  to  power  of  state  over  oleomargarine  in  interstate  com- 
merce, see  Plumley  v.  Massachusetts.  155  U.  S.  4C1,  15  Sup.  Ct.  154,  39  L.  Ed. 
223  (1894) ;  Schollenberger  v.  Pennsylvania.  171  U.  S.  1,  IS  Sup.  Ct.  757,  43 
L.  Ed.  49  (1898) ;  Collins  v.  New  Hampshire,  171  U.  S.  30,  IS  Sup.  Ct.  70S,  43 
L.  Ed.  60  (1S9S). 


Cll.  10)  DDE   PROCESS   AND    EQUALITY:     POLICE  POWER  40'.t 

HOLDEN  v.  HARDY. 

(Supreme  Court  of  Cnlted  States,  1898.     168  U.  S.  3<JG,  18  Sup.  Ct  3S3,  42  L. 
Ed.  780.) 

[Error  to  the  Supreme  Court  of  Utah.  A  Utah  statute  forbade  the 
einployment  of  workmen  over  eight  hours  a  day  in  any  underground 
mine,  or  in  any  smelter  or  other  institution  for  reducing  or  refining 
ores,  except  in  cases  of  emergency  imminently  dangerous  to  life  or 
property.  Holden  was  convicted  in  a  justice's  court  in  Salt  Lake  coun- 
ty of  violating  both  prohibitions  of  this  statute,  and  petitioned  the 
state  Supreme  Court  for  a  writ  of  habeas  corpus  to  discharge  him  from 
the  sheriff's  custody  upon  each  conviction.  From  a  denial  of  this 
application  he  took  this  writ  of  error.] 

Mr.  Justice  Brown.  *  *  *  [The  cases  that  have  arisen  under  the 
fourteenth  amendment]  may  be  divided,  generally,  into  two  classes : 
First,  where  a  state  legislature  or  a  state  court  is  alleged  to  have 
unjustly  discriminated  in  favor  of  or  against  a  particular  individual  or 
class  of  individuals,  as  distinguished  from  the  rest  of  the  community, 
or  denied  them  the  benefit  of  due  process  of  law ;  second,  where  the 
legislature  has  changed  its  general  system  of  jurisprudence  by  abolish- 
ing what  had  been  previously  considered  necessary  to  the  proper  ad- 
ministration of  justice,  or  the  protection  of  the  individual.  *  *  ' 
[Various  cases  are  here  mentioned  or  commented  upon.] 

An  examination  of  both  these  classes  of  cases  under  the  fourteenth 
amendment  will  demonstrate  that,  in  passing  upon  the  validity  of  state 
legislation  under  that  amendment,  this  court  has  not  failed  to  recognize 
the  fact  that  the  law  is,  to  a  certain  extent,  a  progressive  science ; 
that,  in  some  of  the  states,  methods  of  procedure  which,  at  the  time 
the  constitution  was  adopted,  were  deemed  essential  to  the  protection 
and  safety  of  the  people,  or  to  the  liberty  of  the  citizen,  have  been 
found  to  be  no  longer  necessary;  that  restrictions  which  had  formerly 
been  laid  upon  the  conduct  of  individuals,  or  of  classes  of  individuals, 
had  proved  detrimental  to  their  interests,  while,  upon  the  other  hand, 
certain  other  classes  of  persons  (particularly  those  engaged  in  danger- 
ous or  unhealthful  employments)  have  been  found  to  be  in  need  of 
additional  protection.  Even  before  the  adoption  of  the  constitution, 
much  had  been  done  towards  mitigating  the  severity  of  the  common 
law,  particularly  in  the  administration  of  its  criminal  branch.  The 
number  of  capital  crimes  in  this  country,  at  least,  had  been  largely  de- 
creased. Trial  by  ordeal  and  by  battle  had  never  existed  here,  and 
had  fallen  into  disuse  in  England.  The  earlier  practice  of  the  common 
law,  which  denied  the  benefit  of  witnesses  to  a  person  accused  of  fel- 
ony, had  been  abolished  by  statute,  though,  so  far  as  it  deprived  him  of 
the  assistance  of  counsel  and  compulsory  process  for  the  attendance  of 
his  witnesses,  it  had  not  been  changed  in  England.  But,  to  the  credit 
of  her  American  colonies,  let  it  be  said  that  so  oppressive  a  doctrine 
had  never  obtained  a  foothold  there. 


410  FUNDAMENTAL    RIGHTS  (Part  2 

The  present  century  has  originated  legal  reforms  of  no  less  impor- 
tance. The  whole  fabric  of  special  pleading,  once  thought  to  be  nec- 
essary to  the  elimination  of  the  real  issue  between  the  parties,  has 
crumbled  to  pieces.  The  ancient  tenures  of  real  estate  have  been  large- 
ly swept  away,  and  land  is  now  .transferred  almost  as  easily  and  cheap- 
ly as  personal  property.  Married  women  have  been  emancipated  from 
the  control  of  their  husbands,  and  placed  upon  a  practical  equality 
with  them,  with  respect  to  the  acquisition,  possession,  and  transmission 
of  property.  Imprisonment  for  debt  has  been  abolished.  Exemptions 
from  execution  have  been  largely  added  to,  and  in  most  of  the  states 
homesteads  are  rendered  incapable  of  seizure  and  sale  upon  forced 
process.  Witnesses  are  no  longer  incompetent  by  reason  of  interest, 
even  though  they  be  parties  to  the  litigation.  Indictments  have  been 
simplified,  and  an  indictment  for  the  most  serious  of  crimes  is  now  the 
simplest  of  all.  In  several  of  the  states,  grand  juries,  formerly  the 
only  safeguard  against  a  malicious  prosecution,  have  been  largely 
abolished ;  and  in  others  the  rule  of  unanimity,  so  far  as  applied  to 
civil  cases,  has  given  way  to  verdicts  rendered  by  a  three-fourths  ma- 
jority. 

This  case  does  not  call  for  an  expression  of  opinion  as  to  the  wis- 
dom of  these  changes,  or  their  validity  under  the  fourteenth  amend- 
ment, although  the  substitution  of  prosecution  by  information  in  lieu 
of  indictment  was  recognized  as  valid  in  Hurtado  v.  California,  110 
U.  S.  516,  4  Sup.  Ct.  Ill,  292,  28  L.  Ed.  232.  They  are  mentioned 
only  for  the  purpose  of  calling  attention  to  the  probability  that  other 
changes  of  no  less  importance  may  be  made  in  the  future,  and  that, 
while  the  cardinal  principles  of  justice  are  immutable,  the  methods  by 
which  justice  is  administered  are  subject  to  constant  fluctuation,  and 
that  the  Constitution  of  the  United  States,  which  is  necessarily  and  to 
a  large  extent  inflexible,  and  exceedingly  difficult  of  amendment, 
should  not  be  so  construed  as  to  deprive  the  states  of  the  power  to  so 
amend  their  laws  as  to  make  them  conform  to  the  wishes  of  the  citi- 
zens, as  they  may  deem  best  for  the  public  welfare,  without  bringing 
them  into  conflict  with  the  supreme  law  of  the  land. 

Of  course,  it  is  impossible  to  forecast  the  character  or  extent  of 
these  changes;  but  in  view  of  the  fact  that,  from  the  day  Magna 
Charta  was  signed  to  the  present  moment,  amendments  to  the  struc- 
ture of  the  law  have  been  made  with,  increasing  frequency,  it  is  im- 
possible to  suppose  that  they  will  not  continue,  and  the  law  be  forced 
to  adapt  itself  to  new  conditions  of  society,  and  particularly  to  the  new 
relations  between  employers  and  employes,  as  they  arise.    *    *    * 

Recognizing  the  difficulty  in  defining  with  exactness  the  phrase  "due 
process  of  law,"  it  is  certain  that  these  words  imply  a  conformity  with 
natural  and  inherent  principles  of  justice,  and  forbid  that  one  man's 
property,  or  right  to  property,  shall  be  taken  for  the  benefit  of  an- 
other, or  for  the  benefit  of  the  state,  without  compensation,  and  that 


Ch.  10J  DUB  I'UOCESa  AND  equality:    police  powbb  411 

no  one  shall  be  condemned  in  his  person  or  property  without  an  oppor- 
tunity of  being  heard  in  his  own  defense. 

As  Ihe  possession  of  property,  of  which  a  person  cannot  be  deprived, 
doubtless  implies  that  such  property  may  be  acquired,  it  is  safe  to  say 
that  a  state  law  which  undertakes  to  deprive  anv  class  of  persons  of 
the  general  power  to  acquire  property  would  also  be  obnoxious  to  the 
same  provision.  Indeed,  we  may  go  a  step  further,  and  say  that  as 
property  can  only  be  legally  acquired,  as  between  living  persons,  by 
contract,  a  general  prohibition  against  entering  into  contracts  with 
respect  to  property,  or  having  as  their  object  the  acquisition  of  prop- 
erty, would  be  equally  invalid.  *  *  *  [Here  follows  a  quotation 
from  Allgcyer  v.  Louisiana,  ante,  p.  235.] 

This  right  of  contract,  however,  is  itself  subject  to  certain  limita- 
tions which  the  state  may  lawfully  impose  in  the  exercise  of  its  police 
powers.  While  this  power  is  inherent  in  all  governments,  it  has 
doubtless  been  greatly  expanded  in  its  application  during  the  past 
century,  owing  to  an  enormous  increase  in  the  number  of  occupations 
which  are  dangerous  or  so  far  detrimental  to  the  health  of  employes 
as  to  demand  special  precautions  for  their  well-being  and  protection, 
or  the  safety  of  adjacent  property.  While  this  court  has  held  (notably 
in  the  cases  of  Davidson  v.  New  Orleans,  96  U.  S.  97,  and  Yick  Wo 
v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064)  that  the  police  power 
cannot  be  put  forward  as  an  excuse  for  oppressive  and  unjust  legis- 
lation, it  may  be  lawfully  resorted  to  for  the  purpose  of  preserving  the 
public  health,  safety,  or  morals,  or  the  abatement  of  public  nuisances, 
and  a  large  discretion  "is  necessarily  vested  in  the  legislature,  to  de- 
termine, not  only  what  the  interests  of  the  public  require,  but  what 
measures  are  necessary  for  the  protection  of  such  interests."  Law- 
ton  v.  Steele,  152  U.  S.  133,  136,  14  Sup.  Ct.  499,  38  L.  Ed.  385.  *  *  * 

While  the  business  of  mining  coal  and  manufacturing  iron  began  in 
Pennsylvania  as  early  as  1716,  and  in  Virginia,  North  Carolina,  and 
Massachusetts  even  earlier  than  this,  both  mining  and  manufacturing 
were  carried  on  in  such  a  limited  way,  and  by  such  primitive  methods, 
that  no  special  laws  were  considered  necessary,  prior  to  the  adoption 
of  the  Constitution,  for  the  protection  of  the  operatives;  but.  in  the 
vast  proportions  which  these  industries  have  since  assumed,  it  has  been 
found  that  they  can  no  longer  be  carried  on,  with  due  regard  to  the 
safety  and  health  of  those  engaged  in  them,  without  special  protec- 
tion against  the  dangers  necessarily  incident  to  these  employments. 
In  consequence  of  this,  laws  have  been  enacted  in  most  of  the  states 
designed  to  meet  these  exigencies,  and  to  secure  the  safety  of  persons 
peculiarly  exposed  to  these  dangers.  Within  this  general  category  are 
ordinances  providing  for  fire  escapes  for  hotels,  theaters,  factories, 
and  other  large  buildings ;  a  municipal  inspection  of  boilers ;  and 
appliances  designed  to  secure  passengers  upon  railways  and  steam- 
boats, against  the  dangers  necessarily  incident  to  these  methods  of 
transportation.      In   states   where   manufacturing   is   carried   on   to   a 


412  FUNDAMENTAL    RIGHTS  (Part  2 

large  extent,  provision  is  made  for  the  protection  of  dangerous  ma- 
chinery against  accidental  contact;  for  the  cleanliness  and  ventilation 
of  working  rooms;  for  the  guarding  of  well  holes,  stairways,  eleva- 
tor shafts;  and  for  the  employment  of  sanitary  appliances.  In  others, 
where  mining  is  the  principal  industry,  special  provision  is  made  for 
the  shoring  up  of  dangerous  walls ;  for  ventilation  shafts,  bore  holes, 
escapement  shafts,  means  of  signaling  the  surface;  for  the  supply  of 
fresh  air,  and  the  elimination,  as' far  as  possible,  of  dangerous  gases; 
for  safe  means  of  hoisting  and  lowering  cages ;  for  a  limitation  upon 
the  number  of  persons  permitted  to  enter  a  cage ;  that  cages  shall  be 
covered ;  and  that  there  shall  be  fences  and  gates  around  the  top  of 
shafts,  besides  other  similar  precautions.  *  *  *  [Here  follow  ref- 
erences to  various  state  statutes.] 

But,  if  it  be  within  the  power  of  a  legislature  to  adopt  such  means 
for  the  protection  of  the  lives  of  its  citizens,  it  is  difficult  to  see  why 
precautions  may  not  also  be.  adopted  for  the  protection  of  their  health 
and  morals.  It  is  as  much  for  the  interest  of  the  state  that  the  public 
health  should  be  preserved  as  that  life  should  be  made  secure.  With 
this  end  in  view,  quarantine  laws  have  been  enacted  in  most,  if  not  all, 
of  the  states ;  insane  asylums,  public  hospitals,  and  institutions  for 
the  care  and  education  of  the  blind  established ;  and  special  measures 
taken  for  the  exclusion  of  infected  cattle,  rags,  and  decayed  fruit.  In 
other  states  laws  have  been  enacted  limiting  the  hours  during  which 
women  and  children  shall  be  employed  in  factories ;  and  while  their 
constitutionality,  at  least  as  applied  to  women,  has  been  doubted  in 
some  of  the  states,  they  have  been  generally  upheld.    *     *     * 

Upon  the  principles  above  stated,  we  think  the  act  in  question  may 
be  sustained  as  a  valid  exercise  of  the  police  power  of  the  state.  The 
enactment  does  not  profess  to  limit  the  hours  of  all  workmen,  but 
merely  those  who  are  employed  in  underground  mines,  or  in  the 
smelting,  reduction,  or  refining  of  ores  or  metals.  These  employ- 
ments, when  too  long  pursued,  the  legislature  has  judged  to  be  det- 
rimental to  the  health  of  the  employes;  and,  so  long  as  there  are 
reasonable  grounds  for  believing  that  this  is  so;  its  decision  upon  this 
subject  cannot  be  reviewed  by  the  federal  courts. 

While  the  general  experience  of  mankind  may  justify  us  in  believing 
that  men  may  engage  in  ordinary  employments  more  than  eight  hours 
per  day  without  injury  to  their  health,  it  does  not  follow  that  labor 
for  the  same  length  of  time  is  innocuous  when  carried  on  beneath  the 
surface  of  the  earth,  where  the  operative  is  deprived  of  fresh  air  and 
sunlight,  and  is  frequently  subjected  to  foul  atmosphere  and  a  very 
high  temperature,  or  to  the  influence  of  noxious  gases  generated  by 
the  processes  of  refining  or  smelting.    *    *    * 

The  legislature  has  also  recognized  the  fact,  which  the  experience  of 
legislators  in  many  states  has  corroborated,  that  the  proprietors  of 
these  establishments  and  their  operatives  do  not  stand  upon  an  equality, 
and  that  their  interests  are,  to  a  certain  extent,  conflicting.     The  for- 


Ch.  10)  DUE  PROCESS  AND   Kyi:. VI. ITY  :     POLICE  POWEB  41- 

mer  naturally  desire  to  obtain  as  much  labor  as  possible  from  their 
employes,  while  the  latter  are  often  induced  by  the  fear  of  discharge 
to  conform  to  regulations  which  their  judgment,  fairly  exercised, 
would  pronounce  to  be  detrimental  to  their  health  or  strength.  In 
other  words,  the  proprietors  lay  down  the  rules,  and  the  laborers  are 
practically  constrained  to  obey  them.  In  such  cases  self-interest  is 
often  an  unsafe  guide,  and  the  legislature  may  properly  interpose  its 
authority. 

It  may  not  be  improper  to  suggest  in  this  connection  that  although 
the  prosecution  in  this  case  was  against  the  employer  of  labor,  who 
apparently,  under  the  statute,  is  the  only  one  liable,  his  defense  is  not 
so  much  that  his  right  to  contract  has  been  infringed  upon,  but  that 
the  act  works  a  peculiar  hardship  to  his  employes,  whose  right  to  labor 
as  long  as  they  please  is  alleged  to  be  thereby  violated.  The  argu- 
ment would  certainly  come  with  better  grace  and  greater  cogency  from 
the  latter  class.  But  the  fact  that  both  parties  are  of  full  age,  and 
competent  to  contract,  does  not  necessarily  deprive  the  state  of  the 
power  to  interfere,  where  the  parties  do  not  stand  upon  an  equality,  or 
where  the  public  health  demands  that  one  party  to  the  contract  shall  be 
protected  against  himself.  "The  state  still  retains  an  interest  in  his 
welfare,  however  reckless  he  may  be.  The  whole  is  no  greater  than 
the  sum  of  all  the  parts,  and  when  the  individual  health,  safety,  and 
welfare  are  sacrificed  or  neglected,  the  state  must  suffer." 

We  have  no  disposition  to  criticise  the  many  authorities  which  hold 
that  state  statutes  restricting  the  hours  of  labor  are  unconstitutional. 
Indeed,  we  are  not  called  upon  to  express  an  opinion  upon  this  sub- 
ject. It  is  sufficient  to  say  of  them  that  they  have  no  application  to 
cases  where  the  legislature  had  adjudged  that  a  limitation  is  neces- 
sary for  the  preservation  of  the  health  of  employes,  anil  there  are 
reasonable  grounds  for  believing  that  such  determination  is  supported 
by  the  facts.    *    *    * 

Judgment  affirmed.1 

[Brewer  and  Peckham,  JJ.,  dissented.] 

i  As  to  how  far  a  person  may  be  compelled  to  refrain  from  private  acts 
Injurious  principally  to  himself,  see  Ah  Llm  v.  Territory,  l  Wash. 
Pne.  5SS,  9  L,.  K.  A.  ."9.r>  (1S90)  (smoking  opium) :  City  "t  St  Joseph  v.  Harris, 
59  Mo.  App.  122  (1894)  (Intoxication);  City  of  Greenville  r.  Kemmls,  58  s.  C. 
427.  ::g  s.  K.  727,  BO  L.  B,  A.  726  (1900)  (gambling);  City  of  st.  Louis  v.  Fit/.. 
53  Mo.  582  (1873)  (association  with  thieves  and  prostitutes)  [see,  also,  F.\  parte 
Smith.  135  Mo.  223,  3G  S.  W.  628,  33  L.  R.  A.  600,  58  Am.  St.  Kep.  676];  In 
re  Morgan,  26  Colo.  415,  58  Pac.  1071,  47  L.  R.  A.  52,  77  Am.  St  Bep.  -•<■:> 
(1S99)  (miners'  eight-hour  law). 


1 1  1  FUNDAMENTAL    RIGHTS  (Part  2 


LOCHNER  v.  NEW  YORK. 

(Supreme  Court  of  United  States,  1905.    198  U.  S.  45,  25  Sup.  Ct  539,  49  L. 
Ed.  937,  3  Ann.  Cas.  1133.) 

[Error  to  the  county  court  of  Oneida  county,  New  York.  A  New 
York  statute  forbade  any  employee  in  a  bakery  or  confectionery  estab- 
lishment to  be  permitted  to  work  over  60  hours  in  any  one  week,  or 
an  average  of  over  10  hours  a  day  for  the  number  of  days  such  em- 
ployees should  work.  Lochner  was  convicted  in  said  county  court  of 
violating  this  statute  in  the  city  of  Utica,  and  the  conviction  was  af- 
firmed on  appeal  by  the  Appellate  Division  and  by  the  Court  of  Ap- 
peals of  the  state,  which  remanded  the  case  to  the  original  court  for 
further  proceedings.] 

Mr.  Justice  Peckham.  *  *  *  The  statute  necessarily  interferes 
with  the  right  of  contract  between  the  employer  and  employees,  con- 
cerning the  number  of  hours  in  which  the  latter  may  labor  in  the  bak- 
ery of  the  employer.  The  general  right  to  make  a  contract  in  relation 
to  his  business  is  part  of  the  liberty  of  the  individual  protected  by 
the  fourteenth  amendment  of  the  federal  Constitution.  Allgeyer  v. 
Louisiana,  165  U.  S.  578,  17  Sup.  Ct.  427,  41  L.  Ed.  832.  Under  that 
provision  no  state  can  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law.  The  right  to  purchase  or  to  sell  labor  is 
part  of  the  liberty  protected  by  this  amendment,  unless  there  are  cir- 
cumstances which  exclude  the  right.  There  are,  however,  certain  pow- 
ers, existing  in  the  sovereignty  of  each  state  in  the  Union,  somewhat 
vaguely  termed  police  powers,  the  exact  description  and  limitation  of 
which  have  not  been  attempted  by  the  courts.  Those  powers,  broadly 
stated,  and  without,  at  present,  any  attempt  at  a  more  specific  limita- 
tion, relate  to  the  safety,  health,  morals,  and  general  welfare  of  the 
public.  Both  property  and  liberty  are  held  on  such  reasonable  condi- 
tions as  may  be  imposed  by  the  governing  power  of  the  state  in  the 
exercise  of  those  powers,  and  with  such  conditions  the  fourteenth 
amendment  was  not  designed  to  interfere.  Mugler  v.  Kansas,  123  U. 
S.  623,  8  Sup.  Ct.  273,  31  L.  Ed.  205 ;  Re  Kemmler,  136  U.  S.  436,  10 
Sup.  Ct.  930,  34  L.  Ed.  519;  Crowley  v.  Christensen,  137  U.  S.  86,  11 
Sup.  Ct.  13,  34  L.  Ed.  620;  Re  Converse,  137  U.  S.  624,  11  Sup.  Ct. 
191,  34  L.  Ed.  796. 

The  state,  therefore,  has  power  to  prevent  the  individual  from  mak- 
ing certain  kinds  of  contracts,  and  in  regard  to  them  the  federal  Con- 
stitution offers  no  protection.  If  the  contract  be  one  which  the  state, 
in  the  legitimate  exercise  of  its  police  power,  has  the  right  to  prohibit, 
it  is  not  prevented  from  prohibiting  it  by  the  fourteenth  amendment. 
Contracts  in  violation  of  a  statute,  either  of  the  federal  or  state  gov- 
ernment, or  a  contract  to  .let  one's  property  for  immoral  purposes,  or 
to  do  any  other  unlawful  act,  could  obtain  no  protection  from  the  fed- 
eral Constitution,  as  coming  under  the  liberty  of  person  or  of  free  con- 


Ch.  10)  DUE    PROCESP    AM'    EQUALITT:      POf-ICE    POWER  4 1  ."> 

tract.    Therefore,  when  the  state,  by  its  legislature,  in  the  assumed  ex- 
ercise of  its  police  powers,  has  passed  an  act  which  seriously  limits  the 
right  to  labor  or  the  right  of  contract  in  regard  to  their  means  of  liveli- 
hood between  persons  who  are  sui  juris  (both  employer  and  em; 
it  becomes  of  great  importance  to  determine  which  shall  prevail, — the 
right  of  the  individual  to  labor  for  such  time  as  he  may  choose,  or  the 
right  of  the  state  to  prevent  the  individual  from  laboring,  or  fi 
tering  into  any  contract  to  labor,  beyond  a  certain  time  prescr: 
the  state. 

This  court  has  recognized  the  existence  and  upheld  the  exercise  of 
the  police  powers  of  the  states  in  many  cases  which  might  fairly  be 
considered  as  border  ones,  and  it  has,  in  the  course  of  its  determina- 
tion of  questions  regarding  the  asserted  invalidity  of  such  statutes,  on 
the  ground  of  their  violation  of  the  rights  secured  by  the  federal  Con- 
stitution, been  guided  by  rules  of  a  very  liberal  nature,  the  application 
of  which  has  resulted,  in  numerous  instances,  in  upholding  the  validity 
of  slate  statutes  thus  assailed.  Among  the  later  cases  where  the  state 
law  has  been  upheld  by  this  court  is  that  of  Holden  v.  Hardy,  *  *  * 
[ante,  p.  409,  which  is  here  stated.] 

It  will  be  observed  that,  even  with  regard  to  that  class  of  labor,  the 
Utah  statute  provided  for  cases  of  emergency  wherein  the  pro\ 
of  the  statute  would  not  apply.  The  statute  now  before  this  court  has 
no  emergency  clause  in  it,  and,  if  the  statute  is  valid,  there  are  no  cir- 
cumstances and  no  emergencies  under  which  the  slightest  violation  of 
the  provisions  of  the  act  would  be  innocent.  There  is  nothing  ir 
en  v.  Hardy  which  covers  the  case  now  before  us.  Nor  does  Atkin  v. 
Kansas,  191  U.  S.  207,  24  Sup.  Ct.  124,  48  L.  Ed.  148,  touch  the  case 
at  bar.  The  Atkin  Case  was  decided  upon  the  right  of  the  state  to  con- 
trol its  municipal  corporations,  and  to  prescribe  the  conditions  upon 
which  it  will  permit  work  of  a  public  character  to  be  done  for  a  mu- 
nicipality. Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13.  22  Sup.  Ct. 
1,  46  L.  Ed.  55.  is  equally  far  from  an  authority  for  this  legislation. 
The  employees  in  that  case  were  held  to  be  at  a  disadvantage  with  the 
employer  in  matters  of  wages,  they  being  miners  and  coal  workers,  and 
the  act  simply  provided  for  the  cashing  of  coal  orders  when  presented 
by  the  miner  to  the  employer.  *  *  *  f  Jacobson  v.  Massachusetts, 
post,  p.  444,  and  Petit  v.  Minnesota,  ante,  p.  358,  note,  are  here  stated.] 

It  must,  of  course,  be  conceded  that  there  is  a  limit  to  the  valid  ex- 
ercise of  the  police  power  by  the  state.  There  is  no  dispute  concerning 
this  general  proposition.  Otherwise  the  fourteenth  amendment  would 
have  no  efficacy  and  the  legislatures  of  the  states  would  have  unbound- 
ed power,  and  it  would  be  enough  to  say  that  any  piece  of  legislation 
was  enacted  to  conserve  the  morals,  the  health,  or  the  safety  of  the 
people;  such  legislation  would  be  valid,  no  matter  how  absolutely 
without  foundation  the  claim  might  be.  The  claim  of  the  police  power 
would  be  a  mere  pretext, — become  another  and  delusive  name  for  the 
supreme  sovereignty  of  the  state  to  be  exercised   free  from  constitu- 


416  FUNDAMENTAL    RIGHTS  (Part  2 

tional  restraint.  This  is  not  contended  for.  In  every  case  that  comes 
before  this  court,  therefore,  where  legislation  of  this  character  is  con- 
cerned, and  where  the  protection  of  the  federal  Constitution  is  sought, 
the  question  necessarily  arises :  Is  this  a  fair,  reasonable,  and  appro- 
priate exercise  of  the  police  power  of  the  state,  or  is  it  an  unreasonable, 
unnecessary,  and  arbitrary  interference  with  the  right  of  the  individ- 
ual to  his  personal  liberty,  or  to  enter  into  those  contracts  in  relation 
to  labor  which  may  seem  to  him  appropriate  or  necessary  for  the  sup- 
port of  himself  and  his  family?  Of  course  the  liberty  of  contract  re- 
lating to  labor  includes  both  parties  to  it.  The  one  has  as  much  right 
to  purchase  as  the  other  to  sell  labor. 

This  is  not  a  question  of  substituting  the  judgment  of  the  court  for 
that  of  the  legislature.  If  the  act  be  within  the  power  of  the  state  it  is 
valid,  although  the  judgment  of  the  court  might  be  totally  opposed  to 
the  enactment  of  such  a  law.  But  the  question  would  still  remain :  Is 
it  within  the  police  power  of  the  state?  and  that  question  must  be  an- 
swered by  the  court. 

The  question  whether  this  act  is  valid  as  a  labor  law,  pure  and  sim- 
ple, may  be  dismissed  in  a  few  words.  There  is  no  reasonable  ground 
for  interfering  with  the  liberty  of  person  or  the  right  of  free  contract, 
by  determining  the  hours  of  labor,  in  the  occupation  of  a  baker.  There 
is  no  contention  that  bakers  as  a  class  are  not  equal  in  intelligence  and 
capacity  to  men  in  other  trades  or  manual  occupations,  or  that  they 
are  not  able  to  assert  their  rights  and  care  for  themselves  without  the 
protecting  arm  of  the  state,  interfering  with  their  independence  of 
judgment  and  of  action.  They  are  in  no  sense  wards  of  the  state. 
Viewed  in  the  light  of  a  purely  labor  law,  with  no  reference  whatever 
to  the  question  of  health,  we  think  that  a  law  like  the  one  before  us 
involves  neither  the  safety,  the  morals,  nor  the  welfare,  of  the  public, 
and  that  the  interest  of  the  public  is  not  in  the  slightest  degree  affected 
by  such  an  act.  The  law  must  be  upheld,  if  at  all,  as  a  law  pertaining 
to  the  health  of  the  individual  engaged  in  the  occupation  of  a  baker. 
It  does  not  affect  any  other  portion  of  the  public  than  those  who  are 
engaged  in  that  occupation.  Clean  and  wholesome  bread  does  not  de- 
pend upon  whether  the  baker  works  but  ten  hours  per  day  or  only  six- 
ty hours  a  week.  The  limitation  of  the  hours  of  labor  does  not  come 
within  the  police  power  on  that  ground. 

It  is  a  question  of  which  of  two  powers  or  rights  shall  prevail, — the 
power  of  the  state  to  legislate  or  the  right  of  the  individual  to  liberty 
of  person  and  freedom  of  contract.  The  mere  assertion  that  the  sub- 
ject relates,  though  but  in  a  remote  degree,  to  the  public  health,  does 
not  necessarily  render  the  enactment  valid.  The  act  must  have  a  more 
direct  relation,  as  a  means  to  an  end,  and  the  end  itself  must  be  ap- 
propriate and  legitimate,  before  an  act  can  be  held  to  be  valid  which 
interferes  with  the  general  right  of  an  individual  to  be  free  in  his  per- 
son and  in  his  power  to  contract  in  relation  to  his  own  labor.     *     *     * 

We  think  the  limit  of  the  police  power  has  been  reached  and  passed 


Ch.  10)  DUE   PROCESS  AND   BOtTALITI I     POLICE    :  4  17 

in  this  case.  There  is,  in  our  judgment,  no  reasonable  foundation  for 
holding  this  to  be  necessary  or  appropriate  as  a  health  law  to  safeguard 
the  public  health,  or  the  health  of  the  individuals  who  are  foil 
the  trade  of  a  baker.  If  this  statute  be  valid,  and  if,  therefore,  a 
proper  case  is  made  out  in  which  to  deny  the  right  of  an  individual, 
sui  juris,  as  employer  or  employee,  to  make  contracts  for  the  labor  of 
the  latter  under  the  protection  of  the  provisions  of  the  federal  Consti- 
tution, there  would  seem  to  be  no  length  to  which  legislation  of  this 
nature  might  not  go.  The  case  differs  widely,  as  we  have  already  stat- 
ed, from  the  expressions  of  this  court  in  regard  to  laws  of  this  nature, 
as  stated  in  Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383,  42  L. 
Ed.  780,  and  Jacobson  v.  Massachusetts,  197  U.  S.  11,  25  Sup.  Ct.  358, 
49  L.  Ed.  643,  3  Ann.  Cas.  765. 

We  think  that  there  can  be  no  fair  doubt  that  the  trade  of  a  baker, 
in  and  of  itself,  is  not  an  unhealthy  one  to  that  degree  which  would 
authorize  the  legislature  to  interfere  with  the  right  to  labor,  and  with 
the  right  of  free  contract  on  the  part  of  the  individual,  cither  as  em- 
ployer or  employee.  In  looking  through  statistics  regarding  all  trade> 
and  occupations,  it  may  be  true  that  the  trade  of  a  baker  does  not  ap- 
pear to  be  as  healthy  as  some  other  trades,  and  is  also  vastly  more 
healthy  than  still  others.  To  the  common  understanding  the  trade  of  a 
baker  has  never  been  regarded  as  an  unhealthy  one.  Very  likely  phy- 
sicians would  not  recommend  the  exercise  of  that  or  of  any  other  trade 
as  a  remedy  for  ill  health.  Some  occupations  are  more  healthy  than 
others,  but  we  think  there  are  none  which  might  not  come  under  the 
power  of  the  legislature  to  supervise  and  control  the  hours  of  working 
therein,  if  the  mere  fact  that  the  occupation  is  not  absolutely  and  per- 
fectly healthy  is  to  confer  that  right  upon  the  legislative  department  of 
the  government.  It  might  be  safely  affirmed  that  almost  all  occupa- 
tions more  or  less  affect  the  health.  There  must  be  more  than  the  mere 
fact  of  the  possible  existence  of  some  small  amount  of  unhealthiness 
to  warrant  legislative  interference  with  liberty.  It  is  unfortunately 
true  that  labor,  even  in  any  department,  may  possibly  carry  with  it  the 
seeds  of  unhealthiness.  But  are,  we  all,  on  that  account,  at  the  mercy 
of  legislative  majorities?  A  printer,  a  tinsmith,  a  locksmith,  a  carpen- 
ter, a  cabinetmaker,  a  dry  goods  clerk,  a  bank's,  a  lawyer's,  or  a 
cian's  clerk,  or  a  clerk  in  almost  any  kind  of  business,  would  all 
under  the  power  of  the  legislature,  on  this  assumption.  No  tr 
occupation,  no  mode  of  earning  one's  living,  could  escape  this  all-per- 
vading power,  and  the  acts  of  the  legislature  in  limiting  the  hours  of 
labor  in  all  employments  would  be  valid,  although  such  limitation  might 
seriously  cripple  the  ability  of  the  laborer  to  support  himself  and  his 
family. 

In  our  large  cities  there  are  many  buildings  into  which  the  sun  pen- 
etrates for  but  a  short  time  in  each  day,  and  these  buildings  are  oc- 
cupied by  people  carrying  on  the  business  of  bankers,  brokers,  law- 
Hall  Const.L. — 27 


418  FUNDAMENTAL    RIGHTS  (Part  - 

yers,  real  estate,  and  many  other  kinds  of  business,  aided  by  many 
clerks,  messengers,  and  other  employees.  Upon  the  assumption  of  the 
validity  of  this  act  under  review,  it  is  not  possible  to  say  that  an  act, 
prohibiting  lawyers'  or  bank  clerks,  or  others,  from  contracting  to  labor 
for  their  employers  more  than  eight  hours  a  day  would  be  invalid. 
It  might  be  said  that  it  is  unhealthy  to  work  more  than  that  number 
of  hours  in  an  apartment  lighted  by  artificial  light  during  the  working 
hours  of  the  day ;  that  the  occupation  of  the  bank  clerk,  the  lawyer's 
clerk,  the  real-estate  clerk,  or  the  broker's  clerk,  in  such  offices  is  there- 
fore unhealthy,  and  the  legislature,  in  its  paternal  wisdom,  must,  there- 
fore, have  the  right  to  legislate  on  the  subject  of,  and  to  limit,  the 
hours  for  such  labor;  and,  if  it  exercises  that  power,  and  its  validity 
be  questioned,  it  is  sufficient  to  say,  it  has  reference  to  the  public 
health ;  it  has  reference  to  the  health  of  the  employees  condemned  to 
labor  day  after  day  in  buildings  where  the  sun  never  shines;  it  is  a 
health  law,  and  therefore  it  is  valid,  and  cannot  be  questioned  by  the 
courts. 

It  is  also  urged,  pursuing  the  same  line  of  argument,  that  it  is  to  the 
interest  of  the  state  that  its  population  should  be  strong  and  robust, 
and  therefore  any  legislation  which  may  be  said  to  tend  to  make  people 
healthy  must  be  valid  as  health  laws,  enacted  under  the  police  power. 
If  this  be  a  valid  argument  and  a  justification  for  this  kind  of  legisla- 
tion, it  follows  that  the  protection  of  the  federal  Constitution  from  un- 
due interference  with  liberty  of  person  and  freedom  of  contract  is  vi- 
sionary, wherever  the  law  is  sought  to  be  justified  as  a  valid  exercise 
of  the  police  power.  Scarcely  any  law  but  might  find  shelter  under 
such  assumptions,  and  conduct,  properly  so  called,  as  well  as  contract, 
would  come  under  the  restrictive  sway  of  the  legislature.  Not  only 
the  hours  of  employees,  but  the  hours  of  employers,  could  be  reg- 
ulated, and  doctors,  lawyers,  scientists,  all  professional  men,  as  well  as 
athletes  and  artisans,  could  be  forbidden  to  fatigue  their  brains  and 
bodies  by  prolonged  hours  of  exercise,  lest  the  fighting  strength  of  the 
state  be  impaired.  We  mention  these  extreme  cases  because  the  con- 
tention is  extreme. 

We  do  not  believe  in  the  soundness  of  the  views  which  uphold  this 
law.  On  the  contrary,  we  think  that  such  a  law  as  this,  although  pass- 
ed in  the  assumed  exercise  of  the  police  power,  and  as  relating  to  the 
public  health,  or  the  health  of  the  employees  named,  is  not  within  that 
power,  and  is  invalid.  The  act  is  not,  within  any  fair  meaning  of  the 
term,  a  health  law,  but  is  an  illegal  interference  with  the  rights  of  in- 
dividuals, both  employers  and  employees,  to  make  contracts  regarding 
labor  upon  such  terms  as  they  may  think  best,  or  which  they  may  agree 
upon  with  the  other  parties  to  such  contracts.  Statutes  of  the  nature 
of  that  under  review,  limiting  the  hours  in  which  grown  and  intelli- 
gent men  may  labor  to  earn  their  living,  are  mere  meddlesome  inter- 
ferences with  the  rights  of  the  individual,  and  they  are  not  saved  from 
condemnation  by  the  claim  that  they  are  fassed  in  the  exercise  of  the 


Ch.  10)  DUB  PROCESS  AM)  equality:    police  POWER  41!) 

police  power  and  upon  the  subject  of  the  health  of  the  individual 
whose  rights  are  interfered  with,  unless  there  be  some  fair  ground, 
reasonable  in  and  of  itself,  to  say  that  there  is  material  danger  to  the 
public  health,  or  to  the  health  of  the  employees,  if  the  hours  of  labor 
are  not  curtailed.     *     *     * 

It  was  further  urged  on  the  argument  that  restricting  the  hours  of 
labor  in  the  case  of  bakers  was  valid  because  it  tended  to  cleanliness 
on  the  part  of  the  workers,  as  a  man  was  more  apt  to  be  cleanly  when 
not  overworked,  and  if  cleanly  then  his  "output"  was  also  more  likely 
to  be  so.  *  *  *  The  connection,  if  any  exist,  is  too  shadowy  and 
thin  to  build  any  argument  for  the  interference  of  the  legislature.  If 
the  man  works  ten  hours  a  day  it  is  all  right,  but  if  ten  and  a  half  or 
eleven  his  health  is  in  danger  and  his  bread  may  be  unhealthful,  and, 
therefore,  he  shall  not  be  permitted  to  do  it.  This,  we  think,  is  unrea- 
sonable and  entirely  arbitrary.  *  *  *  It  seems  to  us  that  the  real 
object  and  purpose  were  simply  to  regulate  the  hours  of  labor  between 
the  master  and  his  employees  (all  being  men,  sui  juris),  in  a  private 
business,  not  dangerous  in  any  degree  to  morals,  or  in  any  real  and 
substantial  degree  to  the  health  of  the  employees.  Under  such  circum- 
stances the  freedom  of  master  and  employee  to  contract  with  each 
other  in  relation  to  their  employment,  and  in  defining  the  same,  can- 
not be  prohibited  or  interfered  with,  without  violating  the  federal  Con- 
stitution.    *     *     *  i 

Judgment  reversed. 

Mr.  Justice  Harlan  [with  whom  concurred  White  and  Day,  JJ.] 
dissenting:  *  *  *  I  find  it  impossible,  in  view  of  common  expe- 
rience, to  say  that  there  is  here  no  real  or  substantial  relation  between 
the  means  employed  by  the  state  and  the  end  sought  to  be  accomplished 
by  its  legislation.     *     *     * 

We  judicially  know  that  the  question  of  the  number  of  hours  dur- 
ing which  a  workman  should  continuously  labor  has  been,  for  a  long 
period,  and  is  yet,  a  subject  of  serious  consideration  among  civilized 
peoples,  and  by  those  having  special  knowledge  of  the  laws  of  health. 
Suppose  the  statute  prohibited  labor  in  bakery  and  confectionery  es- 
tablishments in  excess  of  eighteen  hours  each  day.  No  one,  I  take  it, 
could  dispute  the  power  of  the  state  to  enact  such  a  statute.  I'.ut 
the  statute  before  us  does  not  embrace  extreme  or  exceptional  cases. 
It  may  be  said  to  occupy  a  middle  ground  in  respect  of  the  hours  of 
labor.  What  is  the  true  ground  for  the  state  to  take  between  leg- 
itimate protection,  by  legislation,  of  the  public  health  and  liberty  of 

i  In  Low  v.  Recs  Printing  Co.,  41  Neb.  127,  59  N.  V7.  862,  24  L.  R 
43  Am.  St.  Rep.  G70  (1S94),  a  general  eight-hour  law,  applicable  to  m 
ployinents  without  regard  to  considerations  of  health  was  held  Invalid.     So 
Opinion  of  Justices,  208  Mass.  618,  B4  -V  B.  1044,  34  i-  B.  a.  (N.  s.i  771  (1911) 
(semble). 

Laws  forbidding  labor  on  Sunday,  save  in  emergencies,  are  everywhere 
upheld,    ii. ■n,n    ton  v.  Georgia,  u      I  1086,   II  i. 

(1S9G);    Petit  v.  Minnesota,  177  U.  S.  164,  20  Sup.  Ot  666,  44  L.  Bd.  710  (11)00). 


420  FUNDAMENTAL    RIGHTS  (Part  2 

contract  is  not  a  question  easily  solved,  nor  one  in  respect  of  which 
there  is  or  can  be  absolute  certainty.  There  are  very  few,  if  any, 
questions  in  political  economy  about  which  entire  certainty  may  be 
predicated.     *     *     * 

I  do  not  stop  to  consider  whether  any  particular  view  of  this  eco- 
nomic question  presents  the  sounder  theory.  What  the  precise  facts 
are  it  may  be  difficult  to  say.  It  is  enough  for  the  determination  of 
this  case,  and  it  is  enough  for  this  court  to  know,  that  the  question 
is  one  about  which  there  is  room  for  debate  and  for  an  honest  differ- 
ence of  opinion.  There  are  many  reasons  of  a  weighty,  substantial 
character,  based  upon  the  experience  of  mankind,  in  support  of  the 
theory  that,  all  things  considered,  more  than  ten  hours'  steady  work 
each  day,  from  week  to  week,  in  a  bakery  or  confectionery  establish- 
ment, may  endanger  the  health  and  shorten  the  lives  of  the  workmen, 
thereby  diminishing  their  physical  and  mental  capacity  to  serve  the 
state  and  to  provide  for  those  dependent  upon  them. 

If  such  reasons  exist  that  ought  to  be  the  end  of  this  case,  for  the 
state  is  not  amenable  to  the  judiciary,  in  respect  of  its  legislative  en- 
actments, unless  such  enactments  are  plainly,  palpably,  beyond  all  ques- 
tion, inconsistent  with  the  Constitution  of  the  United  States.    *     *    * 

Air.  Justice  Holmes  dissenting:  I  regret  sincerely  that  I  am  un- 
able to  agree  with  the  judgment  in  this  case,  and  that  I  think  it  my 
duty  to  express  my  dissent. 

This  case  is  decided  upon  an  economic  theory  which  a  large  part 
of  the  country  does  not  entertain.  If  it  were  a  question  whether  I 
agreed  with  that  theory,  I  should  desire  to  study  it  further  and  long 
before  making  up  my  mind.  But  I  do  not  conceive  that  to  be  my 
duty,  because  I  strongly  believe  that  my  agreement  or  disagreement 
has  nothing  to  do  with  the  right  of  a  majority  to  embody  their  opin- 
ions in  law.  It  is  settled  by  various  decisions  of  this  court  that  state 
Constitutions  and  state  laws  may  regulate  life  in  many  ways  which 
we  as  legislators  might  think  as  injudicious,  or  if  you  like  as  tyran- 
nical, as  this,  and  which,  equally  with  this,  interfere  with  the  liberty 
to  contract.  Sunday  laws  and  usury  laws  are  ancient  examples.  A 
more  modern  one  is  the  prohibition  of  lotteries.  The  liberty  of  the 
citizen  to  do  as  he  likes  so  long  as  he  does  not  interfere  with  the  lib- 
erty of  others  to  do  the  same,  which  has  been  a  shibboleth  for  some 
well-known  writers,  is  interfered-  with  by  school  laws,  by  the  post- 
office,  by  every  state  or  municipal  institution  which  takes  his  money 
for  purposes  thought  desirable,  whether  he  likes  it  or  not. 

The  fourteenth  amendment  does  not  enact  Mr.  Herbert  Spencer's 
Social  Statics.  The  other  day  we  sustained  the  Massachusetts  vac- 
cination law.  Jacobson  v.  Massachusetts,  197  U.  S.  11,  25  Sup.  Ct. 
358,  49  L.  Ed.  643,  3  Ann.  Cas.  765.  United  States  and  state  stat- 
utes and  decisions  cutting  down  the  liberty  to  contract  by  way  of  com- 
bination are  familiar  to  this  court.  Northern  Securities  Co.  v.  United 
States,  193  U,  S.  197,  24  Sup.  Ct.  436,  48  L.  Ed.  679.     Two  years 


Ch.  10)  D\  i:   PROCESS  AND   EQUALITY!     POLK  B   POWBB  4 L*  1 

ago  we  upheld  the  prohibition  of  sales  of  stock  on  margins,  or  for  fu- 
ture delivery,  in  the  Constitution  of  California.  Otis  v.  Parker,  lv7 
U.  S.  606,  23  Sup.  Ct.  168,  47  L.  Ed.  323.  The  decision  sustaining 
an  eight-hour  law  for  miners  is  still  recent.  Holden  v.  Han! 
U.  S.  366.  18  Sup.  Ct.  383.  42  L.  Ed.  780.  Some  of  these  laws  em- 
body convictions  or  prejudices  which  judges  are  likely  to  share.  Some 
may  not.  But  a  Constitution  is  not  intended  to  embody  a  particular 
economic  theory,  whether  of  paternalism  and  the  organic  relation  of 
the  citizen  to  the  state  or  of  laissez  faire.  It  is  made  for  people  of 
fundamentally  differing  views,  and  the  accident  of  our  finding  certain 
opinions  natural  and  familiar,  or  novel,  and  even  shocking,  ought  not 
to  conclude  our  judgment  upon  the  question  whether  statutes  embody- 
ing them  conflict  with  the  Constitution  of  the  United  States. 

General  propositions  do  not  decide  concrete  cases.  The  decision 
will  depend  on  a  judgment  or  intuition  more  subtle  than  any  articu- 
late major  premise.  But  I  think  that  the  proposition  just  stated,  if 
it  is  accepted,  will  carry  us  far  toward  the  end.  Every  opinion  tends 
to  become  a  law.  I  think  that  the  word  "liberty,"  in  the  fourteenth 
amendment,  is  perverted  when  it  is  held  to  prevent  the  natural  out- 
come of  a  dominant  opinion,  unless  it  can  be  said  that  a  rational  and 
fair  man  necessarily  would  admit  that  the  statute  proposed  would  in- 
fringe fundamental  principles  a?  they  have  been  understood  by  the 
traditions  of  our  people  and  our  law.  It  does  not  need  research  to 
show  that  no  such  sweeping  condemnation  can  be  passed  upon  the 
statute  before  us.  A  reasonable  man  might  think  it  a  proper  measure 
on  the  score  of  health.  Men  whom  I  certainly  could  not  pronounce 
unreasonable  would  uphold  it  as  a  first  instalment  of  a  general  regula- 
tion of  the  hours  of  work.  Whether  in  the  latter  aspect  it  would  be 
open  to  the  charge  of  inequality  I  think  it  unnecessary  to  discuss.* 

2  In  Matter  of  Jacobs,  98  N.  T.  9S,  103,  112-114,  50  Am.  Hep.  636  (1885).  the 
court  hold  Invalid  a  New  Tork  statute  entitled  "An  act  to  improve  the  public 
health."  etc..  the  material  parts  of  which  were: 

"Section  1.  The  manufacture  of  cigars  "r  preparation  of  tobacco  in  any 
form  on  any  floor,  or  in  any  part  of  any  floor,  in  any  tenement  ' 
by  prohibited,  if  such  floor  or  any  part  of  such  floor  is  by  any  p>  I 

me  or  residence  tor  the  purpose  of  living,  sleeping,  cooking,  or  doing 
any  household  work  therein. 

"Sec  2.  Any  house,   building,  or  portion  thereof  occupied  as  the   home  or 
o  of  uiore  than  three  families  living  Indei  endenOy  of  one  anotbi 
doing  their  cooking  upon  the  premises,  is  a  tenement-house  within  the  mean- 
!'  this  act. 

...  The  first  floor  of  said  tenement-house  on  which  there  is  a  store  for 
the  sale  of  cigars  and  tobacco  shall  be  exempt  from  the  prohibition  provided 
in  section  one  of  this  act." 

The  act  was  applicable  only  to  cities  of  over  r>O0,000  inhabitants,  and  Its 
violation  was  made  a  misdemeanor.     Karl.  .1.,  said: 

"The  facts  as  thev  appeared  before  the  police  justice  were  as  follows:    1  lie 
relator  at  the  time  of  his  arrest  lived  with  bis  wife  and  two  children  In  a 
tenement-house  in  the  citv   of  New  York  in  which  three  other  faml 
lived     There  were  four  floors  in  the  house,  and   seven   rooms  on  eai 
and  each  floor  was  occupied  by  om    family  llvlug  li 
and  doing  their  cooking  in  one  of  tin    l  npied.    The  relator  ut  the 


422  FUNDAMENTAL    RIGHTS  (Part  2 

ATKIN  v.  KANSAS  (1903)  191  U.  S.  207,  220,  221-223,  24  Sup. 
Ct.  124,  48  L.  Ed.  148,  Mr.  Justice  Harlan  (upholding  a  Kansas 
statute  punishing  any  contractor  employed  upon  public  work  who 
permitted  his  employees  to  labor  more  than  eight  hours  a  day  upon 
such  work,  except  where  necessary  to  protect  life  or  property  in 
emergencies) : 

"Such  corporations  are  the  creatures — mere  political  subdivisions — 
of  the  state,  for  the  purpose  of  exercising  a  part  of  its  powers.  They 
may  exert  only  such  powers  as  are  expressly  granted  to  them,  or  such 
as  may  be  necessarily  implied  from  those  granted.  What  they  law- 
time  of  his  arrest  was  engaged  In  one  of  his  rooms  In  preparing  tobacco  and 
making  cigars,  but  there  was  no  smell  of  tobacco  In  any  part  of  the  house 
except  the  room  where  he  was  thus  engaged.     *     *     * 

"A  law  enacted  in  the  exercise  of  the  police  power  must  In  fact  be  a  police 
law.  If  It  be  a  law  for  the  promotion  of  the  public  health,  It  must  be  a 
health  law,  having  some  relation  to  the  public  health.  «  •  •  we  must 
take  judicial  notice  of  the  nature  and  qualities  of  tobacco.  •  *  •  It  has 
never  been  said,  so  far  as  we  can  learn,  and  it  was  not  affirmed  even  on  the 
argument  before  us,  that  its  preparation  and  manufacture  into  cigars  were 
dangerous  to  the  public  health.  We  are  not  aware  and  are  not  able  to  learn, 
that  tobacco  is  even  injurious  to  the  health  of  those  who  deal  In  it,  or  are 
engaged  in  its  production  or  manufacture.  We  certainly  know  enough  about 
it  to  be  sure  that  its  manipulation  in  one  room  can  produce  no  harm  to  the 
health  of  the  occupants  of  other  rooms  in  the  same  house.  It  was  proved  in 
this  case  that  the  odor  of  the  tobacco  did  not  extend  to  any  of  the  other 
rooms  of  the  tenement-house.     *     »     • 

"To  justify  this  law  it  would  not  be  sufficient  that  the  use  of  tobacco  may 
be  injurious  to  some  persons,  or  that  its  manipulation  may  be  injurious  to 
those  who  are  engaged  in  its  preparation  and  manufacture;  but  it  would 
have  to  be  injurious  to  the  public  health.  This  law  was  not  intended  to  pro- 
tect the  health  of  those  engaged  in  cigarmaking,  as  they  are  allowed  to  manu- 
facture cigars  everywhere  except  in  the  forbidden  tenement-houses.  It  cannot 
be  perceived  how  the  cigarmaker  is  to  be  improved  in  his  health  or  his  morals 
by  forcing  him  from  his  home  and  its  hallowed  associations  and  beneficent 
influences,  to  ply  his  trade  elsewhere.  It  was  not  intended  to  protect  the 
health  of  that  portion  of  the  public  not  residing  in  the  forbidden  tenement- 
houses,  as  cigars  are  allowed  to  be  manufactured  in  private  houses,  in  large 
factories  and  shops  in  the  two  crowded  cities,  and  in  all  other  parts  of  the 
state.  What  possible  relation  can  cigarmaking  in  any  building  have  to  the 
health  of  the  general  public?  Nor  was  it  intended  to  improve  or  protect  the 
health  of  the  occupants  of  tenement-houses.  If  there  are  but  three  families 
in  the  tenement-house,  however  numerous  and  gregarious  their  members  may 
be,  the  manufacture  is  not  forbidden ;  and  it  matters  not  how  large  the 
number  of  the  occupants  may  be  if  they  are  not  divided  into  more  than 
three  families  living  and  cooking  independently.  If  a  store  is  kept  for  the 
sale  of  cigars  on  the  first  floor  of  one  of  these  houses,  and  thus  more  tobacco 
is  kept  there  than  would  otherwise  be,  and  the  baneful  influence  of  tobacco, 
if  any,  is  thus  increased,  that  floor,  however  numerous  its  occupants,  or  the 
occupants  of  the  house,  is  exempt  from  the  operation  of  the  act.  What 
possible  relation  to  the  health  of  the  occupants  of  a  large  tenement-house 
could  cigarmaking  in  one  of  its  remote  rooms  have?  If  the  legislature  had 
in  mind  the  protection  of  the  occupants  of  tenement-houses,  why  was  the  act 
confined  in  its  operation  to  the  two  cities  only?  It  is  plain  that  this  is  not 
a  health  law,  and  that  it  has  no  relation  whatever  to  the  public  health." 

For  the  limitations  upon  legislative  power  to  regulate  tenement  and  board- 
ing houses,  see  Bonnett  v.  Vallier,  136  Wis.  193,  116  N.  W.  8S5,  17  l>.  R.  A. 
(N.  S.)  486,  128  Am.  St  Kep.  1061  (1908). 


Ch.  10)  m  r.  process  and  eoiai.ity:    police  powbb  4l':: 

fully  do  of  a  public  character  is  done  under  the  sanction  of  the  state. 
They  are,  in  every  essential  sense,  only  auxiliaries  of  the  state  for 
the  purposes  of  local  government.     *     *     * 

"The  improvement  of  the  boulevard  in  question  was  a  work  of 
which  the  state,  if  it  had  deemed  it  proper  to  do  so,  could  have  taken 
immediate  charge  by  its  own  agents;  for  it  is  one  of  the  functions 
of  government  to  provide  public  highways  for  the  convenience  and 
comfort  of  the  people.  Instead  of  undertaking  that  work  directly, 
the  state  invested  one  of  its  governmental  agencies  with  power  to  care 
for  it.  Whether  done  by  the  state  directly  or  by  one  of  its  instru- 
mentalities, the  work  was  of  a  public,  not  private  character. 

"If  then,  the  work  upon  which  the  defendant  employed  Reese  was 
of  a  public  character,  it  necessarily  follows  that  the  statute  in  ques- 
tion, in  its  application  to  those  undertaking  work  for  or  on  behalf  of 
a  municipal  corporation  of  the  state,  does  not  infringe  the  personal 
liberty  of  any  one.  It  may  be  that  the  state,  in  enacting  the  statute, 
intended  to  give  its  sanction  to  the  view  held  by  many,  that,  all  things 
considered,  the  general  welfare  of  employees,  mechanics,  and  work- 
men, upon  whom  rest  a  portion  of  the  burdens  of  government,  will 
be  subserved  if  labor  performed  for  eight  continuous  hours  was  taken 
to  be  a  full  day's  work ;  that  the  restriction  of  a  day's  work  to  that 
number  of  hours  would  promote  morality,  improve  the  physical  and 
intellectual  condition  of  laborers  and  workmen,  and  enable  them,  the 
better  to  discharge  the  duties  appertaining  to  citizenship. 

"We  have  no  occasion  here  to  consider  these  questions,  or  to  de- 
termine upon  which  side  is  the  sounder  reason ;  for  whatever  may 
have  been  the  motives  controlling  the  enactment  of  the  statute  in 
question,  we  can  imagine  no  possible  ground  to  dispute  the  power  of 
the  state  to  declare  that  no  one  undertaking  work  for  it  or  for  one 
of  its  municipal  agencies  should  permit  or  require  an  employee  on 
such  work  to  labor  in  excess  of  eight  hours  each  day,  and  to  inflict 
punishment  upon  those  who  are  embraced  by  .such  regulations  and 
yet  disregard  them.  It  cannot  be  deemed  a  part  of  the  liberty  of  any 
contractor  that  he  be  allowed  to  do  public  work  in  any  mode  he  may 
choose  to  adopt,  without  regard  to  the  wishes  of  the  state.  On  the 
contrary,  it  belongs  to  the  state,  as  the  guardian  and  trustee  for  its 
people,  and  having  control  of  its  affairs,  to  prescribe  the  conditions 
upon  which  it  will  permit  public  work  to  be  done  on  its  behalf,  or  on 
behalf  of  its  municipalities.  No  court  has  authority  to  review  its 
action  in  that  respect.  Regulations  on  this  subject  suggest  only  con- 
siderations of  public  policy.  And  with  such  considerations  the  courts 
have  no  concern. 

"If  it  be  contended  to  be  the  right  of  every  one  to  dispose  of  his 
labor  upon  such  terms  as  he  deems  best, — as  undoubtedly  it  is, — and 
that  to  make  it  a  criminal  offense  for  a  contractor  for  public  work 
to  permit  or  require  his  employee  to  perform  labor  upon  that  work 
in  excess  of  eight  hours  each  day  is  in  derogation  of  the  liberty  both 


421  FUNDAMENTAL    RIGHTS  (Part  2 

of  employees  and  employer,  it  is  sufficient  to  answer  that  no  em- 
ployee is  entitled,  of  absolute  right  and  as  a  part  of  his  liberty,  to 
perform  labor  for  the  state;  and  no  contractor  for  public  work  can 
excuse  a  violation  of  his  agreement  with  the  state  by  doing  that  which 
the  statute  under  which  he  proceeds  distinctly  and  lawfully  forbids 
him  to  do.     *     *     * 

"Some  stress  is  laid  on  the  fact  stipulated  by  the  parties  for  the 
purposes  of  this  case,  that  the  work  performed  by  defendant's  em- 
ployee is  not  dangerous  to  life,  limb,  or  health,  and  that  daily  labor 
on  it  for  ten  hours  would  not  be  injurious  to  him  in  any  way.  In 
the  view  we  take  of  this  case,  such  considerations  are  not  controlling. 
We  rest  our  decision  upon  the  broad  ground  that  the  work  being  of 
a  public  character,  absolutely  under  the  control  of  the  state  and  its 
municipal  agents  acting  by  its  authority,  it  is  for  the  state  to  pre- 
scribe the  conditions  under  which  it  will  permit  work  of  that  kind 
to  be  done.  Its  action  touching  such  a  matter  is  final  so  long  as  it 
does  not,  by  its  regulations,  infringe  the  personal  rights  of  others; 
and  that  has  not  been  done."  * 

[Fuller,  C.  J.,  and  Brewer  and  Peckham,  JJ.,  dissented.] 


McLEAN  v.  ARKANSAS. 

(Supreme  Court  of  United  States,  1909.     211  U.  S.  539,  29  Sup.  Ct  206,  53 
L.  Ed.  315.) 

[Error  to  the  Supreme  Court  of  Arkansas.  A  statute  criminally 
forbade  the  operator  of  any  coal  mine  employing  at  least  ten  men  un- 
derground, whose  miners  were  paid  at  quantity  rates,  from  using 
screens  or  other  devices  to  reduce  the  amount  of  wages  that  would  be 
due  on  the  basis  of  the  weight  of  coal  actually  mined  and  accepted  by 
the  operator.  A  state  Circuit  Court  convicted  McLean,  an  agent  of 
such  a  coal  company,  for  violating  this  statute,  and  the  state  Supreme 
Court  affirmed  this.] 

Mr.  Justice  Day.  *  *  *  That  the  Constitution  of  the  United 
States,  in  the  fourteenth  amendment  thereof,  protects  the  right  to 
make  contracts  for  the  sale  of  labor,  and  the  right  to  carry  on  trade 
or  business,  against  hostile  state  legislation,  has  been  affirmed  in  deci- 
sions of  this  court,  and  we  have  no  disposition  to  question  those  cases 

i  Contra:  See  People  v.  Orange  County  Road  Const.  Co.,  175  N.  Y.  84,  67 
N.  E.  129.  65  L.  R.  A.  33  (1903) ;  People  ex  rel.  Rodgers  v.  Coler,  166  N.  Y. 
1,  59  N.  E.  716,  52  L.  R.  A.  814,  82  Am.  St.  Rep.  605  (1901)  (rate  of  wages)— 
both  overruled  by  constitutional  amendment;  People  ex  rel.  Williams  En- 
gineering &  Contracting  Co.  v.  Metz,  193  N.  Y.  14S,  S5  N.  E.  1070,  24  L.  R.  A. 
(N.  S.)  201  (1908).  The  cases  accord  and  contra  are  collected  in  8  L.  R.  A. 
(N.  S.)  131-134.  See  the  argument  of  Cullen,  C.  J.,  in  People  ex  rel.  Cossey  v. 
Grout,  179  N.  Y.  417,  425-42S,  72  N.  E.  404,  1  Ann.  Cas.  39  (1904).  See,  also, 
Adams  v.  Brennan,  post,  p.  4i  i. 

Atkin  v.  Kansas  was  followed  in  Ellis  v.  United  States.  206  b.  f>.  246,  27 
Sup.  Ct  600,  51  L.  Ed.  1047,  11  Ann.  Cas.  589  (1907).  as  to  the  exercise  of  a 
similar  power  by  the  United  States.     See  note,  p.  963,  post 


Cll.  tOj)  DUE   PROCESS  AND    EQUALITY:     POLICE    POWER 

in  which  the  right  has  been  upheld  and  maintained  against  such  legis- 
lation.   Allgeyer  v.  Louisiana,  165  U.  S.  578,  17  Sup.  Ct.  427,  41  L. 
Ed.  S32;   Adair  v.  United  States,  208  U.  S.  161,  28  Sup.  Ct.  - 
L.  Ed,  436,  13  Ann.  Cas.  764.     But,  in  many  cases  in  this  court,  the 
right  of  freedom  of  contract  has  been  held  not  to  be  unlimited  in  its 
nature,  and  when  the  right  to  contract  or  carry  on  busini 
with  laws  declaring  the  public  policy  of  the  state,  enacted  for  t. 
tection  of  the  public  health,  safety,  or  welfare,  the  same  may  be  valid, 
notwithstanding  they  have  the  effect  to  curtail  or  limit  the  freedom  of 
contract.     *     *     * 

In  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  22  Sup.  Ct.  1,  46 
L.  Ed.  55,  it  was  held  that  an  act  of  the  legislature  of  TenneSf 
quiring  the  redemption  in  cash  of  store  orders  or  other  evidences  of 
indebtedness  issued  by  employers  in  payment  of  wages  due  to  em- 
ployees, did  not  conflict  with  any  provisions  of  the  Constitution  of  the 
United  States,  protecting  the  right  of  contract.1  In  Frisbie  v.  United 
States,  157  U.  S.  160,  15  Sup.  Ct.  586,  39  1..  I'd.  657,  the  act  of  Con- 
gress prohibiting  attorneys  from  contracting  for  a  larger  fee  than  $10 
for  prosecuting  pension  claims  was  held  to  be  a  valid  exercise  of  po- 
lice power.  *  *  *  In  Patterson  v.  The  Eudora,  190  U.  S.  169,  23 
Sup.  Ct.  821,  47  L.  Ed.  1002,  this  court  held  that  an  act  of  C 
making  it  a  misdemeanor  for  a  shipmaster  to  pay  a  sailor  any  part  of 
his  wages  in  advance  was  valid.     *     *     * 

The  legislature,  being  familiar  with  local  conditions,  is.  primarily, 
the  judge  of  the  necessity  of  such  enactments.  The  mere  fact  that  a 
court  may  differ  with  the  legislature  in  its  views  of 
that  judges  may  hold  views  inconsistent  with  the  propriety  of  the  leg- 
islation in  question,  affords  no  ground  for  judicial  interference,  unli  -- 
the  act  in  question  is  unmistakably  and  palpably  in  excess  of  legislative 
power.  *  *  *  This  law  does  not  prevent  the  operator  from  screen- 
ing the  coal  before  it  is  sent  to  market ;  it  does  not  prevent  a  contract 
for  mining  coal  by  the  day,  week,  or  month;  it  does  not  prevent  the 
operator  from  rejecting  coal  improperly  or  negligently  mined,  and 
shown  to  be  unduly  mingled  with  dirt  <>r  refuse.  The  objection  upon 
the  ground  of  interference  with  the  right  of  contract  rests  upon  the  in- 
hibition of  contracts  which  prevent  the  miner  employed  at  quantity 
rates  from  contracting  for  wages  upon  the  basis  of  screened  coal  in- 
stead of  the  weight  of  the  coal  as  originally  produced  in  the  mine. 

If  there  existed  a  condition  of  affairs  concerning  which  the  i 
ture  of  the  state,  exercising  its  conceded  right  to  enact  laws  for  the 
protection  of  the  health,  safety,  or  welfare  of  the  people,  might  pass 
the  law.  it  must  be  sustained;  if  such  action  was  arbitrary  interference 
with  the  right  to  contract  or  carry  on  business,  and  having  no  just  re- 
lation to  the  protection  of  the  public  within  the  scope  of  legislative 

rare  .Ionian  v.  State.  51  Tex.  Cr.   R.  631,   108   S.   W.  888,   11    I 
(N.  8.)  603,  1 1  Ana.  Caa  616  (1S07  tbltlon  of  issue  oi 

even  at  i  n  pi   ye<  'a  option,  invalid — colle.  tiny  eases). 


426  FUNDAMENTAL    RIGHTS  (Part  2 

power,  the  act  must  fail.  *  *  *  [Here  are  mentioned  Ramsey  v. 
People,  142  111.  380,  32  N.  E.  364,  17  L.  R.  A.  853,  and  In  re  House 
Bill  No.  203,  21  Colo.  27,  39  Pac.  431,  holding  such  legislation  invalid, 
and  State  v.  Peel  Splint  Coal  Co.,  36  W.  Va.  802,  15  S.  E.  1000,  17  L. 
R.  A.  385,  maintaining  it  by  a  divided  court.] 

Conditions  which  may  have  led  to  such  legislation  were  the  subject 
of  very  full  investigation  by  the  industrial  commission  authorized  by 
Congress  by  the  act  of  June  18,  1898.  *  *  *  A  number  of  the 
witnesses  expressed  opinions,  based  upon  their  experience  in  the  min- 
ing industry,  that  disputes  concerning  the  introduction  and  use  of 
screens  had  led  to  frequent  and  sometimes  heated  controversies  be- 
tween the  operators  and  the  miners.  This  condition  was  testified  to 
have  been  the  result,  not  only  of  the  introduction  of  screens  as  a  basis 
of  paying  the  miners  for  screened  coal  only,  but,  after  the  screens 
had  been  introduced,  differences  had  arisen  because  of  the  disarrange- 
ment of  the  parts  of  the  screen,  resulting  in  weakening  it,  or  in  in- 
creasing the  size  of  the  meshes  through  which  the  coal  passed,  there- 
by preventing  a  correct  measurement  of  the  coal  as  the  basis  of  paying 
the  miner's  wages. 

We  are  unable  to  say,  in  the  light  of  the  conditions  shown  in  the 
public  inquiry  referred  to,  and  in  the  necessity  for  such  laws,  evinced 
in  the  enactments  of  the  legislatures  of  various  states,  that  this  law 
had  no  reasonable  relation  to  the  protection  of  a  large  class  of  laborers 
in  the  receipt  of  their  just  clues  and  in  the  promotion  of  the  harmonious 
relations  of  capital  and  labor  engaged  in  a  great  industry  in  the  state. 

Laws  tending  to  prevent  fraud  and  to  require  honest  weights  and 
measures  in  the  transaction  of  business  have  frequently  been  sustained 
in  the  courts,  although,  in  compelling  certain  modes  of  dealing,  they 
interfere  with  the  freedom  of  contract.  Many  cases  are  collected  in 
Mr.  Freund's  book  on  "Police  Power"  (section  274),  wherein  that 
author  refers  to  laws  which  have  been  sustained,  regulating  the  size 
of  loaves  of  bread  when  sold  in  the  market ;  ~  requiring  the  sale  of 
coal  in  quantities  of  500  pounds  or  more,  by  weight ;  that  milk  shall  be 
sold  in  wine  measure,  and  kindred  enactments. 

Upon  this  branch  of  the  case  it  is  argued  for  the  validity  of  this  law 
that  its  tendency  is  to  require  the  miner  to  be  honestly  paid  for  the 
coal  actually  mined  and  sold.  It  is  insisted  that  the  miner  is  deprived 
of  a  portion  of  his  just  due  when  paid  upon  the  basis  of  screened  coal, 
because,  while  the  price  may  be  higher,  and  theoretically  he  may  be 
compensated  for  all  the  coal  mined  in  the  price  paid  him  for  screened 
coal,  that  practically,  owing  to  the  manner  of  the  operation  of  the 
screen  itself,  and  its  different  operation  when  differently  adjusted,  or 
when  out  of  order,  the  miner  is  deprived  of  payment  for  the  coal  which 
he  has  actually  mined.     It  is  not  denied  that  the  coal  which  passes 

2  Accord:  City  of  Chicago  v.  Schmidinger,  243  111.  167,  90  N.  B.  369,  17  Ann. 
Cas.  614  (1909),  affirmed  Schmidinger  v.  City  of  Chicago,  226  U.  S.  57S,  33 
Sup.  Ct  182,  57  L.  Ed.  (1913). 


Ch.  10)         due  process  and  equality:    police  powbb  427 

through  the  screen  is  sold  in  the  market.  It  is  not  for  us  to  say  wheth- 
er these  are  actual  conditions.  It  is  sufficient  to  say  that  it  was  a  sit- 
uation brought  to  the  attention  of  the  legislature,  concerning  which  it 
was  entitled  to  judge  and  act  for  itself  in  the  exercise  of  its  lawful 
power  to  pass  remedial  legislation.     *     *     * 

Judgment  affirmed. * 

[Brewer  and  Peckham,  JJ.,  dissented.] 


FROST  v.  CHICAGO  (1899)  178  111.  250,  251-253,  52  N.  E.  869, 
49  L.  R.  A.  657,  69  Am.  St.  Rep.  301,  Mr.  Chief  Justice  Carter: 

"Plaintiff  in  error  was  found  guilty  in  the  court  below  of  violating 
an  ordinance  of  the  city  of  Chicago,  and  fined  $15  and  costs.  The 
ordinance  provided : 

"  'Sec.  1000.  Colored  Netting  for  Covering.— It  shall  be  and  is 
hereby  made  unlawful  to  cover  any  box,  basket,  or  any  other  package 
or  parcel  of  fruit,  berries  or  vegetables  of  any  kind,  with  any  colored 
netting,  or  any  other  material  which  has  a  tendency  to  conceal  the  true 
color  or  quality  of  any  such  goods  which  may  be  sold,  offered  for  sale 
or  had  in  possession  for  the  purpose  of  being  sold  or  offered  for  sale. 
Any  person  who  shall  violate  the  provisions  of  this  section  shall,  upon 
conviction,  be  fined  not  less  than  $10  or  more  than  $25  for  each  offense.' 

"The  testimony  tended  to  show  that  the  defendant  below  sold  peaches 
in  baskets  covered  with  red  tarlatan, — a  perforated  cloth, — and  that 
these  baskets  of  peaches  had  been  shipped  to  him  from  the  state  of 
Michigan,  put  up  in  the  same  manner  in  which  he  sold  them.  There 
was  some  evidence  to  the  effect  that  this  colored  netting  tended  t<> 
conceal  the  'true  color  or  quality'  of  the  fruit,  and  some  to  the  con- 

»  As  to  validity  of  statutes  requiring  weekly  or  biweekly  payment  of  wages, 
see  Opinion  of  Justices,  163  Mass.  589,  10  X.  E,  71."..  28  L.  It.  a.  ::ii 
New  York  Cent  &  II.   It.  Ry.  Co.  v.   Williams,  199  N.  Y.  108,  92   N.   K.   104, 
35  L.  It.   A.   iX.  S.i  549,  n. .1.'.  139  Am.   St.   Rep.  850  (19 

In  State  v.  Loomis.  115  Mo.  .".07.  329,  330,  22  8.  W.  ■"••".".  356,  21  I..  It.  a  7-:. 
(1893),  Barclay,  .T.,  dissenting,  said  (discussing  a  Missouri  statute  forbidding 
persons  engaged  in  manufacturing  or  mining  to  Issue  any  "store  orders"  in 
payment  of  wages  unless  redeemable  in  cash  at  the  option  of  the  bolder): 
"[Thel  decisions  show  that  the  right  of  self-preservation,  which  exists  in  the 
commonwealth  no  less  than  in  the  individual,  may,  in  some  circum 
justify  limitations  upon  freedom  of  contract;  and  that  when,  for  any  reason 
(for  instance,  the  existence  of  a  monopoly),  real  liberty  of  action  is  wanting 
on  the  side  of  one  of  the  parties,  in  dealings  forming  part  of  the  activities  of 
civilized  society,  a  reasonable  check  may  justly  be  placed  by  law  upon  the 
power  of  the  other  to  oppress  bis  fellow-citizen.  Such  checks  upon  liberty  of 
contract  have  been  sustained  by  the  highest  courts.  •  •  •  .\s  the  employer 
lixes  the  price  of  the  goods,  he  is  pot  prejudiced  by  such  a  regulation.  Its 
effect  is  to  establish  a  just  standard  of  value  for  every  dollar  due  for 
It  does  not  differ  in  principle  from  governmental  regulations  in  the  form  of 
laws  by  which  a  person  who  has  contracted  to  receive  a  yard  of  cloth  or  a 
bushel  of  corn  is  protected  against  the  necessity  of  accepting  such  a  short 
yard  or  light  bushel  as  the  seller  may  choose  to  impose  upon  him.  Statutes 
designed  to  prevent  that  sort  of  overreaching  have  been  universally  regarded 
as  proper  exertions  of  the  police  power." 


428  FUNDAMENTAL    RIGHTS  (Part  2 

trary.  It  appears  from  the  record  that  large  quantities  of  fruit  put  up 
in  this  manner  are  shipped  and  sold;  that  a  covering  of  some  land  is 
necessary  to  prevent  loss  of  the  fruit  by  pilfering  and  other  means,  and 
to  protect  it  from  insects ;  that  such  fruit  requires  ventilation ;  and 
that  experience  has  demonstrated  that  a  covering  of  netting  is  better 
than  one  of  wood,  paper,  or  other  material,  because  it  allows  free 
access  of  air,  does  not  bruise  the  fruit,  and  affords  better  means  of 
inspection.     *     *     * 

"We  have  reached  the  conclusion  that  the  ordinance  is  a  vexatious 
and  unreasonable  interference  with  and  restriction  upon  the  rights  of 
dealers  in  certain  articles  of  trade  and  commerce.  The  only  valid  basis 
upon  which  such  a  regulation  can  rest  is  that  its  purpose  is  to  prevent 
deception,  and  imposition  upon  buyers  of  such  articles  as  are  named 
in  the  ordinance.  The  evidence  shows,  as  common  observation  would 
teach,  that  such  packages  must  have  some  covering,  and  shows,  also, 
that  tarlatan  has  been  found  the  best  and  most  suitable  covering  for 
the  preservation  of  fruit  so  packed  and  sold ;  and  the  validity  of  the 
ordinance  is  made  to  depend,  and  indeed  its  validity  is  defended  only, 
upon  the  question  of  the  color  of  the  material.  It  is  not  pretended 
that  there  is  anything  in  red  tarlatan  which  is  deleterious  to  health,  or 
which  imparts  to  the  fruit  any  noxious  material  or  quality,  but  only 
that  it  tends  to  impart  to  the  fruit  beneath  a  more  wholesome  tint  or 
appearance  than  it  would  otherwise  have. 

"It  is  natural,  and  not  unlawful,  for  the  packer  and  dealer  to  put  up 
and  offer  for  sale  his  goods  in  an  attractive  form ;  and  a  regulation 
would  not  seem  to  be  reasonable  which  would  prevent  the  dealer  in 
certain  commodities  from  offering  for  sale  his  goods  in  packages 
tinted  so  as  to  correspond  in  some  degree  with  the  color  of  the  goods 
themselves.  No  buyer  who  is  ordinarily  careful  and  intelligent  is 
deceived  by  such  devices  of  tradesmen.  He  may  examine  what  he 
buys,  and  no  law  can  protect  him  from  the  consequences  arising  only 
from  his  own  folly.  At  most,  the  colored  netting  would  tend  to  con- 
ceal the  true  color  or  quality  of  only  the  top  layer  of  the  fruit  in  the 
package,  leaving  the  same  latitude  for  deception  as  in  cases  where  no 
covering  is  used.  It  will  be  noticed  that  the  provision  in  question  of 
the  ordinance  does  not  make  it  unlawful  to  sell  decayed  or  unwhole- 
some fruit,  or  to  practice  deception  on  the  public  by  methods  em- 
ployed in  packing  or  displaying  it.  *  *  *  It  was  shown,  and  is  a 
matter  of  common  knowledge,  that  much  fruit  is  shipped  and  sold 
wrapped  up  in  tissue  paper  and  in  tinfoil,  and  in  packages  and  baskets 
covered  with  wood,  all  of  which  material  effectually  conceals  the  'true 
color  and  quality'  of  the  fruit,  until  removed.  It  would  be  as  reason- 
able to  prohibit  the  one  as  the  other." 

Judgment  reversed.1 

i  In  People  v.  Hawkins,  157  N.  T.  1,  9,  51  Ni  E.  257,  259,  42  L.  R.  A.  490,  CS 
Am.  St  Rep.  736  (189S),  holding  invalid  a  law  requiring  the  labeling  of  all 
convict-made  goods,   O'Brien,   J.,   said  (in   an  individual  opinion):    "It  would 


Ch.  10)  DUE   PKOCESS   AND   BQUALIIX !     POLICE   POWER  42'.) 

STATE  v.  SHOREY  (1906)  48  Or.  396,  398-400,  86  Pac.  881,  24 

L.  K.  A.  (N.  S.)  1121,  Bean,  J.  (upholding  a  statute  forbidding  the 

ment  of  children  under  16  years  of  age  for  more  than  10  hours 

a  day  or  6  days  a  week.    This  was  claimed  to  violate  the  fourteenth 

amendment  and  the  state  Constitution): 

"'These  constitutional  provisions  do  not  limit  the  power  of  the  state 
to  interfere  with  the  parental  control  of  minors,  or  to  regulate  the 
right  of  a  minor  to  contract,  or  of  others  to  contract  with  him.  2 
Tiedeman  on  State  &  Fed.  Const.  §  195.  It  is  competent  for  the  state 
to  forbid  the  employment  of  children  in  certain  callings  merely  because 
it  believes  such  prohibition  to  be  for  their  best  interest,  although  the 
prohibited  employment  does  not  involve  a  direct  danger  to  morals, 
decency,  or  of  life  or  limb.  Such  legislation  is  not  an  unlawful  inter- 
ference with  the  parents'  control  over  the  child  or  right  to  its  labur, 
nor  with  the  liberty  of  the  child.  People  v.  Ewer.  141  X.  Y.  129,  .i*. 
N.  E.  4,  25  L.  R.  A.  794,  38  Am.  St.  Rep.  788,  affirming  In  re  Ewer. 
70  Hun.  239,  24  N.  Y.  Supp.  500.  Laws  prohibiting  the  employment 
of  adult  males  for  more  than  a  stated  number  of  hours  per  ■ 
week  are  not  valid  unless  reasonably  necessary  to  protect  the  public 

be  trifling  with  the  constitution  to  attempt  to  uphold  this  law  on  the  - 
that  all  producers  or  vendors  of  goods  may  be  required  to  tell  the  truth  con- 
cerning theiu,  both  as  to  their  quality  and  the  means  by  which  or  tin'  place 
where  they  were  manufactured.     A   knowledge  of  the  truth  concerning  the 
origin  of  every  article  of  property  which  is  il 

merce  cannot  !"■  essential  to  the  public  welfare:    and.  even  if  it  was.  the  law 
could  be  effective  only  when  applied  to  all  property  alike,  and  not  li 
articles  made  in  certain  places,  and  by  a  certain  class  of  workmen.     Any  at- 
tempt to  carry  the  police  power  to  such  an  extent  .-, 

an  article  of  property  kept  for  sale,  such  as  a  sen  u,  to  label  it 

with  the  history  of  its  origin,  and  to  Indies  where  it  was  made. 

and  the  class  of  workmen  that  produced  it.  and  to  enforce  such  r< >gu 
by  the  aid  of  the  criminal  law  must  i  e  regarded  as  an  and  In- 

tolerable invasion  of  the  rights  and    liberty  of  the  citizen."     [A   majority   of 
the  court  concurred  upon  the  ground  of  the  commi 

Constitution.     See,  also,  Opinion  of  Justices,  211  Mass.  806,  0s  N.  IS.  334,  Ann. 
Cas.  1913B,  sir,  (1912).] 

Parker,  C.  J.  (with  whom  concurred  r.artlett  and  Halght,  .T.T.i  dissenting 
nr>7  X.  Y.  28,  20.  51  N.  0.  266  [42  h.  R.  A.  490,  'is  Am.  S\  Hep.  736]):  "The 
people  of  the  state  have  forbidden  the  seiiinu-  of  articles  manuractur  id  in  our 
prisons,   for  the  reason  that   they  deemed   it  to   be  agal  I    public 

to  permit  some  of  thi  killed  in  eei 

labor   to   be   subjected    to  >t  of   convicts. 

•     *     *     This  statute  neither  prohibits  nor  attempts  to  prohibit  Other 
or    the   citizens   of   other    stale-.  ion   our 

markets;    nor  ,1ms   it    prohibit   our  own  citizens  from  buying  or  selling 

if  it  did.  then,  concededly,  the  statu;-  would  be  in  violation  of  the  commerce 

clause  of  the  federal  constitution,  and  void.     It  simply    t- 

made  merchandise   shall   be  so  branded   that  our   citizens  shall   know 

the  goods  they   are  buying   were   made.     This  they  have  a   right    to  kl 

they  voted  to  burden  themselves  with  additional  taxation  rather  than 

ill  a   competition  which   thej    i  a  public  svro 

refore,  entitled  to  smh  legi  lation  as  will  permit 

truth  in   regard  to  articles  offered  them  lor 

through  lack  of  Information,  have  forced  upon  them  that  which  the] 

not  buy  advisedly." 


430  FUNDAMENTAL    RIGHTS  (Part  2 

health,  safety,  morals  or  general  welfare,  because  the  right  to  labor  or 
employ  labor  on  such  terms  as  may  be  agreed  upon  is  a  liberty  or 
property  right  guarantied  to  such  persons  by  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States,  and  with  which  the 
star*;  cannot  interfere.  Lochner  v.  New  York,  198  Tj.  S.  45,  25  Sup. 
Ct.  539,  49  L.  Ed.  937,  3  Ann.  Cas.  1133.  But  laws  regulating  the 
right  of  minors  to  contract  do  not  come  within  this  principle.  They 
are  not  sui  juris,  and  can  only  contract  to  a  limited  extent.  They  are 
wards  of  the  state  and  subject  to  its  control.  As  to  them  the  state 
stands  in  the  position  of  parens  patria;  and  may  exercise  unlimited 
supervision  and  control  over  their  contracts,  occupation,  and  conduct, 
and  the  liberty  and  right  of  those  who  assume  to  deal  with  them. 
This  is  a  power  which  inheres  in  the  government  for  its  own  pres- 
ervation and  for  the  protection  of  the  life,  person,  health,  and  morals 
of  its  future  citizens.  'It  has  been  well  remarked,'  says  Mr.  Justice 
Gray  in  People  v.  Ewer,  supra,  'that  the  better  organized  and  trained 
the  race,  the  better  it  is  prepared  for  holding  its  own.  Hence  it  is 
that  laws  are  enacted  looking  to  the  compulsory  education  by  parents 
of  their  children,  and  to  their  punishment  for  cruel  treatment ;  and 
which  limit  and  regulate  the  employment  of  children  in  the  factory 
and  the  workshop  to  prevent  injury  from  excessive  labor.  It  is  not. 
and  cannot  be  disputed,  that  the  interest  which  the  state  has  in  the 
physical,  moral,  and  intellectual  well-being  of  its  members  warrants 
the  implication,  and  the  exercise,  of  every  just  power,  which  will  re- 
sult in  preparing  the  child,  in  future  life,  to  support  itself,  to  serve 
the  state  and  in  all  the  relations  and  duties  of  adult  life  to  perform 
well  and  capably  its  part.' 

"The  supervision  and  control  of  minors  is  a  subject  which  has  al- 
ways been  regarded  as  within  the  province  of  legislative  authority. 
How  far  it  shall  be  exercised  is  a  question  of  expediency  and  pro- 
priety which  it  is  the  sole  province  of  the  Legislature  to  determine. 
The  judiciary  has  no  authority  to  interfere  with  the  Legislature's 
judgment  on  that  subject,  unless,  perhaps,  its  enactments  are  so  man- 
ifestly unreasonable  and  arbitrary  as  to  be  invalid  on  that  account. 
*  *  *  Mr.  Freund,  in  his  work  on  Police  Power,  says:  'The  con- 
stitutionality of  legislation  for  the  protection  of  children  or  minors  is 
rarely  questioned ;  and  the  Legislature  is  conceded  a  wide  discretion 
in  creating  restraints.'  And :  'Even  the  courts  which  take  a  very 
liberal  view  of  individual  liberty  and  are  inclined  to  condemn  paternal 
legislation  would  concede  that  such  paternal  control  may  be  exercised 
over  children,  so  especially  in  the  choice  of  occupations,  hours  of 
labor,  payment  of  wages,  and  everything  pertaining  to  education, 
and  in  these  matters  a  wide  and  constantly  expanding  legislative  ac- 
tivity is  exercised.'     Freund,  Police  Power,  §  259."  ' 

i  Accord:  People  v.  Ewer,  141  N.  X.  129,  3G  N.  E.  4,  25  L.  R.  A.  794,  38  Am. 
St.  Rep.  788  (1894)  (employment  of  children  under  14  in  theatrical  exhibi- 
tions, etc.). 


Ch.  10)  DDK    PROCESS   AM>   BQtALITY ;     POLICE   POWHB  4".l 

In  re  SHARP. 

(Supreme  Court  of  Idaho,  190S.    IS  Idaho,  120,  96  Pac.  563,  IS  L.  It   A.  [N.  S.] 

880.) 

[Habeas  corpus.  An  Idaho  statute  (Laws  1905,  p.  106)  provided 
for  the  detention  and  care  of  delinquent  children  at  a  state  industrial 
training  school.  Hazel  Sharp,  a  girl  14  years  old,  was  committed  to 
this  institution  by  a  county  probate  judge  under  this  act,  no  irreg- 
ularity being  alleged  in  the  proceedings.  Her  father  applied  for  a 
writ  of  habeas  corpus  for  her  discharge,  alleging  the  act  to  be  un- 
constitutional upon  the  grounds,  among  others,  stated  in  the  opinion.) 

Ailsiiie,  C.  J.  *  *  *  The  first  contention  made  by  petition- 
er's counsel  is  that  the  act  of  March  2,  1905,  entitled  "An  act  to  pro- 
vide for  the  care  of  delinquent  children"  (Scss.  Laws  1905,  p.  106), 
is  in  conllict  with  and  in  violation  of  sections  6,  7,  13,  and  18,  of  article 
1  of  the  Constitution,  for  the  reason  that  it  denies  the  right  of  trial 
by  jury,  speedy  and  public  hearing,  process  for  attendance  of  vsit- 
nesses,  the  right  to  appear  and  defend  in  person  and  by  counsel,  and 
the  right  of  bail,  and  that  the  proceeding  is  without  due  process  of 
law.  We  shall  not  go  into  a  discussion  of  this  question,  or  into  any 
extended  consideration  of  the  distinction  between  this  act  and  its 
purposes  and  provisions  and  that  of  the  general  spirit  of  the  criminal 
law.  These  questions  have  all  been  so  extensively,  exhaustively,  and 
lucidly  considered  and  discussed  by  so  many  courts  within  recent 
years  that  we  shall  content  ourselves  with  a  citation  of  some  of  the 
authorities.  We  may  premise  our  citation  of  authorities,  however, 
by  a  general  statement  that  this  statute  is  clearly  not  a  criminal  or 
penal  statute  in  its  nature.  Its  purpose  is  rather  to  prevent  minors 
under  the  age  of  16  from  prosecution  and  conviction  on  charges  of 
misdemeanors,  and  in  that  respect  to  relieve  them  from  the  odium  of 
criminal  prosecutions  and  punishments.  Its  object  is  to  confer  a 
benefit  both  upon  the  child  and  the  community  in  the  way  of  sur- 
rounding the  child  with  better  and  more  elevating  influences,  and  of 
educating  and  training  him  in  the  direction  of  good  citizen -hip  and 
thereby  saving  him  to  society  and  adding  a  good  and  useful  citizen 
to  the  community.  This,  too,  is  done  for  the  minor  at  a  time  when 
he  is  not  entitled,  either  by  natural  law  or  the  laws  of  the  land,  to 
his  absolute  freedom,  but  rather  at  a  time  when  he  is  subject  to  tin- 
restraint  and  custody  of  either  a  natural  guardian  or  a  legally  con- 
stituted and  appointed  guardian  to  whom  he  owes  obedience  and  sub- 
jection. Under  this  law  the  state,  for  the  time  being,  assumes  to 
discharge  the  parental  duty  and  to  direct  his  custody  and  assume  his 
restraint. 

As  late  as  1905,  the  Supreme  Court  of  Pennsylvania  in  Common- 
wealth v.  Fisher,  213  Pa.  48,  I,  5  Ann'  Cas.  92.  had  under 
consideration  these  same  constituti  ions  to  a  legislative  act 


432  FUNDAMENTAL    RIGHTS  (Part  2 

providing  for  the  care  and  custody  of  delinquent  children,  and,  in  the 
course  of  its  opinion,  the  court  said:  "In  pressing  the  objection  that 
the  appellant  was  not  taken  into  custody  by  due  process  of  law,  the 
assumption,  running  through  the  entire  argument  of  the  appellant,  is 
contended  that  the  proceedings  of  the  act  of  1903  are  of  a  criminal 
nature  for  the  punishment  of  offenders  for  crimes  committed,  and 
that  the  appellant  was  so  punished.  But  he  was  not,  and  he  could 
not  have  been  without  due  process  of  law ;  for  the  constitutional 
guaranty  is  that  no  one  charged  with  a  criminal  offense  shall  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law.  To 
save  a  child  from  becoming  a  criminal,  or  from  continuing  in  a  career 
of  crime,  to  end  in  maturer  years  in  public  punishment  and  disgrace, 
the  Legislature  surely  may  provide  for  the  salvation  of  such  a  child, 
if  its  parents  or  guardian  be  unable  or  unwilling  to  do  so,  by  bringing 
it  into  one  of  the  courts  of  the  state  without  any  process  at  all,  for 
the  purpose  of  subjecting  it  to  the  state's  guardianship  and  protec- 
tion. The  natural  parent  needs  no  process  to  temporarily  deprive 
his  child  of  its  liberty  by  confining  it  in  his  own  home,  to  save  it  and 
to  shield  it  from  the  consequences  of  persistence  in  a  career  of  way- 
wardness; nor  is  the  state,  when  compelled,  as  parens  patriae,  to  take 
the  place  of  the  father  for  the  same  purpose,  required  to  adopt  any 
process  as  a  means  of  placing  its  hands  upon  the  child  to  lead  it  into 
one  of  its  courts.  When  the  child  gets  there,  and  the  court,  with 
the  power  to  save  it,  determines  on  its  salvation,  and  not  its  punish- 
ment, it  is  immaterial  how  it  got  there.  The  act  simply  provides  how 
children  who  ought  to  be  saved  may  reach  the  court  to  be  saved.  If 
experience  should  show  that  there  ought  to  be  other  ways  for  it  to 
get  there,  the  Legislature  can,  and  undoubtedly  will,  adopt  them,"  and 
they  will  never  be  regarded  as  undue  processes  for  depriving  a  child 
of  its  liberty  or  property  as  a  penalty  for  crime  committed.  The  last 
reason  to  be  noticed  why  the  act  should  be  declared  unconstitutional 
is  that  it  denies  the  appellant  a  trial  by  jury.  Here  again,  is  the  fal- 
lacy that  he  was  tried  by  the  court  for  any  offense.  'The  right  of 
trial  by  jury  shall  remain  inviolate'  are  the  words  of  the  Bill  of 
Rights,  and  no  act  of  the  Legislature  can  deny  this  right  to  any  cit- 
izen, young  or  old,  minor  or  adult,  if  he  is  to  be  tried  for  a  crime 
against  the  commonwealth.  But  there  was  no  trial  for  any  crime 
here,  and  the  act  is  operative  only  when  there  is  to  be  no 
trial." 1     *     *     * 

[Here  follow  the  citation  of  numerous  cases  and  this  quotation 
from  Milwaukee  Industrial  School  v.  Supervisors,  40  Wis.  328,  22 
Am.  Rep.  702:]  "When  the  state,  as  parens  patriae,  is  compelled  by 
the  misfortune  of    a  child  to   assume   for   it  parental   duty,   and   to 

i  If  the  act  purports  to  authorize  the  criminal  punishment  of  the  child,  as 
by  imposing  a  fine,  it  must  conform  to  the  appropriate  constitutional  provi- 
sions regarding  criminal  trials.  Eobison  v.  Wayne  Circuit  Judges,  151  Mich. 
315,  115  N.  W.  682  (190S). 


Cll.  10)  DUE   PROCESS  AND    EQUALITY:     I'OI.K  E    POWBB 

charge  itself  with  its  nurture,  it  is  compelled  also  to  assume  parental 
authority  over  it.  This  authority  must  necessarily  be 
those  to  whom  the  state  delegates  the  nurture  and  education  of  tin- 
child.  The  state  does  not,  indeed,  we  might  say,  could  not,  intrude 
this  assumption  of  authority  between  parent  and  child  standing  in  no 
need  of  it.  It  assumes  it  only  upon  the  destitution  and  necessity  of 
the  child,  arising  from  want  or  default  of  parents.  And,  in  exercis- 
ing a  wholesome  parental  restraint  over  the  child,  it  can  be  properly 
said  to  imprison  the  child  no  more  than  the  tenderest  parent  e 
ing  like  power  of  restraint  over  children.  This  seems  too  plain  to 
need  authority;  but  the  cases  cited  for  the  respondent,  and  others, 
amply  sustain  our  view.  *  *  *  It  goes  on  the  total  failure  of 
the  parent  to  provide  for  the  child.  And  it  is  difficult  to  comprehend 
the  right  of  a  parent  to  complain  that  the  discharge  by  the  state  of 
his  own  duty  to  his  child,  which  he  has  wholly  failed  to  perform,  is 
an  imprisonment  of  the  child  as  against  his  parental  right  in  it." 

Although  a  child  is  in  the  care  and  custody  of  its  parents,  still  the 
state  assumes  direction  and  control  of  its  education  to  the  extent  of 
making  its  attendance  upon  the  public  schools  compulsory,  and  that 
power  is  now  recognized  in  almost  every  state  in  the  Union.  In  the 
exercise  of  this  supervision  and  control  on  the  part  of  the  state,  the 
child  is  not  deprived  of  any  constitutional  or  inalienable  right,  nor  is 
the  parent  deprived  of  any  right.  On  the  contrary,  the  state  is  only 
demanding  and  enforcing  obedience  to  both  the  natural  duties  and 
obligations  of  the  parent  or  guardian  as  well  as  the  legal  duties  and 
obligations  demanded  by  society  and  the  public  welfare.  It  would 
be  carrying  the  protection  of  "inalienable  rights,"  guaranteed  by  the 
Constitution,  a  long  way  to  say  that  that  guaranty  extends  to  a  free 
and  unlimited  exercise  of  the  whims,  caprices,  or  proclivities  of  ei- 
ther a  child  or  its  parents  or  guardians  for  idleness,  ignorance,  crime, 
indigence,  or  any  kindred  dispositions  or  inclinations.     *     *     * 

Writ  denied.* 

2  "All  the  decisions  rest  upon  the  proposition  that  the  state  In  Its  sovereign 
power  has  the  right,  when  necessary,  to  substitute  Itself  as  guardian  of  the 
person  of  the  child  for  that  of  the  parent  or  other  legal  guardian,  and  thus 
to  educate  and  save  the  child  from  a  criminal  career;    that  It  Is  the  welfare 
of  the  child  that  moves  the  state  to  act,  and  not  to  Inflict  punishment  or  to 
mete  out  retributive  justice  for  any  offense  committed  or  threatened.    ' 
words,  to  do  that  which  It  is  the  duty  of  the  father  or  guardian  to  do.  and 
which  tho  law  assumes  he  will  do  hy  reason  of  the  love  and  affection  he  holds 
for  liis  offspring  and  out  of  regard  for  the  child's  future  welfare.    The  duty 
thus  rests  upon  the  father  first.    As  the  duty  Is  Imposed  by  the  moral  as  well 
as  the  laws  of  society  upon  the  father  first,  so  it  must  likewise  logically  fol- 
low that  he  must  be  given  the  first   right  to  discharge  that  duty.     Indeed, 
the  common  law  based  the  right  of  the  father  to  have  custody  and  <! 
over  the  person  of  his  child  upon  the  ground  that  he  might  better  .li- 
the duty  he  owed  tho  child  and  the  state  tn  respect  to  the  care,  uurtu 
education  of  the  child.    The  right  and  duty  are  therefore,  redpi 
be  termed  natural,  as  well  as  legal  and  moral.     Before  the  state  can  be  sub 
stituted  to  the  right  of  the  parent  it  must  affirmatively  be  made  to 
Hall  Co.nst.L. — 2H 


434  FUNDAMENTAL    RIGHTS  (Part  2 


MAYNARD  v.  HILL; 

(Supreme    Court  of  United  States,  1SSS.     125  0.  S.  190,  8  Sup.  Ct.  723,  31  L. 
Ed.  654.) 

[Appeal  from  the  Supreme  Court  of  the  Territory  of  Washington. 
The  case  involved  the  validity  of  a  legislative  divorce  granted  by  spe- 
cial act  of  the  legislature  of  the  territory  of  Oregon  in  1852,  which 
was  upheld  in  the  courts  below.     Other  facts  appear  in  the  opinion.] 

Mr.  Justice  Field.  *  *  *  Marriage,  as  creating  the  most  im- 
portant relation  in  life,  as  having  more  to  do  with  the  morals  and  civ- 
ilization of  a  people  than  any  other  institution,  has  always  been  sub- 
ject to  the  control  of  the  legislature.  That  body  prescribes  the  age  at 
which  parties  may  contract  to  marry,  the  procedure  or  form  essential 
to  constitute  marriage,  the  duties  and  obligations  it  creates,  its  effect 
upon  the  property  rights  of  both,  present  and  prospective,  and  the  acts 
which  may  constitute  grounds  for  its  dissolution. 

It  is  conceded  that  to  determine  the  propriety  of  dissolving  the  mar- 
riage relation  may  involve  investigations  of  a  judicial  nature,  which 
can  properly  be  conducted  by  the  judicial  tribunals.  Yet,  such  investi- 
gations are  no  more  than  those  usually  made  when  a  change  of  the 
law  is  designed.  They  do  not  render  the  enactment,  which  follows 
the  information  obtained,  void  as  a  judicial  act  because  it  may  recite 
the  cause  of  its  passage.  Many  causes  may  arise,  physical,  moral, 
and  intellectual,  such  as  the  contracting  by  one  of  the  parties  of  an 
incurable  disease  like  leprosy,  or  confirmed  insanity,  or  hopeless  idiocy, 

that  the  parent  has  forfeited  his  natural  and  legal  right  to  the  custody  and 
control  of  the  child  by  reason  of  his  failure,  inability,  neglect,  or  incompeten- 
cy to  discharge  the  duty  and  thus  to  enjoy  the  right.  Section  6  of  the  act 
defines  the  acts  which  constitute  a  child  a  delinquent  and  thus  a  fit  subject 
to  be  brought  before  the  juvenile  court  for  examination.  *  *  *  When  a 
complaint  is  filed  and  one  or  more  of  the  acts  constituting  delinquency  are  set 
forth  the  court  only  acquires  jurisdiction  of  the  child  for  the  purpose  of  in- 
vestigating into  its  condition  or  conduct.  »  *  *  But  when  the  court  has 
investigated  the  matters  set  forth  in  the  complaint  and  finds  some  or  all  of 
the  charges  to  be  true,  it  does  not  follow,  from  that  fact  alone,  that  the  state 
should  forthwith  be  substituted  in  place  of  the  parent  or  legal  guardian  and 
take  full  control  of  the  person  of  the  child.  All  that  the  court  has  estab- 
lished so  far  is  that  the  child  is  a  delinquent  in  view  of  the  provisions  of  the 
act.  The  question  as  to  whether  the  parent  has  been  derelict  in  respect  to 
his  duty,  or  whether  he  is  a  competent  person  or  not  to  have  charge  of  the 
child,  and  whether  he  has  forfeited  his  natural  and  legal  right  to  continue  the 
relation,  has  not  been  touched  upon,  and  no  finding  or  adjudication  of  that 
fact  has  been  made.  There  is  nothing,  therefore,  up  to  this  point,  in  the  pro- 
ceedings upon  which  a  judgment  can  be  based  substituting  the  state  as  guard- 
ian of  the  person  of  the  child  in  place  of  the  parent  The  whole  fabric  of 
the  law,  as  is  clearly  shown  by  all  the  decisions  cited,  supra,  rests  upon  this 
theory,  and  those  laws  are  sustained  by  virtue  of  it.  Until  something  is  made 
to  appear  that  the  child  is  not  cared  and  provided  for  in  respect  to  the  mat- 
ters involved,  there  exists  no  reason  for  the  state  to  taUe  charge  of  the  person 
of  the  child,  and  hence  no  right  exists  to  do  so  under  the  act.  True,  the  par- 
ent need  not  be  made  a  party  to,  or  eyen  have  notice  of,  the  proceedings  against 
the  child.  The  parent  is  not  bound  by  the  judgment  against  the  child,  and 
may  at  any  time  institute  proper  proceedings  to  obtain  custody  of  him.     But 


Ch.  10)  DUE   PROCESS  AND   EQUALITY  [     POUCH   POWER 

or  a  conviction  of  a  felony,  which  would  render  the  continuance  of  the 
marriage  relation  intolerable  to  the  other  party,  and  productive  of  no 
possible  benefit  to  society.  When  the  object  of  the  relation  has  been 
thus  defeated,  and  no  jurisdiction  is  vested  in  the  judicial  tribunals  to 
grant  a  divorce,  it  is  not  perceived  that  any  principle  should  prevent 
the  legislature  itself  from  interfering,  and  putting  an  end  to  the  rela- 
tion in  the  interest  of  the  parties  as  well  as  of  society.  If  the  act  de- 
claring the  divorce  should  attempt  to  interfere  with  the  rights  of  prop- 
erty vested  in  either  party,  a  different  question  would  be  presented. 

When  this  country  was  settled,  the  power  to  grant  a  divorce  from 
the  bonds  of  matrimony  was  exercised  by  the  parliament  of  England. 
The  ecclesiastical  courts  of  that  country  were  limited  to  the  granting 
of  divorces  from  bed  and  board.  Naturally,  the  legislative  assemblies 
of  the  colonies  followed  the  example  of  parliament  and  treated  the  sub- 
ject as  one  within  their  province.  And,  until  a  recent  period,  legislative 
divorces  have  been  granted  with  few  exceptions,  in  all  the  states. 
*  *  *  [Here  follow  extracts  from  Bishop,  Cooley,  and  Kent,  and 
quotations  from  Cronise  v.  Cronise,  54  Pa.  255,  Crane  v.  Meginnis,  1 
Gill  &  J.  (Md.)  463,  19  Am.  Dec.  237,  and  Starr  v.  Pease,  8  Conn. 
541.] 

The  same  doctrine  is  declared  in  numerous  other  cases,  and  positions 
similar  to  those  taken  against  the  validity  of  the  act  of  the  legislative 
assembly  of  the  territory,  that  it  was  beyond  the  competency  of  a  leg- 
islature to  dissolve  the  bonds  of  matrimony,  have  been  held  untenable 
These  decisions  justify  the  conclusion  that  the  division  of  government 

the  matter  now  under  consideration  lies  deeper  than  this:  It  is  one  of  power 
to  render  Judgment  placing  the  child  In  charge  of  one  guardian,  the 
before  determining  or  passing  upon  the  qualifications  of  the  natural  guardian 
to  have  charge  of  the  child.  The  court  might  as  well  enter  up  a  Judgment 
without  any  complaint  or  investigation  whatever.  The  relative  rights  and 
duties  of  the  father  or  mother  are  so  well  and  thoroughly  discussed  in  the 
case  of  Nugent  v.  Powell,  4  Wyo.,  at  pages  189  to  199,  33  Pac.  23,  20  i 
15)9,  G2  Am.  St  Rep.  17,  that  we  shall  do  no  more  than  to  refer  to  the  dis- 
cussion there  presented.  «  »  •  Some  of  the  acts  constituting  delinquency 
as  defined  by  section  6  of  the  act  are  so  trivial  in  themselves  that  any 
thoughtless  boy  might  commit  them  ai  d  thu 

by  a  careless  judge  be  sent  to  the  Industrial  school  when  the  parent  was  not 
only   willing,   but  most   competent,   to    have   control  of  the  child,   and    would 
offer  it  better  surroundings  and  training  than  the  state  nt  ln-si  could 
afford.     We  are  constrained  to   hold,   therefore,   that    before  a   child  can   be 
made  a  ward  of  the  state,  at  least   two  things  must  be  found:    (1)  That  the 
child  is  a  delinquent  within  the  provisions  oi  chapter  1  IT :   and  (2)  that  the 
parent  or  legal  guardian  is  Incompetent  or  has  neglected  and  failed  to  care 
and  provide  for  the  child  the  training  and  education  contemplated  and  re- 
quired by  both  law  and  morals."— Mill  v.  Brown,  ::i  Utah,  473, 
l'ac.  COO,  120  Am.  St.   Rep.  935  (1907),  by  Frick,  ,1. 
See  '"I  he  Juvenile  Court"  by  lion.  Julian  W.  Mack,  23  liarv.  1..  i:  rr.  104 
The  legislature  may,  either  by   special  or  general   acts,  auth    I 

of  property  owned  by  minors  or  other  pi  I      U Older  disabilities 

Uice  v.  Parkman,  16  Mass.  326  (1820).    Compare  Brevoort  v.  Grace,  .".:'■  v  ■* 
246  (1873),  and  the  measure  of  legislative  control  exercised  over  the  contracts 
of  sailors.     Patterson  v.  The  Eudora,  100  U.  S.   100,  23  Sup.  Ct  821,  47  L. 
Ed.  1002  U903). 


436  FUNDAMENTAL    RIGHTS  (Part   2 

into  three  departments,  and  the  implied  inhibition  through  that  cause 
upon  the  legislative  department  to  exercise  judicial  functions,  was  nei- 
ther intended  nor  understood  to  exclude  legislative  control  over  the 
marriage  relation.  In  most  of  the  states  the  same  legislative  practice 
on  the  subject  has  prevailed  since  the  adoption  of  their  Constitutions  as 
before,  which,  as  Mr.  Bishop  observes,  may  be  regarded  as  a  contem- 
poraneous construction  that  the  power  thus  exercised  for  many  years 
was  rightly  exercised.  The  adoption  of  late  years,  in  many  constitu- 
tions, of  provisions  prohibiting  legislative  divorces  would  also  indicate 
a  general  conviction  that,  without  this  prohibition,  such  divorces  might 
be  granted,  notwithstanding  the  separation  of  the  powers  of  govern- 
ment into  departments,  by  which  judicial  functions  are  excluded  from 
the  legislative  department.  There  are,  it  is  true,  decisions  of  state 
courts  of  high  character,  like  the  supreme  court  of  Massachusetts  and 
of  Missouri,  holding  differently;  some  of  which  were  controlled  by  the 
peculiar  language  of  their  state  constitutions.  Sparhawk  v.  Sparhawk, 
116  Mass.  315  ;  State  v.  Fry,  4  Mo.  120,  138.  The  weight  of  authority, 
however,  is  decidedly  in  favor  of  the  position  that,  in  the  absence  of 
direct  prohibition,  the  power  over  divorces  remains  with  the  legislature. 

We  are  therefore  justified  in  holding — more,  we  are  compelled  to 
hold, — that  the  granting  of  divorces  was  a  rightful  subject  of  legislation 
according  to  the  prevailing  judicial  opinion  of  the  country,  and  the  un- 
derstanding of  the  profession  at  the  time  the  organic  act  of  Oregon 
was  passed  by  congress,  when  either  of  the  parties  divorced  was  at 
the  time  a  resident  within  the  territorial  jurisdiction  of  the  legislature. 
If  within  the  competency  of  the  legislative  assembly  of  the  territory, 
we  cannot  inquire  into  its  motives  in  passing  the  act  granting  the  di- 
vorce ;  its  will  was  a  sufficient  reason  for  its  action.  One  of  the  par- 
ties, the  husband,  was  a  resident  within  the  territory,  and,  as  he  acted 
soon  afterwards  upon  the  dissolution  and  married  again,  we  may  con- 
clude that  the  act  was  passed  upon  his  petition.  If  the  assembly  pos- 
sessed the  power  to  grant  a  divorce  in  any  case,  its  jurisdiction  to  leg- 
islate upon  his  status,  he  being  a  resident  of  the  territory  is  undoubted, 
unless  the  marriage  was  a  contract  within  the  prohibition  of  the  fed- 
eral Constitution  against  its  impairment  by  legislation,  or  within  the 
terms  of  the  Ordinance  of  1787,  the  privileges  of  which  were  secured 
to  the  inhabitants  of  Oregon  by  their  organic  act, — questions  which 
we  will  presently  consider. 

The  facts  alleged  in  the  bill  of  complaint,  that  no  cause  existed  for 
the  divorce,  and  that  it  was  obtained  without  the  knowledge  of  the 
wife,  cannot  affect  the  validity  of  the  act.  Knowledge  or  ignorance  of 
parties  of  intended  legislation  does  not  affect  its  validity,  if  within  the 
competency  of  the  legislature.  The  facts  mentioned  as  to  the  neglect 
of  the  husband  to  send  to  his  wife,  whom  he  left  in  Ohio,  any  means 
for  her  support  or  that  of  her  children,  in  disregard  of  his  promise, 
shows  conduct  meriting  the  strongest  reprobation,  and,  if  the  facts 
stated  had  been  brought  to  the  attention  of  congress,  that  body  might 


Ch.  10)  DUE   PROCESS  AND   EQUALITY !     POLICE   POWBB  437 

and  probably  would  have  annulled  the  act.    Be  that  as  it  may,  the  loose 
morals  and  shameless  conduct  of  the  husl  ve  no  bearing  up- 

on the  question  of  the  existence  or  absence  of  power  in  the  assembly 
to  pass  the  act.     *     *     » 
Judgment  affirmed.1 


GOULD  v.  GOULD  (1905)  78  Conn.  242.  243  245.  265,  266,  267, 
61  All.  604,  2  L.  R.  A.  (N.  S.)  53 i.  v. holding  a  statute 

forbidding  the  intermarriage  or  cohabitation  of  a  man  and  woman, 
either  of  whom  was  epileptic,  imbecile,  or  feeble-minded,  when  the 
woman  was  under  45.  The  precise  question  was  its  validity  as  to 
epileptics) : 

"The  Constitution  of  this  state  (preamble  and  article  1,  §  1)  guar- 
antees to  its  people  equality  under  the  law  in  the  rights  to  'life,  liberty, 
and  the  pursuit  of  happiness.'  State  v.  Conlon,  65  Conn.  478,  489- 
491,  33  Atl.  519,  31  L  R.  A.  55,  48  Am.  St.  Rep.  227.  One  of  these 
is  the  right  to  contract  marriage,  but  it  is  a  right  that  can  only  be  ex- 
ercised under  such  reasonable  conditions  as  the  Legislature  may  see 
fit  to  impose.  It  is  not  possessed  by  those  below  a  certain  age.  It  is 
denied  to  those  who  stand  within  certain  degrees  of  kinship.  The 
mode  of  celebrating  it  is  prescribed  in  strict  and  exclusive  terms.  Gen. 
St.  1902,  §  4538.  The  universal  prohibition  in  all  civilized  countries 
of  marriages  between  near  kindred  proceeds  in  part  from  the  estab- 
lished fact  that  the  issue  of  such  marriages  are  often,  though  by  no 
means  always,  of  an  inferior  type  of  physical  or  mental  development. 

"That  epilepsy  is  a  disease  of  a  peculiarly  serious  and  revolting 
character,  tending  to  weaken  mental  force,  and  often  descending  from 
parent  to  child,  or  entailing  upon  the  offspring  of  the  sufferer  some 
other  grave  form  of  nervous  malady,  is  a  matter  of  common  knowl- 
edge, of  which  courts  will  take  judicial  notice.  State  v.  Main,  69 
Conn.  123,  135,  37  Atl.  80,  36  L.  R.  A.  623,  61  Am.  St.  Rep.  30.  One 
mode  of  guarding  against  the  perpetuation  of  epilepsy  obviously  is  to 
forbid  sexual  intercourse  with  those  afflicted  by  it,  and  to  preclude  such 
opportunities  for  sexual  intercourse  as  marriage  furnishes.  To  im- 
pose such  a  restriction  upon  the  right  to  contract  marriage,  if  not  in- 
trinsically unreasonable,  is  no  invasion  of  the  equality  of  all  men  be- 
fore the  law,  if  it  applies  equally  to  all,  under  the  same  circum. : 
who  belong  to  a  certain  class  of  persons,  which  class  can  reasonably 
be  regarded  as  one  requiring  special  legislation  cither  for  their  pro- 
tection or  for  the  protection  from  them  of  the  community  at  large. 
It  cannot  be  pronounced  by  the  judiciary  to  be  intrinsically  unr 
able  if  it  should  be  regarded  as  a  determination  by  the  Gen 
bly  that  a  law  of  this  kind  is  necessary  for  the  preservation  of  ; 

■  Legislative  divorces  are  now  forbidden  by  many  stnte  constitution 
Stlmson,  Fed.  and  State  Consts.  bk.  ill.  >;  390,   ISO. 


•138  FUNDAMENTAL    RIGHTS  (Part    2 

health,  and  if  there  are  substantial  grounds  for  believing  that  such  de- 
termination is  supported  by  the  facts  upon  which  it  is  apparent  that  it 
was  based.  Holden  v.  Hardy,  169  U.  S.  366,  398,  18  Sup.  Ct.  383,  42 
L.  Ed.  780;  Bissell  v.  Davison,  65  Conn.  183,  192,  32  Atl.  348,  29  L. 
R.  A.  251. 

"There  can  be  no  doubt  as  to  the  opinion  of  the  General  Assembly. 
nor  as  to  its  resting  on  substantial  foundations.  The  class  of  persons 
to  whom  the  statute  applies  is  not  one  arbitrarily  formed  to  suit  its 
purpose.  It  is  certain  and  definite.  It  is  a  class  capable  of  endanger- 
ing the  health  of  families  and  adding  greatly  to  the  sum  of  human  suf- 
fering. Between  the  members  of  this  class  there  is  no  discrimination, 
and  the  prohibitions  of  the  statute  cease  to  operate  when,  by  the  at- 
tainment of  a  certain  age  by  one  of  those  whom  it  affects,  the  occasion 
for  the  restriction  is  deemed  to  become  less  imperative.  While  Con- 
necticut was  the  pioneer  in  this  country  with  respect  to  legislation  of 
this  character,  it  no  longer  stands  alone.  Michigan,  Minnesota,  Kan- 
sas, and  Ohio  have,  since  1895,  acted  in  the  same  direction.  2  How- 
ard on  Matrimonial  Institutions,  400,479,  480;  Sess.  Laws  Ohio,  1904, 
p.  83.  Laws  of  this  kind  may  be  regarded  as  an  expression  of  the 
conviction  of  modern  society  that  disease  is  largely  preventable  by 
proper  precautions,  and  that  it  is  not  unjust  in  certain  cases  to  require 
the  observation  of  these,  even  at  the  cost  of  narrowing  what  in  former 
days  was  regarded  as  the  proper  domain  of  individual  right.  It  fol- 
lows that  the  statute  in  question  was  not  invalid,  as  respects  marriages 
contracted  by  epileptics,  after  it  took  effect." 

HamerslEy,  J.  (concurring  in  the  result).  *  *  *  "The  act  done 
by  the  parties — that  of  marrying — is  not  -only  a  harmless  act,  but 
the  exercise  of  a  right  belonging  to  every  citizen ;  and  the  punish- 
ment is  inflicted  for  exercising  this  right  in  a  manner  forbidden  by 
law.  *  *  *  Because  the  inmates  of  a  poorhouse,  or  persons  who 
by  reason  of  sickness,  feeble-mindedness,  or  imbecility  are  a  charge, 
or  liable  to  become  a  charge,  upon  the  state,  may  be  punished  for 
marrying  each  other,  it  does  not  follow  that  every  one  who  is  sick 
or  feeble-minded  may  be  prevented  from  marrying.  *  *  *  If  the 
act  forbade  marriages  between  persons  who  are  living  at  the  public 
charge,  and  unable  to  support  themselves,  or  between  any  clearly 
marked  class  of  such  persons,  it  might  be  sustained  as  restraining 
the  dependent  wards  of  the  state  from  unnecessarily  imposing  bur- 
dens upon  the  public.  McCarthy  v.  Hinman,  35  Conn.  538- 
540.     *     *     * 

"The  opinion  seems  to  intimate  that  such  a  law  would  be  regarded 
as  expressive  of  the  conviction  of  modern  society  that  disease  is 
largely  preventable  by  proper  precautions,  and  might  therefore  be 
rightly  enforced,  even  at  the  cost  of  what  in  former  days  was  re- 
garded as  the  proper  domain  of  individual  right,  namely,  the  natural 
right  of  marriage,  the  freedom  of  contract  in  the  exercise  of  the 
right,  and  freedom  of  conscience  in  the  performance  of  the  personal 


Ch.  10)  DUE    PROCESS   AND    EQUALITY:     POLICE    I'OWEE  4''' 

duties  it  may  involve.  This  individual  right  has  been  and  is  regarded 
as  protected  by  the  Constitution  from  arbitrary  invasion.  These 
guarantied  rights  may  be  restricted  by  appropriate  regulations  for 
the  protection  of  the  health,  morals,  and  safety  of  the  public,  but  no 
one  has  yet  dreamed  that  the  limits  of  this  field  of  protective  legis- 
lation can  be  extended  beyond  the  citizens  of  to-day,  so  as  to  embrace 
the  citizens  of  all  future  generations.  It  has  been  held  that  these 
guarantied  rights  of  personal  freedom  cannot  be  directly  destroyed 
by  legislation  merely  because  such  destruction  may  be  deemed  to  be 
generally  useful,  or  to  serve  differing  views  of  social  and  economic 
problems  which  are  working  their  own  solution  independent  of  legis- 
latures and  courts.  State  v.  Conlon,  65  Conn.  478,  489,  33  Atl.  519, 
31  L.  R.  A.  55,  48  Am.  St.  Rep.  227;  Lochner  v.  New  York,  198 
U.  S.  45,  25  Sup.  Ct.  539,  49  L.  Ed.  937,  3  Ann.  Cas.  1133."  l 

■  The  cases  discussing  the  validity  of  various  legislative  restrictions  noon 
marriage,  including  the  prohibition  of  miscegenation,  are  collected  In  2  L.  It. 
A.  (N.  S.)  531-636  (1906). 

In  State  v.  I'eilen,  70  Wash.  65.  126  Pac.  75,  41  L.  R.  A.  (N.  S.)  41S  (1912) 
a  statute  was  upheld  that,  in  addition  to  other  punishment,  authorized  an 
operation  to  prevent  procreation  to  be  performed  upon  persons  convicted  of 
rape.  Crow,  J.,  said  (70  Wash.  68,  126  Pac.  76,  77  HI  I*  R.  A.  (N.  8 
"On  the  theory  that  modern  scientific  investigation  shows  that  idiocy,  insanity, 
Imbecility,  and  criminality  are  congenital  and  hereditary,  the  Legislatures  of 
California  [St,  Cal.  1900,  p.  1093,  c.  720],  Connecticut  [Pub.  Laws  Conn.  1809, 
a  209],  Indiana  [Laws  Ind.  1907,  c,  215],  Iowa  [Laws  Iowa  1911  c.  129],  New 
Jersey  [Laws  N.  J.  1911,  c.  190],  and  perhaps  other  states,  in  the  exercise  of 
the  police  power,  have  enacted  laws  providing  for  the  sterilization  of  Idiots, 
insane,  imbeciles  and  habitual  criminals.  In  the  enforcement  of  those  stat- 
utes vasectomy  seems  to  be  a  common  operation.  Dr.  Clark  Bell,  in  an  article 
OD  hereditary  criminality  and  the  asexualization  of  criminals,  found  at  page 
134,  vol.  27,  Medico-Legal  Journal,  quotes  with  approval  the  following  lan- 
guage: *  »  «  'Vasectomy  is  known  to  the  medical  profession  as  "an  office 
operation,"  painlessly  performed  in  a  few  minutes,  under  an  anaesthetic  (co- 
caine), through  a  skin  cut  half  an  inch  long,  and  entailing  no  wound  Infection, 
no  confinement  to  bed.'  •  *  •  'The  sterilization  of  convicts  by  vasectomy 
was  actually  performed  for  the  Brst  time  in  this  country,  so  far  as  Is  known, 
in  October,  ls'J'.i.  by  Dr.  H.  C.  Sharp  of  Indianapolis,  then  physician  to  the 
Indiana  State  Reformatory,  at  Jellersonville,  though  the  value  of  the  op- 
eration for  healing  purposes  had  long  been  known.  He  continued  to  perform 
this  operation  with  the  consent  of  the  convict  (not  by  legislative  authority) 
for  some  years.  Intluential  physicians  heard  of  his  work,  and  were 
ably  impressed  with  it  that  they  indorsed  the  movement,  which  resulted  in 
the  passage  of  the  law  now  upon  the  Indiana  statute  books.  Dr.  sharp  has 
this  to  say  of  this  method  of  relief  to  societ!  :  "Vasectomy  consists  of  ligating 
and  resecting  a  small  portion  of  the  vas  deferens.  This  operation  Is,  in. led. 
very  simple  and  easy  to  perform;  I  do  it  without  administering  an  anaesthetic 
either  general  or  local.  It  requires  about  three  minutes'  time  to  perform  the 
operation,  and  the  subject  returus  to  his  work  Immediately,  suffers  no  Incon- 
venience, and  is  in  no  way  impaired  for  his  pursuit  of  life,  liberty,  and  hap- 
piness,  but  is  effectively  sterilized."'" 


HO  FUNDAMENTAL    RIGHTS  (Part  2 

L'HOTE  v.  NEW  ORLEANS  (1900)  177  U.  S.  587,  596-598,  600, 
20  Sup.  Ct.  78S,  44  L.  Ed.  899,  Mr.  Justice  Brewer  (sustaining  an 
ordinance  prescribing  limits  in  that  city  outside  of  which  no  woman 
of  lewd  character  should  dwell,  as  against  objections  of  property 
owners  within  those  limits) : 

"The  question  *  *  *  is  simply  whether  one  who  may  own  or 
occupy  property  in  or  adjacent  to  the  prescribed  limits,  whether  oc- 
cupied as  a  residence  or  for  other  purposes,  can  prevent  the  enforce- 
ment of  such  an  ordinance  on  the  ground  that  by  it  his  rights  under 
the  federal  Constitution  are  invaded. 

"In  this  respect  we  premise  by  saying  that  one  of  the  difficult  social 
problems,  of  the  day  is  what  shall  be  done  in  respect  to  those  voca- 
tions which  minister  to  and  feed  upon  human  weaknesses,  appetites, 
and  passions.  The  management  of  these  vocations  comes  directly 
within  the  scope  of  what  is  known  as  the  police  power.  They  affect 
directly  the  public  health  and  morals.  Their  management  becomes 
a  matter  of  growing  importance,  especially  in  our  larger  cities,  where 
from  the  very  density  of  population  the  things  which  minister  to  vice 
tend  to  increase  and  multiply.     *     *     * 

"Obviously,  the  regulation  of  houses  of  ill  fame,  legislation  in  re- 
spect to  women  of  loose  character,  may  involve  one  of  three  possi- 
bilities: First,  absolute  prohibition;  second,  full  freedom  in  respect 
to  place,  coupled  with  rules  of  conduct ;  or,  third,  a  restriction  of  the 
location  of  such  houses  to  certain  defined  limits.  Whatever  course  of 
conduct  the  legislature  may  adopt  is  in  a  general  way  conclusive  upon 
all  courts,  state  and  Federal.  It  is  no  part  of  the  judicial  function 
to  determine  the  wisdom  or  folly  of  a  regulation  by  the  legislative 
body  in  respect  to  matters  of  a  police  nature. 

"Now,  this  ordinance  neither  prohibits  absolutely  nor  gives  entire 
freedom  to  the  vocation  of  these  women.  It  attempts  to  confine  their 
domicil,  their  lives,  to  certain  territorial  limits.  Upon  what  ground 
shall  it  be  adjudged  that  such  restriction  is  unjustifiable;  that  it  is 
an  unwarranted  exercise  of  the  police  power?  Is  the  power  to  con- 
trol and  regulate  limited  only  as  to  the  matter  of  territory?  May 
that  not  be  one  of  the  wisest  and  safest  methods  of  dealing  with  the 
problem?  At  any  rate,  can  the  power  to  so  regulate  be  denied?  But 
given  the  power  to  limit  the  vocation  of  these  persons  to  certain  locali- 
ties, and  no  one  can  question  the  legality  of  the  location.  The  power 
to  prescribe  a  limitation  carries  with  it  the  power  to  discriminate 
against  one  citizen  and  in  favor  of  another.  Some  must  suffer  by 
the  establishment  of  any  territorial  boundaries. 

"We  do  not  question  what  is  so  earnestly  said  by  counsel  for  plain- 
tiffs in  error  in  respect  to  the  disagreeable  results  from  the  neighbor- 
hood of  such  houses  and  people;  but  if  the  power  to  prescribe  ter- 
ritorial limits  exists,  the  courts  cannot  say  that  the  limits  shall  be 
other  than  those  the  legislative  body  prescribes.    If  these  limits  hurt 


Ch.  10)      DUE  PROCESS  AND  EQUALITY:  POI.I'  B  P  441 

the  present  plaintiffs  in  error,  other  limits  would  hurt  others.  But 
clearly  the  inquiry  as  to  the  reasonableness  or  propriety  of  the  limit- 
is  a  matter  for  legislative  consideration,  and  cannot  become  the  basis 
of  judicial  action.  The  ordinance  is  an  attempt  to  protect  a  part  of 
the  citizens  from  tne  unpleasant  consequences  of  such  neighbors.  Be- 
cause the  legislative  body  is  unable  to  protect  all,  must  it  be  denied 
the  power  to  protect  any  ? 

"It  is  said  that  this  operates  to  depreciate  the  pecuniary  value  of 
the  property  belonging  to  the  plaintiffs  in  error,  but  a  similar  result 
would  follow  if  other  limits  were  prescribed,  and  therefore  the  power 
to  prescribe  limits  could  never  be  exercised,  because,  whatever  the 
limits,  it  might  operate  to  the  pecuniary  disadvantage  of  some  prop- 
erty holders. 

"The  truth  is,  that  the  exercise  of  the  police  power  often  works 
pecuniary  injury,  but  the  settled  rule  of  this  court  is  that  the  mere 
fact  of  pecuniary  injury  does  not  warrant  the  overthrow  of  legislation 
of  a  police  character.  *  *  *  Here  the  ordinance  in  no  manner 
touched  the  property  of  the  plaintiffs.  It  subjected  that  property  to 
no  burden,  it  cast  no  duty  or  restraint  upon  it,  and  only  in  an  indirect 
way  can  it  be  said  that  its  pecuniary  value  was  affected  by  this  or- 
dinance. Who  can  say  in  advance  that  in  proximity  to  their  property 
any  houses  of  the  character  indicated  will  be  established,  or  that  any 
persons  of  loose  character  will  find  near  by  a  home?  They  may  go 
to  the  other  end  of  the  named  district.  All  that  can  be  said  is  that 
by  narrowing  the  limits  within  which  such  houses  and  people  must 
be,  the  greater  the  probability  of  their  near  location.  Even  if  any 
such  establishment  should  be  located  in  proximity,  there  is  nothing 
in  the  ordinance  to  deny  the  ordinary  right  of  the  individual  to  re- 
strain a  private  nuisance."  * 


LEAVITT  v.  CITY  OF  MORRIS. 

(Supreme  Court  of  Minnesota,  1908.     105  Minn.  170,  117  N.  W.  39.7.  17  L    R 
A.  [N.  S.]  984,  15  Ann.  Cas.  961.) 

[Appeal  from  an  order  of  the  Stevens  county  district  court  over- 
ruling defendant's  demurrer  to  a  complaint.  A  statute  gave  to  the 
state  board  of  control  two  per  cent,  of  the  liquor  license  fees  of  all 
municipalities  to  provide  a  state  hospital  farm  for  the  compulsory 
treatment  of  inebriates.  Defendant  city  resisted  the  collection  of 
this,  alleging  the  invalidity  of  this  object.] 

Start,  C.  J.    *    *    *    We    *    *    *    only  decide  the  question  of  the 

iThe  validity  of  various  kinds  of   legislation   afreetins  the   social   evil   Is 
also  discussed  or  involved  in  St.  Louis  v.  Pit*.  08  Mo.  682  (181 
Clarke.  54  Mo.  17.  14  Am.  Rep.  171  (1873);    Dunn  v.  Commonwealth,  105  Ky. 
834,  48  S.  W.  S13,  43  L.  R.  A.  701.  88  Am  Bt  Rep.  344  (18991; 
Maysville,  57  8.  W.  618,  22  Ky.  Law  Rep.  486,  49  L.  R.  A.  114  il900):  State  v. 
Botkin,  71  Iowa,  87.  32  N.  W.  is*..  60  Am,  Rep.  7bO  (1887). 


142  FUNDAMENTAL    RIGHTS  (Part  2 

validity  of  the  provisions  of  the  act  relating  to  the  commitment  of 
inebriates,  without  their  consent,  to  a  public  hospital  for  the  treatment 
of  inebriates  to  be  provided  and  conducted  by  the  state.  The  provi- 
sions of  the  act  relevant  to  such  question  are  to  the  effect  following: 
Section  2  declares  that  the  term  "inebriate"  shall  include  every  species 
of  chronic  inebriety,  whether  caused  by  the  excessive  use  of  intoxicat- 
ing liquors,  morphine,  or  other  narcotics.  Section  4  provides  that  upon 
the  filing  with  the  probate  court  of  a  verified  petition  that  any  person  in 
the  county  is  an  inebriate  and  in  need  of  care  and  treatment,  or  that 
it  is  dangerous  for  him  to  remain  at  large,  stating  therein  the  peti- 
tioner's relationship,  if  any,  to  the  inebriate,  and  the  indications  of  his 
lack  of  self-control  in  the  use  of  liquors  or  narcotics,  the  court  shall 
issue  its  warrant  to  bring  the  inebriate  before  it  for  examination  as  to 
his  alleged  inebriety.  Section  5  provides  for  the  appointment  of  two 
reputable  persons,  one  of  whom,  at  least,  must  be  a  qualified  physician, 
and  that  such  persons,  with  the  judge  of  the  court,  shall  constitute  a 
board  to  examine  the  alleged  inebriate  and  determine  his  inebriety. 
Section  21  provides  that  the  county  attorney  shall  be  notified,  and 
shall  appear  and  take  such  action  as  may  be  necessary  to  protect  the 
rights  of  such  inebriate  and  the  interests  of  the  county.  Section  6 
requires  the  board  to  hear  all  proper  testimony,  and  the  court  may 
cause  witnesses  to  be  subpoenaed.  When  the  examination  is  com- 
pleted the  board  shall  determine  whether  the  person  charged  is  an  in- 
ebriate, and  make  and  file  a  report  of  their  proceedings,  including 
their  findings.  Section  9  provides  that  if  the  board  determine  that 
such  person  is  an  inebriate  he  shall  be  committed  to  the  hospital  farm 
for  treatment  for  an  indeterminate  period,  but  not  for  more  than  two 
years  without  being  released  on  parol,  and,  further,  that  such  person 
shall  have  a  right  to  appeal  from  the  decision  of  the  probate  court 
to  the  district  court,  and  that  on  such  appeal  all  questions  involved  in 
such  examination  shall  be  tried  de  novo.  Section  11  requires  that 
whenever  a  person  is  discharged  from  the  hospital  a  certificate  of  such 
fact  shall  be  sent  to  the  judge  of  probate. 

The  provisions  of  the  act  relating  to  the  examination  and  com- 
mitment of  an  alleged  inebriate  carefully  safeguard  his  rights,  pro- 
viding, as  they  do,  for  full  notice  and  opportunity  to  be  heard,1  and  a 
trial  of  all  questions  by  a  jury  in  case  he  appeals  to  the  district  court. 
They  are  substantially  the  same,  with  the  exception  of  the  right  of 
appeal,  as  those  relating  to  the  examination  and  commitment  of  in- 
sane persons.  Rev.  Laws  1905,  §§  3852-3861.  There  is,  however,  a 
clear  distinction  between  a  person  who  gets  drunk  and  an  insane 
person,  and  it  may  be  conceded  that  one  who  is  simply  a  drunkard, 
but  is  able  properly  to  take  care  of  himself,  his  family,  and  his  prop- 
erty, and  is  not  menace  to  the  public,  cannot  be  committed  to  and  de- 

i  This  is  essential  for  more  than  a  mere  temporary  detention.  People  ex 
rel.  Ordway  v.  St  Saviour's  Sanitarium,  34  App.  Div.  363,  56  N.  Y.  Supp.  431 
(1898) ;  People  ex  reL  Barone  v.  Fox,  202  N.  Y.  616,  96  N.  E.  1126  (1911). 


Ch.  10)  DUE   PROCESS   AND   EQUALITY:     POLICE    POWER  443 

tained  in  a  hospital  for  inebriates  without  his  consent,  for  the  personal 
rights  and  liberties  of  such  a  person  are  guaranteed  by  the  Constitu- 
tion. 15  Enc.  of  Law,  243.  But  the  state,  in  the  exercise  of  its  police 
power,  has  the  undoubted  right  to  punish  drunkenness,  and  to  provide 
for  the  detention  and  treatment  in  hospitals  controlled  by  it  of  those 
who  are  habitual  drunkards,  and  have  so  far  lost  the  power  of  self- 
control  that  they  are  either  incapable  of  properly  caring  for  themselves 
or  are  a  menace  to  the  public  weal.  The  state  has  the  power  to  reclaim 
submerged  lands,  which  are  a  menace  to  the  public  health,  and  make 
them  fruitful.  Has  it  not,  also,  the  power  to  reclaim  submerged  men, 
overthrown  by  strong  drink,  and  help  them  to  regain  self-control? 

The  state  for  many  years  has  punished  drunkenness  as  a  crime  by  a 
fine  or  imprisonment,  and  for  the  third  and  all  subsequent  offenses  by 
imprisonment  alone.  Laws  1907,  p.  235,  c.  208.  The  necessary  effect 
of  the  enforcement  of  the  statute  against  drunkenness  is  to  deprive  the 
person  guilty  of  the  offense  of  his  property  and  his  liberty  for  a  time ; 
but  no  question  has  ever  been  made  in  the  courts  of  this  state  as  to  the 
validity  of  such  a  statute.  The  trend,  however,  of  legislation  is  to  treat 
habitual  drunkenness  as  a  disease  of  mind  and  body,  analogous  to 
insanity,  and  to  put  in  motion  the  power  of  the  state,  as  the  guardian 
of  all  of  its  citizens,  to  save  the  inebriate,  his  family,  and  society 
from  the  dire  consequences  of  his  pernicious  habit.  15  Enc.  of  Law, 
229.  The  statute  here  under  consideration  is  of  such  a  character. 
It  is  not  a  penal,  but  a  paternal,  statute,  seeking,  not  the  punishment  of 
the  inebriate,  but  the  safeguarding  of  his  interests  and  the  safety  of 
the  public,  by  treating  him  as,  what  he  is  in  fact,  a  man  of  unsound 
mind,  and  placing  him  under  the  guardianship  of  the  state,  to  the  end 
that  he  may  be  healed  of  his  infirmity.  The  act  provides  that  such 
guardianship  shall  be  administered  by  the  probate  court,  and  there  can 
be  no  question  of  the  jurisdiction  of  such  court;  for  the  Constitution 
(section  7,  art.  6)  confers  upon  it  jurisdiction  over  the  general  subject 
of  guardianship  of  persons.    State  v.  Wilcox,  24  Minn.  143. 

Again,  the  statute  does  not  seek  to  place  under  the  guardianship  of 
the  state  hospital  for  inebriates  persons  who  are  guilty  of  occasional 
acts  of  drunkenness  and  who  are  capable  of  controlling  themselves 
and  their  property.  It  is  limited  to  habitual  drunkards — that  is,  to 
persons  who  have  lost  the  power  or  will  to  control  their  appetite  for 
intoxicating  liquors  or  narcotics,  and  have  the  fixed  habit  of  drunken- 
ness (4  Words  and  Phrases,  3202),  who  are  in  need  of  care  and  treat- 
ment, and  to  those  it  would  be  dangerous  to  leave  at  large.  The  dif- 
ference between  such  persons  and  insane  persons  is  one  of  degree 
only,  and  they  lawfully  may  be  so  treated  by  the  state  without  any  im- 
pairment of  their  constitutional  rights.    *     *     * 

Order  affirmed.2 

•Accord:  People  ex  rel.  Barone  v.  Fot,  144  App.  IMv.  Oil.  129  N.  Y.  Supp. 
646  (1911)  (medical  treatment  of  diseased  prostitutes). 


444  FUNDAMENTAL    BIGHTS  (Part  2 

JACOBSON  v.  MASSACHUSETTS. 

(Supreme  Court  of  United  States,  1905.     197  U.  S.  11,  25  Sup.  Ct.  35S,  49  L. 
Ed.  643,  3  Ann.  Cas.  765.) 

[Error  to  the  Superior  Court  of  Middlesex  county,  Massachusetts. 
A  statute  gave  local  boards  of  health  authority,  whenever  in  their  opin- 
ion necessary  for  the  public  health,  to  require  the  vaccination  of  all 
inhabitants  of  their  city  or  town,  except  children  who  presented  med- 
ical certificates  that  they  were  unfit  subjects  for  vaccination.  Jacobson 
Was  convicted  in  said  court  of  refusing  to  comply  with  such  an  order 
of  the  Cambridge  board  of  health.  His  offer  to  prove  that  vaccination 
was  useless  to  prevent  smallpox,  and  that  it  was  often  dangerous  was 
denied  by  the  trial  court.  The  state  Supreme  Court  affirmed  the  con- 
viction.] 

Mr.  Justice  Harlan.  *  *  *  We  come,  then,  to  inquire  whether 
any  right  given  or  secured  by  the  Constitution  is  invaded  by  the  statute 
as  interpreted  by  the  state  court.  The  defendant  insists  that  his  liberty 
is  invaded  when  the  state  subjects  him  to  fine  or  imprisonment  for  neg- 
lecting or  refusing  to  submit  to  vaccination ;  that  a  compulsory  vac- 
cination law  is  unreasonable,  arbitrary,  and  oppressive,  and,  therefore, 
hostile  to  the  inherent  right  of  every  freeman  to  care  for  his  own  body 
and  health  in  such  way  as  to  him  seems  best ;  and  that  the  execution 
of  such  a  law  against  one  who  objects  to  vaccination,  no  matter  for 
what  reason,  is  nothing  short  of  an  assault  upon  his  person.  But  the 
liberty  secured  by  the  Constitution  of  the  United  States  to  every  per- 
son within  its  jurisdiction  does  not  import  an  absolute  right  in  each 
person  to  be,  at  all  times  and  in  all  circumstances,  wholly  freed  from 
restraint.  There  are  manifold  restraints  to  which  every  person  is  nec- 
essarily subject  for  the  common  good.  On  any  other  basis  organized 
society  could  not  exist  with  safety  to  its  members.  Society  based  on 
the  rule  that  each  one  is  a  law  unto  himself  would  soon  be  confronted 
with  disorder  and  anarchy.  Real  liberty  for  all  could  not  exist  under 
the  operation  of  a  principle  which  recognizes  the  right  of  each  indiv- 
idual person  to  use  his  own,  whether  in  respect  of  his  person  or  his 
property,  regardless  of  the  injury  that  may  be  done  to  others.  This 
court  has  more  than  once  recognized  it  as  a  fundamental  principle  that 
"persons  and  property  are  subjected  to  all  kinds  of  restraints  and  bur- 
dens in  order  to  secure  the  general  comfort,  health,  and  prosperity  of 
the  state;  of  the  perfect  right  of  the  legislature  to  do  which  no  ques- 
tion ever  was,  or  upon  acknowledged  general  principles  ever  can  be, 
made,  so  far  as  natural  persons  are  concerned."  Hannibal  &  St.  J.  R. 
Co.  v.  Husen,  95  U.  S.  465,  471,  24  L,  Ed.  527,  530;  Missouri,  K.  & 
T.  R.  Co.  v.  Haber,  169  U.  S.  613,  628,  629,  18  Sup.  Ct.  488,  42  L. 
Ed.  878-883 ;  Thorpe  v.  Rutland  &  B,  R.  Co.,  27  Vt.  148,  62  Am. 
Dec.  625.    *    *    * 


Ch.  10)  DUE  PROCESS  AND   EQUALITY  I     POX.ICB    POWBB  445 

Applying  these  principles  to  the  present  case,  it  is  to  be  observed  that 
the  legislature  of  Massachusetts  required  the  inhabitants  of  a  city  or 
town  to  be  vaccinated  only  when,  in  the  opinion  of  the  board  of  health, 
that  was  necessary  for  the  public  health  or  the  public  safety.  The  au- 
thority to  determine  for  all  what  ought  to  be  done  in  such  an  emer- 
gency must  have  been  lodged  somewhere  or  in  some  body ;  and  surely 
it  was  appropriate  for  the  legislature  to  refer  that  question,  in  the  first 
instance,  to  a  board  of  health  composed  of  persons  residing  in  the  lo- 
cality affected,  and  appointed,  presumably,  because  of  their  fitness  to 
determine  such  questions.  To  invest  such  a  body  with  authority  over 
such  matters  was  not  an  unusual,  nor  an  unreasonable  or  arbitrary, 
requirement.  Upon  the  principle  of  self-defense,  of  paramount  neces- 
sity, a  community  has  the  right  to  protect  itself  against  an  epidemic 
of  disease  which  threatens  the  safety  of  its  members.  It  is  to  be  ob- 
served that  when  the  regulation  in  question  was  adopted  smallpox,  ac- 
cording to  the  recitals  in  the  regulation  adopted  by  the  board  of  health, 
was  prevalent  to  some  extent  in  the  city  of  Cambridge,  and  the  disease 
was  increasing.  If  such  was  the  situation, — and  nothing  is  asserted  or 
appears  in  the  record  to  the  contrary, — if  we  are  to  attach  any  value 
whatever  to  the  knowledge  which,  it  is  safe  to  affirm,  is  common  to  all 
civilized  peoples  touching  smallpox  and  the  methods  most  usually  em- 
ployed to  eradicate  that  disease,  it  cannot  be  adjudged  that  the  present 
regulation  of  the  board  of  health  was  not  necessary  in  order  to  protect 
the  public  health  and  secure  the  public  safety. 

Smallpox  being  prevalent  and  increasing  at  Cambridge,  the  court 
would  usurp  the  functions  of  another  branch  of  government  if  it  ad- 
judged, as  matter  of  law,  that  the  mode  adopted  under  the  sanction  of 
the  state,  to  protect  the  people  at  large  was  arbitrary,  and  not  justi- 
fied by  the  necessities  of  the  case.  We  say  necessities  of  the  case,  be- 
cause it  might  be  that  an  acknowledged  power  of  a  local  community  to 
protect  itself  against  an  epidemic  threatening  the  safety  of  all  might 
be  exercised  in  particular  circumstances  and  in  reference  to  particular 
persons  in  such  an  arbitrary,  unreasonable  manner,  or  might  go  so  far 
beyond  what  was  reasonably  required  for  the  safety  of  the  public,  as 
to  authorize  or  compel  the  courts  to  interfere  for  the  protection  of 
such  persons.  Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson,  179  U.  S.  287, 
301.  21  Sup.  Ct.  115,  45  L.  Ed.  194.  201 ;  1  Dill.  Mun.  Corp.  (4th  Ed.) 
§§  319-325,  and  authorities  in  notes;  Freund,  Police  Power,  §^63  et 
seq.  *  *  *  If  the  mode  adopted  by  the  commonwealth  of  m 
chusetts  for  the  protection  of  its  local  communities  against  smallpox 
proved  to  be  distressing,  inconvenient,  or  objectionable  to  some. — if 
nothing  more  could  be  reasonably  affirmed  of  the  statute  in  question, — 
the  answer  is  that  it  was  the  duty  of  the  constituted  authorities  pri- 
marily to  keep  in  view  the  welfare,  comfort,  and  safety  of  the  many, 
and  not  permit  the  interests  of  the  many  to  be  subordinated  to  the 
wishes  or  convenience  of  the  few. 

There  is,  of  course,  a  sphere  within  which  the  individual  may  assert 


446  FUNDAMENTAL    RIGHTS  (Part  2 

the  supremacy  of  his  own  will,  and  rightfully  dispute  the  authority  of 
any  human  government, — especially  of  any  free  government  existing 
under  a  written  Constitution,  to  interfere  with  the  exercise  of  that 
will.  But  it  is  equally  true  that  in  every  well-ordered  society  charged 
with  the  duty  of  conserving  the  safety  of  its  members  the  rights  of 
the  individual  in  respect  of  his  liberty  may  at  times,  under  the  pressure 
of  great  dangers,  be  subjected  to  such  restraint,  to  be  enforced  by  rea- 
sonable regulations,  as  the  safety  of  the  general  public  may  demand. 
An  American  citizen  arriving  at  an  American  port  on  a  vessel  in  which, 
during  the  voyage,  there  had  been  cases  of  yellow  fever  or  Asiatic 
cholera,  although  apparently  free  from  disease  himself,  may  yet,  in 
some  circumstances,  be  held  in  quarantine  against  his  will  on  board  of 
such  vessel  or  in  a  quarantine  station,  until  it  be  ascertained  by  inspec- 
tion, conducted  with  due  diligence,  that  the  danger  of  the  spread  of  the 
disease  among  the  community  at  large  has  disappeared.  The  liberty 
secured  by  the  fourteenth  amendment,  this  court  has  said,  consists,  in 
part,  in  the  right  of  a  person  "to  live  and  work  where  he  will"  (All- 
geyer  v.  Louisiana,  165  U.  S.  5-78,  17  Sup.  Ct.  427,  41  L.  Ed.  832); 
and  yet  he  may  be  compelled,  by  force  if  need  be,  against  his  will  and 
without  regard  to  his  personal  wishes  or  his  pecuniary  interests,  or 
even  his  religious  or  political  convictions,  to  take  his  place  in  the  ranks 
of  the  army  of  his  country,  and  risk  the  chance  of  being  shot  down 
in  its  defense.  It  is  not,  therefore,  true  that  the  power  of  the  public 
to  guard  itself  against  imminent  danger  depends  in  every  case  involv- 
ing the  control  of  one's  body  upon  his  willingness  to  submit  to  reason- 
able regulations  established  by  the  constituted  authorities,  under  the 
sanction  of  the  state,  for  the  purpose  of  protecting  the  public  collective- 
ly against  such  danger.     *     *     * 

Looking  at  the  propositions  embodied  in  the  defendant's  rejected 
offers  of  proof,  it  is  clear  that  they  are  more  formidable  by  their  num- 
ber than  by  their  inherent  value.  Those  offers  in  the  main  seem  to 
have  had  no  purpose  except  to  state  the  general  theory  of  those  of  the 
medical  profession  who  attach  little  or  no  value  to  vaccination  as  a 
means  of  preventing  the  spread  of  smallpox,  or  who  think  that  vac- 
cination causes  other  diseases  of  the  body.  What  everybody  knows 
the  court  must  know,  and  therefore  the  state  court  judicially  knew,  as 
this  court  knows,  that  an  opposite  theory  accords  with  the  common  be- 
lief, aad  is  maintained  by  high  medical  authority.  We  must  assume 
that,  when  the  statute  in  question  was  passed,  the  legislature  of  Mass- 
achusetts was  not  unaware  of  these  opposing  theories,  and  was  com- 
pelled, of  necessity,  to  choose  between  them.  It  was  not  compelled  to 
commit  a  matter  involving  the  public  health  and  safety  to  the  final  de- 
cision of  a  court  or  jury.  It  is  no  part  of  the  function  of  a  court  or 
a  jury  to  determine  which  one  of  two  modes  was  likely  to  be  the  most 
effective  for  the  protection  of  the  public  against  disease.  That  was 
for  the  legislative  department  to  determine  in  the  light  of  all  the  in- 
formation it  had  or  could  obtain.     It  could  not  properly  abdicate  its 


Ch.  10)  DUE   PBOCB8S  AND    Eyi'ALlTi  :     POLICE    POWBB  *•*  > 

function  to  guard  the  public  health  and  safety.  The  state  legislature 
proceeded  upon  the  theory  which  recognized  vaccination  as  at  least  an 
effective,  if  not  the  best-known,  way  in  which  to  meet  and  suppress  the 
evils  of  a  smallpox  epidemic  that  imperiled  an  entire  population. 

Upon  what  sound  principles  as  to  the  relations  existing  between  the 
different  departments  of  government  can  the  court  review  this  action 
of  the  legislature?  If  there  is  any  such  power  in  the  judiciary  to  re- 
view legislative  action  in  respect  of  a  matter  affecting  the  general  wel- 
fare, it  can  only  be  when  that  which  the  legislature  has  done  comes 
within  the  rule  that,  if  a  statute  purporting  to  have  been  enacted  to 
protect  the  public  health,  the  public  morals,  or  the  public  safety,  has 
no  real  or  substantial  relation  to  those  objects,  or  is,  beyond  all  ques- 
tion, a  plain,  palpable  invasion  of  rights  secured  by  the  fundamental 
law,  it  is  the  duty  of  the  courts  to  so  adjudge,  and  thereby  give  effect 
to  the  Constitution.  Mugler  v.  Kansas,  123  U.  S.  623,  661,  8  Sup.  Ct. 
273,  31  L.  Ed.  205,  210;  Minnesota  v.  Barber,  136  U.  S.  313,  320,  10 
Sup.  Ct.  862,  34  L.  Ed.  455,  458,  3  Interst.  Com.  R.  185 ;  Atk'in  v. 
Kansas,  191  U.  S.  207,  223,  24  Sup.  Ct.  124,  48  L.  Ed.  148,  158. 

Whatever  may  be  thought  of  the  expediency  of  this  statute,  it  can- 
not be  affirmed  to  be,  beyond  question,  in  palpable  conflict  with  the 
Constitution.  Nor,  in  view  of  the  methods  employed  to  stamp  out  the 
disease  of  smallpox,  can  anyone  confidently  assert  that  the  means  pre- 
scribed by  the  state  to  that  end  has  no  real  or  substantial  relation  to 
the  protection  of  the  public  health  and  the  public  safety.  Such  an  as- 
sertion would  not  be  consistent  with  the  experience  of  this  and  other 
countries  whose  authorities  have  dealt  with  the  disease  of  smallpox. 

*  *  *  [Quotations  are  here  given  from  various  sources  showing 
the  practice  of  other  countries,  and  a  number  of  American  state  cases 
are  cited  upholding  vaccination  as  a  condition  of  attending  the  public 
schools.] 

The  latest  case  upon  the  subject  of  which  we  are  aware  is  Viemeis- 
ter  v.  White,  decided  very  recently  by  the  court  of  appeals  of  New 
York.    That  case  involved  the  validity  of  a  statute  excluding  from 
the  public  schools  all  children  who  had  not  been  vaccinated.     *     * 
[The   statute   was    upheld]    the   court    saying   among  other    things: 

*  *  *  "A  common  belief,  like  common  knowledge,  docs  not  re- 
quire evidence  to  establish  its  existence,  but  may  be  acted  upon  without 
proof  by  the  legislature  and  the  courts.  *  *  *  The  fact  that  the 
belief  is  not  universal  is  not  controlling,  for  there  is  scarcely  any  be- 
lief that  is  accepted  by  every  one.  The  possibility  that  the  belief  may 
be  wrong,  and  that  science  may  yet  show  it  to  be  wrong,  is  not  con- 
clusive ;  for  the  legislature  has  the  right  to  pass  laws  which,  according 
to  the  common  belief  of  the  people,  are  adapted  to  prevent  the  spread 
of  contagious  diseases.  In  a  free  country,  where  the  government  i> 
by  the  people,  through  their  chosen  representatives,  practical  legislation 
admits  of  no  other  standard  of  action,  for  what  the  people  believe  is 
for  the  common  welfare  must  be  accepted  as  tending  to  promote  the 


448  FUNDAMENTAL    RIGHTS  (Part  2 

common  welfare,  whether  it  does  in  fact  or  not.1  Any  other  basis 
would  conflict  with  the  spirit  of  the  Constitution,  and  would  sanction 
measures  opposed  to  a  republican  form  of  government.  While  we  do 
not  decide,  and  cannot  decide,  that  vaccination  is  a  preventive  of  small- 
pox, we  take  judicial  notice  of  the  fact  that  this  is  the  common  belief 
of  the  people  of  the  state,  and,  with  this  fact  as  a  foundation,  we  hold 
that  the  statute  in  question  is  a  health  law,  enacted  in  a  reasonable  and 
proper  exercise  of  the  police  power."  179  N.  Y.  235,  72  N.  E.  97,  70 
L.  R.  A.  796,  103  Am.  St.  Rep.  859,  1  Ann.  Cas.  334.    *    *     * 

The  legislature  assumed  that  some  children,  by  reason  of  their  con- 
dition at  the  time,  might  not  be  fit  subjects  of  vaccination;  and  it  is 
suggested — and  we  will  not  say  without  reason — that  such  is  the  case 
with  some  adults.  But  the  defendant  did  not  offer  to  prove  that,  by 
reason  of  his  then  condition,  he  was  in  fact  not  a  fit  subject  of  vaccina- 
tion at  the  time  he  was  informed  of  the  requirement  of  the  regulation 
adopted  by  the  board  of  health.  *  *  *  Until  otherwise  informed 
by  the  highest  court  of  Massachusetts,  we  are  not  inclined  to  hold 
that  the  statute  establishes  the  absolute  rule  that  an  adult  must  be  vac- 
cinated if  it  be  apparent  or  can  be  shown  with  reasonable  certainty 
that  he  is  not  at  the  time  a  fit  subject  of  vaccination,  or  that  vaccina- 
tion, by  reason  of  his  then  condition,  would  seriously  impair  his  health, 
or  probably  cause  his  death.  No  such  case  is  here  presented.  It  is  the 
cause  of  an  adult  who,  for  aught  that  appears,  was  himself  in  perfect 
health  and  a  fit  subject  of  vaccination,  and  yet,  while  remaining  in 
the  community,  refused  to  obey  the  statute  and  the  regulation  adopted 
in  execution  of  its  provisions  for  the  protection  of  the  public  health 
and  the  public  safety,  confessedly  endangered  by  the  presence  of  a 
dangerous  disease.     *     *     * 

Judgment  affirmed.2 

[Brewer  and  Peckham,  JJ.,  dissent.] 

i  Compare  the  remark  of  the  same  court  In  holding  a  workmen's  compensa- 
tion act  invalid :  "In  a  government  like  ours  theories  of  public  good  or  neces- 
sity are  often  so  plausible  or  sound  as  to  command  popular  approval,  but 
courts  are  not  permitted  to  forget  that  law  is  the  only  chart  by  which  the 
ship  of  state  is  to  be  guided."— Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271, 
291,  295.  91  N.  B.  431,  440,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156  (1911), 
by  Werner,  J. 

2  In  Laurel  Hill  Cemetery  v.  City  and  County  of  San  Francisco,  216  U.  S. 
358,  364-366,  30  Sup.  Ct.  301.  302,  54  L.  Ed.  515  (1910),  a  city  ordinance  for- 
bidding the  burial  of  the  dead  within  the  city  as  detrimental  to  the  public 
health  was  upheld  against  the  contention  of  the  owners  of  a  large  private 
cemetery  in  which  40,000  lots  had  been  sold  and  where  over  $2,000,000  had 
been  spent  in  improvements,  Holmes,  J.,  saying:  "To  aid  its  contention,  and 
in  support  of  the  averment  that  its  cemetery,  although  now  bordered  by  many 
dwellings,  is  in  no  way  harmful,  the  plaintiff  refers  to  opinions  of  scientific 
men  who  have  maintained  that  the  popular  belief  is  a  superstition.  Of  these 
we  are  asked,  by  implication,  to  take  judicial  notice,  to  adopt  them,  and,  on 
the  strength  of  our  acceptance,  to  declare  the  foundation  of  the  ordinance  a 
mistake  and  the  ordinance  void.  *  *  *  If  every  member  of  this  bench 
clearly  agreed  that  burying  grounds  were  centers  of  safety,  and  thought  the 
board  of  supervisors  and  the  supreme  court  of  California  wholly  wrong,  it 
would  not  dispose   of  the  case.     There   are  other  things  to  be  considered. 


Ch.  10)  DUB    PROCESS   AND    EQUALITY:     fill. UK    I'OWEB  44'.* 

NICKERSON  v.  BOSTON  (1881)  131  Mass.  306,  307-308,  Mor- 
ton, J.  (upholding  a  statute  applicable  to  a  certain  district  in  1: 

"By  the  statute,  the  city  council  are  authorized  to  order  the  owners 
of  lands  situated  in  the  district  described  therein  'to  raise  the  grade  of 
their  said  lands,  filling  up  the  same  with  good  materials  to  such  per- 
manent grade  as  may  be  deemed  necessary  by  the  board  of  aldermen 
in  order  to  secure  a  complete  drainage  thereof,  so  as  to  abate  and 
prevent  nuisances,  and  to  preserve  the  public  health  of  the  city,'  and,  if 
the  owner  fails  to  comply  with  the  order,  to  fill  up  the  land  and  assess 
the  necessary  expenses,  which  shall  constitute  a  lien  upon  the  land. 
The  statute  itself  defines  the  purpose  of  its  enactment  and  indicates 
its  character.  It  is  not  a  statute  to  levy  a  tax,  but  its  object  is  to  abate 
and  prevent  nuisances,  and  to  preserve  the  public  health.  It  belongs 
to  that  class  of  police  regulations  to  which  private  rights  are  held 
subject,  and  is  founded  upon  the  right  of  the  public  to  protect  itself 
from  nuisances,  and  to  preserve  the  general  health.  The  authority 
of  the  Legislature  to  pass  laws  of  this  character  is  too  well  set 
be  questioned.  Taunton  v.  Taylor,  116  Mass.  254;  Salem  v.  Eastern 
Railroad,  98  Mass.  431,  96  Am.  Dec.  650;  Wright  v.  Boston,  9  Cush. 
233.  The  objection  of  the  petitioner  that  the  law  is  unconstitutional 
cannot  therefore  be  sustained."  l 

Opinion   still  may  be  divided,  and   if,  on  the  hypothesis  that  the  danger  is 
real,  the  ordinance  would  be  valid,  we  rthrow  it  merely 

of  our  adherence  to  the  other  belief,     similar  arguments  were  pressi  'I  upon 
this  court  with  regard  to  vaccination,  but  they  did  not  prevail.     On  the  con- 
ce  that  vaccination  was  deleterious  was  held  properly  to  hare 
been  excluded.    Jacobson  v.  Massachusetts,  191  0.  S.  n.  25  Sup.  Ct 
L.  Ed.  043,  3  Ann.  Cas.  705,  s.  c.  1«  Mass.  'J  I -J.  66  N.  B.  71!".  67  I.,  i: 
See  Otis  v.  Parker,  187  U.  S.  000,  00S,  009,  23  Sup.  rt.  168,  -17  I..  Ed.  32 
328.     Again,  there  may  have  been  other  grounds  fortifying    I 
besides  those  recited  in  the  preamble.     And 

legislation  may  modify  and  restrict  the  uses  of  pro]  ■  iih  the 

Constitution  is  not  a  question  for  pure  abstract  theory  alone.    Tradition  and 
the  habits  of  the  community  count  for  more  than  logic     Since,  as  before,  the 
making  of  Constitutions,  regulation  of  burial  and  prohibition  of  it  in 
spots,  especially   in  crowded   Cities,  have   been   familiar  to  the  V. 
This  Is  shown  sufficiently  by  the  cases  cited  by  the  court  I 
v.  New  York,  7  Cow.  (N.  V.)  585;    Kincaid's  Appeal,  66  Pa.   111.  5  Am.  Rep. 
377;    Sohier  v.  Trinity  Church,  109  Mass.  j,  21;    Carpenter  v.  ' 
C.  A.  122,  158  Fed.  706.     The  plaintiff  must  wait  uulil  there  is  a  ch 
practice,   or   at    least   an   i 

it  can  expect  this  court  to  overthrow  the  rules  that  the  lawmakers  and  the 
court  of  his  own  state  uphold." 

I  See.  also.  Missouri,  K.  &  T.  Ry.  Co.  v.  May,  ante.  p.  81  ' 
and  Ex  parte  Bodges,  87  Cal  162,  164-166,  25  Pac.  277.  27*   (1890),  u 
Works,  J.,  said:    "The  ordinance  requires  tha<  all 

ninety  days,  exterminate  and  destroy  Hi"  ground  squirrels  on  their  res 
lands,  and  thereafter  keep  said  lands  free  and  clear  therefrom.     Th 
be  successfully  done  by  the  free  an  1   ludidous  use  of  pole 
some  other  means,  on  very  small   tracts        land,  but  on  larse  tracts  it  would 
certainly  require  eternal  vigilance,  If  II   could   be  accomplished  at  all, 
after  the  extermination   of  the  intruders  on  his  own  lauds,  one,   o; 
Hall  Const. L. — 29 


450  FUNDAMENTAL    RIGHTS  (Part  2 

CALIFORNIA  REDUCTION  CO.  v.  SANITARY  REDUCTION 
WORKS  (1905)  199  U.  S.  306,  321-323,  26  Sup.  Ct.  100,  50  L.  Ed. 
204,  Mr.  Justice  Harlan  (upholding  a  San  Francisco  ordinance  re- 
quiring all  garbage  and  refuse  to  be  delivered  in  closed  wagons  at  the 
works  of  the  Sanitary  Company,  there  to  be  cremated  at  the  expense 
of  the  person  conveying  it  there.  The  Sanitary  Company  sought  by 
injunction  against  householders  and  a  rival  reduction  works  to  com- 
pel compliance  with  this  ordinance,  it  having  a  50-year  monopoly  of 
said  cremation  at  20  cents  a  load) : 

"The  defendants  insist  that  the  requirement  that  the  substances 
mentioned  should  be  delivered  at  the  plaintiff's  works  for  cremation  or 
destruction,  at  the  expense  of  the  person,  company,  or  corporation 
conveying  the  same,  was  a  taking  of  private  property  for  public  use 
without  compensation.  We  cannot  assent  to  this  view.  It  is  the  duty, 
primarily,  of  a  person  on  whose  premises  are  garbage  and  refuse  ma- 
terial, to  see  to  it,  by  proper  diligence,  that  no  nuisance  arises  there- 
from which  endangers  the  public  health.  The  householder  may  be 
compelled  to  submit  even  to  an  inspection  of  his  premises,  at  his  own 
expense,  and  forbidden  to  keep  them,  or  allow  them  to  be  kept,  in 
such  condition  as,  to  create  disease.  He  may,  therefore,  have  been  re- 
quired, at  his  own  expense,  to  make,  from  time  to  time,  such  disposi- 
tion of  obnoxious  substances  originating  on  premises  occupied  by  him 
as  would  be  necessary  in  order  to  guard  the  public  health.  If  the 
householder  himself  removed  them  from  his  premises,  it  must  have 
been  at  his  own  expense ;  and  the  scavenger  who  took  to  the  crematory 
the  material  from  the  premises  of  origin,  under  some  arrangement  with 
the  householder,  was,  in  effect,  the  representative,  in  that  matter,  of 
the  householder,  and  was  performing  a  duty  resting  upon  the  house- 
should  come  over  from  the  land  of  his  neighbor,  the  ordinance  would  be  vio- 
lated. The  occupant  of  lands  bordering  on  another  county,  where  no  such 
regulation  prevailed,  and  the  pesky  squirrel  was  allowed  to  propagate  and 
grow  unmolested,  would  be  in  a  most  unfortunate  condition.  Such  au  ordi- 
nance differs  materially  from  laws  requiring  an  occupant  of  lands  to  keep 
them  free  from  noxious  weeds,  or  such  as  make  It  the  duty  of  an  owner  of 
diseased  domestic  animals  to  kill  them,  in  order  to  prevent  the  spread  of  the 
disease.  These  are  matters  over  which  the  property-owner  has  control,  and 
the  requirements  are  reasonable  and  just.  *  *  *  we  know  of  no  law 
which  can  be  held  to  authorize  a  board  of  supervisors  to  enact  such  an  ordi- 
nance, and  we  are  quite  clear  that  it  cannot  be  enforced,  for  the  reason  that 
it  is  unreasonable  and  burdensome  in  the  extreme." 

In  Commonwealth  v.  Tewksbury,  11  Mete.  (Mass.)  55  (1S46),  a  statute  was 
upheld  which,  for  the  protection  of  Boston  harbor  by  the  preservation  of  its 
natural  embankments,  forbade  even  a  riparian  owner  to  remove  stones,  gravel, 
or  sand  from  the  beaches  of  Chelsea.  Shaw,  C.  J.,  said  (page  59):  "A  law 
prohibiting  an  owner  from  removing  the  soil  composing  a  natural  embank- 
ment to  a  valuable,  navigable  stream,  port,  or  harbor,  is  not  such  a  taking, 
such  an  interference  with  the  right  and  title  of  the  owner,  as  to  give  him  a 
constitutional  right  to  compensation,  and  to  render  an  act  unconstitutional 
which  makes  no  such  provision,  but  is  a  just  restraint  of  an  injurious  use  of 
the  property,  which  the  legislature  have  authority  to  make." 

Compare  Dingley  v.  Boston,  post,  p.  (jgfr  note. 


Ch.  10)  DUE   PROCESS  AND   EQUALITY:     POLICE    POWEB  4ol 

holder.  So  that  if  the  requirement  that  the  person  conveying  the  ma- 
terial should  pay  a  given  price  for  having  it  cremated  or  destroyed,  in 
effect  put  some  expense  on  the  householder,  that  gave  him  no  ground 
for  complaint ;  for  it  was  his  duty  to  see  to  the  removal  of  garbage 
and  house  refuse  having  its  origin  on  his  premises.  Still  less  has  the 
licensed  scavenger  a  right  to  complain ;  for  his  right  to  convey  garbage 
and  refuse  through  the  public  streets,  in  covered  wagons,  was  derived 
from  the  public,  and  he  was  subject  to  such  regulations  as  the  consti- 
tuted authorities,  in  their  exercise  of  the  police  power,  might  adopt. 
The  whole  arrangement  may  be  fairly  regarded  as  one  in  the  interest 
and  for  the  convenience  of  the  householder.  He  gets  his  propor- 
tionate benefit  of  any  revenue  derived  by  the  city,  and  at  the  same  time 
shares  the  protection  given  to  him  by  the  community.  Nor  did  the 
destruction  of  garbage  and  refuse,  at  an  approved  crematory,  amount, 
in  itself,  and  under  the  circumstances  disclosed,  to  a  taking  of  private 
property  for  public  use  without  compensation,  even  if  some  of  the  sub- 
stances destroyed  at  the  crematory  had  a  value  for  certain  purposes. 
The  authorities  were  not  bound,  prior  to  the  removal  of  such  sub- 
stances from  the  premises  on  which  they  were  found,  to  separate 
those  that  were  confessedly  worthless  from  those  which  might  be 
utilized.  The  garbage  and  refuse  matter  were  all  together,  on  the 
same  premises,  and,  as  a  whole  or  in  the  mass,  they  constituted  a  nui- 
sance which  the  public  could  abate  or  require  tb  be  abated,  and  to 
the  continuance  of  which  the  community  was  not  bound  to  submit. 
And  when  the  obnoxious  garbage  and  refuse  was  removed  from  the 
place  of  their  origin,  and  put  in  covered  wagons  to  be  carried  away, 
the  municipal  authorities  might  well  have  doubted  whether  the  sub- 
stances that  were  per  se  dangerous  or  worthless  would  be  separated 
from  such  as  could  be  utilized,  and  whether  the  former  would  be  de- 
posited by  the  scavenger  at  some  place  that  would  not  endanger  the 
public  health.  They  might  well  have  thought  that  the  safety  of  the 
community  could  not  be  assured  unless  the  entire  mass  of  garbage  and 
refuse  constituting  the  nuisance,  from  which  the  danger  came,  was 
carried  to  a  crematory,  where  it  could  be  promptly  destroyed  by  fire, 
and  thus  minimize  the  danger  to  the  public  health."  l 

»  Accord:  Slaughter  House  Cases,  16  Wall.  36,  -1  U  04  BM  0873)  (monopo- 
ly of  keeping  slaughter  houses  In  New  Orleans):    Gardner  v.    Mioln 
U.  S.  325,  26  Sup.  Ct.  106,  50  L.  Ed.  212  (1905)  (garbage  collect! 
See,  also,  North  American  Cold  Storage  Co.  v.  Chicago,  211   tT.  S.  806,  320, 
;-l.   29  Sup.  Ct.  101,  53  L.   Ed.  195,   1">  Ann.  Cae.  276   (1908)  (destruction  of 
unwholesome  food  having  some  value  for  other  purposes);    SenteU   v.   New 
Orleans  &  C.  R.  Co.,  166  1'.  S.  698,  17  Sup.  Ct  693,  41  L.  Ed.  1169  (18! 
assessed  dogs  deprived  of  protection  of  law);    Surocoo  v.  Geary,  ::  CaL  60,  58 
Am.  Dee.  365  (1S53)  (destruction  of  movables,  otherwise  rescoable,  to  check 
tire);    Bowditch  v.  Boston,  101  U.  S.  16,  25  L  Ed.  um)  (1880)  (same). 


452  fundamental  RiGiiTS  (Part  2 


MILLER  v.  HORTON. 

(Supreme  Judicial    Court  of  Massachusetts,   1S91.     152  Mass.  540,  26  N.   E. 
100,  10  L.  R.  A.  116,  23  Am.  St.  Rep.  850:) 

[Bill  of  exceptions.  A  board  of  cattle  commissioners  were  au- 
thorized by  statute  (section  13)  to  condemn  and  kill  any  animals  in- 
fected with  glanders.  Under  their  authority  plaintiff's  horse  was 
examined,  decided  to  have  glanders,  and  was  killed  by  defendants, 
members  of  the  Rehoboth  board  of  health.  For  this  plaintiff  sued 
in  tort  and  established  the  fact  that  his  horse  had  neither  glanders 
nor  any  contagious  disease.  From  a  judgment  for  defendant,  plain- 
tiff alleged  exceptions.] 

Holmes,  J.  *  *  *  The  main  ground  for  reading  into  the  stat- 
ute an  intent  to  make  the  commissioners'  order  an  absolute  protection 
is  that  there  is  no  provision  for  compensation  to  the  owner  in  this 
class  of  cases,  and,  therefore,  unless  the  order  is  a  protection,  those 
who  carry  it  out  will  do  so  at  their  peril.  Such  a  construction,  when 
once  known,  would  be  apt  to  destroy  the  efficiency  of  the  clause,  as 
few  people  could  be  found  to  carry  out  orders  on  these  terms.    *    *    * 

It  may  be  said,  suppose  that  the  decision  of  the  board  is  not  con- 
clusive that  the  plaintiff's  horse  had  the  glanders,  still  the  legislature 
may  consider  that  self-protection  requires  the  immediate  killing  of  all' 
horses  which  a  competent  board  deem  infected,  whether  they  are  so 
or  not,  and,  if  so,  the  innocent  horses  that  are  killed  are  a  sacrifice 
to  necessary  self-protection,  and  need  not  be  paid  for. 

In  Train  v.  Disinfecting  Co.,  144  Mass.  523,  11  N.  E.  929,  59  Am. 
Rep.  113  it  was  held  that  all  imported  rags  might  be  required  to  be 
put  through  a  disinfecting  process  at  the  expense  of  the  owner.  Of 
course,  the  order  did  not  mean  that  the  legislature  or  board  of  health 
declared  all  imported  rags  to  be  infected,  but  simply  that  the  danger 
was  too  great  to  risk  an  attempt  at  discrimination.  If  the  legislature 
could  throw  the  burden  on  owners  of  innocent  rags  in  that  case,  why 
could  it  not  throw  the  burden  on  the  owners  of  innocent  horses  in 
this?  If  it  could  order  all  rags  to  be  disinfected,  why  might  it  not 
have  ordered  such  rags  to  be  disinfected  as  a  board  of  three  should 
determine  summarily,  and  without  notice  or  appeal?  The  latter  pro- 
vision would  have  been  more  favorable  to  owners,  as  they  would  have 
had  a  chance  at  least  of  escaping  the  burden,  and  it  would  stand  on 
the  same  ground  as  the  severer  law. 

The  answer,  or  a  part  of  it,  is  this:  Whether  the  motives  of  the 
legislature  are  the  same  or  not  in  the  two  cases  supposed,  it  declares 
different  things  to  be  dangerous  and  nuisances  unless  disinfected.  In 
the  one,  it  declares  all  imported  rags  to  be  so ;  in  the  other,  only  all 
infected  rags.  Within  limits,  it  may  thus  enlarge  or  diminish  the 
number  of  things  to  be  deemed  nuisances  by  the  law,  and  courts  can- 
not  inquire  why  it  includes  certain  property,  and   whether   the  mo- 


Ch.  10)  DUE   PBQCESS   AND    BQOALITI:     POLICE    r  453 

tive  was  to  avoid  an  investigation.  But  wherever  it  draws  the  line, 
an  owner  has  a  right  to  a  hearing  on  the  question  whether  his  prop- 
erty falls  within  it,  and  this  right  is  not  destroyed  by  the  fact  that 
the  line  might  have  been  drawn  so  differently  as  unquestionably  to 
include  that  property.  Thus,  in  the  first  case,  the  owner  has  a  right 
to  try  the  question  whether  his  rags  were  imported;  in  the  S( 
whether  they  were  infected.  His  right  is  no  more  met  in  the  second 
case  by  the  fact  that  the  legislature  might  have  made  the  inquiry  im- 
material by  requiring  all  imported  rags  to  be  disinfected,  than  it 
would  be  in  the  first  by  the  suggestion  that  possibly  the  legislature 
might  require  all  rags  to  be  put  through  the  same  process  whether 
imported  or  not.  But  if  the  property  is  admitted  to  fall  within  the 
line,  there  is  nothing  to  try,  provided  the  line  drawn  is  a  valid  one 
under  the  police  power.  All  that  Train  v.  Disinfecting  Co.  decided 
was  that  the  line  there  considered  was  a  valid  one. 

Still  it  may  be  ask,ed,  if  self-protection  required  the  act,  why  should 
not  the  owner  bear  the  loss?  It  may  be  answered  that  self-protection 
does  not  require  all  that  is  believed  to  be  necessary  to  that  end,  nor 
even  all  that  reasonably  is  believed  to  be  necessary  to  that  end.  It  only 
requires  what  is  actually  necessary.  It  would  seem  doubtful  at  least 
whether  actual  necessity  ought  not  to  be  the  limit  when  the  question 
arises  under  the  constitution  between  the  public  and  an  individual. 
Such  seems  to  be  the  law  as  between  private  parties  in  this  common- 
wealth in  the  case  of  fires,  as  we  have  seen.  It  could  not  be  assumed 
as  a  general  principle  without  discussion  that  even  necessity  would 
exonerate  a  party  from  civil  liability  for  a  loss  inflicted  knowingly 
upon  an  innocent  person  who  neither  by  his  person  nor  by  his  prop- 
erty threatens  any  harm  to  the  defendant.  It  has  been  thought  by 
great  lawyers  that  a  man  cannot  shift  his  misfortunes  upon  his  neigh- 
bor's shoulders  in  that  way  when  it  is  a  question  of  damages,  al- 
though his  act  may  be  one  for  which  he  would  not  be  punished.  Gil- 
bert v.  Stone,  Aleyn,  35.  S.  C.  Style,  72 :  Scott  v.  Shepherd.  2  W 
Bl.  892,  896.  See  Fairbanks  v.  Snow,  145  Mass.  153,  155,  13  N.  E. 
596,  1  Am.  St.  Rep.  446.  Upon  this  we  express  no  opinion.  It  is 
enough  to  say  that  in  this  case  actual  necessity  required  the  destruc- 
tion only  of  infected  horses,  and  that  was  all  that  the  legislature  pur- 
ported to  authorize. 

Again,  there  is  a  pretty  important   difference  of  degree,   at  least, 
(Rideout   v.    Knox,    14S    Mass.    368.   372,    19   N.   E.   390,   2   L.    R 
A.  81,  12  Am.  St.  Rep.  560)  between  regulating  the  precautions  to 
be  taken  in  keeping  property,  especially  property  sought  to  be  1 
into  the  state,  and  ordering  its  destruction.     We  cannot  admit   that 
the  legislature   has   an   unlimited    right   to   destroy   property    \ 
compensation,  on  the  ground  that  destruction  is  not  an  appro; 
to  public  use  within  article  10  of  the  declaration  of  rights.     When  a 
healthy  horse  is  killed  by  a  public  officer,  acting  under  a  general  stat- 
ute, for  fear  that  it  should  spread  disease,  the  horse  certainly  would 


454  FUNDAMENTAL    RIGHTS  (Part  2 

seem  to  be  taken  for  public  use  as  truly  as  if  it  were  seized  to  drag 
an  artillery  wagon.  The  public  equally  appropriate  it,  whatever  they 
do  with  it  afterwards.  Certainly  the  legislature  could  not  declare  all 
cattle  to  be  nuisances,  and  order  them  to  be  killed  without  compensa- 
tion. Watertown  v.  Mayo,  109  Mass.  315,  319,  12  Am.  Rep.  694; 
In  re  Jacobs,  98  N.  Y.  98,  109,  50  Am.  Rep.  636.  It  does  not  attempt 
to  do  so.  As  we  have  said,  it  only  declares  certain  diseased  animals 
to  be  nuisances.  And  even  if  we  assume  that  it  could  authorize  some 
trifling  amount  of  innocent  property  to  be  destroyed  as  a  necessary 
means  to  the  abatement  of  a  nuisance,  still,  if  in  this  section  13  it 
had  added  in  terms  that  such  healthy  animals  as  should  be  killed  by 
mistake  for  diseased  ones  should  not  be  paid  for,  we  should  deem 
it  a  serious  question  whether  such  a  provision  could  be  upheld.  See, 
further,  Hutton  v.  Camden,  39  N.  J.  Law,  122,  23  Am.  Rep.  203; 
Hale  v.  Lawrence,  21  N.  J.  Law,  714,  47  Am.  Dec.  190;  Grant  v.  U. 
S.,  1  Ct.  CI.  41;  Wiggins  v.  U.  S.,  3  Ct.  CI.  412;  Mitchell  v.  Har- 
mony, 13  How.  115,  134,  14  L.  Ed.  75. 

For  these  reasons,  the  literal,  and,  as  we  think,  the  true,  construc- 
tion of  section  13  seems  to  us  the  only  safe  one  to  adopt,  and  ac- 
cordingly we  are  of  opinion  that  the  authority  and  jurisdiction  of  the 
commissioners  to  condemn  the  plaintiff's  horse  under  section  13  was 
conditional  upon  its  actually  having  the  glanders.1  If  this  be  so,  their 
order  would  not  protect  the  defendants  in  a  case  where  the  commis- 
sioners acted  outside  their  jurisdiction.     *     *     * 

Exceptions  sustained.2 

[Devens,  J.,'  gave  a  dissenting  opinion,  concurred  in  by  Allen 
and  Knowlton,  JJ.] 


DENT  v.  WEST  VIRGINIA. 

(Supreme  Court  of  United  States,  1889.     129  U.  S.  114,  8  Sup.  Ct.  931,  32  L. 
Ed.  623.) 

[Error  to  the  Supreme  Court  of  West  Virginia.  A  statute  of  1882 
made  it  a  misdemeanor  to  practice  medicine  in  the  state  unless  the 
practitioner  obtained  a  certificate  from  the  state  board  of  health  that 
he  was  a  graduate  of  a  reputable  medical  college,  or  upon  examina- 
tion by  this  board  was  found  qualified  to  practice  medicine,  or  had 
practiced  medicine  continuously  in  the  state  for  ten  years  prior  to 
March  8,  1881.  Dent  had  practiced  in  the  state  continuous!/  from 
1876,  and  did  not  comply  with  any  of  the  above  alternative  qualifica- 
tions.   His  conviction  in  the  circuit  court  for  a  violation  of  the  stat- 

i  See  the  quotation  from  Huddart  &  Co.  v.  Moorehead,  ante,  pp.  75,  76,  note. 

=  Accord :  Lowe  v.  Conroy,  120  Wis.  151,  97  N.  W.  942,  66  L.  R.  A.  907.  102 
Am.  St.  Rep.  983,  1  Ann.  Cas.  341  (1904)  (cases).  Compare  Raymond  v.  Fish, 
51  Conn.  80,  60  Am.  Rep.  3  (1883). 


Ch.  10)  DUE   PROCESS  AND   EQUALITY  :     POLICE   POWER  43.") 

ute  in  1882  was  affirmed  by  the  state  Supreme  Court.  He  alleged 
that  the  statute  violated  the  fourteenth  amendment,  in  depriving  him 
without  due  process  of  law  of  a  vested  right  to  practice  his  profes- 
sion.] 

Mr.  Justice  Field.  *  *  *  It  is  undoubtedly  the  right  of  every 
citizen  of  the  United  States  to  follow  any  lawful  calling,  business,  or 
profession  he  may  choose,  subject  only  to  such  restrictions  as  are  im- 
posed upon  all  persons  of  like  age,  sex,  and  condition.  This  right 
may  in  many  respects  be  considered  as  a  distinguishing  feature  of 
our  republican  institutions.  Here  all  vocations  are  open  to  every 
one  on  like  conditions.  All  may  be  pursued  as  sources  of  livelihood, 
some  requiring  years  of  study  and  great  learning  for  their  successful 
prosecution.  The  interest,  or,  as  it  is  sometimes  termed,  the  "estate." 
acquired  in  them — that  is,  the  right  to  continue  their  prosecution — is 
often  of  great  value  to  the  possessors,  and  cannot  be  arbitrarily  taken 
from  them,  any  more  than  their  real  or  personal  property  can  be  thus 
taken.  But  there  is  no  arbitrary  deprivation  of  such  right  where  its 
exercise  is  not  permitted  because  of  a  failure  to  comply  with  condi- 
tions imposed  by  the  state  for  the  protection  of  society.  The  power 
of  the  state  to  provide  for  the  general  welfare  of  its  people  authorizes 
it  to  prescribe  all  such  regulations  as  in  its  judgment  will  secure  or 
tend  to  secure  them  against  the  consequences  of  ignorance  and  in- 
capacity, as  well  as  of  deception  and  fraud.  As  one  means  to  this 
end  it  has  been  the  practice  of  different  states,  from  time  immemorial, 
to  exact  in  many  pursuits  a  certain  degree  of  skill  and  learning  upon 
which  the  community  may  confidently  rely;  their  possession  being 
generally  ascertained  upon  an  examination  of  parties  by  competent 
persons,  or  inferred  from  a  certificate  to  them  in  the  form  of  a  di- 
ploma or  license  from  an  institution  established  for  instruction  on  the 
subjects,  scientific  and  otherwise,  with  which  such  pursuits  have  to 
deal.  The  nature  and  extent  of  the  qualifications  required  must  de- 
pend primarily  upon  the  judgment  of  the  state  as  to  their  necessity. 
If  they  are  appropriate  to  the  calling  or  profession,  and  attainable  by 
reasonable  study  or  application,  no  objection  to  their  validity  can  be 
raised  because  of  their  stringency  or  difficulty.  It  is  only  when  they 
have  no  relation  to  such  calling  or  profession,  or  are  unattainable  by 
such  reasonable  study  and  application,  that  they  can  operate  to  de- 
prive one  of  his  right  to  pursue  a  lawful  vocation. 

Few  professions  require  more  careful  preparation  by  one  who  seeks 
to  enter  it  than  that  of  medicine.  It  has  to  deal  with  all  those  subtle 
and  mysterious  influences  upon  which  health  and  life  depend,  and 
requires  not  only  a  knowledge  of  the  properties  of  vegetable  and  min- 
eral substances,  but  of  the  human  body  in  all  its  complicated  parts. 
and  their  relation  to  each  other,  as  well  as  their  influence  upon  the 
mind.  The  physician  must  be  able  to  detect  readily  the  presence  of 
disease,  and  prescribe  appropriate  remedies  for  its  removal.  Every 
one  may  have  occasion  to  consult   him.   but   comparatively   few   can 


456  FUNDAMENTAL    RIGHTS  (Part  2 

judge  of  the  qualifications  of  learning  and  skill  which  he  possesses. 
Reliance  must  be  placed  upon  the  assurance  given  by  his  license,  is- 
sued by  an  authority  competent  to  judge  in  that  respect,  that  he  pos- 
sesses the  requisite  qualifications.  Due  consideration,  therefore,  for 
the  protection  of  society  may  well  induce  the  state  to  exclude  from 
practice  those  who  have  not  such  a  license,  or  who  are  found  upon 
examination  not  to  be  fully  qualified.  The  same  reasons  which  con- 
trol in  imposing  conditions,  upon  compliance  with  which  the  physician 
is  allowed  to  practice  in  the  first  instance,  may  call  for  further  con- 
ditions as  new  modes  of  treating  disease  are  discovered,  or  a  more 
thorough  acquaintance  is  obtained  of  the  remedial  properties  of 
vegetable  and  mineral  substances,  or  a  more  accurate  knowledge  is 
acquired  of  the  human  system  and  of  the  agencies  by  which  it  is  af- 
fected. It  would  not  be  deemed  a  matter  for  serious  discussion  that 
a  knowledge  of  the  new  acquisitions  of  the  profession,  as  it  from 
time  to  time  advances  in  its  attainments  for  the  relief  of  the  sick  and 
suffering,  should  be  required  for  continuance  in  its  practice,  but  for 
the  earnestness  with  which  the  plaintiff  in  error  insists  that  by  being 
compelled  to  obtain  the  certificate  required,  and  prevented  from  con- 
tinuing in  his  practice  without  it,  he  is  deprived  of  his  right  and  es- 
tate in  his  profession  without  due  process  of  law.  We  perceive  noth- 
ing in  the  statute  which  indicates  an  intention  of  the  legislature  to 
deprive  one  of  any  of  his  rights.  No  one  has  a  right  to  practice  medi- 
cine without  having  the  necessary  qualifications  of  learning  and  skill ; 
and  the  statute  only  requires  that  whoever  assumes,  by  offering  to 
the  community  his  services  as  a  physician,  that  he  possesses  such 
learning  and  skill,  shall  present  evidence  of  it  by  a  certificate  or  li- 
cense from  a  body  designated  by  the  state  as  competent  to  judge  of 
his  qualifications.     *     *     *  1 

There  is  nothing  of  an  arbitrary  character  in  the  provisions  of  the 
statute  in  question.  It  applies  to  all  physicians,  except  those  who 
may  be  called  for  a  special  case  from  another  state.  It  imposes  no 
conditions  which  cannot  be  readily  met ;  and  it  is  made  enforceable 
in  the  mode  usual  in  kindred  matters, — that  is,  by  regular  proceedings 
adapted  to  the  case.  It  authorizes  an  examination  of  the  applicant 
by  the  board  of  health  as  to  his  qualifications  when  he  has  no  evidence 
of  them  in  the  diploma  of  a  reputable  medical  college  in  the  school  of 
medicine  to  which  he  belongs,  or  has  not  practiced  in  the  state  a  des- 
ignated period  before  March,  1881.  If,  in  the  proceedings  under  the 
statute,  there  should  be  any  unfair  or  unjust  action  on  the  part  of  the 
board  in  refusing  him  a  certificate,  we  doubt  not  that  a  remedy  would 
be  found  in  the  courts  of  the  state.     But  no  such  imputation  can  be 

i  Accord:  Hawker  v.  New  York,  170  U.  S.  1S9.  18  Sup.  Ct,  573,  42  L.  Ed. 
1002  (1898)  (requirement  of  good  character) ;  Collins  v.  Texas,  223  U.  S.  2SS, 
32  Sup.  Ct.  2S6,  56  L.  Ed.  439  (1912)  (appropriate  scientific  training  required 
for  osteopaths). 


Ch.  10)  DUE   PROCESS   AND    KyLAU'lV;     POLICE   POWER  loV 

made,  for  the  plaintiff  in   error  did  not  submit  himself  to  the  ex- 
amination of  the  board  after  it  had  decided  that  the  diploma  he  pre- 
sented was   insufficient.     *     *     * 
Judgment  affirmed.* 


WEED  v.   BERGH. 

(Supreme  Court  of  Wisconsin,  1010.    141  Wis.  5C0,  124  N.  W.  G64.) 

[Appeal  from  Waupaca  county  circuit  court.  A  Wisconsin  statute 
forbade  any  person  to  conduct  a  banking  business  in  the  state  except 
in  corporate  form,  and  gave  three  months  for  other  existing  banks 
to  become  incorporated  under  state  or  national  laws.  Plaintiffs,  a 
private  banking  partnership,  sought  to  enjoin  the  banking  commission- 
er and  district  attorney  from  enforcing  this  law  against  them,  and 
a  demurrer  to  their  complaint  was  sustained.] 

-  "We  cannot  close  our  eyes  to  the  fact  that  legislation  of  this  kind  is  on 
the  increase.  Like  begets  like,  and  every  legislative  session  brings  forth  some 
new  act  in  the  interest  of  some  new  trade  on     Tin-  doctor,   the 

lawyer,  the  druggist,  the  dentist,  the  barber,  the  horses! r.  and  the  plumber 

have  already  received  favorable  consideration  at  the  hands  of  our  Legislature, 
and  the  end  is  not  yet,  for  the  nurse  and  the  undertaker  are  knocking  at  the 
door.  It  will  not  do  to  say  that  any  occupation  which  may  remotely  affect 
the  public  health  is  subject  to  this  kind  of  legislation  and  control.  Our  health, 
our  comfort,  and  our  well-being  are  materially  affected  by  all  of  our  sur- 
roundings— by  (he  houses  we  live  in.  the  clothes  we  wear,   and  the  f 1  we 

eat.     The  safety  of  the  traveling  public  depends  in  no  small  degr n  tin- 
skill  and  capacity  of  the  section  crews  that  build  and  repair  our  ralln 
are  we  on  this  account  to  add  the  architect,  the  carpenter,   the  tailor,  the 
shoemaker,  tliose  who  produce  and  prepare  our  food,  and  all   the  rest  to  the 
ever-growing  list?     If  so,  it  will  be  but  a  short  time  before  a  man  cannot 
engage  in  honest  toll  to  earn  his  dally  bread  without  first  purchasing  a 
or  permit  from  some  board  or  com  mission.     The  public  health  Is  entitled  to 
consideration  at  the  hands  of  the  legislative  department  of  the  government, 
but  It  must  be  remembered  that  liberty  does  not  occupy  a  secondary  i 
our  fundamental   law.     Under  some  of  the  acts  to   which   we  have   referred 
members  of  the  board  of  health  form  part  of  the  examining  board,  but   our 
act  has  not  even  this  saving  grace.    By  its  terms  two  master  plumbers  and  one 
journeyman  plumber  are  constituted   the  guardians  of  the  public  health  and 
welfare.    We  are  not  permitted  to  Inquire  into  the  motive  of  the  Legislature, 
and  yet,  why  should  a  court  blindly  declare  that  the  public  health  Is  Involved, 
when  all  the  rest  of  mankind  know  full  well  that  the  control  of  the  plumbing 
business  by    the  board  and  its  licensees  is  the  sole  end  in  view.     We  are  satis 
tied  that  the  act  has  no  such  relation  to  the  public  health  as  will  sustain  It  as 
a  police  or  sanitary  measure,  and  that  its  interference  with  the  liberty  of  the 
citizen  brings  it  In  direct  conflict  with  the  Constitution  of  the  Tinted  - 
— Uudkiu,  J.,  in  State  ex  rel.  Kieliev  v.  Smith.   12  Wash.  237,  248,  249,  M  Pai 
851,  854  (5  L.  K.  A.   [N.  S.]  674,  114  Am.  St.  Rep.  114.  7  Ann    «' 
(collecting  cases),  holding  invalid  an  act  requiring  journeyman  plumbers  to  be 
examined  and  licensed  by  a  state  board. 

See.  also,  Bessette  v.  People,  103  111.  334,  62  N    E.  215,  56  L.  K.  A    R 
(horseshoeing);   Douglas  v.  People,  226  111.  536,  80  N.  E.  341,  8  L.  R.  A.  (N.  8.) 
1116,  110  Am.  St.   Rep,    162  (1907)   (P  -    Wyeth  v.  Hoard  of  Health  of 

City  of  Cambridge,  200  Mass.  474,  B6  N,  E.  tvjr,.  23  L.  it.  A.  (N.  S  I  i  it.  128 
Am.  St.  Rep.  439  (1009)  (undertaking);    Moler  v.  Whisnian,  243  Mo 
S.  W.  985,  40  L.  R.  A.  (N.  S.)  629  (1912)  (bartering). 


458  FUNDAMENTAL    RIGHTS  (Part  2 

Winslow,  C.  J.  *  *  *  The  plaintiffs  claim  that  the  act  of  1909 
is  unconstitutional  on  two  general  grounds:  First,  because  every 
citizen  has  a  common-law  right  to  transact  a  banking  business,  and 
the  law  in  question  amounts  to  a  prohibition  of  that  right;  second, 
because  the  law  in  question  fixes  so  short  a  time  within  which  the 
plaintiffs  must  convert  their  private  institution  into  an  incorporated 
institution  that  it  cannot  be  obeyed  without  a  ruinous  sacrifice  of  prop- 
erty amounting  to  practical  confiscation. 

1.  There  are  some  fundamental  propositions  so  well  settled  that  it  is 
only  necessary  to  state  them.  Among  these  are  the  following :  First, 
banking  is  a  common-law  right  pertaining  equally  to  every  member 
of  the  community;  second,  being  a  common-law  right,  it  cannot  be 
prohibited  under  a  Constitution  like  ours,  which  recognizes  the  right 
and  grants  power  to  the  Legislature  to  regulate  and  supervise  it;  third, 
under  such  a  Constitution  as  ours,  banking  may  be  regulated  so  far  as 
may  be  reasonably  necessary  to  secure  the  public  welfare  and  safety, 
but  it  must  be  true  regulation,  not  prohibition  under  the  guise  of  regu- 
lation.    1  Morse  on  Banks  and  Banking  (4th  Ed.)  §  13. 

With  these  principles  in  mind,  it  seems  evident  that  the  ultimate 
question  under  this  head  is  whether  the  requirement  that  all  who  wish 
to  enter  into  the  business  should  incorporate  is  in  fact  regulation  or 
prohibition  masquerading  as  regulation.  The  question  is  not  whether 
it  be  the  wisest  form  of  regulation,  or  whether  it  be  a  form  which 
commends  itself  to  the  judgment  as  ideal,  but  whether  it  be  in  fact  a 
bona  fide  form  of  regulation  with  some  reasonable  adaptation  to  meet 
and  overcome  any  evils  or  dangers  to  the  public  which  may  lurk  in 
unrestrained  exercise  of  banking  rights  by  individuals.  We  think  it 
is.  If  it  should  be  granted  that  individual  bankers  may  be  successfully 
subjected  to  all  the  provisions  as  to  visitation,  inspection,  examination, 
and  the  making  of  reports  to  the  same  extent  as  corporations,  it  still 
must  be  conceded  that  there  are  at  least  two  well-defined  dangers  to  the 
public  which  are  and  must  be  present  in  private  banking  which  are 
eliminated  in  corporate  banking.  The  first  of  these  is  the  danger  that 
the  private  banker,  by  engaging  in  outside  business  ventures,  may  sub- 
ject his  banking  assets  to  the  claims  of  business  creditors,  and  thus 
greatly  prejudice,  if  not  destroy,  the  remedies  of  bank  depositors,  and 
the  second  is  the  danger  and  inconvenience  which  is  likely  to  result 
when  a  private  banker  dies  and  the  business  has  to  be  temporarily 
suspended  for  the  purpose  of  probating  the  estate,  involving  perhaps 
destruction  of  public  confidence  and  a  run  on  the  institution. 

Both  of  these  dangers  are  quite  real  and  serious,  and  both  are  quite 
effectually  eliminated  in  the  case  of  a  corporation  whose  business  en- 
terprises are  strictly  limited  to  banking,  and  which  does  not  die.  It 
will  not  avail  to  say  that  possibly  remedies  might  be  devised  to  meet 
these  inherent  dangers  arising  in  individual  banking  by  other  forms  of 
regulation,  though  we  are  inclined  to  think  that  this  would  be  very 
difficult  of  accomplishment  without  overstepping  some  of  the  consti- 


Ch.  10)  DDE   PROCESS  AND   EQUALITY:     POLICE   POWER  4"i9 

tutional  guarantees  of  rights  to  the  citizens.  If,  as  matter  of  fact,  the 
requirement  of  incorporation  is  a  form  of  regulation  reasonably  cal- 
n  la  led  to  meet  and  remedy  these  difficulties,  though  not  in  the  wisest 
way,  it  must  be  sustained  as  an  exercise  of  the  police  power.  We 
have  been  referred  to  but  one  case  which  holds  the  contrary  doctrine, 
viz.,  State  v.  Scougal,  3  S.  D.  55,  51  N.  W.  858,  15  L.  R.  A.  477,  44 
Am.  St.  Rep.  756;  which,  indeed,  holds  that  an  act  requiring  incor- 
poration as  a  condition  of  doing  banking  is  unconstitutional.  The 
discussion  of  the  question  there  is  long  and  learned  *  but  not  con- 
vincing to  us.  It  is  to  be  noted,  further,  that  the  Constitution  of 
South  Dakota  contains  an  unusual  provision  which  figures  largely  in 
the  result.  This  provision  is  to  the  effect  that  no  law  shall  grant  to 
any  citizen,  class  of  citizens,  or  corporations,  privileges  or  immunities 
which  on  the  same  terms  shall  not  equally  belong  to  all  citizens  or  cor- 
porations. The  weight  of  decision  as  well  as  text-book  authority  is 
the  other  way,  however.  1  Morse  on  Eanks  &  Banking  (4th  Ed.)  § 
13;  5  Cyc.  433;  Boone  on  Banking,  §  10;  State  v.  Woodmansee,  1 
N.  D.  246,  46  N.  W.  971,  11  L.  R.  A.  420;  Myers  v.  Manhattan  Bank. 
20  Ohio,  283. 

The  objection  that  the  law  absolutely  prohibits  an  individual  banker 
from  doing  business,  and  hence  cannot  be  considered  as  valid  regula- 
tion, is  plausible,  but  not  convincing.  Many  police  regulations  have 
the  effect  of  prohibiting  a  business  unless  certain  conditions  are  first 
complied  with.  The  Legislature  says:  "If  you  wish  to  engage  in  this 
quasi  public  business  of  banking,  you  must  first  secure  a  corporate 
charter."  It  does  not  say,  "You  cannot  go  into  it,"  but,  "You  must 
go  into  it  in  a  certain  way  which  is  deemed  the  safest  for  the  public." 
The  obtaining  of  a  bank  charter  is  made  by  the  act  practically  a  mat- 
ter of  course.  Three  adult  residents  of  the  state  may  at  any  time 
associate  together,  execute  the  required  articles  and  file  them,  and  the 
corporation  is  formed.  The  danger  that  any  citizen  who  wishes  to 
go  into  the  banking  business  will  be  unable  to  find  two  other  adult 
residents  who  will  be  willing  to  join  in  executing  the  written  articles 
of  incorporation  is  so  small  as  to  be  negligible.  People  can  do  banking 
as  before,  except  that  they  must  do  it  by  means  of  a  corporate  organi- 
zation. This  is  regulation  not  prohibition.  Commonwealth  v.  Vroo- 
rrian,  164  Pa.  306,  30  Atl.  217,  25  L.  R.  A.  250.  44  Am.  St.  Rep.  603; 
People  v.  Loew,  19  Misc.  Rep.  248,  44  N.  Y.  Supp.  42.    *    ♦    * 

[The  second  objection  was  held  to  be  groundless  in  fact.] 

Order  affirmed.* 

i  This  opinion  Is  worth  reading. 

2  Accord:   Noble  State  Bank  v.  Haskell,  post.  p.  .mi  (semble);  Shallenbergei 
v.  First  State  Bank  of  Holstein,  Neb.,  219  D.  S.  lit.  81  Sup.  ft.  189,  55 
117  (1911);   Commonwealth  v.  Vrooman,  164  Pa.  806,  811  820,  80  Atl  217,  26 
L.  R.  A.  250,  44  Am.  St.  Rep.  G0;i  (1894)  (similar  arguments  as  to  lm 
insurance). 

The  states  have  exercised  a  wide  discretion  in  regulating  banking,  Insur- 
ance and  allied  occupations.     See  Banking:   State  v.  RlchcTeek,  107   Ind.  JIT. 


460  FUNDAMENTAL    EIGHTS  (Part  2 


OTIS  and  GASSMAN  v.  PARKER. 

(Supreme  Court  of  United  States,  1903.    187  U.  S.  606,  23  Sup.  Ct  168,  47  L. 
Ed.  323.) 

[Error  to  the  Supreme  Court  of  California.  The  state  Constitution 
made  void  all  contracts  for  the  sale  of  corporate  stock  on  margin  or 
for  future  delivery,  and  authorized  a  recovery  of  any  money  paid  on 
such  contracts.  Parker  sued  defendants,  stockbrokers,  for  margins 
paid  them  on  contracts  to  buy  and  sell  mining  stocks.  It  was  assumed 
that  the  prohibition  included  all  contracts  contemplating  a  bona  fide 
acquisition  of  stock,  as  well  as  gambling  contracts.  A  judgment  in  his 
favor  in  the  superior  court  was  affirmed  by  the  state  Supreme  Court, 
and  this  writ  of  error  was  brought.] 

Mr.  Justice  Holmes.  *  *  *  The  objection  urged  against  the 
provision  in  its  literal  sense  is  that  this  prohibition  of  all  sales  on  mar- 
gin bears  no  reasonable  relation  to  the  evil  sought  to  be  cured,  and 
therefore  falls  within  the  first  section  of  the  fourteenth  amendment. 
It  is  said  that  it  unduly  limits  the  liberty  of  adult  persons  in  making 
contracts  which  concern  only  themselves,  and  cuts  down  the  value  of  a 
class  of  property  that  often  must  be  disposed  of  under  contracts  of  the 
prohibited  kind  if  it  is  to  be  disposed  of  to  advantage,  thus  depriving 
persons  of  liberty  and  property  without  due  process  of  law,  and  that 
it  unjustifiably  discriminates  against  property  of  that  class,  while 
other  familiar  objects  of  speculation,  such  as  cotton  or  grain,  are  not 
touched,  thus  depriving  persons  of  the  equal  protection  of  the  laws. 

It  is  true,  no  doubt,  that  neither  a  state  legislature  nor  a  state 
Constitution  can  interfere  arbitrarily  with  private  business  or  trans- 
actions, and  that  the  mere  fact  that  an  enactment  purports  to  be  for 
the  protection  of  public  safety,  health,  or  morals,  is  not  conclusive 
upon  the  courts.  Mugler  v.  Kansas,  123  U.  S.  623,  661,  8  Sup.  Ct. 
273,  31  L.  Ed.  205,  210;  Lawton  v.  Steele,  152  U.  S.  133,  137,  14  Sup. 
Ct.  499,  38  L.  Ed.  385,  388.  But  general  propositions  do  not  carry  us 
far.  While  the  courts  must  exercise  a  judgment  of  their  own,  it  by  no 
means  is  true  that  every  law  is  void  which  may  seem  to  the  judges 
who  pass  upon  it  excessive,  unsuited  to  its  ostensible  end,  or  based 
upon  conceptions  of  morality  with  which  they  disagree.  Considerable 
latitude  must  be  allowed  for  differences  of  view,  as  well  as  for  possi- 
ble peculiar  conditions  which  this  court  can  know  but  imperfectly, 
if  at  all.  Otherwise  a  Constitution,  instead  of  embodying  only  rela- 
tively fundamental  rules  of  right,  as  generally  understood  by  all  Eng- 

77  N.  E.  1085,  5  L.  R.  A.  (N.  S.)  874,  119  Am.  St  Rep.  491,  10  Ann.  Cas.  899 
I190G),  and  the  cases  in  219  U.  S.  104-139  (1911). 

Insurance:  State  v.  Stone,  118  Mo.  3S8,  24  S.  W.  164,  25  L.  R.  A.  243,  40 
Am.  St  Rep.  388  (1893) ;  State  v.  Aekerman,  51  Ohio  St.  163,  37  N.  E.  S28,  24 
L.  R.  A.  298  (1894);  Lyons  v.  Boston  &  L.  R.  Co.,  1S1  Mass.  551,  64  N.  E. 
404  (1902) ;  Head  Camp  Woodmen  of  the  World  v.  Sloss,  49  Colo.  177,  112 
Pac.  49,  31  L.  R.  A.  (N.  S.)  831  (1910). 


Ch.  10)  DDE   PKOCES3   AND    Kc^l  ALITY !     POLICE    PI  41.1 

lish-speaking  communities,  would  become  the  partisan  of  a  particular 
set  of  ethical  or  economical  opinions,  which  by  no  means  are  held 
semper  ubique  et  ab  omnibus. 

Even  if  the  provision  before  us  should  seem  to  us  not  to  have  been 
justified  by  the  circumstances  locally  existing  in  California  at  the  time 
when  it  was  passed,  it  is  shown  by  its  adoption  to  have  expr. 
deep-seated  conviction  on  the  part  of  the  people  concerned  as  to  what 
that  policy  required.  Such  a  deep-seated  conviction  is  entitled  to 
great  respect.  If  the  state  thinks  that  an  admitted  evil  cannot  be 
prevented  except  by  prohibiting  a  calling  or  transaction  not  in  itself 
necessarily  objectionable,  the  courts  cannot  interfere,  unless,  in  look- 
ing at  the  substance  of  the  matter,  they  can  see  that  it  "is  a  clear, 
unmistakable  infringement  of  rights  secured  by  the  fundamental  law." 
Booth  v.  Illinois,  184  U.  S.  425,  429,  22  Sup.  Ct.  425,  427,  46  L,.  Ed. 
623,  626.  No  court  would  declare  a  usury  law  unconstitutional,  even  if 
every  member  of  it  believed  that  Jeremy  l'.entham  had  said  the  last 
word  on  that  subject,  and  had  shown  for  all  time  that  such  laws  did 
more  harm  than  good.  The  Sunday  laws,  no  doubt,  would  be  sus- 
tained by  a  bench  of  judges,  even  if  every  one  of  them  thou 
superstitious  to  make  any  day  holy.  Or,  to  take  cases  where  opinion 
has  moved  in  the  opposite  direction,  wagers  may  be  declared  illegal 
without  the  aid  of  statute,  or  lotteries  forbidden  by  express  enactment, 
although  at  an  earlier  day  they  were  thought  pardonable  at  least.  The 
case  would  not  be  decided  differently  if  lotteries  had  been  lawful  when 
the  fourteenth  amendment  became  law,  as  indeed  they  were  in 
civilized  states.  See  Ballock  v.  State,  73  Mil.  1,  20  Atl.  184,  8  L.  R.  A. 
671,  25  Am.  St.  Rep.  559. 

We  cannot  say  that  there  might  not  be  conditions  of  public  delirium 
in  which  at  least  a  temporary  prohibition  of  sales  on  margins  would  be 
a  salutary  thing.     Still  less  can  we  say  that  there  might  not  be  con- 
ditions in  which  it  reasonably  might  be  thought  a  salutary  thin  ; 
if  we  disagreed  with  the  opinion.     Of  course,  if  a  man  can  buy  on 
margin  he  can  launch  into  a  much  more  extended  venture  than  where 
he  must  pay  the  whole  price  at  once.    If  he  pays  the  whole  price  he 
gets   the  purchased  article,  whatever  its  worth   may  turn  out  to  be. 
But  if  he  buys  stocks  on  margin  he  may  put  all  his  property  into  the 
venture,  and  being  unable  to  keep  his  margins  good  if  the  stock  market 
goes  down,  a  slight  fall  leaves  him  penniless  with  nothing  to  re: 
his  outlay,  except  that  he  has  had  the  chances  of  a  bet.     Then 
doubt  that  purchases  on  margin  may  be  and  frequently  are  used  as  a 
means  of  gambling  for  a  great  gain  or  a  loss  of  all  one  has.     It 
that  in  California,  when  the  ( 

pie  were  buying  mining  stocks  in  this  way  with  the  result  of  infinite 
disaster.     Cashman  v/Root,  89  Gal.  37s.  382,  383,  26   I 
L.  R.  A.  511,  23  Am.  St.  Rep.  482.    If  at  that  time  the  provision  of  the 
Constitution,  instead  of  being  put  there,  had  been  embodied  in 
porary  act,  probably  no  one  would  have  questioned  it,  and  it 


462  FUNDAMENTAL    RIGHTS  (Part  2 

be  hard  to  take  a  distinction  solely  on  the  ground  of  its  more  perma- 
nent form.  Inserting  the  provision  in  the  Constitution  showed,  as  we 
have  said,  the  conviction  of  the  people  at  large  that  prohibition  was  a 
proper  means  of  stopping  the  evil.  And  as  was  said  with  regard  to 
a  prohibition  of  option  contracts  in  Booth  v.  Illinois,  184  U.  S.  425, 
431,  22  Sup.  Ct.  425,  46  L.  Ed.  623,  627,  we  are  unwilling  to  declare 
the  judgment  to  have  been  wholly  without  foundation.    *    *    * 

Judgment  affirmed.1 

[Brewer  and  Peckham,  JJ.,  dissented.] 


CITY  OF  CHICAGO  v.  NETCHER. 

(Supreme  Court  of  Illinois,  1S99.    183  111.  104,  55  N.  E.  707,  48  L.  R.  A.  261, 
75  Am.  St.  Rep.  93.) 

[Appeal  from  a  judgment  of  the  Cook  county  criminal  court  holding 
invalid  certain  city  regulations  of  department  stores.  Chicago  ordi- 
nances forbade  provisions  to  be  exposed  for  sale  where  dry  goods, 
clothing,  jewelry,  and  drugs  were  sold;  or  for  liquor  to  be  sold  where 
dry  goods,  clothing,  jewelry,  or  hardware  were  kept  for  sale.  Defend- 
ant sold  all  of  these  articles  at  his  department  store  in  Chicago  (the  liq- 
uor being  sold  only  in  sealed  packages  and  not  to  be  drunk  on  the 
premises)  and  was  prosecuted  therefor.] 

Mr.  Chief  Justice  Cartwright.  *  *  *  The  incorporation  act 
relied  upon  confers  upon  cities  organized  under  the  act  the  right  to 
regulate  the  sale  of  provisions,  with  the  object  of  promoting  or  pre- 
serving the  public  health,  where  the  regulation  tends  to  serve  that  pur- 
pose. But  this  ordinance  does  not  regulate  the  business  of  selling  pro- 
visions, nor  prescribe  the  manner  in  which  the  business  shall  be  carried 
on.  It  merely  prohibits  persons  engaged  in  the  business  of  selling  dry 
goods,  clothing,  jewelry,  and  drugs  from  selling  in  their  stores  the  pro- 
visions enumerated  in  the  ordinance.  It  permits  a  person  to  sell  in 
any  place  or  manner,  provided,  only,  that  he  does  not  at  the  same  time 
sell  certain  other  things.  A  dealer  may  sell  provisions  at  the  same 
place  with  hardware,  furniture,  boots  and  shoes,  hats  and  caps,  millin- 
ery, books  and  stationery,  crockery  and  glassware,  carpets,  confection- 
ery, wooden  ware,  wall  paper,  or  any  other  sort  of  merchandise  ex- 
cept dry  goods,  clothing,  jewelry,  and  drugs.    This  is  not  a  regulation, 

i  Accord:  Booth  v.  Illinois,  184  U.  S.  425,  22  Sup.  Ct.  425,  46  L.  Ed.  623 
(1902)  (criminal  prohibition  of  option  contracts  upon  any  commodity). 

Restrictions  on  Power  of  Alienation. — As  to  legislative  control  of  this. 
with  respect  to  various  kinds  of  property,  see  Lemieux  v.  Young,  211  U.  S. 
489,  29  Sup.  Ct.  174,  53  L.  Ed.  295  (1909)  (stock  in  trade  in  bulk):  Mutual 
Loan  Co.  v.  Kartell,  222  U.  S.  236,  32  Sup.  Ct.  74,  56  L.  Ed.  175  (1911)  (assign- 
ment of  wages) ;  Bushnell  v.  Loomis,  234  Mo.  371,  137  S.  W.  257,  36  L.  R,  A. 
(N.  S.)  1029  (1911)  (land,  particularly  homesteads). 

Restrictions  on  Creation  of  Future  Estates  in  Property. — See  Magoun 
v.  111.  Tr.  &  Sav.  Bank,  post,  p.  63^  note  4. 


Ch.  10)  DDE   PROCESS  AND   EQUALITY  :     POLICE   POWER  4C5 

but  a  prohibition,  and  a  purely  arbitrary  one,  which  attempts  to  de- 
prive certain  persons  of  exercising  a  right  which  has  always  been  law- 
ful, and  has  been  heretofore  exercised  throughout  the  state  and  coun- 
try without  question. 

The  ordinance  is  also  an  attempted  interference  by  the  city  with 
rights  guaranteed  to  the  defendant  by  the  Constitutions  of  the  United 
States  and  of  this  state.  The  questions  involved  are  not  new.  They 
have  been  before  this  and  other  courts  throughout  this  country  in  nu- 
merous cases,  and  the  rights  of  the  citizen,  as  against  such  interfer- 
ence, have  been  frequently  defined,  and  uniformly  upheld.  These  Con- 
stitutions insure  to  every  person  liberty,  and  the  protection  of  his  prop- 
erty rights,  and  provide  that  he  shall  not  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law.  The  liberty  of  the  citizen  in- 
cludes the  right  to  acquire  property,  to  own  and  use  it,  to  buy  and  sell 
it.  It  is  a  necessary  incident  to  the  ownership  of  property  that  the 
owner  shall  have  a  right  to  sell  or  barter  it,  and  this  right  is  protected 
by  the  constitution  as  such  an  incident  of  ownership.  When  an  owner 
is  deprived  of  the  right  to  expose  for  sale  and  sell  his  property,  he  is 
deprived  of  property,  within  the  meaning  of  the  constitution,  by  taking 
away  one  of  the  incidents  of  ownership.  Liberty  includes  the  right  to 
pursue  such  honest  calling  or  avocation  as  the  citizen  may  choose,  sub- 
ject only  to  such  restrictions  as  may  be  necessary  for  the  protection 
of  the  public  health,  morals,  safety,  and  welfare.     *     *     * 

It  is  not  claimed  in  the  argument  for  the  city  that  the  selling  of  the 
different  kinds  of  merchandise  mentioned  in  the  ordinance  in  the  same 
building  tends  in  any  way  to  affect  the  safety,  health,  morals,  comfort, 
or  welfare  of  the  public.  No  attempt  is  made  to  suggest  any  grounds 
upon  which  the  ordinance  can  be  justified  as  an  exercise  of  the  police 
power  of  the  city  or  the  state.  It  certainly  cannot  be  contended  that 
there  is  anything  in  the  character  of  dry  goods,  clothing,  jewelry,  and 
drugs  which  renders  it  dangerous  to  the  public,  or  inimical  to  the  gen- 
eral welfare,  that  they  should  be  sold  in  the  same  building  with  provi- 
sions. General  stores  have  always  dealt  in  all  kinds  of  merchandise, 
and  no  one  has  ever  imagined  that  the  comfort,  safety,  or  welfare  of 
the  public  was  in  any  manner  or  to  any  extent  injured  or  prejudiced 
by  them.  Public  health  and  public  comfort  are  in  no  way  affected  by 
selling  the  different  kinds  of  merchandise  enumerated  in  different  de- 
partments of  the  same  building,  and  would  not  be  if  the  same  clerk 
should  sell  them;   nor  would  the  public  v  mfort  be  increas- 

ed by  compelling  a  customer  to  buy  one  kind  of  merchandise  in  one 
store  and  another  in  some  other  store.  In  Meyers  v.  Baker,  120  111. 
567,  12  N.  E.  79,  60  Am.  Rep.  580,  the  act  prohibiting  the  establish- 
ment of  any  tent,  booth,  or  place  of  vending  provisions  or  refreshments 
within  a  certain  distance  of  a  camp  met  i  as  a  police 

regulation  tending  to  prevent  disturbance  or  disorderly  conduct.     But 
this  ordinance  has  no  such  purpose.     It  is  plain  that  its  object 
to  protect  the  health,  morals,  or  safety  of  the  public,  or  to  accomplish 


464  FUNDAMENTAL    RIGUTS  (Part  2 

any  object  falling  within  the  police  power.  It  is  a  mere  attempt  to 
deny  a  property  right  to  a  particular  class  in  the  community,  where  all 
other  members  of  the  community  are  left  to  enjoy  it.  It  is  immaterial 
whether  such  a  denial  is  in  a  statute  or  in  an  ordinance  passed  by  vir- 
tue of  a  statute.     It  is  equally  invalid  in  either  case.     *     *     * 

[After  referring  to  the  power  of  the  state  to  regulate  liquor-selling:] 
This  ordinance,  however,  is  not  an  exercise  of  the  police  power  for 
the  protection  of  the  public  from  the  injurious  effects  of  the  liquor 
business.  It  is  not  aimed  at  the  suppression  of  the  business,  either  in 
certain  localities  or  upon  any  ground  of  police  regulation,  but  is  di- 
rected solely  against  the  sale  by  certain  persons  in  their  places  of  busi- 
ness ;  that  is,  by  those  who  also  sell  dry  goods,  clothing,  jewelry,  or 
hardware.  The  city  of  Chicago  has  not  seen  fit  to  prohibit  the  sale  of 
liquor,  either  generally  or  in  the  district  of  the  city  where  defendant's 
store  is  kept.  It  has  established  its  policy  with  reference  to  that  busi- 
ness, and  defendant  has  complied  with  its  ordinances,  so  as  to  be  en- 
titled to  sell  liquor  in  his  store,  unless  this  ordinance  constitutes  a  valid 
prohibition  against  his  doing  so.  It  is  apparent  that,  if  there  is  any 
evil  in  permitting  a  sealed  bottle  of  liquor  to  be  sold  from  a  store  where 
dry  goods,  clothing,  jewelry,  or  hardware  are  sold  the  same  evils  would 
result  from  the  sale  from  any  other  kind  of  a  store.  The  ordinance 
permits  the  dealer  in  all  kinds  of  merchandise,  except  dry  goods,  cloth- 
ing, jewelry,  and  hardware,  to  sell  liquor  from  his  store,  and  the  city 
cannot  arbitrarily  discriminate  against  the  defendant  without  any  ba- 
sis or  ground  for  the  discrimination.  Special  privileges  are  not  to  be 
granted  to  favored  persons  in  the  liquor  business  any  more  than  in  any 
other  business.  Zanone  v.  Mound  City,  103  111.  552.  *  *  * 
Judgment  affirmed.1 

i  Accord:  Ilauser  v.  North  British  &  Mercantile  Ins.  Co..  206  N.  T.  455,  100 
N.  E.  52,  42  L.  R.  A.  (N.  S.)  1139  (1912)  (attempted  prohibition  of  insurance 
brokerage  to  all  those  not  principally  engaged  in  that  business  or  in  real  es- 
tate). 

For  the  validity  of  anti-trading  stamp  or  premium  legislation,  see  State  ex 
rel.  Simpson  v.  Sperry  &  Hutchinson  Co.,  110  Minn.  378,  126  N.  W.  120,  30  L. 
R.  A.  (N.  S.)  9G6  (1910)  (collecting  cases);  District  of  Columbia  v.  Kraft.  35 
App.  D.  C.  253,  30  L.  R.  A.  (N.  S.)  957  (1910);  Kanne  v.  Segerstiom  Piano  Co., 
118  Minn.  4S3,  137  N.  W.  170,  41  L.  R.  A.  (N.  S.)  1041  (1912). 

The  sale  of  other  goods  may  be  prohibited  in  saloons,  State  v.  Gerhardt,  145 
Ind.  439,  465,  466,  44  N.  E.  469,  33  L.  R.  A.  313  (1896).  As  to  laws  forbidding 
the  use  of  the  national  flag  for  advertising  purposes,  see  Halter  v.  Nebraska, 
205  U.  S.  34,  27  Sup.  Ct.  419,  51  L.  Ed.  696,  10  Ann.  Cas.  525  (1907) ;  Ruhstrat 
v.  People,  1S5  111.  133,  57  N.  E.  41,  49  L.  R.  A.  181,  76  Am.  St.  Rep.  30  (1900). 

In  Columbia  Trust  Co.  v.  Lincoln  Institute  of  Kentucky,  138  Kv.  804,  129  S. 
W.  113,  29  L.  R.  A.  (N.  S.)  53  (1910)  it  was  held  Invalid  to  prohibit  the 
location  of  any  private  industrial  school  in  a  voting  precinct  without  the 
consent  of  a  majority  of  the  voters  therein,  Barker,  C.  J.,  quoting  with 
approval  (13S  Ky.  811,  129  S.  W.  115,  29  L.  R.  A.  [N.  s.}  53):  "The  doctrine  of 
legislative  permission,  as  a  condition  precedent  to  the  conduct  of  any  useful 
or  harmless  business,  is  grossly  repugnant  to  those  obvious  principles  of 
human  right  which  lie  at  the  foundation  of  just  government  among  men." 


Ch.  10)         due  process  and  equality:    police  p<  466 


AIKENS  v.  WISCOl 

(Supreme  Court  of  United  States,   L904>     LBS  D.  S.  ISM   25  Sup    Ct  3    49  L 
Ed.  154.) 

[Error  to  the  Supreme  Court  of  Wisconsin.  Defendants  were  con- 
victed in  the  Milwaukee  municipal  court  of  violating  a  statute  forbid- 
ding two  or  more  persons  to  combine  "for  the  purpose  of  wilfully  or 
maliciously  injuring  another  in  his  reputation,  trade,  business,  or  pro- 
fession, by  any  means  whatever."  As  publishers  of  newspapers  in 
Milwaukee  they  had  combined  to  refuse  advertisements  save  at  an  in- 
creased rate  from  any  person  who  advertised  in  a  competing  newspa- 
per at  a  rate  higher  than  defendants'  regular  rate*.  The  conviction 
was  affirmed  by  the  state  Supreme  Court,  and  this  writ  taken  on  the 
ground  that  the  statute  violated  the  fourteenth  amendment] 

Mr.  Justice  Holmes.  *  *  *  We  interpret  "maliciously  injur- 
ing" to  import  doing  a  harm  malevolently,  for  the  sake  of  the  harm  as 
an  end  in  itself,  and  not  merely  as  a  means  to  some  further  end  legiti- 
mately desired.     *     *     * 

We  come,  then,  to  the  question  whether  there  is  any  constitutional 
objection  to  so  much  of  the  act  as  applies  to  this  case.  It  has  been 
thought  by  other  courts  as  well  as  the  supreme  court  of  Wisconsin  that 
such  a  combination,  followed  by  damage,  would  be  actionable  even  at 
common  law.  It  has  been  considered  that,  prima  facie,  the  intentional 
infliction  of  temporal  damage  is  a  cause  of  action,  which,  as  a  matter 
of  substantive  law,  whatever  may  be  the  form  of  pleading,  requires  a 
justification  if  the  defendant  is  to  escape.  Mogul  S.  S.  Co.  v.  Mc- 
Gregor, L.  R.  23  Q.  B.  Div.  598,  613  [1892]  A.  C.  25,  61  L.  J.  Q.  B. 
N.  S.  295,  66  L.  T.  N.  S.  1,  40  Week.  Rep.  337,  7  Asp.  Mar.  L.  Cas. 
120,  56  J.  P.  101.  If  this  is  the  correct  mode  of  approach,  it  is  obvious 
that  justifications  may  vary  in  extent,  according  to  the  principle  of 
policy  upon  which  they  are  founded,  and  that  while  some — for  in- 
stance, at  common  law,  those  affecting  the  use  of  land — are  absolute 
(Bradford  v.  Pickens,  [1895]  A.  C.  587),  others  may  depend  upon 
the  end  for  which  the  act  is  done.  Moran  v.  Dunphy,  177  Mass.  485, 
487,  59  N.  E.  125,  52  L.  R.  A.  115.  83  Am.  St.  Rep.  289:  Plant  v. 
Woods,  176  Mass.  492,  57  N.  E.  1011.  51  L.  R.  A.  339,  79  Am.  St. 
Rep.  30;  Squires  v.  Wason  Mfg.  Co.,  182  Mass.  137,  140.  141. 
E.  32.  See  cases  cited  in  62  L.  R.  A.  673.  It  is  no  sufficient  answer 
to  this  line  of  thought  that  motives  are  not  actionable,  and  that  the 
standards  of  the  law  are  external.  That  is  true  in  determining  what 
a  man  is  bound  to  foresee,  but  not  necessarily  in  determining  the  extent 
to  which  he  can  justify  harm  which  he  has  foreseen.  Quinn  v.  Leath- 
ern, [1901]  A.  C.  495,' 524,  70  L.  T.  P.  C.  X.  S.  76,  85  L.  T.  X.  S 
50  Week.  Rep.  139,  65  J.  P. 

Whether,  at  common  law,  combinations  would  make  conduct  action- 
able which  would  be  lawful  in  a  single  person,  it  is  unnecessary  to 
Hall  Const.I,. — 30 


466  FUNDAMENTAL    RIGHTS  (Part  2 

consider.  Quinn  v.  Leathern,  [1901]  A.  C.  495,  70  L.  J.  P.  C.  N.  S. 
76,  85  L.  T.  N.  S.  289,  50  Week.  Rep.  139,  65  J.  P.  708.  We  are 
aware,  too,  that  a  prevailing  opinion  in  England  makes  motives  im- 
material, although  it  is  probable  that  in  Allen  v.  Flood,  [1898]  A.  C. 
1,  94,  67  L.  J.  Q.  B.  N.  S.  119,  77  L.  T.  N.  S.  717,  46  Week.  Rep.  258, 
62  J.  P.  595,  the  jury  were  instructed,  as  in  Temperton  v.  Russell, 
[1893]  1  Q.  B.  715,  719,  62  L.  J.  Q.  B.  N.  S.  412,  4  Reports,  376,  69 
L.  T.  N.  S.  78,  41  Week.  Rep.  565,  57  J.  P.  676,  in  such  a  way  that 
their  finding  of  malice  meant  no  more  than  that  the  defendant  had  act- 
ed with  foresight  of  the  harm  which  he  would  inflict,  as  a  means  to  an 
end.  Quinn  v.  Leathern,  [1901]  A.  C.  495,  514.  However  these  things 
may  be,  we  have  said  enough  to  show  that  there  is  no  anomaly  in  a 
statute,  at  least,  which  punishes  a  combination  such  as  is  charged  here. 
It  has  been  held  that  even  the  free  use  of  land  by  a  single  owner  for 
purely  malevolent  purposes  may  be  restricted  constitutionally,  although 
the  only  immediate  injury  is  to  a  neighboring  landowner.  Rideout  v. 
Knox,  148  Mass.  368,  19  N.  E.  390,  2  L.  R.  A.  81,  12  Am.  St.  Rep. 
560.  Whether  this  decision  was  right  or  not,  when  it  comes  to  the 
freedom  of  the  individual,  malicious  mischief  is  a  familiar  and  proper 
subject  for  legislative  repression.  Com.  v.  Walden,  3  Cush.  (Mass.) 
558.  Still  more  are  combinations  for  the  purpose  of  inflicting  it.  It 
would  be  impossible  to  hold  that  the  liberty  to  combine  to  inflict  such 
mischief,  even  upon  such  intangibles  as  business  or  reputation,  was 
among  the  rights  which  the  fourteenth  amendment  was  intended  to 
preserve.  The  statute  was  assumed  to  be  constitutional  in  Arthur  v. 
Oakes,  63  Fed.  310,  325,  326,  11  C.  C.  A.  209,  25  L.  R.  A.  414,  4  In- 
terst.  Com.  R.  744,  24  U.  S.  App.  239. 

But  if  all  these  general  considerations  be  admitted,  it  is  urged,  never- 
theless, that  the  means  intended  to  be  used  by  this  particular  combina- 
tion were  simply  the  abstinence  from  making  contracts ;  that  a  man's 
right  so  to  abstain  cannot  be  infringed  on  the  ground  of  motives ;  and 
further,  that  it  carries  with  it  the  right  to  communicate  that  intent  to 
abstain  to  others,  and  to  abstain  in  common  with  them.  It  is  said  that 
if  the  statute  extends  to  such  a  case  it  must  be  unconstitutional.  The 
fallacy  of  this  argument  lies  in  the  assumption  that  the  statute  stands 
no  better  than  if  directed  against  the  pure  nonfeasance  of  singly  omit- 
ting to  contract.  The  statute  is  directed  against  a  series  of  acts,  and 
acts  of  several, — the  acts  of  combining,  with  intent  to  do  other  acts. 
"The  very  plot  is  an  act  in  itself."  Mulcahy  v.  Queen,  L.  R.  3  H.  L. 
306,  317.  But  an  act  which,  in  itself,  is  merely  a  voluntary  muscular 
contraction,  derives  all  its  character  from  the  consequences  which  will 
follow  it  under  the  circumstances  in  which  it  was  done.  When  the 
acts  consist  of  making  a  combination  calculated  to  cause  temporal  dam- 
age, the  power  to  punish  such  acts,  when  done  maliciously,  cannot  be 
denied  because  they  are  to  be  followed  and  worked  out  by  conduct 
which  might  have  been  lawful  if  not  preceded  by  the  acts.  No  conduct 
has  such  an  absolute  privilege  as  to  justify  all  possible  schemes  of 


Ch.  10)  DUE   PROCESS   AND    EQUALITY:      POLK  B    POWER  4i;7 

which  it  may  be  a  part.  The  most  innocent  and  constitutionally  pro- 
tected of  acts  or  omissions  may  be  made  a  step  in  a  criminal  plot,  and 
if  it  is  a  step  in  a  plot,  neither  its  innocence  nor  the  Constitution  is  suf- 
ficient to  prevent  the  punishment  of  the  plot  by  law. 

It  was  urged  farther  that  to  make  a  right  depend  upon  motives  is 
to  make  it  depend  upon  the  whim  of  a  jury,  and  to  deny  the  right. 
But  it  must  be  assumed  that  the  constitutional  tribunal  docs  its  duty, 
and  finds  facts  only  because  they  are  proved.  The  power  of  the  legis- 
lature to  make  the  fact  of  malice  material  we  think  sufficiently  appears 
from  what  we  already  have  said.     *     *     * 

Judgment  affirmed. 

[White,  J.,  gave  a  short  dissenting  opinion,  based  upon  a  wider 
construction  of  the  statute.] 


GRENADA  LUMBER  CO.  v.  MISSISSIPPI  (1910)  217  U.  S. 
433,  440,  442,  30  Sup.  Ct.  535,  54  L.  Ed.  826.  Mr.  Justice  Lurton 
(  upholding  a  Mississippi  statute  criminally  forbidding  a  combination 
of  retailers  not  to  buy  from  wholesalers  who  sold  directly  to  con- 
sumers) : 

"That  any  one  of  the  persons  engaged  in  the  retail  lumber  business 
might  have  made  a  fixed  rule  of  conduct  not  to  buy  his  stock  from  a 
producer  or  wholesaler  who  should  sell  to  consumers  in  competition 
with  himself  is  plain.  No  law  which  would  infringe  his  freedom  of 
contract  in  that  particular  would  stand.  But  when  the  plainti 
error  combine  and  agree  that  no  one  of  them  will  trade  with  any 
producer  or  wholesaler  who  shall  sell  to  a  consumer  within  the  trade- 
range  of  any  of  them,  quite  another  case  is  presented.  An  act  harm- 
less when  done  by  one  may  become  a  public  wrong  when  done  by 
many,  acting  in  concert,  for  it  then  takes  on  the  form  of  a  conspiracy, 
and  may  be  prohibited  or  punished,  if  the  result  be  hurtful  to  the 
public,  or  to  the  individual  against  whom  the  concerted  action  is  di- 
rected, Callan  v.  Wilson,  127  U.  S.  555,  556,  8  Sup.  Ct.  1301,  32  L. 
Ed.  228. 

"But  the  plaintiffs  in  error  say  that  the  action  which  they  have 
taken  is  purely  defensive,  and  that  they  cannot  maintain  themselves 
as  independent  dealers,  supplying  the  consumer,  if  the  producers  or 
wholesalers  from  whom  they  buy  may  not  be  prevented  from  compet- 
ing with  them  for  the  direct  trade  of  the  consumer. 

"For  the  purpose  of  suppressing  this  competition,  they  have  nol 
stopped  with  an  individual  obligation  to  refrain  from  dealing  with  one 
who  sells  within  his  own  circle,  and  thereby  deprives  him  of  a  DOS 
sible  customer,  but  have  agreed  not  to  deal  with  anyone  who  makes 
sales  to  consumers,  which  sales  might  have  been  made  by  any  one  of 
the  seventy-seven  independent  members  of  the  association.  Thus 
they  have  stripped  themselves  of  all  freedom  of  contract  in  order  to 


4G8  FUNDAMENTAL    RIGHTS  (Part  2 

compel  those  against  whom  they  have  combined  to  elect  between  their 
combined  trade  and  that  of  consumers.  That  such  an  agreement  is 
one  in  restraint  of  trade  is  undeniable,  whatever  the  motive  or  ne- 
cessity which  has  induced  the  compact.  Whether  it  would  be  an  il- 
legal restraint  at  common  law  is  not  now  for  our  determination.  It 
is  an  illegal  combination  and  conspiracy  under  the  Mississippi  statute. 
That  is  enough  if  the  statute  does  not  infringe  the  fourteenth  amend- 
ment. 

"The  argument  that  the  situation  is  one  which  justified  the  defen- 
sive measures  taken  by  the  plaintiffs  in  error  is  one  which  we  need 
neither  refute  nor  concede.  Neither  are  we  required  to  consider  any 
mere  question  of  the  expediency  of  such  a  law.  It  is  a  regulation  of 
commerce  purely  intrastate, — a  subject  as  entirely  under  the  control 
of  the  state  as  is  the  delegated  control  over  interstate  commerce  ex- 
ercised by  the  United  States.  The  power  exercised  is  the  police  power 
reserved  to  the  states.  The  limitation  upon  its  exercise,  contained  in 
the  federal  Constitution,  is  found  in  the  fourteenth  amendment, 
whereby  no  state  may  pass  any  law  by  which  a  citizen  is  deprived  of 
life,  liberty,  or  property  without  due  process  of  law.  A  like  limita- 
tion upon  the  legislative  power  will  be  found  in  the  Constitution  of 
each  state.  That  legislation  might  be  so  arbitrary  or  so  irrational  in 
depriving  a  citizen  of  freedom  of  contract  as  to  come  under  the  con- 
demnation of  the  amendment  may  be  conceded. 

"In  dealing  with  certain  Kansas  legislation  in  regulation  of  state 
commerce,  which  was  claimed  to  be  so  extreme  as  to  be  an  unwar- 
ranted infringement  of  liberty  of  contract,  this  court,  in  Smiley  v. 
Kansas,  196  U.  S.  447,  457,  25  Sup.  Ct.  289,  291,  49  L,  Ed.  546,  551, 
said :  'Undoubtedly  there  is  a  certain  freedom  of  contract  which  can- 
not be  destroyed  by  legislative  enactment.  In  pursuance  of  that  free- 
dom, parties  may  seek  to  further  their  business  interests,  and  it  may 
not  be  always  easy  to  draw  the  line  between  those  contracts  which 
are  beyond  the  reach  of  the  police  power,  and  those  ^>hich  are  sub- 
ject to  prohibition  or  restraint.  But  a  secret  arrangement,  by  wdiich, 
under  penalties,  an  apparently  existing  competition  among  all  the 
dealers  in  a  community  in  one  of  the  necessaries  of  life  is  substan- 
tially destroyed,  without  any  merging  of  interests  through  partnership 
or  incorporation,  is  one  to  which  the  police  power  extends.  This  is 
as  far  as  we  need  go  in  sustaining  the  judgment  in  this  case.' "  * 

i  Accord :  United  States  v.  Joint  Traffic  Ass'n,  171  TJ.  S.  505,  571-573,  19 
Sup.  Ct.  2o,  43  L.  Ed.  259  (1S9S)  (reasonable  pooling  agreement  by  railroads) ; 
Northern  Securities  Co.  v.  United  States,  193  U.  S.  197,  24  Sup.  Ct.  43G,  48 
L.  Ed.  679  (1904)  (corporation  formed  to  bold  stock  of  competing  railroads) : 
United  States  v.  American  Tobacco  Co.,  221  U.  S.  106,  31  Sup.  Ct.  632,  55 
L.  Ed.  663  (1911)  (monopolizing  tobacco  trade  by  acts  unduly  restrictive  of 
competition).  The  United  States  may  forbid  a  railroad  from  carrying  in  inter- 
state commerce  commodities  produced  by  it.  United  States  v.  Delaware  & 
Hudson  Co.,  213  U.  S.  366,  29  Sup.  Ct  527,  53  L.  Ed.  836  (1909). 


Ch.  10)  DUE   PROCESS   AND    EQUALITY:     POLICE    I  4»j'.( 

RIDEOUT  v.  KNOX  (1889)  148  Mass.  368,  372,  373,  19  N.  E. 
390,  2  L.  R.  A.  81,  12  Am.  St.  Rep.  560,  Holmf.s,  J.  (upho! 
Massachusetts  statute  making  the  malicious  erection  of  a  fence  over 
six    feet   high,    for   the  purpose  of   annoying  adjoining  occupants,   a 
private  nuisance) : 

"It  is  plain  that  the  right  to  use  one's  property  for  the  sole  pur- 
pose of  injuring  others  is  not  one  of  the  immediate  rights  of  owner- 
ship. It  is  not  a  right  for  the  sake  of  which  property  is  recognized 
by  the  law,  but  is  only  a  more  or  less  necessary  incident  of  rights 
which  are  established  for  very  different  ends.  It  has  been  thought 
by  respectable  authorities  that  even  at  common  law  the  extent  of  a 
man's  rights  in  cases  like  the  present  might  depend  upon  the  motive 
with  which  he  acted.  Greenleaf  v.  Francis.  18  Pick,  117,  121,  122. 
See  Carson  v.  Railroad  Co.,  8  Gray,  423,  424 ;  Roath  v.  Driscoll,  20 
Conn.  533,  544,  52  Am.  Dec.  352;  Wheatley  v.  Caugh,  25  Pa.  528, 
64  Am.  Dec.  721 ;  Swett  v.  Cutts,  50  N.  H.  439,  447,  9  Am.  Rep.  276. 

"We  do  not  so  understand  the  common  law,  and  we  concede  fur- 
ther that  to  a  large  extent  the  power  to  use  one's  property  malev- 
olently in  any  way  which  would  be  lawful  for  other  ends  is  an  in- 
cident of  property  which  cannot  be  taken  away  even  by  legislation. 
It  may  be  assumed  that  under  our  constitution  the  legislature  would 
not  have  power  to  prohibit  putting  up  or  maintaining  stores  or  houses 
with  malicious  intent,1  and  thus  to  make  a  large  part  of  the  property 
of  the  commonwealth  dependent  upon  what  a  jury  might  find  to  have 
been  the  past  or  to  be  the  present  motives  of  the  owner. 

But  it  does  not  follow  that  the  rule  is  the  same  for  a  boundary 
fence,  unnecessarily  built  more  than  six  feet  high.  It  may  be  said 
that  the  difference  is  only  one  of  degree.  Most  differences  are,  when 
nicely  analyzed.  At  any  rate,  difference  of  degree  is  one  of  the  dis- 
tinctions by  which  the  right  of  the  legislature  to  exercise  the  police 
power  is  determined.  Some  small  limitations  of  previously  existing 
rights  incident  to  property  may  be  imposed  for  the  sake  of  prevent- 
ing a  manifest  evil ;  larger  ones  could  not  be,  except  by  the  exercise 
of  the  right  of  eminent  domain.  Sawyer  v.  Davis,  136  Mass.  239,  243. 
49  Am.  Rep.  27. 

The  statute  is  confined  to  fences  and  structures  in  the  nature  of 
fences,  and  to  such  fences  only  as  unnecessarily  exceed  six  feet  in 
height.  It  is  hard  to  imagine  a  more  insignificant  curtailment  of  the 
rights  of  property.  Even  the  right  to  build  a  fence  above  six  feet  is 
not  denied  when  any  convenience  of  the  owner  would  be  served  by 
building  higher."  J 

i  Accord:   Karasek  v.  Peier.  22  Wash.  110.  61  Pac.  33.  50  L.  R.   » 
i  in   Horan  v,   Byrnes,  72  N.  It.  93,  88,   L01,  M   A.U.  I 
i;     \    B02    L01    vi..  St  Rep    I  JO 

It  is  true  that  an  act  «hich  one  lias  the  r. . 
circumstances,  like  the  bi  '  Villll>  clali 

v    Pluiner.  C9  N.  II.  498,  48  Atl.  618,  76  Am.  St.   Hep.  190),  eannut  be  uiacjr 


470  FUNDAMENTAL    RIGHTS  (Part  2 


COMMONWEALTH  v.  STRAUSS. 

(Supreme  Judicial  Court  of  Massachusetts,  1906.     191   Mass.  545,  78  N.  E. 
136,  11  L.  K.  A.  |N.  S.]  968,  6  Ann.  Cas.  842.) 

[Exceptions  to  indictment.  A  Massachusetts  statute  criminally  for- 
bade any  person  doing  business  in  the  state  to  make  it  a  condition  of 
the  sale  of  goods  that  the  purchaser  should  not  deal  in  the  goods  of 
any  other  person ;  with  certain  exceptions  regarding  exclusive  agents 
and  selling  territory.  Strauss,  agent  for  the  Continental  Tobacco  Com- 
pany, sold  plug  tobacco  on  condition  that  if  the  purchaser  dealt  in  the 
goods  of  no  other  tobacco  manufacturer  a  rebate  of  six  per  cent,  would 
be  returned.  The  prices  asked  for  tobacco  made  the  receipt  of  this 
rebate  practically  necessary  in  order  to  secure  a  profit  to  the  retailer. 
Defendant,  being  convicted  under  this  statute,  alleged  exceptions.] 

Knowlton,  C.  J.  *  *  *  The  rights  relied  upon  under  the  four- 
teenth amendment  to  the  Constitution  of  the  United  States,  and  un- 
der the  Declaration  of  Rights  in  the  Constitution  of  Massachusetts, 
are  substantially  the  same,  namely,  the  right  of  every  person  to  his 
life,  liberty  and  property,  including  freedom  to  use  his  faculties  in  all 
lawful  ways,  "to  live  and  work  where  he  will,  to  earn  his  livelihood 
by  any  lawful  calling,  to  pursue  any  livelihood  or  avocation,  and  for 
that  purpose  to  enter  into  all  contracts  which  may  be  proper,  neces- 
sary and  essential  to  his  carrying  out  to  a  successful  conclusion  the 
purposes  above  mentioned."  See  Allgeyer  v.  Louisiana,  165  U.  S.  578, 
589,  17  Sup.  Ct.  427,  431  (41  L.  Ed.  832).     *     *     * 

There  is  no  doubt  that  the  statute  before  us  puts  a  limitation  upon 
the  general  right  to  make  contracts.  The  contention  of  the  common- 
wealth is  that  this  limitation  is  valid  as  an  exercise  of  the  police  power. 

actionable  by  the  motive  which  accompanies  it.  But  as  applied  to  the  use 
of  real  estate  the  argument  begs  the  question,  which  is  whether  the  enjoy- 
ment of  real  estate  includes  the  right  to  use  it  solely  to  injure  another.  Be- 
cause when  employed  for  a  useful  purpose  such  use  may  rightfully  injure 
another,  it  does  not  follow  that  the  same  use  for  a  wrongful  purpose  may 
also  rightfully  injure  another,  except  upon  the  theory  of  absolute  dominion, 
because  the  character  of  the  use  is  an  element  of  the  right.  *  *  *  But 
the  landowner's  right  in  the  enjoyment  of  his  estate  being  that  of  reasonable 
use  merely,  there  attaches  at  once  to  each  the  correlative  right  not  to  be  dis- 
turbed by  the  malicious,  and  hence  unreasonable,  use  made  by  another.  To 
hold  that  a  right  is  infringed  because,  by  the  noxious  use  made  by  another, 
the  air  coming  upon  a  landowner's  premises  is  made  more  or  less  injurious, 
and  to  deny  the  invasion  of  a  right  by  an  unreasonable  use  which  shuts  off 
air  and  light  entirely,  is  an  attempt  to  bound  a  right  inherent  and  essential 
to  the  common  enjoyment  of  property  by  the  limitations  of  an  ancient  form 
of  action.  An  unreasonable  use  of  one  estate  may  constitute  a  nuisance  by 
its  diminution  of  the  right  of  enjoyment  of  another,  without  furnishing  all 
the  elements  necessary  to  maintain  an  action  quare  clausum  f regit;  though 
in  particular  cases  it  may  be  said  that  no  right  is  invaded  unless  something 
comes  from  the  one  lot  to  the  other." 

See  Sperry  &  Hutchinson  Co.  v.  Rhodes.  220  U.'  S.  502,  31  Sup.  Ct.  490, 
55  L.  Ed.  561  (1911)  (act  changing  former  law  so  as  to  forbid  unauthorized 
publication  of  photograph  of  living  person  as  an  advertisement). 


Ch.  10)  due  pbocb0b  and  bqualitt:    POUCH  POWBB  471 

The  nature  of  the  police  power  and  its  extent,  as  applied  to  conceiv- 
able cases,  cannot  easily  be  stated  with  exactness.  It  includes  the  right 
to  legislate  in  the  interest  of  the  public  health,  the  public  safety  and 
the  public  morals.  If  the  power  is  to  be  held  within  the  limits  of  the 
field  thus  defined,  the  words  should  be  interpreted  broadly  and  liber- 
ally. If  we  are  to  include  in  the  definition,  as  many  judges  have  done, 
the  right  to  legislate  for  the  public  welfare,  this  term  should  be  de- 
fined with  some  strictness,  so  as  not  to  include  everything  that  might 
be  enacted  on  grounds  of  mere  expediency.  In  the  very  late  case  of 
Lochner  v.  New  York,  198  U.  S.  45,  53,  25  Sup.  Ct.  539,  541,  49  L. 
Ed.  937,  3  Ann.  Cas.  1133,  the  majority  of  the  court  said,  "Those 
powers,  broadly  stated,  and  without  at  present  any  attempt  at  a  more 
specific  limitation,  relate  to  the  safety,  health,  morals  and  general  wel- 
fare of  the  public."  In  the  opinion  in  Louisville  &  Nashville  Railroad 
v.  Kentucky,  161  U.  S.  677,  701,  16  Sup.  Ct.  714,  111  (40  L.  Ed.  849) 
we  find  this  language:  "The  general  rule  holds  good,  that  whatever  is 
contrary  to  public  policy  or  inimical  to  the  public  interests  is  subject 
to  the  police  power  of  the  state,  and  within  legislative  control,  and  in 
the  exertion  of  such  power  the  Legislature  is  vested  with  a  large  dis- 
cretion, which  if  exercised  for  the  protection  of  the  public,  is  beyond 
the  reach  of  judicial  inquiry." 

It  becomes  necessary  to  look  somewhat  critically  at  the  statute  be- 
fore us,  to  discover  its  effect  upon  the  rights  of  contracting  parties,  and 
the  purpose  of  the  Legislature  in  enacting  it.  In  the  sale  of  goods  to 
be  resold  it  forbids  one  kind  of  contract  which  might  be  made  in  com- 
petition with  other  sellers  of  similar  goods.  It  leaves  open  every  other 
kind  of  contract.  We  may  infer  that  the  Legislature  was  providing 
for  cases  in  which  this  particular  kind  of  contract  would  be  unfair 
competition  as  against  weaker  dealers,  and  would  be  injurious  to  the 
public  as  tending  to  crush  ordinary  competitors,  and  thus  create  a  mo- 
nopoly, from  which  the  community  as  consumers  would  ultimately  suf- 
fer. If,  at  the  time  of  the  enactment  of  this  statute,  there  were  dan- 
gers of  this  kind  confronting  the  people  of  the  commonwealth,  and  if 
this  prohibition  is  a  reasonable  way  of  averting  such  dangers,  we  find 
justification  for  the  legislation,  unless  it  involves  a  serious  injury  to 
those  who  are  restrained  by  it.  It  permits  every  kind  of  contract  of 
sale  but  one.  It  does  not  prohibit  the  appointment  of  agents,  or  sole 
agents,  for  the  sale  of  property.  It  allows  contracts  for  the  exclusive 
sale  of  goods,  wares  or  merchandise.  The  contracts  that  it  forbids  are 
only  those  which,  in  ordinary  competition  among  equals,  no  one  would 
have  any  interest  or  desire  to  make.  As  a  rule,  it  is  only  a  person  or 
corporation  that  is  intrenched  in  a  position  of  power  that  can  afford  to 
say  to  a  retailer  or  jobber,  "I  will  not  let  you  have  my  goods  unless 
you  will  agree  to  sell  none  furnished  by  others."  One  who  controls 
the  sources  of  supply  of  goods,  which  arc  in  such  demand  that  a  deal- 
er cannot  afford  to  be  without  them,  can  safely  say  to  a  purchaser 
"You  must  give  me  all  your  trade  if  you  want  to  sell  any  of  my  goods." 


47-2  FUNDAMENTAL    BIGHTS  (Part  2 

In  that  way  he  may  be  able  to  obtain  a  complete  monopoly  of  the  trade 
in  goods  such  as  he  supplies. 

The  evidence  in  this  case  illustrates  some  of  the  tendencies  of  the 
times.  The  defendant's  employer,  the  Continental  Tobacco  Company, 
is  incorporated  with  a  capital  stock  of  $75,000,000.  At  the  time  of 
the  sales  for  which  the  defendant  is  indicted  it  had  absorbed  more  than 
12  establishments  used  for  the  manufacture  and  sale  of  plug  tobaccos, 
and  owned  by  as  many  pioprietors.  Before  its  incorporation  there  was 
free  and  open  competition  in  the  plug  tobacco  market  in  Massachu- 
setts. It  so  consolidated  and  restricted  the  trade  that,  in  January,  1904, 
it  produced  about  95  per  cent,  of  the  plug  tobacco,  and  about  80  per 
cent,  of  the  cut  plug  tobacco  in  Massachusetts.  Conditions  were  about 
the  same  in  all  parts  of  the  state.  There  were  about  210  jobbers  in 
Alassachusetts,  and  practically  all  stopped  buying  of  independent  man- 
ufacturers when  this  corporation  made  this  new  proposition,  presented 
by  the  defendant  in  making  the  sales  complained  of.  It  had  acquired 
such  strength  in  its  own  field  that,  by  the  use  of  such  means  as  the 
statute  forbade,  it  could  expect  easily  to  obtain  a  practical  monopoly  of 
the  plug  tobacco  trade  in  Massachusetts.  This  evidence  furnishes  an 
illustration  of  what  we  fairly  may  assume  was  being  done,  or  might 
be  expected  to  be  done,  in  the  manufacture  and  sale  of  other  products, 
even  of  some  of  the  necessaries  of  life.  Tobacco  is  not  one  of  the 
necessaries  of  life,  but  its  use  is  so  common  that  to  many  persons  it 
seems  almost  as  necessary  as  food.  The  poor  much  more  than  the 
rich  would  be  likely  to  be  affected  by  the  monopoly  of  the  market  for 
plug  tobacco,  and  a  rise  in  the  price  which  might  be  expected  to  fol- 
low it. 

This  statute  was  not  enacted  for  protection  in  the  purchase  of  any 
one  kind  of  property.  Its  object  doubtless  was  to  prevent  the  use  of 
this  particular  method  of  crushing  competitors  in  any  kind  of  trade  in 
which  the  public  might  be  interested.  Especially  was  it  important  to 
prevent  monopoly  in  the  sale  of  the  necessaries  of  life.  In  view  of 
this,  we  deem  it  not  unreasonable  that  the  statute  was  made  to  apply 
to  sales  of  all  kinds  of  goods. 

Legislation  should  be  adapted  to  existing  conditions.  A  few  years 
ago  there  was  no  occasion  for  such  an  enactment.  But  lately  we  see 
great  aggregations  of  capital  formed  to  obtain  command,  if  possible, 
of  the  field  of  production  or  distribution  into  which  they  enter.  Even 
now,  in  the  transaction  of  business  among  equals  where  there  is  free 
competition,  the  statute  is  unnecessary,  for  there  is  no  inducement  to 
do  that  which  it  forbids.  Its  practical  effect  is  to  prevent  great  cor- 
porations from  making  a  certain  kind  of  contracts  intended  to  drive 
ordinary  competitors  out  of  business. 

The  question  is  whether,  at  the  time  of  the  passage  of  this  statute, 
there  were  conditions  actually  existing  or  reasonably  anticipated  which 
called  for  such  legislative  intervention  in  the  interest  of  the  general 
public.    We  are  of  opinion  that  there  were,  and  that,  in  a  broad  and 


Ch.  10)  DUE   PROCESS  AND   EU.L  ALII  Y  :     POLICE   POWER  4  7-1 

liberal  sense  of  the  words,  this  statute  was  enacted  in  the  interest  of 
the  public  health  and  the  public  safety,  if  not  of  the  public  morals. 
Certainly  the  purpose  of  the  Legislature  was  to  promote  the  general 
welfare  of  the  public.  We  cannot  say  that  this  legislative  action  mu 
not  a  legitimate  exercise  of  the  police  power.  Its  invasion  of  the  gen- 
eral right  to  make  contracts  is  so  slight,  and  in  a  field  so  remote  from 
ordinary  mercantile  transactions,  that  there  is  little  ground  of  objection 
on  that  score.  The  abuse  at  which  the  statute  is  aimed,  while  not  prac- 
ticed by  many  persons,  is  real  and  widely  pervasive.  *  *  • 
Exceptions  overruled.1 


ADAIR  v.  UNITED  STATES. 

(Supreme  Court  of  United   States,  1908.     208  U.  S.  161,  28  Sup.  CL   277,  53 
L.  Ed.  436,  13  Ann.  Cas.  764.) 

[Error  to  the  federal  District  Court  for  the  Eastern  District  of 
Kentucky.  An  act  of  Congress  (Act  June  1,  1898,  c.  370)  provided 
for  the  arbitration  of  disputes  between  interstate  railroad  carriers 
and  their  employees,  and  by  section  10  made  it  a  misdemeanor  for 
such  carriers  or  their  agents  to  "threaten  any  employee  with  loss  of 
employment,"  or  "unjustly  [to]  discriminate  against  any  employee 
because  of  his  membership  in  [any]  labor  corporation,  association,  or 
organization."  Adair  was  indicted  for  violating  this  section,  in  that, 
as  agent  for  an  interstate  railroad,  he  discharged  one  Coppage  be- 
cause of  his  membership  in  a  labor  union.  The  trial  court  overruled 
a  demurrer  to  the  indictment,  and  this  writ  of  error  was  taken.] 

Mr.  Justice  Harlan.  *  *  *  The  first  inquiry  is  whether  the 
part  of  the  tenth  section  of  the  act  of  1898  upon  which  the  first  count 


i  Accord:  Central  Lumber  Co.  v.  South  Dakota,  226  U.  S.  157,  XI  Sup  Ot 
66,  57  L.  Ed.  (1012)  (prohibition  of  sales  at  one  place  lower  th.in  at  kn- 
ottier with  intent  to  destroy  competition);  Opinion  of  the  Justices,  211  Mas.-. 
620,  M  N.  E.  294  (1912)  (same,  with  intent  to  create  a  monopoly);  E 
Fairmont  Creamery  Co.  of  Nebraska,  153  Iowa,  702,  183  N.  W.  805,  12  I..  EL 
A.  (N.  S.)  821  (1912)  (similar  prohibition  against  discriminatory  pure 
dairy  products);  State  v.  Brtdgeman  &  Russell  Co.,  117  Minn.  186,  134  N.  W. 
496  (1012)  (same). 

in  Central  Lumber  Co.  v.  South  Dakota,  above,  Holmes,  J.,  said  (226  U.  S. 
161,  33  Sup.  Ct.  67,  57  L.  Ed.  — ):    "We  must  assume  that  the  legislature  ot 
South  Dakota  considered   that  people  selling  In  two    places  made 
hiblted  use  of  their  opportunities,  and  that  such   use  was  harmful,  a 
the  i    aal  efforts  of  competitors  were  desired.    It  might  have  been  ■) 
Lslature  with  more  force  than  it  can  be  to  us  that  recoupment 
place  of  losses  in  another  is  merely  an  instance  of  financial  abllltj    I 
pete.    If  the  legislature  thought  that  that  particular  manifestation  ot 
usually  came  from  great  corporations  er  It  deemed 

for  that  reason  did  more  harm  than  good  in  their  state,  and  that  tin 
no  other  ease  of  frequent  occurrence  where  : 

review   their  economics  or  their  facts.     That  the   law  embodies  u  wi  : 
conviction  appears  from  the  decisions  in  other  states." 


474  FUNDAMENTAL    RIGHTS  (Part  2 

of  the  indictment  was  based  is  repugnant  to  the  fifth  amendment  of 
the  Constitution,  declaring  that  no  person  shall  be  deprived  of  liberty 
or  property  without  due  process  of  law.  In  our  opinion  that  section, 
in  the  particular  mentioned,  is  an  invasion  of  the  personal  liberty,  as 
well  as  of  the  right  of  property,  guaranteed  by  that  amendment. 
Such  liberty  and  right  embrace  the  right  to  make  contracts  for  the 
purchase  of  the  labor  of  others,  and  equally  the  right  to  make  con- 
tracts for  the  sale  of  one's  own  labor;  each  right,  however,  being 
subject  to  the  fundamental  condition  that  no  contract,  whatever  its 
subject-matter,  can  be  sustained  which  the  law,  upon  reasonable 
grounds,  forbids  as  inconsistent  with  the  public  interests,  or  as  hurt- 
ful to  the  public  order,  or  as  detrimental  to  the  common  good.    *    *    * 

It  was  the  right  of  the  defendant  to  prescribe  the  terms  upon  which 
the  services  of  Coppage  would  be  accepted,  and  it  was  the  right  of 
Coppage  to  become  or  not,  as  he  chose,  an  employee  of  the  railroad 
company  upon  the  terms  offered  to  him.  Mr.  Cooley,  in  his  treatise 
on  Torts,  p.  278,  well  says:  "It  is  a  part  of  every  man's  civil  rights 
that  he  be  left  at  liberty  to  refuse  business  relations  with  any  person 
whomsoever,  whether  the  refusal  rests  upon  reason,  or  is  the  result 
of  whim,  caprice,  prejudice,  or  malice.  With  his  reasons  neither  the 
public  nor  third  persons  have  any  legal  concern.  It  is  also  his  right 
to  have  business  relations  with  anyone  with  whom  he  can  make  con- 
tracts, and,  if  he  is  wrongfully  deprived  of  this  right  by  others,  he  is 
entitled  to  redress."  *  *  *  [Lochner  v.  New  York,  ante,  p.  414, 
is  here  discussed.] 

While,  as  already  suggested,  the  right  of  liberty  and  property  guar- 
anteed by  the  Constitution  against  deprivation  without  due  process  of 
law  is  subject  to  such  reasonable  restraints  as  the  common  good  or 
the  general  welfare  may  require,  it  is  not  within  the  functions  of 
government — at  least,  in  the  absence  of  contract  between  the  parties 
— to  compel  any  person,  in  the  course  of  his  business  and  against  his 
will,  to  accept  or  retain  the  personal  services  of  another,  or  to  compel 
any  person,  against  his  will,  to  perform  personal  services  for  another. 
The  right  of  a  person  to  sell  his  labor  upon  such  terms  as  he  deems 
proper  is,  in  its  essence,  the  same  as  the  right  of  the  purchaser  of  labor 
to  prescribe  the  conditions  upon  which  he  will  accept  such  labor  from 
the  person  offering  to  sell  it.  So  the  right  of  the  employee  to  quit 
the  service  of  the  employer,  for  whatever  reason,  is  the  same  as  the 
right  of  the  employer,  for  whatever  reason,  to  dispense  with  the  serv- 
ices of  such  employee.  It  was  the  legal  right  of  the  defendant,  Adair, 
— however  unwise  such  a  course  might  have  been, — to  discharge  Cop- 
page because  of  his  being  a  member  of  a  labor  organization,  as  it  was 
the  legal  right  of  Coppage,  if  he  saw  fit  to  do  so, — however  unwise 
such  a  course  on  his  part  might  have  been, — to  quit  the  service  in 
which  he  was  engaged,  because  the  defendant  employed  some  persons 
who  were  not  members  of  a  labor  organization.  In  all  such  particu- 
lars the  employer  and  the  employee  have  equality  of  right,  and  any 


Gl.  10)  DUE   PROCESS  AND    EQUALITY  J     POLICE   POWER  IT.". 

legislation  that  disturbs  that  equality  is  an  arbitrary  interference  with 
the  liberty  of  contract  which  no  government  can  legally  justify  in  a 
free  land. 

These  views  find  support  in  adjudged  cases,  some  of  which  are 
cited  in  the  margin.  [Citations  omitted.)  Of  course,  if  the  parties 
by  contract  fixed  the  period  of  service,  and  prescribed  the  conditions 
upon  which  the  contract  may  be  terminated,  such  contract  would  con- 
trol the  rights  of  the  parties  as  between  themselves,  and  for  any  vio- 
lation of  those  provisions  the  party  wronged  would  have  his  appro- 
priate civil  action.  And  it  may  be — but  upon  that  point  we  e 
no  opinion — that,  in  the  case  of  a  labor  contract  between  an  employer 
engaged  in  interstate  commerce  and  his  employee,  Congress  could 
make  it  a  crime  for  either  party,  without  sufficient  or  just  excuse  or 
notice,  to  disregard  the  terms  of  such  contract  or  to  refuse  to  perform 
it.  In  the  absence,  however,  of  a  valid  contract  between  the  parties 
controlling  their  conduct  towards  each  other  and  fixing  a  period  of 
service,  it  cannot  be,  we  repeat,  that  an  employer  is  under  any  legal 
obligation,  against  his  will,  to  retain  an  employee  in  his  personal  serv- 
ice any  more  than  an  employee  can  be  compelled,  against  his  will,  to 
remain  in  the  personal  service  of  another.     *     *     * 

Judgment  reversed. 

Mr.  Justice  McKenna,  dissenting.  *  *  *  The  provisions  of 
the  act  are  explicit  and  present  a  well  co-ordinated  plan  for  the  set- 
tlement of  disputes  between  carriers  and  their  employees,  by  bringing 
the  disputes  to  arbitration  and  accommodation,  and  thereby  prevent 
strikes  and  the  public  disorder  and  derangement  of  business  that  may 
be  consequent  upon  them.     *     *     * 

We  are  told  that  labor  associations  are  to  be  commended.  May 
not,  then,  Congress  recognize  their  existence?  yes,  and  recognize  their 
power  as  conditions  to  be  counted  with  in  framing  its  legislation? 
Of  what  use  would  it  be  to  attempt  to  bring  bodies  of  men  to  agree- 
ment and  compromise  of  controversies  if  you  put  out  of  view  the 
influences  which  move  them  or  the  fellowship  which  binds  them. — 
maybe  controls  and  impels  them,  whether  rightfully  or  wrongfully, 
to  make  the  cause  of  one  the  cause  of  all?  And  this  practical  wis- 
dom Congress  observed, — observed,  I  may  say,  not  in  speculation  or 
uncertain  prevision  of  evils,  but  in  experience  of  evils, — an  experience 
which  approached  to  the  dimensions  of  a  national  calamity.  The  facts 
of  history  should  not  be  overlooked  nor  the  course  of  legislation. 
The  act  involved  in  the  present  case  was  preceded  by  one  enacted  in 
1S88  of  similar  purport.  25  Stat,  at  Large,  501,  c.  1063.  That  act 
did  not  recognize  labor  associations,  or  distinguish  between  the  mem 
bers  of  such  associations  and  the  other  employees  of  carriers.  It 
failed  in  its  purpose,  whether  from  defect  in  its  provisions  or  other 
cause  we  may  only  conjecture.  At  any  rate,  it  did  not  avert  tho 
strike  at  Chicago  in  1894.  Investigation  followed,  and,  as  a  result 
of  it,  the  act  of  1S98  was  finally  passed.     Presumably  its  provisions 


476  FUNDAMENTAL    RIGHTS  (Part  2 

and  remedy  were  addressed  to  the  mischief  which  the  act  of  1888 
failed  to  reach  or  avert. 

It  was  the  judgment  of  Congress  that  the  scheme  of  arbitration 
might  be  helped  by  engaging  in  it  the  labor  associations.  Those  as- 
sociations unified  bodies  of  employees  in  every  department  of  the 
carriers,  and  this  unity  could  be  an  obstacle  or  an  aid  to  arbitration. 
It  was  attempted  to  be  made  an  aid ;  but  how  could  it  be  made  an  aid 
if,  pending  the  efforts  of  "mediation  and  conciliation''  of  the  dispute, 
as  provided  in  section  2  of  the  act,  other  provisions  of  the  act  may  be 
arbitrarily  disregarded,  which  are  of  concern  to  the  members  in  the 
dispute?  How  can  it  be  an  aid,  how  can  controversies  which  may 
seriously  interrupt  or  threaten  to  interrupt  the  business  of  carriers 
(I  paraphrase  the  words  of  the  statute)  be  averted  or  composed  if 
the  carrier  can  bring  on  the  conflict  or  prevent  its  amicable  settle- 
ment by  the  exercise  of  mere  whim  and  caprice?  I  say  mere  whim 
or  caprice,  for  this  is  the  liberty  which  is  attempted  to  be  vindicated 
as  the  constitutional  right  of  the  carriers.  And  it  may  be  exercised 
in  mere  whim  and  caprice.  If  ability,  the  qualities  of  efficient  and 
faithful  workmanship,  can  be  found  outside  of  labor  associations, 
surely  they  may  be  found  inside  of  them.  Liberty  is  an  attractive 
theme,  but  the  liberty  which  is  exercised  in  sheer  antipathy  does  not 
plead  strongly  for  recognition.     *     *     * 

It  also  seems  to  me  to  be  an  oversight  of  the  proportions  of  things 
to  contend  that,  in  order  to  encourage  a  policy  of  arbitration  between 
carriers  and  their  employees  which  may  prevent  a  disastrous  inter- 
ruption of  commerce,  the  derangement  of  business,  and  even  greater 
evils  to  the  public  welfare,  Congress  cannot  restrain  the  discharge 
of  an  employee,  and  yet  can,  to  enforce  a  policy  of  unrestrained  com- 
petition between  railroads,  prohibit  reasonable  agreements  between 
them  as  to  the  rates  at  which  merchandise  shall  be  carried.  And 
mark  the  contrast  of  what  is  prohibited.  In  the  one  case  the  re- 
straint, it  may  be,  of  a  whim, — certainly  of  nothing  that  affects  the 
ability  of  an  employee  to  perform  his  duties;  nothing,  therefore, 
which  is  of  any  material  interest  to  the  carrier, — in  the  other  case,  a 
restraint  of  a  carefully-considered  policy  which  had  as  its  motive 
great  material  interests  and  benefits  to  the  railroads,  and,  in  the  opin- 
ion of  many,  to  the  public.  May  such  action  be  restricted,  must  it 
give  way  to  the  public  welfare,  while  the  other,  moved,  it  may  be,  by 
prejudice  and  antagonism,  is  intrenched  impregnably  in  the  fifth 
amendment  of  the  Constitution  against  regulation  in  the  public  in- 
terest? 

I  would  not  be  misunderstood.  I  grant  that  there  are  rights  which 
can  have  no  material  measure.  There  are  rights  which,  when  ex- 
ercised in  a  private  business,  may  not  be  disturbed  or  limited.  With 
them  we  are  not  concerned.  We  are  dealing  with  rights  exercised 
in  a  quasi  public  business,  and  therefore  subject  to  control  in  the  in- 
terest of  the  public. 


Ch.  10)  L>li;  I'llOCESS  AND  equality:    police  pqwhb  477 

Mr.  Justice  Holmes,  dissenting.  *  »  *  The  ground  on  which 
this  particular  law  is  held  bad  is  not  so  much  that  it  deals  with  mat- 
ters remote  from  commerce  among  the  states,  as  that  it  interferes 
with  the  paramount  individual  rights  secured  by  the  fifth  amendment. 
The  section  is,  in  substance,  a  very  limited  interference  with  freedom 
Df  contract,  no  more.  It  does  not  require  the  carriers  to  employ  any- 
one. It  does  not  forbid  them  to  refuse  to  employ  anyone,  for  any 
reason  they  deem  good,  even  where  the  notion  of  a  choice  of  persons 
is  a  fiction  and  wholesale  employment  is  necessary  upon  general  prin- 
ciples that  it  might  be  proper  to  control.  The  section  simply  pro- 
hibits the  more  powerful  party  to  exact  certain  undertakings,  or  to 
threaten  dismissal  or  unjustly  discriminate  on  certain  grounds  against 
those  already  employed.  I  hardly  can  suppose  that  the  grounds  on 
which  a  contract  lawfully  may  be  made  to  end  are  less  open  to  regula- 
tion than  other  terms.  So  I  turn  to  the  general  question  whether  the 
employment  can  be  regulated  at  all. 

I  confess  that  I  think  that  the  right  to  make  contracts  at  will  that 
has  been  derived  from  the  word  "liberty"  in  the  amendments  has 
been  stretched  to  its  extreme  by  the  decisions ;  but  they  agree  that 
sometimes  the  right  may  be  restrained.  Where  there  is,  or  generally 
is  believed  to  be,  an  important  ground  of  public  policy  for  restraint, 
the  Constitution  does  not  forbid  it,  whether  this  court  agrees  or  dis- 
agrees with  the  policy  pursued.  It  cannot  be  doubted  that  to  prevent 
strikes,  and,  so  far  as  possible,  to  foster  its  scheme  of  arbitration, 
might  be  deemed  by  Congress  an  important  point  of  policy,  and  I 
think  it  impossible  to  say  that  Congress  might  not  reasonably  thfnk 
that  the  provision  in  question  would  help  a  good  deal  to  carry  its 
policy  along.  But  suppose  the  only  effect  really  were  to  tend  to  bring 
about  the  complete  unionizing  of  such  railroad  laborers  as  Congress 
can  deal  with,  1  think  that  object  alone  would  justify  the  act.  I  quite 
agree  that  the  question  what  and  how  much  good  labor  unions  do,  is 
one  on  which  intelligent  people  may  differ;  I  think  that  laboring  men 
sometimes  attribute  to  them  advantages,  as  many  attribute  to  combina- 
tions of  capital  disadvantages,  that  really  are  due  to  economic  con- 
ditions of  a  far  wider  and  deeper  kind ;  but  I  could  not  pronounce  it 
unwarranted  if  Congress  should  decide  that  to  foster  a  strong  union 
was  tor  the  best  interest,  not  only  of  the  men,  but  of  the  railroads 
and  the  country  at  hrire. 

[Moody,  J.,  did  not  sit.] 


\MS  v.  BRENAN  (18!  8)  177  111.  194;  '  52  X.  E.  314. 

42  L.  R.  A.  718,  69  Am.  St.  Rep.  222,  Mr.  Justice  Cakiwiuciit 
(holding  invalid  a  stipulation  of  the  Chicago  board  of  education  re- 
quiring contractors  to  employ  only  union  workmen  upon  school  build- 
ings) : 


478  FUNDAMENTAL    RIGHTS  (Part    2 

"It  is  plain  that  the  rule  adopted  by  the  board  and  included  in  this 
contract  is  a  discrimination  between  different  classes  of  citizens,  and 
of  such  a  nature  as  to  restrict  competition  and  to  increase  the  cost 
of  work.  It  is  unquestionable  that  if  the  legislature  should  enact  a 
statute  containing  the  same  provision  as  this  contract  in  regard  to' 
any  work  to  be  done  for  boards  of  education,  or  if  they  should,  by  a 
statute,  undertake  to  require  this  board,  as  the  agency  of  the  state  in 
the  management  of  school  affairs  in  the  city  of  Chicago,  to  adopt 
such  a  rule  or  insert  such  a  clause  in  its  contracts,  or  should  under- 
take to  authorize  it  to  do  so,  the  provision  would  be  absolutely  null 
and  void,  as  in  conflict  with  the  constitution  of  the  state.  If  such  a 
restriction  were  sought  to  be  enforced  by  any  law  of  the  state,  it 
would  constitute  an  infringement  upon  the  constitutional  rights  of 
citizens,  so  that  the  state,  in  its  sovereign  capacity,  through  its  legis- 
lature, could  not  enact  such  a  provision.  Millett  v.  People,  117  111. 
294,  7  N.  E.  631,  57  Am.  Rep.  869;  Frorer  v.  People,  141  111.  171, 
31  N.  E.  395,  16  L.  R.  A.  492;  Braceville  Coal  Co.  v.  People,  147 
111.  66,  35  N,  E.  62,  22  L.  R.  A.  340,  37  Am.  St.  Rep.  206;  Ramsey 
v.  People,  142  111.  380,  32  N.  E.  364,  17  L.  R.  A.  853;  Ritchie  v. 
People,  155  111.  98,  40  N.  E.  454,  29  L.  R.  A.  79,  46  Am.  St.  Rep. 
315;  People  v.  Chicago  Live  Stock  Exchange,  170  111.  556,  48  N.  E. 
1062,  39  L.  R.  A.  373,  62  Am.  St.  Rep.  404.  There  is  no  more  rea- 
son or  justification  for  such  a  contract  as  this  than  there  would  be  for 
a  provision  that  no  one  should  be  employed  except  members  of  some 
particular  party  or  church.  In  any  such  case  it  might  be  said  that 
the  board  entertained  a  bona  fide  opinion  that  the  members  of  some 
political  party  were  more  intelligent  and  better  capable  of  performing 
the  work,  so  that  better  results  would  be  attained ;  or  that  the  mem- 
bers of  a  church,  on  account  of  their  higher  standard  of  morality, 
would  more  faithfully  and  conscientiously  carry  out  the  contract. 
The  fact  that  the  board  may  have  been  of  the  opinion  that  its  action 
was  for  the  benefit  of  the  public  cannot  afford  a  justification  for  lim- 
iting competition  in  bidders,  and  requiring  them  to  abandon  the  right 
to  contract  with  whomsoever  they  may  choose  for  the  performance 
of  the  work. 

"There  seems,  however  to  be  a  claim  that  the  board  of  education, 
although  it  could  not  be  lawfully  required  or  authorized  to  make 
such  a  contract,  may  have  some  sort  of  discretion  to  do  so;  and  the 
only  question  in  the  case  on  the  subject  of  the  validity  of  such  con- 
tract is  whether  the  board  possesses  power  beyond  that  of  the  legisla- 
ture, in  which  is  vested  the  entire  legislative  authority  of  the  state. 
Upon  what  theory  it  could  be  claimed  that  this  board  of  education, 
which  exercises  merely  the  function  of  the  state  in  maintaining  public 
schools  within  a  limited  portion  of  the  state,  can  possess  either  power 
or  discretion  which  the  state  in  its  sovereign  capacity  could  not  con- 
fer upon  it,  we  are  unable  to  imagine.  No  argument  is  made  which 
would  justify  such  a  conclusion.    There  can  be  no  greater  power  of 


Ch.  10)  due  process  am.  i'.tality:    police  tower  47!> 

the  board  to  act  of  its  own  motion  than  by  virtue  of  positive  law. 
The  results  in  either  case  are  equally  in  conflict  with  the  organic  law, 
and  such  legislation,  contract,  or  action,  whatever  form  it  may  take, 
is  void.  Nor  can  the  fact,  if  it  be  a  fact,  that  an  individual  might 
make  such  a  bargain,  authorize  these  public  officers  exercising  a  pub- 
lic trust  to  do  so.  The  individual  may,  if  he  chooses,  give  away  his 
money;  but  the  public  officer,  acting  as  a  trustee,  has  no  such  liberty, 
and  no  right  to  surrender  to  a  committee  or  any  one  else  the  rights  of 
those  for  whom  he  acts."  l 


MUNN  v.  ILLINOIS. 

(Supreme  Court  of  United  States,  1876.    04  U.  S.  113,  24  L,  Ed.  77.) 

[Error  to  the  Supreme  Court  of  Illinois,  which  had  upheld  a  con- 
viction of  Munn  and  Scott  for  violating  a  state  statute  fixing  max- 
imum rates  for  grain  elevator  charges.  Other  facts  appear  in  the  opin- 
ion.] 

Mr.  Chief  Justice  Waite.  The  question  to  be  determined  in  this 
case  is  whether  the  General  Assembly  of  Illinois  can,  under  the  limi- 
tations upon  the  legislative  power  of  the  states  imposed  by  the  Consti- 
tution of  the  United  States,  fix  by  law  the  maximum  of  charges  for 
the  storage  of  grain  in  warehouses  at  Chicago  and  other  places  in  the 
state  having  not  less  than  one  hundred  thousand  inhabitants,  "in  which 
grain  is  stored  in  bulk,  and  in  which  the  grain  of  different  owners  is 
mixed  together,  or  in  which  grain  is  stored  in  such  a  manner  that  the 
identity  of  different  lots  or  parcels  cannot  be  accurately  preserved." 
*     *     * 

The  Constitution  contains  no  definition  of  the  word  "deprive,"  as 
used  in  the  fourteenth  amendment.  To  determine  its  signification, 
therefore,  it  is  necessary  to  ascertain  the  effect  which  usage  has  given 
it,  when  employed  in  the  same  or  a  like  connection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution 
of  the  United  States,  as  a  limitation  upon  the  powers  of  the  states,  it 
is  old  as  a  principle  of  civilized  government.  It  is  found  in  Magna 
Charta,  and,  in  substance  if  not  in  form,  in  nearly  or  quite  all  the  con- 
stitutions that  have  been  from  time  to  time  adopted  by  the  several  states 
of  the  Union.  By  the  fifth  amendment,  it  was  introduced  into  the 
Constitution  of  the  United  States  as  a  limitation  upon  the  powers  of 
the  national  government,  and  by  the  fourteenth,  as  a  guarantee  against 
any  encroachment  upon  an  acknowledged  right  of  citizenship  by  the 
legislatures  of  the  states.     *     *     * 

When  one  becomes  a  member  of  society,  he  necessarily  parts  with 
some  rights  or  privileges  which,  as  an  individual  not  affected  by  his 

i  Accord:    See  eases  collected  tn  23  L.  R.  A.  (N.  BJ  BIB,  816. 


480  FUNDAMENTAL    RIGHTS  (Part  2 

relations  to  others,  he  might  retain.  "A  body  politic,"  as  aptly  defined 
in  the  preamble  of  the  Constitution  of  Massachusetts,  "is  a  social  com- 
pact by  which  the  whole  people  covenants  with  each  citizen,  and  each 
citizen  with  the  whole  people,  that  all  shall  be  governed  by  certain  laws 
for  the  common  good."  This  does  not  confer  power  upon  the  whole 
people  to  control  rights  which  are  purely  and  exclusively  private 
(Thorpe  v.  R.  &  V.  Railroad  Co.,  27  Vt.  143,  62  Am.  Dec.  625) ;  but 
it  does  authorize  the  establishment  of  laws  requiring  each  citizen  to  so 
conduct  himself,  and  so  use  his  own  property,  as  not  unnecessarily  to 
injure  another.  This  is  the  very  essence  of  government,  and  has  found 
expression  in  the  maxim  "Sic  utere  tuo  ut  alienum  non  lffidas."  From 
this  source  come  the  police  powers,  which,  as  was  said  by  Mr.  Chief 
Justice  Taney  in  the  License  Cases,  5  How.  583,  12  L.  Ed.  256,  "are 
nothing  more  or  less  than  the  powers  of  government  inherent  in  every 
sovereignty,  *  *  *  that  is  to  say,  *  *  *  the  power  to  govern 
men  and  things."  Under  these  powers  the  government  regulates  the 
conduct  of  its  citizens  one  towards  another,  and  the  manner  in  which 
each  shall  use  his  own  property,  when  such  regulation  becomes  neces- 
sary for  the  public  good.  In  their  exercise  it  has  been  customary  in 
England  from  time  immemorial,  and  in  this  country  from  its  first  col- 
onization, to  regulate  ferries,  common  carriers,  hackmen,  bakers,  mill- 
ers, wharfingers,  innkeepers,  &c,  and  in  so  doing  to  fix  a  maximum 
of  charge  to  be  made  for  services  rendered,  accommodations  furnished, 
and  articles  sold.  To  this  day,  statutes  are  to  be  found  in  many  of 
the  states  upon  some  or  all  these  subjects;  and  we  think  it  has  never 
yet  been  successfully  contended  that  such  legislation  came  within  any 
of  the  constitutional  prohibitions  against  interference  with  private 
property.  With  the  fifth  amendment  in  force  Congress,  in  1820,  con- 
ferred power  upon  the  city  of  Washington  "to  regulate  *  *  *  the 
rates  of  wharfage  at  private  wharves,  *  *  *  the  sweeping  of 
chimneys,  and  to  fix  the  rates  of  fees  therefor,  *  *  *  and  the 
weight  and  quality  of  bread,"  3  Stat.  587,  §  7 ;  and,  in  1848,  "to  make 
all  necessary  regulations  respecting  hackney  carriages  and  the  rates  of 
fare  of  the  same,  and  the  rates  of  hauling  by  cartmen,  wagoners,  car- 
men, and  draymen,  and  the  rates  of  commission  of  auctioneers,"  9  Id. 
224,  §  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of 
the  fourteenth  amendment,  it  was  not  supposed  that  statutes  regulat- 
ing the  use,  or  even  the  price  of  the  use,  of  private  property  necessarily 
deprived  an  owner  of  his  property  without  due  process  of  law.  Un- 
der some  circumstances  they  may,  but  not  under  all.  The  amendment 
does  not  change  the  law  in  this  particular:  it  simply  prevents  the 
states  from  doing  that  which  will  operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this  power 
of  regulation  rests,  in  order  that  we  may  determine  what  is  within 
and  what  without  its  operative  effect.  Looking,  then,  to  the  common 
law,  from  whence  came  the  right  which  the  Constitution  protects,  we 


Cll.  10)  DUE   PROCESS  AND   EQUALITY  :     POLICE  POWBB  1-1 

find  that  when  private  property  is  "affected  with  a  public  interest,  it 
ceases  to  be  juris  privati  only."  This  was  said  by  Lord  Chief  Justice 
Hale  more  than  two  hundred  years  ago,  in  his  treatise  De  Portibus 
.Maris,  1  Harg.  Law  Tracts,  78,  and  has  been  accepted  without  objec- 
tion as  an  essential  element  in  the  law  of  property  ever  since.  Prop- 
erty does  become  clothed  with  a  public  interest  when  used  in  a  manner 
to  make  it  of  public  consequence,  and  affect  the  community  at  large. 
When,  therefore,  one  devotes  his  property  to  a  use  in  which  the  public 
has  an  interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that  use, 
and  must  submit  to  be  controlled  by  the  public  for  the  common  good, 
to  the  extent  of  the  interest  he  has  thus  created.  He  may  withdraw  his 
grant  by  discontinuing  the  use ;  but,  so  long  as  he  maintains  the  use, 
he  must  submit  to  the  control.  *  *  *  [Here  follow  quotations 
from  Lord  Hale,  regarding  ferries  and  wharves,  and  from  Aldnutt  v. 
Inglis,  12  East,  527,  regarding  warehouses.] 

In  later  times,  the  same  principle  came  under  consideration  in  the 
Supreme  Court  of  Alabama.  That  court  was  called  upon,  in  1S41,  to 
decide  whether  the  power  granted  to  the  city  of  Mobile  to  regulate  the 
weight  and  price  of  bread  was  unconstitutional,  and  it  was  contended 
that  "it  would  interfere  with  the  right  of  the  citizen  to  pursue  his  law- 
ful trade  or  calling  in  the  mode  his  judgment  might  dictate" ;  but  the 
court  said,  "there  is  no  motive  *  *  *  for  this  interference  on  the 
part  of  the  legislature  with  the  lawful  actions  of  individuals,  or  the 
mode  in  which  private  property  shall  be  enjoyed,  unless  such  calling 
affects  the  public  interest,  or  private  property  is  employed  in  a  manner 
which  directly  affects  the  body  of  the  people.  Upon  this  principle,  in 
this  state,  tavern-keepers  are  licensed;  *  *  *  and  the  county  court 
is  required,  at  least  once  a  year,  to  settle  the  rates  of  innkeepers.  Up- 
on the  same  principle  is  founded  the  control  which  the  legislature  has 
always  exercised  in  the  establishment  and  regulation  of  mills,  ferries. 
bridges,  turnpike  roads,  and  other  kindred  subjects."  Mobile  v.  Yuillc, 
3  Ala.  140,  36  Am.  Dec.  441. l 

From  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  which  was  done  in  England  as  long  ago  as  the  third 
year  of  the  reign  of  William  and  Mary,  and  continued  until  within  a 
comparatively  recent  period.  And  in  the  first  statute  we  find  the  fol- 
lowing suggestive  preamble,  to  wit:  "And  whereas  divers  w 
and  other  carriers,  by  combination  amongst  themselves,  have 
the  prices  of  carriage  of  goods  in  many  places  to  excessive  rates,  to  the 
great  injury  of  the  trade:  Be  it,  therefore,  enacted,"  etc.  3  W.  &  M 
c.  12.  §  24;    3  Stat,  at  Large  (Great  Britain)  4S1. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties  to 

i  See  Carew  v.  Rutherford,  106  Mass.  1,  14,  8  Am.   B 
reference  to   Massachusetts  colonial  acts  regulating  the  prices  of  lal 
commodities. 

Hall  Const.L. — 31 


4S2  FUNDAMENTAL    RIGHTS  (Part  2 

perform  in  which  the  public  is  interested.  New  Jersey  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  382,  12  L-  Ed.  465.  Their  business  is,  there- 
fore, "affected  with  a  public  interest,"  within  the  meaning  of  the  doc- 
trine which  Lord  Hale  has  so  forcibly  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to  show 
that,  when  private  property  is  devoted  to  a  public  use,  it  is  subject  to 
public  regulation.  It  remains  only  to  ascertain  whether  the  warehouses 
of  these  plaintiffs  in  error,  and  the  business  which  is  carried  on  there, 
come  within  the  operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  contained 
in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs  in  error. 
From  these  it  appears  that  "the  great  producing  region  of  the  West  and 
Northwest  sends  its  grain  by  water  and  rail  to  Chicago,  where  the 
greater  part  of  it  is  shipped  by  vessel  for  transportation  to  the  sea- 
board by  the  Great  Lakes,  and  some  of  it  is  forwarded  by  railway  to 
the  Eastern  ports.  *  *  *  Vessels,  to  some  extent,  are  loaded  in 
the  Chicago  harbor,  and  sailed  through  the  St.  Lawrence  directly  to 
Europe.  *  *  *  The  quantity  [of  grain]  received  in  Chicago  has 
made  it  the  greatest  grain  market  in  the  world.  This  business  has  cre- 
ated a  demand  for  means  by  which  the  immense  quantity  of  grain  can 
be  handled  or  stored,  and  these  have  been  found  in  grain  warehouses, 
which  are  commonly  called  elevators,  because  the  grain  is  elevated 
from  the  boat  or  car,  by  machinery  operated  by  steam,  into  the  bins 
prepared  for  its  reception,  and  elevated  from  the  bins,  by  a  like  pro- 
cess, into  the  vessel  or  car  which  is  to  carry  it  on.  *  *  *  In  this 
way  the  largest  traffic  between  the  citizens  of  the  country  north  and 
west  of  Chicago  and  the  citizens  of  the  country  lying  on  the  Atlantic- 
coast  north  of  Washington  is  in  grain  which  passes  through  the  eleva- 
tors of  Chicago.  In  this  way  the  trade  in  grain  is  carried  on  by  the  in- 
habitants of  seven  or  eight  of  the  great  states  of  the  West  with  four 
or  five  of  the  states  lying  on  the  sea-shore,  and  forms  the  largest  part 
of  interstate  commerce  in  these  states.  The  grain  warehouses  or 
elevators  in  Chicago  are  immense  structures,  holding 'from  300,000  to 
1,000,000  bushels  at  one  time,  according  to  size.  They  are  divided  in- 
to bins  of  large  capacity  and  great  strength.  *  *  *  They  are  lo- 
cated with  the  river  harbor  on  one  side  and  the  railway  tracks  on  the 
other;  and  the  grain  is  run  through  them  from  car  to  vessel,  or  boat 
to  car,  as  may  be  demanded  in  the  course  of  business.  It  has  been 
found  impossible  to  preserve  each  owner's  grain  separate,  and  this  has 
given  rise  to  a  system  of  inspection  and  grading,  by  which  the  grain 
of  different  owners  is  mixed,  and  receipts  issued  for  the  number  of 
bushels  which  are  negotiable,  and  redeemable  in  like  kind,  upon  de- 
mand. This  mode  of  conducting  the  business  was  inaugurated  more 
than  twenty  years  ago,  and  has  grown  to  immense  proportions.  The 
railways  have  found  it  impracticable  to  own  such  elevators,  and  public 
policy  forbids  the  transaction  of  such  business  by  the  carrier;    the 


Ch.  10)  DUB   PROCESS   AND    EQUALITY:     POLICB    POWBB 

ownership  has,  therefore,  been  by  private  individuals,  who  have  em- 
barked their  capital  and  devoted  their  industry  to  such  business  as  a 
private  pursuit." 

In  Uiis  connection  it  must  also  be  borne  in  mind  that,  although  in 
1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this  par- 
ticular business,  and  owned  by  about  thirty  persons,  nine  business  firms 
controlled  them,  and  that  the  prices  charged  and  received  for  storage 
were  such  "as  have  been  from  year  to  year  agreed  upon  and  established 
by  the  different  elevators  or  warehouses  in  the  city  of  Chicago,  and 
which  rates  have  been  annually  published  in  one  or  more  newspapers 
printed  in  said  city,  in  the  month  of  January  in  each  year,  as  the  es- 
tablished  rates  for  the  year  then  next  ensuing  such  publication."  Thus 
it  is  apparent  that  all  the  elevating  facilities  through  which  these  vast 
productions  "of  seven  or  eight  great  states  of  the  West*'  must  pass  on 
the  way  "to  four  or  five  of  the  states  on  the  sea-shore"  may  be  a  "vir- 
tual" monopoly. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the  common 
carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or  the  wharfin- 
ger, or  the  baker,  or  the  cartman,  or  the  hackney-coachman,  pursues  a 
public  employment  and  exercises  "a  sort  of  public  office,"  these  plain- 
tiffs in  error  do  not.  They  stand,  to  use  again  the  language  of  their 
counsel,  in  the  very  "gateway  of  commerce,"  and  take  toll  from  all 
who  pass.  Their  business  most  certainly  "tends  to  a  common  i 
and  is  become  a  thing  of  public  interest  and  use."  Every  bushel  of 
grain  for  its  passage  "pays  a  toll,  which  is  a  common  charge,"  and, 
therefore,  according  to  Lord  Hale,  every  such  warehouseman  "ought 
to  be  under  public  regulation,  viz.,  that  he  *  *  *  take  but  reason- 
able toll."  Certainly,  if  any  business  can  be  clothed  "with  a  public  in- 
terest and  cease  to  be  juris  privati  only,"  this  has  been.  It  may  not  be 
made  so  by  the  operation  of  the  Constitution  of  Illinois  or  this  statute, 
but  it  is  by  the  facts.     *     *     * 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can  be  found 
for  a  statute  precisely  like  this.  It  is  conceded  that  the  business  is 
one  of  recent  origin,  that  its  growth  has  been  rapid,  and  that  it  is  al- 
ready of  great  importance.  And  it  must  also  be  conceded  that  it  is  a 
business  in  which  the  whole  public  has  a  direct  and  positive  interest 
It  presents,  therefore,  a  case  for  the  application  of  a  long-known  and 
well-established  principle  in  social  science,  and  this  statute  simply  ex- 
tends the  law  so  as  to  meet  this  new  development  of  commercial  prog- 
ress. There  is  no  attempt  to  compel  these  owners  to  grant  the  public 
an  interest  in  their  property,  but  to  declare  their  obligations,  if  they 
use  it  in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built  their 
warehouses  and  established  their  1  .lations  com- 

plained of  were  adopted.  What  they  did  was  from  the  beginning  sub- 
ject to  the  power  of  the  body  politic  to  require  them  to  conform  to 


484  FUNDAMENTAL    RIGHTS  (Part  2 

such  regulations  as  might  be  established  by  the  proper  authorities  for 
the  common  good.  They  entered  upon  their  business  and  provided 
themselves  with  the  means  to  carry  it  on  subject  to  this  condition.  If 
they  did  not  wish  to  submit  themselves  to  such  interference,  they 
should  not  have  clothed  the  public  with  an  interest  in  their  concerns. 
The  same  principle  applies  to  them  that  does  to  the  proprietor  of  a 
hackney-carriage,  and  as  to  him  it  has  never  been  supposed  that  he 
was  exempt  from  regulating  statutes  or  ordinances  because  he  had 
purchased  his  horses  and  carriage  and  established  his  business  before 
the  statute  or  the  ordinance  was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  though  it  be  clothed  with  a 
public  interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a  legis- 
lative question. 

As  has  already  been  shown,  the  practice  has  been  otherwise.  In 
countries  where  the  common  law  prevails,  it  has  been  customary  from 
time  immemorial  for  the  legislature  to  declare  what  shall  be  a  reason- 
able compensation  under  such  circumstances,  or,  perhaps  more  prop- 
erly speaking,  to  fix  a  maximum  beyond  which  any  charge  made  would 
be  unreasonable.  Undoubtedly,  in  mere  private  contracts,  relating  to 
matters  in  which  the  public  has  no  interest,  what  is  reasonable  must 
be  ascertained  judicially.  But  this  is  because  the  legislature  has  no 
control  over  such  a  contract.  So,  too,  in  matters  which  do  affect  the 
public  interest,  and  as  to  which  legislative  control  may  be  exercised,  if 
there  are  no  statutory  regulations  upon  the  subject,  the  courts  must 
determine  what  is  reasonable.  The  controlling  fact  is  the  power  to 
regulate  at  all.  If  that  exists,  the  right  to  establish  the  maximum  of 
charge,  as  one  of  the  means  of  regulation,  is  implied.  In  fact,  the 
common-law  rule,  which  requires  the  charge  to  be  reasonable,  is  itself 
a  regulation  as  to  price.  Without  it  the  owner  could  make  his  rates 
at  will,  and  compel  the  public  to  yield  to  his  terms,  or  forego  the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest,  in 
any  rule  of  the  common  law.  That  is  only  one  of  the  forms  of  munici- 
pal law,  and  is  no  more  sacred  than  any  other.  Rights  of  property 
which  have  been  created  by  the  common  law  cannot  be  taken  away 
without  due  process ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be 
changed  at  the  will,  or  even  at  the  whim,  of  the  legislature,  unless  pre- 
vented by  constitutional  limitations.  Indeed,  the  great  office  of  statutes 
is  to  remedy  defects  in  the  common  law  as  they  are  developed,  and 
to  adapt  it  to  the  changes  of  time  and  circumstances.  To  limit  the 
rate  of  charge  for  services  rendered  in  a  public  employment,  or  for 
the  use  of  property  in  which  the  public  has  an  interest,  is  only  chang- 
ing a  regulation  which  existed  before.  It  establishes  no  new  princi- 
ple in  the  law,  but  only  gives  a  new  effect  to  an  old  one. 

We  know  that  this  is  a  power  which  may  be  abused ;   but  that  is  no 


Ch.  10)  DUB   PROCESS   AM;    Hjiauty;     POLICE   POWSB 

argument  against  its  existence.  For  protection  against  abuses  by  legis- 
latures the  people  must  resort  to  the  polls,  not  to  the  courts.     •     *     * 

Judgment  affirmed.8 

[Field,  J.,  gave  a  dissenting  opinion,  in  which  Strong,  J.,  concur- 
red.] 

-  Accord:  I'.udd  v.  Now  York,  143  U.  B.  .017,  12  Sup.  Ct.  468,  30  L.  I 
(Ls92»  (collecting  cases  of  rate  regulation  of  carriers,  warehousemen,  ai 
water,  telephone,   and  telegraph   compa 

Stolser,  153  U.  S.  391,  14  Sup.  Ct.  .s57,  38  L.  Ed.  757  (1894)  (grain  . 
In  state  where  no  monopoly);  Cottlng  v.  Kansas  City  Stock  Yards  ( 
U.  S.  79,  85,  22  Sup.  Ct  30,  46  L.  Ed.  B2  (18  in  Alli- 

ance Ins.  Co.  v.  Barnes,  189  Fed.  788  usurance);    ami  cases  con- 

cerning various  other  occupations  collected  in  6  L.  H.  A.  (N.  S.)  834. 

Contra:   American  Surety  Co.  of  New  York  v.  Shallenberger,   188  Fed.  030 
(surety  bonds);    Ex  pan.    I  I  Cal.  234,  77  Pac.  824,  81 

A.  928,  103  Am.  St.  Rep.  82,  1  Arm.  Cas.  428  (1904)  (employment  agencies). 

Compare  the  common  practice  of  legally  restricting  rates  of  interest,  (irlf 
nth  v.  Connecticut,  218  U.  S.  503,  569,  31  Sup.  Ct  134,  54   L.  Ed.  1165 
and  see  the  observations  of  Barclay,  J.  (dissenting),  In  State  v.  Loomls,  ante, 
p.   427,  note. 

Regulations  forbidding  discrimination  in  service  or  rates  by  businesses  af- 
fected by  a  public  interest  are  also  widely  upheld.    So,  places  ol  am  i 
People  v.  King,  110  N.  Y.  418,  18  N.  K.  245,  1   I..  K.  A.  293,  0  Am.  St.   Rep. 
389  (1S88);    Western  Turf  Ass'n  v.  Greenberg,  204  U.  S.  359.  27  Sup.  I 
51  L.  Ed.  520  (1907);    and   life  lnsurai  dee,  Equltabli 

Soc.  of  United  States   v.  Commonwealth,  113  Ky.    126,  67   8.   W.  888 
See  Seaboard  Air  Line  R.  Co.   v.  Florida  ex  rel.   Kills.  203  V.   S.  201,  2 
Ct.  109,  51  L.  Ed.  175  (190G)  (discrimination  not  permissible  even  U 
sary   for  a   profit).     Compare    Louisville   &    X.    K.    Co.    v.   Mottley,    219    I  .    8 
467,  81  Sup.  Ct.  205,  55  I..  Ed.  297.  34   1,.   It.  A.  i N.   S.)  071   (1911.  (retroactive 
invalidation  of  annual  pass  for  life  issued  in  settlement  of  damage  claim). 

As  to  the  validity  of  various  kinds  of  mandatory  regulation  of  such  busi- 
nesses, see  Gladson  v.  Minnesota,    166  <'•  S.  427.  17  Sup.  Ct  027.  41  I..   Ed 
1064  (1S97);    Lake  Shore  &  M.  S.   Ky.  Co.   v.  Ohio  ex  rel.  Lawrence.   17::    I 
s.  285,  19  Sup.  Ct  405.  43  L.  Ed.  702  (1899);    Wisconsin,   M.  A   r.  R  O 
v.   Jacobson,   179   U.   S.   2S7.  21    Sup.   Ct.    115.    15   L.    Ed.   194    (1900);     W.    W 
Cargill  Co.  v.  Minnesota  ex  rel.  Railroad  &   YV.  Commission,   I 
21   Snp.  Ct.  423,  45  L.  Ed.  019  (19(H):    Minneapolis  *  St.   I..  R.   Co.   v. 
sota  ex  rel.  Railroad  &  yv.  Commission,  198  0.  S,  58,  24  Sup.  ct. 
L.    Id.  014   (1904);    Louisville  &  N.    B.   Co.   v.   Central   Stock   Yards  I 
U.   S.   132,  29  Sup.  Ct.   240,  53   L.    Ed.   441  sourl  Pac.  R. 

a,    2:7    D.    S.    190,  30    Sup.   Ct.   461,    51    I..    I'd.    727.    IS   Ann.   C 
(1910):    Atlantic   Coast  Line   R.  Co.    v.   Riverside   Mills,   21:1    r.   s. 

Sup  Ct.  104,  55  L.  Ed.   107.   31    L.   R.  A.  IN.   S.I   7  (1911)  :    V. 

child,  224  U.  S.  510,  32  Sup.  ct.  535,  56  I..   Ed  863  Q.QU        •  ■>,  B.  & 

g.  I:.  Co.  v.  Cram.  228  V.  s.  70.  .".::  Sup.  CI 

also,  State  v.  Seougal.  3  S.  1>.  55,  75,  51   N    W.  858,  15  I..  K.  A.    177.   It  Ai„ 

St.  Rep.   750  (1892)   (hanking  affected  by  a  public   interest);    Y\ 

.•Mile.    p.    457. 

Can  a  business  which  does  not  offer  to  perform  services  for  any  one 
than   its   owner,  hut  which  occupies  a   position  of  great   1  1   physi- 

cal advantage,   like  .1  private  pipe  line  for  oil,   he  compelled  by  stal 
serve  the  public  for  lust  cot  unless  it  is  taken  outright  by  eminent 

domain?    See  Prairie  Oil  4  Gas  Co.  v.   Dnited  States.  204  Fed.  79<  (191::.. 


486  FUNDAMENTAL    RIGHTS  (Part  2 


REAGAN  v.  FARMERS'  LOAN  &  TRUST  CO. 

(Supreme  Court  of  United  States,  1894.     154  D.  S.  362,  14  Sup.  Ct  1047,  38 
L,.  Ed.  1014.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Western  Dis- 
trict of  Texas.  A  Texas  statute  established  a  railroad  commission 
and  authorized  it  to  fix  reasonable  rates  for  freight  and  passenger 
service  in  the  state,  after  notice  and  hearing  to  the  railroads  affected. 
The  rates  thus  established  were  to  be  deemed  reasonable  until  the  con- 
trary was  found  in  a  proceeding  instituted  for  this  purpose  by  a  rail- 
road in  a  court  of  competent  jurisdiction  in  Travis  county,  Texas,  and 
the  burden  of  proving  them  unreasonable  by  clear  evidence  was  placed 
on  the  railroad.  The  plaintiff  trust  company,  on  behalf  of  bondholders 
of  the  International  &  Great  Northern  Railroad,  filed  a  bill  against  the 
commission  and  the  state  Attorney  General  in  the  federal  Circuit  Court 
having  jurisdiction  in  Travis  county,  alleging  in  detail  the  unreason- 
ableness of  a  schedule  of  freight  rates  established  for  said  railroad  by 
the  commission,  and  asking  an  injunction  against  its  enforcement. 
From  a  decree  in  favor  of  the  plaintiff,  defendants  took  this  appeal. 
Other  facts  appear  in  the  opinion.] 

Mr.  Justice  Brewer.  *  *  *  It  appears  from  the  bill  that,  in 
pursuance  of  the  powers  given  to  it  by  this  act,  the  state  commission 
has  made  a  body  of  rates  for  fares  and  freights.  This  body  of  rates, 
as  a  whole,  is  challenged  by  the  plaintiff  as  unreasonable,  unjust,  and 
working  a  destruction  of  its  rights  of  property.  The  defendant  denies 
the  power  of  the  court  to  entertain  an  inquiry  into  that  matter,  insisting 
that  the  fixing  of  rates  for  carriage  by  a  public  carrier  is  a  matter 
wholly  within  the  power  of  the  legislative  department  of  the  govern- 
ment and  beyond  examination  by  the  courts. 

It  is  doubtless  true,  as  a  general  proposition,  that  the  formation  of 
a  tariff  of  charges  for  the  transportation  by  a  common  carrier  of  per- 
sons or  property  is  a  legislative  or  administrative  rather  than  a  ju- 
dicial function.  Yet  it  has  always  been  recognized  that,  if  a  carrier 
attempted  to  charge  a  shipper  an  unreasonable  sum,  the  courts  had 
jurisdiction  to  inquire  into  that  matter  and  to  award  to  the  shipper 
any  amount  exacted  from  him  in  excess  of  a  reasonable  rate ;  and  also 
in  a  reverse  case  to  render  judgment  in  favor  of  the  carrier  for  the 
amount  found  to  be  a  reasonable  charge.  The  province  of  the  courts 
is  not  changed,  nor  the  limit  of  judicial  inquiry  altered,  because  the 
legislature  instead  of  the  carrier  prescribes  the  rates.  The  courts 
are  not  authorized  to  revise  or  change  the  body  of  rates  imposed  by  a 
legislature  or  a  commission ;  they  do  not  determine  whether  one  rate 
is  preferable  to  another,  or  what  under  all  circumstances  would  be 
fair  and  reasonable  as  between  the  carriers  and  the  shippers ;  they  do 
not  engage  in  any  mere  administrative  work ;  but  still  there  can  be 
no  doubt  of  their  power  and  duty  to  inquire  whether  a  body  of  rates 


Ch.  10)  DDB  PBOCBSS  AND  EQUALITY:     POLICB  POWBB  487 

prescribed  by  a  legislature  or  a  commission  is  unjust  and  unreasonable, 
and  such  as  to  work  a  practical  destruction  to  rights  of  property,  and 
if  found  so  to  be,  to  restrain  its  operation.  *  *  *  [Here  follow 
quotations  from  various  cases,  particularly  Railroad  Commission  Cas- 
es, 116  U.  S.  307,  331,  6  Sup.  Ct.  334,  3M,  1191,  29  L.  Ed.  036,  and 
Chicago,  etc.,  Ry.  v.  Minnesota,  ante,  p.  300.] 

These  cases  all  support  the  proposition  that  while  it  is  not  the  prov- 
ince of  the  courts  to  enter  upon  the  merely  administrative  duly  of 
framing  a  tariff  of  rates  for  carriage,  it  is  within  the  scope  of  judicial 
power  and  a  part  of  judicial  duty  to  restrain  anything  which,  in  the 
form  of  a  regulation  of  rates,  operates  to  deny  to  the  owners  of  proper- 
ty invested  in  the  business  of  transportation  that  equal  protection  which 
is  the  constitutional  right  of  all  owners  of  other  property.  There  is 
nothing  new  or  strange  in  this.  It  has  always  been  a  part  of  the  ju- 
dicial function  to  determine  whether  the  act  of  one  party  (whether 
that  party  be  a  single  individual,  an  organized  body,  or  the  public  as  a 
whole)  operates  to  divest  the  other  party  of  any  rights  of  person  or 
property.  In  every  Constitution  is  the  guarantee  against  the  taking  of 
private  property  for  public  purposes  without  just  compensation.  The 
equal  protection  of  the  laws  which,  by  the  fourteenth  amendment,  m> 
state  can  deny  to  the  individual,  forbids  legislation,  in  whatever  form 
it  may  be  enacted,  by  which  the  property  of  one  individual  is,  without 
compensation,  wrested  from  him  for  the  benefit  of  another,  or  of  the 
public.  This,  as  has  been  often  observed,  is  a  government  of  law,  and 
not  a  government  of  men,  and  it  must  never  be  forgotten  that  under 
such  a  government,  with  its  constitutional  limitations  and  guarantees, 
the  forms  of  law  and  the  machinery  of  government,  with  all  their 
reach  and  power,  must  in  their  actual  workings  stop  on  the  hither  side 
of  the  unnecessary  and  uncompensated  taking  or  destruction  of  any 
private  property,  legally  acquired  and  legally  held.  It  was,  therefore, 
within  the  competency  of  the  Circuit  Court  of  the  United  States  for 
the  Western  District  of  Texas,  at  the  instance  of  the  plaintiff,  a  cit- 
izen of  another  state,  to  enter  upon  an  inquiry  as  to  the  reasonableness 
and  justice  of  the  rates  prescribed  by  the  railroad  commission.  In- 
deed, it  was  in  so  doing  only  exercising  a  power  expressly  named  in 
the  act  creating  the  commission.     *     *     * 

And  now,  what  deductions  are  fairly  to  be  drawn  from  all  the  facts 
before  us?  Is  there  anything  which  detracts  from  the  force  of  the 
general  allegation  that  these  rates  are  unjust  and  unreasonable?  This 
clearly  appears.  The  cost  of  this  railroad  property  was  $40,000,000; 
it  cannot  be  replaced  to-day  for  less  than  $25,000,000.  There  are  $15,- 
000,000  of  mortgage  bonds  outstanding  against  it,  and  nearly  $10.- 
000.000  of  stock.  These  bonds  and  stock  represent  money  invested  in 
the  construction  of  this  road.  The  owners  of  the  stock  have  never  re- 
ceived a  dollar's  worth  of  dividends  in  return  for  their  investment 
The  road  was  thrown  into  the  hands  of  a  receiver  for  default  in  pay- 
ment of  the  interest  on  the  bonds.     The  earnings  for  the  last  three 


488  FUNDAMENTAL    RIGHTS  (Part  2 

years  prior  to  the  establishment  of  these  rates  was  insufficient  to  pay 
the  operating  expenses  and  the  interest  on  the  bonds.  In  order  to 
make  good  the  deficiency  in  interest  the  stock-holders  have  put  their 
hands  in  their  pockets  and  advanced  over  a  million  of  dollars.  The 
supplies  for  the  road  have  been  purchased  at  as  cheap  a  rate  as  possi- 
ble. The  officers  and  employes  have  been  paid  no  more  than  is  neces- 
sary to  secure  men  of  the  skill  and  knowledge  requisite  to  suitable  op- 
eration of  the  road.  By  the  voluntary  action  of  the  company  the  rate 
in  cents  per  ton  per  mile  has  decreased  in  ten  years  from  2.03  to  1.30. 
The  actual  reduction  by  virtue  of  this  tariff  in  the  receipts  during  the 
six  or  eight  months  that  it  has  been  enforced  amounts  to  over  $150,- 
000.  Can  it  be  that  a  tariff  which  under  these  circumstances  has  work- 
ed such  results  to  the  parties  whose  money  built  this  road  is  other  than 
unjust  and  unreasonable?  Would  any  investment  ever  be  made  of 
private  capital  in  railroad  enterprises  with  such  as  the  proffered  re- 
sults? 

It  is  unnecessary  to  decide,  and  we  do  not  wish  to  be  understood  as 
laying  down  as  an  absolute  rule,  that  in  every  case  a  failure  to  produce 
some  profit  to  those  who  have  invested  their  money  in  the  building  of 
a  road  is  conclusive  that  the  tariff  is  unjust  and  unreasonable.  And 
yet  justice  demands  that  every  one  should  receive  some  compensation 
for  the  use  of  his  money  or  property,  if  it  be  possible  without  prejudice 
to  the  rights  of  others.  There  may  be  circumstances  which  would  jus- 
tify such  a  tariff;  there  may  have  been  extravagance  and  a  needless 
expenditure  of  money ;  there  may  be  waste  in  the  management  of  the 
road;  enormous  salaries,  unjust  discrimination  as  between  individual 
shippers,  resulting  in  general  loss.  The  construction  may  have  been 
at  a  time  when  material  and  labor  were  at  the  highest  price,  so  that 
the  actual  cost  far  exceeds  the  present  value ;  the  road  may  have  been 
unwisely  built,  in  localities  where  there  is  no  sufficient  business  to  sus- 
tain a  road.  Doubtless,  too,  there  are  many  other  matters  affecting 
the  rights  of  the  community  in  which  the  road  is  built  as  well  as  the 
rights  of  those  who  have  built  the  road. 

But  we  do  hold  that  a  general  averment  in  a  bill  that  a  tariff  as  es- 
tablished is  unjust  and  unreasonable,  is  supported  by  the  admitted  facts 
that  the  road  cost  far  more  than  the  amount  of  the  stock  and  bonds 
outstanding;  that  such  stock  and  bonds  represent  money  invested  in 
its  construction ;  that  there  has  been  no  waste  or  mismanagement  in 
the  construction  or  operation ;  that  supplies  and  labor  have  been  pur- 
chased at  the  lowest  possible  price  consistent  with  the  successful  op- 
eration of  the  road ;  that  the  rates  voluntarily  fixed  by  the  company 
have  been  for  ten  years  steadily  decreasing  until  the  aggregate  decrease 
has  been  more  than  fifty  per  cent. ;  that  under  the  rates  thus  volun- 
tarily established,  the  stock,  which  represents  two-fifths  of  the  value, 
has  never  received  anything  in  the  way  of  dividends,  and  that  for  the 
last  three  years  the  earnings  above  operating  expenses  have  been  in- 
sufficient to  pay  the  interest  on  the  bonded  debt,  and  that  the  proposed 


Ch.  10)  DUE   IK'"  BS8  AND  EQUALITY:     POLICE  POWEB 

tariff,  as  enforced,  will  so  diminish  the  earnings  that  they  will  not  be 
able  to  pay  one-half  the  interest  on  the  bonded  debt  above  the  operat- 
ing expenses ;  and  that  such  an  averment  so  supported  will,  in  the  ab- 
sence of  any  satisfactory  showing  to  the  contrary,  sustain  a  finding 
that  the  proposed  tariff  is  unjust  and  unreasonable,  and  a  decree  re- 
versing it  being  put  in  force.  *  *  • 
Decree  affirmed  (as  to  this  point).1 


SAN  DIEGO  LAND  &  TOWN  CO.  v.  NATIONAL  CITY  (1899) 
174  U.  S.  739,  754-758,  19  Sup.  Ct.  804,  43  L.  Ed.  1154,  Mr.  Justice 
Harlan  (upholding  a  municipal  schedule  of  water  rates) : 

'"What  elements  are  involved  in  the  general  inquiry  as  to  the  rea- 
sonableness of  rates  established  by  law  for  the  use  of  property  by 
the  public?  This  question  received  much  consideration  in  Smvth  v. 
Ames  [169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  Ed.  819].  That  case, 
it  is  true,  related  to  rates  established  by  a  statute  of  Nebraska  for  rail- 
road companies  doing  business  in  that  state.  But  the  principles  in- 
volved in  such  a  case  are  applicable  to  'the  present  case.  It  was  there 
contended  that  a  railroad  company  was  entitled  to  exact  such  charges 
for  transportation  as  would  enable  it  at  all  times,  not  only  to  pay 
operating  expenses,  but  to  meet  the  interest  regularly  accruing  upon 
all  its  outstanding  obligations,  and  justify  a  dividend  upon  all  its 
stock ;  and  that  to  prohibit  it  from  maintaining  rates  or  charges  for 
transportation  adequate  to  all  those  ends  would  be  a  deprivation  of 
property  without  due  process  of  law,  and  a  denial  of  the  equal  pro- 
tection of  the  laws.  After  observing  that  this  broad  proposition  in- 
volved a  misconception  of  the  relations  between  the  public  and  a  rail- 
road corporation,  that  such  a  corporation  was  created  for  public  pur- 
poses, and  performed  a  function  of  the  state,  and  that  its  right  to 
exercise  the  power  of  eminent  domain,  and  to  charge  tolls,  was  given 
primarily  for  the  benefit  of  the  public,  this  court  said:  'It  cannot, 
therefore,  be  admitted  that  a  railroad  corporation  maintaining  a 
way  under  the  authority  of  the  state  may  fix  its  rates  with  a  view- 
solely  to  its  own  interests,  and  ignore  the  rights  of  the  public.  But 
the  rights  of  the  public  would  be  ignored  if  rates  for  the  transporta- 
tion of  persons  or  property  on  a  railroad  are  exacted  without  ref- 
erence to  the  fair  value  of  the  property  used  for  the  public,  or  the 
fair  value  of  the  services  rendered,  but  in  order  simply  that  the  cor- 
poration may  meet  operating  expenses,  pay  the  interest  on  its 
tions,  and  declare  a  dividend  to  stockholders.  If  a  railroad  o 
tion  has  bonded  its  property  for  an  amount  that  exceeds  its  fair  value, 
or  if  its  capitalization  is  lareelv  fictitious,  it  may  not  impose  u; 
public  the  burden  of  such  increased  rates  as  may  be  required   : 

•  A.-.ord:    Suivth   v.   Ames.   169   U.  S.   400,   18  Sup.   Ct.  418,  42  L.    I 
(1898),  In  an  elaborate  opinion. 


490  FUNDAMENTAL    RIGHTS  (Part  1 

purpose  of  realizing  profits  upon  such  excessive  valuation  or  fictitious 
capitalization ;  and  the  apparent  value  of  the  property  and  franchises 
used  by  the  corporation,  as  represented  by  its  stocks,  bonds,  and  ob- 
ligations, is  not  alone  to  be  considered  when  determining  the  rates 
that  may  be  reasonably  charged.'  169  U.  S.  544,  18  Sup.  Ct.  433,  42 
L,.  Ed.  819.  In  the  same  case  it  was  also  said  that  'the  basis  of  all 
calculation  as  to  the  reasonableness  of  rates  to  be  charged  by  a  cor- 
poration maintaining  a  highway  under  legislative  sanction  must  be 
the  fair  value  of  the  property  used  by  it  for  the  convenience  of  the 
public.  And,  in  order  to  ascertain  that  value,  the  original  cost  of 
construction,  the  amount  expended  in  permanent  improvements,  the 
amount  and  market  value  of  its  bonds  and  stock,  the  present  as  com- 
pared with  the  original  cost  of  construction,  the  probable  earning 
capacity  of  the  property  under  particular  rates  prescribed  by  statute, 
and  the  sum  required  to  meet  operating  expenses,  are  all  matters  for 
consideration,  and  are  to  be  given  such  weight  as  may  be  just  and 
right  in  each  case.  We  do  not  say  that  there  may  not  be  other  matters 
to  be  regarded  in  estimating  the  value  of  the  property.  What  the 
company  is  entitled  to  ask  is  a  fair  return  upon  the  value  of  that 
which  it  employs  for  the  public  convenience.  On  the  other  hand,  what 
the  public  is  entitled  to  demand  is  that  no  more  be  exacted  from  it 
for  the  use  of  a  public  highway  than  the  services  rendered  by  it  are 
reasonably  worth.'   169  U.  S.  546,  18  Sup.  Ct.  434,  42  L.  Ed.  819. 

"This  court  had  previously  held  in  Road  Co.  v.  Sandford,  164  U. 
S.  578,  596,  598,  17  Sup.  Ct.  198,  41  L.  Ed.  560,  which  case  involved 
the  reasonableness  of  rates  established  by  legislative  enactment  for 
a  turnpike  company,  that  a  corporation  performing  public  services 
was  not  entitled,  as  of  right,  and  without  reference  to  the  interests  of 
the  public,  to  realize  a  given  per  cent,  upon  its  capital  stock ;  that 
stockholders  were  not  the  only  persons  whose  rights  or  interests  were 
to  be  considered ;  and  that  the  rights  of  the  public  were  not  to  be 
ignored.1  The  court  in  that  case  further  said :  'Each  case  must  de- 
pend upon  its  special  facts;  and  when  a  court,  without  assuming  it- 
self to  prescribe  rates,  is  required  to  determine  whether  the  rates 
prescribed  by  the  legislature  for  a  corporation  controlling  a  public 
highway  are,  as  an  entirety,  so  unjust  as  to  destroy  the  value  of  its 
property  for  all  the  purposes  for  which  it  was  acquired,  its  duty  is  to 


»  In  Norfolk  &  S.  Turnpike  Co.  v.  Commonwealth  of  Virginia,  225  V.  S. 
264,  32  Sup.  Ct.  828,  56  L.  Ed.  10S2  (1912),  It  was  held  the  state  might  sus- 
pend the  collecting  of  tolls  by  a  turnpike  company  while  its  roads  were  out 
of  repair,  even  though  the  travel  on  them  did  not  yield  enough  revenue  to 
keep  them  repaired :  White,  C.  J.,  saying  (225  U.  S.  271,  32  Sup.  Ct.  S31,  56 
L.  Ed.  10S2):  "To  suspend  the  taking  of  tolls  while  the  roads  were  out  of 
repair  manifestly  was  not  a  taking  of  property,  but  was  simply  a  method 
provided  by  statute  to  enforce  the  discharge  of  the  public  duty  respecting  the 
safe  and  convenient  maintenance  of  a  public  highway.  In  other  words, 
*  *  *  the  burden  of  keeping  the  turnpikes  in  repair  was  made  a  condition 
precedent  to  the  right  to  collect  tolls." 


Ch.  10)  DUE   PEOCB88   AND    l-.glAl.111  '.     POLK  I.    i  4!H 

take  into  consideration  the  interests  both  of  the  public  and  of  the 
owner  of  the  property,  together  with  all  other  circumstances  that  are 
fairly  to  be  considered  in  determining  whether  the  legislature  has,  un- 
der the  guise  of  regulating  rates,  exceeded  its  constitutional  authority, 
and  practically  deprived  the  owner  of  property  without  due  process 
of  law.  *  *  *  The  utmost  that  any  corporation  operating  a  public 
highway  can  rightfully  demand  at  the  hands  of  the  legislature,  when 
exerting  its  general  powers,  is  that  it  receives  what,  under  all  the 
circumstances,  is  such  compensation  for  the  use  of  its  property  as 
will  be  just,  both  to  it  and  to  the  public' 

"These  principles  are  recognized  in  recent  decisions  of  the  supreme 
court  of  California.  San  Diego  Water  Co.  v.  City  of  San  Diego  (1897) 
118  Cal.  556,  50  Pac.  633,  3S  L.  R.  A.  460,  62  Am.  St.  Rep.  261 ;  Red- 
lands  L.  &  C.  Domestic  Water  Co.  v.  City  of  Redlands  (1898)  121 
Cal.  365,  53  Pac.  843,  844. 

"The  contention  of  the  appellant  in  the  present  case  is  that  in  as- 
certaining what  are  just  rates  the  court  should  take  into  considera- 
tion the  cost  of  its  plant;  the  cost  per  annum  of  operating  the  plant, 
including  interest  paid  on  money  borrowed,  and  reasonably  necessary 
to  be  used  in  constructing  the  same ;  the  annual  depreciation  of  the 
plant  from  natural  causes  resulting  from  its  use;  and  a  fair  profit 
to  the  company  over  and  above  such  charges  for  its  services  in  sup- 
plying the  water  to  consumers,  either  by  way  of  interest  on  the  money 
it  has  expended  for  the  public  use,  or  upon  some  other  fair  and  equita- 
ble basis.  Undoubtedly  all  these  matters  ought  to  be  taken  into  con- 
sideration, and  such  weight  be  given  them,  when  rates  are  being  fixed. 
as,  under  all  the  circumstances,  will  be  just  to  the  company  and  to  the 
public.  The  basis  of  calculation  suggested  by  the  appellant  is,  how- 
ever, defective  in  not  requiring  the  real  value  of  the  property  and 
the  fair  value  in  themselves  of  the  services  rendered  to  be  taken  into 
consideration.  What  the  company  is  entitled  to  demand,  in  order  that 
it  may  have  just  compensation,  is  a  fair  return  upon  the  reasonable 
value  of  the  property  at  the  time  it  is  being  used  for  the  public.  The 
property  may  have  cost  more  than  it  ought  to  have  cost,  and  its  out- 
standing bonds  for  money  borrowed  and  which  went  into  the  plant  may 
be  in  excess  of  the  real  value  of  the  property.  So  that  it  cannot  be 
said  that  the  amount  of  such  bonds  should  in  every  case  control  the 
question  of  rates,  although  it  may  be  an  element  in  the  inquiry  as  to 
what  is,  all  the  circumstances  considered,  just,  both  to  the  company 
and  to  the  public."  2 

2  Compare  the  Individual  opinion  of  Brewer,  J..  In  CnttlnK  v.  Kan- 
Stock  Yards  (V.  183  0.  8.  79,  91  ff.,  22  Sup.  Ct  80,  4>'.  I 
gestlng  a  different  basis  for  rutes  where  the  service  rendered  U  not  govern 
mental  Is  its  nature. 


492  FUNDAMENTAL    RIGHTS  (Part  2 

CITY  OF  KNOXVILLE  v.  KNOXVILLE  WATER  CO. 

(Supreme  Court  of  United  States,  1909.     i!12  U.  S.  1,  29  Sup.  Ct  148,  53  L. 
Ed.  371.) 

[Appeal  from  the  federal  Circuit  Court  for  the  Eastern  District  of 
Tennessee  to  review  a  decree  enjoining  the  enforcement  of  a  municipal 
ordinance  fixing  water  rates  of  plaintiff  company.  A  special  master, 
to  whom  the  cause  was  referred,  found  various  facts,  indicated  in  the 
opinion  below,  from  which  he  inferred  that  the  new  rates  would  earn 
an  income  of  less  than  6  per  cent,  upon  the  value  of  the  company's 
property.  He  thought  the  company  entitled  to  earn  8  per  cent.,  2  per 
cent,  of  which  was  for  depreciation.  The  Circuit  Court  confirmed  the 
master's  report  and  issued  the  injunction.] 

Mr.  Justice  Moody.  *  *  *  At  the  threshold  of  the  considera- 
tion of  the  case  the  attitude  of  this  court  to  the  facts  found  below 
should  be  denned.  Here  are  findings  of  fact  by  a  master,  confirmed 
by  the  court.  The  company  contends  that  under  these  circumstances, 
the  findings  are  conclusive  in  this  court,  unless  they  are  without  sup- 
port in  the  evidence,  or  were  made  under  the  influence  of  erroneous 
views  of  law.  We  need  not  stop  to  consider  what  the  effect  of  such 
findings  would  be  in  an  ordinary  suit  in  equity.  The  purpose  of  this 
suit  is  to  arrest  the  operation  of  a  law  on  the  ground  that  it  is  void  and 
of  no  effect.  It  happens  that  in  this  particular  case  it  is  not  an  act  of 
the  legislature  that  is  attacked,  but  an  ordinance  of  a  municipality. 
Nevertheless  the  function  of  rate-making  is  purely  legislative  in  its 
character,  and  this  is  true,  whether  it  is  exercised  directly  by  the  legisla- 
ture itself  or  by  some  subordinate  or  administrative  body,  to  whom  the 
power  of  fixing  rates  in  detail  has  been  delegated.  The  completed  act 
derives  its  authority  from  the  legislature  and  must  be  regarded  as  an 
exercise  of  the  legislative  power.  Prentis  v.  Southern  R.  Co.,  211  U. 
S.  210,  29  Sup.  Ct.  67,  53  L.  Ed.  150;  Honolulu  Rapid  Transit  & 
Land  Co.  v.  Hawaii,  211  U.  S.  282,  29  Sup.  Ct.  55,  53  L.  Ed.  186. 

There  can  be  at  this  day  no  doubt,  on  the  one  hand,  that  the  courts, 
on  constitutional  grounds,  may  exercise  the  power  of  refusing  to  en- 
force legislation,  nor,  on  the  other  hand,  that  that  power  ought  to  be 
exercised  only  in  the  clearest  cases.  The  constitutional  invalidity 
should  be  manifest,  and  where  that  invalidity  rests  upon  disputed  ques- 
tions of  fact,  the  invalidating  facts  must  be  proved  to  the  satisfaction 
of  the  court.  In  view  of  the  character  of  the  judicial  power  invoked 
in  such  cases  it  is  not  tolerable  that  its  exercise  should  rest  securely 
upon  the  findings  of  a  master,  even  though  they  be  confirmed  by  the 
trial  court.  The  power  is  best  safeguarded  against  abuse  by  preserv- 
ing to  this  court  complete  freedom  in  dealing  with  the  facts  of  each 
case.  Nothing  less  than  this  is  demanded  by  the  respect  due  from  the 
judicial  to  the  legislative  authority.  It  must  not  be  understood  that  the 
findings  of  a  master,  confirmed  by  the  trial  court,  are  without  weight, 


Ch.  10)  DUB  PROCESS  AND   EQUALITY:     POL]  4'J3 

or  that  they  will  not,  as  a  practical  question,  sometimes  be  .regarded  as 
conclusive.    All  that  is  intended  to  be  said  is,  that  in  cases  of  this  char- 
acter this  court  will  not  fetter  its  discretion  or  judgmen: 
tilkial  rules  as  to  the  weight  of  the  master's  findings,  ho 
and  well  settled  these  rules  may  be  in  ordinary  litigation.    '. 
the  discussion  of  the  facts  in  this  spirit. 

The  first  fact  essential  to  the  conclusion  of  the  court  below  is  the 
valuation  of  the  property  devoted  to  the  public  uses,  upon  which  the 
company  is  entitled  to  earn  a  return.    That  valuation  ($60S,000)  must 
now  be  considered.    It  was  made  up  by  adding  to  the  appraiser 
minute  detail  of  all  the  tangible  property,  the  sum  of  $10,000  foi 
ganization,  promotion,  etc.,"  and  $60,000  for  "going  concern."     The 
latter  sum  we  understand  to  be  an  expression  of  the  added  value  of  the 
plant  as  a  whole  over  the  sum  of  the  values  of  its  component  parts, 
which  is  attached  to  it  because  it  is  in  active  and  successful  operation 
and  earning  a  return.1     We  express  no  opinion  as  to  the  propriety  of 
including  these  two  items  in  the  valution  of  the  plant,  for  the  purpose 
for  which  it  is  valued  in  this  case,  but  leave  that  question  to  be  con- 
sidered when  it  necessarily  arises.    We  assume,  without  deciding,  that 
these  items  were  properly  added  in  this  case.    The  value  of  the 
ble  property  found  by  the  master  is,  of  course,  $608,000,  lessened  by 
$70,000,  the  value  attributed  to  the  intangible  property,  making 
000.     This  valuation    was  determined  by  the  master  by  ascertaining 
what  it  would  cost,  at  the  date  of  the  ordinance,  to  reproduce  the  exist- 
ing plant  as  a  new  plant.     *     *     * 

The  cost  of  reproduction  is  not  always  a  fair  measure  of  the  present 
value  of  a  plant  which  has  been  in  use  for  many  years.  The  items 
composing  the  plant  depreciate  in  value  from  year  to  year  in  a  vary- 
ing degree.  Some  pieces  of  property,  like  real  estate  for  instance,  de- 
preciate not  at  all,  and  sometimes,  on  the  other  hand,  appreciate  in 
value.  But  the  reservoirs,  the  mains,  the  service  pipes,  structures  upon 
real  estate,  standpipes,  pumps,  boilers,  meters,  tools  and  appliances  of 
every  kind  begin  to  depreciate  with  more  or  less  rapidity  from  the  mo- 
ment of  their  first  use.     It  is  not  easy  to  fix  at  any  given  time  the 

i  In  Cedar  Rapids  Gas  Light  Co.  v.  Cedar  Rapids.  223  I'.   S. 
32  Sup.  Ct.  389,  390  (56  t*  Ed.  594)  (1912),  a  gaa  rate  case,  Holmes,  J.,  said: 
"Although  it  is  argued  that  the  court  excluded  going  value,  the  cot 
took  into  account  the  fact  that  the  plant  was  in  successful  operation.     What 
it  excluded   was  the  good  will  or  advantage  Incident  to  the  p 
monopoly,  so  far  as  that  might  be 
charge  more  than  a  reasonable  pi  I 

York.  212  1.  s.  19,  52,  29  Sup.  Ct  192  52,  399,  10  At 

An  adju  Is  sort  under  a  pi  v  i     to  i 

Scylla  and  Charybdls.     On  the  one  side,  if  the  franchise  Is  taken  to 
that  the  able  return 

protected  by  the  fourteenth  amendment,  then  the  power  to  regulate 
On  the  other  hand,  if  the  power  to  regulate  withdraws  the  protection  of  the 

economic  theory,  hut  of  fair  interpretation  of  a  bargain.     Neither  extn 
have  heeu  meant.     A  midway  between  them  must  he  hit" 


494  FUNDAMENTAL    RIGHTS  (Part  - 

amount  of  depreciation  of  a  plant  whose  component  parts  are  of  dif- 
ferent ages,  with  different  expectations  of  life.  But  it  is  clear  that 
some  substantial  allowance  for  depreciation  ought  to  have  been  made 
in  this  case.  The  officers  of  the  company,  alio  intuitu,  estimated  what 
they  called  "incomplete  depreciation"  of  this  plant  (which  we  under- 
stand to  be  the  depreciation  of  the  surviving  parts  of  it  still  in  use)  at 
$77,000,  which  is  14  per  cent  of  the  master's  appraisement  of  the  tangi- 
ble property.  A  witness  called  by  the  city  placed  the  reproduction  val- 
ue of  the  tangible  property  at  $363,000,  and  estimated  the  allowance 
that  should  be  made  for  depreciation  at  $118,000,  or  32  per  cent.  In 
the  view  we  take  of  the  case  it  is  not  necessary  that  we  should  under- 
take the  difficult  task  of  determining  exactly  how  much  the  master's 
valuation  of  the  tangible  property  ought  to  have  been  diminished  by 
the  depreciation  which  that  property  had  undergone.  It  is  enough  to 
say  that  there  should  have  been  a  considerable  diminution,  sufficient, 
at  least,  to  raise  the  net  income  found  by  the  court  above  6  per  cent  up- 
on the  whole  valuation  thus  diminished.  If,  for  instance,  the  master's 
valuation  should  be  diminished  by  $50,000,  allowed  for  depreciation, 
the  net  earnings  found  by  him  would  show  a  return  of  substantially  6.5 
per  cent. 

Counsel  for  the  company  urge  rather  faintly  that  the  capitalization 
of  the  company  ought  to  have  some  influence  in  the  case  in  determining 
the  valuation  of  the  property.  It  is  a  sufficient  answer  to  this  conten- 
tion that  the  capitalization  is  shown  to  be  considerably  in  excess  of  any 
valuation  testified  to  by  any  witness,  or  which  can  be  arrived  at  by 
any  process  of  reasoning.  The  cause  for  the  large  variation  between 
the  real  value  of  the  property  and  the  capitalization  in  bonds  and  pre- 
ferred and  common  stock  is  apparent' from  the  testimony.  All,  or  sub- 
stantially all,  the  preferred  and  common  stock  was  issued  to  contractors 
for  the  construction  of  the  plant,  and  the  nominal  amount  of  the  stock 
issued  was  greatly  in  excess  of  the  true  value  of  the  property  furnished 
by  the  contracts.  A  single  instance  taken  from  the  testimony  will  illus- 
trate this.  At  the  very  start  of  the  enterprise  a  contract  was  entered 
into  for  the  construction  of  a  part  of  the  plant,  which  was  of  a  value 
slightly,  if  at  all,  exceeding  $125,000.  The  price  paid  the  contractor 
was  $125,000  in  bonds  and  $200,000  in  common  stock.  Other  contracts 
for  construction  showed  a  like  disproportion  between  value  furnished 
and  nominal  capitalization  received  for  that  value.  It  perhaps  is  un- 
necessary to  say  that  such  contracts  were  made  by  the  company  with 
persons  who,  at  the  time,  by  stock  ownership,  controlled  its  action. 
Bonds  and  preferred  and  common  stock  issued  under  such  conditions 

afford  neither  measure  of,  nor  guide  to,  the  value  of  the  property 
*     *     * 

The  company's  original  case  was  based  upon  an  elaborate  analysis 
of  the  cost  of  construction.  To  arrive  at  the  present  value  of  the  plant 
large  deductions  were  made  on  account  of  the  depreciation.  This  de- 
preciation was  divided  into  complete  depreciation  and  incomplete  de- 


Ch.  10)  DUB   PROCESS   AND   EQUALITY:     POUCH   POWBB 

preciation.  The  complete  depreciation  represented  that  part  of  the 
original  plant  which,  through  destruction  or  obsolescence,  had  actually 
perished  as  useful  property.  The  incomplete  depreciation  reprt 
the  impairment  in  value  of  the  parts  of  the  plant  which  remained  in 
existence  and  were  continued  in  use.  It  was  urgently  contended  that, 
in  fixing  upon  the  value  of  the  plain  upon  which  the  company  was  en- 
titled to  earn  a  reasonable  return,  the  amounts  of  complete  and  incom- 
plete depreciation  should  be  added  to  the  present  value  of  the  surviv- 
ing parts.  The  court  refused  to  approve  this  method,  and  we  think 
ty  refused.  A  water  plant,  with  all  its  additions,  begins  to  de- 
preciate in  value  from  the  moment  of  its  use.  Before  coming  to  the 
question  of  profit  at  all  the  company  is  entitled  to  earn  a  sufficient  sum 
annually  to  provide  not  only  for  current  repairs,  but  for  making  good 
the  depreciation  and  replacing  the  parts  of  the  property  when  they 
come  to  the  end  of  their  life.  The  company  is  not  bound  to  see  its 
property  gradually  waste,  without  making  provision  out  of  earnings 
for  its  replacement.  It  is  entitled  to  see  that  from  earnings  the  value 
af  the  property  invested  is  kept  unimpaired,  so  that,  at  the  end  of  any 
'<;iven  term  of  years,  the  original  investment  remains  as  it  was  at  the 
beginning.  It  is  not  only  the  right  of  the  company  to  make  such  a 
provision,  but  it  is  its  duty  to  its  bond  and  stock  holders,  and,  in  the 
case  of  a  public  service  corporation,  at  least,  its  plain  duty  to  the  pub- 
lic. If  a  different  course  were  pursued  the  only  method  of  providing 
for  replacement  of  property  which  has  ceased  to  be  useful  would  he 
the  investment  of  new  capital  and  the  issue  of  new  bonds  or  stocks. 
This  course  would  lead  to  a  constantly  increasing  variance  between 
present  value  and  bond  and  stock  capitalization. — a  tendency  which 
would  inevitably  lead  to  disaster  either  to  the  stockholders  or  to  the 
public,  or  both.  If,  however,  a  company  fails  to  perform  this  plain 
duty  and  to  exact  sufficient  returns  to  keep  the  investment  unimpaired, 
whether  this  is  the  result  of  unwarranted  dividends  upon  over  issues  of 
securities,  or  of  omission  to  exact  proper  prices  for  the  output,  the 
fault  is  its  own.  When,  therefore,  a  public  regulation  of  its 
comes  under  question,  the  true  value  of  the  property  then  employed 
for  the  purpose  of  earning  a  return  cannot  be  enhanced  by  a  con 
ation  of  the  errors  in  management  which  have  been  committed  in  the 
past.     *     *     * 

In  the  course  of  presenting  its  case  the  city  offered  evidence  of  the 
net  income  of  some  years  subsequent  to  the  passage  of  the  ordinance. 
The  case  is  peculiar.  The  company  has  never  observed  the  ordinance. 
The  suit  was  begun  nine  months  after  its  enactment  and  tried 
erably  later.  In  the  meantime  the  company's  gross  income  had  largely 
increased.     Bui  the  .lecision  in  the  court  below  .  on  the 

operations  of  the  fiscal  year  ending  March  31,   1901,  and  the  amount 
of  net  income  ascertained,  namely,  :'    was     btained  by  a; 

the  reductions  made  by  the  ordinance  to  the  operations  of  thai 
year.    We  think  it  was  error  to  confine  the  investigation  to,  and  base 


496  FUNDAMENTAL    RIG1IT3  (Part  2 

the  judgment  upon,  that  year  alone.  The  precise  subject  of  inquiry 
was,  what  would  be  the  effect  of  the  ordinance  in  the  future.  The  op- 
erations of  the  preceding  fiscal  year,  or  of  any  other  past  fiscal  year, 
were  valueless  if  the  year  was  abnormal,  and  were  only  of  significance 
so  far  as  they  foretold  the  future.  If,  as  in  this  case,  sufficient  time 
has  passed,  so  that  certainty  instead  of  prophecy  can  be  obtained,  the 
certainty  would  be  preferable  to  the  prophecy.  In  this  case  there  could 
be  no  absolute  certainty,  because  the  ordinance  had  never  been  put  in 
operation.  But  evidence  of  the  operations  of  the  years  succeeding  to 
the  ordinance  is  relevant  and  of  great  importance,  and  by  a  consider- 
ation of  such  evidence  a  much  greater  degree  of  certainty  could  be  ob- 
tained. Suppose,  by  way  of  illustration,  that  before  bringing  suit  the 
company  had  put  the  ordinance  into  effect  and  had  observed  it  for  a 
number  of  years,  and  the  result  showed  that  a  sufficient  net  income 
had  been  realized, — is  it  possible  that  a  suit  then  could  be  brought  and 
the  evidence  confined  to  a  period  prior  to  the  ordinance,  and,  by  a 
process  of  speculation,  the  conclusion  reached  that  the  ordinance 
would  be  confiscatory?  Some  evidence  regarding  the  income  of  the 
company  after  the  passage  of  the  ordinance  is  in  the  record,  but  it  sub- 
sequently was  excluded  from  consideration.  It  showed  an  increase  of 
gross  and  net  earnings,  but  also  an  increase  in  the  property  devoted  to 
the  public  use.  We  are  unable  to  say  what  the  effect  of  the  evidence 
excluded  would  be ;  all  we  can  say  is,  that  the  inquiry  was  unduly 
limited  by  the  exclusion  of  the  evidence  of  the  operation  of  subsequent 
years.     *     *     * 

In  ordinary  cases  full  justice  would  be  done  by  reversing  the  decree 
and  remanding  the  cause  for  further  proceedings  in  the  court  below, 
there  to  undergo  a  new  and  doubtless  prolonged  investigation.  It  is 
more  than  seven  years  since  the  enactment  of  the  ordinance,  and  it  has 
never  been  observed  in  any  respect.  This  litigation  ought  now  to  be 
ended,  if  it  is  possible  to  end  it  with  due  regard  to  the  rights  of  the 
contending  parties.  Disregarding  for  the  moment  all  the  errors  which 
were  committed  in  the  court  below,  the  decision  of  this  cause  may  be 
rested  upon  a  broader  ground,  which  is  clearly  indicated  by  the  pre- 
vious judgments  of  this  court.  The  jurisdiction  which  is  invoked  here 
ought,  as  has  been  said,  to  be  exercised  only  in  the  clearest  cases.  If 
a  company  of  this  kind  chooses  to  decline  to  observe  an  ordinance  of 
this  nature,  and  prefers  rather  to  go  into  court  with  the  claim  that  the 
ordinance  is  unconstitutional,  it  must  be  prepared  to  show  to  the  satis- 
faction of  the  court  that  the  ordinance  would  necessarily  be  so  confisca- 
tory in  its  effect  as  to  violate  the  Constitution  of  the  United  States. 
*     *     * 

In  San  Diego  Land  &  Town  Co.  v.  Jasper,  189  U.  S.  439,  23  Sup. 
Ct.  571,  47  L.  Ed.  892,  after  repeating  with  approval  this  language, 
it  was  said  (p.  441) :  "In  a  case  like  this  we  do  not  feel  bound  to  re- 
examine and  weigh  all  the  evidence,  although  we  have  done  so,  or  to 
proceed  according  to  our  independent  opinion  as  to  what  were  proper 


Cll.  lOj  DUE  PUOCESS  AND   EQUALITY  I     P0LIC8   POWSB  4'J7 

rates.    It  is  enough  if  we  cannot  say  that  it  was  impossible  for  a  fan- 
minded  board  to  come  to  the  result  which  was  reached."  2 

It  cannot  be  doubted  that,  in  a  clear  case  of  confiscation,  it  is  the 
right  and  duty  of  the  court  to  annul  the  law.  *  *  *  Jiut  the  case 
before  us  is  not  a  case  of  this  kind.  Upon  any  aspect  of  the  t\ 
the  company  is  certain  to  obtain  a  substantial  net  revenue  under  the 
operation  of  the  ordinance.  The  net  income,  in  any  event,  would  be 
substantially  6  per  cent.,  or  4  per  cent,  after  an  allowance  of  2  per  cent, 
for  depreciation.  See  Stanislaus  County  v.  San  Joaquin  &  K.  River 
Canal  &  Irrig.  Co.,  192  U.  S.  201,  24  Sup.  Ct.  241,  48  L,  Ed.  406.  We 
cannot  know  clearly  that  the  revenue  would  not  much  exceed  that  re- 
turn. We  do  not  feel  called  upon  to  determine  whether  a  demonstrated 
reduction  of  income  to  that  point  would  or  would  not  amount  to  con- 
fiscation. Where  the  case  rests,  as  it  does  here,  not  upon  observation 
of  the  actual  operation  under  the  ordinance,  but  upon  speculations  as 
to  its  effect  based  upon  the  operations  of  a  prior  fiscal  year,  we  will 
not  guess  whether  the  substantial  return  certain  to  be  earned  would 
lack  something  of  the  return  which  would  save  the  effect  of  the  ordi- 
nance from  confiscation.  It  is  enough  that  the  whole  case  leaves  us 
in  grave  doubt.  The  valuation  of  the  property  was  an  estimate  and  is 
greatly  disputed.  The  expense  account  was  not  agreed  upon.  The 
ordinance  had  not  actually  been  put  into  operation;  the  inferences 
were  based  upon  the  operations  of  the  preceding  year;  and  the  conclu- 
sion of  the  court  below  rested  upon  that  most  unsatisfactory  evidence, 
the  testimony  of  expert  witnesses  employed  by  the  parties.  The  city 
authorities  acted  in  good  faith,  and  they  tried,  without  success,  to  ob- 
tain from  the  company  a  statement  of  its  property,  capitalization,  and 
earnings. 

The  courts,  in  clear  cases,  ought  not  to  hesitate  to  arrest  the  oper- 
ation of  a  confiscatory  law,  but  they  ought  to  refrain  from  interfering 
in  cases  of  any  other  kind.  Regulations  of  public  service  corporations, 
which  perform  their  duties  under  conditions  of  necessary  monopoly, 
will  occur  with  greater  and  greater  frequency  as  time  goes  on.  It  is  a 
delicate  and  dangerous  function,  and  ought  to  be  exercised  with  a  keen 
sense  of  justice  on  the  part  of  the  regulating  body,  met  by  a  frai 
closure  on  the  part  of  the  company  to  be  regulated.  The  courts  ought 
not  to  bear  the  whole  burden  of  saving  property  from  confix 
though  they  will  not  be  found  wanting  where  the  proof  is  clear.  The 
legislatures  and  subordinate  bodies,  to  whom  the  legislative  power  has 

?  ''Tin'  courts  cannot,  after  the  board  has  fully  and  fairly  Investigated  and 
acted,  by  fixing  what  it  believes  t"  b  rates,  Btep  in  and  say  its 

action  shall  be  set  aside  and  nullified,  1 au  e  the  courts,  allar  in 

vestlgatlon,  have  come  to  a  different  conclusion  as  to  the  reasonable) 
isl  be  actual  fraud  In  fixing  the  rates,  or  th( 

be  s.i  palpably  and  grossly  unreasonable i  unjust 

thing."— Harlan,  J.,  in  San  Diego  Land  &  Town  Co  \.  National  City,  17!  r   S 
739,  750,  19  Sup.  Ct  S04,  SOS  (-13  L.  I'd.   1154)   (1999). 
Hall  Const.L. — 32 


'198  FUNDAMENTAL    RIGHTS  (Part  2 

been  delegated,  ought  to  do  their  part.  Our  social  system  rests  largely 
upon  the  sanctity  of  private  property;  and  that  state  or  community 
which  seeks  to  invade  it  will  soon  discover  the  error  in  the  disaster 
which  follows.  The  slight  gain  to  the  consumer,  which  he  would  ob- 
tain from  a  reduction  in  the  rates  charged  by  public  service  corpora- 
tions, is  as  nothing  compared  with  his  share  in  the  ruin  which  would  be 
brought  about  by  denying  to  private  property  its  just  reward,  thus  un- 
settling values  and  destroying  confidence.  On  the  other  hand,  the  com- 
panies to  be  regulated  will  find  it  to  their  lasting  interest  to  furnish 
freely  the  information  upon  which  a  just  regulation  can  be  based. 

If  hereafter  it  shall  appear,  under  the  actual  operation  of  the  ordi- 
nance, that  the  returns  allowed  by  it  operate  as  a  confiscation  of  prop- 
erty, nothing  in  this  judgment  will  prevent  another  application  to  the 
courts  of  the  United  States  or  to  the  courts  of  the  state  of  Tennessee. 
But,  as  the  case  now  stands,  there  is  no  such  certainty  that  the  rates 
prescribed  will  necessarily  have  the  effect  of  denying  to  the  company 
such  a  return  as  would  avoid  confiscation. 

Decree  reversed.8 

s  Valuation  and  Rate  of  Return. — For  valuable  discussions  of  the  rate  of 
return  and  elements  of  capitalization  proper  under  various  circumstances,  see. 
also,  San  Diego  Land  &  Town  Co.  v.  Jasper,  1S9  U.  S.  439,  23  Sup.  Ct.  571, 
47  L.  Ed.  S92  (1903) ;  Stanislaus  County  v.  San  Joaquin  &  K.  River  Canal  & 
Irrig.  Co.,  192  U.  S.  201,  24  Sup.  Ct  241,  48  L.  Ed.  406  (1904) ;  Willcox  v.  Con- 
solidated Gas  Co.  of  New  York,  212  U.  S.  19,  29  Sup.  Ct.  192,  53  L.  Ed.  382, 
15  Ann.  Cas.  1034  (1909) ;  Spring  Valley  Waterworks  Co.  v.  San  Francisco,  124 
Fed.  574  (1003);  Id.,  165  Fed.  657,  667  (1904):  Id..  192  Fed.  137  (1911):  Bruns- 
wick &  T.  Water  District  v.  Maine  Water  Co..  99  Me.  371,  59  Atl.  537  (1904) : 
Contra  Costa  Water  Co.  v.  City  of  Oakland,  159  Cal.  323,  113  Pac.  668  (1911) ; 
Steenerson  v.  Great  Northern  Ry.  Co.,  69  Minn.  353,  72  N.  W.  713  (1897); 
Shepard  v.  Northern  Pac.  R.  Co.,  184  Fed.  765  (1911) ;  Arkansas  Rate  Cases. 
187  Fed.  290  (1911) ;  Cumberland  Telephone  &  Telegraph  Co.  v.  Louisville,  1S7 
Fed.  637  (1911) ;  State  Journal  Printing  Co.  v.  Madison  Gas.  etc.,  Co.,  4  Wis.  R. 
Com.  501  (1910).  Whitten,  Valuation  of  Public  Service  Corporations  (1912), 
treats  the  entire  topic  admirably. 

Relation  op  Whole  Schedule  to  Its  Parts. — For  the  relation  of  particu- 
lar rates  or  services  to  the  schedule  as  a  whole,  see  Lake  Shore  &  M.  S.  Ry. 
v.  Smith,  173  U.  S.  684,  19  Sup.  Ct.  565,  43  L.  Ed.  858  (1899);  Minneapolis  & 
St.  L.  R.  Co.  v.  Minnesota  ex  rel.  Railroad  &  W.  Commission,  186  U.  S.  257, 
22  Sup.  Ct.  900,  46  L.  Ed.  1151  (1902) ;  Willcox  v.  Consolidated  Gas  Co.  of 
New  York,  212  U.  S.  19,  54,  29  Sup.  Ct.  192,  53  L,  Ed.  3S2,  15  Ann.  Cas.  1034 
(1909);  Northern  Pac.  R.  Co.  v.  North  Dakota  ex  rel.  McCue,  216  TJ.  S.  579, 
30  Sup.  Ct.  423,  54  L.  Ed.  624  (1910);  Interstate  Consol.  St.  R.  Co.  v.  Massa- 
chusetts, 207  U.  S.  79,  S6,  2S  Sup.  Ct.  26,  52  L.  Ed.  Ill,  12  Ann.  Cas.  555 
(1907) :  Commonwealth  v.  Interstate  Consol.  St.  R.  Co.,  187  Mass.  436,  73  N. 
E.  530,  11  L.  R.  A.  (N.  S.)  973,  2  Ann.  Cas.  419  (1905) ;  Commonwealth  v. 
Boston  &  N.  St.  R.  Co.,  212  Mass.  82,  98  N.  E.  1075  (1912) ;  In  re  Gardner,  84 
Kan.  264,  113  Pac.  1054,  33  L.  R.  A.  (N.  S.)  956  (1911) ;  State  v.  Sutton  (N.  J. 
Sup.)  S4  Atl.  1057  (1912) ;  Atlantic  Coast  Line  R.  Co.  v.  North  Carolina  Cor- 
poration Commission,  206  TJ.  S.  1,  27  Sup.  Ct.  5S5,  51  L.  Ed.  933,  11  Ann.  Cas. 
39S  (1907);  Missouri  Pac.  Ry.  v.  Kansas  ex  rel.  Taylor,  216  U.  S.  262,  30  Sup. 
Ct.  330,  54  L.  Ed.  472  (1910). 

Testing  Doubtful  Schedules. — As  to  upholding  rates  in  cases  of  doubt, 
until  actual  trial  of  them,  see,  also,  Willcox  v.  Consolidated  Gas  Co.  of  New 
York,  212  U.  S.  19.  29  Sup.  Ct.  192,  53  L.  Ed.  382,  15  Ann.  Cas.  1034  (1909) : 
Northern  Pac.  R.  Co.  v.  North  Dakota  ex  rel.  McCue,  216  U.  S.  579,  30  Sup. 
Ct.  423,  54  L.  Ed.  624  (1910);    City  of  Louisville  v.  Cumberland  Telephone  & 


Ch,  10)  dde  rnocESS  and  equality:    police  powu  4'JO 


MINNESOTA  RATE  CASES. 

(Supreme  Court  of  the  United  States,  1913.    230  U.  S.  352.  33  Sup.  01 
57  L.  Ed.  .) 

[Appeals  from  the  federal  Circuit  Court  for  Minnesota.  By  two 
acts  of  the  Minnesota  legislature  in  1907,  and  by  two  orders  of  the 
state  Railroad  and  Warehouse  Commission  in  1906  and  1907,  the  pas- 
senger and  freight  rates  for  intrastate  carriage  of  the  Northern  Pa- 
cine,  the  Great  Northern,  and  the  Minneapolis  &  St.  Louis  Railroad 
Companies  were  substantially  reduced.  After  elaborate  hearings  be- 
fore a  master,  in  injunction  suits  brought  by  the  railroads,  decrees 
were  made  enjoining  the  enforcement  of  these  rates  upon  the  grounds : 
(1)  That  their  incidental  effect  upon  interstate  rates  to  certain  com- 
peting points  in  other  states  amounted  to  an  illegal  regulation  of  in- 
terstate commerce  by  the  state ;  and  (2)  that  the  rates  produced  so 
low  a  rate  of  return  as  to  constitute  a  taking  of  property  without  due 
process  of  law.  The  first  ground  is  discussed  in  the  part  of  the  case 
printed  post,  p.  1174.  The  second  is  considered  in  the  opinion  below.] 

Mr.  Justice  Hughes.  *  *  *  Second.  Are  the  state's  acts  and 
orders  confiscatory?  *  *  *  The  general  principles  which  are  ap- 
plicable in  a  case  of  this  character  have  been  set  forth  in  the  decisions. 

(1)  The  basis  of  calculation  is  the  "fair  value  of  the  property"  used 
for  the  convenience  of  the  public.  Smyth  v.  Ames,  169  U.  S.  546, 
42  L.  Ed.  849,  18  Sup.  Ct.  418.     *    *     * 

(2)  The  ascertainment  of  that  value  is  not  controlled  by  artificial 
rules.  It  is  not  a  matter  of  formulas,  but  there  must  be  a  reasonable 
judgment,  having  its  basis  in  a  proper  consideration  of  all  relevant 
facts.  *  *  *  [Quoting  the  passage  from  Smyth  v.  Ames  that 
appears  ante,  p.  490,  in  San  Diego  Land  Co.  v.  National  City.] 

(3)  Where  the  business  of  the  carrier  is  both  interstate  and  intra- 
state, the  question  whether  a  scheme  of  maximum  rales  fixed  by  the 
state  for  intrastate  transportation  affords  a  fair  return  must  be  de- 
termined by  considering  separately  the  value  of  the  propen     1 

in  the  intrastate  business  and  the  compensation  allowed  in  that  busi- 
ness under  the  rates  prescribed.     This  was  also  ruled  in  the  Smyth 
Case  (Id.  p.  541).    The  reason,  as  there  stated,  is  that  the  state  cannot 
justify  unreasonably  low  rates  for  dome-tic  transportation, 
alone,  upon  the  ground  that  the  carrier  is  earning  large 
its   interstate   business,   and,  on  the   other  hand,    the  carrier   1 
justify  unreasonably  high  rates  on  dome-tic  business  because  only  in 
that  way  is  it  able  to  meet  losses  on  its  interstate  business.     * 

[After  analyzing  the  estimates  of  the  cost  of  reproducing  the  rail- 

ph  c...  226   O.   S    BO    32  Sup    C(    Til    66  I     Ed.  n.'l   (1912) 
pare' the  course  of  procedure  In  the  Arkansas  Rate  I 

Id.,  168  Fed.  720  (1909);    Id.,  li>7  Fed.  290  (1911);    Id..  230  D.  S.  553.  33  Sop. 
1  t.   L030,  57  i.  11913). 


500  FUNDAMENTAL    RIGHTS  (Part  2 

road  rights  of  way  and  terminals,  upon  which  their  valuation  for  rate- 
making  purposes  was  based — which  estimates  were  reached  by  taking 
the  price  a  railroad  would  probably  have  to  pay  to-day  for  land  so  lo- 
cated (a  price  estimated  considerably  in  excess  of  the  normal  market 
value  of  such  land),  and  by  adding  to  this  from  30  per  cent,  to  200  per 
cent,  more  for  cost  of  acquisition  (including  value  of  improvements 
likely  to  be  found  on  the  land  and  consequential  damages),  and  finally 
about  20  per  cent,  more  for  items  of  engineering,  superintendence,  le- 
gal expenses,  contingencies,  and  interest  during  construction:]  It  is 
impossible  to  assume,  in  making  a  judicial  finding  of  what  it  would 
cost  to  acquire  the  property,  that  the  company  would  be  compelled  to 
pay  more  than  its  fair  market  value.  It  is  equipped  with  the  govern- 
mental power  of  eminent  domain.  In  view  of  its  public  purpose,  it 
has  been  granted  this  privilege  in  order  to  prevent  advantage  being 
taken  of  its  necessities.  It  would  be  free  to  stand  upon  its  legal 
rights,  and  it  cannot  be  supposed  that  they  would  be  disre- 
garded.    *     *     * 

Moreover,  it  is  manifest  that  an  attempt  to  estimate  what  would 
be  the  actual  cost  of  acquiring  the  right  of  way  if  the  railroad  were 
not  there  is  to  indulge  in  mere  speculation.  The  railroad  has  long 
been  established;  to  it  have  been  linked  the  activities  of  agriculture, 
industry,  and  trade.  Communities  have  long  been  dependent  upon  its 
service,  and  their  growth  and  development  have  been  conditioned  upon 
the  facilities  it  has  provided.  The  uses  of  property  in  the  communi- 
ties which  it  serves  are  to  a  large  degree  determined  by  it.  The  values 
of  property  along  its  line  largely  depend  upon  its  existence.  It  is  an 
integral  part  of  the  communal  life.  The  assumption  of  its  nonex- 
istence, and  at  the  same  time  that  the  values  that  rest  upon  it  remain 
unchanged,  is  impossible  and  cannot  be  entertained.  The  conditions 
of  ownership  of  the  property  and  the  amounts  which  would  have  to 
be  paid  in  acquiring  the  right  of  way,  supposing  the  railroad-  to  be 
removed,  are  wholly  beyond  reach  of  any  process  of  rational  deter- 
mination. The  cost-of-reproduction  method  is  of  service  in  ascertain- 
ing the  present  value  of  the  plant,  when  it  is  reasonably  applied  and 
when  the  cost  of  reproducing  the  property  may  be  ascertained  with 
a  proper  degree  of  certainty.  But  it  does  not  justify  the  acceptance 
of  results  which  depend  upon  mere  conjecture.  It  is  fundamental 
that  the  judicial  power  to  declare  legislative  action  invalid  upon  con- 
stitutional grounds  is  to  be  exercised  only  in  clear  cases.  The  con- 
stitutional invalidity  must  be  manifest,  and  if  it  rests  upon  disputed 
questions  of  fact,  the  invalidating  facts  must  be  proved.  And  this  is 
true  of  asserted  value  as  of  other  facts.     *     *     * 

[The]  question  is  whether,  in  determining  the  fair  present  value 
of  the  property  of  the  railroad  company  as  a  basis  of  its  charges  to 
the  public,  it  is  entitled  to  a  valuation  of  its  right  of  way  not  only 
in  excess  of  the  amount  invested  in  it,  but  also  in  excels  of  the  market 
value  of  contiguous  and  similarly  situated  property.     For  the  purpose 


Cll.  10)  DOE    PROCESS   AND    KQl  AI.I1  V  :     POUCH    i  501 

of  making  rates,  is  its  land  devoted  to  the  public  use  to  be  treated 

(irrespective  of  improvements)  not  only  as  increasing  in  value  i 
son  of  the  activities  and  general  prosperity  of  the  community,  but  as 
constantly  outstripping  in  this  increase,  all  neighboring  lands  of  like 
character,  devoted  to  other  uses?  If  rates  laid  by  competent  author- 
ity, state  or  national,  are  otherwise  just  mable,  are  they  to 
be  held  to  be  unconstitutional  and  void  because  they  do  not  permit  a 
return  upon  an  increment  so  calculated? 

It  is  clear  that  in  ascertaining  the  present  value  we  are  not  limited 
to  the  consideration.of  the  amount  of  the  actual  investment  It  that 
has  been  reckless  or  improvident,  losses  may  d  which  the 

community  does  not  underwrite.  As  the  company  may  not  be  pro- 
tected in  its  actual  investment,  if  the  value  of  its  property  be  plainly 
less,  so  the  making  of  a  just  return  for  the  use  of  the  property  in- 
volves the  recognition  of  its  fair  value  if  it  be  more  than  its  cost.  The 
property  is  held  in  private  ownership,  and  it  is  that  property,  and  not 
the  original  cost  of  it,  of  which  the  owner  may  not  he  deprived  with- 
out due  process  of  law.  But  still  it  is  property  employed  in  a  public 
calling,  subject  to  governmental  regulation,  and  while,  under  thi 
of  such  regulation,  it  may  not  be  confiscated,  it  is  equally  true  that 
there  is  attached  to  its  use  the  condition  that  charges  to  the  public 
shall  not  be  unreasonable.  And  where  the  inquiry  is  as  to  the  fair 
value  of  the  property,  in  order  to  determine  the  reasonableness  of  the 
return  allowed  by  the  rate-making  power,  it  is  not  admissible  to  at- 
tribute to  the  property  owned  by  the  carriers  a  speculative  increment 
of  value,  over  the  amount  invested  in  it  and  beyond  the  value  of 
similar  property  owned  by  others,  solely  by  reason  of  the  fact  that  it 
is  used  in  the  public  service.  That  would  be  to  disregard  the 
tial  conditions  of  the  public  use,  and  to  make  the  public  use  destruc- 
tive of  the  public  right.     *     *     * 

Assuming  that  the  company  is  entitled  to  a  reasonable  share  in  the 
general  prosperity  of  the  communities  which  it  serves,  and  thus  to  at- 
tribute to  its  property  an  increase  in  value,  still  the  increase  so  al- 
lowed, apart  from  any  improvements  it  may  make,  cannot  properly 
extend  beyond  the  fair  average  of  the  normal  market  value  of  land 
in  the  vicinity  having  a  similar  character.1  Otherwise  we  enter  the 
realm  of  mere  conjecture.  We  therefore  hold  that  it  was  error  to 
base  the  estimates  of  value  of  the  right  of  way.  yards  and  terminals 
upon  the  so-called  "railway  value"  of  the  property.  The  company 
would  certainly  have  no  ground  of  complaint  if  it  were  all  • 
value  for  these  lands  equal  to  the  fair  average  market  value  0 
ilar  land  in  the  vicinity,  without  a  the  use  of  multipliers. 

or  otherwise,  to   cover   hypothetical   outlays.     The   allowances    made 

i  This  "normal  market  vnlne"   of  railroad 
lv  established  by  the  mere  uno.v  I 
Of  taxation.     Missouri  Kate  Case.-.   230   1 
—  U913). 


•502  FUNDAMENTAL    RIGHTS  (Part  2 

below  for  conjectural  cost  of  acquisition  and  consequential  damages 
must  be  disapproved ;  and,  in  this  view,  we  also  think  it  was  error  to 
add  to  the  amount  taken  as  the  present  value  of  the  lands  the  further 
sums,  calculated  on  that  value,  which  were  embraced  in  the  items  of 
"engineering,  superintendence,  legal  expenses,"  "contingencies,"  and 
"interest  during  construction." 

By  reason  of  the  nature  of  the  estimates,  and  the  points  to  which 
the  testimony  was  addressed,  the  amount  of  the  fair  value  of  the 
company's  land  cannot  be  satisfactorily  determined  from  the  evidence, 
but  it  sufficiently  appears,  for  the  reasons  we  have  stated,  that  the 
amounts  found  were  largely  excessive.  Finding  this  defect  in  the 
proof,  it  is  not  necessary  to  consider  the  objections  which  relate  to 
the  sources  from  which  the  property  was  derived  or  its  mode  of  ac- 
quisition, or  those  which  are  urged  to  the  inclusion  of  certain  lands 
which  it  is  said  were  not  actually  used  as  a  part  of  the  plant;  and  we 
express  no  opinion  upon  the  merits  of  these  contentions.     *     *     * 

The  apportionment  of  the  value  of  the  property,  as  found,  between 
the  interstate  and  intrastate  business,  was  made  upon  the  basis  of  the 
gross  revenue  derived  from  each.  This  is  a  simple  method,  easily  ap- 
plied, and  for  that  reason  has  been  repeatedly  used.  It  has  not,  how- 
ever, been  approved  by  this  court,  and  its  correctness  is  now  chal- 
lenged. *  *  *  In  support  of  this  method,  it  is  said  that  a  divi- 
sion of  the  value  of  the  property  according  to  gross  earnings  is  a  divi- 
sion according  to  the  "value  of  the  use,"  and  therefore  proper.  But 
it  would  seem  to  be  clear  that  the  value  of  the  use  is  not  shown  by 
gross  earnings.  The  gross  earnings  may  be  consumed  by  expenses, 
leaving  little  or  no  profit.  *  *  *  [Here  follows  a  quotation  from 
Chicago,  etc.,  Ry.  v.  Tompkins,  176  U.  S.  167,  20  Sup.  Ct.  336.  44  L. 
Ed.  417,  criticising  this  method.]  *  *  *  The  value  of  the  use,  as 
measured  by  return,  cannot  be  made  the  criterion  when  the  return  it- 
self is  in  question.2     *     *     * 

When  rates  are  in  controversy,  it  would  seem  to  be  necessary  to 
find  a  basis  for  a  division  of  the  total  value  of  the  property  independ- 
ently of  revenue,  and  this  must  be  found  in  the  use  that  is  made  of 
the  property.  That  is,  there  should  be  assigned  to  each  business  that 
proportion  of  the  total  value  of  the  property  which  will  correspond 
to  the  extent  of  its  employment  in  that  business.  It  is  said  that  this 
is  extremely  difficult;  in  particular,  because  of  the  necessity  for  mak- 
ing a  division  between  the  passenger  and  freight  business,  and  the 
obvious  lack  of  correspondence  between  ton-miles  and  passenger- 
miles.     It  does  not  appear,  however,  that  these  are  the  only  units 

=  Accord  (apportionment  of  value  of  railroad  property  on  basis  of  gross 
revenue  from  internal  and  interstate  traffic):     Missouri  Rate  Cases,  230  U. 

S.  474,  33  Sup.  Ct.  975,  57  L.  Ed.  (1913) ;    Arkansas  Rate  Cases,  230  U. 

S.  553,  33  Sup.  Ct  1030,  57  L.  Ed.  (1913).    See  the  mode  of  apportionment 

used  in  Trust  Co.  of  America  v.  Chicago,  etc.,  E.  Co.  (D.  C.)  199  Fed.  593 
(1912). 


Ch.  10)  DUB  PROCOS8  AND  .EQUALITY:     POLICE   I'OWBB 

available  for  such  a  division ;  and  it  would  seem  that,  after  assigning 
to  the  passenger  and  freight  departments  respectively,  the  property 
exclusively  used  in  each,  comparable  use-units  might  be  found  which 
would  afford  the  basis  for  a  reasonable  division  with  respect  to  prop- 
erly used  in  common.     *     *     * 

Our  conclusions  may  be  briefly  stated.  The  statements  of  the  com- 
plainants' witnesses  as  to  the  extra  cost  of  interstate  business,  while 
entitled  to  respect  as  expre.-Mons  of  opinion,  manifestly  involve  wide 
and  difficult  generalizations.  They  embrace,  without  the  aid  of 
tieal  information  derived  from  appropriate  tests  and  submitted  to  care- 
ful analysis,  a  general  estimate  of  all  the  conditions  of  transportation, 
and  an  effort  to  express  in  the  terms  of  a  definite  relation,  or  ratio,  what 
clearly  could  be  accurately  arrived  at  only  by  prolonged  and  minute 
investigation  of  particular  facts  with  respect  to  the  actual  traffic  as 
it  was  being  carried  over  the  line.  The  extra  cost,  as  estimated  by 
these  witnesses,  is  predicated  not  simply  of  haulage  charges,  but  of 
all  the  outlays  of  the  freight  service,  including  the  share  of  the  ex- 
penses for  maintenance  of  way  and  equipment  assigned  to  the  freight 
department  And  the  ratio,  to  be  accurately  stated,  must  also  express 
the  results  of  a  suitable  discrimination  between  the  interstate  and  in- 
trastate traffic  on  through  and  local  trains  respectively,  and  of  an  at- 
tribution of  the  proper  share  of  the  extra  cost  of  local  train  service 
to  the  interstate  traffic  that  uses  it.  The  wide  range  of  the  estimates 
of  extra  cost,  from  three  to  six  or  seven  times  that  of  the  interstate 
business  per  ton  mile,  shows  both  the  difficulty  and  the  lack  of  cer- 
tainty in  passing  judgment. 

We  are  of  opinion  that,  on  an  issue  of  this  character,  involving 
the  constitutional  validity  of  state  action,  general  estimates  of  the 
sort  here  submitted,  with  respect  to  a  subject  so  intricate  and  im- 
portant, should  not  be  accepted  as  adequate  proof  to  sustain  a  find- 
ing of  confiscation.8  While  accounts  have  not  been  kept  so  as 
to  show  the  relative  cost  of  interstate  and  intrastate  business, 
ing  particulars  of  the  traffic  handled  on  through  and  local  trains. 
and  presenting  data  from  which  such  extra  cost  as  there  may  be, 
of  intrastate  1  usiness,  may  be  suitably  determined,  it  would  ap- 
pear to  have  been  not  impracticable  to  have  had  such  accounts  kept 
or  statistics  prepared,  at  least  during  test  periods,  properly  s< 
It  may  be  said  that  this  would  have  been  a  very  difficult  matter,  but 
the  company,  having  assailed  the  constitutionality  of  the  state  acts 
and  orders,  was  bound  to  establish  its  case,  and  it  was  not  entitled  to 
rest  on  expressions  of  judgment  when  it  had  it  in  its  power  to  pre- 
sent accurate  data  which  would  permit  the  court  to  draw  the 
conclusion.     *     *     * 

Decrees  reversed  as  to  Northern  Pacific  and  Great  Northern  Com 
panies,  but  modified  and  affirmed  as  to  the  Minneapolis  &  St.  Louis 

»  Accord:  See  cases  cited  In  note  2,  above. 


504  FUNDAMENTAL.  RIGHTS  (Pr.rt  2 

Company    [whose  revenues  had  been  much   more  seriously  affected 
than  had  those  of  the  other  companies] . 
[McKenna,  J.,  concurred  in  the  result.] 


SHEVLIN-CARPENTER  CO.  v.  MINNESOTA  (1910)  218  U. 
S.  57,  67-70,  30  Sup.  Ct.  663,  54  L.  Ed.  930,  Mr.  Justice  McKkxna 
(upholding  a  Minnesota  statute  penalizing  timber  cutting  upon  state 
lands  regardless  of  defendant's  knowledge  or  intent) : 

"The  next  contention  of  plaintiffs  in  error  is  that  'both  the  provi- 
sions of  section  7  make  a  casual  and  involuntary  trespasser  liable  to 
the  state  in  double  damages,  and  that  declaring  his  act  a  felony  vio- 
lates the  fourteenth  amendment,'  because  those  provisions  'eliminate 
altogether  the  question  of  intent,'  and  that  the  'elimination  of  intent 
as  an  element  of  an  offense  is  contrary  to  the  requirements  of  due 
process  of  law.'  To  support  the  contention,  plaintiffs  in  error  attack 
the  power  of  a  legislature  to  make  an  innocent  act  a  crime,  and  say 
that  the  'principle  that  the  legislature  cannot,  by  its  mere  fiat,  make 
an  act  otherwise  innocent  a  crime,  and  punishable  as  such,  is  one  to 
which  this  court  will  give  effect,  even  though  it  be  not  expressly  enun- 
ciated by  the  Constitution.'  The  principle  as  thus  expressed  is  very 
general,  and  takes  no  account  of  whether  a  law  have  prospective  or 
retrospective  operation.  It  would  seem,  therefore,  to  destroy  the 
well-recognized  distinction  between  mala  in  se  and  mala  prohibita. 
The  principle  contended  for  is  probably  not  intended  to  be  taken  so 
broadly,  and  its  generality  is  further  limited  by  concession  that  it  may 
have  exceptions  'where  so-called  criminal  negligence  supplies  a  place 
of  criminal  intent,  or  where,  in  a  few  instances,  the  public  welfare 
has  made  it  necessary  to  declare  a  crime,  irrespective  of  the  actor's 
intent.'  A  concession  of  exceptions  would  seem  to  destroy  the  prin- 
ciple. If  the  principle  gets  its  life  or  its  protection  from  the  four- 
teenth amendment,  it  cannot  be  destroyed  by  the  legislature  upon  any 
conception  of  the  public  welfare.  The  Constitution  declares  the  prin- 
ciple upon  which  the  public  welfare  is  to  be  promoted,  and  opposing 
ones  cannot  be  substituted.  Connolly  v.  Union  Sewer  Pipe  Co.,  184 
U.  S.  540,  558,  22  Sup.  Ct.  431,  46  L.  Ed.  679,  689. 

"It  will  be  seen  that  the  foundation  of  the  arguments  of  plaintiffs 
in  error  is  that  their  trespass  was  an  innocent  act.  There  is  some 
ambiguity  as  to  what  is  meant  by  'innocence.'  They  quote  Mr.  Jus- 
tice Chase  in  Calder  v.  Bull,  3  Dall.  386,  1  L.  Ed.  64S.  It  was  there 
said  that  'a  law  that  punished  a  citizen  for  an  innocent  action,  or,  in 
other  words,  for  an  act  which,  when  done,  was  in  violation  of  no  ex- 
isting law,"  could  not  'be  considered  a  rightful  exercise  of  legislative 
power.'  Cut  it  was  said :  'The  legislature  may  enjoin,  permit,  for- 
bid, and  punish ;  they  may  declare  new  crimes  and  establish  rules  of 
conduct  for  all  its  citizens  in  future  cases.'     In  other  words,  inno- 


Ch.  10)  doe  rnocKsa  and  equality:    poucb  i'Oweb  l>h."i 

cence  cannot  be  asserted  of  an  action  which  violates  existing  law,  and 
ignorance  of  the  law  will  not  excuse.  The  law  in  controversy  has 
no  ex  post  facto  element  or  effect  in  it.  It  was  existing  law  when 
the  trespass  of  plaintiffs  in  error  was  committed,  and  a  trespass  is  a 
legal  wrong,  not  an  innocent  act.  There  is  no  element  of  deception 
or  surprise  in  the  law.  When  the  permit  was  issued,  plaintiffs  in  error 
knew  the  limitations  of  it,  and  they  took  it  at  the  risk  and  conse- 
quences of  transgression.  The  state  sought  to  guard  against  its  wil- 
ful or  accidental  abuse.  Permits  had  been  abased  and  the  lands  of 
the  state  despoiled  of  their  timber.  The  offenders  were  difficult  to 
detect,  or,  if  detected,  the  character  of  their  acts,  whether  wilful,  ac- 
cidental, or  involuntary,  equally  difficult  to  establish ;  and  the  sfate, 
the  supreme  court  said,  had  been  'defrauded  and  robbed  of  large 
sums  of  money.'  Double  and  treble  damages  and  a  criminal  prosecu- 
tion were  provided  to  meet  the  situation.'  It  would  be  strange,  in- 
deed, if  it  were  not  within  the  competency  of  the  legislature.  To  hold 
otherwise  would  take  from  the  legislature  the  power  to  adjust  legisla- 
tion to  evils  as  they  arise  and  to  the  ways  by  which  they  mav  be  ef- 
fected. We  held  in  St.  John  v.  Xew  York,  201  U.  S.  633,  26  Sup. 
Ct.  554,  50  L.  Ed.  896.  5  Ann.  Cas.  909,  that  a  state  did  not  offend 
the  equality  clause  of  the  fourteenth  amendment  by  taking  as  a  basis 
of  classification  the  ways  by  which  a  law  may  be  defeated.  That  case 
was  applied  in  District  of  Columbia  v.  Brooke,  214  U.  S.  138,  29  Sup. 
Ct.  560,  53  L.  Ed.  941,  to  sustain  a  statute  which  provided  a  criminal 
proceeding  against  resident  owners  of  property  for  neglecting  to 
connect  their  property  with  sewers,  and  civil  proceedings  against  non- 
resident owners  for  a  like  neglect. 

"We  do  not  understand  the  position  of  plaintiffs  in  error  to  be  that 
a  legislature  may  not  prescribe  a  larger  measure  of  damages  than 
simple  compensation,  but  that  anything  in  excess  of  such  compensa- 
tion is  punishment,2  and  cannot  be  constitutionally  prescribed  where 
there  is  no  'conscious  intent'  to  do  wrong.  And  yet  plaintiffs  in  error 
except  from  the  principle  'certain  instances  within  the  police  power." 
overlooking  that  the  principle,  if  it  exist  at  all,  must  be  universal.  It 
is  true  that  the  police  power  of  a  state  is  the  least  limitable  of  its  pow- 

i  "The  power  of  the  state  to  Impose  fines  and  penalties  for  a  violation  of 
iis  statutory  requirements  is  coeval  with  government;  and  the  i 
they  shall  be  enforced,  whether  a!  the  soil  of  a  private  party  or  :>t  the  suit 
of  the  public,  and  what  disposition  shall  he  made  of  the  amou 
are  merely   matters  of   legislative   discretion.     The  statutes   of  neari. 
state  of  the  Dnlon   provide  f"r   the  Increase  ol    damages  where  the  injury 
lined  "f  results  from  the  neglect  ><(  duties  imposed  for  the  hotter  se- 
cnrlty  of   life  and   property,  and   make  that    Increase   in    many  eases   doable, 
treble,  and  even  quadruple  the  actual  dam::-  iri  Pac. 

IJ.  Co.  v.    Humes.   115  U.  S.  512.  523,  «i  Sup.  Ct.  110.  114  (29  U   1  ■  : 

by  Weld,  J. 

ii  upon   the  theory  of  simple  compensation,  a  statute  may  pro 
Bnite   measure  of  damages  for   injuries  whose  pecuniar 
•s  difficult   t.>                     r  prove.     Chicago,  B.  &  Q.  R.  Co.  v.  Cram,  _-;>   l 
3.  To,  ;;;;  Sup.  Ct.    137,  57  L.  Ed  (1913)  (eases). 


506  FUNDAMENTAL    RIGHTS  (Part    2 

ers,  but  even  it  may  not  transcend  the  prohibition  of  the  Constitution 
of  the  United  States.  If,  as  contended,  intent  is  an  essential  ele- 
ment of  crime,  or,  more  restrictively,  if  intent  is  essential  to  the  le- 
gality of  penalties,  it  must  be  so,  no  matter  under  what  power  of  the 
state  they  are  prescribed.  Plaintiffs  in  error,  while  considering  there 
may  be  exceptions  to  the  principle  contended  for  in  the  exercise  of 
the  police  power,  urge  that  the  legislation  in  controversy  is  not  of 
that  character.  The  supreme  court  of  the  state,  however,  expressed 
a  different  view.  [102  Minn.  470,  113  N.  W.  634,  114  N.  W.  738.] 
It  decided  that  the  legislation  was  in  effect  an  exercise  of  the  police 
power,  and  cited  a  number  of  cases  to  sustain  the  proposition  that 
public  policy  may  require  that  in  the  prohibition  or  punishment  of 
particular  acts  it  may  be  provided  that  he  who  shall  do  them  shall 
do  them  at  his  peril,  and  will  not  be  heard  to  plead  in  defense  .good 
faith  or  ignorance.  Those  cases  are  set  forth  in  the  opinion  of  the 
court,  and  some  of  them  reviewed. 

"We  will  not  repeat  them.  It  was  recognized  that  such  legislation 
may,  in  particular  instances,  be  harsh,  but  we  can  only  say  again 
what  we  have  so  often  said,  that  this  court  cannot  set  aside  legislation 
because  it  is  harsh."  s 

[Harlan,  J.,  concurred  in  the  result.] 

•  Accord  (as  to  criminal  or  quasi-criminal  liability):  Chicago,  B.  &  Q.  Ry. 
v.  United  States,  220  TJ.  S.  559,  31  Sup.  Ct.  G12.  55  L.  Ed.  582  (1911);  Welch 
v.  State,  145  Wis.  86,  129  N.  W.  656,  32  L.  K.  A.  (N.  S.)  746  (1911);  New 
York  Cent.  &  H.  R.  R.  Co.  v.  United  States,  212  U.  S.  481,  29  Sup.  Ct.  304. 
53  L.  Ed.  613  (1909)   (liability  of  corporation  for  agents);    United   States  v. 

Adams  Exp.  Co.,  229  U.  S.  381,  33  Sup.  Ct.  878,  57  L.  Ed.  (1913)   (same 

of  partnership  or  joint-stock  association).  See  33  L.  R.  A.  (N.  S.)  419,  423, 
424,  note  (principal  criminally  liable  for  agent's  unauthorized  viola  lion  of 
liquor  laws). 

"The  power  of  the  legislature  to  declare  an  offence,  and  to  exclude  the  ele- 
ments of  knowledge  and  due  diligence  from  any  inquiry  as  to  its  commis- 
sion, cannot,  we  think,  be  questioned." — Harlan,  J.  in  Chicago  B.  &  Q.  R.  Co. 
v.  United  States,  above,  220  U.  S.  578,  31  Sup.  Ct.  617,  55  L.  Ed.  582. 

Compare  Kilbourne  v.  State,  84  Ohio  St.  247,  95  N.  E.  824,  35  L.  R.  A.  (N. 
S.)  766  (1911);  People  v.  Rosenthal,  197  N.  Y.  394,  90  N.  E.  991  (1910),  af- 
firmed 226  U.  S.  260,  33  Sup.  Ct  27,  57  L.  Ed.  (1912). 

So,  as  to  civil  liability.  St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S. 
1,  17  Sup.  Ct.  243,  41  L.  Ed.  611  (1S97)  (fire  from  railroads) ;  Jones  v.  Brim, 
165  U.  S.  ISO,  17  Sup.  Ct.  282,  41  L.  Ed.  677  (1S97)  (injury  to  road  from 
driven  animals);  Chicago,  R.  I.  &  P.  R.  Co.  v.  Zernecke,  183  U.  S.  5S2,  22 
Sup.  Ct.  229,  46  L.  Ed.  339  (1902)  (injuries  to  railway  passengers— semble) ; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U.  S.  281,  28  Sup.  Ct.  616,  52 
L.  Ed.  1061  (1908)  (injuries  to  employees  from  unsafe  car  coupling),  in  which 
Moody,  J.,  said  (210  U.  S.  295,  296,  28  Sup.  Ct.  621,  52  L.  Ed.  1061) :  "When 
applied  to  the  case  at  bar  the  argument  of  hardship  is  plausible  only  when 
the  attention  is  directed  to  the  material  interest  of  the  employer  to  the  ex- 
clusion of  the  interests  of  the  employee  and  of  the  public.  Where  an  injury 
happens  through  the  absence  of  a  safe  drawbar  there  must  be  hardship. 
Such  an  injury  must  be  an  irreparable  misfortune  to  someone.  If  it  must 
be  borne  entirely  by  him  who  suffers  it,  that  is  a  hardship  to  him.  If  its 
burden  Is  transferred,  as  far  as  it  is  capable  of  transfer,  to  the  employer. 
it  is  a  hardship  to  him.  It  is  quite  conceivable  that  Congress,  contemplating 
the  inevitable  hardship  of  such  injuries,  and  hoping  to  diminish  the  economic- 
loss  to  the  community  resulting  from  them,  should  deem  it  wise  to  impose 


Ch.  10)  DUE   PBOCB88  AND    BQUALITX;     POLICI   POWU  507 


CITY  OF  CHICAGO  v.  STURGES  (1911)  222  U.  S.  313,  322- 
324,  32  Sup.  Ct.  92,  56  L.  Ed.  215,  Mr.  Justice  Llkton  (upholding  an 
Illinois  statute  making  cities  absolutely  liable  for  three-fourths  of 
the  damage  done  to  property  therein  by  mob  of  over  12  persons,  and 
giving  it  a  remedy  over  against  the  rioters) : 

"The  objection  [is  narrowed]  to  the  single  question  of  legislative 
power  to  impose  liability  regardless  of  fault.  It  is  a  general  principle 
of  our  law  that  there  is  no  individual  liability  for  an  act  which  ordi- 
nary human  care  and  foresight  could  not  guard  against.  It  is  also  a 
general  principle  of  the  same  law  that  a  loss  from  any  cause  purely 
accidental  must  rest  where  it  chances  to  fall.  But  behind  and  above 
these  general  principles  which  the  law  recognizes  as  ordinarily  pre- 
vailing, there  lies  the  legislative  power,  which,  in  the  absence  of  or- 
ganic restraint,  may,  for  the  general  welfare  of  society,  impose  ob- 
ligations and  responsibilities  otherwise  nonexistent. 

"Primarily,  governments  exist  for  the  maintenance  of  social  order. 
Hence  it  is  that  the  obligation  of  the  government  to  protect  life,  lib- 
erty, and  property  against  the  conduct  of  the  indifferent,  the  careless, 
and  the  evil-minded  may  be  regarded  as  lying  at  the  very  foundation 
of  the  social  compact.  A  recognition  of  this  supreme  obligation  is 
found  in  those  exertions  of  the  legislative  power  which  have  as  an 
end  the  preservation  of  social  order  and  the  protection  of  the  welfare 
of  the  public  and  of  the  individual.     If  such  legislation  be  reasonably 

their  burdens  upon  those  who  could  mensure:ihly  control  their  causes.  Instead 
of  upon  those  who  are,  in  the  main,  helpless  In  that  regard." 

In  St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  above,  105  U.  S.  26,  17  Sup.  Ot  202, 
41  L.  Ed.  611,  Gray,  J.,  said:    "Railroad  corporations,  In  order  the  better  to 
carry  out  the  public  object  of  their  creation,  the  sure  and  prompt  transporta- 
tion of  passengers  and  goods,  have  been  authorized  by  statute  to  use  locoino- 
ed  by  steam  generated  b;  '<  upon  those  engines. 

It  Is  within  the  authority  of  the  legislature  to  make  adequate  provision  for 
protecting  the  property  of  others  against  loss  or  injury  by  sparks  from  such 
engines.  The  rl'„rht  of  the  citizen  not  to  have  his  property  burned  without 
compensation  is  n<>  less  to  be  regarded  than  the  right  of  the  corporation  to 
set  it  on  Are.  To  require  the  utmost  eare  and  diligence  of  the  railroad  cor- 
porations In  taking  precautions  against  the  escape  of  fire  from  their  en- 
gines might  not  afford  sufficient  protection  to  the  owners  of  property  in  the 
neighborhood  of  the  railroads.  When  both  parties  arc  equally  fault' 
legislature  may  properly  consider  it  to  he  just  that  the  duty  of  Insuring 
private  property  against  loss  or  injury  caused  by  the  use  of  dangerous  in- 
struments should  rest  upon  the  railroad  co  tny,  which  employs  the  instru- 
and  creates  the  perl]  for  its  own  profit,  rather  than  upon  the  owner 
of  the  property,  who  has  no  control  over  or  interest  in  those  Instruments." 

Bui   the  State  courts  have  generally  held  it  unconstitutional  to  lm| 
railways  an  absolute  liability  for  stock  killed  by  trains,  25  L.  R.    \ 
35  i..  R.  a.  (\.  s.i   ioin,  uote;    es  epl   as  n         ilty  for  failure  I 

luty,   such   as   maintaining   fences  or  cattle  guards.   ::i    I,.    K.   A 

862,  863,  note.    Compare  Ohio  &  M.  B.  Co.  v.  Lackey,  78  111  55, 
259  (1875):    Memphis  &  C.   B.  Co.  r,  Smil  '  i 

I  in  5t  U  &  X.  O.  R.  Co..  T'.t  Term.  (11  Lea)  IT'',.  17 

The  doer  of  acts  that  are  or  may  be  made  Illegal    may  be   ml 
statute  for  consequences  more  remote  than  those  recognized  by  the  common 


508  FUNDAMENTAL    RIGHTS  (Part  2 

adapted  to  the  end  in  view,  affords  a  hearing  before  judgment,  and 
is  not  forbidden  by  some  other  affirmative  provision  of  constitutional 
law,  it  is  not  to  be  regarded  as  denying  due  process  of  law  under  the 
provisions  of  the  fourteenth  amendment. 

"The  law  in  question  is  a  valid  exercise  of  the  police  power  of  the 
state  of  Illinois.  It  rests  upon  the  duty  of  the  state  to  protect  its 
citizens  in  the  enjoyment  and  possession  of  their  acquisitions,  and  is 
but  a  recognition  of  the  obligation  of  the  state  to  preserve  social  order 
and  the  property  of  the  citizen  against  the  violence  of  a  riot  or  a  mob. 

"The  state  is  the  creator  of  subordinate  municipal  governments. 
It  vests  in  them  the  police  powers  essential  to  the  preservation  of 
law  and  order.  It  imposes  upon  them  the  duty  of  protecting  property 
situated  within  their  limits  from  the  violence  of  such  public  breaches 
of  the  peace  as  are  mobs  and  riots.  This  duty  and  obligation  thus 
intrusted  to  the  local  subordinate  government  is  by  this  enactment 
emphasized  and  enforced  by  imposing  upon  the  local  community  abso- 
lute liability  for  property  losses  resulting  from  the  violence  of  such 
public  tumults. 

"The  policy  of  imposing  liability  upon  a  civil  subdivision  of  gov- 
ernment exercising  delegated  police  power  is  familiar  to  every  student 
of  the  common  law.  We  find  it  recognized  in  the  beginning  of  the 
police  system  of  Anglo-Saxon  people.  Thus,  'the  Hundred,'  a  very 
early  form  of  civil  subdivision,  was  held  answerable  for  robberies 
committed  within  the  division.     By  a  series  of  statutes,  beginning  pos- 

law.  Bertholf  v.  O'Reilly,  74  N.  Y.  509,  30  Am.  Rep.  323  (1S78) ;  Marvin  v. 
Trout,  109  U.  S.  212,  20  Sup.  Ct.  31,  50  L.  Ed.  157  (1905). 

Indefiniteness  op  Cbime. — As  to  how  far  definiteness  of  description  is  a 
constitutional  requisite  of  a  statutory  crime,  see  Waters-Pierce  Oil  Co.  v. 
Texas.  212  U.  S.  86,  108  ff.,  29  Sup.  Ct.  220,  53  L.  Ed.  417  (1909);  Standard 
Oil  Co.  of  New  Jersey  v.  United  States,  221  U.  S.  1,  69-70,  31  Sup.  Ct.  502,  55 
L.  Ed.  619,  34  L.  R.  A.  (N.  S.)  834,  Ann.  Cas.  1912D,  734  (1911);  Nash  v. 
United  States,  229  U.  S.  373,  33  Sup.  Ct.  780.  57  L.  Ed.  (1913). 

Confiscation  by  Excessive  Fines  or  Damages. — "It  Is  contended  that  the 
fines  imposed  are  so  excessive  as  to  constitute  a  taking  of  the  defendant's 
property  without  due  process  of  law.  It  is  not  contended  in  this  connection 
that  the  prohibilion  of  the  eighth  amendment  to  the  federal  Constitution 
against  excessive  fines  operates  to  control  the  legislation  of  the  states.  The 
fixing  of  punishment  for  crime  or  penalties  for  unlawful  acts  against  its 
laws  is  within  the  police  power  of  the  state.  We  can  only  interfere  with 
such  legislation  and  judicial  action  of  the  states  enforcing  it  if  the  fines  im- 
posed are  so  grossly  excessive  as  to  amount  to  a  deprivation  of  property  with- 
out due  process  of  law.  Coffey  v.  Harlan  County,  204  U.  S.  659,  27  Sup.  Ct. 
305,  51  L.  Ed.  666."— Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S.  S6,  111,  29  Sup. 
Ct.  220,  227  (53  L.  Ed.  417)  (1909),  by  Day,  J.,  upholding  fines  of  $1,500  a 
day  for  1,033  days,  and  of  $50  a  day  for  1.4S0  days,  during  which  periods 
business  was  conducted  in  Texas  in  violation  of  its  anti-trust  laws,  making  a 
total  of  $1,623,500  against  a  corporation  owning  $40,000,000  of  property  and 
earning  700  per  cent,  on  a  capital  stock  of  $400,000. 

Nor  can  excessive  damages  be  exacted  as  a  civil  penalty,  though  reasonable 
punitive  damages  are  permissible.  Standard  Oil  Co.  of  Indiana  v.  Missouri, 
224  U.  S.  270,  286,  32  Sup.  Ct.  406,  56  L.  Ed'.  700  (1912)  ($50,000  fine  in  ouster 
proceedings  upheld);  Missouri  Pac.  R.  Co.  v.  Tucker,  230  U.  S.  340,  .">•'!  Sup. 
Ct  961,  57  L.  Ed. (1913)  ($500  damages  for  slight  overcharge  of  carrier). 


Ch.  10)  DUE  PBOCBH  AND  equality:    polick  powhb 

sibly  in  1285,  in  the  statutes  of  Westminster,  coming  on  down  to  the 
27th  Elizabeth,  the  riot  act  of  George  I,  and  act  of  George  II,  chap. 
10,  we  may  find  a  continuous  recognition  of  the  principle  that  a  civil 
subdivision  intrusted  with  the  duty  of  protecting  property  in  its  mid=t, 
and  with  police  power  to  discharge  the  function,  may  be  made  an- 
swerable not  only  for  negligence  affirmatively  shown,  but  absolutely 
as  not  having  afforded  a  protection  adequate  to  the  obligation.  Stat- 
utes of  a  similar  character  have  been  enacted  by  several  of  the  states 
and  held  valid  exertions  of  the  police  power.  Darlington  v.  New 
York,  31  N.  Y.  164,  88  Am.  Dec.  243;  Fauvia  v.  New  Orleans,  20  La. 
Ann.  410;  Allegheny  County  v.  Gibson,  90  Pa.  397,  35  Am.  Rep.  670. 
The  imposition  of  absolute  liability  upon  the  community  when  prop- 
erty is  destroyed  through  the  violence  of  a  mob  is  not,  therefore,  an 
unusual  police  regulation.  Neither  is  it  arbitrary,  as  not  resting  upon 
reasonable  grounds  of  policy.  Such  a  regulation  has  a  tendency  to 
deter  the  lawless,  since  the  sufferer  must  be  compensated  by  a  tax 
burden  which  will  fall  upon  all  property,  including  that  of  the  evil 
doers  as  members  of  the  community.  It  is  likewise  calculated  to 
stimulate  the  exertions  of  the  indifferent  and  the  lawabiding  to  avoid 
the  falling  of  a  burden  which  they  must  share  with  the  lawk 
that  it  directly  operates  on  and  affects  public  opinion,  it  tends  strongly 
to  the  upholding  of  the  empire  of  the  law." 


NOBLE  STATE  BANK  v.  HASKELL. 

(Supreme  Court  of  United  States.  1911.    218  U.  S.  104.  31  .Sup.  C 
Kcl.  112,  32  L.  K.  A.  [N.  S.)  1062,  Ann.  Ca&  19I2A,  487.) 

[Error  to  the  Supreme  Court  of  Oklahoma.  A  state  statute  created 
a  banking  board  directed  to  levy  an  assessment  upon  ever;, 
bank's  average  daily  deposits  in  order  to  create  a  depositors'  guaranty 
fund.  When  the  cash  of  any  insolvent  bank  in  liquidation  should  be 
insufficient  to  pay  all  depositors,  the  deficit  was  to  be  made  up  from 
this  guaranty  fund  and  from  further  assessments,  if  necessary,  re- 
serving a  lien  upon  the  assets  of  the  failing  bank  to  secure  money 
thus  taken  from  the  fund.  Plaintiff  bank  sought  to  enjoin  the 
ing  board  from  collecting  such  assessments  from  it,  and  its  petition 
was  dismissed  in  the  state  courts.] 

.Mr.  Justice  Holmks.  *  *  *  We  must  be  cautious  abou; 
ing  the  broad  words  of  the  fourteenth  amendment  to  a  drily 
extreme.  Many  laws  which  it  would  be  vain  to  ask  the  court  to  over- 
throw could  be  shown,  easily  enough,  to  transgress  a  scholastic  inter- 
pretation of  one  or  another  of  t  larantiea  in  the  Bill  of 
Rights.  They  more  or  less  limit  tl  I  the  individual,  or  they 
diminish  property  to  a  certain  extent.  We  have  few  scientifically  cer- 
tain criteria  of  legislation,  and  as  it  often  is  difficult  to  mark  the  line 


510  FUNDAMENTAL    RIGHTS  (Part    2 

where  what  is  called  the  police  power  of  the  states  is  limited  by  the 
Constitution  of  the  United  States,  judges  should  be  slow  to  read  into 
the  latter  a  nolumus  mutare  as  against  the  lawmaking  power. 

The  substance  of  the  plaintiff's  argument  is  that  the  assessment 
takes  private  property  for  private  use  without  compensation.  And 
while  we  should  assume  that  the  plaintiff  would  retain  a  reversionary 
interest  in  its  contribution  to  the  fund,  so  as  to  be  entitled  to  a  re- 
turn of  what  remained  of  it  if  the  purpose  were  given  up  (see  Danby 
Bank  v.  State  Treasurer,  39  Vt.  92,  98),  still  there  is  no  denying  that 
by  this  law  a  portion  of  its  property  might  be  taken  without  return 
to  pay  debts  of  a  failing  rival  in  business.  Nevertheless,  notwith- 
standing the  logical  form  of  the  objection,  there  are  more  powerful 
considerations  on  the  other  side.  In  the  first  place,  it  is  established 
by  a  series  of  cases  that  an  ulterior  public  advantage  may  justify  a 
comparatively  insignificant  taking  of  private  property  for  what,  in 
its  immediate  purpose,  is  a  private  use.  Clark  v.  Nash,  198  U.  S.  361, 
25  Sup.  Ct.  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171 ;  Strickley  v.  High- 
land Boy  Gold  Min.  Co.,  200  U.  S.  527,  531,  26  Sup.  Ct.  301,  50  L- 
Ed.  581,  583,  4  Ann.  Cas.  1174;  Offield  v.  New  York,  N.  H.  &  H. 
R.  Co.,  203  U.  S.  372,  27  Sup.  Ct.  72,  51  L.  Ed.  231;  Bacon  v. 
Walker,  204  U.  S.  311,  315,  27  Sup.  Ct.  289,  51  L.  Ed.  499,  501. 
And  in  the  next,  it  would  seem  that  there  may  be  other  cases  beside 
the  everyday  one  of  taxation,  in  which  the  share  of  each  party  in 
the  benefit  of  a  scheme  of  mutual  protection  is  sufficient  compensa- 
tion for  the  correlative  burden  that  it  is  compelled  to  assume.  See 
Ohio  Oil  Co.  v,  Indiana,  177  U.  S.  190,  20  Sup.  Ct.  576,  44  L.  Ed. 
729;  Deserant  v.  Cerillos  Coal  R.  Co.,  178  U.  S.  409,  20  Sup.  Ct. 
967,  44  L.  Ed.  1127,  20  Mor.  Min.  Rep.  576.  At  least,  if  we  have  a 
case  within  the  reasonable  exercise  of  the  police  power  as  above  ex- 
plained, no  more  need  be  said. 

It  may  be  said  in  a  general  way  that  the  police  power  extends  to 
all  the  great  public  needs.  Camfield  v.  United  States,  167  U.  S.  518, 
17  Sup.  Ct'864,  42  L.  Ed.  260.  It  may  be  put  forth  in  aid  of  what 
is  sanctioned  by  usage,  or  held  by  the  prevailing  morality  or  strong 
and  preponderant  opinion  to  be  greatly  and  immediately  necessary  to 
the  public  welfare.  Among  matters  of  that  sort  probably  few  would 
doubt  that  both  usage  and  preponderant  opinion  give  their  sanction 
to  enforcing  the  primary  conditions  of  successful  commerce.  One  of 
those  conditions  at  the  present  time  is  the  possibility  of  payment  by 
checks  drawn  against  bank  deposits,  to  such  an  extent  do  checks  re- 
place currency  in  daily  business.  If,  then,  the  legislature  of  the  state 
thinks  that  the  public  welfare  requires  the  measure  under  considera- 
tion, analogy  and  principle  are  in  favor  of  the  power  to  enact  it. 
Even  the  primary  object  of  the  required  assessment  is  not  a  private 
benefit,  as  it  was  in  the  cases  above  cited  of  a  ditch  for  irrigation  or 
a  railway  to  a  mine,  but  it  is  to  make  the  currency  of  checks  secure, 
and  by  the  same  stroke  to  make  safe  the  almost  compulsory  resort 


Ch.  10)  DDK   PROCESS  AMi   EQUALITY:     POLIi  B   POWBB  511 

of  depositors  to  banks  as  the  only  available  means  for  keeping  money 
on  hand.  The  priority  of  claim  given  to  depositors  is  incidental  to 
the  same  object,  and  is  justified  in  the  same  way.  The  power  to  re- 
strict liberty  by  fixing  a  minimum  of  capital  required  of  those  who 
would  engage  in  banking  is  not  denied.  The  power  to  restrict  ii 
ments  to  securities  regarded  as  relatively  safe  seems  equally  plain. 
It  has  been  held,  we  do  not  doubt  rightly,  that  inspections  may  be  re- 
quired and  the  cost  thrown  on  the  bank.  See  Charlotte,  C.  & 
Co.  v.  Gibbes,  142  U.  S.  3S6,  12  Sup.  Ct.  255,  35  L.  Ed.  1051.  The 
power  to  compel,  beforehand,  co-operation,  and  thus,  it  is  b<  ' 
to  make  a  failure  unlikely  and  a  general  panic  almost  impossible,  must 
be  recognized,  if  government  is  to  do  its  proper  work,  unless  we  can 
say  that  the  means  have  no  reasonable  relation  to  the  end.  Gundling 
v.  Chicago,  177  U.  S.  183,  188,  20  Sup.  Ct.  633,  44  L.  Ed.  725.  So 
far  is  that  from  being  the  case  that  the  device  is  a  familiar  one.  It 
was  adopted  by  some  states  the  better  part  of  a  century  ago,  and 
seems  never  to  have  been  questioned  until  now.  Danby  Bank  v.  State- 
Treasurer,  39  Vt.  92;  People  v.  Walker,  17  N.  Y.  502.  Recent  cases 
going  not  less  far  are  Lemieux  v.  Young,  211  U.  S.  4S9,  496,  29  Sup. 
Ct.  174,  53  L.  Ed.  295,  300;  Kidd,  D.  &  P.  Co.  v.  Musselman  Grocer 
Co.,  217  U.  S.  461,  30  Sup.  Ct.  606,  54  L.  Ed.  839. 

It  is  asked  whether  the  state  could  require  all  corporations  or  all 
grocers  to  help  to  guarantee  each  other's  solvency,  and  where  we  are 
going  to  draw  the  line.  But  the  last  is  a  futile  question,  and  we  will 
answer  the  others  when  they  arise.  With  regard  to  the  police  power, 
as  elsewhere  in  the  law,  lines  are  pricked  out  by  the  gradual  approa-.-h 
and  contact  of  decisions  on  the  opposing  sides.  Hudson  Coun- 
ter Co.  v.  McCarter.  209  U.  S.  349,  355,  28  Sup.  Ct.  529,  52  L.  Ed. 
828,  831,  14  Ann.  Cas.  560.  It  will  serve  as  a  datum  on  this  side,  that, 
in  our  opinion,  the  statute  before  us  is  well  within  the  state*! 
stitutional  power,  while  the  use  of  the  public  credit  on  a  large  scale 
to  help  individuals  in  business  has  been  held  to  be  beyond  the  line. 
Citizens'  L.  Asso.  v.  Topeka,  20  Wall.  655,  22  L.  Ed.  455 ;  Lowell 
v.  Boston,  111  Mass.  454,  15  Am.  Rep.  39. 

The  question  that  we  have  decided  is  not  much  helped  by  pro- 
pounding the  further  one,  whether  the  right  to  engage  in  banking  is 
or  can  be  made  a  franchise.    But  as  the  latter  question  has  son. 
ing  on  the  former,  and  as  it  will  have  to  be  considered  in  the  follow- 
ing cases,  if  not  here,  we  will  dispose  of  it  now.     It  is  not  answered 
by  citing  authorities  for  the  existence  of  the   right  at  common  law. 
There  are  many  things  that  a  man  might  do  at  common  law  that  the 
states  may  forbid.     He  might  embezzle  until  a  statute  cut  down  his 
liberty.    We  cannot  say  that  the  public  interests  to  which  we  ha 
verted,  and  others,  are  not  sufficient  to  warrant  the  state  in 
the  whole  business  of  banking  under  its  control.     On  the  coi 
we  are  of  opinion  that  it  may  go  on  from  regulation  to  prohibition 
except  upon  such  conditions  as  it  may  prescribe.     In  short,  when  the 


512  FUNDAMENTAL   RIGHTS  (Part   2 

Oklahoma  legislature  declares  by  implication  that  free  banking  is  a 
public  danger,  and  that  incorporation,  inspection,  and  the  above-de- 
scribed co-operation   are  necessary   safeguards,   this  court   certainly 
cannot  say  that  it  is  wrong  [citing  cases]. 
Decree  affirmed.1 


STATE  ex  rel.  YAPLE  v.  CREAMER. 

(Supreme  Court  of  Ohio,  1912.    85  Ohio  St  349,  97  N.  E.  602,  39  L.  R.  A. 
[N.  S.]  694.) 

[Demurrer  to  a  petition  of  mandamus  directed  to  Creamer,  state 
treasurer,  involving  the  validity  of  a  workmen's  compensation  act  set 
out  in  the  opinion  below.] 

Johnson,  J.  The  statute  in  question  provides  for  the  creation 
of  a  state  liability  board  of  awards,  which  shall  establish  a  state  in- 
surance fund,  from  premiums  paid  by  employers  and  employes  in  the 
manner  provided  in  the  act.  It  provides  a  plan  of  compensation  for 
injuries,  not  willfully  self-inflicted,  resulting  from  accidents  to  em- 
ployes of  employers,  both  of  whom  have  voluntarily  contributed  to 
the  fund  in  the  proportion  of  10  and  90  per  cent,  respectively.  It 
applies  only  where  the  employer  has  five  or  more  operators  regularly 
in  the  same  business  or  in  or  about  the  same  establishment.  An  em- 
ployer who  complies  with  the  act  is  relieved  from  liability  to  respond 
in  damages  at  common  law,  or  by  statute,  for  injury  or  death  of  an 
employe  who  has  complied  with  its  provisions,  except  when  the  in- 
jury arises  from  the  willful  act  of  himself  or  officer  or  agent,  or  from 
failure  to  comply  with  any  law  or  ordinance  providing  for  protec- 
tion of  life  and  safety  of  employes,  in  which  event  the  employe  or 
his  representatives  have  their  election  between  a  suit  for  damages 
and  a  claim  under  the  act.  Employers  of  five  or  more  who  do  not 
pay  premiums  into  the  fund  are  deprived  in  actions  against  them  of 
the  common-law  defenses  of  the  fellow-servant  rule,  the  assumption 
of  risk,  and  of  contributory  negligence.  Where  the  parties  are  operat- 
ing under  the  act,  the  injured  employe  and  his  dependents  in  case  of 
death  are  compelled  to  accept  compensation  from  the  insurance  fund 
in  the  manner  provided,  except  in  the  cases  above  set  forth.    *    *    * 

i  See,  also,  Jones  v.  Great  Southern  Fire  Proof  Hotel  Co.,  86  Fed.  370,  30  O. 
C.  A.  108  (1898).  affirmed  in  193  U.  S.  532,  24  Sup.  Ct.  576.  48  L.  Ed.  778  (1004) 
(upholding  mechanics'  lien  in  favor  of  sub-contractor) ;  Kelly  v.  Johnson,  251 
111.  135,  95  N.  E.  106S,  36  L.  R.  A.  (N.  S.)  573  (1911)  (contra) ;  Atlantic  Coast 
Line  R.  Co.  v.  Riverside  Mills,  219  U.  S.  186,  31  Sup.  Ct.  164,  55  L.  Ed.  167.  31 
L.  R.  A.  (N.  S.)  7  (1911)  (initial  carrier  liable  for  default  of  connecting  car- 
rier) ;  Lindsay  &  P.  Co.  v.  Mullen.  176  TJ.  S.  126,  20  Sup.  Ct.  325,  44  L.  Ed. 
400  (1900)  (all  of  logs  in  boom  subject  to  lien  for  scaling  fees  against  any 
owner) ;  Horace  Waters  &  Co.  v.  Gerard,  1S9  N.  Y.  302,  82  N.  E.  143,  24  L. 
R.  A.  (N.  S.)  958,  121  Am.  St.  Rep.  886,  12  Ann.  Cas.  397  (1907)  (hotel  lien  on 
stranger's  goods  in  possession  of  guest) ;  People  v.  Hill,  163  111.  186,  46  N. 
E.  796,  36  L.  R.  A.  634  (1S96)  (brothers  and  sisters  liable  to  support  pauper). 


Ch.  10)      DUE  PROCESS  AND  EQUALITY:  POLICE  POWER         OKI 

The  law  was  passed  after  a  report  referred  to  in  the  briefs,  of  a 
commission  appointed  by  the  Governor,  in  obedience  to  a  statute 
passed  for  that  purpose.  The  report  was  prepared  after  an  exhaus- 
tive research  into  industrial  conditions  in  many  countries,  and  an  ex- 
amination of  laws,  which  have  been  passed  in  the  effort  to  improve 
such  conditions.  Substantially,  its  conclusions  are:  That  the  sys- 
tem which  has  been  followed  in  this  country,  of  dealing  with  acci- 
dents in  industrial  pursuits,  is  wholly  unsound;  that  there  is  an  intel- 
ligent and  widespread  public  sentiment  which  calls  for  its  modifica- 
tion and  improvement;  that  the  general  welfare  requires  it;  that 
there  has  been  enormous  waste  under  the  present  system,  and  that  the 
action  for  personal  injuries  by  employe  against  employer  no  longer 
furnishes  a  real  and  practical  remedy,  annoys  and  harasses  both,  and 
does  not  meet  the  economic  and  social  problem  which  has  resulted 
from  modern  industrialism.  Conceding  the  desirability  of  improve- 
ment, of  legislative  and  governmental  action,  and  the  good  results 
in  other  countries  which  have  no  written  Constitution  to  limit  the 
legislative  power,  we  in  this  country  have  the  problem  of  devising  a 
plan  which  shall  not  infringe  the  fundamental  law.    *    *    * 

We  think  it  clear  that  the  objects  and  purposes  as  above  set  forth, 
which  the  Legislature  contemplated  in  the  passage  of  the  law  in  ques- 
tion, are  sufficient  to  sustain  the  exercise  of  the  police  power,  and  the 
participation  of  the  state  in  the  manner  provided.  Whether  the  plan 
adopted  is  the  most  appropriate  or  best  calculated  to  accomplish  those 
objects  are  matters  with  which  the  court  is  not  concerned,  and  the 
law  should  not  be  held  to  be  invalid  unless  clearly  in  violation  of 
some  provision  of  the  Constitution. 

It  is  urgently  insisted  that  while  the  law  is  apparently  permissive 
and  leaves  its  operation  to  the  election  of  employers  and  employes,  it  is 
really  coercive,  and  upon  this  premise  much  persuasive  argument 
against  the  validity  of  the  law  is  based.  This  is  an  important  question 
in  the  case. 

An  examination  of  the  sections  touching  the  questions  made  is  here 
necessary.     After  providing  in  section  20 — 1  that  an  employer  who 
elects  to  comply  with  the  act  shall  be  relieved  from  liability  to  the  em- 
ploye at  common  law,  or  by  statute  (except  as  provided  in  section  21  — 
2),  it  is  then  enacted,  in  section  21 — 1 :    "All  employers  who  shall  not 
pay  into  the  insurance  fund,     *     *     *     shall  be  liable  to  their  em- 
ployes for  damages,     *     *    *    caused  by  the  wrongful  act,  neglect  or 
default  of  the  employer,  his  agents,"  etc.     And  in  such  cases  tl 
fenses  of  assumption  of  risk,  fellow  servant,  and  contributory 
gence  are  not  available.    So  that  an  employer  who  elects  not  to 
into  the  plan  of  insurance  may  still  escape  liability  if  he  is  not  gnilty 
of  wrongful  act,  neglect,  or  default.     His  liability  is  not  absolute,  as 
in  the  case  of  the  New  York  statute  hereinafter  referred   to. 
it  cannot  be  said  that  the  withdrawal  of  the  defenses  of  assumption 
Hall  Const.L. — 33 


514  FUNDAMENTAL    RIGHTS  (Part  2 

of  risk,  fellow  servant,  and  contributory  negligence,  as  against  an 
employer  who  does  not  go  into  the  plan,  is  coercive,  for  such  with- 
drawal is  in  harmony  with  the  legislative  policy  of  the  state  for  a 
number  of  years  past.  The  law  known  as  the  Norris  law,  passed  in 
1910,  withdrew  these  defenses  in  the  particulars  covered  by  the  law. 

As  to  the  employe,  if  the  parties  do  not  elect  to  operate  under  the 
act,  he  has  his  remedy  for  the  neglect,  wrongful  act,  or  default  of 
his  employer  and  agents  as  before  the  law  was  passed,  and  is  not 
subject  to  the  defenses  named.  If  the  parties  are  operating  under  the 
act,  the  employe  contributes  to  an  insurance  fund  for  the  benefit  of 
himself  or  his  heirs,  and,  in  case  he  is  injured  or  killed,  he  or  they 
will  receive  the  benefit  even  though  his  injury  or  death  was  caused 
by  his  own  negligent  or  wrongful  act,  not  willful.  And  that  is  not 
all.  Under  section  21 — 2,  if  the  parties  are  operating  under  the  act, 
and  the  employe  is  injured  or  killed,  and  the  injury  arose  from  the 
willful  act  of  his  employer,  his  officer  or  agent,  or  from  failure  of  the 
employer  or  agent  to  comply  with  legal  requirements,  as  to  safety  of 
employes,  then  the  injured  employe  or  his  legal  representative  has 
his  option  to  claim  under  the  act  or  sue  in  court  for  damages.  There- 
fore the  only  right  of  action  which  this  statute  removes  from  the  em- 
ploye is  the  right  to  sue  for  mere  negligence  (which  is  not  willful  or 
statutory)  of  his  employer,  and  it  is  within  common  knowledge  that 
this  has  become  in  actual  practice  a  most  unsubstantial  thing. 

It  is  conceded  by  counsel  that  the  particulars  named  in  section  21 — 
2  are  such  as  form  the  basis  for  a  large  portion  of  claims  for  personal 
injuries.  Many  employers  may  elect  to  remain  outside  its  provisions; 
it  would  not  be  strange  if  many  do  so.  On  the  other  hand,  some  work- 
men may  feel  disposed  to  do  likewise  in  spite  of  what  would  seem 
to  be  to  their  manifest  advantage  in  securing  the  benefits  of  the  insur- 
ance. However,  if  there  should  be  such  general  acceptance  of  and 
compliance  with  the  statute  as  its  framers  hope  for,  so  as  to  bring  a 
large  part  of  the  labor  employed  in  the  industrial  enterprises  of  the 
state  within  its  influence  and  operation,  that  would  not  demonstrate 
its  coercive  character.  On  the  contrary,  it  would  justify  the  enact- 
ment. Naturally  time  and  experience  will  disclose  imperfections  and 
inefficiencies  in  the  plan ;  but  if  it  should  prove  to  be  feasible,  and 
appropriate  in  a  general  way,  these  imperfections  can  be  corrected 
by  the  Legislature.  On  account  of  the  common-law  and  statutory 
rights  still  preserved  to  the  parties  by  this  statute  (as  we  have  pointed 
out)  in  cases  where  the  election  is  made  to  come  under  its  provisions 
as  well  as  not  to  do  so,  taken  in  connection  with  the  advantage  to 
each  which  the  plan  contemplates,  we  cannot  say  that  the  statute  is 
coercive.  As  was  said  in  the  Wisconsin  case:  "Laws  cannot  be  set 
aside  upon  mere  conjecture  or  speculation.  The  court  must  be  able 
to  say  with  certainty  that  an  unlawful  result  will  follow."  We  do  not 
see  how  any  such  thing  can  be  said  here.  Every  consideration  of 
prudence  and  self-interest  (things  not  easily  associated  with  compul- 


Ch.  10)  DUB  PHOCBS8  AJJD  JBQOALITr:     POLICE  POWBB  IK 

sion  and  coercion)  would  seem  to  lead  an  employe  to  voluntarily  make 
the  contribution  and  waiver  contemplated. 

Second.  Does  this  statute  take  private  property  without  due  process 
of  law  and  deny  the  guaranties  of  the  Constitution  as  claimed  ?  *  *  * 
The  case  of  Ives  v.  South  Buffalo  Ry.  Co.,  201  N.  Y.  276,  94  N.  E. 
431,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156  (relied  on  by  some 
of  counsel),  involved  a  statute  different  in  many  essentials  from  the 
Ohio  law.  Its  controlling  feature  was  that  every  empla 
in  any  of  the  classified  industries  should  be  liable  to  a  worki. 
injury  arising  in  the  course  of  the  work  by  a  necessary  risk  inherent 
in  the  business  whether  the  employer  was  at  fault  or  not  and  whether 
the  employe  was  at  fault  or  not,  except  when  his  fault  was  willful 
The  court  held  the  law  invalid,  as  imposing  the  ordinary  risks  of  a 
business  (which  under  the  common  law  the  employe  was  held  to  as- 
sume) on  the  employer.  The  court  states  one  of  the  premises  on 
which  it  proceeds  as  follows:  "When  our  Constitutions  were  adopted, 
it  was  the  law  of  the  land  that  no  man  who  was  without  fault  or  neg- 
ligence could  be  held  liable  in  damages  for  injuries  sustained  by  an- 
other." But  that  rule  was  not  of  universal  application.  At  common 
law  one  may  sustain  such  relation  to  the  inception  of  an  undertaking 
that  he  will  be  held  liable  for  negligence  in  the  progress  of  the  enter- 
prise, even  though  he  have  no  part  or  connection  with  the  negligent 
act  itself  which  caused  the  injury.  Such  for  instance,  as  where  the 
owner  of  property  contracts  with  an  independent  contractor  to  do 
work  which  though  entirely  lawful,  yet  has  inherent  probabilities  of 
harm  if  negligently  performed.  The  position  in  the  line  of  causation 
which  employers  sustain  in  modern  industrial  pursuits  is  of  course  the 
basic  fact  on  which  employer's  liability  laws  rest. 

As  to  the  right  to  abolish  the  defense  of  assumption  of  risk,  it  is 
enough  to  say  here  that  the  great  weight  of  authority  is  against  the 
New  York  position  and  the  position  of  such  of  the  counsel  in 
this  case  as  insist  on  that  rule.  Some  of  counsel  appearing  . 
the  validity  of  this  law  concede  the  right  to  abolish  the  defenses  re- 
ferred to.  The  Supreme  Courts  of  Massachusetts,  Wisconsin,  and 
Washington  have  recently  held,  in  eases  sustaining  the  validity  of 
statutes  similar  to  the  one  here  attacked,  that  it  is  within  tl 
power  to  abolish  the  defense  referred  to.  In  re  Opinion  of  fust  ices, 
209  Mass.  607,  69  N.  E.  308;  Borgnis  v.  Falk  Co.,  147  Wis.  327,  133 
N.  W.  209,  37  L.  R.  A.  (N.  S.)  489;  State  ex  rel.  v.  Clausen,  65  Wash. 
156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.) 

Since  the  argument  of  this  case  the  Supreme  Court  of  the  United 
lias  decided  the  case  of  Mondou  v.  .V.  Y..  X.  II.  &  H.  Ry.  Co.. 
223  U.  S.  1,  32  Sup.  Ct.  169,  56  I..  Ed.  327,  38  L.  R.  A.  (X.  S.)  44 
and  has  sustained  the  constitutionality  of  the  employer's  liability  law 
passed  by  Congress.  The  abolition  of  these  rules  was  urged  as  an 
objection  to  the  law.  The  court  say:  "Of  the  objection  to  these 
changes  it  is  enough  to  observe :    First.  A  person  has  no  property,  n-* 


516  FUNDAMENTAL    RIGHTS  (Part  2 

vested  interest,  in  any  rule  of  the  common  law.  That  is  only  one  of 
the  forms  of  municipal  law,  and  is  no  more  sacred  than  any  other. 
Rights  of  property  which  have  been  created  by  the  common  law  cannot 
be  taken  away  without  due  process ;  but  the  law  itself,  as  a  rule  of 
conduct,  may  be  changed  at  the  will  *  *  *  of  the  Legislature, 
unless  prevented  by  constitutional  limitations.  Indeed,  the  great  office 
of  statutes  is  to  remedy  defects  in  the  common  law  as  they  are  de- 
veloped, and  to  adapt  it  to  the  changes  of  time  and  circumstances. 
Munn  v.  Illinois,  94  U.  S.  113,  134  [24  L.  Ed.  77]  ;  Martin  v.  Pitts- 
burg &  Lake  Erie  R.  R.  Co.,  203  U.  S.  284,  294  [27  Sup.  Ct.  100,  51 
L.  Ed.  184.  8  Ann.  Cas.  87]  ;  The  Lottawanna,  21  Wall.  558,  577  [22 
L.  Ed.  654]  ;  Western  Union  Telegraph  Co.  v.  Commercial  Milling 
Co.,  218  U.  S.  406,  417  [31  Sup.  Ct.  59,  54  L.  Ed.  10S8,  36  L.  R.  A. 
(N.  S.)  220,  21  Ann.  Cas.  815]."    *    *    * 

State  ex  rel.  v.  Hubbard,  22  Ohio  Cir.  Ct.  R.  253,  affirmed  without 
opinion  65  Ohio  St.  574,  64  N.  E.  109,  58  L.  R.  A.  654,  and  State  ex 
rel.  v.  Guilbert,  56  Ohio  St.  575,  47  N.  E.  551,  38  L.  R.  A.  519,  60 
Am.  St.  Rep.  756,  involving  the  validity  of  statutes  creating  a  teach- 
ers' pension  fund  and  the  Torrens  law  to  establish  an  insurance  fund 
for  the  protection  of  land  titles,  concerned  laws  which  were  wholly 
compulsory  with  no  element  of  choice  and  were  not  claimed  to  have 
been  passed  under  the  police  power  to  cure  undesirable  public  condi- 
tions, but  for  mere  private  benefit.  These  cases  can  therefore  have 
no  relation  to  a  plan  adopted  to  promote  the  general  welfare,  the 
contributions  to  which  are  made  after  an  election  by  the  parties  to 
participate  in  the  undertaking. 

It  is  urged  by  counsel  opposing  this  law  that  the  case  of  Byers  v. 
Meridian  Printing  Co.,  84  Ohio  St.  408,  95  N.  E.  917,  38  L  R.  A. 
(N.  S.)  913  is  of  conclusive  weight  condemnatory  of  the  legislation 
we  are  examining.  In  that  case  it  is  ruled  that  an  amendment  to 
section  5094,  Revised  Statutes  (changing  the  presumption  of  malice 
and  burden  of  proof  in  actions  for  libel  where  retraction  is  made  on 
demand,  in  the  manner  stated)  is  unconstitutional.  The  decision  was 
put  on  the  ground  that  plaintiff  was  guaranteed  his  remedy  by  due 
course  of  law  for  an  injury  done  in  his  land,  goods,  person,  or  reputa- 
tion, under  article  1,  §  16,  Constitution  of  Ohio.  When  the  injury 
was  done  to  the  reputation  of  plaintiff  by  the  libel,  he  was  entitled  to 
his  constitutional  remedy  at  law ; 1    but  at  the  same  time  he  was  en- 

i  As  to  the  extent  to  which  a  plaintiff's  remedies  for  defamation  may  be 
validly  abridged,  see  Osborn  v.  Leach,  1.35  N.  C.  62S,  47  S.  E.  811,  6G  L.  R. 
A.  04^  (1004)  (cases).  As  to  remedies  for  other  torts,  see  Follett  Wool  Co. 
v.  Albany  Terminal  Warehouse  Co.,  61  App.  Div.  296,  70  N.  Y.  Supp.  474 
(1901)  (action  asainst  innocent  but  wrongful  possessor  of  chattels);  Poindex- 
ter  v.  Greenhow,  114  U.  S.  270,  303,  304,  5  Sup.  Ct.  903,  962,  29  L.  Ed.  1S5 
(1SS5)  (same,  as  to  dispossessor) ;  Goldberg,  Bowen  &  Co.  v.  Stableman's 
Union,  149  Cal.  429,  434,  S6  Pac.  806,  8  L.  R.  A.  (N.  S.)  460,  117  Am.  St.  Rep. 
145,  9  Ann.  Cas.  1219  (1906)  (injunction  against  tortious  picketing).  .  Compare 
Louisiana  ex  rel.  Folsom  v.  Mayor  of  New  Orleans,  109  U.  S.  285,  3  Sup.  Ct 


Ch.  10)  DUB   PBOCES8  AND   EQUALITY:     POLICE   I'OWEE  517 

titled  to  demand  of  the  publisher  a  retraction  of  the  libel.  Therefore 
the  Legislature  had  no  right  to  put  him  on  his  election  as  to  two 
courses  both  of  which  he  was  entitled  to  follow.  The  court  is  careful 
to  declare  that  it  is  not  disposed  to  question  that  a  citizen  may  waive  a 
constitutional  right.  But  being  compelled  to  elect  between  two  rights, 
both  of  which  a  person  is  entitled  to,  has  no  resemblance  to  waiver. 
And  under  the  law  under  investigation  here,  as  already  shown,  the 
right  of  action  (for  injury  by  willful  act  of  the  employer  and  for  his 
failure  to  comply  with  requirements  as  to  the  safety  of  employes)  is 
still  reserved  to  the  employes.  So  that  the  only  thing  withdrawn  by 
this  law,  and  to  which  withdrawal  he  consents  by  his  voluntary  election 
to  operate  under  the  law,  is  his  right  of  action  for  mere  negligence,  and 
in  place  of  it  he  receives  the  substantial  protections  and  privileges 
unu'er  the  state  insurance  fund. 

It  is  stated  in  Butt  v.  Green,  29  Ohio  St.  677,  that  persons  may  ex- 
pressly or  impliedly  waive  either  constitutional  or  statutory  provisions 
intended  for  their  benefit,  and,  as  above  shown,  the  court  in  the  Bycrs 
Case  state  it  is  not  disposed  to  question  that  one  may  waive  a  consti- 
tutional right. 

We  think  that  in  a  case  such  as  is  presented  here,  in  which  the  state 
itself  has  undertaken  a  great  enterprise  in  the  interest  of  the  general 
good,  and  in  the  exercise  of  its  police  power,  and  presents  to  its  citi- 
zens the  option  to  join  in  the  undertaking  and  receive  its  proti 
and  benefit,  on  a  right  of  action  beinu;  withdrawn  by  the  Legislature, 
which  experience  has  shown  to  be  difficult  of  practical  enforcement, 
while  preserving  the  valuable  and  substantial  kindred  rights  of  action, 
it  cannot  be  said  that  in  such  withdrawal  there  is  a  violation  of  the 
Constitution  in  the  respects  claimed.  *  *  *  It  must  be  remembered 
that  the  whole  proceeding  is  with  and  against  the  board  of  award.-. 
His  claim  is  not  against  the  employer.  There  is  no  dispute  between 
them.    His  claim  is  for  the  benefits  of  the  insurance  fund.    *    *    * 

Demurrer  overruled.2 

211.  L'7  T..  Ed.  936  n^s.:)  (enforcement  of  tort  Judgment  against  city).  See. 
also,  Sav/yer  v.  Davis,  post,  p.  722,  and  notes. 

a  Accord:  Opinion  of  Justices,  2d;)  Mass.  <;<)7,  96  N.  E.  308  (1911);  Borgnis 
v.  Falk  Co..  147  Wis.  327,  133  N.  W.  209,  37  1..  R.  A.  iN".  BJ  l-'.i  (191) 
ex  rel.  Davis-Smith  Co.  v.  Clausen,  65  Wash.  166,  117  Pac.  1101,  :!7  I..  It. 
A.  (N.  s.i  466  (1911)  (compulsory  Insurance  plan);  Cunningham  v.  North 
Western  Imp.  Co.,  44  Mont.  ISO,  119  Pac.  .">•">  I  (1911)  (same).  The  Moutana 
act  failed  for  permitting  a  double  liability,  hut  was  otherwise  upheld.  In 
Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  I..  It.  A  (N 
S.)  162,  Ann.  Cas.  1912B,  156  (101 1),  a  compulsory  individual  liability  law  was 
declared  unconstitutional.  The  New  York  and  Washington  laws  applied  only 
to  extrahazardous  employments,  and  the  Montana  act  to  mining  only.  In 
these  five  cases  are  cited  and  discussed  most  of  tin'  cases  and  historical 
alleged  to  involve  principles  similar  to  those  approved  in  the  prii 

In  state  ex  rel.  Davis-Smith  Co.  v.  Clausen,  66  Wash.  156,  177  i: 
197,  19S.  207-211,  117  Pac.  1101.  1106,  11"7.  1113,  B7  L.  It.  A.  (N.  - 
(1911),  Fullerton.  J.,  said  (upholding  a  compulsory  insurance  plan): 

"In  the  statute  books  of  the  several  states  are  many  statutes  held 
tutlonal  by  the  courts  where  liability  is  created  without  fault,  and  where  the 


518  FUNDAMENTAL    RIGHTS  (Part 


CHICAGO,  B.  &  Q.  R.  CO.  v.  McGUIRE  (1911)  219  U.  S.  549, 
569,  571-573,  31  Sup.  Ct.  259,  55  L.  Ed.  328,  Mr.  Justice  Hughes 
(upholding  an  Iowa  statute  abolishing  the  fellow-servant  rule  on  rail- 
roads, and  denying  effect  to  any  contract  restricting  liability  or  the 
acceptance  of  any  insurance  benefits  as  a  defence  to  personal  injury 
actions  brought  against  railroads  by  their  employees) : 

[After  referring  to  many  of  the  cases  printed  ante,  in  this  chap- 
ter.] "Where  the  legislative  action  is  arbitrary  and  has  no  reason- 
able relation  to  a  purpose  which  it  is  competent  for  government  to 
effect,  the  legislature  transcends  the  limits  of  its  power  in  interfering 
with  liberty  of  contract;    but  where  there  is  reasonable  relation  to  an 

property  of  one  person  is  taken  to  pay  the  obligations  of  another,  and  this 
where  no  compensation  is  made  to  the  person  who  is  thus  made  liable  or 
whose  property  is  thus  taken,  other  than  perhaps  the  bestowal  upon  him  of 
some  privilege.  The  test  of  the  validity  of  such  a  law  is  not  found  in  the 
inquiry:  Does  it  do  the  objectionable  things?  But  is  found  rather  In  the 
inquiry:  Is  there  no  reasonable  ground  to  believe  that  the  public  safety, 
health,  or  general  welfare  is  promoted  thereby?  *  »  *  The  clause  of  the 
Constitution  now  under  consideration  was  intended  to  prevent  the  arbitrary 
exercise  of  power,  or  undue,  unjust,  and  capricious  interference  with  per- 
sonal rights ;  not  to  prevent  those  reasonable  regulations  that  all  must  sub- 
mit to  as  a  condition  of  remaining  a  member  of  society.  In  other  words,  the 
test  of  a  police  regulation,  when  measured  by  this  clause  of  the  Constitution, 
is  reasonableness,  as  contradistinguished  from  arbitrary  or  capricious  action. 

"That  the  statute  here  in  question  has  the  attribute  of  reasonableness, 
rather  than  that  of  capriciousness,  seems  incontrovertible.  The  evil  it  seeks 
to  remedy  is  one  that  calls  loudly  for  action.  Accidents  to  workmen  engaged 
in  the  industries  enumerated  in  it  are  all  but  inevitable.  *  *  *  Hereto- 
fore these  losses  have  been  borne  by  the  injured  workmen  themselves,  by 
their  dependents,  or  by  the  state  at  large.  It  was  the  belief  of  the  legisla- 
ture that  they  should  be  borne  by  the  industries  causing  them,  or,  perhaps 
more  accurately,  by  the  consumers  of  the  products  of  such  industries.  That 
the  principle  thus  sought  to  be  put  into  effect  is  economically,  sociologically, 
and  morally  sound,  we  think  must  be  conceded.  It  is  so  treated  by  the  learned 
counsel  who  have  filed  briefs  in  support  of  the  auditor's  contentions;  it 
is  so  conceded  by  all  modern  statesmen,  jurists,  and  economic  writers  who 
have  voiced  their  opinion  on  the  subject;  and  the  principle  has  been  enacted 
into  law  by  nearly  all  of  the  civilized  countries  of  Europe,  by  Australia,  by 
Xew  Zealand,  by  the  Transvaal,  by  the  principal  provinces  of  the  Dominion 
of  Canada,  and  in  a  partial  form  at  least  by  one  or  more  of  South  American 
republics.  Indeed,  so  universal  is  the  sentiment  that  to  assert  to  the  con- 
trary is  to  turn  the  face  against  the  enlightened  opinion  of  mankind.  The 
common  law  does  not  purport  to  afford  a  remedy  for  the  condition  here  found 
to  exist.  It  affords  relief  to  an  injured  workman  in  only  a  limited  number 
of  cases — cases  where  the  injury  is  the  result  of  fault  on  the  part  of  the 
employer  and  there  is  want  of  fault  on  the  part  of  the  workman.  For  the 
greater  number  of  injuries  traceable  to  the  dangers  incident  to  industry,  no 
remedy  at  all  is  afforded.  The  act,  therefore,  having  in  its  support  these 
economic  and  moral  considerations,  is  not  unconstitutional  for  the  reasons 
suggested  upon  this  branch  of  the  argument.     *     *     * 

"The  right  of  the  state  to  regulate  any  form  of  industry  arises  from  the 
fact  that  its  pursuit  affects  injuriously  the  health,  safety,  morals,  or  welfare 
of  the  persons  engaged  in  it,  or  is  inimical  in  some  form  to  some  portion  of 
the  individuals  of  the  community.  It  is  not  necessary  that  It  always  affect 
injuriously  the  public  at  large.  On  the  contrary,  it  may  be  regulated  if  it 
affects  injuriously  those   engaged  in  it,  or  those  brought  in  direct  contact 


Cll.  10)  DUE   PROCESS  AND   lOQl'AUTY  :      POLICE    I  U8 

object  within  the  governmental  authority,  the  exercise  of  the  legisla- 
tive discretion  is  not  subject  to  judicial  review.  The  scope  of  judicial 
inquiry  in  deciding  the  question  of  power  is  not  to  be  confused  with 
the  scope  of  legislative  considerations  in  dealing  with  the  matter  of 
policy.  Whether  the  enactment  is  wise  or  unwise,  whether  it  is 
based  on  sound  economic  theory,  whether  it  is  the  best  means  to 
achieve  the  desired  result,  whether,  in  short,  the  legislative  discretion 
within  its  prescribed  limits  should  be  exercised  in  a  particular  man- 
ner, are  matters  for  the  judgment  of  the  legislature,  and  the  earnest 
conflict  of  serious  opinion  does  not  suffice  to  bring  them  within  the 
range  of  judicial  cognizance.     *     *     * 

"In  the  cases  within  its  purview  it  [the  statute]  extended  the  liability 

with  it,  even  though  Its  pursuit  may  benefit  generally  the  people  of  the  state 
at  large.  Nor  is  there  any  particular  form  which  the  regulation  must  take. 
The  couduet  of  the  business  may  be  prohibited  entirely  in  a  particular  place 
or  in  a  particular  manner;  its  pursuit  may  be  restricted  to  certain  hours 
of  the  day;  it  may  be  permitted  to  be  conducted  only  in  case  protective  de- 
vices are  used;  or  it  may  he  permitted  in  certain  forms,  and  a  sum  of  money 
exacted  from  the  individuals  carrying  it  on  for  the  purpose  of  recompensing 
those  who  suffer  losses  because  thereof. 

"So,  in  this  instance,  if  the  legislature  believed  that,  to  permit  the  pursuit 
of  the  industries  named  after  the  present  manner  of  conducting  them  was 
generally  for  the  public  good  in  spite  of  the  losses  the  met  hud  of  pursuit  an 
tailed,  there  is  no  reason  why  it  should  not  confine  Its  regulations  to  com- 
pelling the  owners  and  conductors  of  such  industries  to  create  a  fund  out  of 
which  the  losses  caused  thereby  should  ho  made  good.     •     •     • 

"It  is  said  that  the  legislature  cannot  fix  a  Procrustean  rule  for  the  ad- 
measurement of  damages  arising  from  injuries  received  by  one  in  the  employ- 
ment of  another,  as  the  employer  and  the  employe  alike  have  the  i 
submit  to  a  jury  both  the  question  of  the  right  to  recover  for  any  such  injury, 
and  the  question  of  the  amount  that  may  be  recovered  therefor.  But  we 
cannot  think  the  rule  absolute.  It  may  be  that  the  legislature  cannot  fix  the 
amount  of  recovery,  or  provide  for  an  absolute  recovery,  in  all  cases  where 
one  person  is  injured  by  another,  regardless  of  the  relation  of  the  parties. 
or  the  question  whether  the  injury  is  or  is  not  the  result  of  negligence;  but 
it  does  not  follow  that  it  may  not  so  provide  where  the  injury  happens  in  that 
class  of  employment  subject  to  legislative  regulation  and  control.  If  it  be. 
as  we  have  attempted  to  show,  a  proper  regulation  of  hazardous  Industries 
to  Compel  those  engaged  therein  as  owners  or  operators  to  pay  a  fixed  sum 
into  a  fund  to  be  used  for  the  purpose  Of  compensating  the  employes  thereof 
for  injuries  received  by  them,  it  is  dillicult  to  understand  why  it  U  D 
proper  regulation  to  require  the  employes  of  such  industries  to  BCCepI  a  given 
sum  for  any  injury  they  may  receive  while  BO  engaged     •     •     • 

"The  grounds  upon  which  the  employer  may  be  held  to  contribute  to  a  fund 
for  the  relief  of  all  injuries  sustained  by  his  employee,  whatever  the  cause, 
we  have  already  stated.  The  obligation  of  the  employe1  to  accept  the 
tions  of  the  statute  can  rest  on  like  grounds,  namely,  iho  welfare  of  thi 
The  relation  being  one  of  contract  between  employer  and  employe,  the  state  may 
make  it  a  condition  of  the  contract  that  the  employe'  shall  accept  a  fixed  sum 
for  any  injury  he  may  receive  while  engaged  in  the  employment,  whether  the 
injury  be  the  result  of  the  inherent  dangers  of  the  employment  or  the  result 
of  some  fault  of  his  employee    •    •    • 

"The  common-law  system  of  making  awards  for  personal  injuries  his  ii" 
such  Inherent  merit  as  to  make  a  Change  undesirable,  •  •  •  Kor  the 
greater  number  of  injuries  the  common  law  ail, .ids  no  remedy  at  aii 
this  unscientific  system  it  is  proposed  to  substitute  a  system  which  will  make 
an  award  in  all  cases  of  injury,  regardless  of  the  cause  or  manner  of  Its  In- 
fliction;   limited  in  amount,  it  is  true,  but  commensurate  in  some  degree  to 


520  FUNDAMENTAL    RIGHTS  (Part  2 

of  the  common  law  by  abolishing  the  fellow-servant  rule.  Having 
authority  to  establish  this  regulation,  it  is  manifest  that  the  legislature 
was  also  entitled  to  insure  its  efficacy  by  prohibiting  contracts  in  der- 
ogation of  its  provisions.  In  the  exercise  of  this  power,  the  legisla- 
ture was  not  limited  with  respect  either  to  the  form  of  the  contract, 
or  the  nature  of  the  consideration,  or  the  absolute  or  conditional  char- 
acter of  the  engagement.  It  was  as  competent  to  prohibit  contracts 
which,  on  a  specified  event,  or  in  a  given  contingency,  should  operate 
to  relieve  the  corporation  from  the  statutory  liability  which  would 
otherwise  exist,  as  it  was  to  deny  validity  to  agreements  of  absolute 
waiver.  *  *  *  It  does  not  aid  the  argument  to  describe  the  de- 
fense as  one  of  accord  and  satisfaction.     The  payment  of  benefits 

the  disability  suffered.  The  desirability  of  this  substitution  is  unquestioned, 
and  we  believe  that  the  legislature  had  the  power  to  make  It  without  violat- 
ing any  principle  of  the  fundamental  law. 

"The  objection  may  be  answered  also  in  another  way.  The  Constitution 
does  not  undertake  to  define  what  shall  constitute  a  cause  of  action,  nor  to 
prohibit  the  legislature  from  so  doing.  The  right  of  trial  by  jury  accorded  by 
the  Constitution,  as  applicable  to  civil  cases,  is  incident  only  to  causes  of  ac- 
tion recognized  by  law.  The  act  here  in  question  takes  away  the  cause  of 
action  on  the  one  hand  and  the  ground  of  defense  on  the  other  and  merges 
both  in  a  statutory  indemnity  fixed  and  certain.  If  the  power  to  do  away  with 
a  cause  of  action  in  any  case  exists  at  all  in  the  exercise  of  the  police  power 
of  the  state,  then  the  right  of  trial  by  jury  is  thereafter  no  longer  involved 
in  such  cases.  The  right  of  jury  trial  being  incidental  to  the  right  of  action, 
to  destroy  the  one  is  to  leave  the  other  nothing  upon  which  to  operate." 

In  Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271.  317-318,  91  N:  E.  431, 
449,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912P.,  156  (1911),  Cullen,  C.  J.,  said: 
"I  concede  that  the  Legislature  may  abolish  the  rule  of  fellow  servant  as  a 
defense  to  an  action  by  employe  against  the  employer.  Indeed,  we  have  de- 
cided that  In  upholding  the  so-called  'Barnes  act.'  Schradin  v.  N.  Y.  C.  & 
H.  R.  R.  R.  Co.,  194  N.  Y.  534,  87  N.  E.  1126.  I  concede  that  the  Legislature 
may  also  abolish  as  a  defense  the  rule  of  assumption  of  risk  and  that  of 
contributory  negligence  unless  the  accident  proceed  from  the  willful  act  of 
the  employed  I  concede  that  in  a  work,  occupation,  or  business  of  such  a 
nature  that  the  Legislature  might  prohibit  its  pursuit  or  exercise  altogether, 
the  Legislature  may  prescribe  terms  under  which  it  may  be  carried  on. 
Plainly,  this  litigation  does  not  present  such  a  case.  The  Legislature  could  not 
revoke  the  franchise  it  had  previously  given  to  the  defendant  to  operate  a 
railroad.  People  v.  O'Brien.  Ill  N.  Y.  1,  18  N.  E.  692,  2  L.  R.  A.  255,  7  Am. 
St.  Pep.  684.  I  am  not  prepared  to  deny  that  where  the  effects  of  the  work, 
even  though  prosecuted  carefully,  go  beyond  a  person's  own  property  and  in- 
jure third  persons  in  no  way  connected  therewith,  the  person  for  whose 
account  the  work  is  done  may  be  held  liable  for  injuries  occasioned  thereby. 
I  also  concede  the  most  plenary  power  in  the  Legislature  to  prescribe  all  rea- 
sonable rules  for  the  conduct  of  the  work  which  may  conduce  to  the  safety 
and  health  of  persons  employed  therein.  But  I  do  deny  that  a  person  em- 
ployed in  a  lawful  vocation,  the  effects  of  which  are  confined  to  his  own 
premises,  can  be  made  to  indemnify  another  for  injury  received  in  the  work 
unless  he  has  been  in  some  respect  at  fault.  I  am  not  impressed  with  the 
argument  that  'the  common  law  imposed  upon  the  employe  entire  responsibili- 
ty for  injuries  arising  out  of  the  necessary  risks  or  dangers  of  the  employ- 
ment. The  statute  before  us  merely  shifts  such  liability  upon  the  employer.' 
It  is  the  physical  law  of  nature,  not  of  government,  that  imposes  upon  one 
meeting  with  an  injury,  the  suffering  occasioned  thereby.  Human  law  can- 
not change  that.  All  it  can  do  is  to  require  pecuniary  indemnity  to  the  party 
injured,  and  I  know  of  no  principle  on  which  one  can  be  compelled  to  indem- 
nify another  for  loss  unless  it  is  based  upon  contractual  obligation  or  fault." 


Ch.  10)  DUE   PROCESS  AND    EQUALITY:     POLICE   POWEB  521 

is  the  performance  of  the  promise  to  pay,  contained  in  the  contract 
of  membership.  If  the  legislature  may  prohibit  the  acceptance  of 
the  promise  as  a  substitution  for  the  statutory  liability,  it  should  also 
be  able  to  prevent  the  like  substitution  of  its  performance. 

"For  the  reasons  we  have  stated,  the  considerations  which  properly 
bear  upon  the  wisdom  of  the  legislation  need  not  be  discussed.  On 
the  one  hand  it  is  said  that  the  relief  department  is  in  the  control  of 
the  corporation;  that  by  reason  of  their  exigency  the  employees  may 
readily  be  constrained  to  become  members ;  that  the  relief  fund  con- 
sists in  larger  part  of  contributions  made  from  wages;  that  the  ac- 
ceptance of  benefits  takes  place  at  a  time  when  the  employee  is  suf- 
fering from  the  consequences  of  his  injury,  and,  being  seriously  in 
need  of  aid,  he  may  easily  be  induced  to  accept  payment  from  the 
fund  in  which,  by  reason  of  his  contributions,  he  feels  that  he  is  en- 
titled to  share;  and  that  such  a  plan,  if  it  were  permitted,  through  the 
payment  of  benefits,  to  result  in  a  discharge  of  the  liability  for  neg- 
ligence, would  operate  to  transfer  from  the  corporation  to  its  em- 
ployees a  burden  which,  in  the  interest  of  their  protection  and  the 
safety  of  the  public,  the  corporation  should  be  compelled  to  bear.  On 
the  other  hand,  it  is  urged  that  the  relief  plan  is  a  beneficent  scheme, 
avoiding  the  waste  of  litigation,  securing  prompt  relief  in  case  of 
need  due  to  sickness  or  injury,  making  equitable  provision  for  de- 
serving cases,  and  hence  tends  in  an  important  way  to  promote  the 
good  of  the  service  and  the  security  of  the  employment.  Even  a  par- 
tial statement  of  these  various  considerations  shows  clearly  that  they 
are  of  a  character  to  invoke  the  judgment  of  the  legislature  in  decid- 
ing, within  the  limits  of  its  power,  upon  the  policy  of  the  state.  And 
whether  the  policy  declared  by  the  statute  in  question  is  approved  or 
disapproved,  it  cannot  be  said  that  the  legislative  power  has  been  ex- 
ceeded, either  in  defining  the  liability  or  in  the  means  taken  to  prevent 
the  legislative  will,  with  respect  to  it,  from  being  thwarted."  ' 


OHIO  OIL  CO.  v.  INDIANA  (1900)  177  U.  S.  190,  207-211,  20 
Sup.  Ct.  576,  44  L.  Ed.  729,  Mr.  Justice  White  (upholding  an  Indiana 
statute  forbidding  any  one  in  control  of  gas  or  oil  wells  to  permit  the 
gas  or  oil  to  escape  into  the  open  air  without  being  confined  in  pipes 
on  other  receptacles) : 

"In  Townsend  v.  State,  147  Ind.  624,  49  N.  E.  19,  37  L.  R.  A. 
294,  62  Am.  St.  Rep.  477,  the  constitutionality  of  a  statute  forbidding 
the  burning  of  natural  gas  in  flambeau  lights  was  attacked  because 

i  See,  also,  Orient  Ins.  Co.  v.  Daggs,  L72  D.  S.  557,  10  Sup.  Ct  281.  13 
L.  Ed.  552  (1S99)  (making  all  fire  insurance  valued);  Northwestern  Nat 
Life  Ins.  Co.  v.  Biggs,  L'oa  U.  S.  243,  -  126,  51  I..  Ed.    168 

Cas.  1104  (1906}  (forbidding  defence  of  fraud,  not  causing  death  of  Insured); 
Whitfield  ex  rel.  Hadley  v.  .Etna  Life  Ins.  Co.,  205  U.  S.  4S9,  27  Sup.  Ct 
.~7b,  ol  L.  Ed.  S93  (1907)  (forbidding  defence  of  suicide  of  insured). 


522  FUNDAMENTAL   rights  (Part  2 

it  was  asserted  to  violate  the  fourteenth  amendment  to  the  Constitu- 
tion of  the  United  States  and  various  provisions  of  the  Constitution 
of  the  state  of  Indiana.  The  court  held  that  the  statute  was  not 
amenable  to  the  assaults  made  upon  it.  In  a  full  opinion  reviewing 
the  nature  of  the  ownership  in  oil  and  natural  gas,  the  power  of  the 
state  to  regulate  and  control  their  use  and  waste  in  the  interest  of  all 
those  within  the  gas  field  and  of  the  public  at  large  was  elaborately 
considered.  Reviewing  its  own  previous  adjudications,  which  we  have 
cited,  and  those  of  the  supreme  court  of  the  state  of  Pennsylvania, 
to  which  we  have  also  referred,  it  was  decided  that  the  owners  of 
the  surface  of  the  land  within  the  gas  field,  whilst  they  had  the  ex- 
clusive right  on  their  land  to  sink  wells  for  the  purpose  of  extracting 
the  oil  and  gas,  had  no  right  of  property  therein  until  by  the  actual 
drawing  of  the  oil  and  gas  to  the  surface  of  the  earth  they  had  re- 
duced these  substances  to  physical  possession.  It  was  further  held 
that  in  consequence  of  the  nature  of  the  deposits,  of  their  transmis- 
sibility,  of  their  interdependence,  of  the  rights  of  all  and  of  the  pub- 
lic at  large,  the  state  could  lawfully  exercise  the  power  to  regulate 
the  right  of  the  surface  owners  among  themselves  to  seek  to  obtain 
possession,  and  to  prevent  the  waste  of  the  products  in  which  all  the 
surface  owners  within  the  area  wherein  the  gas  and  oil  were  de- 
posited, as  well  as  the  public,  had  an  interest,  because  in  the 
preservation  of  these  substances  the  well-being  and  prosperity  of  the 
entire  community  was  largely  involved.     *     *     * 

"If  the  analogy  between  animals  ferae  naturae  and  mineral  deposits 
of  oil  and  gas,  stated  by  the  Pennsylvania  court  and  adopted  by  the 
Indiana  court,  instead  of  simply  establishing  a  similarity  of  relation, 
proved  the  identity  of  the  two  things,  there  would  be  an  end  of  the 
case.  This  follows  because  things  which  are  ferae  naturae  belong  to 
the  'negative  community';  in  other  words,  are  public  things  subject 
to  the  absolute  control  of  the  state,  which,  although  it  allows  them  to 
be  reduced  to  possession,  may  at  its  will  not  only  regulate,  but  wholly 
forbid,  their  future  taking.  Geer  v.  Connecticut,  161  U.  S.  519,  525. 
16  Sup.  Ct.  600,  40  L.  Ed.  793,  795.  But  whilst  there  is  an  analogy 
between  animals  ferae  naturae  and  the  moving  deposits  of  oil  and  nat- 
ural gas,  there  is  not  identity  between  them.  Thus,  the  owner  of 
land  has  the  exclusive  right  on  his  property  to  reduce  the  game  there 
found  to  possession,  just  as  the  owner  of  the  soil  has  the  exclusive 
right  to  reduce  to  possession  the  deposits  of  natural  gas  and  oil  found 
beneath  the  surface  of  his  land.  The  owner  of  the  soil  cannot  follow 
game  when  it  passes  from  his  property ;  so,  also,  the  owner  may  not 
follow  the  natural  gas  when  it  shifts  from  beneath  his  own  to  the 
property  of  someone  else  within  the  gas  field.  It  being  true  as. to  both 
animals  ferae  naturae  and  gas  and  oil,  therefore,  that  whilst  the  right 
to  appropriate  and  become  the  owner  exists,  proprietorship  does  not 
take  being  until  the  particular  subjects  of  the  right  become  property 
by  being  reduced  to  actual  possession.    The  identity,  however,  is  for 


Ch.  10)  DUE   PBOCBBB  AND   EQUALITY :     POLICE   POWEB  5£! 

many  reasons  wanting.  In  things  ferae  naturae  all  are  endowed  with 
the  power  of  seeking  to  reduce  a  portion  of  the  public  property  tu 
the  domain  of  private  ownership  by  reducing  them  to  possession.  In 
the  case  of  natural  gas  and  oil  no  such  right  exists  in  the  public.  It 
is  vested  only  in  the  owners  in  fee  of  the  surface  of  the  earth  within 
the  area  of  the  gas  field. 

"This  difference  points  at  once  to  the  distinction  between  the  power 
which  the  lawmaker  may  exercise  as  to  the  two.  In  the  one,  as  the 
public  are  the  owners,  every  one  may  be  absolutely  prevented  from 
seeking  to  reduce  to  possession.  No  devesting  of  private  property 
under  such  a  condition  can  be  conceived,  because  the  public  are  the 
owners,  and  the  enacting  by  the  state  of  a  law  as  to  the  public  owner- 
ship is  but  the  discharge  of  the  governmental  trust  resting  in  the  state 
as  to  property  of  that  character.  Geer  v.  Connecticut,  161  U.  S.  519. 
525,  16  Sup.  Ct.  600,  40  L.  Ed.  793,  795.  On  the  other  hand,  as  to 
gas  and  oil  the  surface  proprietors  within  the  gas  field  all  have  the 
right  to  reduce  to  possession  the  gas  and  oil  beneath.  They  could  not 
be  absolutely  deprived  of  this  right  which  belongs  to  them,  without  a 
taking  of  private  property.  But  there  is  a  coequal  right  in  them  all 
to  take  from  a  common  source  of  supply  the  two  substances  which 
in  the  nature  of  things  are  united,  though  separate.  It  follows  from 
the  essence  of  their  right  and  from  the  situation  of  the  things  as  to 
which  it  can  be  exerted,  that  the  use  by  one  of  his  power  to  seek  to 
convert  a  part  of  the  common  fund  to  actual  possession  may  result  in 
an  undue  proportion  being  attributed  to  one  of  the  possessors  of  the 
right  to  the  detriment  of  the  others,  or  by  waste  by  one  or  more  to  the 
annihilation  of  the  rights  of  the  remainder.  Hence  it  is  that  the  leg- 
islative power,  from  the  peculiar  nature  of  the  right  and  the  object? 
upon  which  it  is  to  be  exerted,  can  be  manifested  for  the  purpose  of 
protecting  all  the  collective  owner?,  by  securing  a  just  distribution,  to 
arise  from  the  enjoyment,  by  them,  of  their  privilege  to  reduce  to 
possession,  and  to  reach  the  like  end  by  preventing  waste.  This  nee 
essarily  implied  legislative  authority  is  borne  out  by  the  analogy  sug- 
gested by  things  ferae  naturae,  which  it  is  unquestioned  the  legislature 
has  the  authority  to  forbid  all  from  taking,  in  order  to  protect  them 
from  undue  destruction,  so  that  the  right  of  the  common  owners,  the 
public,  to  reduce  to  possession,  may  be  ultimately  efficacious 
joyed.  Viewed,  then,  as  a  statute  to  protect  or  to  prevent  the  waste 
of  the  common  property  of  the  surface  owners,  the  law  of  the  state 
of  Indiana  which  is  here  attacked  because  it  is  asserted  that  it  de- 
vested private  property  without  due  compensation,  in  substance,  is  a 
statute  protecting  private  property  and  preventing  it  from  being  taken 
by  one  of  the  common  owners  without  regard  to  the  enjoyment  of 
the  others.     *     *     * 

"It  is  said  the  law  by  making  it  unlawful  to  allow  the  gas  to  i 
made  it  practically  impossible  to  profitably  extract  the  oil.     That  is. 
as  the  oil  could  not  be  taken  at  a  profit  by  one  who  made  no  use  ot 


524  FUNDAMENTAL    RIGHTS  (Part  2 

the  gas,  therefore  he  must  be  allowed  to  waste  the  gas  into  the  at- 
mosphere, and  thus  destroy  the  interest  of  the  other  common  owners 
in  the  reservoir  of  gas.  These  contentions  but  state  in  a  different 
form  the  matters  already  disposed  of.  They  really  go,  not  to  the 
power  to  make  the  regulations,  but  to  their  wisdom.  But  with  the 
lawful  discretion  of  the  legislature  of  the  state  we  may  not  inter- 
fere." 1 

i  Accord:  Lindsley  v.  Natural  Carbonic  Gas  Co.,  220  TJ.  S.  61,  31  Sup.  Ct. 
337,  55  L.  Ed.  369,  Ann.  Cas.  1912C,  160  (1911).  See  Geer  v.  Connecticut,  101 
U.  S.  519,  16  Sup.  Ct.  600,  40  L.  Ed.  793  (1S96)  (game  laws) ;  Windsor  v.  State, 
103  Md.  611,  64  Atl.  288,  12  L.  It.  A.  (N.  S.)  S69  (1906)  (oyster  laws). 

In  Hudson  County  Water  Co.  v.  McCarter,  209  TJ.  S.  349,  355-357,  28  Sup. 
Ct.  529,  531  (52  L.  Ed.  828,  14  Ann.  Cas.  560)  (1908),  the  right  of  New  Jersey 
to  forbid  anyone  to  transport  water  from  tie  Passaic  river  out  of  the  state 
by  pipes  or  ditches  was  upheld,  Holmes,  J.,  saying: 

"All  rights  tend  to  declare  themselves  absolute  to  their  logical  extreme. 
Yet  all  in  fact  are  limited  by  the  neighborhood  of  principles  of  policy  which 
are  other  than  those  on  which  the  particular  right  is  founded,  and  which  be- 
come strong  enough  to  hold  their  own  when  a  certain  point  is  reached.  The 
limits  set  to  property  by  other  public  interests  present  themselves  as  a  branch 
of  what  is  called  the  police  power  of  the  state.  The  boundary  at  which  the 
conflicting  interests  balance  cannot  be  determined  by  any  general  formula  in 
advance,  but  points  in  the  line,  or  helping  to  establish  it,  are  fixed  by  deci- 
sions that  this  or  that  concrete  case  falls  on  the  nearer  or  farther  side.  For 
instance,  the  police  power  may  limit  the  height  of  buildings  in  a  city,  with- 
out compensation.  To  that  extent  it  cuts  down  what  otherwise  would  be 
the  rights  of  property.  But  if  it  should  attempt  to  limit  the  height  so  far 
as  to  make  an  ordinary  building  lot  wholly  useless,  the  rights  of  property 
wouid  prevail  over  the  other  public  interest,  and  the  police  power  would  fail. 
To  set  such  a  limit  would  need  compensation  and  the  power  of  eminent  do- 
main. 

"It  sometimes  is  difficult  to  fix  boundary  stones  between  the  private  right 
of  property  and  the  police  power  when,  as  in  the  case  at  bar,  we  know  of  few 
decisions  that  are  very  much  in  point.  But  it  is  recognized  that  the  state, 
as  quasi-sovereign  and  representative  of  the  interests  of  the  public,  has  a 
standing  in  court  to  protect  the  atmosphere,  the  water,  and  the  forests  within 
its  territory,  irrespective  of  the  assent  or  dissent  of  the  private  owners  of 
the  land  most  immediately  concerned.  Kansas  v.  Colorado,  185  TJ.  S.  125, 
141,  142,  22  Sup.  Ct.  552,  46  L.  Ed.  S38,  844,  845,  s.  c,  206  TJ.  S.  46,  99,  27 
Sup.  Ct.  655,  51  L.  Ed.  956,  975,  Georgia  v.  Tennessee  Copper  Co.,  206  TJ.  S. 
230,  238,  27  Sup.  Ct.  618,  51  L.  Ed.  1038,  1044,  11  Ann.  Cas.  4S8.  What  it 
may  protect  by  suit  in  this  court  from  interference  in  the  name  of  property 
outside  of  the  state's  Jurisdiction,  one  would  think  that  it  could  protect  by 
statute  from  interference  in  the  same  name  within.  On  this  principle  of 
public  interest  and  the  police  power,  and  not  merely  as  the  inheritor  of  a 
royal  prerogative,  the  state  may  make  laws  for  the  preservation  of  game, 
which  seems  a  stronger  case.  Geer  v.  Connecticut,  161  TJ.  S.  519,  534,  16 
Sup.  Ct.  600,  40  L.   Ed.   793,  798. 

"The  problems  of  irrigation  have  no  place  here.  Leaving  them  on  one  side, 
it  appears  to  us  that  few  public  interests  are  more  obvious,  indisputable,  and 
independent  of  particular  theory  than  the  interest  of  the  public  of  a  state  to 
maintain  the  rivers  that  are  wholly  within  it  substantially  undiminished,  ex- 
cept by  such  drafts  upon  them  as  the  guardian  of  the  public  welfare  may 
permit  for  the  purpose  of  turning  them  to  a  more  perfect  use.  This  public 
interest  is  omnipresent  wherever  there  is  a  state,  and  grows  more  pressiug 
as  population  grows.  It  is  fundamental,  and  we  are  of  opinion  that  the  pri- 
vate property  of  riparian  proprietors  cannot  be  supposed  to  have  deeper  roots. 
Whether  it  be  said  that  such  an  interest  justifies  the  cutting  down  by  stat- 
ute, without  compensation,  in  the  exercise  of  the  police  power,  of  what  other- 
wise would  be  private  rights  of  property,  or  that,  apart  from  statute,  those 


Ch.  10)  DUE   PBOCESfl   AMi    EQUALITY;     POL] 


HEAD  v.  AMOSKEAG  MFG.  CO. 

(Supreme  Court  of  United  States,  1885.     113  U.  S.  9,  5  Sup.  Ct  441,  28  L. 
Ed. 

[Error  to  the  Supreme  Court  of  New  Hampshire.  A  general  stat- 
ute authorized  the  erection  of  mills  and  dams  upon  nonnavigable 
streams  upon  payment  of  damages  to  the  owners  of  lands  flowed  by  the 
dams.  The  Amoskeag  Company  filed  a  petition  for  the  ascertain- 
ment of  the  damages  suffered  by  Head  from  flowage  from  their  dam, 

rights  do  not  go  to  the  height  of  what  the  defendant  seeks  to  do,  the  result 
is  the  same.     But  we  agree  with  the  N  courts,  and  think  it  quite 

beyond  any  rational  view  of  riparian  rights,  that  an  agreement,  of  no  mat- 
ter what  private  owners,  could  sanction  the  diversion  of  an  important  stream 
outside  the  boundaries  of  the  state  in  which  it  Hows.  The  private  right  to 
appropriate  is  subject  not  only  to  the  rights  of  lower  owners,  but  to  the  ini- 
tial limitation  that  it  may  not  substantially  diminish  one  of  the  great  founda- 
tions of  public  welfare  and  health. 

"We  are  of  opinion,  further,  that  the  constitutional  power  of  the  state  to 
insist  that  its  natural  advantages  shall  remain  unimpaired  by  its  cii 
not  dependent  upon  any  nice  estimate  of  the  extent  of  present  use  or  s] 
tion  as  to  future  needs.  The  legal  conception  of  the  necessary  is  apt  to  be 
confined  to  somewhat  rudimentary  wants,  and  there  are  beuelits  from  a  great 
river  that  might  escape  a  lawyer's  view.  But  the  state  is  not  required  to 
submit  even  to  an  testheOc  analysis.  Any  analysis  may  lie  Inadequate.  It 
linds  itself  in  possession  of  what  all  admit  to  be  a  great  public  good,  and 
what  it  has  it  may  keep  and  give  no  one  a  reason  for  its  will." 

Compare  West  v.  Kansas  Natural  Gas  Co.,  post,  p.  1103,  note. 

In  Questions  and  Answers.  103  Me.  506,  511-512,  69  Atl.  627  (1907),  the 
Maine  legislature  was  told  that  it  miglit  without  compensation  prohibit  or 
restrict  the  wasteful  or  unnecessary  cutting  of  small  trees  on  wild  laud  when 
not  done  to  clear  the  land  for  beneficial  use.  The  judges  said  :  "There  are 
two  reasons  of  great  weight  for  applying  this  strict  construction  of  the  con- 
stitutional provision  to  property  in  land:  d)  Such  property  is  not  the  result 
of  productive  labor,  but  is  derived  solely  from  the  state  itself,  the  original 
owner:    (2)  the  amount  of  land  being  incapable  of  I  the  owners  of 

large  tracts  can  waste  them  at  will  without  state  restriction,  the  state  and 
its  people  may  be  helplessly  Impoverished  and  one  great  purpose  of  g 
men!  defeated.  Regarding  the  question  submitted,  in  the  light  of  the  doc- 
trine above  stated  (being  that  of  Maine  and  Massachusetts  at  least),  we  do 
not  think  the  proposed  legislation  would  operate  to  'take'  private  property 
within  the  inhibition  of  the  Constitution.  While  it  might  restrict  the  owner 
of  wild  and  uncultivated  lands  in  his  use  of  them,  might  delay  his  taking 
some  of  the  product,  might  defer  his  anticipated  profits,  and  i 
might  cause  him  some  loss  of  profit,  it  would  nevertheless  leave  him  bis  lands. 
their  product,  :nnl  increase  untouched,  and  without  diminution  of  title,  es- 
tate, or  quantity.  lie  would  still  have  large  measure  of  control  and  large 
opportunity  to  realize  values.  He  might  suffer  delay,  but  not  deprivation. 
While  the  use  mighl  be  restricted,  it  would  not  he  appropriated  or  'taken.' 
[filing  various  restrictive  statutes  upheld  elsewhere.  Including]  (prohibiting 
tin'  wasteful  burning  of  natural  gas  by  the  owner)  Townseud  v.  State.  1  IT 
lud.  624,  47  N.  E.  19.  37  L.  It.  A.  294,  62  Am.  St.  Rep.  477;  (prohibiting  the 
use  of  artificial  means  by  the  owners  of  gas  wells  to  increase  the  natural 
flow  of  the  gas  from  them)  Manufacturers'  Gas  Co.  v.  Indiana  Natural  (Ins 
Co..  156  I i:-l.  467,  57  N.  E.  012,  50  I..  R.  A.  768;  •  •  *  (proliil  >il 
flow  of  water  from  a  private  artesian  tor  certain  specified  bene- 

ficial purposes,  as  Irrigation  or  doi  iesl  c  !      parte  Blam,  a  Oal.  App.  233 

91  Pac.  Ml.  in  Windsor  v.  state,  in::  Md.  811,  tit  Atl.  288,  i-  I..  B 
s.i  869,  a  statute  restricted  owners  of  private  oyster  beds  in  taking 
from  them.    It  was  held  constitutional,  and  not  a  taking  of  private  property." 


326  FUNDAMENTAL    RIGHTS  (Part  2 

and  Head  alleged  the  invalidity  of  the  statute  under  the  fourteenth 
amendment.  His  objections  were  overruled  and  judgment  was  en- 
tered entitling  the  company  to  flow  his  land  on  payment  of  the  amount 
of  damage  found.] 

Mr.  Justice  Gray.  *  *  *  [After  referring  to  numerous  •  mill 
acts  in  29  states :]  In  most  of  those  states,  their  validity  has  been 
assumed,  without  dispute;  and  they  were  never  adjudged  to  be  in- 
valid anywhere  until  since  1870,  and  then  in  3  states  only,  and  for 
incompatibility  with  their  respective  Constitutions.  Loughbridge  v. 
Harris  (1871)  42  Ga.  500;  Tyler  v.  Beacher  (1871)  44  Vt.  648,  8  Am. 
Rep.  398;  Ryerson  v.  Brown  (1877)  35  Mich.  333,  24  Am.  Rep.  564. 
The  earlier  cases  in  Tennessee,  Alabama  and  New  York,  containing 
dicta  to  the  same  effect,  were  decided  upon  other  grounds.  Hard- 
ing v.  Goodlett,  3  Yerg.  (Tenn.)  41,  24  Am.  Dec.  546;  Memphis  Rail- 
road v.  Memphis,  4  Cold.  (Tenn.)  406;  Moore  v.  Wright,  34  Ala.  311, 
333;  Bottoms  v.  Brewer,  54  Ala.  288;  Hay  v.  Cohoes  Co.,  3  Barb. 
(N.  Y.)  42,  47,  and  2  N.  Y.  159,  51  Am.  Dec.  279.    *    *    * 

The  question  whether  the  erection  and  maintenance  of  mills  for 
manufacturing  purposes  under  a  general  mill  act,  of  which  any  owner 
of  land  upon  a  stream  not  navigable  may  avail  himself  at  will,  can  be 
upheld  as  a  taking,  by  'delegation  of  the  right  of  eminent  domain,  of 
private  property  for  public  use,  in  the  constitutional  sense,  is  so  im- 
portant and  far  reaching,  that  it  does  not  become  this  court  to  express 
an  opinion  upon  it,  when  not  required  for  the  determination  of  the 
rights  of  the  parties  before  it.  We  prefer  to  rest  the  decision  of  this 
case  upon  the  ground  that  such  a  statute,  considered  as  regulating  the 
manner  in  which  the  rights  of  proprietors  of  lands  adjacent  to  a 
stream  may  be  asserted  and  enjoyed,  with  a  due  regard  to  the  interests 
of  all,  and  to  the  public  good,  is  within  the  constitutional  power  of  the 
legislature. 

When  property,  in  which  several  persons  have  a  common  interest, 
cannot  be  fully  and  beneficially  enjoyed  in  its  existing  condition,  the 
law  often  provides  a  way  in  which  they  may  compel  one  another  to 
submit  to  measures  necessary  to  secure  its  beneficial  enjoyment,  mak- 
ing equitable  compensation  to  any  whose  control  of  or  interest  in 
the  property  is  thereby  modified. 

In  the  familiar  case  of  land  held  by  several  tenants  in  common,  or 
even  by  joint  tenants  with  right  of  survivorship,1  any  one  of  them  may 


i  Regarding  the  legislative  power  to  turn  existing  joint-tenancies  into  ten- 
ancies in  common,  abrogating  the  right  of  survivorship,  see  Miller  v.  Miller, 
10  Mass.  59  (1819);  Bambaugh  v.  Bambaugh,  11  Serg.  &  R.  (Pa.)  191  (1824); 
Butte  &  B.  Consol.  Min.  Co.  v.  Montana  Ore  Purchasing  Co.,  25  Mont.  41, 
70-71,  63  Pae.  825  (1901).  As  to  a  similar  power  to  turn  estates  tail  into  fees, 
see  the  cases  cited  post.  p.  880,  note,  under  Dunbar  v.  Boston  &  Prov.  R.  Co.; 
and  as  to  the  power  to  corupel  unwilling  owners  of  contingent  future  interests 
to  sell  in  order  to  clear  the  title,  see'  Snhier  v.  Mass.  General  Hospital.  Bre- 
voort  v.  Grace,  and  Linsley  v.  Hubbard,  cited  in  the  same  note.  The  legis- 
lature may  authorize  changes  of  investment  of  trust  property  which  otherwise 


Ch.  10)  DUE   PKOCKSS  AMD    EQUALITY  I     POLICE   I'oWKR  027 

compel  a  partition,  upon  which  the  court,  if  the  land  cannot  be  equal- 
ly divided,  will  order  owelty  to  be  paid,  or  in  many  states,  under 
statutes  the  constitutionality  of  which  has  never  been  denied,  will, 
if  the  estate  is  such  that  it  cannot  be  divided,  either  set  it  off  to  one  and 
order  him  to  compensate  the  others  in  money,  or  else  order  the  whole 
estate  to  be  sold.  King  v.  Reed,  11  Gray  (Mass.)  490;  Bentley  v. 
Long  Dock  Co.,  14  N.  J.  Eq.  480;  s.  c.  on  appeal,  nom.  Manners 
v.  Bentley,  15  N.  J.  Eq.  501  ;  Mead  v.  Mitchell,  17  N.  Y.  210.  72 
Dec.  455 ;  Richardson  v.  Monson,  23  Conn.  94.  Water  rights  held  in 
common,  incapable  of  partition  at  law,  may  be  the  subject  of  parti- 
tion in  equity,  either  by  apportioning  the  time  and  extent  of  use,  or  by 
a  sale  of  the  right  and  a  division  of  the  proceeds.  Smith  v.  Smith. 
10  Paige  (N.  Y.)  470;  De  Witt  v.  Harvey,  4  Gray  (Mass.)  486;  Mc- 
Gfllivray  v.  Evans,  27  Cal.  92. 

At  the  common  law,  as  Lord  Coke  tells  us :  "If  two  tenants  in  com- 
mon, or  joint  tenants,  be  of  an  house  or  mill,  and  it  fall  in  decay. 
and  the  one  is  willing  to  repair  the  same,  and  the  other  will  not,  he 
that  is  willing  shall  have  a  writ  de  reparatione  facienda ;  and  the 
writ  saith,  ad  reparationem  et  sustentationem  ejusdem  domus  tenean- 
tur;  wher-.'by  it  appeareth  that  owners  are  in  that  case  bound  pro 
bono  publico  to  maintain  houses  and  mills  which  are  for  habitation 
and  use  of  men."  Co.  Lit.  200b ;  4  Kent  Com.  370.  In  the  same 
spirit,  the  statutes  of  Massachusetts,  for  a  hundred  and  seventy-five 
years,  have  provided  that  any  tenant  in  common  of  a  mill  in  need 
of  repair  may  notify  a  general  meeting  of  all  the  owners  for  consulta- 
tion, and  that,  if  any  one  refuses  to  attend,  or  to  agree  with  the  ma- 
jority,  or  to  pay  his  share,  the  majority  may  cause  the  repairs  to  be 
made,  and  recover  his  share  of  the  expenses  out  of  the  mill  or  its 
profits  or  earnings.  Mass.  Prov.  Stat.  1709,  ch.  3,  1  Prov.  Laws 
(State  ed.)  641,  and  Anc.  Chart.  388;  Stat.  1795,  ch.  74,  §§  5-7;  Rev. 
Stat.  1836.  ch.  116,  §§  44-58;  Gen.  Stat.  .I860,  ch.  149,  §§  53-64; 
Pub.  Stat.  1882,  ch.  190,  §§  59-70.  And  the  statutes  of  New  Hamp- 
shire, for  more  than  eighty  years,  have  made  provision  for  compelling 
the  repair  of  mills  in  such  cases.  Roberts  v.  Peavev,  7  Foster  (27  N. 
H.)  477,  493. 

The  statutes  which  have  long  existed  in  many  slates  authorizing 
the  majority  of  the  owners  in  severalty  of  adjacent  meadow  or  swamp 
lands  to  have  commissioners  appointed  to  drain  and  improve  the 
whole  tract,  by  cutting  ditches  or  otherwise,  and  to  assess  and  levy 
the  amount  of  the  expense  upon  all  the  proprietors  in  proportion 
to  the  benefits  received,  have  been  often  upheld,  independently  of  any 
effect  upon  the  public  health,  as  reasonable  regulations  for  the  gen- 
eral advantage  of  those  who  are  treated   for  this  purpose  as  owners 

i-ould  not  be  validly  sold  against  the  objection  of  beneficiaries.  Sohlcr  v. 
Mass.  General  Hospital,  3  Cush.  4S3  (1849);  Sohier  v.  Trinity  Churcb,  109 
Mass.  1  (1871). 


528  FUNDAMENTAL    RIGHTS  (Part    '2 

of  a  common  property.  Coomes  v.  Burt,  22  Pick.  (Mass.)  422; 
Wright  v.  Boston,  9  Cush.  (Mass.)  233,  241 ;  Sherman  v.  Tobey,  3 
Allen  (Mass.)  7;  Lowell  v.  Boston,  111  Mass.  454,  469,  15  Am.  Rep. 
39;  French  v.  Kirkland,  1  Paige  (N.  Y.)  117;  People  v.  Brooklyn, 
4  N.  Y.  419,  438,  55  Am.  Dec.  266;  Coster  v.  Tide  Water  Co.,  18  N. 
J.  Eq.  54,  68,  518,  531;  O'Reiley  v.  Kankakee  Valley  Drainage  Co., 
32  Ind.  169. 

By  the  maritime  law,  based,  as  Lord  Tenterden  observed,  on  the 
consideration  that  the  actual  employment  of  ships  is  "a  matter,  not 
merely  of  private  advantage  to  the  owners,  but  of  public  benefit  to  the 
state,"  and  recognized  in  the  decisions  and  the  rules  of  this  court, 
courts  of  admiralty,  when  the  part-owners  of  a  ship  cannot  agree  upon 
her  employment,  authorize  the  majority  to  send  her  to  sea,  on  giving 
security  to  the  dissenting  minority,  to  bring  back  and  restore  the  ship, 
or,  if  she  be  lost,  to  pay  them  the  value  of  their  shares ;  and  in  such 
case  the  minority  can  neither  recover  part  of  the  profits  of  the  voyage 
nor  compensation  for  the  use  of  the  ship.  Abbott  on  Shipping,  pt.  1, 
ch.  3,  §§  2,  3;  The  Steamboat  Orleans,  11  Pet.  175,  183,  9  L.  Ed.  677; 
Rule  20  in  Admiralty,  3  How.  vii. ;  The  Marengo,  1  Low.  52,  Fed. 
Cas.  No.  9,065.  If  the  part-owners  are  equally  divided  in  opinion 
upon  the  manner  of  employing  the  ship,  then,  according  to  the  general 
maritime  law,  recognized  and  applied  by  Mr.  Justice  Washington,  the 
ship  may  be  ordered  to  be  sold  and  the  proceeds  distributed  among 
them.  The  Seneca,  18  Am.  Jur.  485 ;  s.  c.  3  Wall.  Jr.  395,  Fed.  Cas. 
No.  12,670.  See,  also,  Story  on  Partnership,  §  439;  The  Nelly 
Schneider,  3  P.  D.  152. 

But  none  of  the  cases,  thus  put  by  way  of  illustration,  so  strongly 
call  for  the  interposition  of  the  law  as  the  case  before  us.  The  right 
to  the  use  of  running  water  is  publici  juris,  and  common  to  all  the 
proprietors  of  the  bed  and  banks  of  the  stream  from  its  source  to  its 
outlet.  Each  has  a  right  to  the  reasonable  use  of  the  water  as  it 
flows  past  his  land,  not  interfering  with  a  like  reasonable  use  by 
those  above  or  below  him.  One  reasonable  use  of  the  water  is  the 
use  of  the  power,  inherent  in  the  fall  of  the  stream  and  the  force 
of  the  current,  to  drive  mills.  That  power  cannot  be  used  without 
damming  up  the  water,  and  thereby  causing  it  to  flow  back.  If  the 
water  thus  dammed  up  by  one  riparian  proprietor  spread  over  the 
lands  of  others,  they  could  at  common  law  bring  successive  actions 
against  him  for  the  injury  so  done  them,  or  even  have  the  dam  abated. 
Before  the  mill  acts,  therefore,  it  was  often  impossible  for  a  riparian 
proprietor  to  use  the  water  power  at  all,  without  the  consent  of  those 
above  him.  The  purpose  of  these  statutes  is  to  enable  any  riparian 
proprietor  to  erect  a  mill  and  use  the  water  power  of  the  stream,  pro- 
vided he  does  not  interfere  with  an  earlier  exercise  by  another  of  a 
like  right  or  with  any  right  of  the  public;  and  to  substitute,  for  the 
common-law  remedies  of  repeated  actions  for  damages  and  prostra- 
tion of  the  dam,  a  new  form  of  remedy,  by  which  any  one  whose  land. 


Ch.  10)  DUB   I'KOCESS  AND   BQDAUTX:     POLICE   POWEIt  629 

is  flowed  can  have  assessed,  once  for  all,  either  in  a  gross  sum  or  by 
way  of  annual  damages,  adequate  compensation  for  the  injury.2 

This  view  of  the  principle  upon  which  general  mill  acts  rest  has 
been  fully  and  clearly  expounded  in  the  judgments  delivered  by  Chief 
Justice  Shaw  in  the  Supreme  Judicial  Court  of  Massachusetts.  In 
delivering  the  opinion  of  the  court  in  a  case  decided  in  1832,  he  said : 
"The  statute  of  1796  is  but  a  revision  of  a  former  law,  and  the  origin 
of  these  regulations  is  to  be  found  in  the  provincial  statute  of  1714. 
They  are  somewhat  at  variance  with  that  absolute  right  of  dominion 
and  enjoyment  which  every  proprietor  is  supposed  by  law  to  have- 
in  his  own  soil ;  and  in  ascertaining  their  extent  it  will  be  useful 
to  inquire  into  the  principle  upon  which  they  are  founded.  We  think 
they  will  be  found  to  rest  for  their  justification,  partly  upon  the  in- 
terest which  the  community  at  large  has  in  the  use  and  employment 
of  mills,  and  partly  upon  the  nature  of  the  property,  which  is  often  so 
situated  that  it  could  not  be  beneficially  used  without  the  aid  of  this 
power.  A  stream  of  water  often  runs  through  the  lands  of  several 
proprietors.  One  may  have  a  sufficient  mill-site  on  his  own  land,  with 
ample  space  on  his  own  land  for  a  mill-pond  or  reservoir,  but  yet,  from 
the  operation  of  the  well-known  physical  law  that  fluids  will  seek 
and  find  a  level,  he  cannot  use  his  own  property  without  flowing  the 
water  back  more  or  less  on  the  lands  of  some  other  proprietor.  We 
think  the  power  given  by  statute  was  intended  to  apply  to  such  cases. 
and  that  the  legislature  meant  to  provide  that,  as  the  public  inter- 
est in  such  case  coincides  with  that  of  the  mill-owner,  and  as  the 
mill-owner  and  the  owner  of  lands  to  be  flowed  cannot  both  enjoy 
their  full  rights,  without  some  interference,  the  latter  shall  yield  to  the 
former,  so  far  that  the  former  may  keep  up  his  mill  and  head  of  water, 
notwithstanding  the  damage  done  to  the  latter,  upon  payment  of  an 
equitable  compensation  for  the  real  damage  sustained,  to  be  ascer- 
tained in  the  mode  provided  by  the  statute."  "From  this  view  of  the 
object  and  purpose  of  the  statute,  we  think  it  quite  manifest  that  it 
was  designed  to  provide  for  the  most  useful  and  beneficial  occupation 
and  enjoyment  of  natural  streams  and  watercourses,  where  the  abso- 
lute right  of  each  proprietor  to  use  his  own  land  and  water  privileges, 
at  his  own  pleasure,  cannot  be  fully  enjoyed,  and  one  must  of  neces- 
sity, in  some  degree,  vield  to  the  other."  Fiske  v.  Framingham  Man- 
ufacturing Co.,  12  Tick.  (Mass.)  68,  70-72.    *    *    * 

Upon  principle  and  authority,  therefore,  independently  of  any  weight 
due  to  the  opinions  of  the  courts  of  New  Hampshire  and  other  states, 
maintaining  the  validity  of  general  mill  acts  as  taking  private  property 
for  public  use,  in  the  strict  constitutional  meaning  of  that  phrase,  the 
statute  under  which  the  Amoskeag  Manufacturing  Company  lias  flowed 
the  land  in  question  is  clearly  valid  as  a  just  and  reasonable  exercise  of 

!As  to  the  mode  and   certainty   of  compensation  requisite,  see  Otis  Co.  v. 

Ludlow  Co.,  post,  p,  787,  note. 
11  all.  CoNST.Li, — 31 


">30  FUNDAMENTAL    RIGHTS  (Part  2 

the  power  of  the  legislature,  having  regard  to  the  public  good,  in  a 
more  general  sense,  as  well  as  to  the  rights  of  the  riparian  proprietors, 
to  regulate  the  use  of  the  water  power  of  running  streams,  which 
without  some  such  regulation  could  not  be  beneficially  used.  The 
statute  does  not  authorize  new  mills  to  be  erected  to  the  detriment  of 
existing  mills  and  mill  privileges.  And  by  providing  for  an  assess- 
ment of  full  compensation  to  the  owners  of  lands  flowed,  it  avoids 
the  difficulty  which  arose  in  the  case  of  Pumpelly  v.  Green  Bay  Co., 
13  Wall.  166,  20  L.  Ed.  557.  •  *  * 
Judgment  affirmed.* 

a  Compare  Talbot  v.  Hudson,  post,  p.  678,  and  Lowell  v.  Boston,  post,  p.  OT.i 
In  Wurts  v.  Hoagland,  114  U.  S.  606,  610-314,  5  Sup.  Ct.  10S6,  1088,  1089, 
_'9  L.  Ed.  229  (1SS5),  Gray,  J.,  said: 

"General  laws  authorizing  the  drainage  of  tracts  of  swamp  and  low  lauds, 
by  commissioners  appointed  upon  proceedings  instituted  by  some  of  the  own 
ers  of  the  lands,  and  the  assessment  of  the  whole  expense  of  the  work  upon 
all  the  lands  within  the  tract  in  question,  have  long  existed  in  the  state  of 
Xew  Jersey,  and  have  been  sustained  and  acted  on  by  her  courts,  uuder  the 
( 'onstitution  of  1776,  as  well  as  under  that  of  1S44.  *  *  *  In  State  v. 
.Newark,  27  N.  J.  Law,  1S5,  194,  the  Supreme  Court  said :  'Laws  for  the  drain- 
age or  embanking  of  low  grounds,  and  to  provide  for  the  expense,  for  the 
mere  benefit  of  the  proprietors,  without  reference  to  the  public  good,  are  to 
be  classed,  not  under  the  taxing,  but  the  police  power  of  the  government.' 
In  Coster  v.  Tide  Water  Co.,  18  N.  J.  Eq.  54,  and  Tide  Water  Co.  v.  Coster, 
18  N.  J.  Eq.  518,  90  Am.  Dec.  634,  the  same  view  was  strongly  asserted  in  the 
<  'ourt  of  Chancery  and  in  the  Court  of  Errors.  The  point  there  decided  was 
that  a  statute  providing  for  the  drainage  of  a  large  tract  of  land  overflowed 
by  tide-water,  by  a  corporation  chartered  for  the  purpose,  none  of  the  mem- 
bers of  which  owned  any  lands  within  the  tract,  if  it  could  be  maintained  as 
an  exercise  of  the  right  of  eminent  domain  for  a  public  use,  yet  could  not 
authorize  an  assessment  on  the  owners  of  such  lands  for  anything  beyond 
the  benefits  conferred  upon  them.  But  the  case  was  clearly  and  sharply  dis- 
tinguished from  the  case  of  the  drainage  of  lands  for  the  exclusive  benefit  of 
the  owners  upon  proceedings  instituted  by  some  of  them.  Chancellor  Za- 
briskle  said :  'But  there  is  another  branch  of  legislative  power  that  may  be 
appealed  to,  as  authorizing  the  taking  of  the  lands  required  for  the  works 
to  drain  these  meadows.  It  is  the  power  of  the  government  to  prescribe  pub 
lie  regulations  for  the  better  and  more  economical  management  of  property 
of  persons  whose  property  adjoins,  or  which,  from  some  other  reason,  can  be 
better  managed  and  improved  by  some  joint  operation,  such  as  the  power  of 
regulating  the  building  of  party  walls ;  making  and  maintaining  partition 
fences  and  ditches ;  constructing  ditches  and  sewers  for  the  draining  of  up- 
lands or  marshes,  which  can  more  advantageously  be  drained  by  a  common 
sower  or  ditch.  This  is  a  well-known  legislative  power,  recognized  and 
treated  of  by  all  jurisconsults  and  writers  upon  law  through  the  civilized 
world;  a  branch  of  legislative  power  exercised  by  this  state  before  and  since 
the  Revolution,  and  before  and  since  the  adoption  of  the  present  Constitu- 
tion, and  repeatedly  recognized  by  our  courts.  The  legislature  has  power  to 
regulate  these  subjects,  either  by  general  law,  or  by  particular  laws  for  cer- 
tain localities  or  particular  and  defined  tracts  of  land.  When  the  Constitu- 
tion vested  the  legislative  power  in  the  Senate  and  General  Assembly,  it  con- 
ferred the  power  to  make  these  public  regulations  as  a  well  understood  part  of 
that  legislative  power.'  'The  principle  of  them  all  is,  to  make  an  improve- 
ment common  to  all  concerned,  at  the  common  expense  of  all.  And  to  effect 
this  object,  the  acts  provide  that  the  works  to  effect  the  drainage  may  be 
located  on  any  part  of  the  lands  drained,  paying  the  owner  of  the  land  thus 
occupied  compensation  for  the  damage  by  such  use.  So  far  private  property 
is  taken  by  them;  farther  it  is  not.  In  none  of  them  is  the  owner  divested 
of  his  fee,  and  in  most  there  is  no  corporation  in  which  it  could  be  vested, 


Ch.  10)  due  process  and  equality:   police  power  5::i 


SECTION  S.— REGULATION  INCIDENTAL  TO  POWER  OF 
PROHIBITION 


NEW  YORK  CENT.  &  H.  R.  R.  CO.  v.  WILLIAMS  (1910)  199 
N.  Y.  108,  116-119,  92  N.  E.  404,  35  L  R.  A.  (N.  S.)  549,  139  Am. 
St.  Rep.  850,  Bartlett,  J.  (upholding  a  New  York  statute  requiring 
all  persons  and  corporations  operating  steam  surface  railways  to  pay 
wages  semi-monthly  in  cash) : 

"In  the  briefs  of  counsel  the'  constitutionality  of  the  'semi-monthly 
cash  payment  law'  (which  term  I  use  for  convenience  in  referring  to 
the  provisions  of  the  statute  prescribing  the  time  of  payment  and  re- 
quiring it  to  be  in  cash)  is  discussed  in  two  aspects:  (1)  As  an  ex- 
ercise of  the  police  power  of  the  Legislature,  and  (2)  as  an  exercise 
of  the  reserved  power  to  amend  the  charters  of  corporations.  In  the 
view  which  I  have  taken  of  the  case  I  shall  proceed  to  consider  only 
the  question  of  its  validity  as  warranted  by  the  reserved  power  to 
amend.  *  *  *  Even  if  the  enactment  should  be  deemed  uncon- 
stitutional so  far  as  persons  are  concerned,  the  provision  relating  t<> 
them  is  readily  separable  from  the  rest  of  the  statute  relating  to  cor- 
porations, and  its  invalidity  in  this  respect,  if  so  adjudged,  need  not 
affect  the  application  of  the  provision  to  steam  surface  railroad  cor- 
porations.   Berea  College  v.  Kentucky,  211  U.  S.  45,  29  Sup.  Ct.  33. 


and  for  all  other  purposes  the  title  of  the  land  remained  In  the  owner.  To 
effect  such  common  drainage,  power  was  in  some  cases  given  to  Continue 
these  drains  through  adjacent  lands  not  drained,  upon  compensation.  41 
Uiis  was  an  ancient,  and  well-known  exercise  of  legislative  power,  and  may 
well  be  considered  as  included  in  the  grant  of  legislative  power  in  the  Con 
stitution.'  18  N.  J.  Eq.  68-71.  Chief  Justice  Beasley,  In  delivering  the  .i i n  1  l; 
ineut  of  the  court  of  errors,  enforced  the  same  distinction,  Baying:  •Tin- 
case,  with  regard  to  the  grounds  on  which  it  rests,  is  to  be  distinguished  from 
thai  Class  of  proceedings  by  Which  meadows  and  other  lands  are  drained  on 
iieation  of  the  landowners  themselves.  In  the  present  instance,  the 
state  is  the  sole  actor,  and  public  necessity  or  Convenience  is  the  only  justifl 
cation  of  her  intervention.  But  the  regulations  established  by  the 
tive  power,  whereby  the  owners  of  meadow  lands  are  compelled  to 
to  an  equal  burden  of  the  expense  Incurred  in  their  improvement,  are  rales 
i  i'  police  of  the  same  character  as  provisions  concerning  party  walls  a 

lit  inn    fences.     Tu   these   cases,   therefore,   the  principle  upon    which    i 

sion  of  the  present  case  rests  is  not  to  be  extended.'     18  N.  J.  Kq.  531,  90  Am. 

Pee.    634.      *      »      • 

"This  review  of  the  eases  clearly  shows  that  general  laws  for  the  drain 
age  of  large  tracts  of  swamps  and  low  land.-,  upon  proceedings  Instituted  by 
some  of  the  proprietors  of  the  lands  to  compel  all  to  contribute  to  the  ex 
pense   of  their  drainage,   have  been   maintained  by   the  courts   of   New 

[without  reference  to  the  power  of  taking  private  property  for  the 
use  under  the  right  of  eminent  domain,  or  to  the  power  of  snppresslni 
sanee  dangerous  to  the  public  health)  as  b  just  and  constitutional  > 
of  the  power  of  the  legislature   to  establish   regulations  by   which  adjoining 


532  FUNDAMENTAL    RIGHTS  (Part  2 

53  L.  Ed.  81.  It  matters  not  that  both  provisions  are  contained  in 
the  same  section.  Loeb  v.  Columbia  Township  Trustees,  179  U.  S. 
472,  490,  21  Sup.  Ct.  174,  45  L.  Ed.  2S0. 

"In  exercising  the  reserved  power  to  amend  corporate  charters,  the 
Legislature  may  not  deprive  a  corporation  of  property  already  ac- 
quired, or  the  proceeds  of  lawful  contracts  previously  made,  or  de- 
stroy or  substantially  impair  the  purposes  of  the  grant  or  rights 
which  are  vested  in  the  corporation  thereunder;  but  it  may  make  any 
alteration  or  amendment  of  a  charter  'which  will  not  defeat  or  sub- 
stantially impair  the  object  of  the  grant,  or  any  rights  vested  under 
it,  and  which  the  Legislature  may  deem  necessary  to  secure  either  that 
object  or  any  public  right.'  Close  v.  Glenwood  Cemetery,  107  U.  S. 
466,  476,  2  Sup.  Ct.  267,  27  L.  Ed.  408.  In  the  case  of  corporations 
such  as  railroad  companies,  which  are  clothed  to  some  extent  with  a 
public  trust,  and  are  under  an  obligation  to  discharge  duties  which 
affect  the  community  at  large,  the  Legislature  may  make  amendments 
in  furtherance  of  the  public  interest  for  the  benefit  of  their  em- 
ployes, even  though  such  amendments  operate  as  limitations  upon  the 
exercise  of  the  right  to  contract.  Such  is  substantially  the  doctrine 
enunciated  in  the  case  of  St.  Louis,  Iron  Mountain  &  St.  Paul  Ry. 
Co.  v.  Paul,  173  U.  S.  404,  19  Sup.  Ct.  419,  43  L.  Ed.  746,  where  the 
Supreme  Court  of  the  United  States  was  called  upon  to  pass  on  the 
constitutional  validity  of  an  act  of  the  Arkansas  Legislature  which 
required  railroad  companies,  whenever  they  discharged  an  employe, 
to  pay  him  his  unpaid  wages  then  earned  at  the  contract  rate  without 
abatement  or  deduction  on  the  day  of  his  discharge.  The  state  court 
upheld  this  legislation  as  a  valid  exercise  of  the  power  to  amend  cor- 

lands,  held  by  various  owners  In  severalty,  and  in  the  improvement  of  which 
all  have  a  common  interest,  but  which,  by  reason  of  the  peculiar  natural  con- 
dition of  the  whole  tract,  cannot  be  improved  or  enjoyed  by  any  of  them 
without  the  concurrence  of  all,  may  be  reclaimed  and  made  useful  to  all  at 
their  joint  expense.  The  case  comes  within  the  principle  upon  which  this 
court  upheld  the  validity  of  general  mill  acts  in  Head  v.  Amoskeag  Manu- 
facturing Co.,  113  U.  S.  9,  5  Sup.  Ct.  441,  28  L.  Ed.  S89." 

Contra :  Matter  of  Tuthill,  163  N.  Y.  133,  57  N.  E.  303,  49  L.  R.  A.  781, 
79   Am.   St.   Rep.   574   (1900). 

As  to  compulsory  party  walls,  see  Swift  v.  Calnan,  102  Iowa,  206,  71  N.  W. 
233,  37  L.  R.  A.  462,  63  Am.  St.  Rep.  443  (1S97) ;  and  as  to  partition  fences, 
see  Tomlinson  v.  Bainaka,  163  Ind.  112,  70  N.  E.  155  (1904)  (cases). 

Miscellaneous  Servitudes  of  Property  and  Obligations  of  Personal 
Public  Service. — Here  may  be  mentioned  together  a  variety  of  instances 
where  persons  are  compelled,  in  the  public  interest,  without  compensation,  to 
render  services,  to  undergo  expense  or  to  suffer  the  use  of  their  property  by 
others.  Of  the  first  sort  are  militia  training  and  jury  duty ;  attendance  and 
testimony  as  a  witness,  Dixon  v.  People,  168  111.  179,  48  N.  E.  108  (1897)  (ex- 
pert testimony  compellable  free),  annotated  39  L.  R.  A.  116  ff. ;  and  labor 
on  the  highways,  Norwood  v.  Baker,  infra,  p.  657,  note.  Of  the  second,  is 
the  power  of  the  state  to  compel  property  owners  to  lay  and  clean  street 
sidewalks  in  front  of  their  premises,  Norwood  v.  Baker,  post,  p.  657,  note. 
And  of  the  third,  see  Eldridge  v.  Trezevant,  post,  p,  670,  and  note.  No  men- 
tion is  made  here  of  actions  proper  in  great  emergencies,  such  as  war,  public 
disorder,  or  great  catastrophes.  See  American  Print  Works  v,  Lawrence, 
.post,  p.  6G9. 


Ch.  10)  DUE   PROCESS  AND   EQUALITY:     POLICE   POWBB  563 

porate  charters  reserved  to  the  Legislature  in  the  state  Constitution. 
It  was  contended  in  the  Supreme  Court  of  the  United  States  that  as 
to  railroad  corporations  organized  prior  to  its  passage  the  statute  was 
void,  because  in  violation  of  the  fourteenth  amendment;  or,  in  other 
words,  because  it  amounted  to  a  deprivation  of  property  forbidden  by 
the  federal  Constitution.  The  court,  however,  declined  to  sustain 
this  view,  but  affirmed  the  judgment  of  the  Supreme  Court  of  Ar- 
kansas holding  that  inasmuch  as  the  right  to  contract  was  not  abso- 
lute, but  might  be  subjected  to  the  restraints  demanded  by  the  safety 
and  welfare  of  the  state,  the  legislative  power  to  amend  corporate 
charters  in  this  manner  could  not  be  disputed  on  the  ground  that  its 
exercise  was  an  infraction  of  the  fourteenth  amendment. 

"In  the  Sinking  Fund  Cases,  99  U.  S.  700,  720,  25  L.  Ed.  496,  the 
same  court  in  discussing  the  power  reserved  to  Congress  to  amend 
the  charters  of  the  great  Pacific  railroads,  reviewed  the  earlier  de- 
cisions on  the  general  subject,  and  held  that  the  reservation  of  the 
power  of  amendment  'affects  the  entire  relation  between  the  state 
and  the  corporation,  and  places  under  legislative  control  all  rights, 
privileges,  and  immunities  derived  by  its  charter  directly  from  the 
state';   citing  Tomlinson  v.  Jessup,  15  Wall.  459,  21  L.  Ed.  204. 

"In  this  state  the  same  rule  has  been  laid  down  with  equal  emphasis. 
As  illustrations  of  the  extent  to  which  the  Legislature  might  subject 
corporations  to  new  restrictions  or  increased  burdens  in  the  exercise 
of  its  reserved  power  to  amend  corporate  charters,  Judge  Denio,  in 
Albany  Northern  R.  R.  Co.  v.  Brownell,  24  N.  Y.  345,  called  atten- 
tion to  one  case  in  which  the  Court  of  Appeals  had  held  that  the  line 
of  a  plank  road  might  be  extended  and  its  capital  increased,  and  to 
another  in  which  a  banking  corporation  chartered  under  the  general 
act  of  183S,  without  personal  liability  on  the  part  of  the  shareholders, 
was  so  changed  as  to  render  the  shareholders  liable  for  all  the  debts 
of  the  company  to  an  amount  equal  to  the  stock  held  by  them  re- 
spectively. See  Schenectady  &  S.  Plankroad  Co.  v.  Thatcher,  11  X.  V. 
102 ;  Matter  of  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y.  9.  'It  is  difficult 
to  put  precise  limits  upon  the  power  of  the  Legislature  thus  reserved 
over  corporations  created  by  it  or  under  its  authority,'  said  Judge 
Earl  in  Mayor,  etc.,  of  N.  Y.  v.  Twentv-Third  St.  Ry.  Co.,  113  N. 
Y.  311,  317,  21  N.  E.  60,  62.  '*  *  *  As  it  has  the  power  ut- 
terly to  deprive  the  corporation  of  its  franchise  to  be  a  corporation. 
it  may  prescribe  the  conditions  and  terms  upon  which  it  may  live 
and  exercise  such  franchise.  It  may  enlarge  or  limit  its  powers,  and 
it  may  increase  or  limit  its  burdens.'  The  appellant  complains  be- 
cause the  Legislature  has  increased  its  burdens  by  the  sum  of  $60,000 
additional  expenses  which  it  must  incur  annually  in  order  to  pay  its 
employes  with  the  frequency  prescribed  by  the  statute;  but  the  cor- 
porators must  be  deemed  to  have  contemplated  the  possibility  of  any 
change  of  burden  within  the  legislative  power  to  make  when  they 
organized  the  railroad  company. 


534     .  FUNDAMENTAL    RIGHTS  (Part  2 

"In  New  York  a  special  charter  may  be  amended  by  a  general  act 
which  does  not  refer  specifically  to  such  charter.  Pratt  Institute  v. 
City  of  New  York,  183  N.  Y.  151,  75  N.  E.  1119,  5  Ann.  Cas.  198: 
People  ex  rel.  Cooper  Union  v.  Gass,  190  N.  Y.  323,  83  N.  E.  64, 
123  Am.  St.  Rep.  549,  13  Ann.  Cas.  678.  The  case  of  State  v.  Haun. 
61  Kan.  146,  59  Pac.  340,  47  L.  R.  A.  369,  is  cited  as  authority  against 
this  method  of  amendment,  but  it  is  in  opposition  to  the  view  re- 
peatedly asserted  and  assumed  in  this  court,  and  is  also  opposed  to 
decisions  on  the  subject  in  other  jurisdictions,  where  it  is  held  that 
the  fact  that  an  act  of  the  Legislature  is  general  in  its  terms,  and 
makes  no  direct  or  express  reference  to  the  charter  of  any  particular 
corporation  does  not  prevent  it  from  operating  as  an  amendment  to 
the  charter  of  any  corporation  comprehended  in  the  classes  to  which 
it  refers.  Such  was  the  effect  given  by  the  Supreme  Court  of  the 
United  States  to  a  general  statute  of  Kentucky,  which  was  construed 
as  operative  to  amend  the  charter  of  Berea  College,  although  it  was 
not  in  terms  designated  as  an  amendment  thereof.  Berea  College  v. 
Kentucky,  supra.     *     *     * 

"The  semimonthly  payment  clause  of  the  labor  law  being  applicable 
to  all  steam  surface  railroad  corporations  in  the  state  operated  as  a 
repeal  of  all  the  charters  of  such  corporations,  if  there  were  any,  which 
provided  for  a  different  time  of  payment  for  employes  and  as  an 
amendment  or  addition  to  all  charters  in  which  no  time  of  payment 
was  prescribed."  l 

i  Accord :  Lawrence  v.  Rutland  R.  Co.,  80  Vt.  370,  67  Atl.  1091,  15  L.  R. 
A.  (N.  S.)  350,  13  Ann.  Cas.  475  (1907)  (cases).  Other  clauses  in  particular 
state  Constitutions,  prescribing  the  mode  of  amending  corporate  charters. 
may  prevent  a  broad  application  of  the  doctrine  of  the  principal  case.  Brace- 
ville  Coal  Co.  v.  People,  147  111.  66,  74-75,  35  N.  E.  62,  22  L.  R.  A.  340,  37 
Am.   St.  Rep.  206  (1893). 

Iu  Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  319-320,  94  N.  E.  431,  449. 
34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156  (1911),  Cullen,  C.  J.,  said  (hold- 
ing invalid  a  New  York  statute  making  employers  in  certain  hazardous  occu- 
pations absolutely  liable  for  injuries  to  employes  sustained  therein):  "1 
concur  with  Judge  Werner  that  the  act,  as  applicable  to  the  case  before  us. 
cannot  be  considered  as  an  exercise  of  the  power  of  the  state  to  regulate 
corporations.  The  act  is  general,  not  confined  to  corporations,  and,  even  if 
it  were,  I  think  its  effect  would  be  a  deprivation  of  property  not  authorized 
by  the  reserved  power  to  regulate.  As  to  corporations  hereafter  formed,  the 
question  is  very  different.  The  franchise  to  be  a  corporation  is  not  one  in- 
herent in  the  citizen,  but  proceeds  solely  from  the  bounty  of  the  Legislature, 
and  for  that  reason  the  Legislature  may  dictate  the  terms  on  which  it  will 
be  granted  and  require  the  acceptance  of  the  provisions  of  this  act  as  a  con- 
dition of  incorporation.  Purdy  v.  Erie  R.  R.  Co.,  162  N.  Y.  42,  56  N.  E. 
508,  48  L.  R.  A.  669 ;  Minor  v.  Erie  R.  R.  Co.,  171  N.  Y.  566,  64  N.  E.  454 ; 
People  ex  rel.  Schurz  v.  Cook.  110  N.  Y.  443,  18  N.  E.  113;  s.  c,  148  U. 
S.  397,  13  Sup.  Ct.  645,  37  L.  Ed.  498;  Chicago,  R.  I.  &  Pac.  R.  Co.  v.  Zer- 
uecke,  183  TJ.  S.  582,  22  Sup.  Ct.  229,  46  L.  Ed.  339.  Even  in  the  case  of 
existing  corporations,  the  corporate  existence  of  all  those  created  since  the 
Constitution  of  1846  may  be  revoked  by  the  Legislature,  though  the  property 
rights  of  such  corporations  and  their  special  franchises  other  than  the  one 
to  be  a  corporation  cannot  be  impaired.  Const,  art.  8,  §  1 ;  Lord  v.  Equitable 
Life  Assur.  Soc,  194  N.  Y.  212,  87  N.  E.  443,  22  L.  R.  A.  (N.  S.)  420.  Tin- 
property  and  franchise  would  have  to  be  managed  by  the  owners  as  partners 


Cll.  11)        DUE  PROCESS  AND  EQUALITY  :  TAXATION  6o5 


CHAPTER  XI 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW: 
TAXATION 


SECTION  1.— JURISDICTION 


UNION  REFRIGERATOR  TRANSIT  CO.  v.  KENTUCKY. 

Supreme  Court  of   United   States,  1005.     109  U.  S.  194,  2G  Sup.  Ct.  30,  50 
L.  Ed.  150,  4  Ann.  Cas.  493.) 

[Error  to  the  Court  of  Appeals  of  Kentucky.  The  defendant  com- 
pany, a  Kentucky  corporation,  was  sued  by  that  state  for  the  ad  valo- 
rem property  taxes  assessed  for  certain  years  upon  2,000  freight  cars 
owned  by  it  and  rented  to  shippers,  who  took  possession  of  them  from 
time  to  time  at  Milwaukee,  Wis.,  and  used  them  to  carry  freight  in 
various  parts  of  the  United  States,  Canada,  and  Mexico.  According 
to  a  system  of  averages  based  upon  gross  earnings,  only  from  30  to 
70  of  such  cars  were  employed  yearly  in  Kentucky.  The  state  Court 
of  Appeals  directed  a  judgment  against  the  company  for  taxes  upon 
all  of  its  cars.] 

Mr.  Justice  Brown.  In  this  case  the  question  is  directly  presented 
whether  a  corporation  organized  under  the  laws  of  Kentucky  is  subject 
to  luxation  upon  its  tangible  personal  property  permanently  located  in 
other  states,  and  employed  there  in  the  prosecution  of  its  business. 
Such  taxation  is  charged  to  be  a  violation  of  the  due  process  of  law 
clause  of  the  fourteenth  amendment. 

or  tenants  in  common,  and  the  Legislature  might  require  as  a  condition  of 
the  continued  right  to  he  a  corporation  that  before  tie  expiration  of  a  rea- 
sonable  period  the  provisions  of  the  statute  should  also  be  accepted  also  by 
thera." 

i'onditions  Imposed  upon  Prohibitablk  Acts  or  Property. — As  to  the 
validity  of  onerous  regulations  imposed  upon  conduct  or  property  that  might 
be  prohibited  altogether,  see  Sentoll  v.  Now  Orleans  A  C.  R,  Co.,  1GG  TJ.  S. 
898,  17  Sup.  ct.  893,  -ii  i,.  Ed.  1169  (1897)  (dogs);  McGlone  v.  Womack,  129 
Kv.  .74,  111  S.  W.  688,  17  L.  R.  A.  (N.  S.)  856  <190S)  (same);  Bertholf  v. 
O'Reilly,  74  N.  T.  609,  :i0  Am.  Rep.  328  (1878)  isaloons),  explained  in  Ives 
v.  South  Buffalo  R.  Co.,  201  N.  Y.  SOS.  01  N.  E.  146,  "I  I..  II.  A.  i.V  S^  162, 
Ann.  Cas.  1912B,  L66,  by  Werner,  J.:  "lu  that  case,  as  in  the  case  of  Marvin 
v.  Trout,  199  D.  S,  212,  26  Sup.  Ct  31,  50  I..  Kd.  157  the  controlling  principle 
was  that  the  state  had  the  right  to  prohibit,  and  therefore  the  absolute  right 
to  control." 

Compare  the  analogous  doctrine  as  to  procedural  due  process  Id  Oceanic 
Co.  v.  Stranahan,  ante,  p.  jos,  and  In  taxation  of  corporate  franchises,  post, 
pp.  618-622. 


536  FUNDAMENTAL    RIGHTS  (Part  2 

Section  4020  of  the  Kentucky  Statutes,  under  which  this  assessment 
was  made,  provides  that  "all  real  and  personal  estate  within  this  state, 
and  all  personal  estate  of  persons  residing  in  this  state,  and  of  all  cor- 
porations organized  under  the  laws  of  this  state,  whether  the  property 
be  in  or  out  of  this  state,  *  *  *  shall  be  subject  to  taxation." 
♦     *     * 

The  power  of  taxation,  indispensable  to  the  existence  of  every  civil- 
ized government,  is  exercised  upon  the  assumption  of  an  equivalent 
rendered  to  the  taxpayer  in  the  protection  of  his  person  and  property, 
in  adding  to  the  value  of  such  property,  or  in  the  creation  and  mainte- 
nance of  public  conveniences  in  which  he  shares, — such,  for  instance, 
as  roads,  bridges,  sidewalks,  pavements,  and  schools  for  the  education 
of  his  children.  If  the  taxing  power  be  in  no  position  to  render  these 
services,  or  otherwise  to  benefit  the  person  or  property  taxed,  and  such 
property  be  wholly  within  the  taxing  power  of  another  state,  to  which 
it  may  be  said  to  owe  an  allegiance,  and  to  which  it  looks  for  protec- 
tion, the  taxation  of  such  property  within  the  domicil  of  the  owner 
partakes  rather  of  the  nature  of  an  extortion  than  a  tax,  and  has  been 
repeatedly  held  by  this  court  to  be  beyond  the  power  of  the  legisla- 
ture, and  a  taking  of  property  without  due  process  of  law.  Northern 
C.  R.  Co.  v.  Jackson,  7  Wall.  262,  19  L.  Ed.  88 ;  State  Tax  on  For- 
eign-Held Bonds,  15  Wall.  300,  21  L.  Ed.  179:  Tappan  v.  Merchants' 
Nat.  Bank,  19  Wall.  490^99,  22  L.  Ed.  189-193;  Delaware,  L.  & 
W.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341,  358,  49  L.  Ed.  1077,  1083, 
25  Sup.  Ct.  669.  In  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S. 
226,  41  L.  Ed.  979,  17  Sup.  Ct.  581,  it  was  held,  after  full  consider- 
ation, that  the  taking  of  private  property  without  compensation  was  a 
denial  of  due  process  within  the  fourteenth  amendment.  See  also  Da- 
vidson v.  New  Orleans,  96  U.  S.  97,  102,  24  L.  Ed.  616,  618;  Mis- 
souri P.  R.  Co.  v.  Nebraska,  164  U.  S.  403,  417,  41  L.  Ed.  489,  495, 
17  Sup.  Ct.  130;  Mt.  Hope  Cemetery  v.  Boston,  158  Mass.  509,  519, 
35  Am.  St.  Rep.  515,  33  N.  E.  695. 

Most  modern  legislation  upon  this  subject  has  been  directed  (1)  to 
the  requirement  that  every  citizen  shall  disclose  the  amount  of  his  prop- 
erty subject  to  taxation,  and  shall  contribute  in  proportion  to  such 
amount ;  and  (2)  to  the  avoidance  of  double  taxation.  As  said  by 
Adam  Smith  in  his  Wealth  of  Nations,  book  V,  chap.  2,  pt.  2,  p.  371  : 
"The  subjects  of  every  state  ought  to  contribute  towards  the  support 
of  the  government  as  nearly  as  possible  in  proportion  to  their  respec- 
tive abilities ;  that  is,  in  proportion  to  the  revenue  which  they  respec- 
tively enjoy  under  the  protection  of  the  state.  The  expense  of  govern- 
ment to  the  individuals  of  a  great  nation  is  like  the  expense  of  man- 
agement to  the  joint  tenants  of  a  great  estate,  who  are  all  obliged  to 
contribute  in  proportion  to  their  respective  interests  in  the  estate.  In 
the  observation  or  neglect  of  this  maxim  consists  what  is  called  the 
equality  or  inequality  of  taxation." 


Cll.  11)  DUE   PBOCESS   AND    BQUALIXI  :      1AXATION  G.J7 

But  notwithstanding  the  rule  of  uniformity  lying  at  the  basis  of  ev- 
ery just  system  of  taxation,  there  are  doubtless  many  individual  cases 
where  the  weight  of  a  tax  falls  unequally  upon  the  owners  of  the 
property  taxed.  This  is  almost  unavoidable  under  every  system  of 
direct  taxation.  But  the  tax  is  not  rendered  illegal  by  such  discrimi- 
nation. Thus,  every  citizen  is  bound  to  pay  his  proportion  of  a  school 
tax,  though  he  have  no  children ;  of  a  police  tax,  though  he  have  no 
buildings  or  personal  property  to  be  guarded  ;  or  of  a  road  tax,  though 
he  never  use  the  road.  In  other  words,  a  general  tax  cannot  be  dis- 
sected to  show  that,  as  to  certain  constituent  parts,  the  taxpayer  re- 
ceives no  benefit.  Even  in  case  of  special  assessments  imposed  for  the 
improvement  of  property  within  certain  limits,  the  fact  that  it  is  ex- 
tremely doubtful  whether  a  particular  lot  can  receive  any  benefit  from 
the  improvement  does  not  invalidate  the  tax  with  respect  to  such  lot. 
Kelly  v.  Pittsburgh,  104  U.  S.  78,  26  L.  Ed.  658;  Amesbury  Nail  Fac- 
tory Co.  v.  Weed,  17  Mass.  53 ;  Thomas  v.  Gay,  169  U.  S.  264,  42  L. 
Ed.  740,  18  Sup.  Ct.  340;  Louisville  &  N.  R.  Co.  v.  Barber  Asphalt 
Paving  Co.,  197  U.  S.  430,  49  L.  Ed.  819,  25  Sup.  Ct.  466.  Subject 
to  these  individual  exceptions,  the  rule  is  that  in  classifying  property 
for  taxation,  some  benefit  to  the  property  taxed  is  a  controlling  consid- 
eration, and  a  plain  abuse  of  this  power  will  sometimes  justify  a  judi- 
cial interference.  Norwood  v.  Baker,  172  U.  S.  269,  43  L.  Ed.  443, 
19  Sup.  Ct.  187.  It  is  often  said  protection  and  payment  of  taxes  are 
correlative  obligations. 

It  is  also  essential  to  the  validity  of  a  tax  that  the  property  shall  be 
within  the  territorial  jurisdiction  of  the  taxing  power.  Not  only  is  the 
operation  of  state  laws  limited  to  persons  and  property  within  the 
boundaries  of  the  state,  but  property  which  is  wholly  and  exclusively 
within  the  jurisdiction  of  another  state  receives  none  of  the  protection 
for  which  the  tax  is  supposed  to  be  the  compensation.  This  rule  re- 
ceives its  most  familiar  illustration  in  the  cases  of  land,  which,  to  be 
taxable,  must  be  within  the  limits  of  the  state.  Indeed,  we  know  of 
no  case  where  a  legislature  has  assumed  to  impose  a  tax  upon  land 
within  the  jurisdiction  of  another  state;  much  less  where  such  ac- 
tion has  been  defended  by  any  court.  It  is  said  bv  this  court  in  the 
State  Tax  on  Foreign-Held  Bonds  Case,  15  Wall.  300-319,  21  L.  Ed. 
179-187,  that  no  adjudication  should  be  necessary  to  establish  so  ob- 
vious a  proposition  as  that  property  lying  beyond  the  jurisdiction  of  a 
state  is  not  a  subject  upon  which  her  taxing  power  can  be  legitimately 
exercised. 

The  argument  against  the  taxability  of  land  within  the  jurisdiction 
of  another  state  applies  with  equal  cogency  to  tangible  personal  prop- 
erty beyond  the  jurisdiction.  It  is  not  only  beyond  the  sovereignty  of 
the  taxing  state,  but  does  not  and  cannot  receive  protection  umler  its 
laws.  True,  a  resident  owner  may  receive  an  income  from  such  prop- 
erty, but  the  same  may  be  said  of  real  estate  within  a  foreign  ju 
tion.    Whatever  be  the  rights  of  the  state  with  respect  to  the  taxation 


538  FUNDAMENTAL    RIGHTS  (Part  2 

of  such  income,1  it  is  clearly  beyond  its  power  to  tax  the  land  from 
which  the  income  is  derived.  As  we  said  in  Louisville  &  J.  Ferry  Co. 
v.  Kentucky,  188  U.  S.  385-396,  47  L.  Ed.  513-518,  23  Sup.  Ct.  463: 
"While  the  mode,  form,  and  extent  of  taxation  are,  speaking  general- 
ly, limited  only  by  the  wisdom  of  the  legislature,  that  power  is  limited 
by  a  principle  inhering  in  the  very  nature  of  constitutional  govern- 
ment,— namely,  that  the  taxation  imposed  must  have  relation  to  a  sub- 
ject within  the  jurisdiction  of  the  taxing  government."  See  also  Mc- 
Culloch  v.  Maryland,  4  Wheat.  316-429,  4  L.  Ed.  579-607;  Hays  v. 
Pacific  Mail  S.  S.  Co.,  17  How.  596-599,  15  L.  Ed.  254,  255 ;  St.  Louis 
v.  Wiggins  Ferry  Co.,  11  Wall.  423,  429,  431,  20  L.  Ed.  192,  194,  195 ; 
Morgan  v.  Parham,  16  Wall.  471^176,  21  L.  Ed.  303,  304. 

Respecting  this,  there  is  an  obvious  distinction  between  tangible  and 
intangible  property,  in  the  fact  that  the  latter  is  held  secretly;  that 
there  is  no  method  by  which  its  existence  or  ownership  can  be  ascer- 
tained in  the  state  of  its  situs  except,  perhaps,  in  the  case  of  mort- 
gages or  shares  of  stock.  So  if  the  owner  be  discovered,  there  is  no 
way  by  which  he  can  be  reached  by  process  in  a  state  other  than  that 
of  his  domicil,  or  the  collection  of  the  tax  otherwise  enforced.  In  this 
class  of  cases  the  tendency  of  modern  authorities  is  to  apply  the  maxim 
"mobilia  sequuntur  personam,"  and  to  hold  that  the  property  may  be 
taxed  at  the  domicil  of  the  owner  as  the  real  situs  of  the  debt,  and 
also,  more  particularly  in  the  case  of  mortgages,  in  the  state  where  the 
property  is  retained.  Such  have  been  the  repeated  rulings  of  this 
court.  Tappan  v.  Merchants'  Nat.  Bank,  19  Wall.  490,  22  L.  Ed.  189 ; 
Kirtland  v.  Hotchkiss,  100  U.  S.491,  25  L.  Ed.  558;  Bonaparte  v.  Ap- 
peal Tax  Court,  104  U.  S.  592,  26  L.  Ed.  845 ;  Sturges  v.  Carter,  114 
U.  S.  511,  29  L.  Ed.  240,  5  Sup.  Ct.  1014;  Kidd  v.  Alabama,  18S  U. 
S.  730,  47  L.  Ed.  669,  23  Sup.  Ct.  401 ;  Blackstone  v.  Miller,  188  U. 
S.  189,  47  L.  Ed.  439,  23  Sup.  Ct.  277. 

If  this  occasionally  results  in  double  taxation,  it  much  oftener  hap- 
pens that  this  class  of  property  escapes  altogether.  In  the  case  of  in- 
tangible property,  the  law  does  not  look  for  absolute  equality,  but  to 
the  much  more  practical  consideration  of  collecting  the  tax  upon  such 
property,  either  in  the  state  of  the  domicil  or  the  situs.  Of  course,  we 
do  not  enter  into  a  consideration  of  the  question,  so  much  discussed  by 
political  economists,  of  the  double  taxation  involved  in  taxing  the  prop- 
erty from  which  these  securities  arise,  and  also  the  burdens  upon  such 
property,  such  as  mortgages,  shares  of  stock,  and  the  like, — the  securi- 
ties themselves. 

i  As  to  jurisdiction  to  levy  income  taxes,  see  Railway  Co.  v.  Jackson,  7 
Wall.  262,  19  L.  Ed.  88  (1809);  United  States  v.  Baltimore  &  O.  R.  Co.,  17 
Wall.  322,  21  L.  Ed.  597  (1873) ;  Railway  Co.  v.  Collector,  100  U.  S.  595,  25 
L.  Ed.  647  (1880) ;  United  States  v.  Erie  R.  Co.,  106  U.  S.  327  and  703,  1  Sup. 
Ct.  223,  27  L.  Ed.  151  (18S2).  Compare  the  remark  of  Taney,  C.  J.,  in  License 
Cases,  5  How.  504,  576  (12  L.  Ed.  256)  (1S47) :  "Undoubtedly  a  state  may  im- 
pose a  tax  upon  its  citizens  in  proportion  to  the  amount  they  are  respectively 
worth" — even  though  part  of  their  property  consist  of  non-taxable  imports. 


Ch.  11)  DUE    PKOCKSS   AND    KQLALITY  I     TAXATION  i>o'J 

The  arguments  in  favor  of  the  taxation  of  intangible  property  at 
the  domicil  of  the  owner  have  no  application  to  tangible  property.  The 
fact  that  such  property  is  visible,  easily  found,  and  difficult  to  conceal, 
and  the  tax  readily  collectible,  is  so  cogent  an  argument  for  its  tax- 
ation at  its  situs,  that  of  late  there  is  a  general  consensus  of  opinion 
that  it  is  taxable  in  the  state  where  it  is  permanently  located  and  em- 
ployed, and  where  it  receives  its  entire  protection,  irrespective  of  the 
domicil  of  the  owner.  We  have,  ourselves,  held  in  a  number  of  cases 
that  such  property,  permanently  located  in  a  state  other  than  that  of 
its  owner,  is  taxable  there.  Brown  v.  Houston,  114  U.  S.  622,  29  L. 
Ed.  257,  5  Sup.  Ct.  1091 ;  Coe  v.  Errol,  116  U.  S.  517,  29  L.  Ed.  715. 
6  Sup.  Ct.  475 ;  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  ST 
18,  35  L.  Ed.  613,  3  Interst.  Com.  R.  595,  11  Sup.  Ct.  876.     *     *     * 

[Here  follows  the  citation  of  other  federal  cases  and  a  discussion 
of  various  state  decisions.] 

But  there  are  two  recent  cases  in  this  court  which  we  think  com- 
pletely cover  the  question  under  consideration,  and  require  the  reversal 
of  the  judgment  of  the  state  court.  The  first  of  these  is  that  of  the 
Louisville  &  J.  Ferry  Co.V  Kentucky,  188  U.  S.  3S5,  47  L.  Ed.  513, 
23  Sup.  Ct.  463.  That  was  an  action  to  recover  certain  taxes  imposed 
upon  the  corporate  franchise  of  the  defendant  company,  which  was 
organized  to  establish  and  maintain  a  ferry  between  Kentucky  and  In- 
diana. The  defendant  was  also  licensed  by  the  state  of  Indiana.  We 
held  that  the  fact  that  such  franchise  had  been  granted  by  the  com- 
monwealth of  Kentucky  did  not  bring  within  the  jurisdiction  of  Ken- 
tucky, for  the  purpose  of  taxation,  the  franchise  granted  to  the  same 
company  by  Indiana,  and  which  we  held  to  be  an  incorporeal  heredita- 
ment, derived  from  and  having  its  legal  situs  in  that  state.  It  was  ad- 
judged that  such  taxation  amounted  to  a  deprivation  of  property  with- 
out due  process  of  law,  in  violation  of  the  fourteenth  amendment;  as 
much  so  as  if  the  state  taxed  the  land  owned  by  that  company;  and 
that  the  officers  of  the  state  had  exceeded  their  power  in  taxing  the 
whole  franchise  without  making  a  deduction  for  that  obtained  from 
Indiana,  the  two  being  distinct,  "although  the  enjoyment  of  both  are 
essential  to  a  complete  ferry  right  for  the  transportation  of  persons 
and  property  across  the  river  both  ways." 

The  other  and  more  recent  case  is  that  of  the  Delaware,  L.  &  W.  R. 
Co.  v.  Pennsylvania,  198  U.  S.  341,  49  L-  Ed.  1077,  25  Sup.  Ct.  669. 
That  was  an  assessment  upon  the  capital  stock  of  the  railroad  com- 
pany, w  herein  it  was  contended  that  the  assessor  should  have  deducted 
from  the  value  of  such  stock  certain  coal  mined  in  Pennsylvania  and 
owned  by  it,  but  stored  in  New  York,  there  awaiting  sale,  and  beyond 
the  jurisdiction  of  the  commonwealth  at  the  time  appraisement  was 
made.  This  coal  was  taxable,  and  in  fact  was  taxed,  in  the  state  where 
it  rested  for  the  purposes  of  sale  at  the  time  when  the  appraisement 
in  question  was  made.  Both  this  court  and  the  supreme  court  of 
Pennsylvania  had  held  that  a  tax  on  the  corporate  stock  is  a  tax  on  the 


540  FUNDAMENTAL    RIGHTS  (Part  2 

assets  of  the  corporation  issuing  such  stock.  The  two  courts  agreed 
in  the  general  proposition  that  tangible  property  permanently  outside 
of  the  state,  and  having  no  situs  within  the  state,  could  not  be  taxed. 
But  they  differed  upon  the  question  whether  the  coal  involved  was 
permanently  outside  of  the  state.  In  delivering  the  opinion  it  was 
said :  "However  temporary  the  stay  of  the  coal  might  be  in  the  par- 
ticular foreign  states  where  it  was  resting  at  the  time  of  the  appraise- 
ment, it  was  definitely  and  forever  beyond  the  jurisdiction  of  Penn- 
sylvania. And  it  was  within  the  jurisdiction  of  the  foreign  states  for 
purposes  of  taxation,  and,  in  truth,  it  was  there  taxed.  We  regard 
this  tax  as,  in  substance  and  in  fact,  though  not  in  form,  a  tax  specif- 
ically levied  upon  the  property  of  the  corporation,  and  part  of  that 
property  is  outside  and  beyond  the  jurisdiction  of  the  state  which  thus 
assumes  to  tax  it."  The  decision  in  that  case  was  really  broader  than 
the  exigencies  of  the  case  under  consideration  require,  as  the  tax  was 
not  upon  the  personal  property  itself,  but  upon  the  capital  stock  of  a 
Pennsylvania  corporation,  a  part  of  which  stock  was  represented  by 
the  coal,  the  value  of  which  was  held  should  have  been  deducted. 

The  adoption  of  a  general  rule  that  tangible  personal  property  in 
other  states  may  be  taxed  at  the  domicil  of  the  owner  involves  possibil- 
ities of  an  extremely  serious  character.  Not  only  would  it  authorize 
the  taxation  of  furniture  and  other  property  kept  at  country  houses  in 
other  states  or  even  in  foreign  countries,  of  stocks  of  goods  and  mer- 
chandise kept  at  branch  establishments,  when  already  taxed  at  the  state 
of  their  situs,  but  of  that  enormous  mass  of  personal  property  belong- 
ing to  railways  and  other  corporations,  which  might  be  taxed  in  the 
state  where  they  are  incorporated,  though  their  charter  contemplated 
the  construction  and  operation  of  roads  wholly  outside  the  state,  and 
sometimes  across  the  continent ;  and  when,  in  no  other  particular,  they 
are  subject  to  its  laws  and  entitled  to  its  protection.  The  propriety  of 
such  incorporations,  where  no  business  is  done  within  the  state,  is  open 
to  grave  doubt;  but  it  is  possible  that  legislation  alone  can  furnish  a 
remedy.     *     *     * 

It  is  unnecessary  to  say  that  this  case  does  not  involve  the  question 
of  the  taxation  of  intangible  personal  property,  or  of  inheritance  or 
succession  taxes,  or  of  questions  arising  between  different  municipali- 
ties or  taxing  districts  within  the  same  state,  which  are  controlled  by 
different  considerations.     *     *     * 

Judgment  reversed. 

[White,  J.,  concurred  in  the  result.] 

Mr.  Justice  Holmes.  It  seems  to  me  that  the  result  reached  by 
the  court  probably  is  a  desirable  one,  but  I  hardly  understand  how  it 
can  be  deduced  from  the  fourteenth  amendment;  and  as  the  Chief 
Justice  feels  the  same  difficulty,  I  think  it  proper  to  say  that  my  doubt 
has  not  been  removed. 


Ch.  11)  DUE   PROCESS   AND    EQUALITY:     TAXATION  541 


NEW  YORK  ex  rel.  NEW  YORK  CENTRAL  &  H.  R.  R.  CO. 
v.  MILLER. 

(Supreme  Court  of  United  States,  1900.     202  D.  S.  584,  26  Sup.  Ct  714,  50  L. 
Ed.  1166.) 

[Error  to  the  Supreme  Court  and  Court  of  Appeals  of  New  York 
in  various  cases.  The  state  levied  what  the  statute  called  a  "franchise 
tax"  upon  domestic  corporations,  based  upon  the  amount  of  capital 
stock  employed  within  the  state.  For  the  reasons  stated  in  the  opinion 
below,  the  relator  caused  writs  of  certiorari  to  be  addressed  to  the 
state  comptroller  to  reduce  the  taxes  thus  imposed  upon  it.  All  of  the 
state  courts  refused  relief.] 

Air.  Justice  Holmes.  *  *  *  The  relator  is  a  New  York  corpo- 
ration, owning  or  hiring  lines  without  as  well  as  within  the  state,  hav- 
ing arrangements  with  other  carriers  for  through  transportation,  rout- 
ing, and  rating,  and  sending  its  cars  to  points  without  as  well  as  within 
the  state,  and  over  other  lines  as  well  as  its  own.  The  cars  are  often 
out  of  the  relator's  possession  for  some  time,  and  may  be  transferred 
to  many  roads  successively,  and  even  may  be  used  by  other  roads  for 
their  own  independent  business,  before  they  return  to  the  relator  or  the 
state.  In  short,  by  the  familiar  course  of  railroad  business  a  consider- 
able portion  of  the  relator's  cars  constantly  is  out  of  the  state,  and 
on  this  ground  the  relator  contended  that  that  proportion  should  be 
deducted  from  its  entire  capital,  in  order  to  find  the  capital  stock  em- 
ployed within  the  state.     *     *     * 

Evidence  was  offered  *  *  *  of  the  car  mileage  outside  and  in- 
side of  the  state,  in  order  to  show,  on  one  footing  or  the  other,  that  a 
certain  proportion  of  cars,  although  not  the  same  cars,  was  continuously 
without  the  state  during  the  whole  tax  year.  The  comptroller  refused 
to  make  any  reduction  of  the  tax.  *  *  *  We  are  to  assume  that 
the  statute  purports  and  intends  to  allow  no  deduction  from  the  cap- 
ital stock  taken  as  the  basis  of  the  tax,  unless  some  specific  portion  of 
the  corporate  property  is  outside  of  the  state  during  the  whole  tax 
year.  We  must  assume,  further,  that  no  part  of  the  corporate  property 
in  question  was  outside  of  the  state  during  the  whole  tax  year. 
*     *     * 

We  are  not  curious  to  inquire  exactly  what  kind  of  a  tax  this  is  to 
be  called.  If  it  can  be  sustained  by  the  name  given  to  it  by  the  local 
courts,  it  must  be  sustained  by  us.  It  is  called  a  franchise  tax  in  the 
act,  but  it  is  a  franchise  tax  measured  by  property.  A  tax  very  like 
the  present  was  treated  as  a  tax  on  the  property  of  th  uion  in 

Delaware,  L.  &  W.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341,  353,  49  L 
Ed.  1077,  1081,  25  Sup.  Ct.  669.  This  seems  to  be  regarded  as  such  a 
tax  by  the  Court  of  Appeals  in  this  case.    See  People  ex  rel.  Commer- 


542  FUNDAMENTAL    RIGHTS  (Part  2 

cial  Cable  Co.  v.  Morgan,  178  N.  Y.  433,  439.  67  L.  R.  A.  960,  70  N. 
E.  967.  If  it  is  a  tax  on  any  franchise  which  the  state  of  New  York 
gave,  and  the  same  state  could  take  away,  it  stands  at  least  no  worse. 
The  relator's  argument  assumes  that  it  must  be  regarded  as  a  tax  of 
a  particular  kind,  in  order  to  invalidate  it,  although  it  might  be  valid 
if  regarded  as  the  state  court  regards  it. 

Suppose,  then,  that  the  state  of  New  York  had  taxed  the  property 
directly,  there  was  nothing  to  hinder  its  taxing  the  whole  of  it.  It  is 
true  that  it  has  been  decided  that  property,  even  of  a  domestic  cor- 
poration, cannot  be  taxed  if  it  is  permanently  out  of  the  state.  Union 
Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194,  201,  211,  SO 
L.  Ed.  150,  26  Sup.  Ct.  36,  4  Ann.  Cas.  493;  Delaware,  L.  &  W.  R. 
Co.  v.  Pennsylvania,  198  U.  S.  341,  49  L.  Ed.  1077,  25  Sup.  Ct.  669; 
Louisville  &  J.  Ferry  Co.  v.  Kentucky,  188  U.  S\  385,  47  L.  Ed.  519, 
23  Sup.  Ct.  468.  But  it  has  not  been  decided,  and  it  could  not  be  de- 
cided, that  a  state  may  not  tax  its  own  corporations  for  all  their  prop- 
erty within  the  state  during  the  tax  year,  even  if  every  item  of  that 
property  should  be  taken  successively  into  another  state  for  a  day,  a 
week,  or  six  months,  and  then  brought  back.  Using  the  language  of 
domicil,  which  now  so  frequently  is  applied  to  inanimate  things,  the 
state  of  origin  remains  the  permanent  situs  of  the  property,  notwith- 
standing its  occasional  excursions  to  foreign  parts.  Ayer  &  L.  Tie  Co. 
v.  Kentucky,  202  U.  S.  409,  50  L.  Ed.  1082,  26  Sup.  Ct.  679,  6  Ann. 
Cas.  205.  See  also  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199 
U.  S.  194,  208,  209,  50  L-  Ed.  150,  26  Sup.  Ct.  36,  4  Ann.  Cas.  493. 

It  was  suggested  that  this  case  is  but  the  complement  of  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  35  L.  Ed.  613,  3  Inters. 
Com.  Rep.  595,  11  Sup.  Ct.  876,  and  that,  as  there  a  tax  upo/i  a  for- 
eign corporation  was  sustained,  levied  on  such  proportion  of  its  cap- 
ital stock  as  the  miles  of  track  over  which  its  cars  were  run  within 
the  state  bore  to  the  whole  number  of  miles  over  which  its  cars  were 
run,  so  here,  in  the  domicil  of  such  a  corporation  there  should  be  an 
exemption  corresponding  to  the  tax  held  to  be  lawfully  levied  else- 
where. But,  in  that  case,  it  was  found  that  the  "cars  used  in  this  state 
have,  during  all  the  time  for  which  tax  is  charged,  been  running  into, 
through,  and  out  of  the  state."  The  same  cars  were  continuously  re- 
ceiving the  protection  of  the  state,  and,  therefore,  it  was  just  that  the 
state  should  tax  a  proportion  of  them.  Whether,  if  the  same  amount 
of  protection  had  been  received  in  respect  of  constantly  changing  cars, 
the  same  principle  would  have  applied,  was  not  decided,  and  it  is  not 
necessary  to  decide  now.  In  the  present  case,  however,  it  does  not  ap- 
pear that  any  specific  cars  or  any  average  of  cars  was  so  continuously 
in  any  .other  state  as  to  be  taxable  there.  The  absences  relied  on  were 
not  in  the  course  of  travel  upon  fixed  routes,  but  random  excursions 
of  casually  chosen  cars,  determined  by  the  varying  orders  of  partic- 
ular shippers  and  the  arbitrary  convenience  of  other  roads.    Therefore 


Ch.  11)  DOE  PBO«BSS  AKD  EQUALITY:     TAXATION  !34:< 

we  need  not  consider  either  whether  there  is  any  necessary  parallelism 
between  liability  elsewhere  and  immunity  at  home. 
Judgments  affirmed.1 

i  In   American   Refrigerator   Transit   Co.    v.   Hall,    174   TJ.    8.   70,   81-82. 
19    Sup.    Ct    699,    604,   43    L.    Ed.    899   (1899),   Col 

car  company  upon  the  value  of  an  average  of  40  cars  employed  l>y  It  within 
the  state   at  a    time   during   a   certain  mis   was    up- 

held, Shiras,  J.,  saying:    "The  state  statutes  Impose  no  burdens  on  the 
ness  of  the  plaintiff  In  error,  but  contemplate  only  the  assessment  a 
of  taxes  upon  the  property  situated  within  the  state:    and  the  only  q 
is  whether  It  was  competent  to  ascertain  the  number  of  the  ears  I 
ed  to  taxation  by  Inquiring  into  the  average  Dumber  used  within   t 
limits  during  the  period  for  which  the  assessment  was  made.    It  having  been 
settled,  as  we  have  seen,  that  where  a  corporation  of  one  state  brings  Into 
another,  to  use  and  employ,  a  portion  of  its  movable  personal  property,  It  is 
legitimate  for  the  latter  to  impose  upon  such  property  thus  used  and  em- 
ployed its  fair  share  of  the  burdens  of  taxation  Imposed  upon  similar  I 
used  in  like  way  by  Its  own  citizens,  we  think  that  such  a  tax  may  be  prop 
erly  assessed  and  collected,  in  cases  like  the  present,  where  the  specific  and 
Individual  items  of  property  so  used  aud  employed  were  not  continuously  the 
same,  but  were  constantly  changing,  according  to  the  exigencies  of  the 
ness,  and  that  the  tax  may  he  fixed  by  an  appraisement  and  valuation  of  the 
average  amount   of  the  property   thus  habitually   used  and  employed.      Nor 
would  the  fact  that  such  cars  were  employed  as  vehicles  of  transportation  in 
the  Interchange  of  interstate  commerce  render  their  taxation  invalid.     Ma  rye 
v.  Railroad  Co.,  127  U.  S.  123,  8  Sup.  Ct.  1037,  32  L.  Ed.  94  (188S) ;    Pullmans 
Palace-Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct  876,  35  L.  Ed.  613 
(1891)."    [Harlan  and  White,  JJ.,  dissented.] 

Srrus  of  Vessels  for  Taxation. — See  Old  Dominion  S.  S.  Co.  v.  Vir 
ginia,  198  TJ.  S.  299,  25  Sup.  Ct.  686,  49  L.  Ed.  1059,  8  Ann.  Cas.  1100 
(taxable  in  state  where  wholly  employed,  though  registered,  enrolled  and 
owned  elsewhere);  Ayer  &  Lord  Co.  v.  Kentucky,  202  O.  8,  409,  26  Sup.  Ot. 
679,  50  L.  Ed.  1082,  6  Ann.  Cas.  205  (1906)  mot  taxable  at  port  of  call  where 
enrolled,  owner's  domlcil  being  in  another  state);  Southern  Pac.  Co.  v.  Ken 
tueky.  222  D.  S.  63,  32  Sup.  Ct.  13,  5G  L.  Ed.  96  (1911)  (taxable  at  owner's 
doniicil  though  In  fact  never  there,  if  no  permanent  situs  elsewhere)  (dis- 
cussing all  cases),  in  which  Lurton,  J.,  said  (222  U.  S.  73-76,  32  Sup.  Ct.  17, 
IS,  5(i  L.  Ed.  96):  "The  general  rule  has  long  been  settled  as  to  vessels  plying 
between  the  ports  of  different  states,  engaged  in  the  coastwise  trade,  that  the 
domicil  of  the  owner  is  the  situs  of  a  vessel  for  the  purpose  of  taxation, 
wholly  irrespective  of  the  plaee-of  enrolment,  subject,  however,  to 
that  where  a  eessel  engaged  in  Interstate  commerce  has  acquired  an  actual 
situs  in  a  state  other  than  the  place  of  the  domlcil  of  the  owner,  it  may  then- 
be  taxed  because  within  the  jurisdiction  of  the  taxing  authority.  •  •  • 
To  lay  down  a  principle  that  vessel  property  has  no  situs  for  purposes  ■•' 
taxation  other  than  that  of  actual  permanent  location  would  Introduce  ele- 
ments of  uncertainty  concerning  the  situs  of  such  property  not  presented  by 
other  kinds  of  movable  property.  It  is  one  thing  to  find  that  a  movable,  such 
as  a  railway  car,  a  stock  of  merchandise,  or  a  herd  of  cattle,  has  become  a 
part  of  the  permanent  mass  of  property  in  a  particular  state,  and  quite  an- 
other to  attribute  to  a  sea-going  ship  tin  actual  situs  at  any  particular  pott 
into  which  it  goes  for  supplies  or  repairs,  or  for  the  purpose  of  taking  on  or  ' 
discharging  cargo  or  passengers.  A  ship  is  not  intended  to  stay  in  port,  but 
to  navigate  the  Beaa  Its  stay  in  port  is  a  mere  Incident  of  its  voyage,  and  to 
di  mi  nine  that  it  has  acquired  an  actual  situs  in  one  port  rather  than  another 
would  involve  such  grave  uncertainty  as  to  result  often  in  an  entite 
from  taxation.  •  •  •  The  difficulties  attendant  upon  the  taxation  of  In- 
tangible property  elsewhere  than  at  the  doniicil  of  the  owner  have  large 
preserved  the  domicil  of  the  owner  as  the  proper  situs  for  purposes  of  tax- 
ation. The  legality  of  a  tax  is  not  to  be  measured  by  the  benefit  received  bj 
the  taxpayer,  although  equality  of  burdens  be  the  general  standard  sought  to 


544  FUNDAMENTAL    EIGHTS  (Part  2 


BUCK  v.  BEACH. 

(Supreme  Court  of  United  States,  1907.    206  U.  S.  392,  27  Sup.  Ct.  712,  51  U 
Ed.  1106,  11  Ann.  Cas.  732.) 

[Error  to  the  Supreme  Court  of  Indiana.  One  Nash,  a  resident  of 
New  York,  owned  a  large  sum  in  notes  owed  to  him  by  residents  of 
Ohio.  These  notes  were  kept  by  an  agent  in  a  safe  in  Indiana,  except 
when  any  business  was  done  with  regard  to  them,  when  they  were 
sent  to  an  Ohio  agent  for  this  purpose.  No  other  use  was  made  of 
them  in  Indiana.  On  the  death  of  Nash,  an  action  was  brought  against 
Buck,  a  trustee  under  his  will,  by  Beach,  a  county  treasurer  of  In- 
diana, to  collect  back  taxes  in  Indiana  upon  these  notes,  and  a  decision 
in  favor  of  Beach  was  affirmed  by  the  state  Supreme  Court.  Other 
facts  appear  in  the  opinion.] 

Mr.  Justice  Peckham.  *  *  *  The  plaintiff  in  error  asserts  that 
the  simple  physical  presence  of  the  Ohio  notes  in  Indiana,  payable  to, 
and  not  indorsed  by,  the  decedent,  did  not  constitute  taxable  property 
there,  because  such  notes  were  given  and  were  payable  and  were  paid 
in  Ohio,  by  residents  of  Ohio,  and  to  a  nonresident  of  Indiana,  and 
for  loans  made  in  Ohio,  the  capital  represented  by  such  notes  never 
having  been  used  in  business  in  Indiana,  and  he  insists  that  a  tax  upon 
such  capital  or  upon  the  notes  themselves  as  representing  that  capital, 
is  an  illegal  tax,  and  that  to  take  property  in  payment  of  such  an  il- 
legal tax  is  to  take  it  without  due  process  of  law,  and  constitutes  a  vio- 
lation of  the  fourteenth  amendment.     *     *     * 

The  sole  question,  then,  for  this  court,  is  whether  the  mere  presence 
of  the  notes  in  Indiana  constituted  the  debts  of  which  the  notes  were 
the  written  evidence  property  within  the  jurisdiction  of  that  state,  so 
that  such  debts  could  be  therein  taxed.  Generally,  property,  in  order 
to  be  the  subject  of  taxation,  must  be  within  the  jurisdiction  of  the 
power  assuming  to  tax.     *     *     * 

be  attained.  Protection  and  taxation  are  not  necessarily  correlative  obliga- 
tions, nor  precise  equality  of  burden  attainable,  however  desirable.  The  tax- 
ing power  is  one  which  may  be  interfered  with  upon  grounds  of  unjustness 
only  when  there  has  been  such  flagrant  abuse  as  may  be  remedied  by  some 
affirmative  principle  of  constitutional  law.  Take  the  case  in  hand.  The 
Southern  Pacific  Company  is  a  corporation  having  much  extraordinary  power. 
It  only  exists  and  exercises  this  power  by  virtue  of  the  law  of  Kentucky.  By 
the  law  of  its  being  it  resides  in  Kentucky,  and  there  maintains  its  general 
office,  and  there  holds  its  corporate  meetings.  To  say  that  the  protection 
■  which  the  corporation  receives  from  the  state  of  its  origin  and  domicil  affords 
no  basis  for  imposing  taxes  upon  tangibles  which  have  not  acquired  an  actual 
situs  under  some  other  jurisdiction  is  not  supportable  upon  grounds  of  either 
abstract  justice  or  concrete  law.  What  is  the  protection  accorded  these 
vessels  at  any  of  the  ports  to  which  they  temporarily  go  for  purpose  of  busi- 
ness? What  protection  do  they  receive  from  the  state  or  city  of  New  York 
other  than  that  accorded  to  every  other  ship  which  visits  that  port,  foreign 
or  domestic,  for  repairs,  supplies,  or  other  business?"  [The  vessels  were  all 
enrolled  at  New  York,  plied  only  on  the  ocean,  and  perhaps  could  not  have 
reached  Kentucky  by  water.] 


Ch.  11)  DUB   PKOCESS   AND    EQUALITY  :     TAXATION  545 

In  regard  to  tangible  property  the  old  rule  was  mobilia  sequuntur 
personam,  by  which  personal  property  was  supposed  to  follow  the  per- 
son of  its  owner,  and  to  be  subject  to  the  law  of  the  owner's  domicil. 
For  the  purpose  of  taxation,  however,  it  has  long  been  held  that  per- 
sonal property  may  be  separated  from  its  owner,  and  he  may  be  taxed 
on  its  account  at  the  place  where  the  property  is,  although  it  is  not  the 
place  of  his  own  domicil,  and  even  if  he  is  not  a  citizen  or  resident  of 
the  state  which  imposes  the  tax.  Pullman's  Palace  Car  Co.  v.  Penn- 
sylvania, 141  U.  S.  18,  22,  35  L.  Ed.  613,  616,  3  Inters.  Com.  Rep. 
595,  11  Sup.  Ct.  876;  Tappan  v.  Merchants'  Nat.  Bank,  19  Wall.  490, 
22  L.  Ed.  189;  People  ex  rel.  Hoyt  v.  Tax  &  A.  Com'rs,  23  N.  Y.  224, 
240.  The  same  rule  applies  to  intangible  property.  Generally  speak- 
ing, intangible  property  in  the  nature  of  a  debt  may  be  regarded,  for 
the  purposes  of  taxation,  as  situated  at  the  domicil  of  the  creditor  and 
within  the  jurisdiction  of  the  state  where  he  has  such  domicil.  It  is 
property  within  that  state.  Thus  it  has  been  held  that  a  debt  owned 
by  a  citizen  of  one  state  against  a  citizen  of  another  state  and  evi- 
denced by  the  bond  of  the  debtor,  secured  by  a  deed  of  trust  or  mort- 
gage upon  real  estate  situated  in  the  state  where  the  debtor  resides, 
is  properly  taxed  by  the  state  of  the  residence  of  the  creditor,  if  the 
statute  of  that  state  so  provides,  and  such  tax  violates  no  provision  of 
the  federal  Constitution.  Kirtland  v.  Hotchkiss,  100  U.  S.  491,  498, 
25  L.  Ed.  558,  562.1 

Rejecting  the  fiction  of  law  in  regard  to  the  situs  of  personal  prop- 
erty, including  therein  choses  in  action,  the  courts  of  Indiana  have  as- 
serted jurisdiction  by  reason  of  the  statute  of  that  state  over  the 
notes  for  the  purpose  of  taxation  in  Indiana,  founded  upon  the  simple 
fact  that  such  notes  were  placed  in  the  latter  state  by  the  Ohio  agent 
of  the  decedent  under  the  circumstances  above  set  forth.  The  supreme 
court  of  Indiana  refused  to  accept  the  testimony  of  the  agents  that  the 
Ohio  notes  were  sent  to  Lafayette  merely  for  safekeeping,  and  for  cler- 
ical convenience,  and  said  that  "the  court  below  was  authorized  to 
make  the  opposite  deduction  from  the  uniform  course  of  the  business 
in  respect  to  the  keeping  of  said  notes  and  mortgages  and  from  the 
evidence  that  decedent  gave  the  direction  which  established  the  prac- 
tice that  was  pursued  in  that  particular.  More  than  that,  the  evidence 
clearly  warranted  the  conclusion  that  Buck  was  vested  with  a  control 
of  said  notes  and  securities  for  the  purpose  of  enabling  decedent  to 
escape  taxation  in  Ohio.  We  must,  therefore,  conclude,  in  support 
of  the  general  finding,  that  the  court  below  found  that  in  conducting 
the  business  of  the  Ohio  agency  the  decedent  separated  from  said  busi- 
ness the  possession  of  said  notes  and  mortgages  and  vested  the  right 
to  such  possession  in  said  Buck.     There  was  no  return  for  ta 

iBut  see  Commonwealth  v.  West  India  Oil  <'".  138  Ky.  828,  129  P.  W. 
301,  •".(■;  I*  R.  A.  (X.  s.i  295  (1910)  (credits  oi  ■'■'•■ration  non-taxable, 

where  all  business  and  property  outside  of  taxlug  state). 
II A I  i.  OONST.Ii. — u.j 


546  FUNDAMENTAL    RIGHTS  (Part    2 

of  said  notes,  or  of  the  investments  represented  by  them,  either  in  Ohio 
or  New  York  during  the  lifetime  of  the  decedent." 

Taking  this  to  be  a  finding  of  fact  by  the  supreme  court  of  the  state, 
it  is  plain  that  the  action  of  the  decedent  in  sending  the  Ohio  notes 
into  the  state  of  Indiana  for  the  purpose  stated  (whether  successful  or 
not)  was  improper  and  unjustifiable.  The  record  does  show,  however, 
that  the  executors  subsequently  paid  the  Ohio  authorities  over  $40,- 
000  for  taxes  on  the  moneys  invested  in  Ohio. 

But  an  attempt  to  escape  proper  taxation  in  Ohio  does  not  confer 
jurisdiction  to  tax  property  asserted  to  be  in  Indiana  which  really  lies 
outside  and  beyond  the  jurisdiction  of  that  state.  Jurisdiction  of  the 
state  of  Indiana  to  tax  is  not  conferred  or  strengthened  by  reason  of 
the  motive  which  may  have  prompted  the  decedent  to  send  into  the 
state  of  Indiana  these  evidences  of  debts  owing  him  by  residents  of 
Ohio.  The  question  still  remains:  Was  there  any  property  within 
the  jurisdiction  of  the  state  of  Indiana,  so  as  to  permit  that  state  to  tax 
it,  simply  because  of  the  presence  of  the  Ohio  notes  in  that  state?  It 
was  not  the  value  of  the  paper  as  a  tangible  thing,  on  which  these 
promises  to  pay  the  debts  existing  in  Ohio  were  written,  that  was  tax- 
ed by  that  state.  The  property  really  taxed  was  the  debt  itself,  as  each 
separate  note  was  taxed  at  the  full  amount  of  the  debt  named  therein 
or  due  thereon.  And  jurisdiction  over  these  debts  for  the  purpose  of 
taxation  was  asserted  and  exercised  solely  by  reason  of  the  physical 
presence  in  Indiana  of  the  notes  themselves,  although  they  were  only 
written  evidence  of  the  existence  of  the  debts  which  were  in  fact  there- 
by taxed. 

A  distinction  has  been  sometimes  taken  between  bonds  and  other 
specialty  debts  belonging  to  the  deceased,  on  the  one  hand,  and  sim- 
ple contract  debts  on  the  other,  for  the  purpose  of  probate  jurisdic- 
tion, and  the  probate  court  where  the  bonds  are  found  has  been  held 
to  have  jurisdiction  to  grant  probate,  while,  in  the  other  class  of  debts 
(including  promissory  notes),  jurisdiction  has  attached  to  the  probate 
court  where  the  debtor  resided  at  the  death  of  the  creditor.  1  Wms. 
Ex'rs  (6th  Am.  from  7th  English  Ed.)  bottom  paging  288,  290,  note 
(h) ;  Wyman  v.  Halstead  (Wyman  v.  United  States)  109  U.  S.  654, 
27  L.  Ed.  1068,  3  Sup.  Ct.  417.  See  also  Beers  v.  Shannon,  73  N.  Y 
292,  299 ;   Owen  v.  Miller,  10  Ohio  St.  136,  75  Am.  Dec.  502. 

Under  such  rule,  the  debts  here  in  question  were  not  property  with- 
in the  state  of  Indiana,  nor  were  the  promissory  notes  themselves, 
which  were  only  evidence  of  such  debts.  The  rule  giving  jurisdiction 
where  the  specialty  may  be  found  has  no  application  to  a  promissory 
note.    Assuming  such  a  rule,  the  case  here  is  not  covered  by  it. 

Questions  of  the  validity  of  state  taxation  with  reference  to  the  fed- 
eral Constitution  have  become  quite  frequent  in  this  court  within  the 
last  few  years.  The  case  of  Metropolitan  L.  Ins.  Co.  v.  New  Orleans, 
205  U.  S.  395,  51  L.  Ed.  853,  27  Sup.  Ct.  499,  is  the  latest.  The  ques- 
tion there  was  in  relation  to  the  validity  of  certain  taxes  assessed  in 


Ch.  11)  DUE    PBOOB88   AND    EQUALITY!     TAXATION  017 

the  city  of  New  Orleans  against  the  Metropolitan  Life  Insurance  Com- 
pany by  reason  of  the  company  doing  business  in  lending  money  to 
the  holders  of  its  policies  in  New  Orleans.  The  domicil  of  the  com- 
pany was  in  the  city  of  New  York,  and  the  evidences  of  the  credits, 
in  the  form  of  notes,  were  kept  most  of  the  time  in  New  York,  being 
sent  to  New  Orleans  when  due.  The  tax  was,  under  the  laws  of  the 
state  of  Louisiana,  levied  on  the  "credits,  money  loaned,  bills  receiv- 
able," etc.,  of  the  plaintiff  in  error,  and  its  amount  was  ascertained  by 
computing  the  sum  of  the  face  value  of  all  the  notes  held  by  the  com- 
pany in  New  Orleans  at  the  time  of  the  assessment.  The  assessment 
was  made  under  an  act  which  provided  that  "bills  receivable,  obliga- 
tions, or  credits  arising  from  the  business  done  in  this  state,"  shall  be 
assessable  at  the  business  domicil  of  the  nonresident,  the  assessment  be- 
ing made  in  such  a  way  under  the  statute  as  would  "represent  in  their 
aggregate  a  fair  average  on  the  capital,  both  cash  and  credits,  employed 
in  the  business  of  the  party  or  parties  to  be  assessed."  The  tax  was 
sustained  because,  as  is  stated  in  the  opinion  of  the  court,  which  was 
delivered  by  Mr.  Justice  Moody,  "the  insurance  company  chose  to  en- 
ter into  the  business  of  lending  money  within  the  state  of  Louisiana, 
and  employed  a  local  agent  to  conduct  that  business.  It  was  conducted 
under  the  laws  of  the  state.  The  state  undertook  to  tax  the  capital  cm- 
ployed  in  the  business  precisely  as  it  taxed  the  capital  of  its  own  cit- 
izens in  like  situation.  For  the  purpose  of  arriving  at  the  amount  of 
capital  actually  employed,  it  caused  the  credits  arising  out  of  the  busi- 
ness to  be  assessed.  We  think  the  state  had  the  power  to  do  this,  and 
that  the  foreigner  doing  business  cannot  escape  taxation  upon  his  cap- 
ital by  removing  temporarily  from  the  state  evidences  of  credits  in 
the  form  of  notes.  Under  such  circumstances,  they  have  a  taxable 
situs  in  the  state  of  their  origin."  The  temporary  absence  of  the  notes 
given  for  the  loans  from  the  state  (being  in  New  York,  the  domicil 
of  the  company)  except  when  they  became  due  was  regarded  as  unim- 
portant. The  law,  it  was  said,  regarded  the  place  of  their  origin  as 
their  true  home,  to  which  they  would  return  to  be  paid,  and  their  tem- 
porary absence,  however  long  continued,  was  left  out  of  account.2 

The  prior  cases  of  New  Orleans  v.  Stempel,  175  U.  S.  309,  44  L. 
Ed.  174,  20  Sup.  Ct.  110,  and  State  Assessors  v.  Comptoir  National 
D'Escompte,  191  U.  S.  388,  48  L.  Ed.  232.  24  Sup.  Ct.  109,  were  also 
cited.  In  the  first  there  was  a  tax  on  credits,  evidenced  by  notes  (se- 
cured by  mortgages  on  real  estate  in  New  Orleans)  which  the  owner, 

a  Aceord:  Liverpool,  etc.,  Co.  v.  Board  of  Assessors,  221  U.  S.  340.  31  Sup. 
Ct  550,  55  L.  Ed.  782  (1911)  (taxation  of  amounts  due  on  open  accounts  for 
premiums  from  policy-holders  In  stair  no  written  evidence  of  debt);  Orient 
[ns.  Co.  v.  Board  of.  Assessors,  221  V.  s.  358,  31  Sup.  Ct  554,  55  L.  Ed.  768 
(1911)  (same,  where  uncollected  premiums  charged  to  agents  of  company). 
Compare  Board  of  Assessors  v.  New  York  i.ii'e  ins.  Co..  'Jit;  r.  s.  m?.  SO  Sup. 
Ct  385,  54  L.  Ed.  697  (1910)  (so-culled  "policy  loans,"  debited  against  reserve 
value  of  life  Insurance  policies,  not  taxable,  because  never  realty  creating  a 
debt,  but  only  a  set-off). 


548  FUNDAMENTAL    RIGHTS  (Part  2 

a  nonresident,  who  had  inherited  there,  left  in  Louisiana  in  the  pos- 
session of  an  agent,  who  collected  the  principal  and  interest  as  they 
became  due.  The  capital  of  the  owner  was  thus  invested  in  the  state, 
and  was  thereby  subject  to  taxation  there,  and  the  notes  did  not  alter 
the  nature  of  the  debt,  but  were  merely  evidence  of  it.  In  the  latter 
case  a  foreign  banking  company  did  business  in  New  Orleans,  and 
through  an  agent  lent  money  which  was  evidenced  by  checks  drawn 
upon  the  agent,  treated  as  overdrafts  and  secured  by  collateral,  the 
checks  and  collateral  remaining  in  the  hands  of  the  agent  until  the 
transactions  were  closed.  The  credits  thus  evidenced  were  held  tax- 
able in  Louisiana.  The  corporation  was  held  to  be  doing  business  and 
had  capital  employed  in  the  city  of  New  Orleans,  to  the  extent  of  the 
assessment  made  upon  it  therein. 

In  Bristol  v.  Washington  County,  177  U.  S.  133,  44  L.  Ed.  701,  20 
Sup.  Ct.  585,  the  assessment  was  upheld  because  it  appeared  that  the 
person  assessed  was  doing  business  in  Minnesota  through  an  agent,  in 
lending  money  in  that  state,  which  was  secured  by  mortgages  on  real 
property  therein.  The  amount  of  money  thus  invested  in  that  state 
was  held  to  be  properly  taxable  therein. 

In  Savings  &  L.  Soc.  v.  Multnomah  County,  169  U.  S.  421,  42  L. 
Ed.  803,  18  Sup.  Ct.  392,  the  assessment  was  upon  the  real  estate  mort- 
gaged, the  interest  of  the  mortgagee  therein  being  taxed  to  him  and 
the  rest  to  the  mortgagor,  and  it  was  held  by  this  court  that  the  fact 
that  the  mortgage  was  owned  by  a  citizen  of  another  state,  and  in  his 
possession  outside  of  the  state  of  Oregon,  where  the  real  estate  was 
situated,  did  not  violate  the  fourteenth  amendment.  It  was  stated  that 
"the  state  may  tax  real  estate  mortgaged,  as  it  may  all  other  property 
within  its  jurisdiction,  at  its  full  value.  It  may  do  this,  either  by  tax- 
ing the  whole  to  the  mortgagor,  or  by  taxing  to  the  mortgagee  the  in- 
terest therein  represented  by  the  mortgage,  and  to  the  mortgagor  the 
remaining  interest  in  the  land.  And  it  may,  for  the  purpose  of  taxa- 
tion, either  treat  the  mortgage  debt  as  personal  property,  to  be  taxed 
like  other  choses  in  action,  to  the  creditor  at  his  domicil,  or  treat  the 
mortgagee's  interest  in  the  land  as  real  estate,  to  be  taxed  to  him,  like 
other  real  property,  at  its  situs."  Under  the  statute  of  Oregon  the  as- 
sessment was  made  against  the  mortgagee  upon  his  interest  in  the  land 
as  real  estate. 

There  are  no  cases  in  this  court  where  an  assessment  such  as  the 
one  before  us  has  been  involved.  We  have  not  had  a  case  where  nei- 
ther the  parry  assessed  nor  the  debtor  was  a  resident  of  or  present  in 
the  state  where  the  tax  was  imposed,  and  where  no  business  was  done 
therein  by  the  owner  of  the  note  or  his  agent  relating  in  any  way  to 
the  capital  evidenced  by  the  notes  assessed  for  taxation.  We  cannot 
assent  to  the  doctrine  that  the  mere  presence  of  evidences  of  debt,  such 
as  these  notes,  under  the  circumstances  already  stated,  amounts  to  the 
presence  of  property  within  the  state  for  taxation.  That  promissory 
notes  may  be  the  subject  of  larceny,  as  stated  in  48  N.  Y.,  cited  below, 


Ch.ll)  DOB  PBOCB8S  AHD  EQUALITY:     TAXATION  54'J 

does  not  make  the  debts  evidenced  by  them  property  liable  to  taxation 
within  the  state,  where  there  is  no  other  fact  than  the  presence  of  the 
notes  upon  which  to  base  the  claim. 

In  People  ex  rel.  VVestbrook  v.  Ogdensburgh,  4S  N.  Y.  390,  it  was 
held  that  money  due  upon  a  contract  for  the  sale  of  land  was  per- 
sonal property,  and  that  where  such  contract  belonging  to  a  nonresi- 
dent was  in  the  hands  of  a  resident  agent,  it  might,  for  the  purposes 
of  municipal  taxation,  be  assessed  to  the  agent  and  taxed.  In  the  opin- 
ion Judge  Earl  said :  "The  debts  due  upon  these  contracts  are  per- 
sonal estate,  the  same  as  if  they  were  due  upon  notes  or  bonds ;  and 
such  personal  estate  may  be  said  to  exist  where  the  obligations  for 
payment  are  held."  The  contracts  spoken  of  in  that  case  were  con- 
tracts for  the  sale  of  land  by  a  nonresident  owner  to  persons  within 
the  county  where  the  lands  were  situated.  The  debtors  resided  with- 
in the  state,  and  the  agent  of  the  nonresident  for  the  sale  of  the  land 
resided  in  the  state  and  had  possession  of  the  contracts.  A  different 
case  as  to  its  facts  from  the  one  before  us. 

In  People  ex  rel.  Jefferson  v.  Smith,  88  N.  Y.  576,  jurisdiction  to 
tax  in  New  York  was  denied  under  the  statute  of  that  state,  because 
the  personal  estate  was  not  within  the  state,  although  the  same  princi- 
ple (page  581)  as  contained  in  48  N.  Y.,  supra,  was  asserted. 

If  payment  of  these  notes  had  to  be  enforced  it  would  not  be  to  the 
courts  of  Indiana  that  the  owner  would  resort.  He  would  have  to  go 
to  Ohio  to  find  the  debtor  as  well  as  the  lands  mortgaged  as  security 
for  the  payment  of  the  notes.  It  is  true  that  if  the  notes  were  stolen 
while  in  Indiana,  and  they  were  therein  a  subject  of  larceny,  the  In- 
diana courts  would  have  to  be  resorted  to  for  the  punishment  of  the 
thieves.  That  would  be  in  vindication  of  the  general  criminal  justice 
of  the  state.  This  consideration,  however,  is  not  near  enough  to  the 
question  involved  to  cause  us  to  change  our  views  of  the  law  in  regard 
to  the  taxation  of  property,  and  make  thst  property  within  the  state 
which  we  think  is  clearly  outside  it. 

Although  public  securities,  consisting  of  state  bonds  and  bonds  of 
municipal  bodies,  and  circulating  notes  of  banking  institutions,  have 
sometimes  been  treated  as  property  in  the  place  where  they  were  found, 
though  removed  from  the  domicil  of  the  owner  (State  Tax  on  For- 
eign-Held Bonds,  15  Wall.  300,  324,  21  L.  Ed.  179,  1S8)  *  it  has  not 
been  held  in  this  court  that  simple  contract  debts,  though  evidenced  by 
promissory  notes,  can,  under  the  facts  herein  stated,  be  treated  as 
property,  and  taxed  in  the  state  where  the  notes  may  be  found. 

As  is  said  in  the  above-cited  case  (at  page  320,  L.  Ed.  at  pagi 
"All  the  property  there  can  be  in  the  nature  of  things  in  debts  of  cor- 

»  In  this  case  it  was  held  that  Pennsylvania  could  not  validly  Impose  n  tax 
ui'"ii  the  payment  of  interest  due  from  a  railway  corporation  to  Don  I 
holders  of  us  bonds,  secured  by  a  mortgage  upon  the  entire  railroad,  part 
of  which  was  in  Pennsylvania.    Compare  Murray  v.  Charleston,  DO  I'. 
24  L.  Bd.  7G0  (1877). 


550  FUNDAMENTAL    RIGHTS  (Part  2 

porations  belongs  to  the  creditors,  to  whom  they  are  payable,  and  fol- 
lows their  domieil,  wherever  that  may  be.  Their  debts  can  have  no  lo- 
cality separate  from  the  parties  to  whom  they  are  due.  This  principle 
might  be  stated  in  many  different  ways,  and  supported  by  citations 
from  numerous  adjudications,  but  no  number  of  authorities  and  no 
forms  of  expressions  could  add  anything  to  its  obvious  truth,  which  is 
recognized  upon  its  simple  statement." 

The  cases  cited  in  Metropolitan  L.  Ins.  Co.  Case,  supra,  show  that 
this  rule  is  enlarged  to  the  extent  of  holding  that  capital  evidenced  by 
written  instruments,  invested  in  a  state,  may  be  taxed  by  the  authori- 
ties of  the  state,  although  their  owner  is  a  nonresident  and  such  evi- 
dences of  debt  are  temporarily  outside  of  the  state  when  the  assess- 
ment is  made.  Although  the  language  of  the  opinion  in  the  case  of 
State  Tax  on  Foreign-Held  Bonds,  supra,  has  been  somewhat  restrict- 
ed so  far  as  regards  the  character  of  the  interest  of  the  mortgagee  in 
the  land  mortgaged  (Savings  &  L,.  Soc.  v.  Multnomah  County,  169  U. 
S.  421,  428,  42  L.  Ed.  803,  805,  18  Sup.  Ct.  392),  the  principle  upon 
which  the  case  itself  was  decided  has  not  been  otherwise  shaken  by 
the  later  cases  (New  Orleans  v.  Stempel,  175  U.  S.  309,  319,  320,  44 
L.  Ed.  174,  180,  20  Sup.  Ct.  110;  Blackstone  v.  Miller,  1S8  U.  S.  1S9, 
206,  47  L.  Ed.  439,  445,  23  Sup.  Ct.  277).  In  the  Stempel  Case,  su- 
pra, the  notes,  as  we  have  said,  represented  the  capital  of  the  owner 
invested  in  the  state,  and  the  capital  was  taxed,  although  the  owner 
was  a  nonresident. 

Cases  arising  under  collateral  inheritance  tax  or  succession  tax  acts 
have  been  cited  as  affording  foundation  for  the  right  to  tax  as  here- 
in asserted.  The  foundation  upon  which  such  acts  rest  is  different 
from  that  which  exists  where  the  assessment  is  levied  upon  property. 
The  succession  or  inheritance  tax  is  not  a  tax  on  property,  as  has  been 
frequently  held  by  this  court  (Knowlton  v.  Moore,  178  U.  S.  41,  44 
L.  Ed.  969,  20  Sup.  Ct.  747,  and  Blackstone  v.  Miller,  188  U.  S.  189, 
47  L.  Ed.  439,  23  Sup.  Ct.  277),  and  therefore  the  decisions  arising 
under  such  inheritance  tax  cases  are  not  in  point. 

Our  decision  in  this  case  has  no  tendency  to  aid  the  owner  of  tax- 
able property  in  any  effort  to  avoid  or  evade  proper  and  legitimate 
taxation.  The  presence  of  the  notes  in  Indiana  formed  no  bar  to  the 
right,  if  it  otherwise  existed,  of  taxing  the  debts  evidenced  by  the 
notes  in  Ohio.  It  does,  however,  tend  to  prevent  the  taxation  in  one 
state  of  property  in  the  shape  of  debts  not  existing  there,  and  which, 
if  so  taxed,  would  make  double  taxation  almost  sure,  which  is  certainly 
not  to  be  desired,  and  ought,  wherever  possible,  to  be  prevented. 
*     *     * 

Judgment  reversed.* 

[Day,  J.,  gave  a  dissenting  opinion,  in  which  Brewer,  J.,  concur- 
red.] 

*  Warehouse  receipts  for  whiskey  stored  outside  of  Kentucky  cannot  be 
taxed  by  Kentucky  at  the  full  value  of  the  whiskey,  at  least  unless  the 


Ch.  11)  DOE  PBOCBSB  AMD  EQUALITY!    taxation  651 


ADAMS  EXPRESS  CO.  v.  OHIO  STATE  AUDITOR. 

(Supreme  Court  of  United  States,  1897.     166  I'.  S.  ISO,  17  Sup.  Ct  00$,  41  L. 
Ed.  005.) 

[Appeal  from  federal  Circuit  Court  of  Appeals  for  the  Sixth  Cir- 
cuit. Ohio,  Indiana,  and  Kentucky  adopted  laws  taxing  express 
companies,  which  were  interpreted  by  the  courts  of  those  states  to  au- 
thorize the  taxation  at  the  true  value  in  money  of  the  entire  property, 
tangible  and  intangible,  of  such  companies  within  those  states  respec- 
tively. Such  valuation  was  obtained  by  a  consideration  of  the  re- 
ceipts, mileage,  and  capital  stock  of  such  companies,  and  bore  the 
same  proportion  to  the  value  of  the  whole  capital  stock  of  each  com- 
pany that  the  gross  receipts  and  mileage  within  each  state  bore  to  the 
total  receipts  and  mileage  of  each  company.  The  express  companies 
sought  injunctions  against  the  collection  of  those  taxes,  and  their  bills 
in  the  federal  courts  were  dismissed  on  demurrer.  Appeals  to  the 
Supreme  Court  were  also  decided  adversely,1  and  petitions  for  a  re- 
hearing were  refused  in  the  following  opinion :] 

Mr.  Justice  BREWER.  We  have  had  before  us  at  the  present  term 
several  cases  involving  the  taxation  of  the  property  of  express  com- 
panies, some  coming  from  Ohio,  some  from  Indiana,  and  one  from 
Kentucky;  also  a  case  from  the  latter  state  involving  the  taxation  of 
the  property  of  the  Henderson  Bridge  Company.1  The  Ohio  and  In- 
diana cases  were  decided  on  the  1st  of  February.  165  U.  S.  194,  17 
Sup.  Ct.  305,  41  L.  Ed.  6S3.  Petitions  for  rehearing  of  those  cases 
have  been  presented,  and  are  now  before  us  for  consideration. 

The  importance  of  the  questions  involved,  the  close  division  in  this 
court  upon  them,  and  the  earnestness  of  counsel  for  the  express  com- 
panies in  their  original  arguments,  as  well  as  in  their  briefs  on  this 
application,  lead  those  of  us  who  concurred  in  the  judgments  to  add 
a  few  observations  to  what  has  hitherto  been  said. 

Again  and  again  has  this  court  affirmed  the  proposition  that  no 
state  can  interfere  with  interstate  commerce  through  the  imposition 
of  a  tax,  by  whatever  name  called,  which  is  in  effect  a  tax  for  the 

transfer  of  the  receipt  is  necessary  to  pass  title  to  the  whiskey.  "The 
receipt  »  »  •  would  be  property  of  some  small  value  distinct  from  thai 
to  which  It  save  access.  But  it  wonld  not  be  a  counterpart,  doubling  Ull- 
riches of  the  owner  of  the  goods."— Selllger  v.  Kentucky,  213  V.  s.  200,  206, 
29  sup.  Ct.  449,  150,  53  L.  Ed.  761  (1909),  As  to  the  possible  taxation  of  stock 
certificates  of  foreign  corporations,  see  People  ex  rel.  Hatch  v.  Reardou,  184 
N.  Y.  431,  451,  77  N.  E.  970,  8  L.  R.  A.  (X.  S.)  oil,  112  Am.  St.  Kep.  CCS.  8 
Ann.  Cas,  515  (1000). 

i  Adams  Exp.  Co.  v.   Ohio,  105  U.  S.   101,   17  Sup.  Ct.  305.  41  L.   | 
(1897);     American    Exp.   Co.   v.    Indiana,    165    i      S    255,    '7    Sup    I 
41  L.  Ed.  707  (1897);    Adams  Exp.  Co.  v   Kentucky,  166  U.  S.  171,  17  Sap.  Ct 
527,  41  L.  Ed.  000  (1S07).    White,  Field,  Ilurlau,  and  Brown,  JJ.,  dissented  In 
each  case. 

2  Henderson  Bridge  Co.  v.  Kentucky,  100  U.  S.  130,  17  Sup.  Ct  532.  41  L. 
Ed.   953  (lt>07). 


552  FUNDAMENTAL    RIGHTS  (Part  2 

privilege  of  transacting  such  commerce;  and  it  has  as  often  affirmed 
that  such  restriction  upon  the  power  of  a  state  to  interfere  with  in- 
terstate commerce  does  not  in  the  least  degree  abridge  the  right  of 
a  state  to  tax  at  their  full  value  all  the  instrumentalities  used  for 
such  commerce. 

Now,  the  taxes  imposed  upon  express  companies  by  the  statutes  of 
the  three  states  of  Ohio,  Indiana,  and  Kentucky  are  certainly  not  in 
terms  "privilege  taxes."  They  purport  to  be  upon  the  property  of 
the  companies.  They  are  therefore  not,  in  form  at  least,  subject  to 
any  of  the  denunciations  against  privilege  taxes  which  have  so  often 
come  from  this  court.  The  statutes  grant  no  privilege  of  doing  an 
express  business,  charge  nothing  for  doing  such  a  business,  and  con- 
template only  the  assessment  and  levy  of  taxes  upon  the  property  of 
the  express  companies  situated  within  the  respective  states;  and  the 
only  really  substantial  question  is  whether,  properly  understood  and 
administered,  they  subject  to  the  taxing  power  of  the  state  property 
not  within  its  territorial  limits.  The  burden  of  the  contention  of  the 
express  companies  is  that  they  have  within  the  limits  of  the  state  cer- 
tain tangible  property,  such  as  horses,  wagons,  etc. ;  that  that  tangible 
property  is  their  only  property  within  the  state;  that  it  must  be 
valued  as  other  like  property,  and  upon  such  valuation  alone  can  taxes 
be  assessed  and  levied  against  them. 

But  this  contention  practically  ignores  the  existence  of  intangible 
property,  or,  at  least,  denies  its  liability  for  taxation.  In  the  complex 
civilization  of  to-day,  a  large  portion  of  the  wealth  of  a  community 
consists  in  intangible  property,  and  there  is  nothing  in  the  nature  of 
things  or  in  the  limitations  of  the  federal  Constitution  which  restrains 
a  state  from  taxing  at  its  real  value  such  intangible  property.  Take 
the  simplest  illustration :  B.,  a  solvent  man,  purchases  from  A.  cer- 
tain property,  and  gives  to  A.  his  promise  to  pay,  say,  $100,000 
therefor.  Such  promise  may  or  may  not  be  evidenced  by  a  note  or 
other  written  instrument.  The  property  conveyed  to  B.  may  or  may 
not  be  of  the  value  of  $100,000.  If  there  be  nothing  in  the  way  of 
fraud  or  misrepresentation  to  invalidate  that  transaction,  there  exists 
a  legal  promise  on  the  part  of  B.  to  pay  A.  $100,000.  That  promise 
is  a  part  of  A.'s  property.  It  is  something  of  value,  something  on 
which  he  will  receive  cash,  and  which  he  can  sell  in  the  markets  of 
the  community  for  cash.  It  is  as  certainly  property,  and  property  of 
value,  as  if  it  were  a  building  or  a  steamboat,  and  is  as  justly  sub- 
ject to  taxation.  It  matters  not  in  what  this  intangible  property  con- 
sists,— whether  privileges,  corporate  franchises,  contracts,  or  obliga- 
tions. It  is  enough  that  it  is  property  which,  though  intangible,  exists, 
which  has  value,  produces  income,  and  passes  current  in  the  markets  of 
the  world.  To  ignore  this  intangible  property,  or  to  hold  that  it  is  not 
subject  to  taxation  at  its  accepted  value,  is  to  eliminate  from  the  reach 
of  the  taxing  power  a  large  portion  of  the  wealth  of  the  country. 
Now,  whenever  separate  articles  of  tangible  property  are  joined  to- 


Ch.ll)  DUB  PROCESS  and  equality:    taxation 

gcther,  not  simply  by  a  unity  of  ownership,  but  in  a  unity  of  use, 
there  is  not  infrequently  developed  a  property,  intangible  though  it 
may  be,  which  in  value  exceeds  the  aggregate  of  the  value  of  the 
separate  pieces  of  tangible  property.  Upon  what  theory  of  substan- 
tial right  can  it  be  adjudged  that  the  value  of  this  intangible  property 
must  be  excluded  from  the  tax  lists,  and  the  only  property  placed 
thereon  be  the  separate  pieces  of  tangible  property? 

The  first  question  to  be  considered,  therefore,  is  whether  there 
is  belonging  to  these  express  companies  intangible  property, — prop- 
erty differing  from  the  tangible  property ;  a  property  created  by 
either  the  conbined  use  or  the  manner  of  use  of  the  separate  ar- 
ticles of  tangible  property,  or  the  grant  or  acquisition  of  franchises 
or  privileges,  or  all  together.  To  say  that  there  can  be  no  such  in- 
tangible property,  that  it  is  something  of  no  value,  is  to  insult  the 
common  intelligence  of  every  man.  Take  the  Henderson  Bridge  Com- 
pany's property,  the  validity  of  the  taxation  of  which  is  before  us  in 
another  case.  The  facts  disclosed  in  that  record  show  that  the  bridge 
company  owns  a  bridge  over  the  Ohio,  between  the  city  of  Hender- 
son, in  Kentucky,  and  the  Indiana  shore,  and  also  10  miles  of  railroad 
in  Indiana;  that  that  tangible  property — that  is,  the  bridge  and 
railroad  track — was  assessed  in  the  states  of  Indiana  and  Kentucky 
at  $1,277,695.54,  such,  therefore,  being  the  adjudged  value  of  the 
tangible  property.  Thus,  the  physical  property  could  presumably  be 
reproduced  by  an  expenditure  of  that  sum,  and  if  placed  elsewhere 
on  the  Ohio  river,  and  without  its  connections  or  the  business  pass- 
ing over  it  or  the  franchises  connected  with  it,  might  not  of  itself  be 
worth  any  more.  As  mere  bridge  and  tracks,  that  was  its  value.  If 
the  state's  power  of  taxation  is  limited  to  the  tangible  property,  the 
company  should  only  be  taxed  in  the  two  states  for  that  sum ;  but  it 
also  appears  that  it,  as  a  corporation,  had  issued  bonds  to  the  amount 
of  $2,000,000.  upon  which  it  was  payin::  interest ;  that  it  had  a  cap- 
ital stock  of  $1,000,000;  and  that  the  shares  of  that  stock  were  worth 
not  less  than  $90  per  share  in  the  market.  The  owners,  therefore, 
of  that  stock,  had  property  which,  for  purposes  of  income  and  pur- 
poses of  sale,  was  worth  $2,900,000. 3  What  gives  this  excess  of 
value?  Obviously,  the  franchises,  the  privileges  the  company  pos- 
sesses,— its  intangible  property. 

Now,  it  is  a  cardinal  rule,  which  should  never  be  forgotten,  that 
whatever  property  is  worth  for  the  purposes  of  income  and  sale 
it  is  also  worth  for  purposes  of  taxation.  Suppose  such  a  bridge 
were  entirely  within  the  territorial  limits  of  a  state,  and  it  appeared 
that  the  bridge  itself  cost  only  $1,277,000.  could  be  reproduc 
that  sum,  and  yet  it  was  so  situated  with  reference  to  railroad  or 

»  Adding  the  market  value  of  Its  shares  of  stock  to  the  market  value  of  Its 
bonded  debl  is  :\  valid  method  of  ascertaining  the  total  value  of  :i 
linns  assets  or  capital  stuck.    State  Railroad  Tax  Cases,  92  V.  S.  575,  -J  L. 
Ed.  063  (1876). 


554  FUNDAMENTAL    RIGHTS  (Part  2 

other  connections,  so  used  by  the  traveling  public,  that  it  was  worth 
to  .the  holders  of  it,  in  the  matter  of  income,  $2,900,000,  could  be  sold 
in  the  markets  for  that  sum,  was  therefore  in  the  eyes  of  practical 
business  men  of  the  value  of  $2,900,000,  can  there  be  any  doubt  of 
the  state's  power  to  assess  it  at  that  sum,  and  to  collect  taxes  from 
it  upon  that  basis  of  value?  Substance  of  right  demands  that,  what- 
ever be  the  real  value  of  any  property,  that  value  may  be  accepted 
by  the  state  for  purposes  of  taxation,  and  this  ought  not  to  be  evaded 
by  any  mere  confusion  of  words.  Suppose  an  express  company  is  in- 
corporated to  transact  business  within  the  limits  of  a  state,  and  does 
business  only  within  such  limits,  and,  for  the  purpose  of  transacting 
that  business,  purchases  and  holds  a  few  thousands  of  dollars'  worth 
of  horses  and  wagons,  and  yet  it  so  meets  the  wants  of  the  people 
dwelling  in  that  state,  so  uses  the  tangible  property  which  it  possesses, 
so  transacts  business  therein,  that  its  stock  becomes  in  the  markets 
of  the  state  of  the  actual  cash  value  of  hundreds  of  thousands  of  dol- 
lars. To  the  owners  thereof,  for  the  purposes  of  income  and  sale, 
the  corporate  property  is  worth  hundreds  of  thousands  of  dollars. 
Does  substance  of  right  require  that  it  shall  pay  taxes  only  upon  the 
thousands  of  dollars  of  tangible  property  which  it  possesses?  Ac- 
cumulated wealth  will  laugh  at  the  crudity  of  taxing  laws  which  reach 
only  the  one,  and  ignore  the  other ;  while  they  who  own  tangible 
property,  not  organized  into  a  single  producing  plant,  will  feel  the  in- 
justice of  a  system  which  so  misplaces  the  burden  of  taxation. 

A  distinction  must  be  noticed  between  the  construction  of  a  state 
law  and  the  power  of  a  state.  If  a  statute,  properly  construed,  con- 
templates only  the  taxation  of  horses  and  wagons,  then  those  be- 
longing to  an  express  company  can  be  taxed  at  no  higher  value  than 
those  belonging  to  a  farmer.  But,  if  the  state  comprehends  all 
property  in  its  scheme  of  taxation,  then  the  good  will  of  an  organized 
and  established  industry  must  be  recognized  as  a  thing  of  value.  The 
capital  stock  of  a  corporation  and  the  shares  in  a  joint-stock  company 
represent  not  only  the  tangible  property,  but  also  the  intangible,  in- 
cluding therein  all  corporate  franchises  and  all  contracts,  privileges, 
and  good  will  of  the  concern. 

Now,  the  same  reality  of  the  value  of  its  intangible  property  exists 
when  a  company  does  not  confine  its  work  to  the  limits  of  a  single 
state.  Take,  for  instance,  the  Adams  Express  Company.  According 
to  the  return  filed  by  it  with  the  auditor  of  the  state  of  Ohio,  as 
shown  in  the  records  of  these  cases,  its  number  of  shares  was  120,000, 
the  market  value  of  each  $140  to  $150.  Taking  the  smaller  sum  gives 
the  value  of  the  company's  property  taken  as  an  entirety  as  $16,800,- 
000.  In  other  words,  it  is  worth  that  for  the  purposes  of  income  to 
the  holders  of  the  stock,  and  for  purposes  of  sale  in  the  markets  of 
the  land.  But  in  the  same  return  it  shows  that  the  value  of  its  real 
estate  in  Ohio  was  only  $25,170,  of  real  estate  owned  outside  of 
Ohio  $3,005,157.52,  or  a  total  of  $3,030,327.52;  the  value  of  its  per- 


Ch.  11)  DUE   rilOCKSS  AMi    EQUALITX:     TAXATION  B58 

sonal  property  in  Oliio  $42,065,  of  personal  property  outside  of  Ohio 
$1,117,426.05,  or  a  total  of  $1,159,491.05, — making  a  total  valuation 
of  its  tangible  property  $4,189,818.57;  and  upon  that  basis  it  insists 
that  taxes  shall  be  levied.  But  what  a  mockery  of  substantial  justice 
it  would  be  for  a  corporation  whose  property  is  worth  to  its  stock- 
holders, for  the  purposes  of  income  and  sale,  $16,800,000,  to  be  ad- 
judged liable  for  taxation  upon  only  one-fourth  of  that  amount.  The 
value  which  property  bears  in  the  market,  the  amount  for  which  its 
stock  can  be  bought  and  sold,  is  the  real  value.  Business  men  do  not 
pay  cash  for  property  in  moonshine  or  dreamland.  They  buy  and 
pay  for  that  which  is  of  value  in  its  power  to  produce  income,  or  for 
purposes  of  sale. 

It  is  suggested  that  the  company  may  have  bonds,  stocks,  or  other 
investments  which  produce  a  part  of  the  value  of  its  capital  stock, 
and  which  have  a  special  situs  in  other  states  or  are  exempt  from 
taxation.  If  it  has,  let  it  show  the  fact.  Courts  deal  with  things  as 
they  are,  and  do  not  determine  rights  upon  mere  possibilities.  If  half 
of  the  property  of  the  Adams  Express  Company,  which  by  its  own 
showing  is  worth  $16,000,000  and  over,  is  invested  in  United  States 
bonds,  and  therefore  exempt  from  taxation,  or  invested  in  any  way 
outside  the  business  of  the  company,  and  so  as  to  be  subject  to  purely 
local  taxation,  let  that  fact  be  disclosed  ;  and  then,  if  the  state  of  Ohio 
attempts  to  include  within  its  taxing  power  such  exempted  property  or 
property  of  a  different  situs,  it  will  be  time  enough  to  consider  and  de- 
termine the  rights  of  the  company.4  That,  if  such  facts  exist,  they  must 
be  taken  into  consideration  by  a  state  in  its  proceedings  under  such 
tax  laws  as  are  here  presented,  has  been  heretofore  recognized  and 
distinctly  affirmed  by  this  court.  Railway  Co.  v.  Backus.  154  U.  S. 
421,  443,  14  Sup.  Ct.  1114,  38  L.  Ed.  1031;  Telegraph  Co.  v.  Tag- 
gart,  163  U.  S.  1,  23.  16  Sup.  Ct.  1054,  41  L.  Ed.  49;  Adams  Exp 
Co.  v.  Ohio,  165  U.  S.  194,  227,  17  Sup.  Ct.  305,  41  L.  Ed.  6S3.  Pre 
sumably,  all  that  a  corporation  has  is  used  in  the  transaction  of  its 
business;  and,  if  it  has  accumulated  assets  which  for  any  reason  af- 
fect the  question  of  taxation,  it  should  disclose  them.  It  is  called 
upon  to  make  return  of  its  property,  and  if  its  return  admits  that  it 
is  possessed  of  property  of  a  certain  value,  and  does  not  disclose  any- 
thing to  show  that  any  portion  thereof  is  not  subject  to  taxation,  it 
cannot  complain  if  the  state  treats  its  property  as  all  taxable. 

But  where  is  the  situs  of  this  intangible  property?  The  Adams 
Express  Company  has,  according  to  its  showing,  in  round  numbers 
$4,000,000  of  tangible  property  scattered  through  different  states,  and. 

*  For  tiie  deductions  to  be  made,  under  the  "unit  rale"  of  assessment,  for 
various  kinds  of  property  held  out  of  tl  I  nol  nsed  In  the  I 

taxed,  see  Fargo  v.  Bart,  103  O.  S.  490,  24  Sup.  Ct  19S,  18  L.  Ed.  761  (1904) 
As  to  disproportionately  valuable  railway  terminals  outside  of  si 
burg,  r..  C.  &  St.  I..  K.  Co.  v.  Backus,  154  D.  S.  421,  431,  11  Sup.  Ct  in  I.  38  1 
EM.  1031  (1S94).    Compare  Flint  v.  Stc  I  ,  8.107,  16G 

Sup.  Ct  31:2,  55  L.  Ed.  3S9,  Aun.  Cas.  191^1!,  1812  (1911). 


•j5G  fundamental  rights  (Part  2 

with  that  tangible  property  thus  scattered,  transacts  its  business.  By 
the  business  which  it  transacts,  by  combining  into  a  single  use  all  these 
separate  pieces  and  articles  of  tangible  property,  by  the  contracts, 
franchises,  and  privileges,  which  it  has  acquired  and  possesses,  it  has 
created  a  corporate  property  of  the  actual  value  of  $16,000,000.  Thus, 
according  to  its  figures,  this  intangible  property,  its  franchises,  priv- 
ileges, etc.,  is  of  the  value  of  $12,000,000,  and  its  tangible  property  of 
only  $4,000,000.  Where  is  the  situs  of  this  intangible  property?  Is 
it  simply  where  its  home  office  is,  where  is  found  the  central  directing 
thought  which  controls  the  workings  of  the  great  machine,  or  in  the 
state  which  gave  it  its  corporate  franchise ;  or  is  that  intangible  prop- 
erty distributed  wherever  its  tangible  property  is  located  and  its  work 
is  done?  Clearly,  as  we  think,  the  latter.  Every  state  within  which 
it  is  transacting  business,  and  where  it  has  its  property,  more  or  less, 
may  rightfully  say  that  the  $16,000,000  of  value  which  it  possesses 
springs  not  merely  from  the  original  grant  of  corporate  power  by 
the  state  which  incorporated  it,  or  from  the  mere  ownership  of  the 
tangible  property,  but  it  springs  from  the  fact  that  that  tangible  prop- 
erty it  has  combined  with  contracts,  franchises,  and  privileges  into  a 
single  unit  of  property;  and  this  state  contributes  to  that  aggregate 
value  not  merely  the  separate  value  of  such  tangible  property  as  is 
within  its  limits,  but  its  proportionate  share  of  the  value  of  the  en- 
tire property.  That  this  is  true  is  obvious  from  the  result  that  would 
follow  if  all  the  states  other  than  the  one  which  created  the  corpora- 
tion could  and  should  withhold  from  it  the  right  to  transact  express 
business  within  their  limits.  It  might  continue  to  own  all  its  tangible 
property  within  each  of  those  states,  but,  unable  to  transact  the  ex- 
press business  within  their  limits,  that  $12,000,000  of  value  attribu- 
table to  its  intangible  property  would  shrivel  to  a  mere  trifle. 

It  may  be  true  that  the  principal  office  of  the  corporation  is  in  New 
York,  and  that  for  certain  purposes  the  maxim  of  the  common  law 
was,  "Mobilia  personam  sequuntur;"  but  that  maxim  was  never  of 
universal  application,  and  seldom  interfered  with  the  right  of  taxa- 
tion. Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  22,  11  Sup.  Ct.  876,  35 
L.  Ed.  613.  It  would  certainly  seem  a  misapplication  of  the  doctrine 
expressed  in  that  maxim  to  hold  that,  by  merely  transferring  its  prin- 
cipal office  across  the  river  to  Jersey  City,  the  situs  of  $12,000,000  of 
intangible  property,  for  purposes  of  taxation,  was  changed  from  the 
state  of  New  York  to  that  of  New  Jersey. 

It  is  also  true  that  a  corporation  is,  for  purposes  of  jurisdiction  in 
the  federal  courts,  conclusively  presumed  to  be  a  citizen  of  the  state 
which  created  it;  but  it  does  not  follow  therefrom  that  its  franchise 
to  be  is  for  all  purposes  to  be  regarded  as  confined  to  that  state.  For 
the  transaction  of  its  business  it  goes  into  various  states,  and  wherever 
it  goes  as  a  corporation  it  carries  with  it  that  franchise  to  be.  But 
the  franchise  to  be  is  only  one  of  the  franchises  of  a  corporation. 
The  franchise  to  do  is  an  independent  franchise,  or  rather  a  combina- 


Ch.  11)  DUE  PE0CE8S  AND   EQ1  ALITX !     TAXATION  5"j" 

tion  of  franchises,  embracing  all  things  which  the  corporation  is  given 
power  to  do;  and  this  power  to  do  is  as  much  a  thing  of  value  and  a 
part  of  the  intangible  property  of  the  corporation  as  the  fran 
be.  Franchises  to  do  go  wherever  the  work  is  done.  The  Southern 
Pacific  Railway  Company  is  a  corporation  chartered  by  the  state  of 
Kentucky ;  yet,  within  the  limits  of  that  state,  it  is  said  to  have  no 
tangible  property,  and  no  office  for  the  transaction  of  business.  The 
vast  amount  of  tangible  property  which,  by  lease  or  otherwise,  it 
holds  and  operates,  and  all  the  franchises  to  do  which  it  exercises, 
exist  and  are  exercised  in  the  states  and  territories  on  the  Pacific 
slope.  Do  not  these  intangible  properties, — these  franchises  to  do, — 
exercised  in  connection  with  the  tangible  property  which  it  holds, 
create  a  substantive  matter  of  taxation  to  be  asserted  by  every  state 
in  which  that  tangible  property  is  found?5 

It  is  said  that  the  views  thus  expressed  open  the  door  to  possibili- 
ties of  gross  injustice  to  these  corporations,  through  the  conflicting 
action  of  the  different  states  in  matters  of  taxation.  That  may  be 
so,  and  the  courts  may  be  called  upon  to  relieve  against  such  abuses. 
But  such  possibilities  do  not  equal  the  wrong  which  sustaining  the 
contention  of  the  appellant  would  at  once  do.  In  the  city  of  New 
York  are  located  the  headquarters  of  a  corporation  whose  corporate 
property  is  confessedly  of  the  value  of  $16,000.000, — a  value  which 
can  be  realized  by  its  stockholders  at  any  moment  they  see  fit.  Its 
tangible  property  and  its  business  are  scattered  through  many  states, 
all  whose  powers  are  invoked  to  protect  its  property  from  trespass, 
and  secure  it  in  the  peaceful  transaction  of  its  widely  dispersed  busi- 
ness. Yet,  because  that  tangible  property  is  only  $4,000,000,  we  are 
told  that  that  is  the  limit  of  the  taxing  power  of  these  states.  In  other 
words,  it  asks  these  states  to  protect  property  which  to  it  is  of  the 
value  of  $16,000,000,  but  is  willing  to  pay  taxes  only  on  the  basis  of 
a  valuation  of  $4,000,000.     The  injustice  of  this  speaks  for  itself. 

In  conclusion,  let  us  say  that  this  is  eminently  a  practical  age ;  that 
courts  must  recognize  things  as  they  are,  and  as  possessing  a  value 
which  is  accorded  to  them  in  the  markets  of  the  world ;   and  that  no 

»  In  Western  Union  Tel.  Co.  v.  Missouri  ex  rel.  Gottlieb,  190  D.  S.  412,  421, 
422,  23  Sup.  Ct.  730,  47  h.  Bid.  1116  (1903),  a  Missouri  assessment  under  the 
"unit  rule"  was  upheld  which  Included  part  of  the  value  of  a  Now  Cork  fran- 
chise under  which  a  telegraph  company  did  business  In  Missouri.  McEenna, 
.1.,  quoted  with  approval  from  the  state  court  below  as  follows:  "The  fran- 
chise deriyed  by  the  defendant  from  the  state  of  New  York  was  consid- 
ered by  the  board  In  determining  the  value  of  the  property  of  the  defendant 
located  in  this  state.  •  •  •  The  right  lo  exist — the  franchise — Of  the  de- 
fendant was  property,  and   was   subject  to  taxation,   either  directly,  In  the 

irtlon  i  alse  exercised  In  (his  state  bore 

proportion  of  the  franchise  exercised  In  all  oilier  states,  or  Indirectly,  as  was 
done    in    Massachusetts   and    was    done    here,    by    being   Impressed    upon    iho 
tangible  property  owned  by  it.  thereby  increasing  iis  value,  and  i>y  ci 
bag  the  franchise  and  its  tangible  property  as  a  system,  and  then  tat 
the  part  of  the  property  forming  a  part  of  the  system  and  Located  In  M 
as  of  its  proportionate  value  of  the  whole  property  constituting  the  system." 


558  FUNDAMENTAL    RIGHTS  (Part  2 

finespun  theories  about  situs  should  interfere  to  enable  these  large 
corporations,  whose  business  is  carried  on  through  many  states,  to 
escape  from  bearing  in  each  state  such  burden  of  taxation  as  a  fair 
distribution  of  the  actual  value  of  their  property  among  those  states 
requires. 

Petition  denied.4 

«  "A  railroad  must  be  regarded  for  many.  Indeed  for  most,  purposes  as  a 
unit.  The  track  of  the  road  is  but  ono  track  from  one  end  of  it.  to  the  other, 
and,  except  in  its  use  as  one  track,  is  of  little  value.  In  this  track  as  a  whole 
each  county  through  which  it  passes  has  an  interest  much  more  important 
than  it  has  in  the' limited  part  of  it  lying  within  its  boundary.  Destroy  by 
any  menus  a  few  miles  of  this  track  within  an  interior  county,  so  as  to  cut 
off  the  connection  between  the  two  parts  thus  separated,  and,  if  it  could  not 
be  repaired  or  replaced,  its  effect  upon  the  value  of  the  remainder  of  the 
road  is  out  of  all  proportion  to  the  mere  local  value  of  the  part  of  it  de- 
stroyed. A  similar  effect  on  the  value  of  the  interior  of  the  road  would  fol- 
low the  destruction  of  that  end  of  the  road  lying  in  Chicago,  or  some  other 
place  where  its  largest  traffic  centers.  It  may  well  be  doubted  whether  any 
better  mode  of  determining  the  value  of  that  portion  of  the  track  within  any 
one  county  has  been  devised  than  to  ascertain  the  value  of  the  whole  road, 
and  apportion  the  value  within  the  county  by  its  relative  length  to  the 
whole."— Miller,  J.,  in  State  Ry.  Tax  Cases,  92  U.  S.  575,  COS,  23  L.  Ed.  663 
(1875). 

"As  to  railroad,  telegraph,  and  sleeping-car  companies,  engaged  in  interstate 
commerce,  it  has  often  been  held  by  this  court  that  their  property,  in  the 
several  states  through  which  their  lines  or  business  extended,  might  be  valued 
as  a  unit  for  the  purposes  of  taxation,  taking  into  consideration  the  uses  to 
which  it  was  put,  and  all  the  elements  making  up  aggregate  value,  and  that  a 
proportion  of  the  whole,  fairly  and  properly  ascertained,  might  be  taxed  by 
the  particular  state,  without  violating  any  federal  restriction.  W.  U.  Tel. 
Co.  v.  Attorney  General  of  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  901,  31  L. 
Ed.  790  (1SSS);  Massachusetts  v.  W.  U.  Tel.  Co.,  141  U.  S.  40,  11  Sup.  Ct. 
8S9,  35  L.  Ed.  628  (1S91) ;  Maine  v.  Grand  Trunk  Ry.  Co.,  142  U.  S.  217,  12 
Sup.  Ct.  121,  1G3,  35  L.  Ed.  994  (1S91) ;  Railroad  Co.  v.  Backus,  154  U.  S. 
421,  14  Sup.  Ct.  1114,  3S  L.  Ed.  1031  (1S94) ;  Railroad  Co.  v.  Backus,  154  U.  S. 
439,  14  Sup.  Ct.  1122,  3S  'L.  Ed.  1040  (1894) ;  Telegraph  Co.  v.  Taggart.  103 
U.  S.  1,  16  Sup.  Ct.  1054,  41  L.  Ed.  49  (189G);  Pullman's  Palace  Car  Co.  v. 
Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct.  S76.  35  L.  Ed.  613  (1S91).  The  valua 
tion  was,  thus,  not  confined  to  the  wires,  poles,  and  instruments  of  the  tele- 
graph company,  or  the  roadbed,  ties,  rails  and  spikes  of  the  railroad  company, 
or  the  cars  of  the  sleeping-car  company,  but  included  the  proportionate  part 
of  the  value  resulting  from  the  combination  of  the  means  by  which  the  busi- 
ness was  carried  on, — a  value  existing  to  an  appreciable  extent  throughout 
the  entire  domain  of  operation.  And  it  has  been  decided  that  a  proper  mode 
of  ascertaining  the  assessable  value  of  so  much  of  the  whole  property  as  is 
situated  in  a  particular  state  is,  in  the  case  of  railroads,  to  take  that  part 
of  the  value  of  the  entire  road  which  is  measured  by  the  proportion  of  its 
length  therein  to  the  length  of  the  whole  (Railroad  Co.  v.  Backus,  154  U.  S. 
429,  14  Sup.  Ct.  1114,  3S  L.  Ed.  1031  [1894]),  or  taking  as  the  basis  of  assess- 
ment such  proportion  of  the  capital  stock  of  a  sleeping-car  company  as  the 
number  of  miles  of  railroad  over  which  its  cars  are  run  in  a  particular  state 
bears  to  the  whole  number  of  miles  traversed  by  them  in  that  and  other 
states  (Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct. 
876,  35  L.  Ed.  613  [1S91]),  or  such  a  proportion  of  the  whole  value  of  the 
capital  stock  of  a  telegraph  company  as  the  length  of  its  lines  within  a  state 
bears  to  the  length  of  all  its  lines  everywhere,  deducting  a  sum  equal  to  the 
ealue  of  its  real  estate  and  machinery  subject  to  local  taxation  within  the 
state  (Telegraph  Co.  v.  Taggart,  163  U.  S.  1,  16  Sup.  Ct.  1054,  41  L.  Ed.  49)."— 
Fuller,  C.  J.,  in  Adams  Express  Co.  v.  Ohio,  165  U.  S.  194,  220,  221,  17  Sup. 
Ct  305,  41  L.  Ed.  683  (1S97). 


Ch.  11)  DUE   PROCESS  AND    KQI'AI.ITY:     TAXATION  5o'J 

TAPPAN  v.  MERCHANTS'  NAT.  BANK. 
(Supreme  Court  of  United  States,  1873.    19  Wall.  400,  22  L.  Ed.  1*0.1 

[Appeal  from  a  decree  of  the  United  States  Circuit  Court  for  the 
Northern  District  of  Illinois  granting  an  injunction  against  the  col- 
lection of  taxes  upon  the  shares  of  stock  in  appellee  bank  under  the 
statute  of  Illinois  passed  June  13,  1867.  The  facts  are  sufficiently 
stated  in  the  opinion.] 

Mr.  Chief  Justice  Waite.  We  are  called  upon  in  this  case  to  deter- 
mine whether  the  General  Assembly  of  the  state  of  Illinois  could,  in 
1867,  provide  for  the  taxation  of  the  owners  of  shares  of  the  capital 
stock  of  a  national  bank  in  that  state  at  the  place  within  the  state 
where  the  bank  was  located,  without  regard  to  their  places  of  resi 
dence.  *  *  *  It  is  conceded  that  it  was  within  the  power  of  the 
state  to  tax  the  shares  of  non-resident  shareholders  at  the  place  where 
the  bank  was  located,  but  it  is  claimed  that  under  the  Constitution 
of  the  state  resident  shareholders  could  only  be  taxed  at  the  places 
of  their  residence.  We  have  not  been  referred  to  any  express  provi- 
sion of  the  Constitution  to  that  effect.     *     *     * 

This  power  of  locating  personal  property  for  the  purpose  of  taxa- 
tion without  regard  to  the  residence  of  the  owner  has  been  often  ex- 
ercised in  Illinois,  and'  sustained  by  the  courts.  City  of  Dunleith  v. 
Reynolds,  53  111.  45.  Since  the  adoption  of  the  Constitution  of  1870, 
which  did  not  enlarge  the  powers  of  the  General  Assembly  in  this 
particular,  very  extended  legislation  has  been  had  with  a  view  to  such 
location.  Thus,  live  stock  and  other  personal  property  used  upon  a 
farm,  must  be  listed  and  assessed  where  the  farm  is  situated ;  prop- 
erty in  the  hands  of  agents  at  the  place  where  the  business  of  the 
agent  is  transacted ;  water-craft  where  they  are  enrolled ;  or,  if  not 
enrolled,  where  they  are  kept ;  the  property  of  bankers,  brokers,  mer- 
chants, manufacturers,  and  many  other  classes  of  persons  specially 
enumerated,  at  the  place  where  their  business  is  carried  on.  This 
became  necessary  in  order  that  the  burdens  of  taxation  might  be  equal- 
ly distributed  among  those  who  should  bear  them. 

We  do  not  understand  the  counsel  for  the  appellee  to  dispute  this 
power,  where  the  property  is  tangible  and  capable  of  having,  so  to 
speak,  an  actual  situs  of  its  own,  but  he  claims  that  if  it  is  intan 
cannot  be  separated  from  the  person  of  its  owner.     It  must  be  borne 
in  mind  that  all  this  property,  in  though  it  may  be,  is  within  the 

state.  That  which  belongs  to  residents  is  there  by  reason  of  their 
residence.  All  the  owners  have  submitted  themselves  to  the  jurisdic- 
tion of  the  state,  and  they  must  obey  its  will  when  kept  within  tin- 
limits  of  constitutional  power. 

The  question  is  then  presented  whether  the  General  Assembly, 
having  complete  jurisdiction  over  the  person  and  the  property,  could 
separate  a  bank  share  from  the  person  of  the  owner  for  the  purposes 


5C0  FUNDAMENTAL    RIGHTS  (Part  2 

of  taxation.  It  has  never  been  doubted  that  it  was  a  proper  exercise 
of  legislative  power  and  discretion  to  separate  the  interest  of  a  part- 
ner in  partnership  property  from  his  person  for  that  purpose,  and  to 
cause  him  to  be  taxed  on  its  account  at  the  place  where  the  business  of 
the  partnership  was  carried  on.  And  this,  too,  without  reference  to 
the  character  of  the  business  or  the  property.  The  partnership  may 
have  been  formed  for  the  purpose  of  carrying  on  mercantile,  banking, 
brokerage,  or  stock  business.  The  property  may  be  tangible  or  intangi- 
ble, goods  on  the  shelf  or  debts  due  for  goods  sold.  The  interest  of 
the  partner  in  all  the  property  is  made  taxable  at  the  place  where  the 
business  is  .located. 

A  share  of  bank  stock  may  be  in  itself  intangible,  but  it  represents 
that  which  is  tangible.  It  represents  money  or  property  invested  in 
the  capital  stock  of  the  bank.  That  capital  is  employed  in  business 
by  the  bank,  and  the  business  is  very  likely  carried  on  at  a  place  other 
than  the  residence  of  some  of  the  shareholders.  The  shareholder  is 
protected  in  his  person  by  the  government  at  the  place  where  he  re- 
sides; but  his  property  in  this  stock  is  protected  at  the  place  where 
the  bank  transacts  his  business.  If  he  were  a  partner  in  a  private 
bank  doing  business  at  the  same  place,  he  might  be  taxed  there  on 
account  of  his  interest  in  the  partnership.  It  is  not  easy  to  see  why, 
upon  the  same  principle,  he  may  not  be  taxed  there  on  account  of  his 
stock  in  an  incorporated  bank.  His  business  is  there  as  much  in  the 
one  case  as  in  the  other.  He  requires  for  it  the  protection  of  the 
government  there,  and  it  seems  reasonable  that  he  should  be  compelled 
to  contribute  there  to  the  expenses  of  maintaining  that  government. 
It  certainly  cannot  be  an  abuse  of  legislative  discretion  to  require  him 
to  do  so.  If  it  is  not,  the  General  Assembly  can  rightfully  locate  his 
shares  there  for  the  purpose  of  taxation.    *    *    * 

Decree  reversed.1 


BRADLEY  v.  BAUDER. 
(Supreme  Court  of  Ohio,  1SS0.    36  Ohio  St.  28,  38  Am.  Rep.  547.) 

[Appeal  from  district  court  of  Cuyahoga  county.  Plaintiffs  owned 
shares  of  stock  in  corporations  whose  franchises,  property,  and  busi- 
ness were  wholly  outside  of  Ohio  where  plaintiffs  lived.  A  prelimina- 
ry injunction  was  granted  by  the  above-mentioned  court  against  the 
taxation  in  Ohio  of  such  shares.] 

1  The  state  of  the  corporation's  domicil  may  require  It  to  pay  the  tax  on 
the  shares  of  non-resident  stockholders,  giving  the  corporation  a  personal 
right  of  action  therefor  against  them  and  a  lien  on  their  stock.  Corry  v. 
Baltimore,  196  TJ.  S.  466,  25  Sup.  Ct.  297,  49  L.  Ed.  556  (1905)  [compare 
Stapylton  v.  Thaggard,  91  Fed.  93,  33  C.  C.  A.  353  (1S9S)  (bank  insolvent)]. 
So  also  as  to  the  resident  possessors  of  tangible  property  owned  by  non-res- 
idents. Carstairs  v.  Cochran,  193  U.  S.  10,  24  Sup.  Ct.  318,  48  U  Ed.  596 
(1904);  Thompson  v.  Kentucky,  209  U.  S.  340.  2S  Sup.  Ct.  533,  52  L.  Ed.  bi'2 
(1908)  (even  though  property  subject  to  prior  lien  of  United  States). 


Ch.  11)  DUE   PROCESS  AND    EQTJAIJT3  :     TAXATION  061 

Boynton,  J.  *  *  *  The  capital  of  the  corporation  is  the  prop- 
erty of  the  corporation,  and  it  can  only  be  taxed  in  the  state  where 
the  property  is  located.  It  is  very  clearly  settled,  that  the  right  of 
taxation  is  limited  to  persons,  property  and  business  within  the  juris- 
dicion  of  the  state  where  the  right  is  attempted  to  be  exercised.  Rail- 
road Company  v.  Pennsylvania,  15  Wall.  300,  21  L.  Ed.  179.  But  in- 
vestments in  stocks  in  foreign  companies,  owned  by  residents  here, 
being  property  within  the  state,  are  not  only  made  subject  to  taxation 
by  the  Constitution,  but,  as  we  have  seen,  their  taxation  is  expressly 
required  by  the  statute. 

Hut  it  is  said,  that  because  the  capital  of  the  company  is  invested  in 
real  and  fixed  property  in  the  state  where  the  corporation  is  located, 
and  in  which  state,  taxes  upon  the  same  are  regularly  levied  and  paid, 
a  tax  here  upon  the  shares  of  stock  of  those  residing  here,  is  a  tax 
upon  the  same  property,  and  therefore  results  in  double  taxation. 

The  argument  is  that  the  capital  of  the  corporation  is  invested  in 
property  which  is  taxed  in  the  name  of  the  corporation,  and  that  the 
shares  in  the  capital  stock,  when  owned  by  individuals,  only  represent 
proportions  in  the  ownership  of  such  property,  and  hence,  to  tax  the 
shares  is  another  mode  of  taxing  the  property  of  the  corporation,  and 
that  a  tax  upon  both,  although  the  tax  upon  one  is  imposed  by  an- 
other state,  violates  the  rule  or  principle  of  equality  established  by  the 
Constitution.  This  argument,  however  plausible  it  seems,  has  never 
met  with  favor  from  the  courts.  Double  taxation,  in  a  legal  sense, 
does  not  exist,  unless  the  double  tax  is  levied  upon  the  same  property 
within  the  same  jurisdiction.  Here  the  property  owned  by  the  plain- 
tiffs is  not  only  not  the  same  as  that  owned  by  the  corporation,  but  its 
situs,  so  far  as  shares  of  stock  are  capable  of  one,  is  in  a  different 
state. 

The  capital  of  a  corporation,  whatever  invested  in,  and  the  individu- 
al shares  of  stock,  are  distinct  species  of  property.  Farrington  v.  Ten- 
nessee, 95  U.  S.  679,  24  L.  Ed.  558.  The  owner  of  a  share  of  stock 
owns  no  part  of  the  capital  of  the  company.  Watson  v.  Spratley,  10 
Exch.  236.  The  corporation  is  its  sole  owner,  holding  the  same,  it 
is  true,  in  trust,  for  the  purposes  for  which  the  corporation  was  cre- 
ated, and  upon  its  winding  up,  for  the  benefit  of  creditors  and  share- 
holders. The  ownership  of  a  share  of  stock,  so  far  as  the  property  of 
the  corporation  is  concerned,  is  but  the  ownership  of  the  right  to  par- 
ticipate, from  time  to  time,  in  the  net  profits  of  the  business,  and  upon 
the  dissolution  of  the  corporation  to  a  proportion  of  the  assets  after 
the  payment  of  the  corporate  debts.  It  is  personal  property,  which, 
upon  the  death  of  the  owner,  goes  to  his  administrator,  although  the 
entire  capital  of  the  corporation  may  consist  of  real  estate.  The  own- 
er may  sell  or  dispose  of  his  stock  at  pleasure,  and.  in  so  doing, 
no  change  or  modification  in  the  title  to  the  corporate  property.  From 
this  it  would  seem  to  result  necessarily,  that  its  situs,  for  purposes  of 
Hall  Const.!,.— ::g 


5G2  FUNDAMENTAL    EIGHTS  (Part    2 

taxation,  when  not  otherwise  provided  by  statute,  is  that  of  the  domicil 
of  the  owner.  That  shares  of  stock  may  be  separated  from  the  per- 
son of  the  owner,  by  statute,  and  given  a  situs  of  their  own,  was  held 
in  Tappan  v.  Merchants'  National  Bank,  19  Wall.  490,  22  L.  Ed.  189. 
But  when  not  so  separated,  that  their  situs  follows  and  adheres  to  the 
domicil  of  the  owner,  is  supported  by  a  great  weight  of  authority. 
State  v.  Branin,  3  Zab.  (23  N.  J.  Law)  484 ;  City  of  Newark  v.  Asses- 
sor, 30  N.  J.  Law,  13;  Great  Barrington  v.  County  Com'rs,  16  Pick. 
(Mass.)  572;  Oliver  v.  Washington  Mills,  11  Allen  (Mass.)  268; 
Whitesell  v.  County  of  Northampton,  49  Pa.  St  526;  Cooley  on 
Taxation,   16;    Burroughs  on  Taxation,   188. 

The  same  principle  governs  a  chose  in  action ;  for  purposes  of  tax- 
ation, its  situs  is  that  of  the  domicil  of  the  owner,  although  the  debt 
is  secured  by  a  mortgage  upon  realty  in  another  state,  and  by  agree- 
ment of  the  parties  expressly  made  subject  to  its  laws.  Kirtland  v. 
Hotchkiss,  42  Conn.  426,  19  Am.  Rep.  546.  See  same  case  in  100  U. 
S.  491,  25  L.  Ed.  558. 

The  constitutional  power  to  tax  shares  of  stock,  owned  by  our 
citizens  in  corporations  located  without  the  state,  does  not  depend 
on  whether  the  capital  of  the  corporation  is  or  is  not  taxed  in  the  state 
where  the  corporation  is  created.  The  power  is  the  same,  whether 
the  capital  of  the  corporation  is  there  taxed  or  not;  otherwise,  the 
power  of  taxation  conferred  by  the  constitution  would  be  made  to  de- 
pend upon  the  operation  of  laws  of  a  foreign  jurisdiction — a  proposi- 
tion so  obviously  ill  founded  that  the  moment  it  is  stated  its  falsity  be- 
comes apparent. 

Injunction  vacated.1 


BALDWIN  v.  WASHINGTON  COUNTY. 
(Court  of  Appeals  of  Maryland,  1S97.     S5  MdL  145,  36  Atl.  764.) 

[Appeal  from  Circuit  Court  of  Washington  County,  Maryland.  Be- 
tween 1879  and  1884  an  estate  was  settled  in  the  orphans'  court  of  that 
county,  showing  a  balance  of  about  $44,000  in  the  hands  of  the  guard- 
ian of  Columbus  C.  Baldwin,  an  infant,  on  behalf  of  said  ward.  In 
1891  Wm.  W.  Baldwin  was  appointed  such  guardian  by  that  court. 
The  property  of  the  ward  consisted  entirely  of  stocks  and  bonds  of 
companies  organized  and  located  outside  of  Maryland,  and  the  stock 
certificates  and  bonds  were  kept  outside  that  state.    Both  guardian  and 

i  See  Sturges  v.  Carter,  114  TJ.  S.  511,  5  Sup.  Ct.  1014,  29  L.  Ed.  240  (1SS5), 
and  Kidd  v.  Alabama,  1S8  U.  S.  730,  23  Sup.  Ct.  401,  47  U  Ed.  669  (190.3). 
Shares  of  stock  may  be  taxed  at  the  residence  of  the  owner,  even  though 
they  are  also  taxed  at  the  domicil  of  the  corporation  in  another  state.  Dyer 
v.  Osborne,  11  R.  I.  321,  23  Am.  Rep.  460  (1876).  A  fortiori  this  is  true  when 
it  is  the  capital  slock  of  the  corporation,  not  its  shares,  that  is  taxed  at  Its 
domicil.  Greenleaf  v.  Board  of  Review,  184  111.  226,  56  N.  E.  295,  75  Am. 
St.  Rep.  16S  (1900);  Bacon  v.  State  Board,  126  Mich.  22,  85  N.  W.  307,  60 
L,  R.  A.  321,  86  Am.  St.  Rep.  524  (1901). 


Ch.  11)  DUB  PROCESS   AND  EQUALITY!     TAXATION  £><*'■ 

ward  lived  in  New  York.  In  1893  and  1894  this  property  was  assess- 
ed for  taxation  in  Washington  county.  The  guardian  filed  a  bill  to  en- 
join the  collection  of  the  tax,  and  the  circuit  court  of  that  county  dis- 
missed it.] 

Boyd,  J.  *  *  *  'It  must,  of  course,  be  admitted  that  the  situs 
of  property  of  this  kind,  for  the  purposes  of  taxation,  is  ordinarily  at 
the  domicile  of  the  owner,  but  the  legislature  has  the  power  to  fix  a 
different  situs,  provided,  of  course,  there  be  no  conflict  with  some  pro- 
vision in  the  constitution.  1  Desty,  Tax'n,  97;  Cooley,  Tax'n,  373. 
We  have  in  this  state  some  statutes  which  do  determine  where  prop- 
erty shall  be  deemed  to  be  situate  for  the  purposes  of  taxation.  For 
example,  section  131  of  article  81  of  the  Code  provides  where  the  stock 
of  certain  domestic  corporations  owned  by  nonresidents  shall  be  deem- 
ed to  be  situate.  So,  by  section  9  of  article  81,  above  quoted,  the  legis- 
lature has  fixed  the  place  where  personal  property  in  the  hands  of  the 
guardian  shall  be  taxed.  When  it  requires  the  register  of  wills  to  make 
the  returns  to  the  county  commissioners,  it  means,  of  course,  that  the 
register  of  wills  of  each  county  shall  make  the  returns  to  the  commis- 
sioners of  his  county;  and  it  provides  that  "all  such  property,  if  not 
before  assessed,  shall  then  be  assessed,"  and  "every  executor,  admin- 
istrator, or  guardian  shall  be  liable  to  pay  the  taxes  thereon."  It  does 
not  say  every  guardian  who  is  a  resident  of  this  state,  or  every  guard- 
ian whose  ward  is  a  resident  of  this  state,  but  the  language  used  is 
at  least  broad  enough  to  apply  to  every  guardian  who  has  been  ap- 
pointed as  such  in  this  state,  and  includes  all  property  of  such  guard- 
ian ;  that  is,  of  course,  all  property  of  such  character  as  is  taxable  in 
this  state.  It  fixes  the  situs  of  the  property  in  the  county  or  city  where 
the  guardian  was  appointed,  and  it  matters  not  where  the  person  who 
is  guardian  may  reside.  The  office  of  guardian,  so  to  speak,  is  fixed 
at  the  county  where  the  appointment  is  made.  If  that  be  not  so.  then, 
if  this  ward  was  a  resident  of  Washington  county,  his  personal  prop- 
erty would  escape  taxation  there,  because  his  guardian  lived  in  New 
York.  That  would  seem  to  be  contrary  to  the  manifest  object  and  in- 
tention of  the  section  of  the  Code  above  quoted. 

In  the  case  of  Bonaparte  v.  State,  63  Md.  465,  this  same  section  was 
under  consideration,  and  this  court  held  that,  although  Mr.  Bonaparte, 
the  executor  of  Mrs.  Patterson,  lived  in  Baltimore  county,  yet  he  was 
liable  to  Baltimore  city  for  taxes  on  bonds  and  stocks  of  his  testatrix, 
because  letters  testamentary  had  been  granted  to  him  by  the  orphans* 
court  of  Baltimore  city.  It  was  there  said,  in  answer  to  the  suggestion 
of  the  executor,  that,  because  he  was  a  resident  of  Baltimore  county, 
he  was  taxable  there,  and  nowhere  else,  by  reason  of  the  legal  title  to 
the  intangible  property  being  in  him :  "that  he  held  such  legal  title  is 
true;  but  he  held  it  in  the  special  character  of  an  officer  of  the  law. 
for  the  specific  and  temporary  purpose  of  the  administration  of  the 
property  under  the  supervision  and  direction  of  the  court  from  which 
he  received  letters  testamentary.     The  domicile  of  the  testator,  when 


564  FUNDAMENTAL    RIGHTS  (Part    2 

living,  determines  the  situs  of  his  personal  property  of  an  intangible 
nature  not  permanently  located  elsewhere,  for  purposes  of  taxation, 
and  his  place  of  domicile  at  the  time  of  his  death  determines  the  place 
of  administering  his  estate.  The  situs  of  the  personal  property,  gen- 
erally speaking,  and  the  residence  of  the  administrator,  for  the  purpos- 
es of  administration,  place  them,  in  legal  contemplation,  in  the  city  or 
county  of  the  court  exercising  jurisdiction.  The  personal  property, 
therefore,  of  an  intangible  nature,  not  permanently  located  elsewhere, 
such  as  bonds  and  stocks,  must  be  deemed  to  remain  within  the  juris- 
diction of  the  court  pending  the  settlement  of  the  estate,  and  be  there 
liable  to  taxation.  When  distribution  has  been  made,  and  the  fact  of 
its  transfer  has  been  communicated  to  the  tax  authorities,  the  admin- 
istrator's or  executor's  liability  to  pay  the  taxes  upon  it,  of  course, 
ceases."  The  court  then  quoted  the  section  of  the  Code  above  refer- 
red to. 

Now, 'if  it  be  true  that  the  situs,  for  taxation,  of  property  in  the 
hands  of  a  resident  executor  (and,  of  course,  the  same  must  apply  to 
an  administrator  or  guardian)  is  where  he  was  appointed,  and  not 
where  he  resided,  how  can  it  be  consistently  said  in  this  case  that  the 
property  cannot  be  subject  to  taxation  because  the  guardian  resides  be- 
yond the  state  ?  *  *  *  In  contemplation  of  our  statute,  the  officer 
of  the  law  known  as  the  guardian  of  Columbus  C.  Baldwin  is  in  Wash- 
ington county  for  the  purpose  of  dealing  with,  accounting  for,  and 
holding  the  property  of  his  ward.  The  individual  holding  that  office 
may  be  domiciled  in  that  county  or  in  New  York,  but  the  law  does  not 
concern  itself  about  that. 

There  are  a  number  of  provisions  in  our  testamentary  laws  for  the 
appointment  and  control  of  guardians  by  the  orphans'  courts  of  this 
state.  They  not  only  provide  for  the  appointment  of  guardians  of  res- 
ident infants,  but  by  section  203  of  article  93  of  the  Code  express 
provision  is  made  for  the  appointment  of  guardians  of  nonresident  in- 
fants who  have  no  guardians  where  they  reside,  but  have  property  in 
this  state.  Can  it  be  doubted  that  such  guardians  are  subject  to  the 
same  control  by  the  orphans'  courts  of  this  state  as  those  whose  wards 
reside  here?  They  are  required  to  give  bond  with  security  in  the  same 
manner  as  if  the  infants  resided  in  this  state,  and  the  wards'  property 
is  entitled  to  the  same  protection  as  that  of  resident  wards.  Once  in 
each  year,  or  oftener,  if  required  by  the  court,  the  guardian  must  set- 
tle an  account  of  his  trust  with  the  orphans'  court.  The  court  is  au- 
thorized to  direct  how  the  money  of  the  ward  can  be  invested,  and 
when  investments  are  made  under  certain  provisions  of  the  Code  they 
can  only  be  transferred  under  the  orders  of  the  court.  No  guardian 
can  sell  any  of  the  property  of  his  ward  without  an  order  of  the  court 
appointing  him,  and  other  provisions  might  be  cited  which  show  that 
the  policy  of  our  testamentary  laws  is  to  keep  the  personal  property 
of  all  wards  whose  guardians  are  appointed  by  the  orphans'  courts  of 
this  state  within  the  control  and  supervision  of  those  courts. 


Ch.  11)  due  process  and  bquautx:   taxation  505 

Whatever  may  be  true  in  actual  practice,  the  theory  of  the  law  is 
that  the  personal  estate  of  the  ward  is  where  the  guardian  is  appointed, 
and  not  where  the  guardian  or  ward  may  be.  *  *  *  If  the  appel- 
lant did  not  want  to  pay  taxes  in  Washington  county  as  other  guard- 
ians appointed  by  the  orphans'  court  of  that  county  are  required  to 
do,  he  could  have  had  a  guardian  appointed  where  the  ward  resides; 
but  so  long  as  he  remained  guardian  here  he  was  required,  by  the  ex- 
press terms  of  the  statute,  as  we  understand  its  meaning,  to  pay  taxes 
on  the  property  in  his  hands  liable  to  taxation.  When,  for  convenience 
or  other  causes,  a  guardian  is  appointed  in  this  state  for  a  nonresident 
infant,  who  may  thereby  have  the  protection  and  care  of  one  of  our 
orphans'  courts  from  year  to  year  during  his  minority,  it  is  certainly 
no  hardship  to  require  his  estate  to  pay  taxes  on  such  property  as  the 
guardian  of  a  resident  ward  must  pay.  So,  if  we  view  this  case  mere- 
ly from  an  equitable  standpoint,  we  fail  to  find  any  good  reason  why 
guardians  of  nonresident  infants  should  occupy  the  time  of  our  or- 
phans' courts,  at  the  expense  of  the  public,  and  yet  not  pay  such  taxes 
as  the  guardians  of  resident  infants  must  pay.     *     *     * 

Decree  affirmed.1 


BLACKSTONE  v.  MILLER. 

(Supreme  Court  of  United  States,  1903.    188  U.  S.  180,  23  Sup.  Ct  277,  47  L. 
Ed.  439.) 

Mr.  Justice  Holmes.  This  a  writ  of  error  to  the  surrogate's  court 
of  the  county  of  New  York.  It  is  brought  to  review  a  decree  of  the 
court,  sustained  by  the  appellate  division  of  the  supreme  court  (69  App. 
Div.  127,  74  N.  Y.  Supp.  508),  and  by  the  court  of  appeals  (171  N.  Y. 
682,  64  N.  E.  1118),  levying  a  tax  on  the  transfer  by  will  of  certain 
property  of  Timothy  B.  Blackstone,  the  testator,  who  died  domiciled  in 
Illinois.  The  property  consisted  of  a  debt  of  $10,692.24,  due  to  the 
deceased  by  a  firm,  and  of  the  net  sum  of  $4,843,456.72,  held  on  a 
deposit  account  by  the  United  States  Trust  Company  of  New  York. 
♦     *     * 

The  deposit  in  question  represented  the  proceeds  of  railroad  stock 
sold  to  a  syndicate  and  handed  to  the  trust  company,  which,  by  ar- 
rangement with  the  testator,  held  the  proceeds  subject  to  his  order,  pay- 
ing interest  in  the  meantime.  Five  days'  notice  of  withdrawal  was 
required,  and  if  a  draft  was  made  upon  the  company  it  gave  its  check 
upon  one  of  its  banks  of  deposit.  The  fund  had  been  held  in  this  way 
from  March  31,  1899,  until  the  testator's  death,  on  May  26,  1900.  It 
is  probable  of  course,  that  he  did  not  intend  to  leave  the  fund  there 

i  In  Guthrie  v.  Pittsburgh,  0.  A  St.  I..  Rj     158  Pa.  133,  27  Atl.  L052  0 
was  held  that  Pennsylvania  might  tax  a  resident  trustee  upon  trust  securities 
kept  iu  the  District  of  Columbia,   when   the  testator  who  created  the  trust 
and  the  beneficiary  were  both  residents  of  that  District 


566  FUNDAMENTAL    RIGHTS  (Part    2 

forever,  and  that  he  was  looking  out  for  investments,  but  he  had  not 
found  them  when  he  died.  *  *  *  The  whole  succession  has  been 
taxed  in  Illinois,  the  New  York  deposit  being  included  in  the  appraisal 
of  the  estate.     *     *     * 

In  view  of  the  state  decisions  it  must  be  assumed  that  the  New  York 
statute  is  intended  to  reach  the  transfer  of  this  property  if  it  can  be 
reached.  New  Orleans  v.  Stempel,  175  U.  S.  309,  316,  44  L.  Ed.  174, 
20  Sup.  Ct.  110;  Morley  v.  Lake  Shore  &  M.  S.  R.  Co.,  146  U.  S. 
162,  166,  36  L.  Ed.  925,  928,  13  Sup.  Ct.  54.  We  also  must  take  it  to 
have  been  found  that  the  property  was  not  in  transitu  in  such  a  sense 
as  to  withdraw  it  from  the  power  of  the  state,  if  otherwise  the  right 
to  tax  the  transfer  belonged  to  the  state.1  The  property  was  delayed 
within  the  jurisdiction  of  New  York  an  indefinite  time,  which  had  last- 
ed for  more  than  a  year,  so  that  this  finding  at  least  was  justified. 
Kelley  v.  Rhoads,  188  U.  S.  1,  23  Sup.  Ct.  259,  47  L.  Ed.  359.  Both 
parties  agree  with  the  plain  words  of  the  law  that  the  tax  is  a  tax 
upon  the  transfer,  not  upon  the  deposit,  and  we  need  spend  no  time 
upon  that.  Therefore  the  naked  question  is  whether  the  state  has  a 
right  to  tax  the  transfer  of  such  deposit  by  will. 

The  answer  is  somewhat  obscured  by  the  superficial  fact  that  New 
York,  like  most  other  states,  recognizes  the  law  of  the  domicil  as  the 
law  determining  the  right  of  universal  succession.  The  domicil,  nat- 
urally, must  control  a  succession  of  that  kind.  Universal  succession 
is  the  artificial  continuance  of  the  person  of  a  deceased  by  an  executor, 
heir,  or  the  like,  so  far  as  succession  to  rights  and  obligations  is  con- 
cerned. It  is  a  fiction,  the  historical,  origin  of  which  is  familiar  to 
scholars,  and  it  is  this  fiction  that  gives  whatever  meaning  it  has  to  the 
saying  mobilia  sequuntur  personam.  But  being  a  fiction  it  is  not  allow- 
ed to  obscure  the  facts,  when  the  facts  become  important.  To  a  con- 
siderable, although  more  or  less  varying,  extent  the  succession  deter- 
mined by  the  law  of  the  domicil  is  recognized  in  other  jurisdictions. 
But  it  hardly  needs  illustration  to  show  that  the  recognition  is  limited 
by  the  policy  of  the  local  law.  Ancillary  administrators  pay  the  local 
debts  before  turning  over  the  residue  to  be  distributed,  or  distributing 
it  themselves,  according  to  the  rules  of  the  domicil.  The  title  of  the 
principal  administrator,  or  of  a  foreign  assignee  in  bankruptcy, — an- 
other type  of  universal  succession, — is  admitted  in  but  a  limited  way 
or  not  at  all.  See  Crapo  v.  Kelly,  16  Wall.  610,  21  L.  Ed.  430;  Chip- 
man  v.  Manufacturers'  Nat.  Bank,  156  Mass.  147-149,  30  N.  E.  610. 

To  come  closer  to  the  point,  no  one  doubts  that  succession  to  a  tangi- 

i  As  to  the  possible  exemption  from  a  property  tax  of  a  merely  transitory 
bank  deposit  of  a  non-resident  doing  business  in  tbe  state,  see  Assessors  v. 
N.  T.,  etc.,  Ins.  Co.,  216  U.  S.  517,  523,  30  Sup.  Ct.  3S5,  54  L.  Ed.  597  (1010). 
As  to  when  tangible  property  (not  the  subject  of  interstate  commerce)  may  es- 
cape taxation  because  only  transitorily  in  the  state,  see  Robinson  v.  Longley, 
18  Nev.  71,  1  Pac.  377  (1SS3)  (traveling  circus) ;  Gromer  v.  Standard  Co.,  224 
U.  S.  362,  32  Sup.  Ct.  499.  56  L.  Ed.  S01  (1912)  (dredge  temporarily  employed 
in  state — see  especially  dissenting  opinion). 


Cll.  11)  DUE    PROCESS  AND    LQUALITY  :     TAXATION  oG7 

ble  chattel  may  be  taxed  wherever  the  property  is  found,  and  none  the 
less  that  the  law  of  the  situs  accepts  its  rules  of  succession  from  the 
law  of  the  domicil,  or  that  by  the  law  of  the  domicil  the  chattel  is  part 
of  a  universitas  and  is  taken  into  account  again  in  the  succession  tax 
there.  Eidnian  v.  Martinez,  184  U.  S.  578,  586,  587,  592,  46  L.  Ed 
697,  702,  704,  22  Sup.  Ct.  515.  See  Mager  v.  Grima,  8  How.  490,  493, 
12  L.  Ed.  1168;  Coe  v.  Errol,  116  U.  S.  517,  524,  29  L.  Ed.  715,  717, 
6  Sup.  Ct.  475;  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S. 
18,  22,  35  L.  Ed.  613,  616,  3  Inters.  Com.  Rep.  595,  11  Sup.  Ct.  876; 
Magoun  v.  Illinois  Trust  &  Sav.  Bank,  170  U.  S.  283,  42  L.  Ed.  1037, 
18  Sup.  Ct.  594;  New  Orleans  v.  Stempel,  175  U.  S.  309,  44  L.  Ed. 
174,  20  Sup.  Ct.  110;  Bristol  v.  Washington  County,  177  U.  S.  133, 
44  L.  Ed.  701,  20  Sup.  Ct.  585;  and  for  state  decisions,  Re  Romaine, 
127  N.  Y.  80,  12  L.  R.  A.  401,  27  N.  E.  759;  Callahan  v.  Woodbridge, 
171  Mass.  595,  51  N.  E.  176;  Greves  v.  Shaw,  173  Mass.  205,  53  N. 
E.  372;  Allen  v.  National  State  Bank,  92  Md.  509,  52  L.  R.  A.  760, 
84  Am.  St.  Rep.  517,  48  Atl.  78. 

No  doubt  this  power  on  the  part  of  two  states  to  tax  on  different 
and  more  or  less  inconsistent  principles  leads  to  some  hardship.  It 
may  be  regretted,  also,  that  one  and  the  same  state  should  be  seen  tax- 
ing on  the  one  hand  according  to  the  fact  of  power,  and  on  the  other, 
at  the  same  time,  according  to  the  fiction  that,  in  successions  after 
death,  mobilia  sequuntur  personam  and  domicil  governs  the  whole. 
But  these  inconsistencies  infringe  no  rule  of  constitutional  law.  Coe 
v.  Errol,  116  U.  S.  517,  524,  29  L.  Ed.  715,  717,  6  Sup.  Ct  475; 
Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  747. 

The  question,  then,  is  narrowed  to  whether  a  distinction  is  to  be 
taken  between  tangible  chattels  and  the  deposit  in  this  case.  There  is 
no  doubt  that  courts  in  New  York  and  elsewhere  have  been  loath  to 
recognize  a  distinction  for  taxing  purposes  between  what  commonly 
is  called  money  in  the  bank  and  actual  coin  in  the  pocket.  The  prac- 
tical similarity  more  or  less  has  obliterated  the  legal  difference.  Re 
Houdayer,  150  N.  Y.  37,  34  L.  R.  A.  235,  44  N.  E.  718;  New  Orleans 
v.  Stempel,  175  U.  S.  309,  316,  44  L.  Ed.  174,  178,  20  Sup.  Ct.  110; 
City  Nat.  Bank  v.  Charles  Baker  Co.,  ISO  Mass.  40,  42,  61  N.  E.  223. 
In  view  of  these  cases  and  the  decision  in  the  present  case,  which  fol- 
lowed them,  a  not  very  successful  attempt  was  made  to  show  that  by 
reason  of  the  facts  which  we  have  mentioned,  and  others,  the  deposit 
here  was  unlike  an  ordinary  deposit  in  a  bank.  We  shall  not  stop  to 
discuss  this  aspect  of  the  case,  because  we  prefer  to  decide  it  upon  a 
broader  view. 

If  the  transfer  of  the  deposit  necessarily  depends  upon  and  involves 
the  law  of  New  York  for  its  exercise,  or,  in  other  words,  if  the  trans- 
fer is  subject  to  the  power  of  the  state  of  New  York,  then  New  York 
may  subject  the  transfer  to  a  tax.  United  States  v.  Perkins,  163  U.  S. 
625,  628.  629,  41  L.  Ed.  287,  288,  16  Sup.  Ct.  1073 ;  McCulloch  v. 
Maryland,  4  Wheat.  316,  429,  4  L.  Ed.  579,  607.    But  it  is  plain  that 


5,68  FUNDAMENTAL    RIGHTS  (Part  2 

the  transfer  does  depend  upon  the  law  of  New  York,  not  because  of 
any  theoretical  speculation  concerning  the  whereabouts  of  the  debt,  but 
because  of  the  practical  fact  of  its  power  over  the  person  of  the  debtor. 
The  principle  has  been  recognized  by  this  court  with  regard  to  gar- 
nishments of  a  domestic  debtor  of  an  absent  defendant.  Chicago,  R. 
I.  &  P.  Ry.  Co.  v.  Sturm,  174  U.  S.  710,  43  L.  Ed.  1144,  19  Sup.  Ct. 
797.  See  Wyman  v.  Halstead,  109  U.  S.  654,  sub  nom.  Wyman  v. 
United  States  ex  rel.  Halstead,  27  L.  Ed.  1068,  3  Sup.  Ct.  417.  What 
gives  the  debt  validity?  Nothing  but  the  fact  that  the  law  of  the  place 
where  the  debtor  is  will  make  him  pay.  It  does  not  matter  that  the 
law  would  not  need  to  be  invoked  in  the  particular  case.  Most  of  us 
do  not  commit  crimes,  yet  we  nevertheless  are  subject  to  the  criminal 
law,  and  it  affords  one  of  the  motives  for  our  conduct.  So,  again, 
what  enables  any  other  than  the  very  creditor  in  proper  person  to  col- 
lect the  debt?  The  law  of  the  same  place.  To  test  it,  suppose  that 
New  York  should  turn  back  the  current  of  legislation,  and  extend  to 
debts  the  rule  still  applied  to  slander,  that  actio  personalis  moritur  cum 
persona,  and  should  provide  that  all  debts  hereafter  contracted  in  New 
York  and  payable  there  should  be  extinguished  by  the  death  of  either 
party.  Leaving  constitutional  considerations  on  one  side,  it  is  plain 
that  the  right  of  the  foreign  creditor  would  be  gone. 

Power  over  the  person  of  the  debtor  confers  jurisdiction,  we  repeat. 
And  this  being  so,  we  perceive  no  better  reason  for  denying  the  right 
of  New  York  to  impose  a  succession  tax  on  debts  owned  by  its  citizens 
than  upon  tangible  chattels  found  within  the  state  at  the  time  of  the 
death.  The  maxim,  mobilia  sequuntur  personam,  has  no  more  truth 
in  the  one  case  than  in  the  other.  When  logic  and  the  policy  of  a  state 
conflict  with  a  fiction  due  to  historical  tradition,  the  fiction  must  give 
way. 

There  is  no  conflict  between  our  views  and  the  point  decided  in  the 
case  reported  under  the  name  of  State  Tax  on  Foreign-Held  Bonds,  15 
Wall.  300,  sub  nom.  Cleveland,  P.  &  A.  R.  Co.  v.  Pennsylvania,  21 
L.  Ed.  179.  The  taxation  in  that  case  was  on  the  interest  on  bonds 
held  out  of  the  state.  Bonds  and  negotiable  instruments  are  more  than 
merely  evidences  Of  debt.  The  debt  is  inseparable  from  the  paper 
which  declares  and  constitutes  it,  by  a  tradition  which  comes  down 
from  more  archaic  conditions.  Bacon  v.  Hooker,  177  Mass.  335,  337, 
58  N.  E.  1078,  83  Am.  St.  Rep.  279.  Therefore,  considering  only  the 
place  of  the  property,  it  was  held  that  bonds  held  out  of  the  state  could 
not  be  reached.2  The  decision  has  been  cut  down  to  its  precise  point 
by  later  cases.  Savings  &  L.  Soc.  v.  Multnomah  County,  169  U.  S. 
421,  428,  42  L.  Ed.  803,  805,  18  Sup.  Ct.  392 ;  New  Orleans  v.  Stem- 
pel,  175  U.  S.  309.  319,  320,  44  L.  Ed.  174,  180,  20  Sup.  Ct.  110. 

In  the  case  at  bar  the  law  imposing  the  tax  was  in  force  before  the 
deposit  was  made,  and  did  not  impair  the  obligation  of  the  contract,  if 

2  See  another  distinction  of  this  case  in  Buck  v.  Beach,  ante,  at  pp.  549-550. 


Cll.  11)        DUE  PROCESS  AND  EQUALITY:  TAXATION 

a  tax  otherwise  lawful  ever  can  be  said  to  have  that  effect.  Pinney  v. 
Nelson,  183  U.  S.  144,  147,  46  L.  Ed.  125,  127,  22  Sup.  Ct.  52.  The 
fact  that  two  states,  dealing  each  with  its  own  law  of  succession,  both 
of  which  the  plaintiff  in  error  has  to  invoke  for  her  rights,  have  taxed 
the  right  which  they  respectively  confer,  gives  no  cause  for  complaint 
on  constitutional  grounds.  Coe  v.  Errol,  116  U.  S.  517,  524,  29  L.  Ed. 
715,  718,  6  Sup.  Ct.  475 ;  Knowlton  v.  Moore,  178  U.  S.  53,  44  L.  Ed. 
975,  20  Sup.  Ct.  747.  The  universal  succession  is  taxed  in  one  state, 
the  singular  succession  is  taxed  in  another.  The  plaintiff  has  to  make 
out  her  right  under  both  in  order  to  get  the  money.  See  Adams  v. 
Batchekler,  173  Mass.  258,  53  N.  E.  824,  73  Am.  St.  Rep.  282.  The 
same  considerations  answer  the  argument  that  due  faith  and  credit  are 
not  given  to  the  judgment  in  Illinois.  The  tax  does  not  deprive  the 
plaintiff  in  error  of  any  of  the  privileges  and  immunities  of  the  citizens 
of  New  York.  It  is  no  such  deprivation  that  if  she  had  lived  in  New 
York  the  tax  on  the  transfer  of  the  deposit  would  have  been  part  of 
the  tax  on  the  inheritance  as  a  whole.  See  Mager  v.  Grima,  8  I  low. 
490,  12  L.  Ed.  1168;  Brown  v.  Houston,  114  U.  S.  622,  635,  29  L.  Ed. 
257,  261,  5  Sup.  Ct.  1091 ;  Wallace  v.  Myers,  4  L.  R.  A.  171,  38  Fed. 
184.  It  does  not  violate  the  fourteenth  amendment.  See  Magoun  v. 
Illinois  Trust  &  Sav.  Bank,  170  U.  S.  283,  42  L.  Ed.  1037,  IS  Sup.  Ct. 
594.    *     *     * 

Decree  affirmed." 

[White,  J.,  dissented.] 


PEOPLE  ex  rel.  HATCH  v.  REARDON  (1906)  184  N.  Y.  431, 
449-450,  77  N.  E.  970,  8  L.  R.  A.  (N.  S.)  314,  112  Am.  St.  Rep.  628, 
6  Ann.  Cas.  515,  Vann,  J.  (sustaining  a  New  York  statute  taxing  all 

'"Fundamentally  considered.  It  Is  the  power  to  transmit  or  the  transmis- 
sion or  receipt  of  property  by  death  which  Is  the  subject  levied  upon  by  all 
death  duties."— Mr.  Justice  White  In  Knowlton  v.  Moore,  178  U.  S.  41.  57,  20 
Sup.  Ct.  717.  44  L.  Ed.  969  U900). 

The  jurisdiction  of  a  state  to  levy  succession  taxes  upon  various  kinds  of 
property  of  resident  and  non-resident  decedents  has  been  considered  in  the 
following  cases,  among  others:  Property  of  resident  decedents:  Mager  v. 
Grima,  8  How.  490,  12  L.  Ed.  n<;s  (1  within 

state) ;  Matter  of  Estate  of  Swift,  137  N.  Y.  77,  32  N.  B.  1090,  18  L.  R.  A. 
709  (1893)  (real  estate  and  chattels  outside  of  state* :  Frothingham  v.  Shaw, 
175  Mass.  59,  55  N.  E.  623,  78  Am.  St  Itep.  475  (1899)  (stock  of  foreign  corpo- 
rations, bonds  and  certificates  of  indebtedness  of  foreign  debtors,  foreign 
bank  deposits — all  kept  out  of  state).  Property  of  non-resident  decedents: 
Callahan  v.  Woodbridge,  171  Mass.  595.  51  N.  E.  176  (189?)  (tangible  | 
and  bonds  of  foreign  debtors,  kept  within  state);  -Matter  of  Whiting,  150  N. 
V.  27,  -II  .V  E.  715,  84  1..  R,  A.  232,  55  Am.  St  Rep.  680  (1896)  i-tock  cer 
tificatea  of  foreign  corporations,  kept  within  state);  Blatter  ol  Bronson,  160 
N.  Y.  1,  44  N.  E.  707.  34  L.  K.  A.  238,  55  Am.  St.  Hep.  633  (1606)  (bonds  and 
stock  certificates  of  domestic  corporations,  kept  out  of  state). 

See  Kceney  v.  New  York.  222  D.  S.  525,  82  Sup.  Ct  LOS,  56  L.  Ed.  ! 
L.  B.  A.  (N.  S.)  1139  (1912)  (jurisdiction  to  lax  transfer  by  deed  effectual  at 
grantor's  death,  where  payment  of  tax  postponed  to  latter  period). 


570  FUNDAMENTAL    EIGHTS  (Part  2 

sales  of  stock  made  within  the  state,  even  as  applied  to  shares  in  a 
foreign  corporation  sold  by  and  to  nonresidents) : 

"The  question  is  whether  the  state  has  jurisdiction  to  impose  a  tax 
on  a  certain  class  of  contracts  when  made  within  its  territorial  lim- 
its? Jurisdiction  over  the  persons  who  make  the  contract  does  not 
depend  on  their  residence,  but  on  their  presence  within  the  state  when 
the  contract  is  made.  Jurisdiction  over  property  depends  on  its  phys- 
ical presence  here,  or  if  it  is  personal  property,  either  its  presence 
here  or  the  residence  of  the  owner  here.  The  fiction  of  the  common 
law,  'mobilia  sequuntur  personam,'  has  no  foundation  in  the  Consti- 
tution and  does  not  control  the  legislature,  which  rejects  or  adopts 
it  at  will  as  applied  to  the  subject  of  taxation.  When  two  citizens  of 
Connecticut  come  into  this  state  and  make  a  contract  here,  to  be 
enforced  here,  both  they  and  their  contract  are  subject  to  its  laws, 
and  they  are  not  only  entitled  to  the  protection  thereof,  but  are  under 
the  same  obligation  to  obey  as  if  they  were  citizens.  Such  a  contract 
is  valid  or  invalid  as  our  laws  declare.1  When  the  law  commands 
that  if  they,  or  any  other  persons,  whether  residents  or  not,  make  a 
certain  contract  here  they  must  pay  a  certain  tax  for  the  privilege,  the 
command  is  personal,  addressed  to  them  as  persons  then  within  the 
state,  and  is  as  binding  on  them  as  if  they  resided  in  the  state.  Their 
rights  and  their  obligations  in  reference  to  such  a  contract  are  the 
same  as  if  they  were  citizens,  no  greater  and  no  less.  The  fact  that 
the  contract,  though  made  here,  may  relate  to  property,  real  or  per- 
sonal, situated  elsewhere,  has  no  bearing  upon  the  question.  By  com- 
ing into  the  state  they  subjected  themselves  to  its  laws,  and  to  its  tax- 
ing power,  so  far  as  the  making  of  such  a  contract  is  concerned.  It 
is  immaterial  whether  the  contract  is  between  residents  or  nonresi- 
dents, or  between  a  resident  and  a  nonresident,  for  if  it  is  made  within 
the  state  it  is  subject  to  taxation  by  the  state.  This  necessarily  follows 
from  the  power  of  the  state  over  the  subject  of  taxation.  It  has  power 
to  tax  all  property  within  its  territory,  all  business  done  and  all  con- 
tracts made  within  that  territory,  provided  they  are  not  protected  as 
federal  agencies,  whether  the  property  is  owned  or  the  business  is 
done  or  the  contracts  are  made  by  residents  or  nonresidents.  'It  has 
never  been  questioned  that  the  legislature  can  impose  a  tax  on  all  sales 
of  property,  upon  all  incomes,  upon  all  acquisitions  of  property,  upon 
all  business  and  upon  all  transfers.'  Matter  of  McPherson,  104  N. 
Y.  306,  317,  10  N.  E.  685,  686,  58  Am.  Rep.  502."  * 

i  As  to  the  domestic  enforcement  of  contracts  affecting  foreign  property,  see 
Selover  v.  Walsh,  226  U.  S.  112,  33  Sup.  Ct  69.  57  L.  Ed. (1912). 

*  Affirmed  in  People  ex  rel.  Hatch  v.  Reardon,  204  D.  S.  152,  158,  159,  27 
Sup.  Ct.  188,  189,  190,  51  L.  Ed.  415,  9  Ann.  Cas.  736  (1907),  Holmes,  J.,  saying: 
"It  Is  urged  further  that  a  tax  on  sales  Is  really  a  tax  on  property,  and  that 
therefore  the  act,  as  applied  to  the  shares  of  a  foreign  corporation  owned  by 
nonresidents,  is  a  taking  of  property  without  due  process  of  law.  Union 
Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194,  50  L.  Ed.  150,  26  Sup. 
Ct.  36,  4  Ann.  Cas.   493  (1905).     This  argument  presses  the  expressions  in 


Ch.  11)  DUB   PROCESS   AND    EQUALITY  I     TAXATION  571 


DEWEY  v.  DES  MOINES. 

(Supreme  Court  of  United  States,  1899.     173  U.  S.  103,  19  Sup.  Ct  379,  43 
L.  Ed.  665.) 

[Error  to  the  Supreme  Court  of  Iowa.  Dewey,  a  resident  of  Chica- 
go, owned  lots  in  Des  Moines,  Iowa,  upon  which  a  paving  assess- 
ment was  placed  to  an  amount  beyond  their  value.  By  statute  a  per- 
sonal judgment  was  authorized  against  the  owner  in  such  cases.  He 
brought  suit  in  Iowa  to  set  aside  the  assessment,  the  contractor  being 
made  a  party,  and  the  latter  recovered  judgment  against  Dewey,  on  a 
counterclaim  for  the  paving,  for  any  deficiency  remaining  after  the 
sale  of  the  lots.    The  state  Supreme  Court  affirmed  this  judgment.] 

Mr.  Justice  PECKHAM.  *  *  *  In  this  case  no  question  arises  with 
regard  to  the  validity  of  a  personal  judgment  like  the  one  herein 
against  a  resident  of  the  state  of  Iowa,  and  we  therefore  express  no 
opinion  upon  that  subject.  This  plaintiff  was  at  all  times  a  nonresi- 
dent of  that  state,  and  we  think  that  a  statute  authorizing  an  assess- 
ment to  be  levied  upon  property  for  a  local  improvement,  and  impos- 
ing upon  the  lot  owner,  who  is  a  nonresident  of  the  state,  a  personal 
liability  to  pay  such  assessment,  is  a  statute  which  the  state  has  no 
power  to  enact,  and  which  cannot,  therefore,  furnish  any  foundation 
for  a  personal  claim  against  such  nonresident.  There  is  no  course  of 
reasoning  as  to  the  character  of  an  assessment  upon  lots  for  a  local 
improvement  by  which  it  can  be  shown  that  any  jurisdiction  to  collect 
the  assessment  personally  from  a  nonresident  can  exist.  The  state 
may  provide  for  the  sale  of  the  property  upon  which  the  assessment 
is  laid,  but  it  cannot,  under  any  guise  or  pretense,  proceed  further,  and 
impose  a  personal  liability  upon  a  nonresident  to  pay  the  assessment 
or  any  part  of  it.    To  enforce  an  assessment  of  such  a  nature  against 

Brown  v.  Maryland,  12  Wheat  419,  111,  (I  L.  Ed.  G78.  G87  (1S27).  Fnirhnnk  v. 
United  States,  181  U.  S.  2S3,  45  L.  Ed.  802,  21  Sup.  Ct  Rep.  CIS  (1901),  and 
intervening  cases,  to  new  applications,  and  farther  tlian  they  properly  ran  he 
made  to  go.  Whether  we  are  to  distinguish  or  to  Identify  taxes  on  sales  and 
taxes  on  goods  depends  on  the  scope  of  the  constitutional  provision  concerned. 
Compare  Fopptano  v.  Speed,  199  U.  S.  501,  520,  50  L.  Ed.  288,  292,  26  Sup  Ct 
138  (1905).  A  tax  on  foreign  bills  of  lading  may  he  held  equivalent  to  a  tax 
on  exports  as  against  article  1,  !  9;  a  license  tax  on  importers  of  foreign 
goods  maj  be  held  an  unauthorized  Interference  with  commerce;  and  yet  it 
would  be  consistent  to  sustain  a  tax  on  sales  within  the  state  as  against  the 
fourteenth   amendment   so    far   as   that   alone  is  concerned.     Whatever   the 

right  of  parties  engaged  In  commerce  i i     the  states,  a  sale  depends  In  part 

on  the  law  of  the  state  where  it  takes  place  for  its  validity  and,  in  the  courts 
of  that  state,  at  least  for  the  mode  of  proof.     No  one  would  contest   the  power 

to  enact  a  statute  of  frauds  for  such  transactions,  Therefore  ti<e  stale  may 
make  parties  pay  for  the  help  of  its  laws,  as  against  this  objection.  A  stat 
ute  requiring  a  memorandum  in  writing  Is  quite  as  clearly  a  regulation  of 
the  business  as  a  tax.  It  is  unnecessary  to  consider  other  answers  to  this 
point." 

See  Foppiano  v.  Speed,  199  U.  S.  501,  519-620,  26  Sup,  Ct  188,  50  L.  Bd. 
288  (1905)  (regulation  of  contracts  made  between  parties  en  route  through 
state).  Compare  the  probable  doctrine  as  to  the  nontaxabllity  of  property 
transitorily  present,  Blackstone  v.  Miller,  ante,  p.  506,  note. 


572  FUNDAMENTAL    RIGIIT3  (Part   2 

a  nonresident,  so  far  as  his  personal  liability  is  concerned,  would 
amount  to  the  taking  of  property  without  due  process  of  law,  and 
would  be  a  violation  of  the  federal  Constitution. 

In  this  proceeding  of  the  lot  owner  to  have  the  assessment  set  aside, 
and  the  statutory  liability  of  plaintiff  adjudged  invalid,  the  court  was 
not  justified  in  dismissing  the  petition,  and  giving  the  contractor,  not 
only  judgment  on  his  counterclaim  foreclosing  his  lien,  but  also  in- 
serting in  that  judgment  a  provision  for  a  personal  liability  against  the 
plaintiff  and  for  a  general  execution  against  him.  Such  a  provision 
against  a  nonresident,  although  a  litigant  in  the  courts  of  the  state, 
was  not  only  erroneous,  but  it  was  so  far  erroneous  as  to  constitute, 
if  enforced,  a  violation  of  the  federal  Constitution,  for  the  reason  al- 
ready mentioned.  By  resorting  to  the  state  court  to  obtain  relief  from 
the  assessment  and  from  any  personal  liability  provided  for  by  the 
statute,  the  plaintiff  did  not  thereby  in  any  manner  consent,  or  ren- 
der himself  liable,  to  a  judgment  against  him  providing  for  any  per- 
sonal liability.  Nor  did  the  counterclaim  made  by  the  defendant  con- 
tractor give  any  such  authority. 

The  principle  which  renders  void  a  statute  providing  for  the  per- 
sonal liability  of  a  nonresident  to  pay  a  tax  of  this  nature  is  the  same 
which  prevents  a  state  from  taking  jurisdiction  through  its  courts,  by 
virtue  of  any  statute,  over  a  nonresident  not  served  with  process  with- 
in the  state,  to  enforce  a  mere  personal  liability,  and  where  no  proper- 
ty of  the  nonresident  has  been  seized  or  brought  under  the  control 
of  the  court.  This  principle  has  been  frequently  decided  in  this  court. 
One  of  the  leading  cases  is  Pennoyer  v.  Neff,  95  U.  S.  714,  24  L,.  Ed. 
565,  and  many  other  cases  therein  cited.  Railway  Co.  v.  Pinkney,  149 
U.  S.  194,  209,  13  Sup.  Ct.  859,  37  L.  Ed.  699. 

The  lot  owner  never  voluntarily  or  otherwise  appeared  in  any  of  the 
proceedings  leading  up  to  the  levying  of  the  assessment.  He  gave  no 
consent  which  amounted  to  an  acknowledgment  of  the  jurisdiction  of 
the  city  or  common  council  over  his  person. 

A  judgment  without  personal  service  against  a  nonresident  is  only 
good  so  far  as  it  affects  the  property  which  is  taken  or  brought  under 
the  control  of  the  court  or  other  tribunal  in  an  ordinary  action  to 
enforce  a  personal  liability,  and  no  jurisdiction  is  thereby  acquired 
over  the  person  of  a  nonresident  further  than  respects  the  property 
so  taken.  This  is  as  true  in  the  case  of  an  assessment  against  a  non- 
resident of  such  a  nature  as  this  one  as  in  the  case  of  a  more  formal 
judgment. 

The  jurisdiction  to  tax  exists  only  in  regard  to  persons  and  property 
or  upon  the  business  done  within  the  state,  and  such  jurisdiction  can- 
not be  enlarged  by  reason  of  a  statute  which  assumes  to  make  a  non- 
resident personally  liable  to  pay  a  tax  of  the  nature  of  the  one  in 
question.  All  subjects  over  which  the  sovereign  power  of  the  state 
extends  are  objects  of  taxation.  Cooley,  Tax'n  (1st  Ed.)  pp.  3,  4; 
Burroughs,  Tax'n,  §  6.    The  power  of  the  state  to  tax  extends  to  alL 


Ol.  IT)  DUE   PROCESS   AND    EQUALITY:     TAXATION  573 

objects  within  the  sovereignty  of  the  state.  Per  Mr.  Justice  Clifford, 
lilton  Co.  v.  Massachusetts,  6  Wall.  632,  at  page  638,  18  L.  Ed. 
904.  The  power  to  tax  is,  however,  limited  to  persons,  property,  and 
business  within  the  state,  and  it  cannot  reach  the  person  of  a  non- 
resident. Case  of  the  State  Tax  on  Foreign-Held  Bonds,  15  Wall.  300, 
319,  21  L.  Ed.  179.  In  Cooley,  Tax'n  (1st  Ed.)  p.  121,  it  is  said  that 
"a  state  can  no  more  subject  to  its  power  a  single  person  or  a  single 
article  of  property,  whose  residence  or  legal  situs  is  in  another  state, 
than  it  can  subject  all  the  citizens  or  all  the  property  of  such  other 
state  to  its  power."  These  are  elementary  propositions,  but  they  are 
referred  to  only  for  the  purpose  of  pointing  out  that  a  statute  imposing 
a  personal  liability  upon  a  nonresident  to  pay  such  an  assessment  as 
this  oversteps  the  sovereign  power  of  a  state.  *  *  * 
Judgment  reversed.1 


SECTION  2.— PUBLIC  PURPOSE 


LOWELL  v.  BOSTON. 

(Supreme   Judicial    Court   of   Massachusetts,   1873.      Ill   Mass.   454,    15   Am. 
Rep.  39.) 

[Bill  in  equity  by  Lowell  and  others,  taxable  inhabitants  of  Boston, 
to  restrain  the  issue  of  bonds  authorized  by  a  statute  of  1872  to  an 
amount  not  exceeding  $20,000,000.  The  proceeds  of  the  bonds  were  to 
be  loaned  by  commissioners  to  the  owners  of  land  burned  over  in  the 
great  Boston  fire,  secured  by  first  mortgage  on  such  land,  and  condi- 
tioned upon  rebuilding  in  one  year.  Demurrer,  and  case  reserved  for 
the  full  court.] 

Wells,  J.  The  issue  of  bonds  by  the  city,  whatever  provision  may 
be  made  for  their  redemption,  involves  the  possible  and  not  improbable 
consequence  of  a  necessity  to  provide  for  their  payment  by  the  city. 
The  right  to  incur  the  obligation  implies  the  right  to  raise  money 
by  taxation  for  payment  of  the  bonds;  or,  what  is  equivalent,  the 
right  to  levy  a  tax  for  the  purposes  for  which  the  fund  is  to  be  raised 
by  means  of  the  bonds  so  authorized.    *    *    * 

The  power  to  levy  taxes  is  founded  on  the  right,  duty,  and  responsi- 
bility to  maintain  and  administer  all  the  governmental  functions  of  the 

i  Compare  Corry  v.  Baltimore,  186  C.  S.  466,  20  Sup.  Ct.  -jot,  -to  L. 
!  (non-resident  stockholder  linlle  for  t.-ix  on  slmres  of  domesti    • 

tion).    The  r<  Hd  ni  .iwncr  of  taxable  property  may  i»>  made  person 
for  the  tax.    Davidson  v.  New  Orleans,  96  i     S.  91 

I :    Palmer  v.  McMahon,  133  U.  S.  ecu,  10  Sup.  Ct  324,  33  L.  Ed.  772 
(1890)  (personalty). 


574  FUNDAMENTAL    RIGHTS  (Part  2 

state,  and  to  provide  for  the  public  welfare.  To  justify  any  exercise 
of  the  power  requires  that  the  expenditure  which  it  is  intended  to 
meet  shall  be  for  some  public  service,  or  some  object  which  concerns 
the  public  welfare.  The  promotion  of  the  interests  of  individuals, 
either  in  respect  of  property  or  business,  although  it  may  result  in- 
cidentally in  the  advancement  of  the  public  welfare,  is,  in  its  essential 
character,  a  private  and  not  a  public  object.  However  certain  and 
great  the  resulting  good  to  the  general  public,  it  does  not,  by  reason 
of  its  comparative  importance,  cease  to  be  incidental.  The  incidental 
advantage  to  the  public,  or  to  the  state,  which  results  from  the  promo- 
tion of  private  interests,  and  the  prosperity  of  private  enterprises  or 
business,  does  not  justify  their  aid  by  the  use  of  public  money  raised 
by  taxation,  or  for  which  taxation  may  become  necessary.  It  is  the 
essential  character  of  the  direct  object  of  the  expenditure  which  must 
determine  its  validity,  as  justifying  a  tax,  and  not  the  magnitude  of 
the  interests  to  be  affected,  nor  the  degree  to  which  the  general  ad- 
vantage of  the  community,  and  thus  the  public  welfare,  may  be  ulti- 
mately benefited  by  their  promotion. 

The  principle  of  this  distinction  is  fundamental.  It  underlies  all 
government  that  is  based  upon  reason  rather  than  upon  force.  It  is 
expressed  in  various  forms  in  the  Constitution  of  Massachusetts.  In 
article  XI,  c.  2,  §  1,  by  restricting  the  issuing  of  moneys  from  the 
treasury  to  purposes  of  "the  necessary  defence  and  support  of  the 
commonwealth ;  and  for  the  protection  and  preservation  of  the  inhabi- 
tants thereof,  agreeably  to  the  Acts  and  Resolves  of  the  General 
Court."  In  article  IV,  c.  1,  §  1,  by  declaring  the  purposes  for  which 
the  power  of  taxation,  in  its  various  forms,  may  be  exercised  by  the 
General  Court  to  be  "for  the  public  service,  in  the  necessary  defence 
and  support  of  the  government  of  the  said  commonwealth,  and  the 
protection  and  preservation  of  the  subjects  thereof."  *  *  *  Article 
X  declares :  "  *  *  *  And  whenever  the  public  exigencies  require 
that  the  property  of  any  individual  should  be  appropriated  to  public 
uses,  he  shall  receive  a  reasonable  compensation  therefor." 

The  power  of  the  government,  thus  constituted,  to  affect  the  indi- 
vidual in  his  private  rights  of  property,  whether  by  exacting  contribu- 
tions to  the  general  means,  or  by  sequestration  of  specific  property,  is 
confined,  by  obvious  implication  as  well  as  by  express  terms,  to  pur- 
poses and  objects  alone  which  the  government  was  established  to  pro- 
mote, to  wit,  public  uses  and  the  public  service.  This  power,  when 
exercised  in  one  form,  is  taxation ;  in  the  other,  is  designated  as  the 
right  of  eminent  domain.  The  two  are  diverse  in  respect  of  the  occa- 
sion and  mode  of  exercise,  but  identical  in  their  source,  to  wit,  the 
necessities  of  organized  society;  and  in  the  end  by  which  alone  the 
exercise  of  either  can  be  justified,  to  wit,  some  public  service  or  use. 
It  is  due  to  their  identity  in  these  respects  that  the  two  powers,  other- 
wise so  unlike,  are  associated  together  in  the  same  article.  So  far  as  it 
concerns  the  question  what  constitutes  public  use  or  service  that  will 


Ch.  11)  ddi:  PB0CB8S  and  equality:    taxation  575- 

justify  the  exercise  of  these  sovereign  powers  over  private  rights  of 
property,  which  is  the  main  question  now  to  be  solved,  this  identity- 
renders  it  unnecessary  to  distinguish  between  the  two  forms  of  ex- 
ercise, as  the  same  tests  must  apply  to  and  control  in  each.  An  ap- 
propriation of  money  raised  by  taxation,  or  of  property  taken  by  right 
of  eminent  domain,  by  way  of  gift  to  an  individual  for  his  own  private- 
uses  exclusively,  would  clearly  be  an  excess  of  legislative  power.  The 
distinction  between  this  and  its  appropriation  for  the  construction  of  a 
highway  is  marked  and  obvious.  It  is  independent  of  all  considera- 
tions of  resulting  advantage.  The  individual,  by  reason  of  his  capacity, 
enterprise,  or  situation,  might  be  enabled  to  employ  the  money  or 
property  thus  conferred  upon  him  in  such  a  manner  as  to  furnish  em- 
ployment to  great  numbers  of  the  community,  to  give  a  needed  impulse 
to  business  of  various  kinds,  and  thus  promote  the  general  prosperity 
and  welfare.  In  this  view,  it  might  be  shown  to  be  for  the  public 
good  to  take  from  the  unenterprising  and  thriftless  their  unemployed 
capital  and  intrust  it  to  others  who  will  use  it  to  better  advantage  for 
the  interests  of  the  community.  But  it  needs  no  argument  to  show 
that  such  an  arbitrary  exercise  of  power  would  be  a  violation  of 
the  constitutional  rights  of  those  from  whom  the  money  or  property 
was  taken,  and  an  unjustifiable  usurpation. 

In  the  case  of  a  highway,  on  the  other  hand,  its  direct  purpose  of 
public  use  determines  conclusively  the  question  in  support  of  the  exer- 
cise, both  of  the  right  of  eminent  domain  and  of  taxation,  however 
trifling  the  advantage  to  the  public  compared  with  that  to  individuals. 
The  extent  or  value  of  the  public  use,  and  the  wisdom  and  propriety  of 
the  appropriation,  are  matters  to  be  determined  exclusively  by  the 
legislature,  either  directly  or  by  its  delegated  authority.  When  the 
power  exists,  it  is  not  within  the  province  of  the  court  to  interfere  with 
its  exercise,  by  any  inquiry  into  its  expediency. 

The  two  instances  above  referred  to  illustrate  the  sense  in  which  the 
furthering  of  the  public  good  by  promotion  of  the  interests  of  many 
individuals  differs  from  a  public  service.  A  public  service  may  or  may 
not  be  productive,  practically,  of  public  advantage.  Resulting  advan- 
tage to  the  public  does  not  of  itself  give  to  the  means  by  which  it  is 
produced  the  character  of  a  public  service. 

There  are,  indeed,  many  cases  in  which  the  sovereign  power  of  gov- 
ernment is  exercised  to  affect  private  rights  of  property  in  favor  of 
private  parties,  either  individuals  or  corporations.  Most  conspicuous 
among  these  are  turnpikes  and  railroads,  in  whose  favor  this  right  of 
eminent  domain  is  frequently  exercised.  Private  rights  are  thus  taken 
and  transferred,  not  to  the  state,  but  to  the  private  corporation  ;  and 
the  compensation  to  the  persons  injured,  required  by  the  Constitution 
is  also  rendered  from  the  corporation.  Such  an  appropriation  of  prop- 
erty is  justified,  and  can  only  be  justified,  by  the  public  service  thereby 
secured  in  the  increased  facilities  for  transportation  of  freight  and  pas- 
sengers, of  which  the  whole  community  may  rightfully  avail  itself. 


576  FUNDAMENTAL    RIGHTS  (Part  2 

The  franchises  of  the  corporation  are  held  charged  with  this  duty 
and  trust  for  the  performance  of  the  public  service,  for  which  they 
were  granted.  Commonwealth  v.  Wilkinson,  16  Pick.  175,  26  Am. 
Dec.  654;  Same  v.  Boston  &  Maine  Railroad,  3  Cush.  25,  45;  Old 
Colony  &  Fall  River  Railroad  Co.  v.  County  of  Plymouth,  14  Gray, 
155,  161. 

This  right  of  eminent  domain  is  often  allowed  to  be  exercised  in 
favor  of  private  aqueduct  companies.  Here,  too,  the  public  service, 
intended  as  the  object  of  the  grant  of  the  right,  is  obvious.  And 
although  the  interests  of  the  aqueduct  company  are  ordinarily  relied 
upon  to  secure  the  proper  performance  of  the  service,  yet,  in  case  of 
any  failure  or  abuse,  the  obligation  may  doubtless  be  otherwise  en- 
forced.   Lumbard  v.  Stearns,  4  Cush.  60. 

The  Mill  Acts,  so  called,  are  often  referred  to  as  authorizing  the 
exercise  of  the  right  of  eminent  domain  by  private  parties  for  their 
exclusive  private  benefit.  And  the  language  of  the  court,  used  argu- 
endo, has  been  sometimes  such  as  to  imply  that  the  growth  and  pros- 
perity of  manufacturing  and  other  industrial  enterprises  were  of  such 
importance  to  the  public  welfare  as  to  justify  the  exercise  of  the  right 
of  eminent  domain  in  their  behalf,  as  a  public  use.  Boston  &  Rox- 
bury  Mill  Co.  v.  Newman,  12  Pick.  467,  23  Am.  Dec.  622 ;  Hazen  v. 
Essex  Co.,  12  Cush.  475,  478;   Talbot  v.  Hudson,  16  Gray,  417,  426. 

That  mills  for  the  sawing  of  lumber  for  purposes  of  building,  grind- 
ing grain  for  food,  and  the  manufacture  of  material  for  clothing,  may 
be  of  such  necessity  to  a  community,  especially  in  the  early  settlement 
of  a  country,  as  to  make  their  establishment  a  provision  for  a  public 
service,  we  do  not  question.  It  is  doubtless  within  the  power  of  the 
legislature  to  declare  the  existence  of  a  public  exigency  for  the  estab- 
lishment of  a  mill,  for  which  the  right  of  eminent  domain  may  prop- 
erly be  exercised;  as  in  the  case  of  the  Boston  &  Roxbury  Mill  Cor- 
poration, and  the  Salem  Milldam  Corporation.  What  may  be  the 
limits  of  legislative  power  in  that  direction,  and  whether  there  are 
any  limits  except  in  the  sound  discretion  of  the  legislature,  it  is  need- 
less now  to  inquire.  We  are  satisfied  that  the  Mill  Acts  are  not 
founded  upon  that  power,  and  do  not  authorize  its  exercise. 

The  advantages  to  be  derived  from  a  running  stream  by  the  sev- 
eral riparian  proprietors  are  of  natural  right.  Each  one  may  make 
use  of  its  waters,  as  they  flow  through  his  lands,  in  a  reasonable 
manner,  for  such  purposes  as  they  are  adapted  to  serve.  In  order 
that  each  may  have  his  opportunity  in  turn,  each  is  entitled  to  have 
the  water  allowed  to  flow  to  and  from  his  land  as  it  has  been  accus- 
tomed to  flow,  with  only  such  modifications  as  result  from  such  rea- 
sonable use.  Hence,  all  proprietors  upon  a  stream,  from  its  source 
to  its  mouth,  have,  in  a  certain  sense,  a  common  interest  in  it,  and  a 
common  right  to  the  enjoyment  of  all  its  capacities.  Among  those 
capacities  no  one  is  more  important  than  that  of  the  force  of  the  cur- 
rent to  supply  power  for  the  operation  of  mills.    To  make  that  force 


Ch.  11)  DUB  PROCESS  AND  EQUALITY:     TAXATION  577 

practically  serviceable  requires  a  considerable  head  and  fall  at  the 
point  where  it  is  to  be  applied ;  often  more  than  can  be  gained  within 
the  limits  of  one  proprietor.  The  use  of  the  stream  in  this  mode  has 
always  been  regarded  as  a  reasonable  use,  notwithstanding  the  effect 
of  the  dam,  by  which  the  head  is  created,  to  retard  the  water  in  its 
flow  to  the  proprietor  below,  and  to  set  it  back  and  thus  diminish 
or  destroy  the  force  of  the  current  above.  One  who  thus  appropriates 
the  force  of  the  current  is  in  the  enjoyment  of  a  common  right,  in 
which  he  is  protected,  although  he  may  thereby  prevent  a  li 
subsequently  by  the  proprietor  above.  Hatch  v.  Dwight,  17  Mass.  289, 
296,  9  Am.  Dec.  145;  Gary  v.  Daniels,  8  Mete.  466,  41  Am.  Dec.  532; 
Gould  v.  Boston  Duck  Co.,  13  Gray,  442.  But  this  protection  extends 
no  farther  than  to  justify  the  appropriation  of  a  part  of  that  quality 
of  the  stream  which,  until  so  appropriated,  is  common  to  all.  It  does 
not  justify  any,  even  the  least,  injury  to  land  outside  the  channel. 
Without  some  law  to  control,  the  mill  owner  would  be  exposed,  not 
merely  to  the  liability  to  make  just  compensation  for  injuries  thus 
occasioned,  but  to  harassing  suits  for  damages  and  to  abatement  of 
his  dam  as  causing  a  nuisance.  This  liability  and  the  inevitable  con- 
troversies growing  out  of  conflicting  rights  in  the  stream  itself,  tend- 
ing to  defeat  all  advantageous  use  of  its  power,  led  to  the  adoption  of 
laws  regulating  and  protecting  the  beneficial  use  of  streams  for  mil! 
purposes.  *  *  *  But  there  is  no  public  service  secured  through  the 
Mill  Acts,  except  so  far  as  it  may  result  incidentally,  and  as  the  in- 
ducements of  private  interest  may  lead  mill-owners  to  devote  their 
mills  to  purposes  favorable  to  the  public  accommodation.     *     *    * 

A  consideration,  still  more  conclusive  to  this  point,  is,  that  in  fact 
no  private  property,  or  right  in  the  nature  of  property,  is  taken  by 
force  of  the  Mill  Acts,  either  for  public  or  private  use.  They  au- 
thorize the  maintenance  of  a  dam  to  raise  a  head  of  water,  ah 
its  effect  will  be  to  overflow  die  land  of  another  proprietor.  This 
right  of  flowage  is  sometimes  inaccurately  called  an  easement.  Hunt 
v.  Whitney,  4  Mete.  603;  Talbot  v.  Hudson,  16  Gray.  417.  422,  426. 
But  it  is  not  so.  It  confers  no  right  in  the  land  upon  the  mill-owner, 
and  takes  none  from  the  land-owner.  Murdock  v.  Stickney,  S  Cush. 
113;  Storm  v.  Manchaug  Co.,  13  Allen,  10.  In  Murdock  v.  Stick- 
ney, Chief  Justice  Shaw  remarks  in  reference  to  the  Mill  Acts.  "The 
principle  on  which  this  law  is  founded  is  not,  as  has  sometime 
supposed,  the  right  of  eminent  domain,  the  sovereign  right  of  taking 
private  property  for  public  use.  It  is  not  in  any  proper  sense  a  taking 
of  the  property  of  an  owner  of  the  land  flowed,  nor  is  any  compensa- 
tion awarded  by  the  public."  In  Bates  v.  Weymouth  Tron  Co.,  S  Cush 
548,  553.  he  says,  "It  is  a  provision  by  law.  for  regulating  the  richt> 
of  proprietors,  on  one  and  the  same  stream,  from  its  rise  to  il 
let,  in  a  manner  best  calculate  I.  on  the  whole,  to  promote  and  secure 
their  common  rights  in  it."  Similar  declarations  are  made  in  Fiske 
Hall  Const. I.. — o" 


578  FUNDAMENTAL    RIGHTS  (Part  2 

v.  Framingham  Manuf.  Co.,  12  Pick.  68;  Williams  v.  Nelson,  23 
Pick.  141,  34  Am.  Dec.  45. 

This  regulation  of  the  rights  of  riparian  proprietors,  both  in  respect 
to  the  stream  and  to  their  adjacent  lands,  liable  to  be  affected  by  its 
use,  involves  no  other  governmental  power  than  that  "to  make,  or- 
dain, and  establish  all  manner  of  wholesome  and  reasonable  orders, 
laws,  statutes,  and  ordinances,"  as  the  General  Court  "shall  judge  to  be 
for  the  good  and  welfare  of  this  commonwealth,  and  for  the  govern- 
ment and  ordering  thereof,  and  of  the  subjects  of  the  same."  Const, 
of  Mass.  c.  1,  §  1,  art.  IV. 

All  individual  rights  of  property  are  held  subject  to  this  power, 
which  alone  can  adjust  their  manifold  relations  and  conflicting  tenden- 
cies. The  absolute  right  of  the  individual  must  yield  to  and  be  modi- 
fied by  corresponding  rights  in  other  individuals  in  the  community. 
The  resulting  general  good  of  all,  or  the  public  welfare,  is  the  founda- 
tion upon  which  the  power  rests,  and  in  behalf  of  which  it  is  exercise' 1 ; 
whether  by  restricting  the  use  of  private  property  in  a  manner  preju- 
dicial to  the  public  (Commonwealth  v.  Alger,  7  Cush.  53) ;  or  by 
imposing  burdens  upon  it  for  the  protection  or  convenience  in  part  of 
the  public  (Goddard,  Petitioner,  16  Pick.  504,  28  Am.  Dec.  259) ;  Bak- 
er v.  Boston,  12  Pick.  184,  193,  22  Am.  Dec.  421  (Salem  v.  Eastern 
Railroad  Co.,  98  Mass.  431,  96  Am.  Dec.  650) ;  or  by  modifying  rights 
of  individuals,  in  respect  of  their  mutual  relations,  in  order  to  secure 
their  more  advantageous  enjoyment  by  each. 

It  is  pro  bono  publico  that  general  provisions  of  law  exist  by  which 
joint  tenants  and  tenants  in  common  of  houses  and  mills  may  require 
necessary  repairs  to  be  made,  with  indemnity  out  of  the  joint  rents  or 
income  for  the  cost  thereof.  Calvert  v.  Aldrich,  99  Mass.  74,  96  Am. 
Dec.  693.  Upon  the  same  principle  one  joint  tenant  is  allowed  to 
sever  the  joint  tenancy  by  conveyance  or  partition,  and  thus  change 
the  nature  of  the  estate  of  his  co-tenant,  as  well  as  his  own.  Shaw 
v.  Hearsey,  5  Mass.  521 ;  Gen.  Sts.  c.  136,  §  1. 

Estates  in  common  may  be  divided  at  the  suit  of  any  one  of  the 
co-tenants;  and  if  not  conveniently  or  advantageously  divisible  equally, 
one  may  be  required  to  accept  less  than  his  full  share,  with  an  equiva- 
lent in  money  for  the  deficiency.  Hagar  v.  Wiswall,  10  Pick.  152; 
Buck  v.  Wolcott,  13  Gray,  268.  And  by  a  recent  statute,  under  cer- 
tain conditions,  the  whole  may  be  sold,  and  the  proceeds  in  money 
divided  instead  of  the  land.    St.  1871,  c.  111. 

Upon  the  same  principle,  proprietors  of  wharves,  or  of  general 
fields,  affected  by  a  common  interest  or  a  common  necessity,  are  al- 
lowed to  adopt  measures  to  secure  their  common  advantage,  although 
burdens  or  restrictions  result  therefrom  which  must  be  shared  by  the 
minority,  as  well  as  the  majority,  by  whose  determination  the  measures 
were  adopted.    Gen.  Sts.  c.  67 ;   Wright  v.  Boston,  9  Cush.  233. 

No  other  power  was  exercised  for  the  construction  of  drains  and 
sewers  until  1841  when  cities  and  towns  were  authorized  to  exercise 


Cll.  11)        DUE  PROCESS  AND  J'.'i.W.lTY:  TAXATION  57!) 

for  that  object  the  power  of  taxation.  St.  1841,  c.  115.  The  property 
in  such  drains  and  sewers  was  by  the  same  act  vested  in  the  city  or 
town;  so  that  there  was  a  public  use  as  well  as  a  public  service,  for 
which  that  power  was  delegated.  The  exercise  of  the  right  of  eminent 
domain,  for  the  same  object,  was  delegated  to  the  city  of  Boston  by  the 
St.  of  1857,  c.  225,  §  1,  and  to  all  other  cities  and  towns  by  the  St.  of 
1869,  c.  111. 

In  the  statutes  for  the  improvement  of  meadows,  the  provisions  for 
the  assessment  and  collection  of  the  expenses,  in  form,  resemble  tax- 
ation, and  the  power  exercised  over  private  property  is  sometimes 
ascribed  to  the  right  of  eminent  domain.  Talbot  v.  Hudson,  16  Gray, 
417,  428.  But  there  is  no  taking  for  public  use.  It  is  a  proceeding  of 
a  semi-judicial  nature,  in  which  all  those  whose  lands  are  to  be  affected 
are  joined  as  parties.  The  action  taken  therein  relates  to  that  in 
which  all  have  a  common  interest,  or  in  reference  to  which  all  are 
affected  by  a  common  necessity.  That  common  necessity  is  met,  and 
that  common  interest  secured,  by  subjecting  the  individual  rights  to 
such  modifications  as  the  commissioners  may  judge  to  be  most  practi- 
cable to  secure  the  best  advantage  of  all.  The  natural  conflict  of  rights 
which  would  arise  if  each  were  left  to  insist  on  his  own,  regardless  of 
consequences  to  others,  is  avoided  by  the  intervention  of  this  common 
agent,  by  whom  they  are  adjusted  with  due  regard  to  the  interests  of 
all  as  well  as  of  each.  For  this  purpose  they  are  treated  as  owners  of  a 
common  property.     Coomes  v.  Burt,  22  Pick.  422.    *    *     * 

We  find  in  these  statutes  no  exercise  of  the  right  of  eminent  domain, 
or  of  the  governmental  power  of  taxation.  That  which,  in  form,  re- 
sembles taxation,  is,  in  effect,  only  an  equitable  apportionment,  among 
the  parties  to  the  proceedings,  of  the  expenses  incurred  for  their  com- 
mon benefit,  by  their  common  agents,  or  rather  by  the  officers  of  the 
tribunal  charged  by  the  legislature  with  the  conduct  of  those  proceed- 
ings which  it  authorizes  for  the  execution  of  its  wholesome  and  rea- 
sonable orders  and  laws  in  that  behalf  made  and  provided.  It  differs 
from  assessments  for  drains  (Hildreth  v.  Lowell,  11  Gray,  345),  side- 
walks (Lowell  v.  Hadley,  8  Mete.  180),  and  street  "betterments"  (Jones 
v.  Aldermen  of  Boston,  104  Mass.  461),  not  only  in  the  manner  in 
which  all  persons  to  be  assessed  are  required  to  be  made  parties  to 
the  whole  proceedings,  but  also  and  especially  in  the  absence  of  any 
public  use  or  service  as  the  leading  and  direct  object  of  the  expenditure 
for  which  it  is  made. 

"The  good  and  welfare  of  this  commonwealth,"  for  which  "reason- 
able orders,  laws,  statutes,  and  ordinances"  may  be  made,  by  force  of 
which  private  rights  of  property  may  be  affected,  is  a  much  broader 
and  less  specific  ground  of  exercise  of  power  than  "public  use"  and 
"public  service."  The  former  expresses  the  ultimate  purpose,  or  re- 
sult sought  to  be  attained  by  all  forms  of  exercise  of  legislative  power 
over  property.  The  latter  imply  a  direct  relation  between  the  primary 
object  of  an  appropriation  and  the  public  enjoyment.     The  circum- 


5S0  FUNDAMENTAL    EIGHTS  (Part    2 

stances  may  be  such  that  the  use  or  service  intended  to  be  secured 
will  practically  affect  only  a  small  portion  of  the  inhabitants  or  lands 
of  the  commonwealth.  The  essential  point,  is  that  it  affects  them  as 
a  community,  and  not  merely  as  individuals.  Cooley,  Const.  Limit. 
531.  This  distinction  is  indicated,  and  recognized  as  vital,  in  Talbot 
v.  Hudson,  16  Gray,  417,  423,  425,  and  it  lies  at  the  foundation  of  the 
decision  in  that  case.  There  was  a  taking  of  private  property  by 
direct  authority  of  the  legislature,  which  the  court  held  to  have  been 
intended  as  an  exercise  of  the  constitutional  power  to  take  private 
property  for  public  use,  rendering  compensation.  The  main  question 
was,  whether  the  relief  of  an  extensive  territory  of  valuable  lands,  in 
a  thickly  settled  agricultural  region,  from  the  nuisance  of  flooding  by 
the  waters  of  a  stream,  caused  by  a  single  dam  below,  constituted  such 
an  object  of  public  concern  as  to  justify  the  exercise  of  the  power  by 
removing  the  dam.  The  court  recognized  the  difficulty  that,  so  far 
as  the  removal  of  the  dam  benefited  each  land-owner,  it  was  a  private 
use  which  would  not  justify  the  exercise  of  that  power.  But  the  ob- 
struction in  the  stream  injuriously  affected  "so  large  a  territory,  sit- 
uated in  different  towns,  and  owned  by  a  great  number  of  persons," 
as  to  give  it  the  character  of  a  public  nuisance,  the  removal  of  which 
"would  seem  to  come  fairly  within  the  scope  of  legislative  action." 
While  we  do  not  assent  to  the  suggestions  in  that  opinion,  that  the 
general  provisions  of  law  for  the  regulation  of  mills  and  the  improve- 
ment of  meadows  are  based  upon  the  constitutional  power  to  appro- 
priate private  property  under  the  right  of  eminent  domain,  we  accord 
fully  with  the  judgment  rendered  and  the  general  principle  upon  which 
it  is  founded.  *  *  *  [Dorgan  v.  Boston,  12  Allen,  223,  Dingley  v. 
Boston,  100  Mass.  544,  and  Hazen  v.  Essex  Co.,  12  Cush.  475,  are 
here  referred  to  as  involving  important  public  services  as  well  as  pri- 
vate advantages  that  promoted  general  prosperity.] 

There  is  no  public  use  or  public  service  declared  in  the  statute  now 
under  consideration,  and  we  are  of  opinion  that  none  can  be  found 
in  the  purposes  of  its  provisions.  By  its  terms  the  proceeds  of  the 
bonds,  thereby  authorized,  are  to  be  expended  in  loans  to  persons  who 
are  or  may  become  owners  of  land  in  Boston,  "the  buildings  upon 
which  were  burned  by  the  fire  in  said  Boston  on  the  ninth  and  tenth 
days  of  November,"  1872.  The  ultimate  end  and  object  of  the  expen- 
diture, as  indicated  by  the  provisions  of  the  statute  itself,  is  "to  insure 
the  speedy  rebuilding  on  said  land." 

The  general  result  may  indeed  be  thus  stated  collectively,  as  a  single 
object  of  attainment;  but  the  fund  raised  is  intended  to  be  appropri- 
ated distributively,  by  separate  loans  to  numerous  individuals,  each 
one  of  which  will  be  independent  of  any  relation  to  the  others,  or  to 
any  general  purpose,  except  that  of  aiding  individual  enterprise  in 
matters  of  private  business.  The  property  thus  created  will  remain  ex- 
clusively private  property,  to  be  devoted  to  private  uses  at  the  discre- 
tion of  the  owners  of  the  land ;   with  no  restriction  as  to  the  character 


Ch.  11)  DUE    PBOOBSB   AND   EQUALITY:     TAXATION  581 

of  the  buildings  to  be  erected,  or  the  uses  to  which  they  shall  be  de- 
voted ;  and  with  no  obligation  to  render  any  service  or  duty  to  the 
commonwealth,  or  to  the  city, — except  to  repay  the  loan, — or  to  the 
community  at  large  or  any  part  of  it.  If  it  be  assumed  that  the  pri- 
vate interests  of  the  owners  will  lead  them  to  re-establish  warehouses, 
shops,  manufactories,  and  stores,  and  that  the  trade  and  business  of 
the  place  will  be  enlarged  or  revived  by  means  of  the  facilities  thus 
provided,  still  these  are  considerations  of  private  interest,  and,  if  ex- 
pressly declared  to  be  the  aim  and  purpose  of  the  act,  they  would  not 
constitute  a  public  object,  in  a  legel  sense. 

As  a  judicial  question  the  case  is  not  changed  by  the  magnitude  of 
the  calamity  which  has  created  the  emergency ;  nor  by  the  greatness 
of  the  emergency,  or  the  extent  and  importance  of  the  interests  to  be 
promoted.  These  are  considerations  affecting  only  the  propriety  and 
expediency  of  the  expenditure  as  a  legislative  question.  If  the  expen- 
diture is,  in  its  nature,  such  as  will  justify  taxation  under  any  state  of 
circumstances,  it  belongs  to  the  legislature  exclusively  to  determine 
whether  it  shall  be  authorized  in  the  particular  case,  and  however 
slight  the  emergency,  or  limited  or  unimportant  the  interests  to  be  pro- 
moted thereby,  the  court  has  no  authority  to  revise  the  legislative  ac- 
tion. 

On  the  other  hand,  if  its  nature  is  such  as  not  to  justify  taxation  in 
any  and  all  cases  in  which  the  legislature  might  see  fit  to  give  authori- 
ty therefor,  no  stress  of  circumstances  affecting  the  expediency,  im- 
portance, or  general  desirableness  of  the  measure,  and  no  concurrence 
of  legislative  and  municipal  action,  or  preponderance  of  popular  favoi 
in  any  particular  case,  will  supply  the  element  necessary  to  bring  it 
within  the  scope  of  legislative  power. 

The  expenditure  authorized  by  this  statute  being  for  private  and  not 
for  public  objects,  in  a  legal  sense,  it  exceeds  the  constitutional  power 
of  the  legislature;  and  tiie  city  cannot  lawfully  issue  the  bonds  for  the 
purposes  of  the  act.    *    *    * 

Demurrer  overruled.1 


i  Accord:     Fcldman   &  Co.   v.   City  Council,   2.°.   S.   C.   57,  55  Am.   Rep.   6 
(1884)   (similar   facts). 

in  the  following  cases  taxation  was  held  unconstitutional  because  not  for 
a  public  purpose:    Hooper  v.   Emery,  14  Me.  375  iiv"7' 

families  of  town);     Slate    v.    Osawkefi   Township.    M    Kai. 

Rep.  99  (1875)  (seed  groin  tor  farmers  in  financial  distn 

v    iv.  rsoi  .  75  Minn,  lis,  77  N.  W.  568  (1898)  (sai  In  Keeley  In- 

Btitute  Co.  v.   Milwaukee  Co.,  95 'Wis.   IBS,  70  N.   W.   68,  86  I.,   R.    \ 

Am.  st.   Rep.  105  (1897)  (treatment  of  Indigent  drunkards  at  private 

Hon);    siate.  ex  rel.   Garth    v.    Switzler,   1,43   Mo.   287,  45   8.   W".  245,   -to  I. 

K.  A.  280,  65  Am.   St.   Rep.  653  (189S)  ilarshlp  to  defraj 

expenses  of  Indigent  .students  at  Btate  university);    Auditor  v.  State 

7r.  Ohio  st.   til.  7s  n.   B.  955,  7  L.  K.  A.  (N.  S.)  1196  (1906)  925  Quarterly 

to  indigent,  adult.  Mind  persons). 

In  the  I  ixation  for  somewhat  similar  purposes  was 

Giiian   v.   Glllan,  65   Pa.  480  (1867)   (compensation  for  property   bun 
Confederates);    State  v.  Nelson,  l  N.   D.  88,   15  N.  \\    33,  8  L    R,  a 


582  FUNDAMENTAL    BIGHTS  (Part   2 

LOAN  ASSOCIATION  v.  TOPEKA. 
(Supreme  Court  of  United  States,  1875.    20  Wall.  655,  22  L.  Ed.  455.) 

[Error  to  the  federal  Circuit  Court  for  Kansas.  The  city  of  To- 
peka,  Kansas,  under  statutory  authority,  issued  $100,000  of  bonds  as 
a  donation  to  the  King  Bridge  Company  to  aid  it  in  establishing  a 
manufactory  of  iron  bridges  in  that  city.  The  plaintiff  association 
of  Cleveland,  Ohio,  sued  Topeka  in  the  federal  Circuit  Court  for 
Kansas  for  the  interest  on  some  of  these  bonds  owned  by  plaintiff. 
The  city  demurred  and  received  judgment,  and  a  writ  of  error  was 
taken.    Other  facts  appear  in  the  opinion.] 

Mr.  Justice  Miller.  *  *  *  [After  declining  to  pass  upon  one 
of  the  grounds  urged  for  invalidating  the  bonds  under  the  Kansas 
constitution:]  We  find  ample  reason  to  sustain  the  demurrer  on  the 
second  ground  on  which  it  is  argued  by  counsel  and  sustained  by  the 
Circuit  Court.  That  proposition  is  that  the  act  authorizes  the  towns 
and  other  municipalities  to  which  it  applies,  by  issuing  bonds  or  loan- 
ing their  credit,  to  take  the  property  of  the  citizen  under  the  guise 
of  taxation  to  pay  these  bonds,  and  use  it  in  aid  of  the  enterprises  of 
others  which  are  not  of  a  public  character,  thus  perverting  the  right 
of  taxation,  which  can  only  be  exercised  for  a  public  use,  to  the  aid 
of  individual  interests  and  personal  purposes  of  profit  and  gain. 

The  proposition  as  thus  broadly  stated  is  not  new,  nor  is  the  ques- 
tion which  it  raises  difficult  of  solution.  If  these  municipal  corpora- 
tions, which  are  in  fact  subdivisions  of  the  state,  and  which  for  many 
reasons  are  vested  with  quasi  legislative  powers,  have  a  fund  or  other 
property  out  of  which  they  can  pay  the  debts  which  they  contract, 
without  resort  to  taxation,  it  may  be  within  the  power  of  the  legisla- 
ture of  the  state  to  authorize  them  to  use  it  in  aid  of  projects  strictly 
private  or  personal,  but  which  would  in  a  secondary  manner  con- 
tribute to  the  public  good ;  or  where  there  is  property  or  money 
vested  in  a  corporation  of  the  kind  for  a  particular  use,  as  public 
worship  or  charity,  the  legislature  may  pass  laws  authorizing  them 
to  make  contracts  in  reference  to  this  property,  and  incur  debts  pay- 
able from  that  source. 

But  such  instances  are  few  and  exceptional,  and  the  proposition 
is  a  very  broad  one,  that  debts  contracted  by  municipal  corporations 
must  be  paid,  if  paid  at  all,  out  of  taxes  which  they  may  lawfully 
levy,  and  that  all  contracts  creating  debts  to  be  paid  in  future,  not 
limited  to  payment  from  some  other  source,  imply  an  obligation  to 

Am.  St.  Rep.  609  (1S90)  (seed  grain  for  farmers — distress  widespread) ;  Mayor, 
etc.,  v.  Keeley  Institute.  81  Md.  106,  31  Atl.  437  (1895)  (treatment  of  indigent 
drunkard  at  private  institution);  In  re  House,  23  Colo.  S7,  46  Pac.  117,«33 
L.  R.  A.  832  (1896)  (same);  State  ex  rel.  v.  Davidson,  114  Wis.  563,  SS  N. 
W.  596,  90  N.  W.  1067,  58  L.  R.  A.  739  (1902)  (relief  to  persons  injured  and 
impoverished  by  cyclone). 


Cll.  11)  DUE   PROCESS   AND    EQUALITY  J     TAXATION 

pay  by  taxation.  It  follows  that  in  this  class  of  cases  the  right  to 
contract  must  be  limited  by  the  right  to  tax,  and  if  in  the  given  case 
no  tax  can  lawfully  be  levied  to  pay  the  debt,  the  contract  itself  is 
void  for  want  of  authority  to  make  it.     *     *     * 

We  proceed  to  the  inquiry  whether  such  a  power  exists  in  the  leg- 
islature of  the  state  of  Kansas.  *  *  *  The  theory  of  our  gov- 
ernments, state  and  national,  is  opposed  to  the  deposit  of  unlimited 
power  anywhere.  The  executive,  the  legislative,  and  the  judicial 
branches  of  these  governments  are  all  of  limited  and  denned  powers. 

There  are  limitations  on  such  power  which  grow  out  of  the  essen- 
tial nature  of  all  free  governments;  implied  reservations  of  in- 
dividual rights,  without  which  the  social  compact  could  not  exist,  and 
which  are  respected  by  all  governments  entitled  to  the  name.  No 
court,  for  instance,  would  hesitate  to  declare  void  a  statute  which 
enacted  that  A  and  B,  who  were  husband  and  wife  to  each  other, 
should  be  so  no  longer,  but  that  A  should  thereafter  be  the  husband 
of  C,  and  B  the  wife  of  D;  or  which  should  enact  that  the  home- 
stead now  owned  by  A  should  no  longer  be  his,  but  should  henceforth 
be  the  property  of  B.  Whiting  v.  Fond  du  Lac,  25  Wis.  188,  3  Am. 
Rep.  30;  Cooley  on  Constitutional  Limitations,  129,  175,  487;  Dillon 
on  Municipal  Corporations,  §  5S7. 

Of  all  the  powers  conferred  upon  government  that  of  taxation  is 
most  liable  to  abuse.  Given  a  purpose  or  object  for  which  taxation 
may  be  lawfully  used,  and  the  extent  of  its  exercise  is  in  its  very 
nature  unlimited.  It  is  true  that  express  limitation  on  the  amount 
of  tax  to  be  levied  or  the  things  to  be  taxed  may  be  imposed  by  con- 
stitution or  statute,  but  in  most  instances  for  which  taxes  are  levied, 
as  the  support  of  government,  the  prosecution  of  war,  the  national 
defence,  any  limitation  is  unsafe.  The  ertire  resources  of  the  people 
should  in  some  instances  be  at  the  disposal  of  the  government. 

The  power  to  tax  is,  therefore,  the  strongest,  the  most  pervading 
of  all  the  powers  of  government,  reaching  directly  or  indirectly  to  all 
classes  of  the  people.  It  was  said  by  Chief  Justice  Marshall,  in  the 
case  of  McCulloch  v.  State  of  Maryland,  4  Wheat.  431,  4  L.  Ed.  579. 
that  the  power  to  tax  is  the  power  to  destroy.  A  striking  instance 
of  the  truth  of  the  proposition  is  seen  in  the  fact  that  the  existing  tax 
of  ten  per  cent,  imposed  by  the  United  States  on  the  circulation  of 
all  other  banks  than  the  national  banks,  drove  out  of  existence  every 
state  bank  of  circulation  within  a  year  or  two  after  it  passage.  This 
power  can  as  readily  be  employed  against  one  class  of  individuals 
and  in  favor  of  another,  so  as  to  ruin  the  one  class  and  give  unlim- 
ited wealth  and  prosperity  to  the  other,  if  there  is  no  implied  limita- 
tion of  the  uses  for  which  the  power  may  be  exercised. 

To  lay  with  one  hand  the  power  of  the  government  on  the  prop- 
erty of  the  citizen,  and  with  the  other  to  bestow  it  upon  favored  in- 
dividuals to  aid  private  enterprises  and  build  up  private  fortunes,  i^ 
none  the  less  a  robbery  because  it  is  done  under  the  forms  of  law 


5S4  FUNDAMENTAL    RIGHTS  (Part  2 

and  is  called  taxation.  This  is  not  legislation.  It  is  a  decree  under 
legislative  forms.     ' 

Nor  is  it  taxation.  A  "tax,"  says  Webster's  Dictionary,  "is  a  rate 
or  sum  of  money  assessed  on  the  person  or  property  of  a  citizen  by 
government  for  the  use  of  the  nation  or  state."  "Taxes  are  burdens 
or  charges  imposed  by  the  legislature  upon  persons  or  property  to 
raise  money  for  public  purposes."  Cooley  on  Constitutional  Limita- 
tions, 479.  Coulter,  J.,  in  Northern  Liberties  v.  St.  John's  Church, 
13  Pa.  104  (see  also  Pray  v.  Northern  Liberties,  31  Pa.  69;  Matter  of 
Mayor  of  New  York,  11  Johns.  [N.  Y.]  77;  Camden  v.  Allen,  26  N. 
J.  Law,  398;  Sharpless  v.  Mayor  of  Philadelphia,  21  Pa.  147,  59  Am. 
Dec.  759;  Hanson  v.  Vernon,  27  Iowa,  47,  1  Am.  Rep.  215;  Whiting 
v.  Fond  du  Lac,  25  Wis.  188,  3  Am.  Rep.  30),  says,  very  forcibly,  "I 
think  the  common  mind  has  everywhere  taken  in  the  understanding 
that  taxes  are  a  public  imposition,  levied  by  authority  of  the  gov- 
ernment for  the  purpose  of  carrying  on  the  government  in  all  its  ma- 
chinery and  operations — that  they  are  imposed  for  a  public  purpose." 

We  have  established,  we  think,  beyond  cavil  that  there  can  be 
no  lawful  tax  which  is  not  laid  for  a  public  purpose.  It  may  not  be 
easy  to  draw  the  line  in  all  cases  so  as  to  decide  what  is  a  public  pur- 
pose in  this  sense  and  what  is  not. 

It  is  undoubtedly  the  duty  of  the  legislature  which  imposes  or  au- 
thorizes municipalities  to  impose  a  tax  to  see  that  it  is  not  to  be  used 
for  purposes  of  private  interest  instead  of  a  public  use,  and  the  courts 
can  only  be  justified  in  interposing  when  a  violation  of  this  principle 
is  clear  and  the  reason  for  interference  cogent.  And  in  deciding 
whether,  in  the  given  case,  the  object  for  which  the  taxes  are  as- 
sessed falls  upon  the  one  side  or  the  other  of  this  line,  they  must  be 
governed  mainly  by  the  course  and  usage  of  the  government,  the  ob- 
jects for  which  taxes  have  been  customarily  and  by  long  course  of 
legislation  levied,  what  objects  or  purposes  have  been  considered  nec- 
essary to  the  support  and  for  the  proper  use  of  the  government, 
whether  state  or  municipal.  Whatever  lawfully  pertains  to  this,  and 
is  sanctioned  by  time  and  the  acquiescence  of  the  people,  may  well 
be  held  to  belong  to  the  public  use,  and  proper  for  the  maintenance 
of  good  government,  though  this  may  not  be  the  only  criterion  of 
rightful  taxation. 

But  in  the  case  before  us,  in  which  the  towns  are  authorized  to 
contribute  aid  by  way  of  taxation  to  any  class  of  manufacturers,  there 
is  no  difficulty  in  holding  that  this  is  not  such  a  public  purpose  as  we 
have  been  considering.  If  it  be  said  that  a  benefit  results  to  the  local 
public  of  a  town  by  establishing  manufacturers,  the  same  may  be 
said  of  any  other  business  or  pursuit  which  employs  capital  or  labor. 
The  merchant,  the  mechanic,  the  innkeeper,  the  banker,  the  builder, 
the  steamboat  owner  are  equally  promoters  of  the  public  good,  and 
equally  deserving  the  aid  of  the  citizens  by  forced  contributions.  No 
line  can  be  drawn  in  favor  of  the  manufacturer  which  would  not  open 


Ch.  11)        DUE  PE0GE88  AM)  EQUALITY  I  TAXATION 

the  coffers  of  the  public  treasury  to  the  importunities  of  two-thirds 
of  the  business  men  of  the  city  or  town.     *     »     • 

Judgment  affirmed.1 

[CurFOBD,  J.,  gave  a  dissenting  opinion.] 


PEOPLE  v.  SALEM  (1870)  20  Mich.  452,  4S0,  481,  483^87.  4 
Am.  Rep.  400,  Cooley,  J.  (holding  unconstitutional  an  act  authorizing 
municipal  corporations  to  pledge  their  credit  to  aid  private  corpora- 
tions in  railroad  construction) : 

"If  we  examine  the  subject  critically,  we  shall  find  that  the  most 
important  consideration  in  the  case  of  eminent  domain  is  the  necessity 
of  accomplishing  some  public  good  which  is  otherwise  impracticable, 
and  we  shall  also  find  that  the  law  does  not  so  much  regard  the  means 
as  the  need.  [Here  follows  a  discussion  of  this  proposition,  which  is 
printed  post,  pp.  676-677.]  . 

"When  we  examine  the  power  of  taxation  with  a  view  to  ascertain 
the  purposes  for  which  burdens  may  be  imposed  upon  the  public,  we 
perceive  at  once  that  necessity  is  not  the  governing  consideration,  and 

i  Accord:  Parkersburg  v.  Brown.  106  U.  S.  4S7,  1  Sup.  Ct  4  12,  27  L.  Ed 
238  (1882);  Cole  v.  La  Grange,  113  D.  S.  1.  5  Sup.  <"t.  tit..  28  L.  Ed.  896 
(1885)  (citing  cases);  Commercial  Bank  v.  [ola,  2  Kill.  353,  Fed.  ("as.  No. 
3,061  (1S73);  Coates  v.  Campbell,  37  Minn.  49N.  35  N.  W.  360  (1$S7>;  1  '• 
v.  Mississippi  Co.,  107  Mo.  464,  18  S.  W.'24,  14  L.  R.  A.  622  (1S9D  (tree  plan! 
ing  bounty) ;  Mich.  Sugar  Co.  v.  Auditor  General,  124  Mich.  674,  83  X.  W 
625,  56  L.  R.  A.  329,  83  Am.  St.  Rep.  351  (1900). 

All  of  the  above  cited  federal  cases,  including  the  principal  case,  wi 
parently  decided  under  provisions  of  state  Constitutions,  not  under  fh< 
teenth  amendment.     See  Davidson   v.  New  Orleans,  96  U.   S.  97.   106,  24   1. 
Ed.  616  (1877);    Fallbrook  Irrig.   Dist  v.   Bradley.  164  IT.  S.   111'.    L55,  17  Sup. 
Ct.  56,  41  L.  Ed.  369  (1896);   Madisonville  Traction  Co.  v.   St  Bernard   Min 
Co.,  196  TJ.  S.  239.  260,  25  Sup.  Ct  251.  49  L.  Ed.  462  (1905). 

In  First  Municipality  v.  Orleans  Theatre  Co..  2  Hoi..  (La.)  209  (1842),  a 
municipal  subscription  of  $200,000  to  the  capital  of  a  private  theatre  coin 
pany  was  Upheld  after  ratification  by  the  legislature.  The  object  was  stated 
to  be  to  "afford  a  place  of  relaxation  and  amusement  that  would  tend  to  cor- 
rect the  morals  and  enlighten  the  minds  of  the  citizens." 

Tax   Exemptions. — Some  courts   hold   tint    tax    exemptions  to  enterprises 
primarily  of  a  private  nature  stand  on  the  same  footing  as  grants  of  public 
money  derived  from  taxation.     Brewer   Brick  Co.   v.  Brewer,  62   Me 
Am.  Rep.  395  (1873)   (brickyard);    Weeks  v.  Milwaukee.  10  Wis    24S 
(hotel).     More  commonly  such  exemptions  are  assumed  to  be  a  valid  t   - 
encouraging  various  species  of  Industry.    Opinion  of  the  Court.  58  N.  1 1    628 
(1879);    Mississippi  Const  (1890)  5§  1*-.    192;    Kentucky   I  $   17c. 

South  Carolina  Const.  (1S95)  art.  8,  5  8;   Oklahoma  ■  i    art.  10,  $  ''.. 

Illinois  Cent.  Ky.  v.  Decatur,  147  U.  S.  190.  201.  13  Sup.  Ct.  2 
.:■_  (1893)   (semble);    Florida   Cent  Ky.   v.    B  S3  D.  S.  471. 

Sup.  Ct.  176,  46  L.  Ed.  283  (1902)  (semb  e)  ,    15  i  ent  Id;:..  Taxation, 
s7  (cases).    Compare  the  analogous  case  of  <'■'  irohibltion  in  Ameri 

<an  Constitutions  against  state  aid  to  si  ns,  which  is 

held  not  to  prohibit  (lie  exemption  of  church  property  from  taxation 
tees  v.  Iowa,  46  Iowa.  27.'..  26  Am.  Rep.  138  (1877).    Questions  of  exemption 
on  the  ground  of  public  uses  naturally  tend  to  become  questions  of  da 
tion  for  taxation,  a   matter  in   which  the  legislature  has  very  great  latitude. 
Auier.  Sugar  lief.  Co.  v.  Louisiana,  post.  p.  .;i  j 


586  FUNDAMENTAL    EIGHTS  (Part  2 

that  in  many  cases  it  has  little  or  nothing  to  do  with  the  question  pre- 
sented. Certain  objects  must  of  necessity  be  provided  for  under  this 
power,  but  in  regard  to  innumerable  other  objects  for  which  the  state 
imposes  taxes  upon  its  citizens,  the  question  is  always  one  of  mere  pol- 
icy, and  if  the  taxes  are  imposed,  it  is  not  because  it  is  absolutely  nec- 
essary that  those  objects  should  be  accomplished,  but  because  on  the 
whole  it  is  deemed  best  by  the  public  authorities  that  they  should  be. 
On  the  other  hand  certain  things  of  absolute  necessity  to  civilized  so- 
ciety the  state  is  precluded,  either  by  express  constitutional  provisions, 
or  by  necessary  implication,  from  providing  for  at  all;  and  they  are 
left  wholly  to  the  fostering  care  of  private  enterprise  and  private  liber- 
ality. We  concede,  for  instance,  that  religion  is  essential,  and  that 
without  it  we  should  degenerate  to  barbarism  and  brutality ;  yet  we 
prohibit  the  state  from  burdening  the  citizen  with  its  support,  and  we 
content  ourselves  with  recognizing  and  protecting  its  observance  on 
secular  grounds.  Certain  professions  and  occupations  in  life  are  also 
essential,  but  we  have  no  authority  to  employ  the  public  moneys  to  in- 
duce persons  to  enter  them.  The  necessity  may  be  pressing,  and  to 
supply  it  may  be,  in  a  certain  sense,  to  accomplish  a  'public  purpose' ; 
but  it  is  not  a  purpose  for  which  the  power  of  taxation  may  be  em- 
ployed. The  public  necessity  for  an  educated  and  skillful  physician  in 
some  particular  locality  may  be  great  and  pressing,  yet  if  the  people 
should  be  taxed  to  hire  one  to  locate  there,  the  common  voice  would 
exclaim  that  the  public  moneys  were  being  devoted  to  a  private  pur- 
pose. The  opening  of  a  new  street  in  a  city  or  village  may  be  of  trifling 
public  importance  as  compared  with  the  location  within  it  of  some 
new  business  or  manufacture;  but  while  the  right  to  pay  out  the  pub- 
lic funds  for  the  one  would  be  unquestionable,  the  other  by  common 
consent  is  classified  as  a  private  interest,  which  the  public  can  aid  as 
individuals  if  they  see  fit,  while  they  are  not  permitted  to  employ  the 
machinery  of  the  government  to  that  end.  Indeed,  the  opening  of  a 
new  street  in  the  outskirts  of  a  city  is  generally  very  much  more  a 
matter  of  private  interest  than  of  public  concern ;  so  much  so  that  the 
owner  of  the  land  voluntarily  throws  it  open  to  the  public  without  com- 
pensation ;  yet  even  in  a  case  where  the  public  authorities  did  not  re- 
gard the  street  of  sufficient  importance  to  induce  their  taking  the  nec- 
essary action  to  secure  it,  it  would  not  be  doubted  that  the  moment 
they  should  consent  to  accept  it  as  a  gift,  the  street  would  at  once  be- 
come a  public  object  and  purpose,  upon  which  the  public  funds  might 
be  expended  with  no  more  restraints  upon  the  action  of  the  authorities 
in  that  particular,  than  if  it  were  the  most  prominent  and  essential 
thoroughfare  of  the  city. 

"By  common  consent  also  a  large  portion  of  the  most  urgent  need* 
of  society  are  relegated  exclusively  to  the  law  of  demand  and  supply. 
It  is  this  in  its  natural  operation,  and  without  the  interference  of  the 
government,  that  gives  us  the  proper  proportion  of  tillers  of  the  soil, 
artisans,  manufacturers,  merchants  and  professional  men,  and  that  de- 


Ch.  11)  DDE   PROCESS  AND   EQUALITY:     TAXATION  589 

termines  when  and  where  they  shall  give  to  society  the  benefit  of  their 
particular  services.  However  great  the  need  in  the  direction  of  any 
particular  calling,  the  interference  of  the  government  is  not  tolerated, 
because,  though  it  might  be  supplying  a  public  want,  it  is  considered 
as  invading  the  domain  that  belongs  exclusively  to  private  inclination 
and  enterprise.  We  perceive,  therefore,  that  the  term  'public  purposes,' 
as  employed  to  denote  the  objects  for  which  taxes  may  be  levied,  has 
no  relation  to  the  urgency  of  the  public  need,  or  to  the  extent  of  the 
public  benefit  which  is  to  follow.  It  is,  on  the  other  hand,  merely  a 
term  of  classification,  to  distinguish  the  object  for  which  according  to 
settled  usage,  the  government  is  to  provide,  from  those  which,  by  the 
like  usage,  are  left  to  private  inclination,  interest  or  liberality. 

"It  creates  a  broad  and  manifest  distinction — one  in  regard  to  which 
there  need  be  neither  doubt  nor  difficulty — between  public  works  and 
private  enterprises ;  between  the  public  conveniences  which  it  is  the 
business  of  government  to  provide  and  those  which  private  interest 
and  competition  will  supply  whenever  the  demand  is  sufficient.  When 
we  draw  this  line  of  distinction,  we  perceive  immediately  that  the 
present  case  falls  outside  of  it.  It  was  at  one  time  in  this  state  deem- 
ed true  policy  that  the  government  should  supply  railroad  facilities  to 
the  traveling  and  commercial  public,  and  while  that  policy  prevailed, 
the  right  of  taxation  for  the  purpose  was  unquestionable.  Our  policy 
in  that  respect  has  changed ;  railroads  are  no  longer  public  works,  but 
private  property ;  individuals  and  not  the  state  own  and  control  them 
for  their  own  profit ;  the  public  may  reap  many  and  large  benefits  from 
them,  and  indeed  are  expected  to  do  so,  but  only  incidentally,  and  only 
as  they  might  reap  similar  benefits  from  other  modes  of  investing  pri- 
vate capital.  It  is  no  longer  recognized  as  proper  or  politic  that  the 
state  should  supply  the  means  of  locomotion  by  rail  to  the  people,  and 
this  species  of  work  is  therefore  remitted  to  the  care  of  private  enter- 
prise, and  cannot  be  aided  by  the  public  funds,  any  more  than  can  any 
other  private  undertaking  which  in  like  manner  falls  outside  the  line 
of  distinction  indicated. 

"In  the  course  of  the  argument  of  this  case  allusion  was  made  to 
the  power  of  the  state  to  pay  bounties.  But  it  is  not  in  the  power  of 
the  state,  in  my  opinion,  under  the  name  of  bounty  or  under  any  other 
cover  or  subterfuge,  to  furnish  the  capital  to  set  private  parties  up  in 
any  kind  of  business,  or  to  subsidize  their  business  after  they  have  en- 
tered upon  it.  A  bounty  law  of  which  this  is  the  real  nature  is  void, 
whatever  may  be  the  pretense  on  which  it  may  be  enacted.  The  right  to 
hold  out  pecuniary  inducements  to  the  faithful  performance  of  public 
duty  in  dangerous  or  responsible  positions,  stands  upon  a  different  foot- 
ing altogether;  nor  have  I  any  occasion  to  question  the  right  to  pay  re- 
wards for  the  destruction  of  wild  beasts  and  other  public  pes 
provision  of  this  character  being  a  mere  police  regulation.  But  the 
discrimination  by  the  state  between  different  classes  of  occupations,  and 
the  favoring  of  one  at  the  expense  of  the  rest,  whether  that  one  be 


588  FUNDAMENTAL    RIGHTS  (Part    2 

'  farming  or  banking,  merchandising  or  milling,  printing  or  railroading, 
is  not  legitimate  legislation,  and  is  an  invasion  of  that  equality  of  right 
and  privilege  which  is  a  maxim  in  state  government.  When  the  door 
is  once  opened  to  it,  there  is  no  line  at  which  we  can  stop  and  say  with 
confidence  that  thus  far  we  may  go  with  safety  and  propriety,  but  no 
further.  Every  honest  employment  is  honorable,  it  is  beneficial  to  the 
public ;  it  deserves  encouragement.  The  more  successful  we  can  make 
it,  the  more  does  it  generally  subserve  the  public  good.  But  it  is  not 
the  business  of  the  state  to  make  discriminations  in  favor  of  one 
class  against  another,  or  in  favor  of  one  employment  against  another. 
The  state  can  have  no  favorites.  Its  business  is  to  protect  the  in- 
dustry of  all,  and  to  give  all  the  benefit  of  equal  laws.  It  cannot  com- 
pel an  unwilling  minority  to  submit  to  taxation  in  order  that  it  may 
keep  upon  its  feet  any  business  that  cannot  stand  alone.  Moreover,  it 
is  not  a  weak  interest  only  that  can  give  plausible  reasons  for  public 
aid:  when  the  state  once  enters  upon  the  business  of  subsidies,  we 
shall  not  fail  to  discover  that  the  strong  and  powerful  interests  are 
those  most  likely  to  control  legislation,  and  that  the  weaker  will  be 
taxed  to  enhance  the  profits  of  the  stronger.  I  shall  not  question  the 
right  of  the  people,  by  their  Constitution,  to  open  the  door  to  such  dis- 
criminations, but  in  this  state  they  have  not  adopted  that  policy,  and 
they  have  not  authorized  any  department  of  the  government  to  adopt  it 
for  them." 


PERRY  v.  KEENE. 

(Supreme  Court  of  New  Ilampshire,  1S76.    56  N.  H.  514.) 

[Bill  in  equity  on  an  agreed  statement  of  facts.  A  New  Hampshire 
statute  authorized  towns  by  a  two-thirds  vote  to  raise  by  tax  or  loan  a 
sum  not  exceeding  5  per  cent,  of  their  property  valuation,  and  appro- 
priate it  to  aid  in  railway  construction.  Plaintiffs,  who  are  taxpayers 
of  Keene,  ask  an  injunction  against  an  appropriation  of  $130,000  by 
that  town  under  this  act,  being  3  per  cent,  of  its  taxable  valuation.] 

Ladd,  J.  *  *  *  Is  the  building  of  a  railroad  a  public  purpose? 
The  legislature  have  undoubtedly  passed  their  judgment  on  that  ques- 
tion, and  determined  that  it  is.  It  is  not  to  be  denied  that  the  levying 
of  taxes  is  specially  and  entirely  a  legislative  function,  and  the  court 
are  not  to  encroach  upon  the  province  of  a  co-ordinate  branch  of  the 
government  in  the  exercise  of  that  power.  Where  is  the  line  that  di- 
vides the  province  of  the  court  from  that  of  the  legislature  in  a  mat- 
ter of  this  sort?  The  court  is  to  expound  and  administer  the  laws, 
and  there  the  judicial  function  and  duty  end.  Plow  much  of  the 
question,  whether  a  given  object  is  public,  lies  within  the  province  of 
the  law,  and  how  much  in  the'domain  of  political  science  and  states- 
manship? When  the  judge  has  declared  all  the  law  that  enters  into 
the  proDlem,  how  much  is  still  left  to  the  determination  of  the  legis- 


Ch.  11)  DDE  PB0«B8S  AND  EQUALITY!     TAXATION  |8B 

lator?  Admitting,  as  has  indeed  been  more  than  intimated  in  this 
state  (Concord  Railroad  v.  Greely,  17  N.  H.  57;,  that  it  is  for  the 
court  finally  to  determine  whether  the  use  is  public, — what  is  the 
criterion  ?  What  are  the  rules  which  the  law  furnishes  to  the  court 
wherewith  to  eliminate  a  true  answer  to  the  inquiry?  In  what  re- 
spect does  the  question  as  presented  to  the  court  differ  from  the  same 
question  as  presented  to  the  legislature?  If  the  court  stop  when 
they  reach  the  borders  of  legislative  ground,  how  far  can  they  pro- 
ceed ? 

If  the  legislature  should  take  the  property  of  A,  or  the  property 
of  all  the  tax-payers  in  the  town  of  A,  and  hand  it  over,  without  con- 
sideration, without  pretence  of  any  public  obligation  or  duty. 
to  be  used  by  him  in  buying  a  farm,  or  building  a  house,  or  setting 
himself  up  in  business,  the  case  would  be  so  clear  that  the  common- 
sense  of  every  one  would  at  once  say  the  limits  of  legislative  power 
had  been  overstepped  by  a  taking  of  private  property,  and  devoting 
it  to  a  private  use.  That  is  the  broad  ground  upon  which  such  cases 
as  Allen  v.  Jay,  60  Me.  124,  11  Am.  Rep.  185,  Lowell  v.  Boston.  Ill 
Mass.  454,  15  Am.  Rep.  39,  and  Citizens'  Loan  Association  v.  Topeka, 
20  Wall.  655,  22  L.  Ed.  455,  were  decided.  And  yet,  what  rule  of 
law  do  the  courts  find  to  aid  them  in  thus  revising  the  judgment  of 
the  legislature?  Is  it  not  clear  that  the  question  they  pass  upon  is  the 
same  question  as  that  decided  by  the  legislature,  and  that  they  must 
determine  it  in  the  same  way  the  legislature  have  done,  simply  by  the 
exercise  of  reason  and  judgment?  What  is  it  that  settles  the  char- 
acter of  a  given  purpose,  in  respect  of  its  being  public  or  otherwise5 
It  has  been  said  that  for  the  legislature  to  declare  a  use  public  does 
not  make  it  so — 17  N.  H.  57;  and  the  same  may  certainly  be  said 
with  equal  truth  of  a  like  declaration  by  the  court.  A  judicial  chris- 
tening can  no  more  affect  the  nature  of  the  thing  itself,  than  a  legisla- 
tive christening.  Judging  a  priori,  and  without  some  knowledge  of 
the  wants  of-  mankind  when  organized  in  communities  and  states,  I 
do  not  quite  understand  how  it  could  be  predicated  of  any  use.  that 
it  is  "per  se"  public,  as  is  said  by  Dixon,  C.  J.,  in  Whiting  v.  Sheboy- 
gan Railway  Co.,  9  Am.  Law  Reg.  (N.  S.)  161.  Of  light,  air.  water, 
etc.,  the  common  bounties  of  providence,  it  might,  indeed,  be  said  be- 
forehand that  they  are  in  a  very  broad  sense  public;  but  it  is  not  of 
such  uses  that  we  are  speaking.  Without  knowledge  of  human  nature, 
knowledge  derived  from  experience  and  observation  of  what  may  be 
needful  for  the  comfort,  well-being,  and  prosperity  of  the  people  of 
a  state  advanced  in  civilization. — and  knowledge,  gained  in  the  same 
way,  as  to  what  necessary  conditions  of  their  welfare  will  be  supplied 
by  private  enterprise,  and  what  will  go  unsupplied  without  interfer- 
ence by  the  state, — I  do  not  see  how  any  use  could  be  said  to  be  per 
se  public,  or  how  either  a  legislature,  or  a  court,  could  form  a 
Blent  that  would  not  be  founded  almost  wholly  upon  theory  an 
jecture. 


590  FUNDAMENTAL    RIGHTS  (Part  2 

No  one  doubts  that  the  building  and  maintaining  of  our  common 
highways  is  a  public  purpose.  Why?  Certainly  for  no  other  reason 
than  that  they  furnish  facilities  for  travel,  the  transmission  of  intel- 
ligence, and  the  transportation  of  goods.  But  why  should  the  state 
take  this  matter  under  its  fostering  care,  imposing  upon  the  people 
a  very  great  yearly  burden  in  the  shape  of  taxes  for  their  support, 
any  more  than  many  others  that  might  be  mentioned,  of  equal  and 
perhaps  greater  importance  to  its  citizens?  Is  it  of  greater  concern 
to  the  citizen  that  he  should  have  a  road  to  travel  on,  when  he  de- 
sires to  visit  his  neighbor  in  the  next  town,  or  transport  the  products 
of  his  farm  or  of  his  factory  to  market  and  bring  back  the  commodi- 
ties for  which  they  may  be  exchanged,  than  that  he  should  have  a 
mill  to  grind  his  corn, — a  tanner,  a  shoemaker,  and  a  tailor  to  manu- 
facture his  raw  material  into  clothing,  wherewith  his  body  may  be 
covered?  Doubtless  highways  are  a  great  public  benefit.  Without 
then  I  suppose  the  whole  state  would  soon  return  to  its  primal  condi- 
tion of  a  howling  wilderness,  fit  only  for  the  habitation  of  wild  beasts 
and  savages.  How  would  it  be  if  there  were  no  mills  for  the  manu- 
facture of  lumber,  no  joiners  or  masons  to  build  houses,  no  manu- 
facturers of  cloth,  no  merchants  or  tradesmen  to  assist  in  the  ex- 
change of  commodities?  These  suppositions  may  appear  somewhat 
fanciful,  but  they  illustrate  the  inquiry,  Why  is  the  building  of  roads 
to  be  regarded  as  a  public  service,  while  many  other  things  equally 
necessary  for  the  upholding  of  life,  the  security  of  property,  the  pres- 
ervation of  learning,  morality,  and  religion,  are  by  common  consent 
regarded  as  private,  and  so  left  to  the  private  enterprise  of  the  cit- 
izens? The  answer  to  this  question,  surely,  is  not  to  be  found  in  any 
abstract  principle  of  law.  It  is  essentially  a  conclusion  of  fact  and 
public  policy,  the  result  of  an  inquiry  into  the  individual  necessities 
of  every  member  of  the  community  (which  in  the  aggregate  show  the 
character  and  urgency  of  the  public  need),  and  the  likelihood  that 
those  necessities  will  be  supplied  without  interference  from  the  state. 
Obviously  it  bears  a  much  closer  resemblance  to  the  deduction  of  a 
politician,  than  the  application  of  a  legal  principle  by  a  judge.  Should 
it  be  found  by  experience  that  no  person  in  the  state  would,  volun- 
tarily and  unaided,  establish  and  carry  on  any  given  trade  or  calling, 
necessary,  and  universally  admitted  to  be  necessary,  for  the  uphold- 
ing of  life,  the  preservation  of  health,  the  maintenance  of  decencj, 
order,  and  civilization  among  the  people,  would  not  the  carrying  on 
of  such  necessary  trade  or  calling  thereupon  become  a  public  purpose, 
for  which  the  legislature  might  lawfully  impose  a  tax?  * 

Experience  shows  that  highways  would  not  be  built,  or,  if  built, 
would  not  be  located  in  the  right  places  with  reference  to  convenient 
transit  between  distant  points,  nor  kept  in  suitable  repair,  but  for  the 

i  Compare  Burlington  v.  Beasley,  91  U.  S.  310.  24  L.  Ed.  161  (1877)  (public 
aid  in  construction  of  steam  grist-mill  in  Kansas  in  1S72,  required  to  serve 
public). 


Ch.  11)  DUE   PROCESS   AND    EQUALITY:     TAXATION  501 

control  assumed  over  the  whole  matter  by  the  state ;  and  so  the  state 
interferes,  and  establishes  a  system,  and  imposes  an  enormous  burden 
upon  the  people  in  the  shape  of  taxes,  compelling  them  to  supply 
themselves  with  what  they  certainly  need,  but  need  no  more  than 
they  need  shoes  or  bread, — and  nobody  ever  complained  that  the  in- 
terference was  unauthorized,  or  the  purpose  other  than  a  public  one. 

Enough  has  been  said  to  show  the  delicate  nature  of  the  task  im- 
posed upon  the  court  when  they  are  called  upon  to  revise  the  judg- 
ment of  the  legislature  in  a  matter  of  this  description.  It  is  especially 
delicate  for  two  reasons, — first,  because  the  discretion  of  the  legisla- 
ture, with  respect  to  the  whole  subject  of  levying  taxes,  is  so  very 
large,  and  their  power  so  exclusive,  that  it  is  not  always  easy  to  say 
when  the  limits  of  that  discretion  and  power  have  been  passed ;  and, 
second,  because  the  rule  to  be  applied  is  furnished,  not  so  much  by 
the  law  as  by  those  general  considerations  of  public  policy  and  po- 
litical economy  to  which  allusion  has  been  made.  I  do  not  deny  the 
power  and  duty  of  the  court,  when  private  rights  of  property  are  in 
question,  to  settle  those  rights  according  to  a  just  interpretation  of 
the  Constitution ;  and  the  discharge  of  that  duty  may  involve  a  revi- 
sion of  the  judgment  of  the  legislature  upon  a  question  which,  like 
this,  partakes  more  or  less  of  a  political  character.  But  before  the 
court  can  reverse  the  judgment  of  the  legislature  and  the  executive, 
and  declare  a  statute  levying  or  authorizing  a  tax  to  be  inoperative 
and  void,  a  very  clear  case  must  be  shown.  After  the  legislature  and 
the  executive  have  both  decided  that  the  purpose  for  which  a  tax  is 
laid  is  public,  nothing  short  of  a  moral  certainty  that  a  mistake  has 
been  made,  can,  in  my  judgment,  warrant  the  court  in  overruling  that 
decision,  especially  when  nothing  better  can  be  set  up  in  its  place  than 
the  naked  opinion  of  the  court  as  to  the  character  of  the  use  proposed. 
Certainly  it  is  not  for  the  court  to  shrink:  from  the  discharge  of  a  con- 
stitutional duty  ;  but,  at  the  same  time,  it  is  not  for  this  branch  of 
the  government  to  set  an  example  of  encroachment  upon  the  province 
of  the  others.  It  is  only  the  enunciation  of  a  rule  that  is  now  elemen- 
tary in  the  American  states,  to  say  that,  before  we  can  declare  this 
law  unconstitutional,  we  must  be  fully  satisfied — satisfied  beyond  a 
reasonable  doubt — that  the  purpose  for  which  the  tax  is  authorized 
is  private  and  not  public. 

I  have  spoken  incidentally  of  our  common  highways;  and  it  ha« 
been  said  that  their  purpose  is.  to  furnish  to  the  public  facilities  for 
travel,  for  the  transmission  of  intelligence,  and  the  carrying  of  goods- 
No  one  will  contend  that  to  build  and  maintain  them  is  not  a  public 
purpose.  Indeed,  the  public  nature  of  this  use  is  so  very  obvious 
that  it  has  been  classed  among  those  said  to  be  public  per  se  (Whiting 
v.  Sheboygan  Railway  Co.,  supra),  standing  in  need  of  no  credentials 
from  the  court  to  entitle  it  to  legislative  recognition.  Wherein  does 
the  use  of  a  railroad  differ?  What  public  benefit  can  be  mentioned, 
that  comes  from  the  building  of  a  common  road,  that  does  not  come, 


ui)2  FUNDAMENTAL    RIGHTS  (Part  2 

in  kind  if  not  in  degree,  from  the  building  of  a  railroad?  It  is  not 
necessary  to  enlarge  upon  the  benefits  of  either:  they  are,  doubtless, 
numerous  and  varied, — so  numerous,  indeed,  so  interwoven  with 
everything  that  distinguishes  an  intelligent,  virtuous,  rich,  well-or- 
ganized, and  well-governed  state,  from  a  tribe  of  primitive  barbarians, 
that  an  attempt  to  trace  them  all  would  be  little  less  than  an  attempt 
to  search  out  the  sources  of  our  civilization.  The  point  is,  they  are 
alike  in  kind;  and  when  it  is  admitted  that  the  construction  of  one 
class  of  roads  is  clearly,  beyond  all  possibility  of  doubt,  a  public  pur- 
pose, I  cannot  conceive  upon  what  ground  it  is  to  be  said  that  the 
construction  of  the  other  class  is,  beyond  all  reasonable  doubt,  a  pri- 
vate purpose. 

It  is  said  that  railroad  corporations  are  private ;  that  the  roads  are 
built  and  run  for  private  gain;  that  the  public  can  only  enjoy  the 
benefits  offered  by  them  upon  payment  of  a  toll, — and,  therefore, 
their  purpose  is  private.  The  short  and  conclusive  answer  to  all  this, 
in  my  mind,  is,  that  the  character  of  the  agency  employed  does  not 
and  cannot  determine  the  nature  of  the  end  to  be  secured.  To  say 
of  a  railroad  corporation  that  it  is  a  private  corporation,  and  there- 
fore the  construction  of  a  railroad  is  a  private  purpose,  seems  to  me, 
in  truth,  no  more  logical,  if  less  absurd,  than  to  say  of  any  officer  or 
agent  of  the  state, — He  is  an  individual,  with  all  the  private  interests 
and  private  associations  of  other  citizens ;  therefore  the  purpose  of 
his  office  and  of  all  his  official  acts  is  private.  The  argument  that  be- 
cause a  toll  is  granted,  therefore  the  purpose  must  be  private,  car- 
ried to  its  logical  results,  would  certainly  declare  the  purpose  of  a 
very  large  number  of  public  offices  in  the  state  to  be  private, — among 
them  the  secretary  of  state,  justices  of  the  peace  and  of  police  courts, 
registers  of  probate,  registers  of  deeds,  sheriffs,  clerks  of  the  courts, 
town-clerks,  etc.,  etc. 

If  the  purpose  is  public,  it  makes  no  difference  that  the  agent  by 
whose  hand  it  is  to  be  attained  is  private.  Nor,  if  the  purpose  were 
private,  would  it  make  any  difference  that  a  public  agent  was  em- 
ployed. The  question,  therefore,  whether  a  railroad  corporation  is 
to  be  regarded  as  public,  or  private,  or  both, — that  is,  public  in  one 
aspect  and  private  in  another, — seems  to  me  quite  immaterial,  and 
that  the  decision  of  that  question  one  way  or  the  other  does  not  ad- 
vance the  inquiry  we  have  in  hand. 

It  has  been  admitted  by  some,  who  have  maintained  with  singular 
ability  and  zeal  the  position  of  the  plaintiffs  in  this  case,  that  the  state 
might  legally  take  into  its  own  hands  the  whole  matter  of  railroads 
within  its  limits ;  might  build,  equip,  operate,  and  control  them,  mak- 
ing use  of  no  intermediate  agents  in  the  business, — because  in  that 
case  the  people  would  remain  owners  of  the  property  into  which  their 
money  had  been  converted.  With  great  deference,  it  seems  to  me, 
this  is  a  concession  of  the  very  point  in  dispute.  The  form  of  the 
argument  seems  to  be  this :  The  state  cannot  levy  a  tax  for  a  private 


Ch.  11)        DDE  PROCESS  AND  EQUALITY:  TAXATION  i>'->'-' 

purpose.  So  much,  all  admit.  The  building  of  a  railroad  is  a  private- 
purpose;  but  the  state  may  nevertheless  levy  a  tax  to  build  a  rail- 
road, provided  the  tax  be  large  enough  to  carry  through  the  whole 
enterprise  without  calling  in  the  aid  of  any  oilier  agency; — or,  to 
draw  from  the  same  premises  the  conclusion  sought  to  be  established 
here,  the  state  cannot  levy  a  tax  for  a  private  purpose.  The  state- 
may  levy  a  tax  to  wholly  build,  equip,  and  run  a  railroad ;  therefore 
the  building  of  a  railroad  is  a  private  purpose.  This  does  not  bear 
examination. 

Another  argument  may  be  noticed  here.  It  has  been  said  by  courts, 
whose  decisions  we  are  accustomed  to  regard  with  great  respect,  that, 
admitting  the  power  of  the  legislature  to  authorize  towns  and  cities 
to  subscribe  for  stock  in  railroad  corporations,  and  issue  bonds  or 
levy  taxes  in  payment  thereof,  it  does  not  follow  that  they  can  law- 
fully authorize  the  direct  appropriation  of  the  public  funds  to  aid  in 
the  construction  of  a  railroad  where  no  stock  is  taken ;  because,  in 
that  event,  no  interest  or  ownership  results  to  the  town  in  the  prop- 
erty of  the  corporation,  and  no  voice  in  the  control  and  management 
of  its  affairs  is  secured.  I  do  not  understand  how  this  can  be  said 
by  a  court  of  law.  Upon  what  ground  can  the  legislature  authorize 
the  raising  of  a  tax  to  pay  for  stock  in  a  corporation  of  any  sort, 
unless  the  purchase  of  such  stock  will  be  a  devotion  of  the  public 
funds  to  a  public  service?  It  is  a  matter  of  common  knowledge  that 
the  original  stock  in  railroad  corporations  often  becomes  worthless, 
or  nearly  so;  but  whether  such  a  result  is  to  be  apprehended  or  not, 
makes  no  difference,  so  far  as  I  can  see,  with  the  argument.  If  the 
end  in  view  is  private  and  not  public,  the  legislature  might  as  well 
authorize  a  town  to  enter  into  copartnership  with  any  private  person, 
in  the  prosecution  of  any  private  enterprise  or  business,  and  furnish 
its  stipulated  proportion  of  the  capital  to  be  invested,  by  levying  a 
tax,  as  to  authorize  it  to  purchase  such  stock,  even  were  it  likely  to 
advance  in  value  on  their  hands,  and  the  people  thus  be  gainers  by 
the  operation.  Deny  that  the  end  is  public,  and  at  the  same  time  ad- 
mit that  a  tax  may  be  levied  for  the  purchase  of  the  stock,  and  the 
inevitable  conclusion  appears  to  be,  that  towns  may  be  authorized  to 
engage  in  the  private  and  perilous  business  of  dealing  in  stocks,  and 
so  apply  the  public  funds  to  a  purpose  as  remote  as  any  that  can  well 
be  conceived  from  that  permitted  by  the  Constitution,  to  say  nothing 
of  the  fact  that  such  investment  must  be  made  with  a  reasonable  as- 
surance that  the  money  will  be  lost.  Clearly,  one  or  the  Other  of 
!  repositions  mus:  be  changed:  either  we  must  admit  that  the 
end  in  view  is  public,  or  deny  the  power  to  purchase  stocks  when  the 
end  in  view  is  merely  a  private  end.2     *     *     * 

2  Tiip  distinction  here  flei  ei  'i  n  donation  to  a  railroad  and  a  sub- 

scription to  its  stock,  Is  adopted  ii    '•  v    " ''  ■-  •    S 

n.  i  o„  25  Wis.  167,  3  Am.  Rep.  M  (1S70);   Ellis  v.  N<  rUjern  Pat  u>.,  77  Wis. 
HallOo^nst.L.— 38 


594  FUNDAMENTAL    RIGHTS  (Part  2 

It  is  nowhere  contended,  and  is  not  contended  by  the  plaintiffs,  that 
a  railroad  is  not  a  public  use  in  such  sense  that  land,  the  private  prop 
erty  of  individuals,  may  be  taken  for  its  construction.  But  a  strenuous 
effort  has  been  made  to  distinguish  between  the  nature  of  a  public  use 
that  warrants  the  exercise  of  the  power  of  eminent  domain,  and  that 
which  warrants  the  exercise  of  the  taxing  power  in  its  behalf.  Of 
course  the  use  which  warrants  the  taking  of  land  for  a  road-bed  must 
be  public,  otherwise  every  charter  granting  that  right,  and  every  gen- 
eral law  recognizing  its  existence  and  regulating  the  mode  of  its  ex- 
ercise, has  been  nothing  less  than  an  arbitrary  and  despotic  interference 
by  the  legislature  with  private  rights  of  property,  in  flagrant  violation 
of  article  12  of  the  Bill  of  Rights,  as  well  as  the  other  provisions  of 
the  Constitution  whereby  those  rights  are  secured.  The  argument, 
then,  admits  that  the  use  is  public,  but  holds  that  it  is  not  sufficiently 
public,  or  is  not  public  in  the  particular  way,  to  bring  it  within  the 
category  of  objects  for  which  taxes  may  be  imposed:  either  in  de- 
gree or  kind,  the  public  quality  which  it  confessedly  possesses  falls 
short  of  that  required  by  the  Constitution  to  justify  an  exercise  of 
the  taxing  power. 

It  is  incumbent  on  those  who  undertake  to  maintain  this  distinction, 
to  point  out  clearly  the  differences  on  which  it  rests.  An  assertion 
that  it  does  exist  is  not  enough,  nor  is  the  argument  advanced  by  a 
repetition  of  such  assertion,  even  though  made  in  confident  and  em- 
phatic terms.  What  is  the  rule  wherewith  we  are  to  determine  when 
a  given  public  use  is  of  a  character  to  warrant  the  exercise  of  one 
power  and  not  the  other?  What  is  the  principle  to  be  applied?  No 
one  will  contend  that  the  power  of  eminent  domain  and  the  taxing 
power,  though  similar,  are  in  all  respects  identical ;  but  all  agree  that 
neither  can  be  exercised  except  for  a  public  end.  Which  is  the  higher 
power?  or,  in  other  words,  which  requires  the  greater  public  exigency 
to  call  it  forth?  What  is  the  nature  of  those  objects  which  lie  on  one 
side  of  the  line,  and  what  of  those  upon  the  other  side?  Where  is  the 
line  to  be  drawn,  and  what  are  the  reasons  that  determine  its  location? 
These  are  some  of  the  questions  not  to  be  evaded,  or  met  with  much 
speech  and  ingenious  ratiocination,  but  to  be  answered  fairly  and 
clearly,  before  a  court  can  say  that  the  legislature  have  beyond  all 
reasonable  doubt  transcended  their  constitutional  powers  in  declaring 
that  a  use  which  is  of  such  character — that  is,  public  in  such  sense 
that  private  property  may  be  taken  and  appropriated  in  its  behalf — 
is  also  public  in  such  sense  that  taxes  may  be  levied  in  its  behalf.  In 
those  cases  to  which  we  have  been  referred  by  the  plaintiffs'  counsel, 
where  an  attempt  to  do  this  is  made,  it  does  appear  to  me  the  failure 
has  been  rendered  only  more  conspicuous  by  the  eminent  ability  of 
those  who  have  undertaken  the  task.     And,  after  a  most  careful  ex- 

114,  45  N.  W.  811  (1890).    The  rule  of  the  principal  case  is  generally  followed 
-elsewhere.     Railroad  Co.  v.  Otoe,  16  Wall.  667,  21  L.  Ed.  375  (1872). 


Ch.  11)  DDE  PROCESS  and  equality:    TAXATK M  589 

amination  of  those  cases,  if  we  were  to  hold  that  a  railroad,  being  a 
public  use  for  which  the  land  of  individuals  may  be  taken  against 
their  consent,  is  not  a  public  purpose  for  which  taxes  may  be  im- 
posed, I  should  be  utterly  at  a  loss  what  sound  reason  to  give  for 
the  distinction,  or  in  what  terms  to  frame  a  rule  to  govern  the  future 
action  of  the  legislature  in  cases  of  a  like  description.     *     *     * 

Bill  dismissed.3 

[Smith  and  Rand,  JJ.,  gave  concurring  opinions.] 


FALLBROOK  IRRIGATION  DISTRICT  v.  BRADLEY. 

(Supreme  Court  of  United  States,  1S00.    164  U.  S.  112,  17  Sup.  Ct.  50,  41  I. 
Ed.  300.) 

[Appeal  from  the  federal  Circuit  Court  for  the  Southern  District  of 
California.  The  statutes  of  California  (further  stated  in  the  opinion 
below)  provided  for  the  organization  of  irrigation  districts,  the  ii 
tion  works  in  which  were  to  be  provided  for  by  taxation  upon  all  the 
real  property  in  the  district  according  to  its  value.  Such  a  district  was 
formed,  including  within  it  the  land  of  Mrs.  Bradley,  a  subject  of 
Great  Britain  resident  in  California.  She  refused  to  pay  the  tax  as- 
sessed against  the  land  under  this  statute,  and  filed  a  bill  in  the  above- 
mentioned  court  to  enjoin  the  giving  of  a  deed  for  said  land  when 
sold  for  non-payment  of  said  tax.  The  injunction  issued  and  the  Irri- 
gation District  appealed.    Other  facts  appear  in  the  opinion.] 

Mr.  Justice  Peckham.  *  *  *  Coming  to  a  review  of  th< 
rious  objections,  we  think  the  first,  that  the  water  is  not  for  a  public 
use,  is  not  well  founded.  The  question  what  constitutes  a  public  use 
has  been  before  the  courts  of  many  of  the  states,  and  their  decisions 
have  not  been  harmonious;  the  inclination  of  some  of  these  courts  be- 
ing towards  a  narrower  and  more  limited  definition  of  such  use  than 
those  of  others. 

There  is  no  specific  prohibition  in  the  federal  Constitution  which 
acts  upon  the  states  in  regard  to  their  taking  private  property  for  any 
but  a  public  use.  The  fifth  amendment,  which  provides,  among  other 
things,  that  such  property  shall  not  be  taken  for  public  use  without 
just  compensation,  applies  only  to  the  federal  government,  as  has  many 
times  been  decided.     Spies  v.  Illinois,  123  U.  S.  131.  8  Sup.  Ct.  22,  31 

«  Apparently  the  only  state  in  which  public  aid  to  a  privately  owned  rail 
road  is  hold  unconstitutional  as  not  a  public  purpose  is  Michigan.  People 
v.  Salem,  20  Mich.  452,  4  Am.  Rep.  400  (1S70).  An  earlier  case  to  thai 
in  Iowa  was  overruled.  Stewart  v.  Board  of  St  pervisors,  30  Iowa,  9, 
Rep.  238  (1870).  Most  state  Constitutions  now  expressly  forbid  the  practice 
i  if  the  cases  sustaining  it.  it  was  said  in  one  of  the  most  notable  of  them: 
'JThej  are  .    ■  anlfi  ;l  triumph  of  reason  and  law  over  a  strong  conviction  in 

the  minds  of  the  Judges  that  the  system  they  sustain  was  impolitic,  dang 

and  immoral."— Black,  C.  J.,  in  Sharplesa  v.  Mayor,  -i  Pa.  in,  170,  17>;,  59 
Am.  Hoc.  7.VJ  (1853). 


596  FUNDAMENTAL    RIGHTS  (Part  2 

L.  Ed.  80;  Thorington  v.  Montgomery,  147  U.  S.  490,  13  Sup.  Ct.  394, 
37  L.  Ed.  252.  In  the  fourteenth  amendment  the  provision  regarding 
the  taking  of  private  property  is  omitted,  and  the  prohibition  against 
the  state  is  confined  to  its  depriving  any  person  of  life,  liberty,  or 
property  without  due  process  of  law.  It  is  claimed,  however,  that  the 
citizen  is  deprived  of  his  property  without  due  process  of  law  if  it  be 
taken  by  or  under  state  authority  for  any  other  than  a  public  use,  either 
under  the  guise  of  taxation  or  by  the  assumption  of  the  right  of  em- 
inent domain.  In  that  way  the  question  whether  private  property 
has  been  taken  for  any  other  than  a  public  use  becomes  material  in 
this  court,  even  where  the  taking  is  under  the  authority  of  the  state, 
instead  of  the  federal,  government. 

Is  this  assessment  for  the  nonpayment  of  which  the  land  of  the  plain- 
tiff was  to  be  sold,  levied  for  a  public  purpose?  The  question  has,  in 
substance,  been  answered  in  the  affirmative  by  the  people  of  Califor- 
nia, and  by  the  legislative  and  judicial  branches  of  the  state  govern- 
ment. *  *  *  [Here  follow  the  quotation  of  various  constitutional 
and  statutory  provisions,  and  the  citation  of]  Irrigation  Dist.  v.  Wil- 
liams, 76  Cal.  360,  18  Pac.  379 ;  Irrigation  Dist.  v.  De  Lappe,  79  Cal. 
351,  21  Pac.  825;  In  re  Madera  Irrigation  Dist.,  92  Cal.  296,  28  Pac. 
272,  675,  14  L.  R.  A.  755,  27  Am.  St.  Rep.  106.     *     *     * 

It  is  obvious,  however,  that  what  is  a  public  use  frequently  and 
largely  depends  upon  the  facts  and  circumstances  surrounding  the  par- 
ticular subject-matter  in  regard  to  which  the  character  of  the  use  is 
questioned. 

To  provide  for  the  irrigation  of  lands  in  states  where  there  is  no 
color  of  necessity  therefor,  within  any  fair  meaning  of  the  term,  and 
simply  for  the  purpose  of  gratifying  the  taste  of  the  owner,  or  his 
desire  to  enter  upon  the  cultivation  of  an  entirely  new  kind  of  crop, 
not  necessary  for  the  purpose  of  rendering  the  ordinary  cultivation  of 
the  land  reasonably  remunerative,  might  be  regarded  by  courts  as  an  im- 
proper exercise  of  legislative  will,  and  the  use  might  not  be  held  to  be 
public  in  any  constitutional  sense,  no  matter  how  many  owners  were 
interested  in  the  scheme.  On  the  other  hand,  in  a  state  like  California, 
which  confessedly  embraces  millions  of  acres  of  arid  lands,  an  act  of 
the  legislature  providing  for  their  irrigation  might  well  be  regarded  as 
an  act  devoting  the  water  to  a  public  use,  and  therefore  as  a  valid  ex- 
ercise of  the  legislative  power.  The  people  of  California  and  the  mem- 
bers of  her  legislature  must,  in  the  nature  of  things,  be  more  familiar 
with  the  facts  and  circumstances  which  surround  the  subject,  and  with 
the  necessities  and  the  occasion  for  the  irrigation  of  the  lands,  than 
can  any  one  be  who  is  a  stranger  to  her  soil.  This  knowledge  and 
familiarity  must  have  their  due  weight  with  the  state  courts  which  are 
to  pass  upon  the  question  of  public  use  in  the  light  of  the  facts  which 
surround  the  subject  in  their  own  state.  For  these  reasons,  while  not 
regarding  the  matter  as  concluded  by  these  various  declarations  and 
acts  and  decisions  of  the  people  and  legislature  and  courts  of  Caiifor- 


Ch.  11)  DUE   PROCESS   AND   EQUALITY:     TAXATION 

nia,  we  yet,  in  the  consideration  of  the  subject,  accord  to  and  treat 
them  with  very  great  respect,  and  we  regard  i  h 

ing  the  deliberate  judgment  and  matured  thought  of  the  courts  of  that 
state  on  this  question. 

\  iewrng  the  subject  for  ourselves,  and  in  the  light  of  these  consid- 
erations, we  have  very  little  difficulty  in  coming  to  the  same  ■ 
sion  reached  by  the  courts  of  California. 

The  use  must  be  regarded  as  a  public  use,  or  el^c  it  would  seem  to 
follow  that  no  general  scheme  of  irrigation  can  be  formed  or  carried 
into  effect.  In  general,  the  water  to  be  used  must  be  carried  for  some 
distance,  and  over  or  through  private  property,  which  cannot  be  taken 
in  invitum  if  the  use  to  which  it  is  to  be  put  be  not  public;  and.  if 
there  be  no  power  to  take  property  by  condemnation,  it  may  be  impos- 
sible to  acquire  it  at  all.  The  use  for  which  private  property  is  to  be 
taken  must  be  a  public  one,  whether  the  taking  be  by  the  exercise  of 
the  right  of  eminent  domain  or  by  that  of  taxation.  Cole  \ 
113  U.  S.  1,  5  Sup.  Ct.  416,  2S  L.  Ed.  896.  A  private  company  or 
corporation,  without  the  power  to  acquire  the  land  in  invitum,  would 
be  of  no  real  benefit ;  and,  at  any  rate,  the  cost  of  the  undertaking 
would  be  so  greatly  enhanced  by  the  knowledge  that  the  land  must  be 
acquired  by  purchase  that  it  would  be  practically  impossible  to  build 
the  works  or  obtain  the  water.  Individual  enterprise  would  be  equal- 
ly ineffectual.  No  one  owner  would  find  it  possible  to  construct  and 
maintain  waterworks  and  canals  any  better  than  private  corporations 
or  companies,  and,  unless  they  had  the  power  of  eminent  domain,  they 
could  accomplish  nothing.  If  that  power  could  be  conferred  upon 
them,  it  could  only  be  upon  the  ground  that  the  property  they  took 
was  to  be  taken  for  a  public  purpose. 

While  the  consideration  that  the  work  of  irrigation  must  be  aban- 
doned if  the  use  of  the  water  may  not  be  held  to  be  or  constitute  a 
public  use  is  not  to  be  regarded  as  conclusive  in  favor  of  such  use, 
yet  that  fact  is  in  this  case  a  most  important  consideration.  .Millions 
of  acres  of  land  otherwise  cultivable  must  be  left  in  their  present  arid 
and  worthless  condition,  and  an  effectual  obstacle  will  therefore  re- 
main in  the  way  of  the  advance  of  a  large  portion  of  the  state  in  ma- 
terial wealth  and  prosperity.  To  irrigate,  and  thus  to  bring  into  pos- 
sible cultivation,  these  large  masses  of  otherwise  worthless  lands,  would 
seem  to  be  a  public  purpose,  and  a  matter  of  public  interest,  not  con- 
fined to  the  landowners,  or  even  to  any  one  section  of  the  state.  The 
fact  that  the  use  of  the  water  is  limited  to  the  landowner  is  not.  there- 
fore, a  fatal  objection  to  this  legislation.  It  is  n>'t  essential  that  the 
entire  community,  or  even  any  considerable  portion  thereof,  should 
directly  enjoy  or  participate  in  an  improvement  in  order  to  constitute 
a  public  use.  All  landowners  in  the  district  have  the  right  to  a  i 
tionate  share  of  the  water,  and  no  one  landowner  is  favored  above  his 
fellow  in  his  right  to  the  use  of  the  water.  It  is  nol  necessary,  in  oi 
der  that  the  use  should  be  public,  thai  every  resident  in  the 


598  FUNDAMENTAL    EIGHTS  (Part  2 

should  have  the  right  to  the  use  of  the  water.  The  water  is  not  used 
for  general,  domestic,  or  for  drinking  purposes,  and  it  is  plain  from 
the  scheme  of  the  act  that  the  water  is  intended  for  the  use  of  those 
who  will  have  occasion  to  use  it  on  their  lands.  Nevertheless,  if  it 
should  so  happen  that  at  any  particular  time  the  landowner  should 
have  more  water  than  he  wanted  to  use  on  his  land,  he  has  the  right 
to  sell  or  assign  the  surplus  or  the  whole  of  the  water,  as  he  may 
choose. 

The  method  of  the  distribution  of  the  water  for  irrigation  purposes 
provided  for  in  section  11  of  the  act  is  criticised  as  amounting  to  a 
distribution  to  individuals,  and  not  to  lands,  and  on  that  account  it  is 
claimed  that  the  use  for  irrigation  may  not  be  achieved,  and  therefore 
the  only  purpose  which  could  render  the  use  a  public  one  may  not  ex- 
ist. This  claim  we  consider  not  well  founded  in  the  language  and  true 
construction  of  the  act.  It  is  plain  that  some  method  for  apportioning 
the  use  of  the  water  to  the  various  lands  to  be  benefited  must  be  em- 
ployed, and  what  better  plan  than  to  say  that  it  shall  be  apportioned 
ratably  to  each  landowner  upon  the  basis  which  the  last  assessment 
of  such  owner  for  district  purposes  within  the  district  bears  to  the 
whole  sum  assessed  upon  the  district?  Such  an  apportionment,  when 
followed  by  the  right  to  assign  the  whole  or  any  portion  of  the  waters 
apportioned  to  the  landowner,  operates  with  as  near  an  approach  to 
justice  and  equality  as  can  be  hoped  for  in  such  matters,  and  does  not 
alter  the  use  from  a  public  to  a  private  one.  This  right  of  assignment 
may  be  availed  of  also  by  the  owner  of  any  lands  which,  in  his  judg- 
ment, would  not  be  benefited  by  irrigation,  although  the  board  of  su- 
pervisors may  have  otherwise  decided.  We  think  it  clearly  appears 
that  all  who,  by  reason  of  their  ownership  of  or  connection  with  any 
portion  of  the  lands,  would  have  occasion  to  use  the  water,  would, 
in  truth,  have  the  opportunity  to  use  it  upon  the  same  terms  as  all 
others  similarly  situated.  In  this  way  the  use,  so  far  as  this  point  is 
concerned,  is  public,  because  all  persons  have  the  right  to  use  the  wa- 
ter under  the  same  circumstances.     This  is  sufficient. 

The  case  does  not  essentially  differ  from  that  of  Hagar  v.  Reclama- 
tion Dist.,  Ill  U.  S.  701,  4  Sup.  Ct.  663,  28  L.  Ed.  569,  where  this 
court  held  that  the  power  of  the  legislature  of  California  to  prescribe  a 
system  for  reclaiming  swamp  lands  was  not  inconsistent  with  any  pro- 
vision of  the  federal  constitution.  The  power  does  not  rest  simply 
upon  the  ground  that  the  reclamation  must  be  necessary  for  the  public 
health.  That,  indeed,  is  one  ground  for  interposition  by  the  state,  but 
not  the  only  one.  Statutes  authorizing  drainage  of  swamp  lands  have 
frequently  been  upheld  independently  of  any  effect  upon  the  public 
health,  as  reasonable  regulations  for  the  general  advantage  of  those 
who  are  treated  for  this  purpose  as  owners  of  a  common  property. 
Head  v.  Manufacturing  Co..  113  U.  S.  9,  22.  5  Sup.  Ct.  441,  446,  28 
L.  Ed.  889;  Wurts  v.  Hoagland,  114  U.  S.  606,  611,  5  Sup.  Ct.  1086, 
1089,  29  L.  Ed.  229;  Cooley,  Tax'n  (2d  Ed.)  p.  617.    If  it  be  essential 


Ch.  11)  DUB  PROCESS   AND   EQUALITY:     TAXATION  699 

or  material  for  the  prosperity  of  the  community,  and  if  the  improve- 
ment be  one  in  which  all  the  landowners  have  to  a  certain  extent  a 
common  interest,  and  the  improvement  cannot  be  accomplished  with- 
out the  concurrence  of  all  or  nearly  all  of  such  owners  by  reason  of 
the  peculiar  natural  condition  of  the  tract  sought  to  be  reclaimed,  then 
such  reclamation  may  be  made,  and  the  land  rendered  useful  to  all, 
and  at  their  joint  expense.  In  such  case  the  absolute  right  of  each 
individual  owner  of  land  must  yield  to  a  certain  extent,  or  be  modified 
by  corresponding  rights  on  the  part  of  other  owners  for  what  is  de- 
clared upon  the  whole  to  be  for  the  public  benefit. 

Irrigation  is  not  so  different  from  the  reclamation  of  Swamps  as  to 
require  the  application  of  other  and  different  principles  to  the  case. 
The  fact  that,  in  draining  swamp  lands,  it  is  a  necessity  to  drain  Up- 
lands of  all  owners  which  are  similarly  situated,  goes  only  to  the  ex- 
tent of  the  peculiarity  of  situation  and  the  kind  of  land.  Some  of  the 
swamp  lands  may  not  be  nearly  so  wet  and  worthless  as  some  others, 
and  yet  all  may  be  so  situated  as  to  be  benefited  by  the  reclamation ; 
and  whether  it  is  so  situated  or  not  must  be  a  question  of  fact.  The 
same  reasoning  applies  to  land  which  is,  to  some  extent,  arid,  instead 
of  wet.  Indeed,  the  general  principle  that  arid  lands  may  be  provid- 
ed with  water,  and  the  cost  thereof  provided  for  by  a  general  tax,  or 
by  an  assessment  for  local  improvement  upon  the  lands  benefited, 
seems  to  be  admitted  by  counsel  for  the  appellees.  This,  necessarily, 
assumes  the  proposition  that  water  used  for  irrigation  purposes  upon 
lands  which  are  actually  arid  is  used  for  a  public  purpose,  and  the  tax 
to  pay  for  it  is  collected  for  a  public  use,  and  the  assessment  upon 
lands  benefited  is  also  levied  for  a  public  purpose.  Taking  all  the  facts 
into  consideration,  as  already  touched  upon,  we  have  no  doubt  that 
the  irrigation  of  really  arid  lands  is  a  public  purpose,  and  the  water 
thus  used  is  put  to  a  public  use. 

2.  The  second  objection  urged  by  the  appellees  herein  is  that  the  op- 
erations of  this  act  need  not  be,  and  are  not  limited  to  arid,  unproduc- 
tive lands,  but  include  within  its  possibilities  all  lands,  no  matter  how 
fertile  or  productive,  so  long  as  they  are  susceptible,  "in  their  natural 
state,"  of  one  mode  of  irrigation  from  a  common  source,  etc.  The 
words  "in  their  natural  state"  are  interpolated  in  the  text  of  the  statute 
by  the  counsel  for  the  appellees,  on  the  assumption  that  the  supreme 
court  of  California  has  thus  construed  the  act  in  the  Tregea  Case,  88 
Cal.  334,  26  Pac.  241.  The  objection  had  boon  made  in  that  case  that 
it  was  unlawful  to  include  the  city  of  Modesto  in  an  irrigation  district. 
The  court,  per  Chief  Justice  Beatty,  said  that  the  legislature  undoubt- 
edly intended  that  cities  and  towns  should  in  proper  cases  be  included 
in  irrigation  districts,  and  that  the  act  as  thus  construed  did  not  violate 
the  state  Constitution.    The  learned  chief  justice  also  said: 

"The  idea  of  a  city  or  town  is,  of  course,  associated  with  the  exist- 
ence of  streets  to  a  greater  or  less  extent,  lined  with  shops  and  stores, 
as  well  as  of  dwelling  houses ;    but  it  is  also  a  notorious  fact  that  in 


600  FUNDAMENTAL    RIGHTS  (Part  2 

many  of  the  towns  and  cities  of  California  there  are  gardens  and  orch- 
ards, inside  the  corporate  boundaries,  requiring  irrigation.  It  is  equal- 
ly notorious  that  in  many  districts  lying  outside  of  the  corporate 
limits  of  any  city  or  town,  there  are  not  only  roads  and  highways,  but 
dwelling  houses,  outhouses,  warehouses,  and  shops.  With  respect  to 
these  things,  which  determine  the  usefulness  of  irrigation,  there  is 
only  a  difference  of  degree  between  town  and  country.  *  *  *  We 
construe  the  act  to  mean  that  the  board  may  include  in  the  boundaries 
of  the  district  all  lands  which  in  their  natural  state  would  be  benefited 
by  irrigation,  and  are  susceptible  of  irrigation  by  one  system,  regard- 
less of  the  fact  that  buildings  or  other  structures  may  have  been  erect- 
ed here  and  there  upon  small  lots,  which  are  thereby  rendered  unfit 
for  cultivation,  at  the  same  time  that  their  value  for  other  purposes 
may  have  been  greatly  enhanced."     *     *     * 

As  an  evidence  of  what  can  be  done  under  the  act,  it  is  alleged  in 
the  complaint  in  this  suit  that  the  plaintiff  is  the  owner  of  40  acres 
of  land  in  the  district,  and  that  it  is  worth  $5,000,  and  that  it  is  sub- 
ject to  beneficial  use  without  the  necessity  of  water  for  irrigation,  and 
that  it  has  been  used  beneficially  for  the  past  several  years  for  purposes 
other  than  cultivation  with  irrigation.  These  allegations  are  admitted 
by  the  answer  of  the  defendants,  who  nevertheless  assert  that,  if  a  suffi- 
cient supply  of  water  is  obtained  for  the  irrigation  of  the  plaintiff's 
land,  the  same  can  be  beneficially  used  for  many  purposes  other  than 
that  for  which  it  can  be  used  without  the  water  for  irrigating  the  same. 

What  is  the  limit  of  the  power  of  the  legislature  in  regard  to  pro- 
viding for  irrigation?  Is  it  bounded  by  the  absolutely  worthless  con- 
dition of  the  land  without  the  artificial  irrigation  ?  Is  it  confined  to 
land  which  cannot  otherwise  be  made  to  yield  the  smallest  particle  of 
a  return  for  the  labor  bestowed  upon  it?  If  not  absolutely  worthless 
and  incapable  of  growing  any  valuable  thing  without  the  water,  how 
valuable  may  the  land  be,  and  to  what  beneficial  use  and  to  what  ex- 
tent may  it  be  put,  before  it  reaches  the  point  at  which  the  legislature 
has  no  power  to  provide  for  its  improvement  by  that  means?  The 
general  power  of  the  legislature  over  the  subject  of  providing  for  the 
irrigation  of  certain  kinds  of  lands  must  be  admitted  and  assumed. 
The  further  questions  of  limitation,  as  above  propounded,  are  some- 
what legislative  in  their  nature,  although  subject  to  the  scrutiny  and 
judgment  of  the  courts,  to  the  extent  that  it  must  appear  that  the  use 
intended  is  a  "public  use,"  as  that  expression  has  been  defined  rela- 
tively to  this  kind  of  legislation. 

The  legislature  by  this  act  has  not  itself  named  any  irrigation  dis- 
trict, and,  of  course,  has  not  decided  as  to  the  nature  and  quality  of 
any  specific  lands  which  have  been  included  in  any  such  district.  It 
has  given  a  general  statement  as  to  what  conditions  must  exist  in  or- 
der to  permit  the  inclusion  of  any  land  within  a  district.  The  land 
which  can  properly  be  so  included  is,  as  we  think,  sufficiently  limited 
in  its  character  by  the  provisions  of  the  act.    It  must  be  susceptible  of 


Ch.  11)  DUE   PROCESS   AND    EQCAI.ITY:     TAXATION  601 

one  mode  of  irrigation,  from  a  common  source,  and  by  the  same  system 
of  works,  and  it  must  be  of  such  a  character  that  it  will  be  benefited 
by  irrigation  by  the  system  to  be  adopted.  This,  as  we  think,  means 
that  the  amount  of  benefit  must  be  substantial,  and  not  limited  to  the 
creation  of  an  opportunity  to  thereafter  use  the  land  for  a  new  kin-1 
of  crop,  while  not  substantially  benefiting  it  for  the  cultivation  of  the 
old  kind,  which  it  had  produced  in  reasonable  quantities,  and  with  ordi- 
nary certainty  and  success,  without  the  aid  of  artificial  irrigation.  The 
question  whether  any  particular  land  would  be  thus  benefited  i 
essarily  one  of  fact.  *  *  *  If  land  which  can,  to  a  certain  ex- 
tent, be  beneficially  used  without  artificial  irrigation,  may  yet  be  so 
much  improved  by  it  that  it  will  be  thereby,  and  for  its  original  use, 
substantially  benefited,  and,  in  addition  to  the  former  use,  though  not 
in  exclusion  of  it,  if  it  can  then  be  put  to  other  and  more  remunerative 
uses,  we  think  it  erroneous  to  say  that  the  furnishing  of  artificial  irri- 
gation to  that  kind  of  land  cannot  be,  in  a  legal  sense,  a  public  im- 
provement, or  the  use  of  the  water  a  public  use.     *     *     * 

Judgment  reversed. 

[Fuller,  C.  J.,  and  Field,  J.,  dissented.] 


OPINION  OF  THE  JUSTICES. 

(Supreme  Judicial  Court  of  Massachusetts,  1912.    211  Mass.  624,  98  N.  E.  611. 
£2  L.  R.  A.   [N.  S.]  221.) 

[Answer  to  questions  of  the  Massachusetts  House  of  Representa- 
tives set   forth  in  the  opinion  below.] 

OPINION  (of  all  the  Justices).  The  questions  relate  to  the  constitu- 
tionality of  a  bill  entitled  "An  act  to  extend  and  define  the  duties  of 
the  Homestead  Commission."  The  general  scheme  embodied  in  the 
proposed  bill  is  that  the  commonwealth  shall  purchase  land,  and  devel- 
op, build  upon,  rent,  manage,  sell  and  re-purchase  the  same.  The 
Homestead  Commission  is  clothed  with  the  fullest  power  to  go  into 
the  business  of  buying,  renting  and  selling  real  estate.  As  expressed  in 
the  bill,  its  purpose  is  to  provide  homes  "for  mechanics,  laborers,  or 
other  wage-earners."  or  as  suggested  by  the  amendment  set  forth  in 
the  second  question,  to  improve  "the  public  health  by  providing  homes 
in  the  more  thinly  populated  areas  of  the  state  for  those  who  might 
otherwise  live  in  the  most  congested  areas  of  the  state."  In  a  consti- 
tutional sense  the  difference  between  these  two  statements  of  purpose 
is  not  material  in  view  of  the  actual  provisions  of  the  bill.  The  sub- 
stance of  it  is  that  the  commonwealth  is  to  go  into  the  business  of  fur- 
nishing homes  for  people  who  have  money  enough  to  pay  rent  and  ulti- 
mately to  become  purchasers.  It  is  not  a  plan  for  pauper  relief.  The 
question  is  whether  this  is  a  public  use.     *     *     *     [Here  follow  ap- 


602  FUNDAMENTAL    EIGHTS  (Part  2 

proving  references  to  the  doctrine  of  Lowell  v.  Boston,  ante,  p.  573, 
with  a  quotation  therefrom.]  This  principle  has  been  applied  to  a  great 
variety  of  cases.  It  was  amplified  with  a  full  citation  of  authorities 
in  Opinion  of  the  Justices,  204  Mass.  607,  91  N.  E.  405,  27  L.  R.  A. 
(N.  S.)  483.1 

The  question,  in  its  last  analysis  is  one  of  taxation.  Can  the  com- 
monwealth raise  money  by  taxation  for  the  purposes  set  forth  in  the 
act?     *     *     * 

[After  referring  to  a  provision  permitting  the  use  by  the  Homestead 
Commission  of  the  savings  bank  deposits  of  unknown  owners,  untouch- 
ed for  30  years,  which  a  prior  statute  had  required  to  be  paid  to  the 
state  to  be  kept  for  the  owners :]  [This]  would  be  treating  the  money 
in  substance  as  escheated.  Even  if  it  were  escheated  it  then  would  be 
money  in  the  treasury  freed  from  any  trust.  Such  money,  however, 
is  public  money  and  can  be  appropriated  only  to  public  uses.  It  can 
no  more  be  diverted  for  private  benefit  than  can  money  raised  by  tax- 
ation. Simmons  v.  Hanover,  23  Pick.  188;  Allen  v.  Marion,  11  Allen. 
108. 

Taxation  is  somewhat  historical  in  its  nature  and  can  be  most  intel- 
ligently approached  by  comparison  of  those  subjects  which  have  been 
held  to  be  a  public  use  and  those  which  have  been  held  not  to  be  a  pub- 
lic use.  It  is  not  now  open  to  question  that  the  establishment  and 
maintenance  of  water  and  sewerage  systems  and  electric  light  and  gas 
plants  are  public  uses.  They  relate  to  commodities  which  are  or  have 
become  universally  necessary,  and  they  cannot  be  procured  by  each 
individual  or  family  acting  separately,  but  require  co-operation.  As  a 
practical  matter  provision  for  these  necessities  is  monopolistic  in  char- 
acter, and  having  due  regard  to  the  reasonable  convenience  of  the  pub- 
lic, there  can  be  no  competition  respecting  them.  The  permanently  ex- 
clusive use  of  portions  of  the  public  ways  is  essential  to  the  effective 
furnishing  of  these  necessities.  Highways  are  public  in  their  nature, 
and  their  construction  and  repair  are  legitimate  public  expenses.  Hence 
they  cannot  be  appropriated  to  any  use  which  is  private.  These  ne- 
cessities cannot  be  provided  without  the  exercise  of  powers  conferred 
only  by  the  Legislature,  and  commonly  require  the  exercise  of  em- 
inent domain.  Although  water  and  artificial  light  are  in  a  certain  sense 
beneficial  to  individuals,  their  public  functions  are  so  overshadowing 
as  to  stamp  them  as  proper  subjects  for  state  or  municipal  ownership. 
Opinion  of  the  Justices,  150  Mass.  592,  24  N.  E.  1084.  8  L.  R.  A.  487. 

On  the  other  hand  it  was  said  in  Opinions  of  the  Justices,  in  1893, 
155  Mass.  598,  30  N.  E.  1142,  15  L.  R.  A.  809,  and  again  in  1903,  182 
Mass.  605,  66  N.  E.  25,  that  it  was  beyond  the  power  of  the  Legisla- 
ture to  authorize  cities  and  towns  to  engage  in  the  business  of  furnish- 

i  Holding  that  the  powers  of  taxation  and  of  eminent  domain  could  not  be 
used  to  purchase  land  adjoining  a  proposed  commercial  thoroughfare,  with 
the  design  of  reselling  or  leasing  it  subject  to  restrictions  that  should  secure 
Its  beneficial  commercial  use  in  the  public  interest.     See  post,  p.  6S4. 


Ch.  11)        DDE  PROCESS  AND  EQUALITY  !  TAXATION  603 

ing  coal  or  fuel  to  the  public*  The  economic  aspects  of  conducting 
business  of  this  character  through  public  instrumentalities  are  not  for 
our  consideration.  Such  a  system  is  not  possible  under  our  Constitu- 
tion. The  grounds  upon  which  these  opinions  were  founded  are  that 
such  enterprises  are  conducted  by  individuals.  They  are  universally 
recognized  as  legitimate  and  proper  fields  for  private  and  personal  ad- 
venture. No  legislative  authority  is  required  to  engage  in  them,  and 
no  powers  derived  from  that  source  are  needed  for  their  prosecution. 
It  is  a  natural  right  subject  only  to  regulation  by  the  police  power.  A 
person  lawfully  engaged  in  such  business  cannot  be  driven  out  by  tax- 
ation to  support  his  rival  even  though  that  rival  be  an  arm  of  govern- 
ment. 

The  questions  of  the  present  order  are  closely  analogous  to  those 
raised  by  the  order  of  the  honorable  House  considered  in  Opinion  of 
the  Justices,  204  Mass.  607,  91  N.  E.  405,  27  L.  R.  A.  (N.  S.)  483.  It 
was  said  there  in  substance  that  it  was  not  within  the  power  of  the 
Legislature  to  authorize  the  taking  of  land  outside  the  limits  of  streets 
for  the  purpose  of  being  leased  or  sold  under  such  restrictions  as  would 
insure  proper  development  of  industrial  and  commercial  facilities. 
Such  purpose  was  said  to  be  primarily  for  the  aggrandizement  of  in- 
dividuals and  only  incidentally  for  the  promotion  of  the  public  weal. 
We  are  unable  to  distinguish  the  purchase,  development,  rental  and 
sale  of  land  in  the  manner  provided  by  the  present  bill  from  the  prin- 
ciples announced  in  these  decisions  and  opinions  and  many  others  col- 
lected and  somewhat  reviewed  in  204  Mass.  607,  91  N.  E.  405,  27  L. 
R.  A.  (N.  S.)  483. 

Buying  and  selling  land  always  has  been  freely  exercised  by  all  in- 
dividuals who  desired,  under  the  Constitution.  Proprietorship  of  his 
own  home  has  been  one  of  the  chief  elements  of  strength  in  the  citi- 
zen, and  widely  diffused  land  ownership  has  conferred  stability  upon 
the  state.  It  is  matter  of  common  knowledge  that  thousands  of  inhab- 
itants of  the  commonwealth  who  are  "mechanics,  laborers  or  other 
wage-earners"  have  become,  through  industry,  temperance  and  frugali- 
ty, owners  of  the  homes  in  which  they  dwell.  These  proprietors,  how- 
ever humble  may  be  their  houses,  cannot  be  taxed  for  the  purpose  of 
enabling  the  state  to  aid  others  in  acquiring  a  home  whose  tempera- 
ment, environment  or  habits  have  heretofore  prevented  them  from  at- 
taining a  like  position.  Although  eminent  domain  differs  from  tax- 
ation in  the  occasion  and  manner  of  its  exercise,  it  rests  for  its  justifi- 
cation upon  the  same  basic  principle  of  public  necessity.  If  this  be 
held  to  be  a  public  purpose,  it  would  be  lawful  to  authorize  the  commis- 
sion to  exercise  the  power  of  eminent  domain.  This  would  mean  that 
the  home  of  one  wage-earner  might  be  taken  by  the  power  of  the  com- 
monwealth for  the  purpose  of  handing  it  over  to  another  wage-earner. 

*  For  possible  qualifications  of  tills  In  casea  of  great  emergency,  see  tbc 
Opinions  in  182  Mass.  005,  00  N.  K.  25  U'J03). 


604  FUNDAMENTAL    RIGHTS  (Part   2 

Neither  the  power  of  taxation  nor  of  eminent  domain  goes  to  this  ex- 
tent. If  the  purpose  is  a  public  one,  the  property  of  every  inhabitant, 
however  improved  or  used,  must  yield  to  the  superior  right.  But  if  the 
end  to  be  gained  is  not  public,  no  one  can  be  compelled  to  contribute 
under  either  form  of  governmental  power. 

Ownership  of  a  bit  of  land  is  one  of  the  deep  seated  desires  of  man- 
kind. The  property  resting  on  such  proprietorship  is  among  the  dear- 
est rights  in  the  minds  of  many  people  secured  by  the  Constitution.  If 
the  power  exists  in  the  Legislature  to  take  a  tract  of  land  away  from 
one  owner  for  the  purpose  of  enabling  another  to  get  the  same  tract, 
the  whole  subject  of  such  ownership  becomes  a  matter  of  legislative  de- 
termination and  not  of  constitutional  right. 

Experiments  in  other  lands,  where  the  people  have  established  either 
no  bounds  or  fragile  ones  to  the  absolutism  of  governmental  powers 
by  a  written  constitution,  afford  no  guide  in  the  determination  of  what 
our  Constitution  permits. 

It  may  be  urged  that  the  measure  is  aimed  at  mitigating  the  evils  of 
overcrowded  tenements  and  unhealthy  slums.  These  evils  are  a  proper 
subject  for  the  exercise  of  the  police  power.  Through  the  enactment 
of  building  ordinances,  regulations  and  inspection  as  to  housing  and 
provision  for  light  and  air  lies  a  broad  field  for  the  suppression  of 
mischiefs  of  this  kind. 

Questions  answered  in  the  negative.8 

3  See  31  L.  R.  A.  (N.  S.)  116-123,  for  cases  and  references  upon  the  power 
of  municipalities  to  engage  both  in  businesses  ordinarily  purely  private,  and 
in  those  that  are  generally  classified  as  "public  utilities." 

Miscellaneous  Public  Purposes. — "[The]  statute  authorizes  the  city  to  ap- 
propriate a  sum  of  money  for  the  erection  of  a  memorial  hall,  to  be  used  and 
maintained  as  a  memorial  to  the  soldiers  and  sailors  of  the  war  of  the  Rebel- 
lion. This  may  properly  be  deemed  to  be  a  public  purpose,  and  a  statute  au- 
thorizing the  raising  of  money  by  taxation  for  the  erection  of  such  a  memorial 
hall  may  be  vindicated  on  the  same  grounds  as  statutes  authorizing  the  raising 
of  money  for  monuments,  statues,  gates,  or  archways,  celebrations,  the  publi- 
cation of  town  histories,  parks,  roads  leading  to  points  of  fine  natural  scenery, 
decorations  upon  public  buildings,  or  other  public  ornaments  or  embellishments, 
designed  merely  to  promote  the  general  welfare,  either  by  providing  for  fresh 
air  or  recreation,  or  by  educating  the  public  taste,  or  by  inspiring  sentiments 
of  patriotism,  or  of  respect  for  the  money  of  worthy  individuals.  The  rea- 
sonable use  of  public  money  for  such  purposes  has  been  sanctioned  by  several 
different  statutes,  and  the  constitutional  right  of  the  legislature  to  pass  such 
statutes  rests  on  sound  principles.  Pub.  St.  c.  27,  §§  10,  11  ;  St.  1SS2,  ce.  151, 
255,  §  5;  St.  1SS3,  c.  119;  St.  1884,  c.  42:  St.  1886,  c.  70;  St.  1889,  c.  21; 
Higglnson  v.  Nahant,  11  Allen,  530." — C.  Allen,  J.,  in  Kingman  v.  Brockton, 
153  Mass.  255,  256,  20  N.  E.  90S,  11  L.  R.  A.  123  (1S91).  But  such  a  building 
cannot  be  devoted  to  the  private  use  of  a  G.  A.  R.  post.    Id. 

Discharging  Moral  Obligations: — In  1S90  Congress  provided  a  bounty 
to  sugar  growers  in  lieu  of  a  protective  tariff,  and  when  this  was  later  re- 
pealed an  act  directed  the  payment  of  bounties  already  earned.  The  bounty 
law  had  not  been  questioned  by  any  court  or  officer  of  the  government,  and 
had  been  relied  upon  by  sugar  producers  in  investing  large  sums.  The  last 
act  was  held  valid,  regardless  of  the  validity  of  the  original  bounty  law. 

"These  parties  cannot  be  held  bound,  upon  the  question  of  equitable  or 
moral  consideration,  to  know  what  no  one  else  actually  knew,  and  what  no 
one  could  know  prior   to   the   determination  by  some  judicial   tribunal  that 


Ch.  11)  DUE   PROCESS   AND   EQUALITY  :     TAXATION  606 

SECTION  3.— CLASSIFICATION 


PEOPLE  ex  rel.  HATCH  v.  REARDON. 

(Court  of  Appeals  of  New  York,  1806.     184  N.  Y.  431,  77  N.  E.  970,  8  L.  H.  A. 
[N.  SJ  314,  112  Am.  St.  Rep,  628,  6  A] 

[Appeal  from  the  Appellate  Division  of  the  Supreme  Court  of  New 
York  for  the  First  Department.  A  New  York  statute  of  1905  im- 
posed a  stamp  tax,  of  two  cents  on  each  $100  of  face  value  or  fraction 
thereof,  on  all  sales  or  transfers  of  shares  of  stock  in  associations 
or  corporations.  Non-payment  of  the  tax  was  made  a  misdemeanor. 
One  Hatch  sold  100  shares  of  the  Southern  Railway  Company  of 
Virginia,  at  the  market  value  of  $30.75  a  share,  and  100  shares  of 
the  Chicago,  Milwaukee  &  St.  Paul  Railroad  Company  of  Wiscon- 
sin, at  the  market  value  of  $172  a  share.  The  face  value  of  each 
of  these  shares  was  $100.  Hatcli  was  arrested  for  non-payment  of 
the  tax  on  these  sales,  and  a-writ  of  habeas  corpus  was  issued  for  his 
release.  The  writ  was  dismissed  by  the  Supreme  Court  and  this 
was  affirmed  by  the  Appellate  Division.  Other  facts  appear  in  the 
opinion.] 

\  ann,  J.  *  *  *  Second.  The  classification  made  by  selecting 
one  kind  of  property  and  taxing  the  transfer  of  that  only,  is  assailed 
as  so  arbitrary,  discriminating,  and  unreasonable  as  to  deprive  certain 
persons  of  their  property  without  due  process  of  law  and  to  withhold 
from  them  the  equal  protection  of  the  laws.  All  taxation  is  arbitrary, 
for  it  compels  the  citizen  to  give  up  a  part  of  his  property ;  it 
erally  discriminating,  for  otherwise  everything  would  be  taxed. 

the  law  was  unconstitutional.     •     *     •     We  are  of  the  opinion  that  tl 
ties,  situated  as  were  the  plaintiffs  in  these  actions,  acquired  claims  upon  the 
government  of  an  equitable,  moral,  or  honorary   nature.     *     *     *     Under  the 
provisions  of  the  Constitution  (article  1,  §  8),  congress  has  power  to  lay  aud 
o  pay  the  debts'  of  the  i  nlted  States.     •    •    •    The  term 

Includes  those  debts  or  claim    which  resl  upon  a  mere); 
honorary  obligation,  and  which  would  not  be  recoverable  In  a  court  of  law  If 

_  against  an  Individual.    The  nation,  speaking  bra  a  'di  lit' 

to  an  Individual  when  his  claim  grows  out  of  general  prl 
Justice,-  when,  In  other  words,  it  is  based  upon  considerations  of  a  i 
merely  honorary  nature,  such  as  are  binding  on  tbi  ■    or  the  honor 

of  an  Individual,  although  the  debt  could  obtain  no  recognition 
law."— i'       ham,  J.,  in  United 
Sup.  Ct.    1120.   -11   L.   Ed.  215   (1896).     Compare  Mich.   E  Auditor 

I,  121  Mi  h.  674,  83  X.  w    •  B3  Am.  St  !. 

See,  also,  Bush  v.  Board  of  Supervisors,  15!  E.  1121. 

45  I..   R.  A-  556,  to  Am.  St   Rep.  0  111   Mass. 

608.  98   V   E.   338  (1012);    Guilford   \     Bo   rd  of  Supervisors,  13    N 

Matter  of  Chapman  v.  New  lork,   L68  N.   Y.  SO,  61   V  I 
K.    L  846,  85    \m    St  Itep.  661  (190  Boi        oi    ^      tori,  122  Mich. 

324,  81  N.   W.  113,  47  I..  R.  A.  117.  80  Am.  St  Rep.  57a  (It 


606  FUNDAMENTAL    RIGHTS  (Part  2 

has  never  yet  been  done,  and  there  would  be  no  exemption  on  account 
of  education,  charity,  or  religion,  and  frequently  it  is  unreasonable,  but 
that  does  not  make  it  unconstitutional,  even  if  the  result  is  double  tax- 
ation.1 People  v.  Home  Ins.  Co.,  92  N.  Y.  328,  347.  The  right  to 
tax  is  not  granted  by  the  Constitution  but  of  necessity  underlies  it, 
because  government  could  not  exist  or  perform  its  functions  without 
it.  While  it  may  be  regulated  and  limited  by  the  fundamental  law,  it 
exists  "independently  of  it  as  a  necessary  attribute  of  sovereignty." 
People  v.  Adirondack  Ry.  Co.,  160  N.  Y.  225,  236,  54  N.  E.  689,  692. 
"The  power  of  taxation  being  legislative,  all  the  incidents  are  within 
the  control  of  the  Legislature.  The  purposes  for  which  a  tax  shall 
be  levied;  the  extent  of  taxation;  the  apportionment  of  the  tax; 
upon  what  property  or  class  of  persons  the  tax  shall  operate ;  whether 
the  tax  shall  be  general  or  limited  to  a  particular  locality,  and  in  the 
latter  case,  the  fixing  of  a  district  of  assessment;  the  method  of  col- 
lection, and  whether  a  tax  shall  be  a  charge  upon  both  person  and 
property,  or  only  on  the  land — are  matters  within  the  discretion  of 
the  Legislature  and  in  respect  to  which  its  determination  is  final." 
Genet  v.  City  of  Brooklyn,  99  N.  Y.  296,  306,  1  N.  E.  777,  783.  "A 
tax  may  be  imposed  only  on  certain  callings  and  trades,  for  when  the 
state  exerts  its  power  to  tax  it  is  not  bound  to  tax  all  pursuits  or  all 
property  that  may  be  legitimately  taxed  for  governmental  purposes. 
It  would  be  an  intolerable  burden  if  the  state  could  not  tax  any  prop- 
erty or  calling  unless  at  the  same  time  it  taxed  all  property  or  all 
callings."  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  562,  22 
Sup.  Ct.  431,  440,  46  L.  Ed.  679;  Armour  Packing  Co.  v.  Lacey,  200 
U.  S.  226,  235,  26  Sup.  Ct.  232,  234,  50  L.  Ed.  451.  "We  cannot  say 
that  treating  stocks  of  corporations  as  a  class  subject  to  special  re- 
strictions was  unjust  discrimination  or  denial  of  the  full  protection 
of  the  laws."  Otis  v.  Parker,  187  U.  S.  606,  610,  23  Sup.  Ct.  168, 
170,  47  L.  Ed.  323.     "The  Legislature  must  decide  when  and  how 

i  Neither  the  fifth  nor  the  fourteenth  amendment  forbids  double  taxation  so 
long  as  it  bears  equally  upon  all  persons  or  property  in  a  validly  created 
class.  It  may  take  the  form  either  of  taxing  nominally  separate  interests  in 
the  same  source  of  value,  New  Orleans  v.  Houston,  post,  p.  622,  note;  Pad- 
dell  v..  New  York,  211  U.  S.  440,  29  Sup.  Ct.  139,  53  L.  Ed.  275,  15  Ann.  Cas. 
187  (190S)  (land  and  mortgage  debt) ;  or  of  a  higher  rate  for  some  kinds  of 
property,  Mich.  C.  Ey.  v.  Powers,  post,  p.  611,  note;  or  of  different  kinds  of 
taxes  on  the  same  property,  Patton  v.  Brady,  1S4  U.  S.  608,  621-022,  22  Sup. 
Ct.  493,  46  B.  Ed.  713  (1902)  (general  tax  and  excise — semble) ;  Income  Tax 
Cases,  148  Wis.  456,  506-508,  134  N.  W.  673,  135  N.  W.  164  (1912)  (taxes  on 
land  and  on  income  therefrom) ;  or  of  repeating  a  tax  at  unwontedly  brief 
Intervals,  Patton  v.  Brady,  above  (successive  excises  on  same  property). 

Even  such  discriminatory  double  taxation  as  would  be  incompetent  to  a 
single  jurisdiction  may  result  in  fact  from  our  state  and  federal  system. 
"The  state  of  Alabama  is  not  bound  to  make  its  laws  harmonize  in  principle 
with  those  of  other  states.  If  property  is  untaxed  by  its  laws,  then  for  the 
purpose  of  its  laws  the  property  is  not  taxed  at  all." — Holmes,  J.,  in  Kidd 
v.  Alabama,  18S  U.  S.  730,  732,  23  Sup.  Ct  401,  47  L.  Ed.  6C9  (1903).  So, 
Judy  v.  Beckwith,  137  Iowa,  24,  114  N.  W.  505,  15  L.  R.  A.  (N.  S.)  142,  15 
Ann.  Cas.  890  (190S)  (cases). 


Ch.  11)  DUE  PROCESS   AND   EQUALITY:     TAXATION  607 

and   for  what  public  purposes  a  tax  shall  be  levied  and  must  select 
the  subjects  of  taxation."     1  Cooley  on  Taxation  (3d  Ed.)  255. 

There  is  no  express  restriction  upon  this  power  in  our  state  Consti- 
tution and  no  implied  restriction,  except  by  the  primary  guaranties 
relating-  to  life,  liberty,  property  and  due  process  of  law.  The  same 
is  true  of  the  federal  Constitution  except  as  to  certain  subjects  of 
national  interest  under  the  control  of  Congress,  such  as  imports,  pat- 
ent rights  and  agencies  used  to  carry  the  powers  of  Congress  into  ex- 
ecution. Subject  to  these  restraints,  the  Legislature  has  supreme  con- 
trol of  the  power  to  tax,2  and  its  action,  even  if  arbitrary,  discriminat- 
ing and  unreasonable,  is  binding  upon  all  persons  and  property  within 
the  boundaries  of  the  state.  The  state  retained  all  the  power  of  leg- 
islation that  it  did  not  part  with  in  adopting  the  federal  Constitution 
or  consenting  to  the  amendment  thereof,  and  subject  to  that  excep- 
tion, it  is  as  supreme  as  the  British  Parliament,  which  is  restrained 
only  by  the  custom  of  the  realm  and  the  conservatism  of  the  people. 
Taxes  upon  the  right  of  succession  to  property  by  will  and  intestate 
law,  on  special  franchises  and  upon  the  sale  of  intoxicating  liquors, 
are  recent  instances  of  the  exercise  of  this  power  by  the  state  through 
the  selection  of  special  subjects  of  taxation,  involving  the  exemp- 
tion of  all  others,  each  of  which  was  attacked  as  in  violation  of  both 
Constitutions,  but  all  were  sustained  by  the  courts.  The  tariff  and 
internal  revenue  laws  show  that  the  same  power  of  selection  has 
been  exercised  by  Congress,  and  the  federal  courts  have  uniformly 
upheld  it.  Indeed,  the  prototype  of  the  statute  before  us  was  an  act 
of  Congress  passed  in  1S98.  known  as  the  War  Revenue  Act  (Act  June 
13,  189S,  c.  448,  30  Stat.  448  [U.  S.  Comp.  St.  1901,  p.  2286]),  impos- 
ing a  stamp  tax  on  sales,  transfers  and  deliveries  of  stock  certificates, 
which  was  sustained  without  dissent  by  the  Circuit  and  Supreme 
Courts  of  the  United  States.  United  States  v.  Thomas  (C.  C.)  115 
Fed.  207;  Thomas  v.  United  States,  192  U.  S.  363,  24  Sup.  Ct.  305. 
48  L.  Ed.  481.  A  like  tax  on  sales  of  merchandise,  although  ex] 
limited  to  those  made  at  "any  exchange  or  board  of  trade,"  leaving 
all  other  sales  untouched,  was  also  sustained,  and  the  declaration 
made  that  "a  sale  at  an  exchange  does  form  a  proper  basis  for  a  clas- 
sification which  excludes  all  sales  made  elsewhere  from  taxation." 
Nicol  v.  Ames,  173  U.  S.  509,  521,  19  Sup.  Ct.  522.  --27.  43  L.  Ed.  786. 

The  Legislature  has  power  to  classify  as  it  sees  fit  by  imposing  a 
heavy  burden  on  one  class  of  property  and  no  burden  at  all  upon 
others,  the  remedy  for  injudicious  action  being  in  the  hands  of  the 
people,  not  of  the  courts.  Arbitrary  selection  and  discrimination  char- 
acterize the  history  of  legislation,  both  state  and  national,  with  ref- 
erence to  taxation,  yet,  when  all  persons  and  property   in  the  same 

■  Legislative  authority   to  levy,  and   a  properly  proscrttu-il  method   for  as- 
cessment  unci  collection  are  Indispensable  in  taxatl 
v.  Bowland,  106  O.  S.  (ill,  L'O  Sup.  ct.  345,  49  U   Ed.  619  tiW5j;    i 
Glynn,  211  U.  S.  477,  29  Sup.  Ct  lfeO,  68  L.  Ed.  290  UttOO). 


608  FUNDAMENTAL    RIGHTS  (Part  2 

class  are  treated  alike,  it  has  uniformly  been  sustained  both  by  the 
state  and  federal  courts.  The  tax  on  tobacco,  on  oleomargarine  and 
the  like  is  not  less  arbitrary  or  discriminating  than  the  tax  in  question. 
While  a  tax  upon  a  particular  house,  or  horse,  or  the  houses  or  horses 
of  a  particular  man,  or  on  the  sale  thereof,  would  obviously  invade  a 
constitutional  right,  still  a  tax  upon  all  houses,  leaving  barns  and  busi- 
ness buildings  untaxed,  or  upon  all  horses  or  the  sale  thereof,  leaving 
sheep  and  cows  untaxed,  however  unwise,  would  be  within  the  power 
of  the  Legislature.  This  is  true  of  a  tax  on  all  houses  with  "more 
than  one  chimney,"  or  "with  more  than  one  hearthstone,"  or  on  all 
race  horses.  The  power  of  taxation  necessarily  involves  the  right 
of  selection,  which  is  without  limitation,  provided  all  persons  in  the 
same  situation  are  treated  alike  and  the  tax  imposed  equally  upon  all 
property  of  the  class  to  which  it  belongs.  Matter  of  McPherson,  104 
N.  Y.  306,  318,  10  N.  E.  £85,  58  Am.  Rep.  502;  Matter  of  Gould's 
Estate,  156  N.  Y.  423,  427,  51  N.  E.  287.  The  equal  protection  of 
the  laws  "only  requires  the  same  means  and  methods  to  be  applied 
impartially  to  all  the  constituents  of  each  class,  so  that  the  laws  shall 
operate  equally  and  uniformly  upon  all  persons  in  similar  circum- 
stances." Kentucky  R.  R.  Cases,  115  U.  S.  321,  337,  6  Sup.  Ct.  57, 
63,  29  L.  Ed.  414.  Or,  in  other  words,  all  persons  must  "be  treated 
alike  under  like  circumstances  and  conditions,  both  in  the  privilege 
conferred  and  the  liabilities  imposed."  Magoun  v.  Illinois  Trust  & 
Savings  Bank,  170  U.  S.  283,  293,  18  Sup.  Ct.  594.  598,  42  L.  Ed. 
1037;  Hayes  v.  Missouri,  120  U.  S.  6S,  7  Sup.  Ct.  350,  30  L.  Ed.  578; 
Barbier  v.  Connolly,  113  U.  S.  27,  32,  5  Sup.  Ct.  357,  28  L.  Ed.  923. 
"Let  it  reach  all  of  a  class,  either  of  persons  or  things,  it  matters  not 
whether  those  included  in  it  be  one  or  many,  or  whether  they  reside 
in  any  particular  locality  or  are  scattered  all  over  the  state."  1  Cooley 
on  Taxation  (3d  Ed.)  260. 

The  tax  in  question  is  not  imposed  upon  property,  but  on  the  trans- 
fer of  a  certain  class  of  property,  extensively  bought  and  sold  through- 
out the  state.  It  does  not  discriminate  between  different  kinds  of 
stocks,  taxing  the  sale  of  some  and  leaving  others  untaxed,  but  treats 
all  in  the  class  alike.  The  class  includes  all  sales  of  certificates  issued 
by  any  domestic  or  foreign  association,  company,  or  corporation.  It 
is  a  large  and  comprehensive  class,  as  is  shown  by  the  revenue  pro- 
duced, which  amounts  to  five  or  six  millions  per  annum.  The  sales 
affected  are  made  chiefly  for  speculation  which  may  have  influenced 
the  Legislature  in  making  the  selection.  The  statute  operates  equally 
and  uniformly  upon  all  transfers  of  the  class  named  when  made  by 
any  person  within  the  state.  All  persons  who  sell  stocks  are  treated 
alike  and  all  parts  of  the  state  are  treated  alike.  It  applies  with  equal 
force  to  all  sales,  whether  in  the  city  or  country,  in  exchanges,  offices 
or  on  the  street,  by  farmers,  mechanics,  brokers,  and  others.  The 
classification  violates  neither  Constitution. 

Third.  It  is  claimed  that  the  statute  is  invalid  because  it  fixes  the 


Ch.  11)  DUE  PROCESS  AND  EQOALITT:     TAXATION  009 

auiuunt  of  the  tax  regardless  of  the  value  of  the  certificates  sold  or 
of  the  sum  for  which  they  are  sold.  The  tax  in  question  is  an  excise 
tax  which  need  not  depend  upon  any  principle  of  valuation  or  on  any 
notice  to  the  taxpayer.  *  *  *  When  a  sale  is  made  the  tax  fol- 
lows, and  the  Legislature  had  the  right  to  measure  it  in  any  way  that 
it  saw  fit.  A  tax  of  two  cents  on  every  check,  regardless  of  the  amount 
for  which  it  was  drawn,  and  of  five  cents  on  a  written  contract,  wheth- 
er it  covered  a  transaction  involving  hundreds  or  thousands,  may  be 
referred  to  as  examples  of  what  has  been  done  without  serious  ques- 
tion in  the  imposition  of  excise  taxes.  A  poll  tax  does  not  depend 
upon  the  income  or  earning  capacity  of  the  persons  subject  to  it.  A 
tax  on  carriages,  guns,  and  watches  does  not  rest  on  the  value  of  the 
subjects  taxed.  They  are  counted,  not  appraised.  Hylton  v.  United 
States,  3  Dall.  (U.  S.)  171,  1  L.  Ed.  556;  Bellas  Gap  R.  R.  Co.  v.  Penn- 
sylvania, 134  U.  S.  232.  237.  10  Sup.  Ct.  533.  33  I..  Ed.  S92.  The  same 
is  true  of  an  excise  tax  on  legal  process,  domestic  animals,  avocations. 
and  the  like  of  which  there  have  been  many  instances  during  the  his- 
tory of  the  nation  and  the  different  states.  Such  powers  of  taxation, 
as  was  said  in  a  late  case,  "have  admittedly  belonged  to  state  and  na- 
tion  from  the  foundation  of  the  government."  Knowlton  v.  Moore. 
17S  U.  S.  41,  60,  20  Sup.  Ct.  747,  755,  44  L.  Ed.  969.    *    *    * 

Convenience  in  doing  business,  the  slight  cost  of  collection  and  the 
necessity  of  preventing  evasion  are  important  considerations  in  lay- 
ing an  excise  tax  and  the  rule  of  counting  rather  than  valuing  is  al- 
most universally  adopted,  so  that  the  citizen  may  know  at  once  the 
amount  of  the  tax  and  pay  it  by  affixing  the  stamps  required,  which 
are  permanent  evidence  of  the  sum  paid.  The  statute  itself  in  all  such 
cases,  as  well  as  in  the  case  under  consideration,  apportions  the  tax 
and  the  power  of  apportionment  is  part  of  the  power  of  taxation.  As 
was  said  by  this  court  many  years  ago:  "The  power  of  taxing  and  the 
power  of  apportioning  taxation  are  identical  and  inseparable.  Taxes 
cannot  be  laid  without  apportionment,  and  the  power  of  apportion- 
ment is,  therefore,  unlimited,  unless  it  be  restrained  as  a  part  of  the 
power  of  taxation.  There  is  not,  and  since  the  original  organization 
of  the  state  government,  there  has  not  been  any  such  constitutional 
limitation  or  restraint."  People  ex  rcl.  Griffin  v.  Ma' 
Brooklyn,  4  X.  Y.  419,  427,  55  Am.  Dec.  2w.  The  higl 
court  sustained  without  hesitation  an  assessment  upon  the  nominal  or 
face  value  of  bonds  instead  of  upon  their  actual  value,  and  a' 
clared  that  absence  of  notice  to  the  owners  of  the  bonds  was  not  a 
taking  of  the  bondholder's  property  without  due  process  of  law.  Bell's 
Gap  R.  R.  Co.  v.  Pennsylvania,  134  U.  S.  232.  10  Sup.  Ct.  ,: 
I*  Ed.  892;  Jennings  v.  Coal  Ridge  Improvement  &  Coal  Co.,  147 
I'.  S.  147.  13  Sup.  Ct.  282,  57  I..  n  the  Thomas  Cr. 

cisely  as  in  the  case  before  us.  the  tax  was  measured  by  "each  hi 
dollars  of  face  value  or  fraction  thereof."    As  our  Legislature  has  a'! 
Hai.i.  Const.L  —  39 


G10  FUNDAMENTAL    RIGHTS  (Part  2 

the  power  of  legislation  with  reference  to  taxation  that  the  state  has, 
of  necessity  it  has  as  much  power  to  classify  and  measure  as  belongs 
to  Congress.  Hence,  this  point,  as  well  as  the  last  preceding,  was 
involved  and  decided  in  the  Thomas  Case  even  if  no  expression  of  con- 
sideration appears  in  the  opinions.  United  States  v.  Thomas  (C.  C.) 
115  Fed.  207;  Thomas  v.  United  States,  192  U.  S.  363,  24  Sup.  Ct. 
305,  48  L.  Ed.  481.  We  think  that  the  apportionment,  even  when  so 
unequal  in  result  as  it  was  in  the  two  sales  described  in  the  affidavit 
of  the  complainant,  is  within  the  exclusive  control  of  the  Legislature, 
with  no  power  in  the  courts  to  interfere.  *  *  * 
Order  affirmed.3 

a  Affirmed  in  204  U.  S.  152,  27  Sup.  Ct.  188,  51  L.  Ed.  415,  9  Ann.  Cas.  736 
(1907).  Accord:  Southwestern  Oil  Co.  v.  Texas.  217  V.  S.  ill,  30  Sup.  Ct. 
496,  54  Xj.  Ed.  688  (1910)  (tax  on  wholesale  dealers  in  oil  only);  Broadnax  v. 
Missouri,  219  U.  S.  285.  31  Sup.  Ct.  238,  55  L.  Ed.  219  (1911)  (tax  on  business 
exchanges). 

"The  power  of  the  legislature  over  the  subject  of  taxation,  except  as  lim- 
ited by  constitutional  restrictions,  is  unbounded.  It  is  for  that  body,  in  the 
exercise  of  its  discretion,  to  select  the  objects  of  taxation.  It  may  impose  all 
the  taxes  upon  lands,  or  all  upon  personal  property,  or  all  upon  houses  or 
upon  incomes.  It  may  raise  revenue  by  capitation  taxes,  by  special  taxes 
upon  carriages,  horses,  servants,  dogs,  franchises,  and  upon  every  species  of 
property,  and  upon  all  kinds  of  business  and  trades.  People  v.  Mayor  of 
Brooklyn,  4  N.  Y.  419,  55  Am.  Dec.  266  (1851);  Stuart  v.  Palmer,  74  N.  Y.  183, 
30  Am.  Rep.  2S9  (1S7S);  People  v.  Equitable  Trust  Co..  96  N.  Y.  387  (1884)  ; 
Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815);  Cooley,  Tax'n,  7.  Taxes  upon 
legacies  and  inheritances  have  been  approved  generally  by  writers  upon 
political  economy  and  systems  of  taxation,  and  no  tax  can  be  less  burdensome, 
and  interfere  less  with  the  productive  and  industrial  agencies  of  society." — 
Earl,  J.,  in  Matter  of  McPherson,  104  N.  Y.  306,  316,  317,  10  N.  E.  6S5,  686, 
58  Am.  Rep.  502  (1887). 

"The  provision  in  the  fourteenth  amendment,  that  no  state  shall  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws,  was  not 
intended  to  prevent  a  state  from  adjusting  its  system  of  taxation  in  all  proper 
and  reasonable  ways.  It  may,  if  it  chooses,  exempt  certain  classes  of  property 
from  any  taxation  at  all,  such  as  churches,  libraries,  and  the  property  of 
charitable  institutions.  It  may  Impose  different  specific  taxes  upon  different 
trades  and  professions,  and  may  vary  the  rates  of  excise  upon  various 
products ;  it  may  tax  real  estate  and  personal  property  in  a  different  manner ; 
it  may  tax  visible  property  only,  and  not  tax  securities  for  payment  of  money  ; 
it  may  allow  deductions  for  indebtedness,  or  not  allow  them.  All  such  regu- 
lations, and  those  of  like  character,  so  long  as  they  proceed  within  reasonable 
limits  and  general  usage,  are  within  the  discretion  of  the  state  legislature, 
or  the  people  of  the  state  in  framing  their  constitution.  But  clear  and  hostile 
discriminations  against  particular  persons  and  classes,  especially  such  as  are 
of  an  unusual  character,  unknown  to  the  practice  of  our  governments,  might 
be  obnoxious  to  the  constitutional  prohibition.  It  would,  however,  be  imprac- 
ticable and  unwise  to  attempt  to  lay  down  any  general  rule  or  definition  on 
the  subject  that  would  include  all  cases.  They  must  be  decided  as  they 
arise.  We  think  that  we  are  safe  in  saying  that  the  fourteenth  amendment 
was  not  intended  to  compel  the  states  to  aaopt  an  iron  rule  of  equal  taxation. 
If  that  were  its  proper  construction,  It  would  not  only  supersede  all  those 
constitutional  provisions  and  laws  of  some  of  the  states,  whose  object  is  to 
secure  equality  of  taxation,  and  which  are  usually  accompanied  with  quali- 
fications deemed  material,  but  it  would  render  nugatory  those  discrimina- 
tions which  the  best  interests  of  society  require;  which  are  necessary  for 
the  encouragement  of  needed  and  useful  industries,  and  the  discouragement  of 
intemperance  and  vice,  and  which  every  state,  in  one  form  or  another,  deems 


Ch.  11)  DUB  PROCESS  AND  equality:    TAXATION  ('l' 


PEOPLE  ex  rel.  FARRINGTON  v.  MENSCHING. 

(Court  of  Appeals  of  New  York.  1007.     is?  N.  Y.  8,  79  N.  E.  88-1,  10  L.  It.  A. 
IN.   8.]  til'.".,  10  Anu.  Cas.    101,) 

[Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  of  New  York  for  the  First  Department.  The  New  York  stat- 
ute of  1905,  referred  to  in  People  v.  Reardon,  ante,  p.  605,  was 
amended  so  as  to  impose  a  stamp  tax  of  two  cents  on  each  share  of 
$100  of  face  value,  or  fraction  thereof,  on  all  transfers  of  stock.  One 
Farrington,  without  paying  any  tax,  sold  a  large  number  of  shares 
of  stock  in  mining  and  manufacturing  companies  of  a  face  value  of 
from  one  cent  to  one  dollar  a  share,  and  of  an  actual  value  of  from 
two  to  fourteen  cents  each.  When  arrested,  he  sought  liberty  by 
virtue  of  a  writ  of  habeas  corpus,  alleging  the  invalidity  of  this  tax. 
The  lower  courts  dismissed  the  writ.] 

Vann,  J.  *  *  *  The  act  now  before  us  does  not  classify  by  ar- 
ranging according  to  quality,  but  by  arranging  according  to  accident. 
While  it  places  all  corporate  shares  in  a  class,  still  it  does  not  treat  all 
members  of  the  class  alike,  but  without  method  or  order  bears  heavily 
upon  some  and  lightly  upon  others,  which,  in  elYect,  is  a  further  classi- 
fication. Thus  it  imposes  the  same  tax  on  the  sale  of  dollar  shares 
and  hundred  dollar  shares.  The  tax  is  measured  by  the  number  of 
shares,  regardless  of  face  value  or  actual  value.  Shares  of  the  same 
corporation  might  be  taxed  10  times  as  much,  or  only  one-tenth  as 
much,  in  one  year  as  compared  with  the  next,  if  simply  the  face  value 
of  each  share  were  changed,  without  changing  the  aggregate  of  the 
face  value  of  all  the  shares,  or  the  amount  of  capital  invested,  or  the 
value  of  the  assets  in  which  it  was  invested.  Shares  are  so  classified 
as  to  tax  the  sale  of  those  issued  by  one  corporation  several  times  as 

it  expedient  to  adopt"— Bradley,  J.,  in  Roll's  Gap  Ry.  v.  Pennsylvania,  134  U. 
s    232    2S7,  10  Sup.  Ct  533,  533,  33  L.  Ed. 

In  Michigan  C.  Ry.  v.  Towers,  201  D.  S.  246,  800,  302,  26  Sup.  Ot 
I..  Ed.  711  (1006).  Brewer,  J.,  sairl  (upholding  an  ad  valorem  property  tax  on 
all  railroads  In  Michigan,  determined  by  averaging  the  local  tax  rates  of  all 
municipal  subdivisions  regardless  of  the  presei >r  absence  of  railroad  prop- 
erty In  any  of  them):  "That,  so  far  as  the  restraints  of  the  federal  Constitu 
tlon  are  concerned,  it  is  within  the  power  of  a  state  to  separate  a  particular 
class  of  property,  subject  it  to  assessment  and  taxation  in  a  mode  and  at  a 
rate  different  from  that  Imposed  upon  other  property,  and  apply  the  proceeds 
m   slate   rather   than  to  local   purposes,    is   Dot   open   to   question.     •     *     •     A 

legislature  is  not  bound  to  impose  the  same  rate  of  tax  upon  one  c 
property  that  it  does  upon  another,    As  it  may  exempt  all  of  one  cla- 
m.iy  Impose  a  different   rate  of  taxation.     It    is  sufficient  if  all  of  tl:. 
.lass  are  subjected  to  the  same  rate  and  the  tax  is  administrated  Impartially 
upon  them." 

A  number  of  state  Constitutions  contain  special  provisions  that  taxation 
shall   be   uniform   or  proportional.     Tl 

Hon  in  classification.  See,  e.  g..  Opinion  of  Justices,  196  Mass.  cot.  m  N  i: 
499  (1908).  To  some  extent  Such  provisions  also  check  double  taxation.  Sou 
note  i.  above,  and  also  People  v.  Brooklyn,  post,  p.  049,  note  -■ 


612  FUNDAMENTAL    RIGHTS  (Part  2 

much  as  those  issued  by  another  of  the  same  kind  and  in  exactly  the 
same  situation,  without  any  reason  for  the  distinction.  Possibly  a 
valid  distinction  might  be  founded  on  the  nature  or  object  of  the 
corporation,  or  on  the  fact  that  it  enjoyed  special  privileges,  putting 
banking  and  railroad  corporations  in  and  leaving  manufacturing  cor- 
porations out,  for  instance,  but  we  think  none  can  rest  on  an  accidental 
and  non-essential  quality  without  the  violation  of  fundamental  prin- 
ciples. 

While  the  Legislature  has  wide  latitude  in  classification,  its  power 
in  that  regard  is  not  without  limitation,  for  the  classification  must  have 
some  basis,  reasonable  or  unreasonable,  other  than  mere  accident, 
whim,  or  caprice.  There  must  be  some  support  of  taste,  policy,  differ- 
ence of  situation  or  the  like ;  some  reason  for  it,  even  if  it  is  a  poor 
one.  While  the  state  can  tax  some  occupations  and  omit  others,  can 
it  tax  only  such  members  of  a  calling  as  have'  blue  eyes  or  black  hair? 
We  have  said  that  it  could  tax  horses  and  leave  sheep  untaxed,  but  it 
does  not  follow  that  it  could  tax  white  horses  and  omit  all  others,  or 
tax  the  sale  of  certificates  printed  on  white  paper,  and  not  those  on 
yellow  or  brown.  While  one  class  may  be  made  of  horses  and  another 
of  sheep,  or  even  a  class  made  of  race  horses,  owing  to  the  use  made 
of  them,  without  a  shock  to  common  sense,  a  classification  limited  to 
white  horses  would  be  so  arbitrary  as  to  amount  to  tyranny,  because 
there  would  be  no  semblance  of  reason  for  it.  A  reason  might  be  ad- 
vanced, although  specious  and  unsound,  for  taxing  Holstein  bulls  and 
no  others,  but  could  even  a  sophist  argue  in  favor  of  taxing  Holstein 
steers  and  no  others,  since  they  are  incapable  of  reproduction?  A 
classification  of  dealers  in  cigarettes  into  those  selling  at  wholesale 
without  the  state  and  those  selling  at  retail  within  the  state  was  sus- 
tained on  the  ground  that  the  two  occupations  are  distinct  (Cook  v. 
Marshall  County,  196  U.  S.  261,  274,  25  Sup.  Ct.  233,  49  L.  Ed.  471), 
but  could  dealers  in  any  commodity  be  classified  according  to  age,  size, 
or  complexion?  A  classification  of  sales  into  those  made  in  an  ex- 
change and  those  made  elsewhere  was  sustained  in  another  case,  but 
could  exchanges  be  so  classified  as  to  tax  only  such  sales  as  are  made 
in  those  carried  on  in  brick  buildings?  Nicol  v.  Ames,  173  U.  S.  509, 
19  Sup.  Ct.  522,  43  L,  Ed.  786. 

Perhaps  an  answer  to  these  questions  may  be  found  in  Cotting  v. 
Kansas  City  Stockyard  Co.,  183  U.  S.  79,  22  Sup.  Ct.  30,  46  L.  Ed. 
92,  where  a  general  act,  the  effect  of  which  was  to  so  classify  stock- 
yards in  the  state  of  Kansas  as  to  discriminate  against  the  largest 
stockyard  in  the  state,  but  without  mentioning  it  by  name,  was  held  to 
be  unconstitutional  because  it  denied  to  that  company  the  equal  protec- 
tion of  the  laws.  A  similar  fate  met  an  act  of  another  state,  which 
provided  that  a  certain  tax  should  be  imposed  only  upon  those  taxable 
inhabitants  of  a  school  district  who  had  not  paid  a  tax  assessment  in 
the  year  1871.  State  ex  rel.  Trustees  v.  Township,  etc.,  36  N.  J.  Law, 
66.    Even  if  a  tax  on  farms  according  to  acreage  might  be  sustained, 


Ch.  H)  DUE   PBOCB88  am.   EQ1    .in*:     TAXATION  013 

it  is  obvious  that  a  tax  on  farms  according  to  the  number  of  fields  into 
which  they  are  divided  would  not  be  valid.  Such  a  classification  would 
not  treat  all  in  the  same  class  alike,  and  would  impose  a  heavier  bur- 
den upon  one  farm  than  upon  another  of  the  same  size,  situation,  and 
value.  A  statute  imposing  such  a  tax  would  not  give  "that  equal  pro- 
tection and  security"  to  which  all,  under  like  circumstances,  are  enti- 
tled "in  the  enjoyment  of  their  personal  and  civil  rights."  Barbier  v. 
Connolly,  113  [}.  S.  27,  5  Sup.  Ct.  357,  28  L.  Ed.  923;  Matter  of 
Jacobs,  98  X.  Y.  98,  50  Am.  Rep.  636;  People  v.  Marx,  99  N.  Y.  377, 
2  X.  E.  29,  52  Am.  Rep.  34.     *    *    * 

While  the  sale  of  all  shares  is  taxed  an  equal  amount  per  share,  the 
tax  is  unequal  when  the  shares  are  issued  for  different  amounts  and 
the  record  shows  a  wide  range  in  that  respect.  The  business  corpora- 
tions law  requires  shares  to  be  not  less  than  $5  and  not  more  than 
$100  each.  Laws  1890,  p.  1168,  c.  567,  §  2.  Other  corporations  do  not 
appear  to  he  limited  in  this  regard.  Perhaps  a  face  value  of  $100  is 
the  most  common,  but  shares  of  $50  are  not  unusual,  and  shares  of 
more  than  $100  are  occasionally  issued.  In  mining  stocks  the  shares 
generally  range  from  $1  to  $10.     *    *    * 

The  serious  objection  to  the  statute  under  consideration  is  not  that 
in  some  abnormal  instance  of  low  face  value  the  tax  might  amount 
to  confiscation,  but  that  the  classification  is  as  purely  arbitrary  as  the 
division  of  land  into  fields  to  which  we  have  alluded.  Granting  the 
almost  unlimited  power  of  the  Legislature  to  classify  as  it  sees  tit. 
still  there  is  no  plausible  or  possible  reason  why  100  acres  in  a  single 
field  should  not  pay  the  same  tax  as  100  acres  of  equal  value  in  10 
fields.  It  seems  equally  clear  that  no  distinction  in  liability  to  taxation 
can  be  drawn  between  10  shares  of  the  face  value  of  $100  each  and 
100  shares  of  the  face  value  of  $10  each.    *     *    * 

While  it  is  true  that  the  face  value,  which  in  multiples  of  $100  we 
held  in  the  Hatch  Case  to  be  a  proper  basis  of  classification,  does  not 
necessarily  indicate  actual  value,  still  it  bears  some  relation  thereto, 
but  a  share  apart  from  its  size  or  face  value  can  bear  no  relation  what- 
ever to  its  actual  value.  The  classification  was  arbitrary,  which  "can 
never  be  justified  by  calling  it  classification."  Gulf,  Colorado  &  Santa 
Fe  Railway  Co.  v.  Ellis,  165  U.  S.  150,  17  Sup.  Ct.  255.  41  L.  Ed 
666.    *    *    * 

The  rule  governing  the  subject,  as  laid  down  by  the  Supreme  Court 
of  the  United  States,  is  that  there  must  be  "some  difference  which 
bears  a  reasonable  and  proper  relation  to  the  attempted  classification." 
It  cannot  be  "mere  arbitrary  selection."  [Citing  cases,  most  of  which 
are  discussed  in  this  section  or  in  Chapter  X,  section  2,  of  this  volume.] 
*  *  *  By  this  we  do  not  understand  that  great  court  to  mean  that 
the  relation  must  necessarily  h  ible  and  proper"  according  to 

the  judgment  of  reviewing  judges,  but  that  the  court  must  be  able  to 
see  that  legislators  could  regard  it  as  reasonable  and  proper  v. 
doing  violence    to   common   sense.      In   other    words,   there   must   be 


614  FUNDAMENTAL    RIGHTS  (Part  2 

enough  reason  for  it  to  support  an  argument,  even  if  the  reason  is 
unsound.  At  all  events  that  is  as  far  as  it  is  necessary  for  us  to  go  in 
this  case,  where  no  reason  whatever  can  be  seen  for  selecting  certain 
individuals  of  a  class  and  taxing  them  more  heavily  than  others  in 
the  same  situation.  We  regard  this  as  an  arbitrary  "discrimination 
in  favor  of  one  as  against  another  of  the  same  class,"  and  as  a  viola- 
tion of  primary  rights.  *  *  *  [The  amendment  being  invalid,  the 
tax  of  1905  was  held  to  be  in  force  and  Farrington  liable  for  non- 
compliance with  that.] 
Order  affirmed.1 


AMERICAN   SUGAR  REFINING  COMPANY  v.  LOUISIANA. 

(Supreme  Court  of  United  States,  1900.     179  U.  S.  89,  21  Sup.  Ct.  43,  45  L. 
Ed.  102.) 

[Error  to  the  Supreme  Court  of  Louisiana.  Louisiana  imposed  an 
annual  license  tax  upon  all  persons  or  corporations  engaged  in  the 
business  of  refining  sugar  and  molasses,  based  upon  the  gross  annual 
receipts  from  such  business,  but  excepting  from  the  tax  "planters 
and  farmers  grinding  and  refining  their  own  sugar  and  molasses," 

i  In  holding  invalid  the  exaction  of  a  $500  yearly  license  fee  from  persons 
selling  convict-made  goods  in  Mew  York,  Clarke,  J.,  said,  In  People  v. 
Raynes,  136  App.  Div.  417,  423,  424.  120  N.  T.  Supp.  1053,  1057,  105S  (1010) : 
"That  classification  is  based  upon  the  origin  of  the  goods  dealt  in,  without 
regard  to  the  quality  or  character  or  nature  of  the  goods  themselves.  Cloth- 
ing, household  furniture,  shoes,  scrubbing  brushes,  brooms,  harness,  anything 
that  can  be  made  by  hand  or  machinery,  falls  within  one  classification,  pro- 
vided the  origin  is  the  same.  Substitute  a  state  for  a  prison,  and  no  one 
would  be  willing  to  say  that  a  law  which  required  all  persons  who  might  deal 
in  goods,  wares,  and  merchandise  made  in  New  Jersey  to  take  out  a  license 
would  be  valid :  or,  if  it  be  objected  that  that  would  be  a  direct  violation  of  the 
federal  Constitution,  made  in  Troy,  or  in  Schenectady,  or  in  Buffalo.  Take  an- 
other classification,  that  a  license  fee  should  be  required  for  dealers  in  all  goods 
made  by  machinery,  or  all  goods  made  by  hand.  If  such  classification  be  valid, 
and  if  the  purpose  of  the  act,  as  is  claimed,  is  to  protect  free  labor  from  prison 
labor,  why  in  these  days  of  contest  between  organized  and  unorganized  labor 
should  not  an  act  be  passed  which  provided  for  such  a  license  for  selling  all 
goods  made  in  a  shop  which  did  not  employ  union  labor,  and  then,  if  the 
advocates  of  a  free  shop  were  in  power,  repeal  it,  and  provide  for  such 
license  for  all  goods  made  in  shops  which  employed  union  labor,  or  single  out 
for  license  dealers  in  goods  made  in  shops  employing  members- of  certain 
races,  religions,  or  political  parties.  All  these  classifications  would  be  based 
on  origin,  as  is  that  under  consideration." 

A  tax  upon  the  property  of  each  race  (white  and  colored)  for  the  support  of 
its  own  separate  schools  is  invalid.  Claybrook  v.  City  of  Oweusboro,  16  Fed. 
297  (1SS3);  Puitt  v.  Com'rs,  94  N.  C.  709,  55  Am.  Rep.  638  (1S86).  In  the 
former  case,  it  was  said  (16  Fed.  302):  "The  equal  protection  of  the  laws 
guarantied  by  this  amendment  must  and  can  only  mean  that  the  laws  of  the 
states  must  be  equal  in  their  benefit  as  well  as  equal  in  their  burdens,  and 
that  less  would  not  be  'the  equal  protection  of  the  laws.'  This  does  not  mean 
absolute  equality  in  distributing  the  benefits  of  taxation.  This  is  imprac- 
ticable; but  it  does  mean  the  distribution  of  the  benefits  upon  some  fair  and 
equal  classification  or  basis." 


Ch.ll)  DUE   PUOCKSS   AND    EQUALITY :     TAXATION  61fi 

or  who  "granulate  syrup  for  other  planters  during  the  rolling  season." 
The  state  tax  collector  began  suit  against  the  defendant  company  for 
the  above  tax  in  the  district  court  of  Orleans  parish,  and,  though  de- 
feated there,  was  successful  upon  appeal  to  the  state  Supreme  Court. 
The  company  then  took  this  writ  of  error.] 

Mr.  Justice  Brown.  *  *  *  The  act  in  question  does  undoubted- 
ly discriminate  in  favor  of  a  certain  class  of  refiners,  but  this  discrim- 
ination, if  founded  upon  a  reasonable  distinction  in  principle,  is  valid. 
Of  course,  if  such  discrimination  were  purely  arbitrary,  oppressive, 
or  capricious,  and  made  to  depend  upon  differences  of  color,  race, 
nativity,  religious  opinions,  political  affiliations,  or  other  considerations 
having  no  possible  connection  with  the  duties  of  citizens  as  taxpayers, 
such  exemption  would  be  pure  favoritism,  and  a  denial  of  the  equal 
protection  of  the  laws  to  the  less  favored  classes.  But  from  time  out 
of  mind  it  has  been  the  policy  of  this  government,  not  only  to  classify 
for  purposes  of  taxation,  but  to  exempt  producers  from  the  taxation 
of  the  methods  employed  by  them  to  put  their  products  upon  the 
market.  The  right  to  sell  is  clearly  an  incident  to  the  right  to  man- 
ufacture or  produce,  and  it  is  at  least  a  question  for  the  legislature  to 
determine  whether  anything  done  to  prepare  a  product  most  perfectly 
for  the  needs  of  the  market  shall  not  be  treated  as  an  incident  to 
its  growth  or  production.  The  act  is  not  one  exempting  planters  who 
use  their  sugar  in  the  manufacture  of  articles  of  a  wholly  different  de- 
scription, such  as  confectionery,  preserves,  or  pastry,  or  such  as  one 
which  should  exempt  the  farmer  who  devoted  his  corn  or  rye  to  the 
making  of  whisky,  while  other  manufacturers  of  these  articles  were 
subjected  to  a  tax.  A  somewhat  different  question  might  arise  in  such 
case,  since  none  of  these  articles  are  the  natural  products  of  the  farm. 
— such  products  only  becoming  useful  by  being  commingled  with  other 
ingredients.  Refined  sugar,  however,  is  the  natural  and  ultimate- 
product  of  the  cane,  and  the  various  steps  taken  to  perfect  such  prod- 
uct are  but  incident  to  the  original  growth. 

With  reference  to  the  analogous  right  of  importation,  it  was  said 
by  this  court  at  an  early  day,  in  Brown  v.  Maryland,  12  Whea 
6  L.  Ed.  678,  that  the  right  to  sell  was  an  incident  to  the  right  to  im- 
port foreign  goods,  and  that  a  license  tax  upon  the  sale  of  imported 
goods,  while  still  in  the  hands  of  the  importer  in  their  original  pack- 
ages, was  in  conflict  with  that  provision  of  the  Constitution  which  pro- 
hibits a  state  from  laying  an  impost  or  duty  upon  imports. 

Congress,  too,  has  repeatedly  acted  upon  the  principle  of  the  Lou- 
isiana statute.  Thus,  after  having  imposed  by  act  of  August  2. 
a  license  tax  upon  the  retailers  of  wines  and  spirits,  for  the  purpose 
of  providing  for  the  expense  of  the  war  with  Great  Britain,  it  was 
further  enacted  by  an  act  of  February  8,  1815  (3  Stat,  at  L-  205,  chap. 
40),  that  it  should  not  be  construed  "to  extend  to  vine  dressers  who 
sell  at  the  place  where  the  same  is  male,  wine  of  their  own  growth; 


616  FUNDAMENTAL    EIGHTS  (Part  2 

nor  shall  any  vine  dresser  for  vending  solely  at  the  place  where  the 
same  is  made,  wine  of  his  growth,  be  compelled  to  take  out  license 
as  a  retailer  of  wine."  So,  too,  in  the  internal  revenue  act  of  1862 
(12  Stat,  at  L.  432,  chap.  119),  a  license  tax  was  imposed  (section  64) 
upon  retail  dealers  in  all  goods,  wares,  and  merchandise,  but  with  a 
proviso,  in  section  66,  that  the  act  should  not  be  construed  "to  require 
a  license  for  the  sale  of  goods,  wares,  and  merchandise  made  or  pro- 
duced and  sold  by  the  manufacturer  or  producer  at  the  manufactory 
or  place  where  the  same  is  made  or  produced ;  to  vinters  who  sell, 
at  the  place  where  the  same  is  made,  wine  of  their  own  growth ;  nor 
to  apothecaries,  as  to  wines  or  spirituous  liquors  which  they  use  ex- 
clusively in  the  preparation  or  making  up  of  medicines  for  sick,  lame, 
or  diseased  persons."  Another  paragraph  of  the  same  section  (64) 
exempts  distillers  who  sell  the  products  of  their  own  stills,  from  a 
tax  as  wholesale  dealers  in  liquors.  While  no  question  of  the  power 
of  Congress  is  involved,  these  instances  show  that  its  general  policy 
does  not  differ  from  that  of  the  act  in  question,  and  that  the  discrim- 
ination is  based  upon  reasonable  grounds.  *  *  *  [Among  other 
cases  the  court  here  quotes  from  Bell's  Gap  Ry.  v.  Pennsylvania  part 
of  the  extract  printed  ante,  p.  610,  note.] 

In  Pacific  Exp.  Co.  v.  Seibert,  142  U.  S.  339.  35  L.  Ed.  1035,  3 
Interst.  Com.  Rep.  810,  12  Sup.  Ct.  250,  a  state  statute  defining  an  ex- 
press company  to  be  such  as  carried  on  the  business  of  transportation 
on  contracts  for  hire  with  railroad  or  steamboat  companies,  did  not  in- 
vidiously discriminate  against  the  express  companies  defined  by  it,  by 
exempting  other  companies  carrying  express  matter  in  vehicles  of 
their  own.  This  case  is  specially  pertinent  to  the  one  under  consider- 
ation. See  also  Giozza  v.  Tiernan,  148  U.  S.  657,  37  L.  Ed.  599,  13 
Sup.  Ct.  721;  Columbus  Southern  R.  Co.  v.  Wright,  151  U.  S.  470, 
38  L.  Ed.  238,  14  Sup.  Ct.  396;  Duncan  v.  Missouri,  152  U.  S.  377, 
38  L.  Ed.  485,  14  Sup.  Ct.  570;  Western  U.  Teleg.  Co.  v.  Indiana, 
165  U.  S.  304,  41  L.  Ed.  725,  17  Sup.  Ct.  345;  Adams  Exp.  Co.  v. 
Ohio  State  Auditor,  165  U.  S.  194,  41  L.  Ed.  683,  17  Sup.  Ct.  305. 

The  Constitution  of  Louisiana  classifies  the  refiners  of  sugar  for 
the  purpose  of  taxation  into  those  who  refine  the  products  of  their 
own  plantations,  and  those  who  engage  in  a  general  refining  business, 
and  refine  sugars  purchased  by  themselves  or  put  in  their  hands  by 
others  for  that  purpose,  imposing  a  tax  only  upon  the  latter  class.  To 
entitle  a  party  to  the  exemption  it  must  appear  (1)  that  he  is  a  farmer 
or  a  planter;  (2)  that  he  grinds  the  cane  as  well  as  refines  the  sugar 
and  molasses ;  (3)  that  he  refines  his  own  sugar  and  molasses,  mean- 
ing thereby  the  product  of  his  own  plantation.  Whether  he  may  also 
refine  the  sugar  of  others  may  be  open  to  question ;  although  by  its 
express  terms  the  act  does  not  apply  to  planters  who  granulate  syrup 
for  other  planters  during  the  rolling  season.  The  discrimination  is 
obviously  intended  as  an  encouragement  to  agriculture,  and  does  not 


Ch.  11)  DVB   PBOQBVBS   AND   EQUAUTX !     TAXATION  617 

deny  to  persons  and  corporations  engaged  in  a  general  refining  business 
the  equal  protection  of  the  laws. 

Judgment  affirmed.1 

[Harlan,  J.,  concurred  in  the  result.  White,  J.,  took  no  part  in  the 
decision.] 

i  Accord:    Williams  v.  Fears,  179  0.  8.  270,  21  Sup.  Ct  128,  45  L,   Ed.  186 
(1900)   (tax   ouly  on   those  hiring  laborers   to   work  out  of  state) ;    Cook    v. 
Marshall  Co.,  196  D.-S.  261,  25  Sup.  Ct  233,  49  I..  Ed.   171  11905)  (cigarette 
dealers  selling  by  wholesale  to  customers  out  of  state  exempted  froi 
Savannah,  etc..  By.  v.  Savannah,  198  0.  S.  392,  25  San,  <'t.  690,  49  I..  I 
(1905)  (street  and  steam  railways  in  streets  of  same  city   taxed  differently); 
litan  St.  Ky.  v.  New  York.  199  V.  S.  I,  25  Sup.  Ct  705.  50  L.  Ed  65,  I 
Amu.  Cas.  381  1 19051  (surface  and  sul  surface  street  railways  taxed  diff«  I 
semble);   Cox  v.  Texas,  202  U.  S.  446,  26  Bop.  Ct  671,  50  L.  Ed.  1090 
(tax  discrimination  in  favor  of  domestic  wine  in  hands  of  producer  or  manu- 
facturer);   Bradley  v.  Richmond,  227   I",  s.   177,  33  Sup.  Ct  318,   57  L.  Ed. 

(1913)  (lenders  of  money  on  salaries  and  furniture  taxed  differently  from 

other  lenders);    Citizens'  Tel.  Co.  v.  Fuller,  229  D.  S.  322,  328-380,  83  Bop. 
Ct.  833,  57  L.  Ed. (1913)  (exempting  from  general  ad  valorem  tax  all  prop- 
erty  of   telephone  companies   having   less   than  5500  annual   gross   i 
i  cases). 

The  greater  latitude  enjoyed  by  the  legislature  in  classifying  for  taxation  as 
compared  with  classification  for  regulative  purposes  appears  from  a  compari- 
son of  the  principal  case  with  Connolly  v.  Union  Sewer  Pipe  Co.,  ante,  p.  349 
where  an  Illinois  statute  forbidding  1  In  restraint  of  trade  was 

held  invalid  for  excepting  from  Its  operation  fanning  and  stock  raising.  Bee 
Billings  v.  Illinois,  post,  p.  635;  Cook  v.  Marshall  Co.,  above;  Citizens'  Tel 
Co.  v.  Fuller,  above. 

A  tax  is  Dot  Invalid  merely  because  like  objects  of  taxation  are  eonstitu 
tlonally  exempt  under  other  rules  of  law.  Brown-Forman  Co.  v.  Kentucky, 
217  U.  S.  503,  30  Sup.  Ct.  578.  54  I..  Ed  883  (1910).  Compare  Dolley  v.  Abilene 
Bank,  179  Fed.  4fil,  102  C.  C.  A.  607,  32  It.  R.  A.  (N.  S.)  10C5  (1910),  atlirmed 
228  TJ.  S.  1,  33  Sup.  Ct.  409,  57  L.  Ed. (1913). 

In  Quong  Wing  v.  Kirkendall,  223  1  3,  82  Sup.  Ct  102,  193  (66 

i.  Ed.  350)  (1912)  a  statute  taxing  hand  laundries  operated  by  men  or  where 
over  two  women  were  employed  was  upheld;  Holmes,  J.,  saying:  "The  case 
was  argued  upon  the  discrimination  between  the  instrumentalities  employed 
in  the  same  business  and  thai  between  men  and  women,  one  like  the  former 
was  held  bad  in  Ke  Yot  Sang  (D.  C.)  75  Fed.  9S3  (1896)  and  while  the  latter 
was  spoken  of  by  the  supreme  court  of  the  state  (39  Mont.  64.  101  Pac,  250 
(1909)]  as  an  exemption  of  one  01  two  womei      I  I  that  in  1900 

the  census  showed  more  women  than  men  engaged  in  hand  laundry  work  in 
Lte.     Nevertheless  we  agree  with  the  supreme  court  of  the  state  so  far 
as  these  grounds  are  concerned.     A  state  does  not  deny  the  equal  protection 
of  the  laws  merely  by  adjusting  its  revenue  laws  and  taxing  system  in  such 
:i    nay  as  to  favor  certain  industries  or  forms  of  industry.     Like  the   United 
statis.  although  with  more  restriction  and  in  less  degree,  a  state  may  carry 
out  a  policy,  even  a  policy  with  which  we  might  disagree.     McLean  v.  Ar 
ansas,  211'r.  s.  539,  547,  53  1..  Ed.  315,  31»,  29  sup.  Ct.  206  (1909);    Armour 
Packing  Co.  v.  Lacy.  200  D.  S.  22c.  235,  50  L.  Ed.  451.  456,  2) 
(1906  ;    Connollj   1     1  oi  n  Sewer  Pipe  Co.,  184  D.  S.  640,  662,  46  I. 
699,   22  Sup.  *'t.  4.",1   (1902).     It  may  make  discriminations,   if  Bounded  On  dis- 
tinctions thai    we  cannot    pronounce  unreasonable  and  purely   arblti 
was  illustrated  in  American  Sugar  Ref.  Co.  V.  Louisiana.   179  D.  B.  v'' 
45  L.  Ed.  102,  103,  105,  21  Sup.  Ct  43  (1900);     Williams  v.   Fears.    17'.'  D.   S 
270,   276,    15    !..    Ed.    Is''.   189.  21    Sup.  Ct.    12s  (1900):    W.   W.  I 
Minnesota,  LSO  O.  S.   162,  469\  46  I-  Ed.  619,  627,  21  Sui 

inr  or  discourage  the  liquor  traffli    01  trusts.     The  criminal   law  Is   B 
whole  bodj  of  policy  on  which  states  maj  and  do  differ.    If  the  si    ' 
to  encourage  steam  laundries  and  discourage  hand  laundries,  that  Is  its  own 


G18  FUNDAMENTAL    RIGHTS  (Part  2 

CALIFORNIA  v.  CENTRAL  PACIFIC  R.  CO.  (1888)  127  U.  S. 
1,  40-42,  8  Sup.  Ct.  1073,  32  L.  Ed.  150.  Mr.  Justice  Bradley  (dis- 
cussing the  taxation  of  corporate  franchises) : 

"What  is  a  franchise?  Under  the  English  law,  Blackstone  defines 
it  as  'a  royal  privilege,  or  branch  of  the  king's  prerogative,  subsisting 
in  the  hands  of  a  subject.'  2  Comm.  37.  Generalized,  and  divested 
of  the  special  form  which  it  assumes  under  a  monarchical  government 
based  on  feudal  traditions,  a  franchise  is  a  right,  privilege,  or  power 
of  public  concern,  which  ought  not  to  be  exercised  by  private  in- 
dividuals at  their  mere  will  and  pleasure,  but  should  be  reserved  for 
public  control  and  administration,  either  by  the  government  directly, 
or  by  public  agents,  acting  under  such  conditions  and  regulations  as 
the  government  may  impose  in  the  public  interest,  and  for  the  public 
security  such  rights  and  powers  must  exist  under  every  form  of  so- 
ciety. They  are  always  educed  by  the  laws  and  customs  of  the  com- 
munity. Under  our  system,  their  existence  and  disposal  are  under 
the  control  of  the  legislative  department  of  the  government,  and  they 
cannot  be  assumed  or  exercised  without  legislative  authority.  No 
private  person  can  establish  a  public  highway  or  a  public  ferry  or 
railroad,  or  charge  tolls  for  the  use  of  the  same,  without  authority 
from  the  legislature,  direct  or  derived.  These  are  franchises.  No 
private  person  can  take  another's  property,  even  for  a  public  use. 
without  such  authority ;  which  is  the  same  as  to  say  that  the  right  of 
eminent  domain  can  only  be  exercised  by  virtue  of  a  legislative  grant. 
fhis  is  a  franchise.     No  persons  can  make  themselves  a  body  corpo- 

affair.  And  if,  again,  it  finds  a  ground  of  distinction  in  sex,  that  Is  not  with- 
out precedent.  It  has  been  recognized  with  regard  to  hours  of  work.  Muller 
v.  Oregon,  208  U.  S.  412,  52  L.  Ed.  551,  28  Sup.  Ct.  324,  13  A.  &  E.  Ann.  Cas. 
957  (190S).  It  is  recognized  in  the  respective  rights  of  husband  and  wife  in 
land  during  life,  in  the  inheritance  after  the  death  of  the  spouse.  Often  it 
is  expressed  in  the  time  fixed  for  coming  of  age.  If  Montana  deems  it  ad- 
visable to  put  a  lighter  burden  upon  women  than  upon  men  with  regard  to 
an  employment  that  our  people  commonly  regard  as  more  appropriate  for 
the  former,  the  fourteenth  amendment  does  not  interfere  by  creating  a 
fictitious  equality  where  there  is  a  real  difference.  The  particular  points  at 
which  that  difference  shall  be  empahasized  by  legislation  are  largely  in  the 
power  of  the  state."     [Lamar,  J.,  gave  a  dissenting  opinion.] 

Discrimination  in  Assessment  or  Collection  of  Taxes. — An  habitual  or 
intentional  discrimination  in  valuation  or  inclusion  of  property  for  assessment 
against  certain  persons  or  classes  of  persons  deprives  them  of  the  equal  pro- 
tection of  the  laws,  even  though  they  are  assessed  as  the  law  provides,  and 
though  the  failure  to  do  the  same  with  favored  classes  is  illegal.  Raymond  v. 
Chicago  Traction  Co.,  207  U.  S.  20,  28  Sup.  Ct  7,  52  L.  Ed.  78,  12  Ann.  Cas. 
757  (1907).  But  favoring  a  few  individuals,  not  in  pursuance  of  a  general 
scheme,  is  not  a  constitutional  ground  of  complaint  for  others.  Supervisors 
v.  Stanley,  105  U.  S.  305,  26  L.  Ed.  1044  (1SS1);  Coulter  v.  L.  &  N.  Ry.,  196  U. 
Si  599,  25  Sup.  Ct.  342,  49  L.  Ed.  615  (1905).  Discrimination  in  assessment  or 
collection  of  taxes  however,  against  persons  who  might  be  separately  classified 
for  these  purposes,  is  valid  under  the  fourteenth  amendment.  King  v.  Mullins. 
171  U.  S.  404,  435-^36,  18  Sup.  Ct.  925,  43  L.  Ed.  214  (1898);  Florida  Cent, 
etc.,  Ry.  v.  Reynolds,  183  U.  S.  4?1,  22  Sup.  Ct.  176,  46  L.  Ed.  2S3  (1902) ; 
Missouri  v.  Dockery,  191  U.  S.  165,  24  Sup.  Ct.  53,  48  L.  Ed.  133  (1903). 


Ch.  11)  DUB    PROCESS   AND    EQUALITY:     TAXATION  019 

rate  and  politic  without  legislative  authority.     Corporate  capacity  is 
a  franchise.    The  list  might  be  continued  indefinitely.     »     *     * 

"The  taxation  of  a  corporate  franchise,  merely  as  such,  unless  pur- 
suant to  a  stipulation  in  the  original  charter  of  the  company,  is  the 
exercise  of  an  authority  somewhat  arbitrary  in  its  character.  It  has 
no  limitation  but  the  discretion  of  the  taxing  power.  The  value  of 
the  franchise  is  not  measured  like  that  of  property,  but  may  be  ten 
thousand  or  ten  hundred  thousand  dollars,  as  the  legislature  may 
choose.  Or,  without  any  valuation  of  the  franchise  at  all,  the  tax  may 
be  arbitrarily  laid." 


HORN  SILVER  MINING  CO.  v.  NEW  YORK. 

(Supreme  Court  of  United  States,  1892.     143  O.  S.  305,  12  Sup.  Ct.  403,  36  L. 
Ed.  164.) 

[Error  to  the  Supreme  Court  of  New  York.  The  Horn  Silver 
Mining  Company  was  a  Utah  manufacturing  corporation  having  a 
capital  stock  of  $10,000,000.  It  did  business  in  New  York,  but  most 
of  its  property  and  business  were  outside  of  that  state.  New  York- 
taxed  all  corporations  of  this  class  upon  their  "corporate  franchise 
or  business,"  measuring  the  tax  by  a  certain  percentage  upon  their 
entire  capital  stock.  The  company  resisted  New  York's  attempt  to 
collect  this  tax,  and  a  decision  in  favor  of  the  state  was  affirmed  by 
the  Court  of  Appeals  and  remanded  to  the  state  Supreme  Court  for 
enforcement.] 

Mr.  Justice  Field.  *  *  *  A  corporation  being  the  mere  crea- 
ture of  the  legislature,  its  rights,  privileges,  and  powers  are  depend- 
ent solely  upon  the  terms  of  its  charier.  Its  creation  (except  where 
the  corporation  is  sole)  is  the  investing  of  two  or  more  persons  with 
the  capacity  to  act  as  a  single  individual,  with  a  common  name,  and 
the  privilege  of  succession  in  its  members  without  dissolution,  and 
with  a  limited  individual  liability.  The  right  and  privilege,  or  the 
franchise,  as  it  may  be  termed,  of  being  a  corporation,  is  of  great  value 
to  its  members,  and  is  considered  as  property  separate  and  distinct 
from  the  property  which  the  corporation  itself  may  acquire.  Accord- 
ing to  the  law  of  most  slates,  this  franchise,  or  privilege  of  1 
corporation  is  deemed  personal  property,  and  is  subject  to  separate 
taxation.  The  right  of  the  states  to  thus  tax  it  has  been  recognized 
by  this  court  and  the  state  courts  in  instances  without  number.  It 
was  said  in  Delaware  Railroad  Tax,  IS  Wall.  206,  231,  21  L.  I 
that  "the  state  may  impose  taxes  up' in  the  corporation  as  an  entity 
existing  under  its  laws,  as  well  as  upon  the  capital  stock  of  thi 
poration  or  its  separate  corporate  property.  And  the  manner  in 
which  its  value  shall  be  assessed,  and  the  rate  of  taxation,  however 
arbitrary  or  capricious,  are  mere  matters  of  legislative  discretion;" 


620  FUNDAMENTAL   RIGHTS  (Part  2 

except,  we  may  add,  as  that  discretion  is  controlled  by  the  organic  law 
of  the  state.  And,  as  we  there  said  also,  "it  is  not  for  us  to  suggest 
in  any  case  that  a  more  equitable  mode  of  assessment  or  rate  of  taxa- 
tion might  be  adopted  than  the  one  prescribed  by  the  legislature  of 
the  state.  Our  only  concern  is  with  the  validity  of  the  tax.  All  else 
lies  beyond  the  domain  of  our  jurisdiction." 

The  granting  of  the  rights  and  privileges  which  constitute  the  fran- 
chises of  a  corporation  being  a  matter  resting  entirely  within  the  con- 
trol of  the  legislature,  to  be  exercised  in  its  good  pleasure,  it  may 
be  accompanied  with  any  such  conditions  as  the  legislature  may  deem 
most  suitable  to  the  public  interests  and  policy.  It  may  impose  as  a 
condition  of  the  grant,  as  well  as  also  of  its  continued  exercise,  the 
payment  of  a  specific  sum  to  the  state  each  year,  or  a  portion  of  the 
profits  or  gross  receipts  of  the  corporation,  and  may  prescribe  such 
mode  in  which  the  sum  shall  be  ascertained  as  may  be  deemed  con- 
venient and  just.  There  is  no  constitutional  inhibition  against  the 
legislature  adopting  any  mode  to  arrive  at  the  sum  which  it  will  exact 
as  a  condition  of  the  creation  of  the  corporation  or  of  its  continued 
existence.  There  can  be  therefore  no  possible  objection  to  the  valid- 
ity of  the  tax  prescribed  by  the  statute  of  New  York,  so  far  as  it  re- 
lates to  its  own  corporations.  Nor  can  there  be  any  greater  objec- 
tion to  a  similar  tax  upon  a  foreign  corporation  doing  business  by  its 
permission  within  the  state.  As  to  a  foreign  corporation, — and  all 
corporations  in  states  other  than  the  state  of  its  creation  are  deemed 
to  be  foreign  corporations, — it  can  claim  a  right  to  do  business  in 
another  state,  to  any  extent,  only  subject  to  the  conditions  imposed 
by  its  laws. 

As  said  in  Paul  v.  Virginia,  8  Wall.  168,  181,  19  L.  Ed.  357,  "the 
recognition  of  its  existence  even  by  other  states,  and  the  enforcement 
of  its  contracts  made  therein,  depend  purely  upon  the  comity  of  those 
states, — a  comity  which  is  never  extended  where  the  existence  of  the 
corporation  or  the  exercise  of  its  powers  is  prejudicial  to  their  in- 
terests or  repugnant  to  their  policy.  Having  no  absolute  right  of 
recognition  in  other  states,  but  depending  for  such  recognition  and  the 
enforcement  of  its  contracts  upon  their  assent,  it  follows,  as  a  mat- 
ter of  course,  that  such  assent  may  be  granted  upon  such  terms  and 
conditions  as  those  states  may  think  proper  to  impose.  They  may 
exclude  the  foreign  corporation  entirely,  they  may  restrict  its  busi- 
ness to  particular  localities,  or  they  may  exact  such  security  for  the 
performance  of  its  contracts  with  their  citizens  as,  in  their  judgment, 
will  best  promote  the  public  interest.  The  whole  matter  rests  in  their 
discretion." 

This  doctrine  has  been  so  frequently  declared  by  this  court  that 
it  must  be  deemed  no  longer  a  matter  of  discussion,  if  any  question 
can  ever  be  considered  at  rest. 

Only  two  exceptions  or  qualifications  have  been  attached  to  it  in  all 
the  numerous  adjudications  in  which  the  subject  has  been  considered, 


Cll.  11)  DUE    PROCESS    AND    EQUALITY:      TAX  A'.  .  0J1 

since  the  judgment  of  this  court  was  announced  more  than  a  half  cen- 
tury ago  in  Hank  v.  Earle,   13  Pet.  519.     One  of  these  qualifications 
is  that  the  state  cannot  exclude  from  its  limits  a  corporation  engaged 
in   interstate    or    foreign    commerce,    established   by    the    decision    in 
Pensacola  Telegraph  Co.  v.  Western  I'nion  Telegraph  Co.,  96  U.  S. 
1,  12,  24  L.  Ed.  70S.     The  other  limitation  on  the  power  of  the  state 
is  where  the  corporation  is  in  the  employ  of  the  general  government, 
— an  obvious  exception,  first  stated,  we  think,  by  the  late  Mr.  Justice 
Bradley  in  Stockton  v.  Railroad  Co.,  32  Fed.  Kep.  9,   14.     As  that 
learned   justice  said:    "If  congress  should  employ  a  corporation  of 
ship-builders  to  construct   a  man-of-war,  they  would   have  the 
to  purchase  the  necessary  timber  and  iron  in  any  state  of  the  t 
And  this  court,  in  citing  this  passage,  added,  "without  the  permission 
and  against  the  prohibition  of  the   state."'     Mining  Co.   v.    1 ' 
vania,  125  U.  S.  181,  1S6,  8  Sup.  Ct.  Rep.  737,  31  L.  Ed.  650. 

Having  the  absolute  power  of  excluding  the  foreign  corporation, 
the  state  may,  of  course,  impose  such  conditions  upon  permitting  the 
corporation  to  do  business  within  its  limits  as  it  may  judge  expedient ; 
and  it  may  make  the  grant  or  privilege  dependent  upon  the  payment 
of  a  specific  license  tax,  or  a  sum  proportioned  to  the  amount  of  its 
capital.  No  individual  member  of  the  corporation,  or  the  corporation 
itself,  can  call  in  question  the  validity  of  any  exaction  which  the  state 
may  require  for  the  grant  of  its  privileges.  It  does  not  lie  in  any 
foreign  corporation  to  complain  that  it  is  subjected  to  the  same  law 
with  the  domestic  corporation.  The  counsel  for  the  appellant  objects 
that  the  statute  of  New  York  is  to  be  treated  as  a  tax  law,  and  not  as 
a  license  to  the  corporation  for  permission  to  do  business  in  the  state. 
Conceding  such  to  be  the  case,  we  do  not  perceive  how  it  in  any  re- 
spect affects  the  validity  of  the  tax.  However  it  may  be  regar 
is  the  condition  upon  which  a  foreign  corporation  can  do  business  in 
the  state,  and  in  doing  such  business  it  puts  itself  under  the  law  of 
the  state,  however  that  may  be  characterized.     *     *     * 

It  is  true,  the  greater  part  of  the  business  of  the  company  was  done 
out  of  the  state,  and  the  greater  part  of  its  capital  was  also  w 
it,  but  the  statute  of  New  York  does  not  require  that  the  whole  busi- 
ness of  a  foreign  corporation  shall  be  done  within  the  state  in  order 
to  subject  it  to  the  taxing  power  of  the  state.  It  makes,  in  that  re- 
spect, no  difference  between  home  corporations  and  foreign  corpora- 
tions, as  to  the  franchise  or  business  of  the  corporation  upon  which 
the  tax  is  levied,  provided  it  does  business  within  the  state,  as  such 
corporation. 

There  seems  to  be  a  hardship  in  estimating  the  amount  of  the  tax 
upon  the  corporation,  for  d  iug  :  thin  the  state,  according 

to  the  amount  of  its  business  or  capital  without  the  state.     That  is  a 
matter,  however,  resting  entirely  in  the  control  of  the  state,  ai 
a  matter  of  federal  law,  and  with  which,  of  course,  this  court  can  in 
no  way  interfere.     *     *     * 


622  FUNDAMENTAL   BIGHTS  (Part  2 

The  extent  of  the  tax  is  a  matter  purely  of  state  regulation,  and 
any  interference  with  it  is  beyond  the  jurisdiction  of  this  court.  The 
objection  that  it  operates  as  a  direct  interference  with  interstate  com- 
merce we  do  not  think  tenable.  The  tax  is  not  levied  upon  articles 
imported,  nor  is  there  any  impediment  to  their  importation.  The  prod- 
ucts of  the  mine  can  be  brought  into  the  state,  and  sold  there  with- 
out taxation,  and  they  can  be  exhibited  there  for  sale  in  any  office  or 
building  obtained  for  that  purpose;  the  tax  is  levied  only  upon  the 
franchise  or  business  of  the  company. 

Judgment  affirmed.1 

[Harlan,  J.,  dissented.] 

i  Accord:  Home  Insurance  Co.  v.  New  York,  134  U.  S.  594,  10  Sup.  Ct.  593, 
33  L.  Ed.  1025  (18S9)  (capital  stock  consisting  of  non-taxable  United  States 
bonds) ;  People  ex  rel.  Parke,  Davis  &  Co.  v.  Roberts,  171  U.  S.  658,  19  Sup. 
Ct  58,  43  L.  Ed.  323  (1S9S)  (same  of  non-taxable  imports) ;  People  ex  rel.  U 
S.  Aluminum  Co.  v.  Knight.  174  N.  Y.  475,  67  N.  E.  65.  63  L.  R.  A.  S7  (1903) 
(same  of  non-taxable  patent  rirrhts):  Maine  v.  Grind  Trunk  Ry.,  post,  p.  1115 
(franchise  tax  ineasived  in  part  by  non-taxable  receipts  from  interstate  com- 
merce)— but  compare  Galveston,  etc.,  Ry.  v.  Texas,  post,  p.  1118;  Western 
Union  Teleg.  Co.  v.  Kansas,  216  U.  S.  1,  30  Sup.  Ct  190,  54  U  Ed.  355  (1910), 
ante,  p.  256,  and  post,  p.  1122. 

METHons  of  Taxing  Corporations. — "It  is  well  settled  by  the  decisions  of 
this  court  that  the  property  of  shareholders  in  their  shares,  and  the  property 
of  the  corporation  in  its  capital  stock,  are  distinct  property  interests,  and. 
where  that  is  the  legislative  intent  clearly  expressed,  that  both  may  lie  taxed. 
Van  Allen  v.  Assessors,  3  Wall.  573,  18  L.  Ed.  229;  In  re  Delaware  R.  Tax, 
18  Wall.  206,  21  L.  Ed.  8S8 ;  Farrington  v.  Tennessee,  95  U.  S.  679,  24  L.  Ed. 
55S.  In  Tennessee  v.  Whitworth,  117  U.  S.  129,  136,  6  Sup.  Ct.  645,  647. 
29  L.  Ed.  S30,  the  chief  justice,  delivering  the  opinion  of  the  court,  said: 
'In  corporations  four  elements  of  taxable  value  are  sometimes  found :  (1) 
Franchises;  (2)  capital  stock  in  the  hands  of  the  corporation;  (3)  corporate 
property  ;  and  (4)  shares  of  the  capital  stock  in  the  hands  of  the  individual 
stockholders.  Each  of  these  is,  under  some  circumstances,  an  appropriate 
subject  of  taxation  ;  and  it  is  no  doubt  within  the  power  of  a  state,  when 
not  restrained  by  constitutional  limitations,  to  assess  taxes  upon  them  in  a 
way  to  subject  the  corporation  or  the  stockholders  to  double  taxation.'" — 
Matthews,  J.,  in  New  Orleans  v.  Houston,  119  U.  S.  265,  277,  27S,  7  Sup.  Ct. 
198,  30  L.  Ed.  411  (1SS6). 

Of  modes  in  which  New  York  taxes  corporations,  its  courts  have  said: 
"There  is,  first,  an  organization  tax  payable  to  the  state,  which  is  imposed  but 
once,  and  is  exacted  for  the  privilege  of  becoming  a  corporation.  Tax  Law, 
Laws  1S96,  p.  855,  c.  908,  §  ISO.  Next,  there  is  a  tax  upon  the  real  estate 
owned  by  the  corporation  in  this  state,  which  is  assessed  the  same  as  if  it 
were  owned  by  an  individual.  Id.  pp.  797,  802,  c.  90S,  §§  3,  11.  The  personal 
property  of  the  corporation  is  not  directly  taxed,  but  its  capital  stock  and 
surplus,  after  deducting  the  assessed  value  of  its  real  estate,  and  making 
some  other  deductions,  is  assessed  at  its  actual  value.  Id.  p.  802,  c.  90S,  § 
12.  Finally,  there  is  a  franchise  tax  on  corporations  which  is  payable  an- 
nually to  the  state,  'computed  upon  the  basis  of  the  amount  of  its  capital 
stock  employed  within  this  state.'  Id.  p.  856,  c.  90S,  §  182.  This  is  not  a  tax 
upon  property,  although  it  is  measured  by  the  value  of  property,  but  upon  the 
right  of  a  corporation  to  exist  and  exercise  the  powers  granted  by  its  charter. 
These  forms  of  taxation  do  not  all  rest  upon  the  same  principle.  The 
organization  tax  is  in  the  nature  of  a  license  fee  for  the  right  to  become  a 
corporation.  The  tax  upon  real  estate  is  a  direct  tax  upon  real  property,  and 
the  tax  upon  capital  stock  is  an  indirect  tax  upon  personal  property,  while 
the  franchise  tax  is  not  laid  upon  property  at  all.  but  is  imposed  upon  the 
corporation  for  the  privilege  of  carrying  on  business  in  this  state  and  exer- 


Ch.  11)  DCE    PROCESS   AND    EQUALITY"  I     TAXATION  623 


SOUTHERN  RY.  CO.  v.  GREENE. 

(Supreme  Court  of  United  States,  1910.    216  D.  S.  400,  30  Sup.  Ct  2ST.  M  U 
Ed.  530,  17  Ann.  Cas.  1217.) 

[Error  to  the  Supreme  Court  of  Alabama.  The  Southern  Railway 
Company  was  organized  as  a  Virginia  corporation  in  1894,  and  in  the 
same  year,  as  required  by  the  existing  laws  of  Alabama,  it  filed  in  Ala- 
bama a  copy  of  its  charter,  designated  an  agent  to  receive  service  of 
process,  and  paid  a  $250  license  fee  for  the  privilege  of  doing  business 
in  the  state.  Thereafter  it  continued  to  do  business  in  the  state,  and 
lawfully  bought  and  operated  there  various  lines  of  railroad  and  the 
franchises  connected  therewith,  and  spent  large  sums  upon  said  rail- 
doing  the  corporate  franchises  granted  by  the  state.  The  distinction  ' 
a  tax  upon  the  property  of  a  corporation  and  a  h 
established  and  of  great  Importance,  is  easily  overlo 

own  experience." — Vann.  J.,  in  People  ex  rel.  U.  S.  Alum.,  etc.,  Co.  v.  Knight, 
174  N.  Y.  475.  478,  479.  67  N.  B.  05,  63  L.  R.  A.  87  (1903). 

"The  general  franchise  of  a  corporal  ■  _    t  to  live  and  do  business 

hj   i  be  exercise  of  t!  general 

franchise  of  a  street  railroad  company,  for  instance.  Is  the  special  privilege 
conferred  by  the  state  upon  a  certain  number  of  persons,  known  as  the  'cor- 
porators,' to  become  a  street  railroad  corporation,  and  to  construct  and  op- 
crate  a  street  railroad  upon  certain  conditions.  Such  a  franchise,  however, 
gives  the  corporation  no  right  to  do  anything  in  the  public  highways  without 
special  authority  from  the  state,  or  some  municipal  officer  or  body  acting 
under  its  authority.  When  a  right  of  way  over  a  public  street  is  granted  to 
such   a  corporation,    with  leave  to  construct   and   operate  a   street   railroad 

i,   the  privilege  Is  known  ■  '  or  the  right  to  do 

something  in  the  public  highway,  which,  except  for  the  grant,  would  be  a  tres- 
pass. The  statute,  which  is  an  amendment  of  the  general  tax  law,  declares, 
in  substance,  that  the  right,  authority,  or  permission  to  construct,  maintain, 
or  operate  some  structure.  Intended  for  public  use.  in.  under,  above,  on  or 
through  streets,  highways  or  public  places,'  such  as  railro.. 

mains,  poles  and    wires  for  electric,   telephone,  and   telegraph  lines,   and  the 
liUe,  is  a  .special  franchise.     For  the  purpose  c,f  taxation,  such  a  frati 
made  real  estate,  and  is  'deemed  to  include  the  value  of  the  tangible  prop- 
erly of  a  person,  copartnership  or  corporation  situated  in,  up 
above  any  street,  highway,  public  place  or  public  waters 
the  special  franchise  and  taxed  as  a  part  thereof.'     Laws  1896,  p.  7'.' 
§  2,  cl.  3.     This  includes  nothing  but  what  is  in  the  street,  directly  or  iudi- 
rectly,  and  excludes  power  .  tiout  the  lines 

of  the  street.  •  *  *  The  Legislature  found  property  scattered  all  over  the 
state  worth  nearly  two  hundred  millions  of  dollars,  which  was  not  taxed  at 
all,  and  had  never   been   taxed.     Thi  ted   wholly  of 

franchises  or  privileges  given  by  the  slate  mainly  to  corporations  furnishing 
to  the  public  transportation,  water,  light,  and  other  ■ 

of  daih  iiue  during  recent  years. 

its  value  resiod  upon  the  right  to  use  in-some  manner  the  public  highways  of 
the  state:    but    it   was    Intangible,   and   doubtless   for  this   reason    had   never 

■OUght    under  the  taxing  power.      •      •      •     T> 

just  and  adequate  value  upon  a  right  capable  of  valuation,  but  which  was 

unseen,  without  form  or  substana  breath  of  the 

;. ire. "—Vann.  J.,  in  People  ex  rel.  Metropolitan  st.  Ky.  v.  Taj  I 

171    V   V.    117.    136    138,  <i7   N.   E,  69,  63   I..   K.  A.  -M,    105  Am.   St.    l: 

.too:;). 

The  Michigan  Supreme  Court  has  said:    "For  the  purpose  of  the  dis 
of  the  question  before  us,  we  will  treat  franchises  as  of  three  classes:    tint, 


024  FUNDAMENTAL   kigiits  (Part  2 

roads.  Until  1907  it  paid  all  ownership,  license,  and  franchise  taxes 
imposed  upon  it  by  the  state  in  common  with  other  persons  and  cor- 
porations engaged  in  a  like  business.  By  an  act  passed  in  1907  Alaba- 
ma required  foreign  corporations,  with  certain  exceptions,  to  pay  an 
annual  franchise  tax  of  a  certain  percentage  upon  the  capital  actually 
employed  in  the  state.  Foreign  corporations  were  forbidden  to  do  any 
business  in  the  state,  except  interstate  commerce,  or  to  sue  in  the  state 
upon  contracts  made  therein,  other  than  those  based  upon  interstate 
commerce,  unless  they  paid  the  tax  within  60  days  after  it  was  due. 
On  a  capital  of  about  $15,000,000  employed  in  the  state,  the  company's 
tax  amounted  to  over  $22,000,  which  it  paid  under  protest  and  sued  to 
recover  from  the  .defendant  collector  for  the  state.  The  state  courts 
denied  a  recovery  and  this  writ  of  error  was  taken.] 

the  right  to  organize  and  exist  as  a  corporation;  second,  the  right  to  act 
generally  as  a  corporation;  and,  third,  the  special  privileges  grunted  to  it 
which  are  not  possessed  by  the  individual  under  general  laws.  *  *  «  The 
first  of  these  is  enjoyed  by  all  corporations  legally  formed,  and  also  by  all 
assuming  to  be  corporations  through  user.  •  »  »  Again,  franchises  of  the 
second  class  are  incident  to  all  corporations.  •  •  •  Every  corporation  has 
by  implication  authority  to  acquire  and  dispose  of  property,  and  to  carry  on 
business  as  a  private  person  would  do,  for  the  purpose  for  which  the  cor- 
poration is  organized.  *  »  *  The  third  class  consists  of  exceptional  priv- 
ileges— usually,  If  not  always,  connected  with  property — which  the  citizens 
generally  do  not  enjoy,  and  these  are  frequently  of  much  value.  To  apply 
what  has  been  said  to  the  relator;  Any  number  of  street-railway  companies 
might  be  organized  under  the  statute,  and  they  would  have  the  right  to  exist 
as  lawfully  constituted  corporations,  with  the  corporate  capacity  to  build  and 
operate  street  railways  anywhere  in  the  state.  But  the  right  to  build  would 
have  to  be  acquired.  Until  such  a  corporation  should  be  able  to  obtain  an 
easement  in  some  highway, — which  the  statute  does  not,  of  itself,  effectuate, — 
its  privileges  would  be  of  little,  if  any,  value.  But  when  it  should  have  ac- 
quired possession  of  an  easement  in  a  designated  highway,  for  the  purposes 
of  a  street  railway,  and  constructed  and  put  in  operation  a  railway  thereon, 
the  easement  and  railroad  would  constitute  property." — Hooker,  J.,  in  Citi- 
zens' St.  K.v.  v.  Common  Council.  125  Mich.  673,  67S-6S0,  85  N.  W.  96,  S6 
X.   W.  809.   84  Am.  St.   Rep.  589  (1901). 

In  New  Jersey:  "The  franchise  that  is  taxed  as  property  Is  the  privilege 
enjoyed  by  a  corporation  of  exercising  certain  powers  derived  from  the  state, 
whereas  the  franchise  with  which  we  have  to  do  is  the  right  to  exist  in  cor- 
porate form,  without  reference  to  the  powers  that,  under  such  form,  the  com- 
pany may  exercise.  *  *  *  In  this  state  we  tax  each  of  these  so-called 
franchises.  The  former,  as  in  the  case  of  the  right  to  own  and  operate  a 
railroad,  is  taxed  as  property  having  a  true  value."  which  it  is  the  duty  of  the 
state  board  to  ascertain  for  the 'purposes  of  constitutional  assessment.  On 
the  other  hand,  the  naked  right  of  existing  in  corporate  form  is  taxed,  as  in 
the  case  before  us,  not  at  its  true  value,  as  it  would  have  to  be  if  it  were  prop- 
erty,  but  at  a  sum  arbitrarily  imposed  by  the  legislature  as  an  annual  fee, 
the  amount  of  which  is  to  be  computed  by  reference  to  the  capital  of  the 
company  as  a  criterion.  It  is,  in  short,  a  poll  tax  levied  upon  domestic  cor- 
porations for  the  right  to  be.  Such  a  tax  is  not  upon  property  or  assets,  and 
does  not  in  any  way  concern  the  nature  of  the  business  the  company  may  be 
authorized  to  carry  on." — Garrison,  J.,  in  Lumberville  Bridge  Co.  v.  Assessors, 
55  N.  J.  Law,  529,'  537,  20  Atl.  711,  25  L.  R.  A.  131  (1S93). 

See  Central  Par.  Ry.  v.  California,  162  U.  S.  91,  16  Sup.  Ct  760,  40  L.  Ed. 
903  QS96) ;    Adams  Exp.  Co.  v.  Ohio,  ante,  p.  55L 

The  general  topics  of  taxation  of  corporate  franchises  and  of  corporate 
capital  stock  are  elaborately  treated  in  57  L.  R.  A.  33  ff.,  note,  and  in  OS  L. 
It.  A.  513  ff.,  note. 


Ch.  11)  L>VE   PBOCS&a    AND    EQUALITY:     TAXATION 

Mr.  Justice  Day.  *  *  *  The  important  federal  question  for  our 
determination  in  this  case  is :  When  a  corporation  of  another  state  has 
come  into  the  taxing  state,  in  compliance  with  its  laws,  and  lias  there- 
in acquired  property  of  a  fixed  and  permanent  nature,  upon  which  it 
has  paid  all  taxes  levied  by  the  state,  is  it  liable  to  a  new  and  additional 
franchise  tax  for  the  privilege  of  doing  business  within  the  state,  which 
tax  is  not  imposed  upon  domestic  corporations  doing  business  in  the 
state  of  the  same  character  as  that  in  which  the  foreign  corporation  is 
itself  engaged?     *     *     * 

The  equal  protection  of  the  laws  means  subjection  to  equal  laws,  ap- 
plying alike  to  all  in  the  same  situation.  If  the  plaintiff  is  a  person 
within  the  jurisdiction  of  the  state  of  Alabama  within  the  meaning  of 
the  fourteenth  amendment,  it  is  entitled  to  stand  before  the  law  upon 
equal  terms,  to  enjoy  the  same  rights  as  belong  to,  and  to  bear  the 
same  burdens  as  are  imposed  upon,  other  persons  in  a  like  situation. 
*  *  *  [After  reviewing  the  facts:]  We  can  have  no  doubt  that  a 
corporation  thus  situated  is  within  the  jurisdiction  of  the  state.  Elake 
v.  McClung,  172  U.  S.  239,  43  L.  Ed.  432,  19  Sup.  Ct.  165. 

The  argument  on  the  part  of  the  state  of  Alabama  places  much 
weight  upon  the  cases  in  this  court  which  have  sustained  the  right  of 
the  state  to  exclude  a  foreign  corporation  from  its  borders,  and  to  im- 
pose conditions  upon  the  entry  of  such  corporations  into  the  state  for 
the  purpose  of  carrying  on  business  therein.  That  line  of  cases  has 
been  so  amply  discussed  in  the  opinions  and  concurring  opinions  in 
the  cases  of  Western  U.  Teleg.  Co.  v.  Kansas  and  Pullman  Co.  v.  Kan- 
sas, decided  at  the  present  term  (216  U.  S.  1,  56,  54  L.  Ed.  355,  30  Sup. 
Ct.  190.  232),  that  any  extended  discussion  of  them  is  superfluous  now. 
It  is  sufficient  for  the  present  purpose  to  say  that  we  are  not  dealing 
with  a  corporation  seeking  admission  to  the  state  of  Alabama,  nor  with 
one  which  has  a  limited  license,  which  it  seeks  to  renew,  to  do  busi- 
ness in  that  slate ;  nor  with  one  which  has  come  into  the  state  upon 
conditions  which  it  has  since  violated.  In  the  case  at  bar  we  have  a 
corporation  which  has  come  into  and  is  doing  business  within  the  state 
of  Alabama,  with  the  permission  of  the  state,  and  under  the  sanction 
of  its  laws,  and  has  established  therein  a  business  of  a  permanent  char- 
acter, requiring  for  its  prosecution  a  large  amount  of  fixed  and  per- 
manent property,  which  the  foreign  corporation  has  acquired 
the  permission  and  sanction  of  the  laws  of  the  state.  This  feature  of 
the  case  was  dealt  with  by  Mr.  Justice  Brewer,  then  a  i  ircuit  judge,  in 
the  case  of  Ames  v.  Union  P.  R.  Co..  64  Fed.  165,  177.  wherein  he 
said:  "It  must  always  be  borne  in  mind  that  property  put  into  railroad 
transportation  is  put  there  permanently.  It  cannot  be  withdrawn  at 
the  pleasure  of  the  investors.    Railroads  are  not  lil«  steam 

which,  if  furnishing  no  profit  at  one  place,  and  under  one  pre- 
scribed rate  of  transportation,  can  lie  t;;'  :re  and  put   I 
at  other  places  and  under  other  circumstances.     The  railro;  J  must 
Hai.l  l 


626  FUNDAMENTAL    RIGHTS  (Part  2 

stay,  and,  as  a  permanent  investment,  its  value  to  its  owners  may  not 
be  destroyed.  The  protection  of  property  implies  the  protection  of  its 
value." 

Notwithstanding  the  ample  discussion  of  the  questions  involved  in 
the  case  of  the  Western  U.  Teleg.  Co.  v.  Kansas  and  Pullman  Co.  v. 
Kansas,  to  which  we  have  already  referred,  we  deem  it  only  fair  to  the 
learned  counsel  for  the  state  of  Alabama  to  notice  some  of  the  cases 
which  it  is  insisted  have  disposed  of  the  question  herein  involved,  and 
maintained  the  right  of  the  state  to  impose  a  tax  upon  a  foreign  corpo- 
ration, lawfully  within  the  state,  for  the  privilege  of  doing  business  in 
the  state,  when  no  such  tax,  or  one  less  burdensome,  is  imposed  upon 
domestic  corporations  engaged  in  the  same  business.  The  first  case 
referred  to  is  Ducat  v.  Chicago,  10  Wall.  410,  19  L.  Ed.  972,  in  which 
a  tax  was  sustained  upon  a  foreign  insurance  company  which  had  come 
into  the  state  upon  complying  with  certain  terms  prescribed  by  the 
state,  and  was  thereafter  subjected  to  a  tax  on  all  their  premiums,  the 
statute  declaring  it  unlawful  in  the  companies  otherwise  to  do  business 
in  the  state.  It  is  sufficient  to  say  of  that  case  that  it  arose  before  the 
fourteenth  amendment  had  become  part  of  the  federal  Constitution,  and 
that  no  reference  is  made  in  the  opinion  of  the  court  to  the  fourteenth 
amendment,  although  the  case  was  decided  after  that  amendment  went 
into  effect. 

In  New  York  v.  Roberts,  171  U.  S.  662,  43  L.  Ed.  323,  19  Sup.  Ct. 
58,  a  tax  was  imposed  upon  the  franchises  or  business  of  corporations, 
with  certain  exceptions,  computed  upon  the  amount  of  capital  stock 
employed  within  the  state.  It  was  pointed  out  by  Mr.  Justice  Shiras, 
who  delivered  the  opinion  of  the  court,  that  the  tax  was  imposed  as 
well  for  New  York  corporations  as  for  those  of  other  states,  and  he 
said :  "So  that  it  is  apparent  that  there  is  no  purpose  disclosed  in  the 
statute  either  to  distinguish  between  New  York  corporations  and  those 
of  other  states,  to  the  detriment  of  the  latter,  or  to  subject  property 
out  of  the  state  to  taxation." 

In  Horn  Silver  Min.  Co.  v.  New  York,  143  U.  S.  305,  36  L.  Ed.  164, 
4  Inters.  Com.  Rep.  57,  12  Sup.  Ct.  403,  the  tax  imposed  was  applica- 
ble alike  to  corporations  doing  business  in  New  York,  whether  organ- 
ized in  that  state  or  not ;  and  in  the  course  of  the  opinion  in  the  case 
Mr.  Justice  Field,  speaking  for  the  court  said :  "It  does  not  lie  in  any 
foreign  corporation  to  complain  that  it  is  subjected  to  the  same  law 
with  the  domestic  corporation." 

In  Fire  Ass'n  of  Philadelphia  v.  New  York,  119  U.  S.  110,  30  L.  Ed. 
342,  7  Sup.  Ct.  108,  a  Pennsylvania  corporation  which  was  taxed  in 
the  state  of  New  York  was  subjected  to  a  license  fee,  which  license 
ran  for  a  period  of  a  year,  and  it  was  held  that  the  state  had  the  power 
to  change  the  conditions  of  admission  to  the  state,  and  to  impose  as  a 
condition  of  doing  business  in  the  state,  at  any  time  or  for  the  future, 
the  payment  of  a  new  or  further  tax.  Mr.  Justice  Blatchford,  speaking 
for  the  court,  said :   "If  it  imposes  such  license  fee  as  a  prerequisite  for 


Ch.  11)  DUE   PROCESS  AND   EQUALITY:     TAXATION  ti-'T 

the  future,  the  foreign  corporation,  until  it  pays  such  license  fee,  is  not 
admitted  within  the  state,  or  within  its  jurisdiction.  It  is  outside,  at 
the  threshold,  seeking  admission,  with  consent  not  yet  given." 

We  have  adverted  to  these  cases  with  a  view  of  showing  that  the 
precise  point  involved  herein  is  not  concluded  by  any  of  them.  It 
would  not  be  frank  to  say  that  there  is  not  much  said  in  the  opinions 
in  those  cases  which  justifies  the  argument  that  the  power  of  the  state 
to  exclude  a  foreign  corporation,  not  engaged  in  interstate  com 
authorizes  the  imposition  of  special  and  peculiar  taxation  upon  such 
corporations  as  a  condition  of  doing  business  within  the  state.  Hut 
none  of  the  cases  relied  upon  presents  the  question  under  the  conditio  ins 
obtaining  in  the  case  at  bar.  We  have  here  a  foreign  corporation  with- 
in a  state,  in  compliance  with  the  laws  of  the  state,  which  has  lawfully- 
acquired  a  large  amount  of  permanent  and  valuable  property  therein, 
and  which  is  taxed  by  a  discriminating  method,  not  employed  as  to 
domestic  corporations  of  the  same  kind,  carrying  on  a  precisely  similar 
business. 

As  we  have  already  indicated,  the  discussion  of  the  question  herein 
involved  has  largely  been  anticipated  in  the  recent  cases  from  Kansas, 
involving  the  right  to  tax  the  Western  Union  Telegraph  Company  and 
the  Pullman  Company.  Those  cases  are  the  latest  declaration  of  this 
court  upon  the  subject,  and  in  one  aspect  of  them  really  involve  the 
determination  of  the  case  at  bar.  In  the  Western  U.  Teleg.  Case,  it 
was  held  that  a  state  could  not  impose  a  tax  upon  an  interstate  com- 
merce corporation  as  a  condition  of  its  right  to  do  domestic  business 
within  the  state,  which  tax  included  within  its  scope  the  entire  capital 
of  the  corporation,  without  as  well  as  within  the  borders  of  the  state. 
The  Kansas  tax  was  sought  to  be  sustained  as  a  legal  exaction  for  the 
privilege  of  doing  domestic  business  within  the  state.  It  was  held  in- 
valid because  it  violated  the  right  secured  by  the  Constitution  of  the 
United  States,  giving  to  Congress  the  exclusive  power  to  regulate  inter- 
state commerce,  and  because  it  violated  the  due-process  clause  of  the 
federal  Constitution  in  undertaking  to  make  the  payment  of  a  tax' up- 
on property  beyond  the  borders  of  the  state  a  condition  of  doing  domes- 
tic business  within  the  state.  In  that  case,  the  fourteenth  amendment 
was  directly  applied  in  the  due-process  feature.  In  this  case,  we  have 
an  application  of  the  same  amendment,  asserting  the  equal  protection 
of  the  laws. 

We  therefore  reach  the  conclusion  that  the  corporation  plaintiff,  un- 
der the  conditions  which  we  have  detailed,  is,  within  the  meaning  of 
the  fourteenth  amendment,  a  person  within  the  jurisdiction  of  the  state 
of  Alabama,  and  entitled  to  be  protected  against  any  statute  of  the  state 
which  deprives  it  of  the  equal  protection  of  the  laws. 

It  remains  to  consider  the  argument  made  on  behalf  of  the  state  of 
Alabama,  that  the  statute  is  justified  as  an  exercise  of  the  right  of 
classification  of  the  subjects  of  taxation,  which  has  been  held  to  be  en- 
tirely consistent  with  the  equal  protection  of  the  laws  guaranteed  by 


628  FUNDAMENTAL    RIGHTS  (Part  2 

the  fourteenth  amendment.  It  is  argued  that  the  imposition  of  special 
taxes  upon  foreign  corporations  for  the  privilege  of  doing  business 
within  the  state  is  sufficient  to  justify  such  different  taxation,  because 
the  tax  imposed  is  different,  in  that  the  one  imposed  on  the  domestic 
corporation  is  for  the  privilege  of  being  a  corporation,  whereas  the  one 
on  the  foreign  corporation  is  for  the  privilege  of  such  corporation  to 
do  business  within  the  state.  While  reasonable  classification  is  permit- 
ted, without  doing  violence  to  the  equal  protection  of  the  laws,  such 
classification  must  be  based  upon  some  real  and  substantial  distinction, 
bearing  a  reasonable  and  just  relation  to  the  things  in  respect  to  which 
such  classification  is  imposed;  and  classification  cannot  be  arbitrarily 
made  without  any  substantial  basis.  Arbitrary  selection,  it  has  been 
said,  cannot  be  justified  by  calling  it  classification.  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Ellis,  165  U.  S.  150,  155,  165,  41  L.  Ed.  666,  668,  671,  17 
Sup.  Ct.  255 ;  Cotting  v.  Kansas  City  Stock  Yards  Co.  (Cotting  v. 
Godard)  183  U.  S.  79,  46  L.  Ed.  92,  22  Sup.  Ct.  30;  Connolly  v.  Union 
Sewer  Pipe  Co.,  184  U.  S.  540,  559,  46  L.  Ed.  679,  6S9,  22  Sup.  Ct. 
431. 

It  is  averred  in  the  complaint,  and  must  be  taken  as  admitted,  that 
there  are  other  corporations  of  a  domestic  character  in  Alabama,  car- 
rying on  the  railroad  business  in  precisely  the  same  way  as  the  plaintiff. 
It  would  be  a  fanciful  distinction  to  say  that  there  is  any  real  differ- 
ence in  the  burden  imposed  because  the  one  is  taxed  for  the  privilege 
of  a  foreign  corporation  to  do  business  in  the  state,  and  the  other  for 
the  right  to  be  a  corporation.  The  fact  is  that  both  corporations  do 
the  same  business  in  character  and  kind,  and  under  the  statute  in  ques- 
tion a  foreign  corporation  may  be  taxed  many  thousands  of  dollars  for 
the  privilege  of  doing,  within  the  state,  exactly  the  same  business  as 
the  domestic  corporation  is  permitted  to  do  by  a  tax  upon  its  privilege, 
amounting  to  only  a  few  hundred  dollars.  We  hold,  therefore,  that  to 
tax  the  foreign  corporation  for  carrying  on  business  under  the  circum- 
stances shown,  by  a  different  and  much  more  onerous  rule  than  is  used 
in  taxing  domestic  corporations  for  the  same  privilege,  is  a  denial  of 
the  equal  protection  of  the  laws,  and  the  plaintiff  being  in  position  to 
invoke  the  protection  of  the  fourteenth  amendment,  that  such  attempt- 
ed taxation  under  a  statute  of  the  state  does  violence  to  the  federal 
Constitution. 

Judgment  reversed. 

[Fuller,  C.  J.,  and  McKenna  and  Holmes,  JJ.,  dissented.  The 
grounds  of  their  dissent  are  stated  in  Western  Union  Tel.  Co.  v.  Kan- 
sas, ante,  pp.  258-261,  and  Pullman  Co.  v.  Kansas,  216  U.  S.  56,  75-77, 
30  Sup.  Ct.  190,  54  L.  Ed.  355  (1910)]. 


Ch.  11)  DUE   PROCESS  AND   RQOAL1TX !     TAXATION  OliU 


MAGOUN  v.  ILLINOIS  TRUST   &  \'K. 

(Supreme  Court  of  United  States,   1898.     170  U.  8.  283,  18  Sup.  Ct  594,  42 
L.  Ed.  1087.) 

[Appeal   from  United  States  Circuit  Court  for  Northern  1 1 
of  Illinois.     An  Illinois  statute  of  1895  for  a  tax  upon  all 

property  passing  by  will  or  By  the  intestate  laws  of  the  state 
any  resident  decedent,  or  from  any  nonresident  decedent  if  the  prop- 
erty was  within  the  state.  If  the  property  passed  to  lineal  descend- 
ant-, the  tax  was  1  per  cent,  upon  any  excels  above  $20,000;  if  to 
collateral  heirs,  the  tax  was  2  per  cent,  upon  the  excess  ab 
and  if  to  other  persons,  the  tax  was  graded  as  stated  in  the  opinion 
below/  Magoun  was  devisee  of  land  in  Illinois  subject  by  the  above 
statute  to  a  lien  for  a  tax  of  over  -$5,000,  and  he  filed  a  bill  in  equity 
in  the  above-named  court  to  enjoin  the  payment  of  the  tax  by  the  ex- 
ecutor, the  trust  company,  or  its  collection  by  the  Cook  county  treas- 
urer, and  to  remove  the  cloud  on  the  title  of  the  land  devised  caused 
by  the  alleged  lien.  The  court  dismissed  the  bill,  and  this  appeal  was 
taken.] 

Mr.  Justice  McKenna.  Legacy  and  inheritance  taxes  are  not  new 
in  our  laws.  They  have  existed  in  Pennsylvania  for  over  60  years, 
and  have  been  enacted  in  other  states.  They  are  not  new  in  the  laws 
of  other  countries.  In  Tennessee  v.  Alston,  94  Tenn.  674,  30  S.  W. 
750,  28  L.  R.  A.  178,  Judge  Wilkes  gave  a  short  history  of  them,  as 
follows :  "Such  taxes  were  recognized  by  the  Roman  law.  1  Gib- 
bon's Decline  and  Fall  of  the  Roman  Empire,  pp.  163.  164.  They  were 
adopted  in  England  in  1780,  and  have  been  much  extended  since 
that  date.  Dowell's  History  of  Taxation  in  England,  148;  Acts  20 
Geo.  Ill,  c.  28,  45  Geo.  Ill,  c.  28.  and  16  &  17  Vict.  c.  51 ;  Green  v. 
Craft,  2  H.  Bl.  30;  Hill  v.  Atkinson,  2  Mer.  45.  Such  taxes  are  now 
in  force  generally  in  the  countries  of  Europe.  Review  of  R< 
Feb..  1893.  In  the  United  States  they  were  enacted  in  Pennsylvania 
in  1826;  Maryland,  1844;  Delaware,  1869;  West  Virginia,  1887,  and 
still  more  recently  in  Connecticut.  New  Jersey,  Ohio.  Maine, 
chusetts,  1891 ;  Tennessee  in  1891  (chapter  25, — now  repealed  by 
chapter  174. — Acts  1893).  They  were  adopted  in  North  Carolina  in 
1846,  but  repealed  in  1883;  were  enacted  in  Virginia  in  1S44,  n 
in  1855,  re-enacted  in  1863,  and  repealed  in  1884."  Other  states  have 
also  enacted  them,— Minnesota,  by  constitutional  provision.1 

The  constitutionality  of  the  taxes  has  been  declared,  and  the  prin- 
ciples upon  which  they  are  based  explained,  in  U.  S.  v.  Perkins.  163 
U.  S.  625,  628,  16  Sup.  Ct.  1073,  41  L.  Ed.  287;   Strode  v.  Com..  52 
Pa.  181;   Eyre  v.  Jacob,  14  Grat.  422,  73  Am.  Dec.  367;    Sell 
v.  Lynchburg,  78  \'a.  366;    Maryland  v.  Dalrymple,  70  Md.  - 

'  Tin'  various  federal  succession  taxes        ■  earliest  In  171 
Knowlton  v.  Moore,  its  r.  g.  41,  50  53,  20  Sup.  Ct  TIT.  -I  I  I.,  l 


630  FUNDAMENTAL    RIGHTS  (Part  2 

Atl.  82,  3  L.  R.  A.  372;  Clapp  v.  Mason,  94  U.  S.  589,  24  L.  Ed.  212 ; 

In  re  Merriam's  Estate,  141  N.  Y.  479,  36  N.  E.  505 ;  Maine  v.  Ham- 
lin, 86  Me.  495,  30  Atl.  76,  25  L.  R.  A.  632,  41  Am.  St.  Rep.  569; 
Tennessee  v.  Alston,  94  Tenn.  674,  30  S.  W.  750,  28  L.  R.  A.  178;  In 
re  Wilmerding's  Estate,  117  Cal.  281,  49  Pac.  181;  Dos  P.  Inh.  Tax 
Law.  20 ;  Minot  v.  Winthrop,  162  Mass.  113,  38  N.  E.  512,  26  L,.  R.  A. 
259;  Gelsthorpe  v.  Furnell,  20  Mont.  299,  51  Pac.  267,  39  L-  R.  A. 
170.    See,  also,  Scholey  v.  Rew,  23  Wall.  331,  23  L.  Ed.  99. 

It  is  not  necessary  to  review  these  cases,  or  state  at  length  the  rea- 
soning by  which  they  are  supported.  They  are  based  on  two  prin- 
ciples: (1)  An  inheritance  tax  is  not  one  on  property,  but  one  on  the 
succession  ;2  (2)  the  right  to  take  property  by  devise  or  descent  is 
the  creature  of  the  law,  and  not  a  natural  right, — a  privilege, — and 
therefore  the  authority  which  confers  it  may  impose  conditions  upon 
it.  From  these  principles  it  is  deduced  that  the  states  may  tax  the 
privilege,  discriminate  between  relatives,  and  between  these  and  stran- 
gers, and  grant  exemptions,  and  are  not  precluded  from  this  power 
by  the  provisions  of  the  respective  state  constitutions  requiring  uni- 
formity and  equality  of  taxation. 

The  second  principle  was  given  prominence  in  the  arguments  at  bar. 
The  appellee  claimed  that  the  power  of  the  state  could  be  exerted 
to  the  extent  of  making  the  state  the  heir  to  everybody,  and  the  appel- 
lant asserted  a  natural  right  of  children  to  inherit.  Of  the  former 
proposition  we  are  not  required  to  express  an  opinion.  Nor,  indeed, 
of  the  latter,  for  appellant  conceded  that  testamentary  disposition  and 
inheritance  were  subject  to  regulation.  However,  as  pertinent  to  the 
subject,  decisions  of  this  court  may  be  cited. 

In  U.  S.  v.  Fox,  94  U.  S.  315-321,  24  L.  Ed.  192,  a  law  of  the 
state  of  New  York  confining  devises  to  natural  persons  and  corpora- 
tions created  under  its  laws  was  considered,  and  a  devise  of  land  to 
the  United  States  was  held  void.  The  court  said:  *  *  *  "Stat- 
utes of  wills,  as  is  justly  observed  by  the  court  of  appeals,  are  enabling 
acts,  and  prior  to  the  statute  of  33  Hen.  VIII  there  was  no  general 
power  at  common  law  to  devise  lands.  The  power  was  opposed  to  the 
feudal  policy  of  holding  lands  inalienable  without  the  consent  of  the 
lord.  The  English  statute  of  wills  became  a  part  of  the  law  of  New 
York  upon  the  adoption  of  her  Constitution  in  1777,  and,  with  some 
modification  in  its  language,  remains  so  at  this  day.  Every  person 
must  therefore  devise  his  lands  in  that  state  within  the  limitations  of 
the  statute,  or  he  cannot  devise  them  at  all.  His  power  is  bounded  by 
its  conditions."     *     *     *     [Here  follows  a  quotation  from  Mager  v. 

2  A  distinction  should  be  observed  between  the  right  to  succeed  to  prop- 
erty, measured  by  the  amount  of  the  separate  legacies  and  devises,  and  the 
right  to  transmit  property  at  death,  measured  by  the  total  amount  of  the 
decedent's  estate.  Both  of  these  rights  may  be  taxed,  and  in  English  and 
federal  practice  (during  the  Civil  War)  both  have  been.  See  Knowltoii  v. 
Moore,  178  U.  S.  41,  48-51,  20  Sup.  Ct.  747,  44  L.  Ed.  969  (1900).  The  pre- 
vailing American  practice  at  present  taxes  only  the  right  of  succession. 


Ch.  11)        DUB  PROCESS  AND  EQUALITY  :  TAXATION  631 

Grima,  8  How.  493,  12  L.  Ed.  1168,  upholding  a  Louisiana  tax  of  10 
per  cent,  on  legacies  to  non-resident  aliens.] 

In  U.  S.  v.  Perkins,  163  U.  S.  625-631,  16  Sup.  Ct.  1073,  41  L.  Ed. 
287,  the  inheritance  tax  law  of  the  state  of  New  York  was  involved. 
Mr.  Justice  Brown,  speaking  for  this  court,  said:  "While  the  laws 
of  all  civilized  states  recognize  in  every  citizen  the  absolute  right  to  his 
i  iwn  earnings,  and  the  enjoyment  of  his  own  property,  and  the  increase 
thereof,  during  his  life,  except  so  far  as  the  state  may  require  him  to 
contribute  his  share  for  public  expenses,  the  right  to  dispose  of  his 
property  by  will  has  always  been  considered  purely  a  creature  of 
statute,  and  within  legislative  control.  'By  the  common  law,  as  it 
stood  in  the  reign  of  Henry  II,  a  man's  goods  were  to  be  divided  into 
three  equal  parts,  of  which  one  went  to  his  heirs  or  lineal  descendants, 
another  to  his  wife,  and  a  third  was  at  his  own  disposal ;  or,  if  he 
died  without  a  wife,  he  might  then  dispose  of  one  moiety,  and  the 
other  went  to  his  children;  and  so,  e  converso,  if  he  had  no  children, 
the  wife  was  entitled  to  one  moiety,  and  he  might  bequeath  the  other; 
but,  if  he  died  without  either  wife  or  issue,  the  whole  was  at  his  own 
disposal.'  2  Bl.  Comm.  492.  Prior  to  the  statute  of  wills,  enacted  in 
the  reign  of  Henry  VIII,  the  right  to  a  testamentary  disposition  of  the 
property  did  not  extend  to  real  estate  at  all,  and  as  to  personal  estate 
was  limited  as  above  stated.  Although  these  restrictions  have  long 
since  been  abolished  in  England,  and  never  existed  in  this  country, 
except  in  Louisiana,  the  right  of  a  widow  to  her  dower,  and  to  a 
share  in  the  personal  estate,  is  ordinarily  secured  to  her  by  statute. 
By  the  Code  of  Napoleon,  gifts  of  property,  whether  by  acts  inter 
vivos  or  by  will,  must  not  exceed  one-half  the  estate  if  the  ti 
leave  but  one  child,  one-third  if  he  leaves  two  children,  and  one-fourth 
if  he  leaves  three  or  more.  If  he  have  no  children,  but  leaves  ances- 
tors, both  in  the  paternal  and  maternal  line,  he  may  give  away  but 
one-half  of  his  property,  and  but  three-fourths  if  he  have  ancestors 
in  but  one  line.  By  the  law  of  Italy,  one-halt  of  a  testator's  property 
must  be  distributed  equally  among  all  his  children.  The  other  half  he 
may  leave  to  his  eldest  son,  or  to  whomsoever  he  pleases.  Similar 
restrictions  upon  the  power  of  a  disposition  by  will  are  found  in  the 
i >f  other  continental  countries,  as  well  as  in  the  <tate  of  Loui- 
siana. Though  the  general  consent  of  the  most  enlightened  nations 
ha^  from  the  earliest  period  recognized  a  natural  right  in  children  to 
i  the  property  of  the  parents,  we  know  of  no  legal  principle  to 
prevent  the  legislature  from  taking  away  or  limiting  the  right  i 
tamentary  disposition,  or  imposing  such  conditions  upon  its  exercise 
as  it  may  deem  conducive  to  public  gix'd"  '    »    *    * 

This  brings  us  to  the  law  in  controversy.     The  appellant  attacks 

•  There  are  many  American  dicta  to  the  effect  that  the  dght  to  transmit 
or  succeed  to  property  at  death  is  but  a  statutory'  ri^ht  that  might  be  wholly 
abrogated  by  the  legislature.    Thea  ed  In  9  t.  k.  a.  (N.  S.)  l-'i   123, 

note  (1906).    There  is  a  vigorous  argument  t"  in  Nunnemacher  v. 


G32  FUNDAMENTAL    RIG1ITS  (Part  2 

both  its  principles  and  its  provisions— its  principles  as  necessarily 
arbitrary,  and  its  provisions  as  causing  discriminations  and  creating 
inequality  in  the  burdens  of  taxation.  *  *  *  [Here  follows  a  gen- 
eral discussion  of  the  problem  of  classification  for  taxation,  the  pur- 
port of  which  sufficiently  appears  in  the  extract  from  Billings  v.  Illi- 
nois, post,  p.  635.] ,  There  is  therefore  no  precise  application  of  the 
rule  of  reasonableness  of  classification,  and  the  rule  of  equality  per- 
mits many  practical  inequalities.  And  necessarily  so.  In  a  classifica- 
tion for  governmental  purposes  there  cannot  be  an  exact  exclusion  or 
inclusion  of  persons  and  things.  Bearing  these  considerations  in  mind, 
we  can  solve  the  questions  in  controversy. 

There  are  three  main  classes  in  the  Illinois  statute;  the  first  and 
second  being  based,  respectively,  on  lineal  and  collateral  relationship 
to  the  testator  or  intestate,  and  the  third  being  composed  of  strangers 
to  his  blood,  and  distant  relatives.  The  latter  is  again  divided  into 
four  subclasses,  dependent  upon  the  amount  of  the  estate  received. 
The  first  two  classes  therefore  depend  on  substantial  differences;  dif- 
ferences which  may  distinguish  them  from  each  other,  and  them  or 
either  of  them  from  the  other  class ;  differences,  therefore,  which 
"bear  a  just  and  proper  relation  to  the  attempted  classification," — 
the  rule  expressed  in  Railroad  Co.  v.  Ellis  [ante,  p.  334].  And,  if  the 
constituents  of  each  class  are  affected  alike,  the  rule  of  equality  pre- 
scribed by  the  cases  is  satisfied.  In  other  words,  the  law  oper- 
ates "equally  and  uniformly  upon  all  persons  in  similar  circumstanc- 
es."    *     *     * 

It  is  *  *  *  the  estates  which  descend  or  are  received  which 
the  [Illinois  Supreme]  Court  decides  are  new  property,  and  which 
are  to  pay  a  tax  in  proportion  to  their  value.  *  *  *  The  reasoning 
of  appellant  is  based  on  the  view  that  the  tax  is  one  on  property, 
instead  of  one  on  the  succession,  as  held  by  the  supreme  court  of  the 
state.  Being  on  the  succession,  the  court  further  held,  as  we  have 
seen,  that  the  latter  is  to  be  regarded  as  new  property,  and  the  $20,000 
and  other  property  not  taxed  are  not,  therefore,  exemptions. 

In  this  view,  the  Illinois  court  is  in  harmony  with  the  majority  of 
other  courts  of  the  country.  We  concur  in  the  reasoning.  It  is  true 
that  the  amount  of  the  exemption  is  greater  in  the  Illinois  law  than  in 
any  other,  but  the  right  to  exempt  cannot  depend  on  that.  Whether 
it  shall  be  $20,000,  as  in  Illinois  law,  or  $10,000,  as  in  that  of  Massa- 
chusetts, or  other  amounts  as  in  other  laws,  must  depend  upon  the 
judgment  of  the  legislature  of  each  state,  and  cannot  be  subject  to 
judicial  review.  If  such  review  could  ascertain  the  factors  of  judg- 
ment, and  could  apply  them  with  indisputable  wisdom  to  the  .different 
conditions  existing,  it  would  be  outside  of  its  province  to  do  so.  That, 
manifestly,  is  a  legislative,  not  a  judicial,  function.     *     *     * 

State,  129  Wis.  190,  108  N.  W.  627,  9  L.  R.  A.  (N.  S.)  121,  9  Aun.  Cas.  711 
(19001;  aud  also  see  Minot  v.  Wintlirup,  10U  Mass.  113,  oS  X.  E.  012,  20  L.  K. 
A.  259  (lSOlj. 


Ch.  11)        DUE  PROCESS  AND  EQUALITY  :  TAXATION  Ml 

The  provisions  of  the  statute  in  regard  to  the  tax  on  legacies  to 
strangers  to  the  blood  of  an  intestate  need  further  comment.  These 
provisions  are  as  follows:  "On  each  and  every  hundred  dollars  of 
the  clear  market  value  of  all  property  and  at  the  same  rate  for  any 
less  amount;  on  all  estates  of  ten  thousand  dollars  and  less,  three 
dollars;  on  all  estates  of  over  ten  thousand  dollars  and  not  exceeding 
twenty  thousand  dollars,  four  dollars;  on  all  estates  over  twenty 
thousand  dollars  and  not  exceeding  fifty  thousand  dollars,  five  dollars, 
ami  on  all  estates  over  fifty  thousand  dollars,  six  dollars:  provided, 
that  an  estate  in  the  above  case  which  may  be  valued  at  a  less  sum 
than  five  hundred  dollars  shall  not  be  subject  to  any  duty  or  tax." 

There  are  four  classes  created,  and  manifestly  there  is  equality 
between  the  members  of  each  class.  Inequality  is  only  iound  by  com- 
paring the  members  of  one  class- with  those  of  another.  It  is  illus- 
trated by  appellant  as  follows:  One  who  receives  a  legacy  of  $10,000 
pays  3  per  cent.,  or  $300,  thus  receiving  $9,700  net,  while  one  receiv- 
ing a  legacy  of  $10,001  pays  4  per  cent,  on  the  whole  amount,  or  $400.- 
04,  thus  receiving  $9,600.96,  or  $9'J.04  less  than  the  one  whose  legacy 
was  actually  $1  less  valuable.  This  method  is  applied  throughout  the 
class. 

These,  however,  are  conceded  to  be  extreme  illustrations,  and  we 
think,  therefore,  that  they  furnish  no  test  of  the  practical  operation 
of  the  classification.  When  the  legacies  diner  in  substantial  extent,  if 
the  rate  increases,  the  benefit  increases  to  greater  degree. 

If  there  is  unsoundness,  it  must  be  in  the  classification.  The  mem- 
bers of  each  class  are  treated  alike ;  that  is  to  say,  all  who  inherit 
$10,000  are  treated  alike, — all  who  inherit  any  other  sum  are  treated 
alike.  There  is  equality,  therefore,  within  the  classes.  If  there  is 
inequality,  it  must  be  because  the  members  of  a  class  are  arbitrarily 
made  such,  and  burdened  as  such,  upon  no  distinctions  justifying  it. 
This  is  claimed.  It  is  said  that  the  lax  is  not  in  proportion  to  the 
amount,  but  varies  with  the  amounts  arbitrarily  fixed,  and  hence  that 
an  inheritance  of  $10,000  or  less  pays  3  per  cent.,  and  that  one  over 
$10,000  pays,  not  3  per  cent,  on  $10,000.  and  an  increased 
on  the  excess  over  $10,000,  but  an  increased  percentage  on  the 
as  well  as  on  the  excess;  and  it  is  said,  as  we  have  seen,  that  in  con- 
sequence one  who  is  given  a  legacy  of  $10,001  by  the  deduction  of  the 
tax  receives  $09.04  less  than  one  who  is  given  a  legacy  of  $10,000. 
L!ut  neither  case  can  be  said  to  be  contrary  to  the  rule  of  equality  of 
the  fourteenth  amendment.  That  rule  does  not  require,  as  we  have 
seen,  exact  equality  of  taxation.  It  only  requires  that  the  law  impos- 
ing it  shall  operate  on  all  alike,  under  the  same  circumstances.  The 
tax  is  not  on  money;  it  is  on  the  right  to  inherit,  and  hence  a  con- 
dition of  inheritance,  and  it  may  be  graded  according  to  the  value  of 
that  inheritance.  The  condition  is  not  arbitrary  because  it  is  deter 
mined  by  that  value;  it  is  not  unequal  in  operation  because  it  does  not 
levy  the  same  percentage  on  every  dollar, — does  not  fail  to  tt> 


634  FUNDAMENTAL    RIGHTS  (Part  2 

alike  under  like  circumstances  and  conditions,  both  in  the  privilege 
conferred  and  the  liabilities  imposed."  The  jurisdiction  of  courts  is 
fixed  by  amounts.  The  right  of  appeal  is.  As  was  said  at  bar,  the 
congress  of  the  United  States  has  classified  the  right  of  suitors  to 
come  into  the  United  States  courts  by  amounts.  Regarding  these 
alone,  there  is  the  same  inequality  that  is  urged  against  classification 
of  the  Illinois  law.  All  license  laws  and  all  specific  taxes  have  in 
them  an  element  of  inequality.  Nevertheless  they  are  universally 
imposed,  and  their  legality  has  never  been  questioned.  We  think  the 
classification  of  the  Illinois  law  was  in  the  power  of  the  legislature 
to  make. 

Decree  affirmed.* 

«  The  creation  of  future  Interest  in  property  Inter  vivos  Is  subject  to  legis- 
lative regulation  and  taxation  upon  the  same  principles  as  transfers  upon 
death  of  the  owner.  Keeney  v.  N.  Y.,  222  U.  S.  525,  32  Sup.  Ct.  105,  56  L.  Ed. 
299,  38  L.  R.  A.  (N.  S.)  1139  (1912).  So  the  exercise  of  powers  of  appointment. 
Chanler  v.  Kelsey,  205  TJ.  S.  4G6,  27  Sup.  Ct.  550.  51  L.  Ed.  SS2  (1907). 

As  to  the  construction  of  certain  clauses  In  inheritance  tax  laws,  see  Eid- 
man  v.  Martinez,  184  U.  S.  578,  22  Sup.  Ct  515,  46  L.  Ed.  697  (1902). 

Validity  of  Progressive  Taxation. — The  validity  of  progressive  inher- 
itance taxation  was  reaffirmed  in  Knowlton  v.  Moore,  178  U.  S.  41.  109,  110, 
20  Sup.  Ct.  747,  44  L.  Ed.  969  (1900)  (federal  tax);  White,  J.,  saying:  "Taxes 
imposed  with  reference  to  the  ability  of  the  person  upon  whom  the  burden  is 
placed  to  bear  the  same  have  been  levied  from  the  foundation  of  the  gov- 
ernment. So,  also,  some  authoritative  thinkers,  and  a  number  of  economic 
writers,  contend  that  a  progressive  tax  is  more  just  and  equal  than  a  propor- 
tional one.  In  the  absence  of  constitutional  limitation,  the  question  whether 
it  is  or  is  not  is  legislative  and  not  judicial." 

Some  states  have  held  progressive  inheritance  taxes  Invalid  under  local 
constitutional  provisions  requiring  uniformity  of  taxation.  State  v.  Ferris, 
53  Ohio  St.  314,  41  N.  E.  579,  30  L.  R.  A.  218  (1S95) ;  State  v.  Gorman,  40 
Minn.  232,  41  N.  W.  94S,  2  L.  R.  A.  701  (1SS9) ;  State  v.  Switzler,  143  Mo.  287. 
45  S.  W.  245,  40  L.  R.  A.  2S0,  65  Am.  St.  Rep.  653  (1S9S). 

Whether  the  tax  may  be  made  progressive  according  to  the  total  amount  of 
the  decedent's  estate.  Instead  of  according  to  the  amount  of  each  legacy  sep- 
arately, is  not  settled.  Such  a  tax  has  been  held  invalid  in  Wisconsin,  Black 
v.  State,  113  Wis.  205,  S9  N.  W.  522.  90  Am.  St.  Rep.  S53  (1902) ;  and  has  been 
assumed  to  be  valid  without  consideration  of  the  point  in  New  York,  Matter 
of  Costello,  189  N.  Y.  2S8,  82  N.  E.  139  (1907)  (citing  earlier  cases).  The  ques- 
tion has  been  left  open  by  the  federal  Supreme  Court.  Knowlton  v.  Moore, 
178  U.  S.  41,  77,  20  Sup.  Ct.  747,  44  L.  Ed.  969  (1900). 

Progressive  income  taxes  were  upheld  In  State  v.  Frear,  148  Wis.  456,  508, 
509,  134  N.  W.  673,  135  N.  W.  164,  Ann.  Cas.  1913A,  1147  (1912),  and  in  Alder- 
man v.  Wells,  85  S.  C.  507,  67  S.  E.  781,  27  L.  R.  A.  (N.  S.)  864,  21  Ann.  Cas. 
193  (1910).  In  Clark  v.  Titusville,  184  U.  S.  329,  22  Sup.  Ct.  3S2,  46  L.  Ed. 
569  (1902),  a  tax  on  sales,  the  rate  diminishing  as  the  total  sales  increased, 
was  upheld. 

Classifications  Based  upon  Various  Numerical  Differences. — The  fol- 
lowing have  been  upheld:  Osborne  v.  Florida.  33  Fla.  162,  201  ff.,  14  South. 
588,  25  L  R.  A.  120,  39  Am.  St.  Rep.  99  (1S94),  affirmed  164  U.  S.  650,  17 
Sup.  Ct.  214,  41  L.  Ed.  586  (1S97)  (amount  of  tax  based  on  population  of  place 

of  business) ;    Toyota  v.  Hawaii,  226  U.  S.  184,  33  Sup.  Ct.  47,  57  L.  Ed.  

(1913)  (same,  on  amount  of  business  existing  in  a  place) ;    Metrop.  Theatre  Co. 

v.   Chicago,   228  U.   S.  61,  33  Sup.  Ct.   441,  57  L.  Ed.  (1913)    (same,  on 

theatre's  price  of  admission) ;  Flint  v.  Stone  Tracv  Co.,  220  TJ.  S.  107,  165- 
167,  31  Sup.  Ct.  342,  55  L.  Ed.  389,  Ann.  Cas.  1912B,  1312  (1911)  (federal  tax 
on  doing  business  in  corporate  form,  measured  by  entire  income  whether  from 
business  or  not)  [see  also  Ficklen  v.  Shelby  Co.  Dist..  post,  p.  1138,  12   Sup. 


Ch.  11)  DDE  PROCESS   AND   EQUALITY  :     TAXATION  635 

Mr.  Justice  Briuver,  dissenting  [as  to  the  progressive  feature  of 
the  tax].  *  *  *  It  seems  to  be  conceded  that,  if  this  were  a  ta>: 
upon  property,  such  increase  in  the  rate  of  taxation  could  not  ' 
lained ;  but,  being  a  tax  upon  the  succession  it  is  held  that  a  different 
rule  prevails.  *  *  *  [He  also  denied  that  a  state  could  confiscate 
or  arbitrarily  dispose  of  property  upon  its  owner's  death,  and  hence 
could  impose  absolute  conditions  upon  the  privilege  of  succession.] 


BILLINGS  v.  ILLINOIS  (1903)  188  U.  S.  97,  101-104,  23  Sup. 
Ct.  272,  47  L.  Ed.  400,  McKicnna,  J.  (upholding  another  section  of  the 
Illinois  tax  law  considered  in  Magoun  v.  111.  Trust,  etc.,  Bank,  ante, 
p.  629,  which  in  substance  provided  for  a  succession  tax  upon  life 
estates  where  the  remainder  over  went  to  lineal  heirs,  but  did  not 
tax  such  estates  where  the  remainder  was  to  other  persons) : 

"Turning  to  the  Magoun  Case,  we  find  that  the  objection  made 
to  the  statute  was  that  it  denied  to  the  appellant  the  equal  protection 
of  the  laws.  *  *  *  We  said  it  was  established  by  cases  that 
classification  must  be  based  on  some  reasonable  ground.  It  could  not 
be  a  'mere  arbitrary  selection.'  But  what  is  the  test  of  an  arbitrary 
selection?  It  is  difficult  to  exhibit  it  precisely  in  a  general  rule. 
Classification  is  essentially  the  same  in  law  as  it  is  in  other  depart- 
ments of  knowledge  or  practice.  It  is  the  grouping  of  things  in  specu- 
lation or  practice  because  they  'agree  with  one  another  in  certain  par- 
ticulars and  differ  from  other  things  in  those  same  particulars.' 
Things  may  have  very  diverse  qualities,  and  yet  be  united  in  a  class. 
They  may  have  very  similar  qualities,  and  yet  be  cast  in  different 
classes.     Cattle  and  horses  may  be  considered  in  a  class  for  some  pur- 

Ot.  810,  30  L.  Ed.  0.01  (1802)].  In  the  Flint  Cms-'.  Day,  .!..  said  (220  O.  B.  166, 
166,  :m  Sup.  Ct  355,  55  L.  Ed.  389,  Ann.  Cas.  L912B,  1312):  "it  is  contended 
that  measurement  of  the  tax  by  tbe  net  Income  of  the  corporation  or  company 
received  by  it  from  all  sources  is  not  only  unequal,  but  so  arbitrary  and  base- 
less as  to  fall  outside  of  the  authority  of  the  taxing  power.  But  is  this  so? 
Conceding  the  power  of  Congress  to  tax  the  business  activities 'of  private 
corporations,  Including,  as  in  this  case,  the  privilege  <>t  carrying  on  business 
in  a  corporate  capacity,  the  tax  must  he  measured  by  some  standard,  and 
none  can  be  chosen  which  will  operate  with  absolute  Justice  and  equality 
upon  all  corporations.  Some  corporations  do  a  large  business  upon  a  small 
amount  of  capital:  others  with  a  small  business  may  have  a  large  capital. 
A  tax  upon  the  amount  of  business  done  might  operate  as  unequally  as  a 
measure  of  excise  as  it  is  alleged  the  measure  of  Income  from  all  sources 
does.  Nor  can  it  be  justly  said  that  investments  have  Q0  real  relation  to  the 
transacted    by    a    corporation.       I  6t8   is    a 

business  advantage  of  great   value;    ii   naaj   give  ere. lit  which  will  result   in 

more  economical  business  methods;  it  maj    give  a  Standing  which  shall   facili- 
tate purchases;   it  may  enable  the  corporation  to  enlarge  the  Held  of  its  active 
td  in  many  ways  give  it  business  standing  and  prestige." 
A  tax  on  stores  engaged  In  more  than  one  of  several  .specified  groups  of 
businesses,  with  15  srns  held  Invalid  i'.i  state  v.  Ashbrook, 

154  Mo.  376,  55  S.  W.  627,  is  L.  R.  A.  'Jr.:.,  77  Am.  St.  Rep.  7G5  (1900). 


636  FUNDAMENTAL    RIGHTS  (Part  2 

poses.  Their  differences  are  certainly  pronounced.  Salt  and  sugar 
may  be  associated  in  a  grocer's  stock  for  a  grocer's  purposes.  To  con- 
found them  in  use  would  be  very  disappointing.  Human  beings  are 
essentially  alike,  yet  some  individuals  may  have  attributes  or  relations 
not  possessed  by  others,  which  may  constitute  them  a  class.  But  their 
classification — indeed,  all  classification — must  primarily  depend  upon 
purpose — the  problem  presented.  Science  will  have  one  purpose,  busi- 
ness another,  and  legislation  still  another.  The  latter,  of  course,  on 
account  of  the  restraints  upon  the  legislature,  may  not  be  legal, — may 
not  be  within  the  power  of  the  legislature.  To  dispute  that  power, 
however,  is  not  the  same  thing  as  to  dispute  a  classification,  and  yet 
that  there  may  be  dependence, — more  freedom  of  classification  in 
some  instances, — has  been  indicated  by  the  cases.  A  state  cannot  reg- 
ulate interstate  commerce,  however  accurate  its  classification  of  ob- 
jects may  be.  On  the  either  hand,  the  taxing  power  of  a  state  is  one 
of  its  most  extensive  powers.  It  cannot  be  exercised  upon  persons 
grouped  according  to  their  complexions.  It  can  be  exercised  if  they 
are  grouped  according  to  their  occupations.  A  state  may  regulate 
or  suppress  combinations  to  restrict  the  sale  of  products.  The  power 
cannot  be  exerted  to  forbid  combinations  among  those  who  buy  prod- 
ucts, and  permit  combinations  among  those  who  raise  or  grow 
products.  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  46  L. 
Ed.  679,  22  Sup.  Ct.  431.  And  yet,  exercising  its  taxing  power,  it 
has  been  decided,  that  a  state  may  make  that  discrimination.  Amer- 
ican Sugar  Refining  Co.  v.  Louisiana,  179  U.  S.  89,  45  L.  Ed.  102,  21 
Sup.  Ct.  43.  Other  illustrations  may  be  taken  from  the  cases  which 
tend  to  the  same  end.  If  the  purpose  is  within  the  legal  power  of  the 
legislature,  and  the  classification  made  has  relation  to  that  purpose 
(excludes  no  persons  or  objects  that  are  affected  by  the  purpose,  in- 
cludes all  that  are),  logically  speaking,  it  will  be  appropriate;  legally 
speaking,  a  law  based  upon  it  will  have  equality  of  operation.  And, 
excluding  our  right  to  consider  policies  or  assume  legislation,  we  have 
many  times  said  that  a  state  in  its  purposes  and  in  the  execution  of 
them  must  be  allowed  a  wide  range  of  discretion,  and  that  this  court 
will  not  rnake  itself  a  harbor  in  which  can  be  found  'a  refuge  from 
ill-advised,  unequal,  and  oppressive'  legislation.  Mobile  County  v. 
Kimball,  102  U.  S.  691,  26  L.  Ed.  238.     *     *     * 

"But  it  is  insisted  that  the  classification  sustained  in  the  Magoun 
Case  'related  solely  to  the  graduated  feature  of  the  tax.'  In  the  case 
at  bar,  it  is  said,  the  question  is  'whether  or  not  the  Illinois  legislature 
can  discriminate  against  constituents  of  a  certain  class,  and  apply  dif- 
ferent rules  for  the  taxation  of  its  members.  Life  tenants  constitute 
but  a  single  class,  and  the  incidents  of  such  an  estate,  the  source 
thereof,  the  extent,  the  dominion  over  and  quality  of  interest  in  the 
tenant,  is  the  same  irrespective  of  the  ultimate  vesting  of  the  remain- 
der. The  tax  is  not  upon  the  property,  but  is  upon  the  person  suc- 
ceeding to  the  property.' 


Ch.ll)  DDE  PROCESS  AND   EQUALITY :     TAXATION  C3T 

"Undoubtedly,  life  tenants,  regarded  simply  as  persons,  may  be 
in  legal  contemplation  the  same;  estates  for  life,  regarded  simply 
as  estates  with  their  attributes  also  in  legal  contemplation,  may  be 
said  to  be  the  same,  but  that  is  not  all  that  is  to  be  considered,  nor 
is  it  determinative.  We  must  regard  the  power  of  the  state  over 
testate  and  intestate  dispositions  of  property,  its  power  to  create  and 
limit  estates,  and,  as  resulting,  its  power  to  impose  conditions  upon 
their  transfer  or  devolution.  It  is  upon  this  power  that  inheritance- 
tax  laws  are  based,  and  we  said,  in  the  Magoun  Case,  that  the 
could  be  exercised  by  distinguishing  between  the  lineal  and  collateral 
relatives  of  a  testator.  There  the  amount  of  tax  depended  upon  him 
who  immediately  received;  here  the  existence  of  the  tax  depend; 
upon  him  who  ultimately  receives.  That  can  make  no  difference  with 
the  power  of  the  state.  Xo  discrimination  being  exercised  in  the 
creation  of  the  class,  equality  is  observed.  Crossing  the  lines  of  the 
classes  created  by  the  statute,  discriminations  may  be  exhibited,  but 
within  the  classes  there  is  equality."1 


KELLY  v.  PITTSBURGH. 
(Supseme  Court  of  United  States,  1881.    104  r    S.  78,  2fl  U  Ed.  058.) 

[Error  to  the  Supreme  Court  of  Pennsylvania.  By  authority  of  the 
legislature,  the  township  of  Collins  in  Alleghany  county  was  ann*uced 
to  the  city  of  Pittsburgh.  Kelly  owned  SO  acres  of  land  therein,  wttich 
was  assessed  at  a  very  high  rate  for  the  municipal  taxes  of  the  city. 
An  injunction  against  the  collection  of  such  taxes  was  denied  him  in 
the  lower  courts,  and  the  denial  affirmed  by  the  state  Supreme  Court. 
Other  facts  appear  in  the  opinion.] 

Mr.  Justice  MlLLER.     *     *'  *     The  main  argument  for  the  plaintiff 
in  error — the  only  one  to  which  we  can  listen — is  that  the  pro. 
in  regard  to  the  taxes  assessed  on  his  land  deprives  him  of  his  property 
without  due  process  of  law. 

It  is  not  asserted  that  in  the  methods  by  which  the  value  of  his  land 
was  ascertained  for  the  purpose  of  this  taxation  there  was  any  depar- 
ture from  the  usual  modes  of  assessment,  nor  that  the  manner  of  ap- 
portioning and  collecting  the  tax  was  unusual  or  materially  different 
from  that  in  force  in  all  communities  where  land  is  subject  to  taxation. 
In  these  respects  there  is  no  charge  that  the  method  pursued  is  not  due 
process  of  law.  Taxes  have  not.  as  a  general  rule,  in  this  country  since 
its  independence,  nor  in  England  before  that  time,  been  collected  by 
regular  judicial  proceedings.     The  necessities  of  government,  the  na- 

r,i:    Campbell  v.  California,  200  0.  S    B7,  26  Sup.  Ct   If 
latlves  by  marriage  prefi 
Glynn,  211  D.  S.  477,  29  Sup.  Ct  186,  53  1*  (Inheritance 

Don-resident  decedent  collectible  only  when  decedent  also  left 
realty  in  Btate). 


fi38  FUNDAMENTAL    RIGHTS  (Part  2 

ture  of  the  duty  to  be  performed,  and  the  customary  usages  of  the  peo- 
ple, have  established  a  different  procedure,  which  in  regard  to  that 
matter,  is,  and  always  has  been,  due  process  of  law.  The  tax  in  ques- 
tion was  assessed,  and  the  proper  officers  were  proceeding  to  collect  it 
in  this  way. 

The  distinct  ground  on  which  this  provision  of  the  Constitution  of 
the  United  States  is  invoked  is,  that  as  the  land  in  question  is,  and  al- 
ways has  been,  used  as  farm  land,  for  agricultural  use  only,  subject- 
ing it  to  taxation  for  ordinary  city  purposes  deprives  the  plaintiff  in 
error  of  his  property  without  due  process  of  law.  It  is  alleged,  and 
probably  with  truth,  that  the  estimate  of  the  value  of  the  land  for  tax- 
ation is  very  greatly  in  excess  of  its  true  value.  Whether  this  be  true 
or  not  we  cannot  here  inquire.  We  have  so  often  decided  that  we  can- 
not review  and  correct  the  errors  and  mistakes  of  the  state  tribunals 
on  that  subject,  that  it  is  only  necessary  to  refer  to  those  decisions 
without  a  restatement  of  the  argument  on  which  they  rest.  State  Rail- 
road Tax  Cases,  92  U.  S.  575,  23  L.  Ed.  663 ;  Kennard  v.  Louisiana, 
92  U.  S.  480,  23  L.  Ed.  478 ;  Davidson  v.  New  Orleans,  96  U.  S.  97, 
24  L.  Ed.  616;  Kirtland  v.  Hotchkiss,  100  U.  S.  491,  25  L.  Ed.  558; 
Missouri  v.  Lewis,  101  U.  S.  22,  25  L.  Ed.  989;  National  Bank  v.  Kim- 
ball, 103  U.  S.  732,  26  L.  Ed.  469. 

But,  passing  from  the  question  of  the  administration  of  the  law  of 
Pennsylvania  by  her  authorities,  the  argument  is,  that  in  the  matter 
already  mentioned  the  law  itself  is  in  conflict  with  the  Constitution. 
It  is'not  denied  that  the  legislature  could  rightfully  enlarge  the  bound- 
ary of  the  city  of  Pittsburgh  so  as  to  include  the  land.  If  this  power 
were  denied,  we  are  unable  to  see  how  such  denial  could  be  sustained. 
What  portion  of  a  state  shall  be  within  the  limits  of  a  city  and  be 
governed  by  its  authorities  and  its  laws  has  always  been  considered 
to  be  a  proper  subject  of  legislation.  Plow  thickly  or  how  sparsely 
the  territory  within  a  city  must  be  settled  is  one  of  the  matters  within 
legislative  discretion.  Whether  territory  shall  be  governed  for  local 
purposes  by  a  county,  a  city,  or  a  township  organization,  is  one  of  the 
most  usual  and  ordinary  subjects  of  state  legislation. 

It  is  urged,  however,  with  much  force,  that  land  of  this  character, 
which  its  owner  has  not  laid  off  into  town  lots,  but  insists  on  using  for 
agricultural  purposes,  and  through  which  no  streets  are  run  or  used, 
cannot  be,  even  by  the  legislature,  subjected  to  the  taxes  of  a  city. — 
the  water  tax,  the  gas  tax,  the  street  tax,  and  others  of  similar  char- 
acter. The  reason  for  this  is  said  to  be  that  such  taxes  are  for  the 
benefit  of  those  in  a  city  who  own  property  within  the  limits  of  such 
improvements,  and  who  use  or  might  use  them  if  they  choose,  while 
he  reaps  no  such  benefit.  Cases  are  cited  from  the  higher  courts  of 
Kentucky  and  Iowa  where  this  principle  is  asserted,  and  where  those 
courts  have  held  that  farm  lands  in  a  city  are  not  subject  to  the  or- 
dinary city  taxes.  It  is  no  part  of  our  duty  to  inquire  into  the  grounds 
on  which  those  courts  have  so  decided.     They  are  questions  which 


Ch.  11)  DDE   PROCESS  AND    EQUALITY:     TAXATION  Kit) 

arise  between  the  citizens  of  those  states  and  their  own  city  authori- 
ties, and  afford  no  rule  for  construing  the  Constitution  of  the  United 
States. 

We  are  also  referred  to  the  case  of  Loan  Association  v.  Topeka,  20 
Wall.  655,  22  L.  Ed.  455,  which  asserts  the  doctrine  that  taxation, 
though  sanctioned  by  state  statutes,  if  it  be  [not]  for  a  public  use,  is  an 
unauthorized  taking  of  private  property.  We  are  unable  to  see  that 
the  taxes  levied  on  this  property  were  not  for  a  public  use.  Taxes 
for  schools,  for  the  support  of  the  poor,  for  protection  against  fire, 
and  for  water-works,  are  the  specific  taxes  found  in  the  list  complained 
of.  We  think  it  will  not  be  denied  by  any  one  that  these  are  public 
purposes  in  which  the  whole  community  have  an  interest,  and  for 
which,  by  common  consent,  property  owners  everywhere  in  this  coun- 
try are  taxed.  There  are  items  styled  city  tax  and  city  buil 
which,  in  the  absence  of  any  explanation,  we  must  suppose  to  be  for 
the  good  government  of  the  city,  and  for  the  construction  of  such 
buildings  as  are  necessary  for  municipal  purposes.  Surely  these  are  all 
public  purposes;  and  the  money  so  to  be  raised  is  for  public  use.  No 
item  of  the  tax  assessed  against  the  plaintiff  in  error  is  pointed  out  as 
intended  for  any  other  than  a  public  use. 

It  may  be  true  that  he  does  not  receive  the  same  amount  of  ' 
from  some  or  any  of  these  taxes  as  do  citizens  living  in  the  heart  of 
the  city.  It  probably  is  true,  from  the  evidence  found  in  this  record, 
that  liis  tax  bears  a  very  unjust  relation  to  the  benefits  received  as 
compared  with  its  amount.  But  who  can  adjust  with  precise  accuracy 
the  amount  which  each  individual  in  an  organized  civil  community 
shall  contribute  to  sustain  it,  or  can  insure  in  this  respect  absolute 
equality  of  burdens,  and  fairness  in  their  distribution  among  those 
who  must  bear  them?  We  cannot  say  judicially  that  Kelly  received  no 
benefit  from  the  city  organization.  These  streets,  if  they  do  not  pen- 
etrate his  farm,  lead  to  it.  The  water-works  will  probably  reach  him 
some  day,  and  may  be  near  enough  to  him  now  to  serve  him  on  some 
occasion.  The  schools  may  receive  his  children,  and  in  this  regard 
he  can  be  in  no  worse  condition  than  those  living  in  the  city  who 
have  no  children,  and  yet  who  pay  for  the  support  of  the  schools. 
Every  man  in  a  county,  a  town,  a  city,  or  a  state  is  deeply  interested 
in  the  education  of  the  children  of  the  community,  because  his  peace 
and  quiet,  his  happiness  and  prosperity,  are  large'  t  upon 

the  intelligence  and  moral  training  which  it  is  the  object  of  public 
schools  to  supply  to  the  children  of  his  neighbors  and  associates,  if  he 
has  none  himself.  The  officers  whose  duty  it  is  to  punish  and  pre- 
vent crime  are  paid  out  of  the  taxes.  Has  he  no  interest  in  maintain- 
ing them,  because  he  lives  further  from  the  court-house  and  police- 
station  than  some  others? 

Clearly,  however,  these  are  matters  of  detail  within  the  discretion, 
and  therefore  the  power,  of  the  law-making  body  within  whose  juri-- 
diction  the  parties  live.    This  court  cannot  say  in  such  cases,  however 


fi40  FUNDAMENTAL    RIGHTS  (Part  2 

great  the  hardship  or  unequal  the  burden,  that  the  tax  collected  for 
such  purposes  is  taking  the  property  of  the  tax-payer  without  due  pro- 
cess of  law.     *     *     * 
Judgment  affirmed.1 


SPENCER  v.  MERCHANT. 

(Supreme  Court  of  United  States,  18SS.     125  U.  S.  345,  8  Sup.  Ct.  921,  31   Ls 
Ed.  763.) 

[Error  to  the  Supreme  Court  of  New  York.  Upon  an  agreed 
statement  of  facts  between  the  parties,  the  question  was  whether  a 
certain  unpaid  assessment  constituted  a  valid  lien  upon  land  Spencer 
had  agreed  to  sell  to  Merchant  with  a  covenant  against  all  incum- 
brances. The  facts  regarding  the  assessment  appear  in  the  opinion 
below.  The  state  Supreme  Court  upheld  the  assessment,  and  its 
judgment  was  affirmed  and  the  case  remitted  to  it  by  the  New  York 
Court  of  Appeals.] 

Mr.  Justice  Gray.  The  leading  facts  of  this  case  are  as  follows : 
The  original  assessment  of  the  expenses  of  regulating,  grading,  and 
preparing  the  street  for  travel  was  laid  by  commissioners,  as  directed 
by  section  4  of  the  statute  of  1869,  upon  all  the  lands  lying  within 

i  And  so,  Forsyth  v.  Hammond,  166  U.  S.  506,  518.  17  Sup.  Ct.  665.  41  L.  Ed. 
1095  (1907),  by  Brewer,  J.:  "It  Is  for  the  state  to  determine  its  political  sub- 
divisions, the  number  and  size  of  its  municipal  corporations,  and  their  terri- 
torial extent.  These  are  matters  of  a  local  nature,  in  which  the  nation,  as 
a  whole,  is  not  interested,  and  in  which,  by  the  very  nature  of  things,  the  de- 
termination of  the  state  authorities  should  be  accepted  as  authoritative  and 
controlling." 

A  few  states  deny  that  the  legislature  can  impose  city  taxes  upon  agri- 
cultural land  not  really  needed  for  city  purposes  and  not  divided  into  city 
lots.  Fulton  v.  Davenport,  17  Iowa,  404  (1SC4);  Bradshaw  v.  Omaha,  1  Xeb. 
10.  This  was  formerly  the  rule  in  Kentucky,  also,  but  has  been  changed  by 
the  Constitution  of  1891.  Board  of  Councilmen  v.  Scott,  101  Ky.  615,  42  S. 
W.  104  (1897). 

The  federal  Constitution  does  not  prohibit  territory  outside  of  a  municipal 
corporation  being  subjected  to  its  jurisdiction  for  purposes  of  taxation,  ir- 
respective of  benefits  therefrom,  Thomas  v.  Gay,  169  U.  S.  204,  IS  Sup.  Ct  340, 
42  L.  Ed.  740  (189S) ;  although  some  state  or  territorial  courts  have  taken 
a  different  view,  under  their  local  organic  laws,  Wells  v.  Weston,  22  Mo.  3S4, 
00  Am.  Dec.  627  (1856) ;  Farris  v.  Vannier,  6  Dak.  ISO,  42  N.  W.  31,  3  L.  K.  A. 
713  (1SS9). 

Control  of  Local  Taxation. — The  federal  Constitution  secures  no  rights 
of  local  self-government  to  municipalities,  which  may  accordingly  be  com- 
pelled by  their  legislatures  to  submit  to  taxation  or  the  imposition  uf  other 
pecuniary  obligations  for  public  purposes.  New  Orleans  v.  Clark,  95  U.  S. 
644,  24  L.  Ed.  521  (1S77)  (validation  of  void  bonds) ;  Guthrie  Nat.  Bk.  v. 
Guthrie,  173  U.  S.  52S,  19  Sup.  Ct.  513,  43  L.  Ed.  796  (1899)  (discharge  of 
moral  obligation);  Williams  v.  Eggleston,  170  U.  S.  304,  IS  Sup.  Ct.  617,  42 
L.  Ed.  1047  (1898)  (taking  bridge  by  eminent  domain).  So  also  in  fields  other 
than  taxation.  Worcester  v.  Street  Ry.,  19G  U.  S.  539,  25  Sup.  Ct.  327.  49  L. 
Ed.  591  (1905)  (altering  contracts  of  city);  Atkin  v.  Kansas,  191  U.  S.  207,  24 
Sup.  Ct.  124.  4S  L.  Ed.  148  (1903)  (compulsory  eight-hour  day  on  municipal 
contracts).     See,  on  the  general  topic,  Opinion  of  Justices   ante,  p.  123,  note. 


Ch.  11)  DUB   PROCESS  AND   KQUALITY:     TAXATION  641 

300  feet  on  either  side  of  the  street,  and  which,  in  the  judgment  of 
the  commissioners,  would  be  benefited  by  the  improvement.  After 
the  sums  so  assessed  upon  some  lots  had  been  paid,  the  court  of  ap- 
peals of  the  state  declared  that  assessment  void,  because  the  statute 
(although  it  made  ample  provision  for  notice  of  and  hearing  upon 
the  previous  assessment  for  laying  out  the  street  under  section  3i 
provided  no  means  by  which  the  landowners  might  have  any  notice 
or  opportunity  to  be  heard  in  regard  to  the  assessment  for  regulating, 
grading,  and  preparing  the  street  for  travel  under  section  4.  Stuart 
v,  Palmer,  74  N.  Y.  183,  30  Am.  Rep.  289.  The  lots,  the  sums  as- 
sessed upon  which  had  not  been  paid,  were  isolated  parcels,  not  con- 
tiguous, and  some  of  them  not  fronting  upon  the  street.  By  the  stat- 
ute of  18S1,  a  sum  equal  to  so  much  of  the  original  assessment  as  re- 
mained unpaid,  adding  a  proportional  part  of  the  expenses  of  mak- 
ing that  assessment,  and  interest  since,  was  ordered  by  the  legislature 
to  be  levied  and  equitably  apportioned  by  the  supervisors  of  the 
county  upon  and  among  these  lots,  after  public  notice  to  all  parties 
interested  to  appear  and  be  heard  upon  the  question  of  such 
tionment;  and  that  sum  was  levied  and  assessed  accordingly  upon 
these  lots,  one  of  which  was  owned  by  the  plaintiff.  The  question 
submitted  to  the  supreme  court  of  the  state  was  whether  this  as- 
sessment on  the  plaintiff's  lot  was  valid.     *     *     * 

The  substance  of  the  former  decisions,  and  the  grounds  of  the 
judgment  sought  to  be  reviewed,  can  hardly  be  more  compactly  or 
forcibly  stated  than  they  have  been  by  Judge  Finch  in  delivering  the 
opinion  of  the  court  of  appeals,  as  follows:  "The  act  of  1881  deter- 
mines absolutely  and  conclusively  the  amount  of  tax  to  be  raised, 
and  the  property  to  be  assessed,  and  upon  which  it  is  to  be  appor- 
tioned. Each  of  these  things  was  within  the  power  of  the  legisla- 
ture, whose  action  cannot  be  reviewed  in  the  courts  upon  the 
that  it  acted  unjustly,  or  without  appropriate  and  adequate  i 
Litchfield  v.  Vernon,  41  N.  Y.  123.  131 :  People  v.  Brooklyn,  4  X.  Y. 
427,  55  Am.  Dec.  266;    People  v.  I  lorn  v.  New 

Lots,  83  N.  Y.  100.  38  Am.  Rep.  402;  Cooley,  Tax'n,  450.  The 
legislature  may  commit  the  ascertainment  of  the  sum  to  be  raised 
and  of  the  benefited  district  to  commissioners,  but  is  not  bound  to  do 
so.  ami  may  settle  both  questions  for  itself;  and  when  it  does  so, 
its  action  is  necessarily  conclusive,  and  beyond  review.  Here  an  im- 
provement has  been  ordered  and  made,  the  expense  of  which  might 
justly  have  been  imposed  upon  adjacent  property  benefited  by  the 
.  .  By  the  act  of  1881,  the  legislature  imposes  the  unpaid  por- 
tion of  the  cost  and  expense,  with  the  interest  thereon,  upon  tl 
tion  of  the  property  benefited  which  has  thus  far  borne  none  of  the 
burden.  In  so  doing,  it  necessarily  determines  two  things,  vi/..  the 
amounl  to  I  -  nd  tl  Uy  benefited  by  l 

penditure  of  that  amount.     The  lands  might  have  been  bei 
Hall  C0K8T.Ii.— 41 


642  FUNDAMENTAL    RIGHTS  (Part  2 

the  improvement ;  and  so  the  legislative  determination  that  they  were, 
and  to  what  amount  or  proportion  of  the  cost,  even  if  it  may  have 
been  mistakenly  unjust,  is  not  open  to  our  review.  The  question  of 
special  benefit,  and  the  property  to  which  it  extends,  is  of  necessity 
a  question  of  fact ;  and,  when  the  legislature  determines  it  in  a  case 
within  its  general  power,  its  decision  must,  of  course,  be  final. 

"We  can  see  in  the  determination  reached  possible  sources  of  error, 
and  perhaps  even  of  injustice;  but  we  are  not  at  liberty  to  say  that 
the  tax  on  the  property  covered  by  the  law  of  1881  was  imposed 
without  reference  to  special  benefits.  The  legislature  practically  de- 
termined that  the  lands  described  in  that  act  were  peculiarly  bene- 
fited by  the  improvement  to  a  certain  specified  amount,  which  con- 
stituted a  just  proportion  of  the  whole  cost  and  expense ;  and,  while 
it  may  be  that  the  process  by  which  the  result  was  reached  was  not 
the  best  attainable,  and  some  other  might  have  been  more  accurate 
and  just,  we  cannot  for  that  reason  question  an  enactment  within  the 
general  legislative  power.  That  power  of  taxation  is  unlimited,  ex- 
cept that  it  must  be  exercised  for  public  purposes.  Weismer  v.  Doug- 
las, 64  N.  Y.  91,  21  Am.  Rep.  586.  Certainly  if  the  acts  of  1869  and 
1870  had  never  been  passed,  but  the  improvement  of  Atlantic  avenue 
had  been  ordered,  the  legislature  might  have  imposed  one  part  or  pro- 
portion of  the  cost  upon  one  designated  district  and  the  balance  upon 
another.  Practically  just  that  was  done  in  this  case.  In  re  Van  Ant- 
werp, 56  N.  Y.  261,  an  assessment  for  a  street  improvement  had  been 
declared  void  by  reason  of  failure  to  procure  necessary  consents  of 
property  owners.  The  legislature  made  a  reassessment,  imposing 
two-thirds  of  the  expense  upon  a  benefited  district,  and  one-third 
upon  the  city  at  large.  The  act  was  held  valid  as  a  new  assessment. 
and  not  an  effort  to  validate  a  void  one.  These  views  furnish  also 
an  answer  to  the  objection  that  the  only  hearing  given  to  the  land- 
owner relates  to  the  apportionment  of  the  fixed  amount  among  the 
lots  assessed,  and  none  is  given  as  to  the  aggregate  to  be  collected. 
No  hearing  would  open  the  discretion  of' the  legislature,  or  be  of 
any  avail  to  review  or  change  it.  A  hearing  is  given  by  the  act  as 
to  the  apportionment  among  the  land-owners,  which  furnishes  to  them 
an  opportunity  to  raise  all  pertinent  and  available  questions,  and  dis- 
pute their  liability,  or  its  amount  and  extent. 

"The  precise  wrong  of  which  complaint  is  made  appears  to  be  that 
the  land-owners  now  assessed  never  had  opportunity  to  be  heard  as 
to  the  original  apportionment,  and  find  themselves  now  practically 
bound  by  it  as  between  their  lots  and  those  of  the  owners  who  paid. 
But  that  objection  becomes  a  criticism  upon  the  action  of  the  legisla- 
ture, and  the  process  by  which  it  determined  the  amount  to  be  raised 
and  the  property  to  be  assessed.  Unless  by  special  permission,  that  is 
a  hearing  never  granted  in  the  process  of  taxation.  The  legislature 
determines  expenditures  and  amounts  to  be  raised  for  their  payment, 
the  whole  discussion  and  all  questions  of  prudence  and  propriety  and 


Ch.  11)  DDE  PROCESS  AND  EQUALITY!     TAXATION  MS 

justice  being  confided  to  its  jurisdiction.  It  may  err,  but  the  courts 
cannot  review  its  discretion.  In  this  case,  it  kept  within  its  power 
when  it  fixed — First,  the  amount  to  be  raised  to  discharge  the  im- 
provement debt  incurred  by  its  direction ;  and,  second,  when  it  des- 
ignated the  lots  and  property  which,  in  its  judgment,  by  reason  of 
special  benefits,  should  bear  the  burden;  and  having  the  power,  we 
cannot  criticise  the  reasons  or  manner  of  its  action.  The  land-owners 
were  given  a  hearing,  and  so  there  was  no  constitutional  objection 
in  that  respect.  Nor  was  that  hearing  illusory.  "  It  opened  to  the 
land-owner  an  opportunity  to  assail  the  constitutional  validity  of  the 
act  under  which  alone  an  apportionment  could  be  made,  and  that  ob- 
jection failing,  it  opened  the  only  other  possible  questions  of  the 
mode  and  amounts  of  the  apportionment  itself.  We  think  the- act 
was  constitutional."  100  N.  Y.  587-589,  3  N.  E.  684.  The  general 
principles  upon  which  that  judgment  rests  have  been  affirmed  by  the 
decisions  of  this  court. 

The  power  to  tax  belongs  exclusively  to  the  legislative  branch  of 
the  government.  U.  S.  v.  New  Orleans,  98  U.  S.  381,  392,  25  L.  Ed. 
225 ;  Meriwether  v.  Garrett,  102  U.  S.  472,  26  L.  Ed,  197.  In  the 
words  of  Chief  Justice  Chase,  condensing  what  had  been  said 
long  before  by  Chief  Justice  Marshall:  "The  judicial  department  can- 
not prescribe  to  the  legislative  department  limitations  upon  the  ex- 
ercise of  its  acknowledged  powers.  The  power  to  tax  may  be  ex- 
ercised oppressively  upon  persons;  but  the  responsibility  of  the  legis- 
lature is  not  to  the  courts,  but  to  the  people,  by  whom  its  members 
are  elected."  Bank  v.  Fenno,  8  Wall.  533,  548,  19  L.  Ed.  482;  Mc- 
Culloch  v.  Maryland,  4  Wheat.  316,  428,  4  L.  Ed.  579;  Bank  v.  Bil- 
lings, 4  Pet.  514,  563,  7  L.  Ed.  939.  See,  also,  Kirtland  v,  Hotchkiss, 
100  U.  S.  491,  497,  25  L.  Ed.  558.  Whether  the  estimate  of  the  value 
of  land  for  the  purpose  of  taxation  exceeds  its  true  value,  this  court 
on  writ  of  error  to  a  state  court  cannot  inquire.  Kelly  v.  Pittsburgh, 
104  U.  S.  78,  80,  26  L.  Ed.  658.  The  legislature,  in  the  exercise  of 
its  power  of  taxation,  has  the  right  to  direct  the  whole  or  a  part  of 
the  expense  of  a  public  improvement,  such  as  the  laying  out,  grading, 
or  repairing  of  a  street,  to  be  assessed  upon  the  owners  of  lands  bene- 
fited thereby;  and  the  determination  of  the  territorial  district  which 
should  be  taxed  for  a  local  improvement  is  within  the  province  of 
legislative  discretion.  Willard  v.  Presbury,  14  Wall.  676,  20  L.  Ed. 
719;  Davidson  v.  New  Orleans,  96  U.  S.  97,  24  L.  Ed.  616;  Mobile 
Co.  v.  Kimball.  102  U.  S.  691,  703,  704,  26  L.  Ed.  238;  Hagar  v. 
Reclamation  Dist.,  Ill  U.  S.  701.  4  Sup.  Ct.  663,  28  L.  Ed.  569. 
If  the  legislature  provides  for  notice  to  and  hearing  of  each  pro- 
prietor at  some  stage  of  the  proceedings,  upon  the  question  what  pro- 
portion of  the  tax  shall  be  assessed  upon  his  land,  there  is  no  taking 
of  his  property  without  due  process  of  law.  McMillen  v.  Anderson, 
95  U.  S.  37,  24  L.  Ed.  335;  Davidson  v.  New  Orleans,  and  Hagar  v. 
Reclamation  Dist.,  above  cited.     In  Davidson  v.  New  Orleans  it  was 


644  FUNDAMENTAL    RIGHTS  (Part  2 

held  that  if  the  work  was  one  which  the  state  had  the  authority  to 
do,  and  to  pay  for  by  assessments  on  the  property  benefited,  objec- 
tions that  the  sum  raised  was  exorbitant,  and  that  part  of  the  prop- 
erty assessed  was  not  benefited,  presented  no  question  under  the  four- 
teenth amendment  to  the  Constitution  upon  which  this  court  could 
review  the  decision  of  the  state  court.  96  U.  S.  100,  106,  24  L.  Ed. 
616. 

In  the  absence  of  any  more  specific  constitutional  restriction  than 
the  general  prohibition  against  taking  property  without  due  process 
of  law,  the  legislature  of  the  state,  having  the  power  to  fix  the  sum 
necessary  to  be  levied  for  the  expense  of  a  public  improvement,  and 
to  order  it  to  be  assessed,  either,  like  other  taxes,  upon  property  gen- 
erally, or  only  upon  the  lands  benefited  by  the  improvement,  is  au- 
thorized to  determine  both  the  amount  of  the  whole  tax,  and  the  class 
of  lands  which  will  receive  the  benefit,  and  should  therefore  bear  the 
burden,  although  it  may,  if  it  sees  fit,  commit  the  ascertainment  of  ei- 
ther or  both  of  these  facts  to  the  judgment  of  commissioners. 
When  the  determination  of  the  lands  to  be  benefited  is  intrusted 
to  commissioners,  the  owners  may  be  entitled  to  notic  and  hear- 
ing upon  the  question  whether  their  lands  are  benefited,  and  how 
much.1  But  the  legislature  has  the  power  to  determine,  by  the 
statute  imposing  the  tax,  what  lands,  which  might  be  benefited  by 
the  improvement,  are  in  fact  benefited ;  and  if  it  does  so,  its  deter- 
mination is  conclusive  upon  the  owners  and  the  courts,  and  the  own- 
ers have  no  right  to  be  heard  upon  the  question  whether  their  lands 
are  benefited  or  not,  but  only  upon  the  validity  of  the  assessment,  and 
its  apportionment  among  the  different  parcels  of  the  class  which  the 
legislature  has  conclusively  determined  to  be  benefited.2  In  deter- 
mining what  lands  are  benefited  by  the  improvement,  the  legislature 
may  avail  itself  of  such  information  as  it  deems  sufficient,  either 
through  investigations  by  its  committees,  or  by  adopting  as  its  own 
the  estimates  or  conclusions  of  others,  whether  those  estimates  or 
conclusions  previously  had  or  had  not  any  legal  sanction.  In  section 
4  of  the  statute  of  1869,  the  assessment  under  which  was  held  void 
in  Stuart  v.  Palmer,  74  N.  Y.  183,  30  Am.  Rep.  289,  for  want  of  any 
provision  whatever  for  notice  or  hearing,  the  authority  to  determine 
what  lands,  lying  within  300  feet  on  either  side  of  the  street,  were 
actually  benefited,  was  delegated  to  commissioners.    But  in  the  statute 

i  As  to  differences  in  this  respect  between  legislative  determinations  and 
those  of  subordinate  bodies,  see  Fallbrook  Irrig.  Dist.  v.  Bradley,  1G4  U.  S. 
112,  174,  175,  17  Sup.  Ct.  50.  41  L.  Ed.  309  (1896) ;  Parsons  v.  Dist.  of  Colum- 
bia, 170  U.  S.  45,  52,  IS  Sup.  Ct.  521,  42  L.  Ed.  943  (1S9S);  Wicrht  v.  David- 
son, 1S1  U.  S.  371,  3S4,  3S5,  21  Sup.  Ct.  616,  45  L.  Ed.  900  (1901).  Compare 
Commonwealth  v.  Sisson,  ante,  p.  309,  note. 

2  See  Matter  of  Van  Antwerp.  56  N.  Y.  261  (1S74),  where  a  local  assess- 
ment, invalid  for  failure  to  obtain  certain  consents,  was  reassessed  directly 
by  the  legislature  upon  the  same  property  for  exactly  two-thirds  of  the  pre- 
vious assessment  upon  each  specific  parcel. 


CI).  UJ  due  trocess  and  equality:    taxation  645 

of  18S1  the  legislature  itself  determined  what  lands  were  benefited 
and  should  be  assessed.  By  this  statute  the  legislature,  in  substance 
and  effect,  assumed  that  all  the  lands  within  the  district  defined  in  the 
statute  of  1869  were  benefited  in  a  sum  equal  to  the  amount  of  the 
original  assessment,  the  expense  of  levying  it,  and  interest  thereon ; 
and  determined  that  the  lots  upon  which  no  part  of  that  assessment 
had  been  paid,  and  which  had  therefore  as  yet  borne  no  share  of  the 
burden,  were  benefited  to  the  extent  of  a  certain  portion  of  this  sum. 
That  these  lots  as  a  whole  had  been  benefited  to  this  extent  was  con- 
clusively settled  by  the  legislature.  The  statute  of  1881  afforded  to 
the  owners  notice  and  hearing  upon  the  question  of  the  equitable  ap- 
portionment among  them  of  the  sum  directed  to  be  levied  upon  all 
of  them,  and  thus  enabled  them  to  contest  the  constitutionality  of  the 
statute ;  and  that  was  all  the  notice  and  hearing  to  which  they  were 
entitled. 

It  is  objected  to  the  validity  of  the  new  assessment,  that  it  included 
interest  upon  the  unpaid  part  of  the  old  assessment,  and  a  propor- 
tionate part  of  the  expense  of  levying  that  assessment.  But,  as  to 
these  items,  the  case  does  not  substantially  differ  from  what  it  would 
have  been  if  a  sum  equal  to  the  whole  of  the  original  assessment,  in- 
cluding the  expense  of  levying  it,  and  adding  the  interest,  had  been 
ordered  by  the  statute  of  1881  to  be  levied  upon  all  the  lands  within 
the  district,  allowing  to  each  owner  who  had  already  paid  his  share  of 
the  original  assessment  a  credit  for  the  sum  so  paid  by  him,  with  in- 
from  the  time  of  payment. 

Judgment  affirmed.* 

[Matthews,  J.,  gave  a  dissenting  opinion,  in  which  Harlan,  J., 
concurred.] 

»  Within  the  principle  of  the  two  preceding  cases  the  legislature  may  of 
course  create  a  municipal  corporation  solelj  nr  chiefly  us  a  taxing  district 
for  some  specific  purpose  or  purposes.  Fallbroob  Irrig.  Dlst,  v.  Bradley,  104 
rj,  S.  112,   171.   17."..   17  Sup.  Ct  56    H    I  1896)  (Irrigation  district); 

Williams  v.  EggleBtOB,  170  D.  S.  ?.04,  18  Sup.  Ot  017,  42  L.  Kd.  1047  (1898) 
(five  towns  combined  into  a  bridge  district).  In  the  list  case.  Brewer,  J.,  said: 
"Neither  cun  it  be  doubted  that,  if  the  state  Constitution  does  not  prohibit. 
the  legislature,  speaking  generally,  maj  create  b  new  taxing  district,  deter 
mine  what  territory  shall  belong  to  sn  and  what   proper! 

be  considered  as  benefited  by  a  proposed  Improvement."  170  U.  S.  :,11,  1^ 
Sup.  Ct  618,  41!  L.  Ed.  1047. 

"Unless  there  be  some  specific  provlsli  as  In  the  state  Constitution  compelling 
other  action,  the  state  may  treat  rrltory  as  composing  but  a  single 

taxing  district,  and  deal  with  all  property  as  within  the  district  and  subject 
to  ta  atlon  accordingly.  There  is  im  magic  in  county  organization,  no  in- 
herent necessity  of  dividing  the  state  into  small  taxing  districts." — Brewer,  J  . 
In  Mich.  cm.  By.  v.  Powers,  201  0.  S.  245,  299,  26  Sup.  Ot  469,  466,  50  I. 
Ed.  744  (11)00). 

QOl  a  constitutional  objection  save  in  a  very  cross  or  unusual  cat 
the  public  Improvement,  for  the  creation  of  wl  Ich  a  taxing  district  i 
established,  will  also  largely  ben  I  and  property  outside  of  the  dis 

fcrict  Walker  v.  Cincinnati.  21  oiiio  St.  14,  8  Am.  Rep.  24  (1871)  (railroad  lo- 
cated i  ali  Bj  outside  ol  dty  building  It  ;  "<■  bile  v.  Kimball,  102  0.  S.  691,  26  L 
Ed.  23S  (1SS0)  (improvement  of  state  harbor  by  one  count}-  where  located); 


646  FUNDAMENTAL    RIGHTS  (Part  2 

PEOPLE  ex  rel.  GRIFFIN  v.  MAYOR,  ETC.,  OF  BROOKLYN. 
(Court  of  Appeals  of  New  York,  1851.    4  N.  Y.  419,  55  Am.  Dec.  266.) 

[Appeal  from  the  Supreme  Court  of  New  York.  Under  the  city 
charter  of  Brooklyn,  Flushing  avenue  in  that  city  was  graded  and 
paved  at  an  expense  of  over  $20,000,  which  was  assessed  upon  the 
lands  benefited  by  the  improvement  in  proportion  to  the  amount  of 
such  benefit.  Griffin  and  others  caused  the  confirmation  of  the  as- 
sessment to  be  removed  on  certiorari  to  the  Supreme  Court,  where 
the  assessment  was  annulled  as  unconstitutional.  This  appeal  was  then 
taken.] 

Ruggles,  J.  *  *  *  If  there  be  any  sound  objection  to  the  assess- 
ment as  a  tax,  it  must  be  an  objection  which  applies  to  the  principle 
on  which  the  tax  is  apportioned;  because  the  object  for  which  the 
money  was  to  be  raised  is,  without  dispute,  one  for  which  taxation 
by  a  different  rule  of  apportionment  would  have  been  lawful.  *  *  * 
It  must  be  conceded  that  the  power  of  taxation  and  of  apportioning 
taxation,  or  of  assigning  to  each  individual  his  share  of  the  burden,  is 
vested  exclusively  in  the  legislature,  unless  this  power  is  limited  or 
restrained  by  some  constitutional  provision.  The  power  of  taxing 
and  the  power  of  apportioning  taxation  are  identical  and  inseparable. 
Taxes  cannot  be  laid  without  apportionment:  and  the  power  of  ap- 
portionment is  therefore  unlimited,  unless  it  be  restrained  as  a  part  of 
the  power  of  taxation. 

There  is  not,  and  since  the  original  organization  of  the  state  govern- 
ment there  has  not  been,  any  such  constitutional  limitation  or  restraint. 
The  people  have  never  ordained  that  taxation  must  be  limited  or  regu- 
lated by  any  or  either  of  the  rules  laid  down  by  the  Supreme  Court  in 
the  case  of  People  v.  Mayor  of  Brooklyn,  6  Barb.  209,  or  in  the 
case  now  under  consideration.    They  have  not  ordained  that  taxation 

Gordon  v.  Cornes,  47  N.  Y.  608  (1872)  (erection  of  state  normal  school  by  vil- 
lage where  located).  In  the  last  case,  it  was  admitted  that  it  might  be  in- 
valid, "for  instance,  if  the  general  expenses  of  the  government  of  the  state, 
or  of  one  of  its  municipal  divisions,  should  be  levied  upon  the  property  of 
an  individual  or  set  of  individuals,  or  perhaps  upon  a  particular  district. 
Oases  of  this  description  might  be  imagined  in  which  an  act  would  fall  with- 
in the  express  prohibitions  of  the  Constitution.  But  to  raise  the  constitu- 
tional question  would  require  an  extreme  case,  where  no  apportionment  of 
the  tax  with  reference  to  benefit  should  be  attempted,  and  no  discretion  on 
the  subject  exercised,  but  one  set  of  individuals  or  one  district  should  be 
confessedly  and  arbitrarily  required  to  pay  for  benefits  conferred  upon  others 
who  bore  no  proportion  of  the  burden.  No  such  question  arises  where  a 
tax  is  imposed  upon  a  particular  locality  to  aid  in  a  public  purpose  which 
the  legislature  may  reasonably  regard  as  a  benefit  to  that  locality  as  well 
as  to  the  state  at  large."— 17  X.  Y.  612,  by  Rapallo,  J. 

A  special  assessment  in  part  payment  of  a  public  improvement  cannot  be 
levied  solely  upon  such  parcels  of  land  as  may  chance  to  have  been  partly 
taken  for  such  improvement,  even  though  limited  to  the  amount  of  the  ben- 
t-tit to  the  untaketi  remainders  of  such  parcels.  Matter  of  New  York,  190  N. 
Y.  350,  83  N.  E.  299,  16  L.  R.  A.  (N.  S.)  335,  13  Ann.  Cas.  598  (1907). 


Ch.  11)  DUE  PROCESS  AND  i:ij(  ai.itv:     TAXATION  017 

shall  be  general,  so  as  to  embrace  all  persons  or  all  taxable  persons 
within  the  state,  or  within  any  district,  or  territorial  division  of  the 
state;  nor  that  it  shall  or  shall  not  be  numerically  equal,  as  in  the  case 
of  a  capitation  tax ;  nor  that  it  must  be  in  the  ratio  of  the  value  of  each 
man's  land,  or  of  his  goods,  or  of  both  combined;  nor  that  a  tax 
"must  be  co-extensive  with  the  district,  or  upon  all  the  property  in  a 
district  which  has  the  character  of  and  is  known  to  the  law  as  a  local 
sovereignty."  Nor  have  they  ordained  or  forbidden  that  a  tax  shall 
be  apportioned  according  to  the  benefit  which  each  tax-payer  is  sup- 
posed to  receive  from  the  object  on  which  the  tax  is  expended.  In 
all  these  particulars  the  power  of  taxation  is  unrestrained. 

The  application  of  any  one  of  these  rules  or  principles  of  apportion- 
ment, to  all  cases,  would  be  manifestly  oppressive  and  unjust.  Either 
may  be  rightfully  and  wisely  applied  to  the  particular  exigency  to 
which  it  is  best  adapted. 

Taxation  is  sometimes  regulated  by  one  of  these  principles,  and 
sometimes  by  another;  and  very  often  it  has  been  apportioned  without 
reference  to  locality  or  to  the  tax-payer's  ability  to  contribute,  or  to 
any  proportion  between  the  burden  and  the  benefit.  The  excise  laws, 
and  taxes  on  carriages  and  watches,  are  among  the  many  examples  of 
this  description  of  taxation.  Some  taxes  affect  classes  of  inhabitants 
only.  All  duties  on  imported  goods  are  taxes  on  the  class  of  con- 
sumers. The  tax  on  one  imported  article  falls  on  a  large  class  of 
consumers,  while  the  tax  on  another  affects  comparatively  a  few  indi- 
viduals. The  duty  on  one  article  consumed  by  one  class  of  inhabitants 
is  twenty  per  cent  of  its  value;  while  on  another,  consumed  by  a  dif- 
ferent class,  it  is  forty  per  cent.  The  duty  on  one  foreign  commodity 
is  laid  for  the  purpose  of  revenue  mainly,  without  reference  to  the 
ability  of  its  consumers  to  pay;  as  in  the  case  of  the  duty  on  salt. 
The  duty  on  another  is  laid  for  the  purpose  of  encouraging  domestic 
manufactures  of  the  same  article;  thus  compelling  the  consumer  to 
pay  a  higher  price  to  one  man  than  he  could  otherwise  have  bought  the 
article  for,  from  another.  These  discriminations  may  be  impolitic, 
and  in  some  cases  unjust;  but  if  the  power  of  taxation  upon  importa- 
tions had  not  been  transferred  by  the  people  of  this  state  to  the  i 
government,  there  could  have  been  no  pretence  for  declaring  them  to 
be  unconstitutional  in  state  legislation. 

A  property  tax  for  the  general  purposes  of  the  government,  either 
of  the  state  at  large  or  of  a  county,  city,  or  other  district,  is  regarded 
as  a  just  and  equitable  tax.  The  reason  is  obvious.  It  apportions  tin- 
burden  according  to  the  benefit  more  nearly  than  any  other  inflexible 
rule  of  general  taxation.  A  rich  man  derives  more  benefit  from  taxa 
tion,  in  the  protection  and  improvement  of  his  property,  than  a  poor 
man,  and  ought  therefore  to  pay  more.  But  the  amount  of  each  man's 
benefit  in  general  taxation  cannot  be  ascertained  and  estimated  with 
any  degree  of  certainty;  and  for  that  reason  a  property  tax  is  adopted 
instead  of  an  estimate  of  benefits.     In  local  taxation,  however,  for 


648  FUNDAMENTAL    EIGHTS  (Part  2 

special  purposes,  the  local  benefits  may  in  many  cases  be  seen,  traced, 
and  estimated  to  a  reasonable  certainty.  At  least  this  has  been  sup- 
posed and  assumed  to  be  true  by  the  legislature,  whose  duty  it  is  to 
prescribe  the  rules  on  which  taxation  is  to  be  apportioned ;  and  whose 
determination  of  this  matter,  being  within  the  scope  of  its  lawful 
power,  is  conclusive. 

In  the  case  of  People  v.  Brooklyn,  before  referred  to,  it  was  said 
that  a  tax  to  be  valid  must  be  apportioned  "upon  principles  of  just 
equality,"  and  upon  all  the  property  in  the  same  political  district;  and 
that  this  is  a  fundamental  principle  of  free  government,  which,  al- 
though not  contained  in  the  Constitution,  limits  and  controls  the  power 
of  the  legislature.  This  is  new  and  it  seems  to  me  to  be  dangerous 
doctrine.  It  clothes  the  judicial  tribunals  with  the  power  of  trying 
the  validity  of  a  tax  by  a  test  neither  prescribed  nor  defined  by  the 
Constitution.  If  by  this  test  we  may  condemn  an  assessment  appor- 
tioned according  to  the  relation  between  burden  and  benefit,  we  may 
with  far  better  reason  condemn  a  capitation  tax  on  the  ground  that 
numerical  equality  is  not  just  equality ;  or  a  general  property  tax, 
for  a  local  object,  because  it  compels  one  portion  of  the  community  to 
pay  more  than  their  just  share  for  the  benefit  of  another  portion.  All 
discriminations  in  the  taxation  of  property,  and  all  exemptions  from 
taxation  on  grounds  of  public  policy,  would  fall  by  the  application  of 
this  test.  If  this  doctrine  prevails  it  places  the  power  of  the  courts 
above  that  of  the  legislature  in  a  matter  affecting  not  only  the  vital 
interests,  but  the  very  existence  of  the  government.  It  assumes  that 
the  apportionment  of  taxation  is  to  be  regulated  by  judicial  and  not  by 
legislative  discretion.  It  obstructs  the  exercise  of  powers  which  be- 
long to,  and  are  inherent  in  the  legislative  department,  and  restrains 
the  action  of  that  branch  of  the  government  in  cases  in  which  the  Con- 
stitution has  left  it  free  to  act.    *    *    * 

But  there  never  was  any  just  foundation  for  saying  that  local  taxa- 
tion must  necessarily  be  limited  by  or  co-extensive  with  any  previously 
established  district.  It  is  wrong  that  a  few  should  be  taxed  for  the 
benefit  of  the  whole ;  and  it  is  equally  wrong  that  the  whole  should  be 
taxed  for  the  benefit  of  a  few.  No  one  town  ought  to  be  taxed  exclu- 
sively for  the  payment  of  county  expenses ;  and  no  county  should  be 
taxed  for  the  expenses  incurred  for  the  benefit  of  a  single  town.  The 
same  principle  of  justice  requires  that  where  taxation  for  any  local 
object  benefits  only  a  portion  of  a  city  or  town,  that  portion  only 
should  bear  the  burden.  There  being  no  constitutional  prohibition, 
the  legislature  may  create  a  district  for  that  special  purpose,  or  they 
may  tax  a  class  of  lands  or  persons  benefited,  to  be  designated  by  the 
public  agents  appointed  for  that  purpose,  without  reference  to  town, 
county,  or  district  lines.  General  taxation  for  such  local  objects  is 
manifestly  unjust.  It  burdens  those  who  are  not  benefited,  and  bene- 
fits those  who  are  not  burdened.  This  injustice  has  led  to  the  substi- 
tution of  street  assessments  in  place  of  general  taxation;  and  it  seems 


Ch.  11;  DDE  PROCESS  AND  EQUALITY:     TAXATION  649 

impossible  to  deny  that  in  the  theory  of  their  apportionment  they  are 
far  more  equitable  than  general  taxation  for  the  purpose  they  are 
designed  for.     *     *     * 

The  difference  between  general  taxation  and  special  assessments  for 
local  objects  requires  that  they  should  be  distinguished  by  different 
names,  although  both  derive  their  authority  from  the  taxing  power. 
They  have  always  been  so  distinguished,  and  it  is  therefore  evident 
that  the  word  "tax"  may  be  used  in  a  contract,  or  in  a  statute,  in  a 
sense  which  would  not  include  a  street  assessment,  or  any  other  local 
or  special  taxation  within  its  meaning.  Several  cases  are  found  in 
which  it  has  been  adjudged  to  have  been  so  used.  But  in  no  case  has 
it  been  adjudged  that  street  assessments  are  not  made  by  virtue  of  the 
legislative  taxing  power.1  If  there  are  expressions  to  the  contrary,  in 
some  of  the  cases,  it  will  be  found  that  they  are  dicta  inapplicable  to 
the  point  decided ;  or  if  applicable,  that  they  were  unnecessary  to  the 
decision,  and  not  well  considered.     *    *    * 

Judgment  reversed.2 


VILLAGE   OF   NORWOOD  v.   BAKER. 

(Surreme  Court  of  United  States,   ls'.is.     172  D.   S.  269,   19  Sup.   Ct.  187,  43 
L.  Ed.  44.'!.) 

[Appeal  from  the  United  States  Circuit  Court  for  Southern  Dis- 
trict of  Ohio.  Ohio  cities  and  villages  were  empowered  by  statute  to 
open  streets,  and  to  assess  such  part  of  the  cost  thereof  as  they 
.  pleased  by  the  front  foot  upon  property  bounding  and  abutting 
thereon.  A  street  300  feet  long  and  50  feet  wide  was  opened  by  the 
village  of  Norwood  through  a  large  tract  of  land  owned  by  Ellen 
Baker,  who,  being  the  sole  owner  of  all  abutting  property,  was  re- 
quired under  this  statute  to  pay  the  whole  cost  thereof,  including  tin- 
expenses  of  condemnation  proceedings.  Baker  obtained  an  injunc- 
tion in  the  above-named  Circuit  Court  against  the  enforcement  of 
this  assessment,  as  depriving  her  of  due  process  of  law  under  the 
fourteenth  amendment,  and  this  appeal  was  taken.] 

Mr.    Justice    Harlan.     *     *     *     Undoubtedly,  .abutting    owner* 

i  \  cord:  Fallbrook  irri?.  Dlst.  v.  Bradley,  164  U.  S.  112.  176,  it  Sup.  Ct. 
66,  41  I..  Ed.  ■■V'O  (lsOO). 

=  ii  is  usually  held  that  general  provisions  in  state  Constitutions  requiring 
equality  and  uniformity  in  taxation,  or  that  nil  property  I  tor  tax- 

es, do  not  apply   to  local   a-  il    taxation. 

on,  12  Allen  (Mass.)  223  (1866);    Uotz  v.  Detroit,  is  Mich.  495 
. .  Treasurer,  8  i  )hlo  St 
tax  exemptions,    ill.  Cent.  It.  rt.  v.  Decatur,  l  it  D.  8.  190,  13  - 
I,.   Eid,   L32  (1893).     In  Tennessee  and  South  Carolina,  however,  the  C 
Uons  are  Interpreted  to  forbid  all  local  a«  according  to  I 

Iteelfoot  Lake  Dist.  v.  Dawson.  97    I  36  3.  W.   1041,  34  L,  It.  A.  725 

(1896);    Mauldin  v.  Creenvllle,   I-  20  8.  BL  B42,  27  L.   R.  A 

Am.  St.   Rep.  723  (1895);    id.,  :.:;   -  48  L.  U.  A.  101,  «» 

Aw.   St.   Rep.  805  Ui><JS). 


650  FUNDAMENTAL    RIGHTS  (Part  2 

may  be  subjected  to  special  assessments  to  meet  the  expenses  of  open- 
ing public  highways  in  front  of  their  property ;  such  assessments,  ac- 
cording to  well-established  principles,  resting  upon  the  ground  that  spe- 
cial burdens  may  be  imposed  for  special  or  peculiar  benefits  accruing 
from  public  improvements.  Mobile  Co.  v.  Kimball,  102  U.  S.  691,  703, 
704,  26  L.  Ed.  238;  Railroad  Co.  v.  Decatur,  147  U.  S.  190,  202,  13 
Sup.  Ct.  293,  37  L.  Ed.  132;  Bauman  v.  Ross,  167  U.  S.  548,  589,  17 
Sup.  Ct.  966,  42  L.  Ed.  270,  and  authorities  there  cited.  And,  accord- 
ing to  the  weight  of  judicial  authority,  the  legislature  has  a  large  discre- 
tion in  defining  the  territory  to  be  deemed  specially  benefited  by  a  pub- 
lic improvement,  and  which  may  be  subjected  to  special  assessment  to 
meet  the  cost  of  such  improvement.  In  Williams  v.  Eggleston,  170 
U.  S.  304,  311,  18  Sup.  Ct.  619,  42  L.  Ed.  1047,  where  the  only  ques- 
tion, as  this  court  stated,  was  as  to  the  power  of  the  legislature  to 
cast  the  burden  of  a  public  improvement  upon  certain  towns,  which 
had  been  judicially  determined  to  be  towns  benefited  by  such  improve- 
ment, it  was  said:  "Neither  can  it  be  doubted  that,  if  the  state  con- 
stitution does  not  prohibit,  the  legislature,  speaking  generally,  may 
create  a  new  taxing  district,  determine  what  territory  shall  belong  to 
such  district,  and  what  property  shall  be  considered  as  benefited  by  a 
proposed  improvement." 

But  the  power  of  the  legislature  in  these  matters  is  not  unlimited. 
There  is  a  point  beyond  which  the  legislative  department,  even  when 
exerting  the  power  of  taxation,  may  not  go,  consistently  with  the  cit- 
izen's right  of  property.  As  already  indicated,  the  principle  under- 
lying special  assessments  to  meet  the  cost  of  public  improvements  is 
that  the  property  upon  which  they  are  imposed  is  peculiarly  benefited, 
and,  therefore,  the  owners  do  not,  in  fact,  pay  anything  in  excess  of 
what  they  receive  by  reason  of  such  improvement.  But  the  guaranties 
for  the  protection  of  private  property  would  be  seriously  impaired, 
if  it  were  established  as  a  rule  of  constitutional  law  that  the  imposition 
by  the  legislature  upon  particular  private  property  of  the  entire  cost 
of  a  public  improvement,  irrespective  of  any  peculiar  benefits  accruing 
to  the  owner  from  such  improvement,  could  not  be  questioned  by  him 
in  the  courts  of  the  country.  It  is  one  thing  for  the  legislature  to 
prescribe  it  as  a  general  rule  that  property  abutting  on  a  street  opened 
by  the  public  shall  be  deemed  to  have  been  specially  benefited  by  such 
improvement,  and,  therefore,  should  specially  contribute  to  the  cost 
incurred  by  the  public.  It  is  quite  a  different  thing  to  lay  it  down  as 
an  absolute  rule  that  such  property,  whether  it  is  in  fact  benefited  or 
not  by  the  opening  of  the  street,  may  be  assessed  by  the  front  foot 
for  a  fixed  sum,  representing  the  whole  cost  of  the  improvement,  and 
without  any  right  in  the  property  owner  to  show,  when  an  assessment 
of  that  kind  is  made,  or  is  about  to  be  made,  that  the  sum  so  fixed  is 
in  excess  of  the  benefits  received. 

In  our  judgment,  the  exaction  from  the  owner  of  private  property 
of  the  cost  of  a  public  improvement  in  substantial  excess  of  the  special 


Ch.  11)  DTTE    PBOCBSa   AND   BQCALITZ:     TAXATION  031 

benefits  accruing  to  him  is,  to  the  extent  of  such  excess,  a  taking,  un- 
der the  guise  of  taxation,  of  private  property  for  public  use  without 
compensation.  We  say  "substantial  excess,"  because  exact  equality  of 
taxation  is  not  always  attainable;  and  for  that  reason  the  excess  of 
cost  over  special  benefits,  unless  it  be  of  a  material  character,  ought 
not  to  be  regarded  by  a  court  of  equity,  when  its  aid  is  invoked  to  re- 
strain the  enforcement  of  a  special  assessment.     *     *     * 

It  will  not  escape  observation  that  if  the  entire  cost  incurred  by  a 
municipal  corporation  in  condemning  land  for  the  purpose  of  opening 
or  extending  a  street  can  be  assessed  back  upon  the  abutting  property, 
without  inquiry  in  any  form  as  to  the  special  benefits  received  by  the 
owner,  the  result  will  be  more  injurious  to  the  owner  than  if  he  had 
been  required,  in  the  first  instance,  to  open  the  street  at  his  own  cost, 
without  compensation  in  respect  of  the  land  taken  for  the  street ; 
for,  by  opening  the  street  at  his  own  cost,  he  might  save  at  least  the 
expense  attending  formal  proceedings  of  condemnation.  It  cannot 
be  that  any  such  result  is  consistent  with  the  principles  upon  which 
rests  the  power  to  make  special  assessments  upon  property  in  order 
to  meet  the  expense  of  public  improvements  in  the  vicinity  of  such 
property. 

The  views   we  have  expressed  are  supported   by  other  adji 
cases,  as  well  as  by  reason,  and  by  the  principles  which  must  be 
nized  as  essential  for  the  protection  of  private  property  against  the 
arbitrary   action   of    government.     The    importance    of    the    question 
before  us  renders  it  appropriate  to  refer  to  some  of  those  ca 

In  Agens  v.  Mayor,  etc.,  of  Newark,  37  N.  J.  Law,  416,  420-423. 
18  Am.  Rep.  729,  the  question  arose  as  to  the  validity  of  an  assess- 
ment of  the  expenses  incurred  in  repairing  the  roadbed  of  a  portion 
of  one  of  the  streets  of  the  city  of  Newark.  The  assessment  was 
made  in  conformity  to  a  statute  that  undertook  to  fix,  at  the  mere 
will  of  the  legislature,  the  ratio  of  expense  to  be  put  upon  the  owners 
of  property  along  the  line  of  the  improvement.  Chief  Justice  Beaslcy, 
speaking  for  the  court  of  errors  and  appeals,  said:  "The  doctrine  that 
it  is  competent  for  the  legislature  to  direct  the  expense  of  opening, 
paving,  or  improving  a  public  street,  or  at  least  some  part  of  such 
expense,  to  be  put  as  a  special  burthen  on  the  property  in  the  neigh- 
borhood of  such  improvement,  cannot,  at  this  day,  be  drawn  in 
tion.  There  is  nothing  in  the  constitution  of  this  state  that  requires 
that  all  property  in  the  state,  or  in  any  particular  subdivision  of  the 
state,  must  be  embraced  in  the  operation  of  every  law  levying  a  tax. 
That  the  effect  of  such  laws  may  not  extend  beyond  certain  prescribed 
limits  is  perfectly  indisputable.  It  is  upon  this  principle  that  taxes 
raised  in  counties,  townships,  and  cities  are  vindicated.  But,  while 
it  is  thus  clear  that  the  burthen  of  a  particular  tax  may  be  placed  ex- 
clusively on  any  political  district  to  whose  benefit  such  tax  is  to  inure, 
it  seems  to  me  it  is  equally  clear  that,  when  such  burthen  is  sought  to 
be  imposed  on  particular  lands,  not  in  themselves  constituting  a  po- 


652  FUNDAMENTAL    RIGHTS  (Part  2 

litical  subdivision  of  the  state,1  we  at  once  approach  the  line  which 
is  the  boundary  between  acts  of  taxation  and  acts  of  confiscation.  I 
think  it  impossible  to  assert,  with  the  least  show  of  reason,  that  the 
legislative  right  to  select  the  subject  of  taxation  is  not  a  limited  right. 
For  it  would  seem  much  more  in  accordance  with  correct  theory  to 
maintain  that  the  power  of  selection  of  the  property  to  be  taxed  can- 
not be  contracted  to  narrower  bounds  than  the  political  district  within 
which  it  is  to  operate,  than  that  such  power  is  entirely  illimitable.  If 
such  prerogative  has  no  trammel  or  circumscription,  then  it  follows 
that  the  entire  burthen  of  one  of  these  public  improvements  can  be 
placed,  by  the  force  of  the  legislative  will,  on  the  property  of  a  few 
enumerated  citizens,  or  even  on  that  of  a  single  citizen.  In  a  gov- 
ernment in  which  the  legislative  power  is  not  omnipotent,  and  in 
which  it  is  a  fundamental  axiom  that  private  property  cannot  be  taken 
without  just  compensation,  the  existence  of  an  unlimited  right  in  the 
lawmaking  power  to  concentrate  the  burthen  of  tax  upon  specified 
property  does  not  exist.  If  a  statute  should  direct  a  certain  street  in 
a  city  to  be  paved,  and  the  expense  of  such  paving  to  be  assessed  on 
the  houses  standing  at  the  four  corners  of  such  street,  this  would 
not  be  an  act  of  taxation,  and  it  is  presumed  that  no  one  would  as- 
sert it  to  be  such.  If  this  cannot  be  maintained,  then  it  follows  that 
it  is  conceded  that  the  legislative  power  in  question  is  not  completely 
arbitrary.  It  has  its  limit,  and  the  only  inquiry  is  where  that  limit 
is  to  be  placed." 

After  referring  to  a  former  decision  of  the  same  court,  in  which 
it  was  said  that  special  assessments  could  be  sustained  upon  the  the- 
ory that  the  party  assessed  was  locally  and  peculiarly  benefited  above 
the  ordinary  benefit  which  as  one  of  the  community  he  received  in  all 
public  improvements,  the  opinion  proceeds:  "It  follows,  then,  that 
these  local  assessments  are  justifiable  on  the  ground  above, — that  the 
locality  is  especially  to  be  benefited  by  the  outlay  of  the  money  to  be 
raised.  Unless  this  is  the  case,  no  reason  can  be  assigned  why  the 
tax  is  not  general.  An  assessment  laid  on  property  along  a  city  street 
for  an  improvement  made  in  another  street,  in  a  distant  part  of  the 
same  city,  would  be  universally  condemned,  both  on  moral  and  legal 
grounds.  And  yet  there  is  no  difference  between  such  an  extortion 
and  the  requisition  upon  a  landowner  to  pay  for  a  public  improvement 
over  and  above  the  exceptive  benefit  received  by  him.  It  is  true  that 
the  power  of  taxing  is  one  of  the  high  and  indispensable  prerogatives 
of  the  government,  and  it  can  be  only  in  cases  free  from  all  doubt 
that  its  exercise  can  be  declared  by  the  courts  to  be  illegal.    But  such 

i  The  New  Jersey  courts  have  defined  a  political  district,  to  whose  bound- 
aries a  general  tax  may  be  confined,  as  a  division  of  the  state  with  its  in- 
habitants, organized  with  the  chief  design  of  exercising  governmental  pow- 
ers and  to  the  electors  of  which  to  some  extent  is  committed  the  power  of 
local  government.  State  v.  Englewood  41  N.  J.  Law,  154  (1879).  For  an 
application  of  this,  see  Allison  v.  Corker,  67  N.  J.  Law,  596,  52  Atl.  362,  60 
L.  R.  A.  564  (1902). 


Ch.  11)  DUE  PE0CB8S  AND  equality:    TAXATION 

a  case,  if  it  can  ever  arise,  is  certainly  presented  when  a  property  is 
specified,  out  of  which  a  public  improvement  is  to  be  paid  for  in  ex- 
cess of  the  value  specially  imparled  to  it  by  such  improvement.  As 
to  such  excess,  I  cannot  distinguish  an  act  exacting  its  payment  from 
the  exercise  of  the  power  of  eminent  domain.  In  case  of  taxation  the 
citizen  pays  his  quota  of  the  common  burthen.  When  his  land  is 
sequestered  for  the  public  use,  he  contributes  more  than  such  quota, 
and  this  is  the  distinction  between  the  effect  of  the  exercise  of  the 
taxing  power  and  that  of  eminent  domain.  When,  then,  the  overplus 
beyond  benefits  from  these  local  improvements  is  laid  upon  a  few 
landowners,  such  citizens,  with  respect  to  such  overplus,  are  required 
to  defray  more  than  their  share  of  the  public  outlay,  and  the  coercive 
act  is  not  within  the  proper  scope  of  the  power  to  tax."     *     *     * 

The  present  case  is  not  one  in  which  (as  in  most  of  the  cases 
brought  to  enjoin  the  collection  of  taxes  or  the  enforcement  of  spe- 
cial assessments)  it  can  be  plainly  or  clearly  seen,  from  the  showing 
made  by  the  pleadings,  that  a  particular  amount,  if  no  more,  is  due 
from  the  plaintiff,  and  which  amount  should  be  paid  or  tendered  be- 
fore equity  would  interfere.  It  is  rather  a  case  in  which  the  entire 
assessment  is  illegal.  In  such  a  case  it  was  not  necessary  to  tender, 
as  a  condition  of  relief  being  granted  to  the  plaintiff,  any  sum,  as  rep- 
resenting what  she  supposed,  or  might  guess,  or  was  willing  to  con- 
cede, was  the  excess  of  cost  over  any  benefits  accruing  to  the  prop- 
erty. She  was  entitled,  without  making  such  a  tender,  to  ask  a  court 
of  equity  to  enjoin  the  enforcement  of  a  rule  of  assessment  that  in- 
fringed upon  her  constitutional  rights.  *  *  *  [Parsons  v.  Dist. 
of  Columbia.  170  U.  S.  45,  18  Sup.  Ct.  521,  42  L.  Ed.  943,  and 
Spencer  v.  Merchant,  125  U.  S.  345,  8  Sup.  Ct.  921,  31  L.  Ed.  763, 
are  here  discussed  and  held  not  inconsistent  with  this  opinion.] 

We  have  considered  the  question  presented  for  our  determination 
with  reference  only  to  the  provisions  of  the  national  Constitution. 
But  we  are  also  of  opinion  that,  under  any  view  of  that  question  dif- 
ferent from  the  one  taken  in  this  opinion,  the  requirement  of  the 
Constitution  of  Ohio  that  compensation  be  made  for  private  property 
taken  for  public  use,  and  that  such  compensation  must  be  assessed 
"without  deduction  for  benefits  to  any  property  of  the  owner."  would 
be  of  little  practical  value,  if,  upon  the  opening  of  a  public  street 
through  private  property,  the  abutting  property  of  the  owner, 
land  was  taken  for  the  street,  can,  under  legislative  authority,  be 
assessed,  not  only  for  such  amount  as  will  he  equal  to  the  benefits  re- 
ceived, but  for  such  additional  amount  as  will  meet  the  excess  of  ex- 
pense over  benefits. 

The  judgment  of  the  circuit  court  must  be  affirmed,  upon  the 
ground  that  the  assessment  against  the  plaintiff's  abutting  property 
was  under  a  rule  which  iny  inquiry  as  to  special  b 

and  the  necessary  operation  of  which  was.  to  the  extent  of  the  ex- 
cess of  the  cost  of  opening  the  street  in  question  over  any  special 


654  FUNDAMENTAL    RIGHTS  (Part    2 

benefits  accruing  to  the  abutting  property  therefrom,  to  take  private 
property  for  public  use  without  compensation. 

It  is  so  ordered. 

Mr.  Justice  Brewer,  dissenting.  *  *  *  The  suggestion  that 
such  an  assessment  be  declared  void,  because  the  rule  of  assessment 
is  erroneous,  implies  that  it  is  prima  facie  erroneous  to  cast  upon  prop- 
erty abutting  upon  an  improvement  the  cost  thereof ;  that  a  legisla- 
tive act  casting  upon  such  abutting  property  the  full  cost  of  an  im- 
provement is  prima  facie  void ;  that,  being  prima  facie  void,  the 
owner  of  any  property  so  abutting  on  the  improvement  may  obtain  a 
decree  of  a  court  of  equity  canceling  in  toto  the  assessment,  without 
denying  that  his  property  is  benefited  by  the  improvement,  or  paying, 
or  offering  to  pay,  or  expressing  a  willingness  to  pay,  any  sum  which 
may  be  a  legitimate  charge  upon  the  property  for  the  value  of  the 
benefit  to  it  by  such  improvement. 

In  this  case  no  tender  was  made  of  any  sum,  no  offer  to  pay  the 
amount  properly  chargeable  for  benefits,  there  was  no  allegation  or 
testimony  that  the  legislative  judgment  as  to  the  area  benefited,  or 
the  amount  of  the  benefit,  was  incorrect,  or  that  other  property  was 
also  benefited;  and  the  opinion  goes  to  the  extent  of  holding  that  the 
legislative  determination  is  not  only  not  conclusive,  but  also  is  not  even 
prima  facie  sufficient,  and  that  in  all  cases  there  must  be  a  judicial 
inquiry  as  to  the  area  in  fact  benefited.  We  have  often  held  the  con- 
trary, and,  I  think,  should  adhere  to  those  oft-repeated  rulings. 

[Gray  and  Shiras,  JJ.,  also  dissented.]  " 

2  In  Baurnan  v.  Ross,  167  U.  S.  548,  5S9,  590,  17  Sup.  Ct.  966,  42  L.  Ed.  270 
(1897),  a  street  opening  case  in  the  District  of  Columbia,  where  one-half  the 
cost  thereof  was  to  be  assessed  on  lands  benefited  (without  restriction,  how- 
ever, to  the  amount  of  benefits),  it  was  said  by  Gray,  J.:  "The  legislature,  in 
the  exercise  of  the  right  of  taxation,  has  the  authority  to  direct  the  whole, 
or  such  part  as  it  may  prescribe,  of  the  expense  of  a  public  improvement, 
such  as  the  establishing,  the  widening,  the  grading,  or  the  repair  of  a  street, 
to  be  assessed  upon  the  owners  of  lands  benefited  thereby.  •  •  *  The 
class  of  lands  to  be  assessed  for  the  purpose  may  be  either  determined  by  the 
legislature  itself,  by  defining  a  territorial  district,  or  by  other  designation;  or 
it  may  be  left  by  the  legislature  to  the  determination  of  commissioners,  and 
be  made  to  consist  of  such  lands,  and  such  only,  as  the  commissioners  shall 
decide  to  be  benefited.  *  *  *  The  rule  of  apportionment  among  the  par- 
cels of  land  benefited  also  rests  within  the  discretion  of  the  legislature,  and 
may  be  directed  to  be  in  proportion  to  the  position,  the  frontage,  the  area, 
or  the  market  value  of  the  lands,  or  in  proportion  to  the  benefits  as  estimated 
by  commissioners."  See,  also,  Fallbrook  Irrig.  Dist.  v.  Bradley,  164  U.  S.  112, 
176,  177,  17  Sup.  Ct.  56,  41  L.  Ed.  369  (1S96). 

In  Parsons  v.  Dist.  of  Columbia,  170  U.  S.  45,  52,  IS  Sup.  Ct.  521.  42  L.  Ed. 
943  (1S9S),  it  was  said  by  Shiras,  J.:  "When  by  the  act  of  August  11,  1S94. 
congress  enacted  that  thereafter  assessments  levied  for  laying  water  mains 
in  the  District  of  Columbia  should  be  at  the  rate  of  $1.25  per  linear  front  foot 
against  all  lots  or  land  abutting  upon  the  street,  road  or  alley  in  which  a 
water  main  shall  be  laid,  such  act  must  be  deemed  conclusive  alike  of  the 
question  of  the  necessity  of  the  work,  and  of  the  benefits  as  against  abutting 
property.  To  open  such  questions  for  review  by  the  courts  on  the  petition  of 
any  or  every  property  holder  would  create  endless  confusion.  Where  the 
legislature  has  submitted  these  questions  for  inquiry  to  a  commission,  or  to 


Ch.  11)  DUE   PROCESS  AND   EQUALITY:     TAXATION  Goo 


CITY  OF  SEATTLE  v.  KELLEHER. 

(Supreme  Court  of  United  States,   1904.     195  U.   8.   351,  25   Sap.  Ct.  41,   49 
L.  Ed.  282.) 

[Appeal  from  the  federal  Circuit  Cor.rt  for  Washington.  Seattle,  by 
city  ordinance,  directed  a  certain  street  to  be  extended,  graded,  and 
planked.  At  the  time,  1890,  planking  was  by  the  city  charter  to  be 
paid  for  out  of  general  taxes.  The  assessment  levied  on  the  abutting 
owners  for  the  improvement  was  declared  void.  Later,  Kelleher,  a 
non-resident,  bought  part  of  the  abutting  land  without  notice  of 
these  proceedings.  In  1S93  a  reassessment  of  the  cost  of  the  improve- 
ment upon  lands  benefited  was  authorized  by  the  legislature,  inclu*!- 
ing-  the  cost  of  the  planking,  and  Kelleher's  share  amounted  to  over 
$14,000,  which  was  $5,000  more  than  it  would  have  been  under  the 
law  in  force  when  the  work  was  done.  The  Circuit  Court  enjoined 
the  enforcement  of  this  assessment.] 

Mr.  Justice  Holmes.  *  *  *  The  principles  of  taxation  are  not 
those  of  contract.     A  special  assessment  may  be  levied  upon  an  ex- 

offlclal  persons  to  be  appointed  under  municipal  ordinances  or  regulations,  the 
Inquiry  becomes  in  its  nature,  judicial  In  sin  h  a  sense  that  the  property  owner 
is  entitled  to  a  hearing,  or  to. notice  or  an  opportunity  to  lie  heard." 

in  French  v.  Barber  Asphalt  Co.,  1M  f.  s.  324,  21  Sup.  Ct  C2.~.  (5  L  Ed. 
sT'.>  (1901),  .-i  city  paving  tax  levied  by  the  front  foot,  as  in  Norwood  v.  Baker, 
without  inquiry  as  to  benefits,  was  upheld;  Harlan,  White,  and  MeKenna, 
.t.i.,  dissenting.  To  the  same  effect  is  a  series  of  cases  in  181  r.  s.  :i7l-ioi. 
21  Sup.  ct.  609,  616-624,  644,  645,  15  I-.  Ed.  900-925.  See.  also,  Kin.-  v.  Port- 
land, 184  I',  s.  61,  22  Sup.  Ct  290,  "'.  I..  Ed  1:1  (1002);  Seattle  v.  Kelleher. 
195  D.  S.  351,  25  Sup.  Ct.  41,  1!>  L.  Ed.  232  (1001);  I.,  ft  N.  K.  It.  v.  Barber 
Asphalt  Co.,  107    U.   S.    i::o.  25  Sup.  Ct.  4  I   Martin 

v.  Dist  of  Columbia,  205  U.  S.  135,  27  Sup.  ct.  440,  ."1  L.  Ed.  743  (1907).  In 
the  last  case,  where  the  expense  of  widening  alleys  in  any  square  was  im 
posed  upon  land  benefited  in  that  square,  Bolmes,  ,r.,  said  1205  u.  B.  138  140, 
27  Sup.  Ct.  Ill,  51  L.  Ed.  743):  "The  law  is  not  a  legislative  adjudication 
concerning  a  particular  place  and  a  particular  plan,  like  the  one  before  the 
In  Wighl  v.  Davidson,  181  0.  S.  371,  45  L.  Ed.  900.  21  Sup.  Ct  616 
(1901).  It  Is  a  general  prospective  law.  The  charges  in  all  cases  are  to  be 
apportioned  within  the  limited  taxing  district  of  a  square,  and  then 
well  may  happen,  it  is  argued,  that  tin  exceed  the  benefit  conferred.  In  some 
case  of  which  Congress  never  thought  and  upon  which  it  could  not  have 
Is  said  to  he  u  flagrant  instance  of  that  sort.  If  this  he 
1  rue,  perhaps  the  objection  to  the  acl  v  ed  of  by  the  - 

in  Louisville  &  X.  It.  Co.  v.  Barber  Asphalt  Paving  Co..  197  U.  S.  430,  19  L. 
Ed.  819,  '-'."  Sup.  Ct  166  (1905).  That  case  dealt  with  the  same  objection,  to 
be  sure,  in  point  of  form,  hut  a  very  d!  In  point  of  substance.    The 

assessment    in  question  there  was  an  asse     ■    '    it    for  grading  and   paving,  and 

it  was  pointed  out  that  a  legislature  would  he  warranted  in  assuming  that 
grading  and  paving  streets  in  a  good        d  commonly  would  benefit  ad- 

joining land  more  than  it  would  cosi     The  chance  of  the  cost  being 

than  Die  benefit   is  slight,  and  the  excess,  if  any,  would  he  small.     Tie 

other  considerations  were  thought  to  outweigh  a  merelj  logical  or  mathematl- 

Sibility    on    the    other    Side,    and    to    warrant    sustaining    an    old    and 
familiar   method  of   taxation.      It    was  emphasized   that    there  should 
extracted   from  the  very  general  language  of  the  fourteenth  amendment  a 
system  of  delusive  exactness  and  merelj   logical  form.    But  when  the  chance 


656  FUNDAMENTAL    EIGHTS  (Part  2 

ecuted  consideration,  that  is  to  say,  for  a  public  work  already  done. 
Bellows  v.  Weeks,  41  Vt.  590,  599,  600;  Mills  v.  Charleton,  29  Wis. 
400,  413,  9  Am.  Rep.  578;  Hall  v.  Street  Com'rs,  177  Mass.  434,  439, 
59  N.  £.  68.  If  this  were  not  so  it  might  be  hard  to  justify  reassess- 
ments. See  Norwood  v.  Baker,  172  U.  S.  269,  293,  43  L.  Ed.  443,  452, 
19  Sup.  Ct.  187;  Williams  v.  Albany,  122  U.  S.  154,  30  L.  Ed.  1088, 
7  Sup.  Ct.  1244.  *  *  *  The  same  answer  is  sufficient  if  it  be  true 
that  when  the  work  was  done  the  cost  of  planking  could  not  be  in- 
cluded in  the  special  assessment.  *  *  *  The  charge  of  planking  on 
the  general  taxes  was  not  a  contract  with  the  landowners,  and  no 
more  prevented  a  special  assessment  being  authorized  for  it  later  than 
silence  of  the  laws  at  the  same  time  as  to  how  it  should  be  paid  for 
would  have.  In  either  case  the  legislature  could  do  as  it  thought  best. 
Of  course,  it  does  not  matter  that  this  is  called  a  reassessment.  A 
reassessment  may  be  a  new  assessment.  Whatever  the  legislature 
could  authorize  if  it  were  ordering  an  assessment  for  the  first  time  it 
equally  could  authorize,  notwithstanding  a  previous  invalid  attempt  to 
assess.    The  previous  attempt  left  the  city  free  "to  take  such  steps  as 


of  the  cost  exceeding  the  benefit  grows  large,  and  the  amount  of  the  not  im- 
probable excess  is  great,  it  may  not  follow  that  the  case  last  cited  will  be  a 
precedent.  Constitutional  rights  like  others  are  matters  of  degree.  To 
illustrate:  Under  the  police  power,  in  its  strict  sense,  a  certain  limit  might  be 
set  to  the  height  of  buildings  without  compensation ;  but  to  make  that  limit 
five  feet  would  require  compensation  and  a  taking  by  eminent  domain.  So 
it  well  might  be  that  a  form  of  assessment  that  would  be  valid  for  paving 
would  not  be  valid  for  the  more  serious  expenses  involved  in  the  taking  of 
land.  Such  a  distinction  w-as  relied  on  in  French  v.  Barber  Asphalt  Paving 
Co.,  181  U.  S.  324,  344,  45  L.  Ed.  879,  889,  21  Sup.  Ct.  625  (1901),  to  reconcile 
the  decision  in  that  case  with  Norwood  v.  Baker,  172  U.  S.  2G9,  43  L.  Ed. 
443,  19  Sup.  Ct.  1S7  (1S98).  And  yet  it  is  evident  that  the  act  of  Congress 
under  consideration  is  very  like  earlier  acts  that  have  been  sustained.  That 
passed  upon  in  Wight  v.  Davidson,  it  is  true,  dealt  with  a  special  tract,  and 
so  required  the  hypothesis  of  a  legislative  determination  as  to  the  amount 
of  benefit  conferred.  But  the  real  ground  of  the  decision  is  shown  by  the 
citation  (181  U.  S.  37S,  379,  45  L.  Ed.  904,  21  Sup.  Ct.  616  [1901])  of  Bauman 
v.  Ross,  167  U.  S.  548,  42  L.  Ed.  270,  17  Sup.  Ct.  966  (1S97),  when  the  same 
principle  was  sustained  in  a  general  law.  167  U.  S.  5S9,  590,  42  L.  Ed.  2SS. 
17  Sup.  Ct.  966  (1897).  It  is  true  again  that  in  Bauman  v.  Ross  the  land 
benefited  was  to  be  ascertained  by  the  jury  instead  of  being  limited  by  the 
statute  to  a  square;  but  it  was  none  the  less  possible  that  the  sum  charged 
might  exceed  the  gain.  As  only  half  the  cost  was  charged  in  that  case  it 
may  be  that,  on  the  practical  distinction  to  which  we  have  adverted  in  con- 
nection with  Louisville  &  N.  R.  Co.  v.  Barber  Asphalt  Paving  Co.  the  danger 
of  such  an  excess  was  so  little  that  it  might  be  neglected,  but  the  decision  was 
not  put  on  that  ground."  [The  statute  was  then  construed  to  limit  the 
assessment  to  actual  benefits.] 

In  Smith  v.  Worcester,  1S2  Mass.  232,  234,  65  N.  E.  40,  41,  59  L.  R.  A.  728 
(1902),  it  was  said  by  Holmes,  C.  J.:  "Under  the  recent  decisions  it  may  be 
true  that  when  the  Legislature  is  passing  a  law  of  general  future  application, 
and  when  therefore  it  cannot  be  supposed  to  have  compared  the  local  benefit 
with  the  cost,  the  only  mode  in  which  it  can  be  made  certain,  apart  from  the 
police  power,  that  constitutional  rights  are  preserved,  is  by  limiting  each 
assessment  upon  an  estate  to  the  benefit  received  by  that  estate.  But  when 
the  Legislature  has  contemplated  a  certain  region  and  may  be  supposed  to 
have  acted  in  view  of  a  specific  scheme,  there  is  no  doubt  that  within  reason- 


Ch.  11)        DUE  PROCESS  AND  EQUALITY  :  TAXATION  Co" 

were  within  its  power  to  take,  either  under  existing  statutes,  or  under 
any  authority  that  might  thereafter  be  conferred  upon  it,  to  make  a 
new  assessment  upon  the  plaintiff's  abutting  property"  in  any  consti- 
tutional way.  Norwood  v.  Baker,  172  U.  S.  269,  293,  43  L.  Ed.  443, 
452,  19  Sup.  Ct.  187,  196;  McNamee  v.  Tacoma,  24  Wash.  591,  64 
Pac.  791;  Annie  Wright  Seminary  v.  Tacoma,  23  Wash.  109,  62 
444. 

We  think  it  unnecessary  to  consider  other  questions  on  the  part  of 
the  case  that  we  have  dealt  with.  We  have  said  enough  in  our  opin- 
ion to  show  that  the  enforcement  of  the  assessment  lien  could  not  be 
prevented  by  the  original  owner.  It  is  urged,  however,  that  a  differ- 
ent rule  could  be  applied  in  favor  of  one  who  purchased  the  land  under 
the  circumstances  stated  above.  Hut  the  attempt  to  liken  taxation. 
whether  general  or  special,  to  the  enforcement  of  a  vendor's  lien,  and 
thus  to  introduce  the  doctrine  concerning  bona  fide  purchasers  for 
value,  rests  on  a  fallacy  similar  to  that  which  we  have  mentioned 
above,  which  would  deny  the  right  to  tax  upon  an  executed  considera- 
tion.   A  man  cannot  get  rid  of  his  liability  to  a  tax  by  buying  without 

able  limits  tt  may  determine  that  the  cost  of  an  Improvement  shall  fall  upon 
ii  designated  district  and  may  fix  the  principles  upon  which  the  cost  shall  be 
apportioned." 

In  Wight  v.  Davidson,  181  U.  S.  371,  384,  21  Sup.  Ct  616,  US  L.  Ed.  900 
(11101).  It  was  suggested,  obiter,  that  perhaps  the  fifth  amendment  did  not 
restrict  Congress  to  the  same  extent  in  these  matters  us  the  fourteenth 
amendment  did  the  states. 

As  tn  the  power  of  the  Legislature  or  Its  municipalities  to  group  together  in 
a  single  assessment  distinguishable  elements  of  an  Improvement  or  of  a  sys- 
tem of  improvements  extending  over  considerable  territory,  uol  even  i 
of  which  benefits  each  parcel  assessed,  see  Sears  v.  Boston,  ISO  Mass.  274,  62 
N.  E.  397,  62  L.  R.  A.  144  (1902);  Seattle  v.  Kelleher,  196  U.  8.  361,  26  Sup 
Ct.  44,  49  L.  Ed.  232  (1904). 

Si  in:  walks  and  Stheet  Cleanino. — Almost  every  where  the  cost  of  side 
walks  may  be  assessed  upon  abutting  land,  without  regard  to  benefits,  Agens 
v.  Newark,  87  N.  J.  Law.  415,  123,  18  Am  Rep,  729  (1874):  Van  Tassel  \. 
Jersey  City,  37  N.  J.  Law,  128  (1874)  (but  not  cost  of  grading  for  walk,  in 
New  Jersey).  Contra:  Mauldin  v.  City  Council,  53  S.  C.  2S5,  31  S.  E.  252,  13 
L.  R.  A.  101,  69  Am.  St.  Rep.  S55  (1898). 

So,  also,  landowners  may  be  required  to  keep  their  walks  free  of  snow  and 
ice  at  their  own  expense  in  most  stales.  In  re  Goddard,  lti  Pick.  (Mass.)  504, 
28  Am.  Dec.  259  (is:::.):  Carthage  v.  Frederick,  122  N.  V.  268,  26  N.  E5.  180, 
10  L  R.  A.  178,  19  Am.  St.  Rep.  490  (1S90).  Contra:  Chicago  v.  O'Brieu,  111 
111.  532,  63  Am.  Rep.  640  (1884) 

Street  sprinkling  and  sweeping  have  been  sustained  as  valid  objects  for 
local  assessments  In  some  states,  Sears  v.  Boston,  17;:  Miss.  71.  ."■"•  N.  B,  138, 
4::  L.  It.  A.  s.".l  (18991;  Retaken  v.  Fuehrlng,  130  ind.  382,  30  X.  !'.  ill.  15  I. 
R.  A.  624,  30  Am.  St.  Rep.  217  (1891);  and  denied  to  be  such  in  other-. 
Chicago  v.  Blair.  149  111.  310.  30  X.  B.  829,  24  I..  R.  A.  112  (1894);  N.  Y.  Life 
Ins.  Co.  v.  Brest  (C.  C.)  71  Fed.  sir,  (Mo.,  1896).  Their  amounts,  bowever,  musi 
be  limited  to  benefits  to  the  property  taxed      Sears  v.  Boston,  above. 

Requibement  of  Personal  Labob  on  Highways,  -This  is  treated  as  a 
personal  duty  similar  in  character  to  that   of  serving  in  the  militia,  aj 

ii, >t  governed  by  the  rules  of  taxation  State.  59  £ 

Li  R.  A.  (X.  SO  1046  i  Ma.,  19I2>:    In  re  Dassler,  ante,  p.  157,  note,     Bui  the 

compulsory    use   of    animals.    w>  is   not   included    in 

this  duty.    Toone  v.  state,  above. 
Hall  Const.L. — 12 


058  FUNDAMENTAL    RIGHTS  (Part  2 

notice.1  See  Tallman  v.  Janesville,  17  Wis.  71,  76;  Cooley  Tax'n, 
(3d  Ed.)  527,  528.  Indeed,  he  cannot  buy  without  notice,  since  the 
liability  is  one  of  the  notorious  incidents  of  social  life.  In  this  case 
the  road  was  cut  through  the  plaintiff's  land,  and,  if  he  had  looked, 
was  visible  upon  the  ground.  Whether  it  had  been  paid  for  was  for 
him  to  inquire.  The  history  of  what  had  happened  would  have  sug- 
gested that  it  was  not  improbable  that  sooner  or  later  a  payment  must 
be  made. 

Decree  reversed.2 

[Harlan  and  Brown,  JJ.,  dissented.] 

i  Accord:  Citizens'  Nat.  Bank  v.  Kentucky,  217  U.  S.  443,  454,  30  Sup.  Ct. 
532,  54  L.  Ed.  S32  (1910)  (invalidly  assessed  back  taxes  on  dank  slock  for 
seven  years  reassessed  against  shares  in  hands  of  new  purchaser). 

2  Accord:  Mattingly  v.  Dist.  of  Columbia,  97  U.  S.  687,  24  L.  Ed.  1098  (1878) 
(ratification  of  wholly  unauthorized  assessment).  Contra:  Bellevue  v.  Pea- 
cock, 89  Ky.  495,  12  S.  W.  1042,  25  Am.  St.  Rep.  552  (1S90)  (ratification  of 
wholly  unauthorized  assessment) ;  Martin  v.  Oskaloosa,  99  N.  W.  557  (Iowa, 
1904)  (same);  Grand  Rapids  v.  L.  S.,  etc.,  Ry.,  130  Mich.  238,  89  N.  W.  932, 
97  Am.  St.  Rep.  473  (1902)  (same,  creating  personal  liability). 

In  First  Nat.  Bank  v.  Covington  (C.  C.)  103  Fed.  523,  526-528  (1900),  holding 
invalid  a  Kentucky  statute  interpreted  as  imposing  retroactively  for  seven 
years  past  a  new  tax  upon  bank  stock,  Evans,  J.,  said:  "The  court  will  not 
attempt  to  decide  that  there  may  not,  in  extreme  cases,  be  a  legitimate  statu- 
tory enactment  imposing  a  retroactive  taxation  for  previous  years  upon  a 
class  of  property  not  then  subject  to  taxation  at  all.  But  it  would  at  least 
be  a  rare  case,  and  one  which  would  come  extremely  near  to  taking  property 
for  public  use  without  just  compensation,  and  might  be  most  dangerous  and 
oppressive,  as  well  as  destructive  of  many  other  established  principles  of  the 
law  of  taxation.  If  the  power  to  do  this  exist  at  all,  there  is  no  limit  to  it; 
and  it  might  illustrate  the  subject  to  consider  the  result  if  church  property 
now  exempt  should,  as  it  lawfully  might,  be  made  subject  to  taxation  in  the 
future,  and  not  only  so,  but  retroactively,  for  10,  or  20,  or  even  50  years  back. 
Here  would  be  a  practical  confiscation  of  such  property  for  public  use.  Nor 
does  the  court  mean  to  deny  that  where  the  law  in  fact  imposes  taxation 
upon  property,  which,  however,  is  overlooked  by  the  assessor,  or  otherwise 
omitted  from  the  assessment,  or  some  other  step  is  taken  which  is  faulty. 
the  defects  may  not  be  cured  by  legislation.  That  curative  legislation  is  ad- 
missible in  such  cases  is  a  well-established  doctrine  of  the  courts,  but  there 
was  in  Kentucky  no  legislation — valid  legislation — for  taxing  national  bank 
shares  as  such  before  March  21.  1900 ;  and  the  act  of  that  date  was  not 
passed  to  validate  defective  steps  taken  to  levy  a  lawful  tax,  but  it  is  legis- 
lation which  imposes  an  altogether  new  tax  upon  a  new  subject  *  *  * 
As  the  present  holders  of  the  complainant's  shares  may  be  very  different  per- 
sons from  those  who  held  them  in  previous  years,  [and]  as  the  present  hold- 
ers may  have  purchased  under  the  previously  existing  law,  *  »  *  their 
rights  and  interests  would  be  injuriously  affected  by  large  payments  for 
retroactive  taxation." 

So,  Matter  of  Pell,  171  N.  Y.  48,  63  N.  E.  789,  57  L.  R.  A.  540,  89  Am.  St. 
Rep.  791  (1902)  (retroactive  inheritance  tax).  Compare  Income  Tax  Cases, 
148  Wis.  456,  514,  134  N.  W.  673,  135  N.  W.  164  (1912)  (retroactive  tax  on  in- 
come of  prior  six  months,  and  on  profits  from  sales  of  property  bought  during 
three  years  previous).  Retroactive  taxation  is  expressly  forbidden  by  Const. 
N.  C.  art.  1,  §  32  [Young  v.  Henderson,  76  N.  C.  420  (1877)] ;  and  by  the  gen- 
eral prohibition  of  retroactive  laws  in  Texas,  State  v.  Galveston,  etc.,  Ry., 
100  Tex.  153,  175,  97  S.  W.  71  (1906). 

Mere  irregularities  in  attempted  general  taxation,  or  omissions  in  enforce- 
ment, may  be  retroactively  cured.     Florida,  etc.,  By.  v.  Reynolds,  1S3  U.  S. 


Ch.  11)        DUE  PEOCESS  AND  EQUALITY  :  TAXATION  65J» 

471,  22  Sup.  Ct.  170,  46  L.  Ed.  283  (1902);    Citizens'  Nat  Bank  v.  Kentucky. 
217  U.  S.  443,  30  Sup.  Ct.  532,  HI  L.  Ed.  832  (1910). 

Confiscatory  Taxation. — Though  the  dictum  from  McCulloch  t.  Mary 
land,  4  Wheat  316,  431  (4  L.  Ed.  579)  (1819)  that  "the  power  to  tax  u 
the  power  to  destroy"  has  been  frequently  quoted  by  courts,  it  is  probable 
that  the  due  process  clauses  of  our  Constitutions  forbid  taxes  so  burdensome 
that  their  normal  and  practically  Inevitable  result  is  prohibition  of  acts, 
businesses,  or  ownerships  that  could  not  be  directly  prohibited  on  other 
grounds.  See  the  remarks  of  Yinje.  J.,  in  Monroe  v.  Endelman,  1"."  Wis.  821, 
625,  626,  138  N.  W.  70  (1912)  (holding  invalid  a  municipal  ordinance 
under  legislative  authority  to  regulate  and  tax  peddlers,  which  exacted  $25  a 
day  as  a  license  fee):  "The  ordinance  in  question  must  he  held  to  I»-  void 
on  the  ground  that  it  is  confiscatory.  It  requires  no  argument  to  dent' 
that  it  is  so.  A  mere  statement  of  the  material  facts  Is  sufficient.  The  de- 
fendant carried  a  stock  of  merchandise  of  a  value  not  ex<  00.  He 
was  offering  this  for  sale  at  retail  in  a  city  containing  4,600  inhabitants.  His 
daily  sales  averaged  only  $88.  His  gross  profits  were  20  per  cent,  of  his 
sales,  and  his  daily  expenses  about  57.  The  $25  per  diem  fees  would  alone 
mure  than  consume  his  gross  profits.  Tested  in  another  way,  it  appears  that 
if  he  continued  in  business  In  Monroe  for  a  year,  he  would  [pay  in  fees  over 
$7,500  on  a  stock  of  merchandise,  the  average  value  of  which  did  nor 
$3,000.  Obviously  such  a  tax  would  confiscate  defendant's  whole  property 
long  before  the  year  expired.  Similar  ordinances  have  invariably  been  held 
to  be  confiscatory,  and  therefore  void.  Carrollton  v.  Bazzette,  159  ill.  284,  1- 
N.  E.  837,  31  L.  B.  A.  522  (1890) ;  Ottumwa  v.  Zekind.  95  Iowa,  622,  84  X.  W. 
64G,  29  L.  It.  A.  734,  58  Am.  St.  Rep.  447  (1S95) ;  Chaddock  v.  Day,  75  Mich. 
527,  42  N.  W.  977,  4  L.  R.  A.  809,  13  Am.  St  Rep.  488  (1889);  Brooks  v.  Man- 
gan.  86  Mich.  570,  49  N.  W.  633,  -I  Am.  si.  Bep.  137  (1891);  City  of 
v.  Gugenheim,  61  111.  App.  374  (1895);  Sipe  v.  Murphy,  49  Ohio  St. 
N  B.  884,  17  L.  R.  A.  184  (1892);  Ex  parte  Eaglesfleld  (D.  C.)  180  Fed 
55S  (1910).  It  is  true  that  cases  may  be  found  In  which  it  has  been  held 
that  a  calling  or  business  may  be  entirely  prohibited  by  the  Imposition  of  such 
a  tax  or  regulatory  fee  as  is  sufficient  to  prevent  the  business  from  be- 
ing carried  on  with  profit,  but  such  cases  relate  to  businesses  or  callings 
that  are  more  or  less  injurious  to  society,  and  which,  therefore,  may  be 
entirely  suppressed  by  means  of  license  fees  or  regulations.  Tin 
ness  of  the  defendant  was  a  lawful  one.  not  injurious,  but  beneficial  to 
society,  and  does  not  fall  under  the  class  Just  mentioned  where  prohibitory 
ordinances  have  been  upheld." 

Compare  McCray  v.  U.  S.,  195  U.  S.  27,  G2-64,  24  Sup.  Ct  7G9,  49  L.  Ed    7E 
1  Ann.  Cas.  561  (1904),  post,  at  pp.  902-903. 


660  FUNDAMENTAL    RIGHT3  (Part  2 

CHAPTER  XII 
EMINENT  DOMAIN 


SECTION  1.— NATURE  OF  POWER 


PEOPLE  v.  ADIRONDACK  RAILWAY  COMPANY  (1899)  160 
N.  Y.  225,  236-238,  54  N.  E.  689,  Vann,  J. : 

"The  power  of  taxation,  the  police  power,  and  the  power  of  eminent 
domain  underlie  the  Constitution,  and  rest  upon  necessity,  because 
there  can  be  no  effective  government  without  them.  They  are  not 
conferred  by  the  Constitution,  but  exist  because  the  state  exists,  and 
they  are  essential  to  its  existence.  They  are  not  rights  reserved,  but 
rights  inherent  in  the  state  as  sovereign.  While  they  may  be  limited 
and  regulated  by  the  Constitution,  they  exist  independently  of  it,  as  a 
necessary  attribute  of  sovereignty.  They  belong  to  the  state  because 
it  is  sovereign,  and  they  are  a  necessity  of  government.  The  state 
cannot  surrender  them,  because  it  cannot  surrender  a  sovereign  power. 
It  cannot  be  a  state  without  them.  They  are  as  enduring  and  inde- 
structible as  the  state  itself.  Black,  Const.  Law,  §  123  ;  Cooley,  Const. 
Lim.  524;  Rand.  Em.  Dom.  77;  Lewis,  Em.  Dom.  §  3;  Mills.  Em. 
Dom.  §  11.  Each  is  a  peculiar  power,  wholly  independent  of  the  oth- 
ers, and  not  one  of  them  requires  the  intervention  of  a  court  for  effec- 
tive action  by  the  state.  In  the  case  of  eminent  domain,  when  the 
state  is  not  itself  an  actor,  compensation  for  property  taken,  unless 
the  amount  is  agreed  upon,  can  be  ascertained  only  through  the  aid  of 
a  court,  but  otherwise  judicial  action  is  unnecessary,  except  as  pro- 
vided by  statute.     State  Const,  art.  1,  §  7. 

"The  power  of  eminent  domain  is  the  right  of  the  state,  as  sovereign, 
to  take  private  property  for  public  use  upon  making  just  compensation. 
The  state  has  all  the  power  of  eminent  domain  there  is,  and  all  that 
any  sovereign  has,  subject  to  the  limitations  of  the  Constitution.  Al- 
though exercised  under  our  first  Constitution,  it  is  not  mentioned 
therein,  and  it  is  now  mentioned  only  for  the  purpose  of  limitation. 
The  language  of  the  revised  Constitution  is  as  follows :  'No  person 
*  *  *  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law ;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation;'  and  'when  private  property  shall  be 
taken  for  any  public  use,  the  compensation  to  be  made  therefor,  when 
such  compensation  is  not  made  by  the  state,  shall  be  ascertained  by  a 
jury,  or  by  not  less  than  three  commissioners  appointed  by  a  court  of 
record,  as  shall  be  prescribed  by  law.'     Const,  art.  1,  §§  6,  7.    This 


Ch.  12)  EMINENT    DOMAIN  661 

language,  which  presupposes  the  existence  of  the  power  outside  of  the 
Constitution,  simply  regulates  the  right  to  use  it.  It  does  not  confer 
the  power,  but,  recognizing  its  existence,  surrounds  it  with  proper 
limitations.  It  prescribes  no  method  of  action,  when  the  state  acts 
for  itself,  but  marks  out  certain  boundaries,  which  may  not  be  crossed, 
even  by  the  state.  Within  those  boundaries,  the  state,  acting  through 
that  department  which  exerts  the  legislative  power,  may  proceed  at 
will,  and  the  extent,  method,  and  necessity  of  exercising  the  power  to 
take  private  property  for  public  use  may  not  be  interfered  with  by 
either  of  the  other  departments  of  government.  Garrison  v.  City  of 
New  York,  21  Wall.  196,  22  L.  Ed.  612.  All  private  property,  both 
tangible  and  intangible,  is  subject  to  the  right,  including  that  already 
devoted  to  a  public  use,  although  the  latter,  as  matter  of  policy  rather 
than  of  right,  is  protected  and  favored  bv  the  state  to  some  extent. 
People  v.  Kerr,  27  N.  Y.  188;  In  re  City  of  Buffalo,  68  N.  Y.  167. 
While  the  state  may  delegate  the  power  to  a  subject  for  a  public  use, 
it  cannot  permanently  part  with  it  as  to  any  property  under  its  juris- 
diction, but  may  resume  it  at  will,  subject  to  property  rights  and  the 
duty  of  paying  therefor.  There  is  no  limitation  upon  the  exercise  of 
the  power  except  that  the  use  must  be  public,  compensation  must  be 
made,  and  due  process  of  law  observed.  Secombe  v.  Railroad  Co., 
23  Wall.  108,  23  L.  Ed.  67;  In  re  Fowler,  53  N.  Y.  60,  62."  l 


LONG  ISLAND  WATER  SUPPLY  CO.  v.  BROOKLYN. 

(Supreme   Court  of   United   States,    1897.      166    0.    S.   686,    17    Sup.    Ct    718. 
41  L.  Ed.   1165.) 

[Error  to  Supreme  Court  of  New  York.  The  Long  Island  Water 
Supply  Company  resisted  the  taking  of  its  property,  franchises,  and 
contracts  by  eminent  domain  by  the  city  of  Brooklyn,  for  the  reasons 
stated  in  the  opinion  below.  The  Court  of  Appeals  upheld  the  judg- 
ment of  the  lower  courts  in  favor  of  the  condemnation,  and  the  state 

i  "No  one  doubts   the  existence  in  the  state  governments  of  the  rijrht    of 
eminent  domain, — a  right  distinct  from  and  paramount  to  the  ri^lit  of  ulti- 
mate ownership,     it  grows  out  of  the  necessities  of  their  being,  not  out  of 
the  tenure  by  which  lands  are  held.    It  may  be  exercised,  thumb  the  lands 
are  not  held  by  grant  from  the  government,  either  mediately  or  Immediately, 
and  independent  of  the  consideration  whether  they  would  escheat  to  tin-  gov- 
ernment in  case  of  a  failure  of  heirs.     The  right   is  tin-  offspring  of  p 
necessity;    and  it  is  inseparable  from  sovereignty,  unless  denied  to  It   by   its 
fundamental  law.     Vattel,  c.  20,  64;    Bynk.,  lib.  2,  c.  15;    K<  ■ 
310;    Cooley  on  Const.  Lini.  584  et  seq.     r.ut  it  is  no  more  necessary  for  the 
exercise  of  the  powers  of  a  Btate  govern   le      than  It  is  for  th< 
tin'  conceded   powers  of   the  federal  iment     That   government    is   as 

[gn  Within  its  sphere  as  the  States  are  within  theirs.  True,  il- 
ls limited.  Certain  subjects  only  are  c  ■  Itted  to  it;  but  its  powi 
those  subjects  is  as  full  and  complete  as  is  the  I'  "T  the 

subjects  to  which   their  soverei^i il  The   power  is  not  cha- 

ps transfer  !■•  another  hi  Ider." — Strong,  J.,  in  Kohl  v.  1'.  S.,  01  l. 
372,  '-V.  L.  Ed.  410   (1S7G). 


662  FUNDAMENTAL    RIGHTS  (Part    2 

Supreme  Court  entered  final  judgment  against  the  company,  from 
which  this  writ  of  error  was  taken.] 

Mr.  Justice  Brewer.  *  *  *  The  contention  of  plaintiff  in  error 
is  that  the  proceedings  had  under  the  statute  which  resulted  in  the 
judgment  of  condemnation  violate  section  10,  art.  1,  of  the  Constitu- 
tion of  the  United  States,  which  forbids  any  state  to  pass  a  law  im- 
pairing the  obligation  of  contracts,  and  were  not  "due  process  of 
law,"  as  required  by  the  fourteenth  amendment. 

With  reference  to  the  first  part  of  this  contention,  it  is  said  that  in 
1881  the  town  of  New  Lots  made  a  contract  with  the  water-supply 
company  by  which  for  each  and  every  year  during  the  term  of  25  years 
it  convenanted  to  pay  to  the  company  so  much  per  hydrant  for  hy- 
drants furnished  and  supplied  by  it;  that  the  act  of  annexation  con- 
tinued the  burden  of  this  obligation  upon  the  territory  within  the  limits 
of  the  town,  although  thereafter  the  town,  as  a  separate  municipality, 
ceased  to  exist,  and  the  territory  became  simply  a  ward  of  the  city 
of  Brooklyn ;  that  the  condemnation  proceedings  destroyed  this  con- 
tract, and  released  the  territory  from  any  obligation  to  pay  the  stipu- 
lated hydrant  rental ;  that  a  state  or  municipality  cannot  do  indi- 
rectly what  it  cannot  do  directly;  that,  as  the  municipality  could  not, 
by  any  direct  act,  release  itself  from  any  of  the  obligations  of  its  con- 
tract, it  could  not  accomplish  the  same  result  by  proceedings  in  con- 
demnation. 

We  cannot  yield  our  assent  to  this  contention.  All  private  property 
is  held  subject  to  the  demands  of  a  public  use.  The  constitutional 
guaranty  of  just  compensation  is  not  a  limitation  of  the  power  to  take, 
but  only  a  condition  of  its  exercise.  Whenever  public  uses  require, 
the  government  may  appropriate  any  private  property  on  the  pay- 
ment of  just  compensation.  That  the  supply  of  water  to  a  city  is  a 
public  purpose  cannot  be  doubted,  and  hence  the  condemnation  of  a 
water-supply  system  must  be  recognized  as  within  the  unquestioned 
limits  of  the  power  of  eminent  domain.  It  matters  not  to  whom  the 
water-supply  system  belongs,  individual  or  corporation,  or  what  fran- 
chises are  connected  with  it ;  all  may  be  taken  for  public  uses  upon 
payment  of  just  compensation.  It  is  not  disputed  by  counsel  that, 
were  there  no  contract  between  the  company  and  the  town,  the  water- 
works might  be  taken  by  condemnation.  And  so  the  contention  is, 
practically,  that  the  existence  of  the  contract  withdraws  the  property, 
during  the  life  of  the  contract,  from  the  scope  of  the  power  of  emi- 
nent domain,  because  taking  the  tangible  property  will  prevent  the 
company  from  supplying  water,  and  therefore  operate  to  relieve  the 
town  from  the  payment  of  hydrant  rentals.  In  other  words,  the  pro- 
hibition against  a  law  impairing  the  obligation  of  contracts  stays  the 
power  of  eminent  domain  in  respect  to  property  which  otherwise 
could  be  taken  by  it. 

Such  a  decision  would  be  far-reaching  in  its  effects.  There  is  proba- 
bly no  water  company  in  the  land  which  has  not  some  subsisting  con- 


Ch.  12)  EMINENT    DOMAIN 

tract  with  a  municipality  which  it  supplies,  and  within  which  its  works 
are  located ;  and  a  ruling  that  all  those  properties  are  beyond  the 
reach  of  the  power  of  eminent  domain  during  the  existence  ot 
contracts  is  one  which,  to  say  the  least,  would  require  careful  con- 
sideration before  receiving  judicial  sanction.  The  fact  that  this  par- 
ticular contract  is  for  the  payment  of  money  for  hydrant  rental  is  not 
vital.  Every  contract  is  equally  within  the  protecting  reach  of  the 
prohibitory  clause  of  the  Constitution.  The  charter  of  a  corporation 
is  a  contract,  and  its  obligations  cannot  be  impaired.  So  it  would  seem 
to  follow,  if  plaintiff  in  error's  contention  is  sound,  that  the  frau 
chises  of  a  corporation  could  not  be  taken  by  condemnation,  because 
thereby  the  contract  created  by  the  charter  is  impaired.  The  privileg- 
es granted  to  the  corporation  are  taken  away,  and  the  obligation  of 
the  corporation  to  perform  is  also  destroyed.    *    *     * 

The  true  view  is  that  the  condemnation  proceedings  do  not  impair 
the  contract,  do  not  break  its  obligations,  but  appropriate  it,  as  they 
do  the  tangible  property  of  the  company,  to  public  uses.  *  *  *  The 
case  of  West  River  Bridge  Co.  v.  Dix,' 6  How.  507.  12  L.  Ed.  535.  is 
in  point.  *  *  *  [This  involved  the  condemnation  of  a  toll  bridge 
with  an  exclusive  franchise  and  its  conversion  into  a  free  bridge 
by  the  state  of  Vermont.  The  bridge  company  took  a  writ  of  error  to 
the  federal  Supreme  Court,  alleging  the  obligation  of  its  franchise  con- 
tract was  impaired.]  This  contention  was  overruled,  and  in  the  course 
of  the  opinion  it  was  observed: 

"No  state,  it  is  declared,  shall  pass  a  law  impairing  the  obligation  of 
contracts;  yet,  with  this  concession  constantly  yielded,  it  cannot  be 
justly  disputed  that  in  every  political  sovereign  community  there  in- 
heres necessarily  the  right  and  the  duty  of  guarding  its  own  exist- 
ence, and  of  protecting  and  promoting  the  interests  and  welfare  of  the 
community  at  large.  This  power  and  this  duty  are  to  be  exerted  not 
only  in  the  highest  acts  of  sovereignty,  and  in  the  external  relations 
of  governments ;  they  reach  and  comprehend  likewise  the  interior 
polity  and  relations  of  social  life,  which  should  be  regulated  with  ref- 
erence to  the  advantage  of  the  whole  society.  This  power,  denom- 
inated the  'eminent  domain  of  the  state.'  is,  as  its  name  imports,  para- 
mount to  all  private  rights  vested  under  the  government,  and  these 
last  are,  by  necessary  implication,  held  in  subordination  to  this  power, 
and   must  yield   in  every   instance  to  its  proper  exercise.1     *     *     * 

'  Neither  by  express  statute  nor  contract  maj  a  state  or  the  United  States 
irrevocably  surrender  any  part  of  Its  powers  of  eminent  domain,  Hyde  Park 
v.  Cemetery  Assn.   119  in.  141,  7  x.  I  >;    Matter  of  First  Street, 

86  Mich.  i-'.  83  N.  W.  US  (1887);  tn  re  rwentj  Second  Street,  102  Pa.  i"x 
(1888);  U.  S.  v.  Cooper,  20  i>.  0.  104,  LI?  (1891);  nor  may  a  private  corpo 
ration  exercising  such  powers  delegated  by  the  state,  Cornwall  v.  [>  A   N 

K.  K..  NT  K\.  72,  7  S.  \V.  6SS  (1888).  Bui  see  South  1'ark  Com'TS  v.  War. I 
A:  Co.,  248  111.  299,  98  N.  BS,  910,  21  Ann.  Cas.  127  (1911),  holding,  where  land 
lias  been  donated  to  the  public  ana  accepted  upon  condition  that  it  forever 


064  FUNDAMENTAL    RIGHTS  (Part  2 

Now,  it  is  undeniable  that  the  investment  of  property  in  the  citizen 
by  the  government,  whether  made  for  a  pecuniary  consideration  or 
founded  on  conditions  of  civil  or  political  duty,  is  a  contract  between 
the  state,  or  the  government  acting  as  its  agent,  and  the  grantee ;  and 
both  the  parties  thereto  are  bound  in  good  faith  to  fulfill  it.  But  into 
all  contracts,  whether  made  between  states  and  individuals  or  between 
individuals  only,  there  enter  conditions  which  arise,  not  out  of  the 
literal  terms  of  the  contract  itself.  They  are  superinduced  by  the  pre- 
existing and  higher  authority  of  the  laws  of  nature,  or  nations,  or  of 
the  community  to  which  the  parties  belong.  They  are  always  pre- 
sumed, and  must  be  presumed,  to  be  known  and  recognized  by  all,  are 
binding  upon  all,  and  need  never,  therefore,  be  carried  into  express 
stipulation,  for  this  could  add  nothing  to  their  force.  Every  contract 
is  made  in  subordination  to  them,  and  must  yield  to  their  control,  as 
conditions  inherent  and  paramount,  wherever  a  necessity  for  their  ex- 
ecution shall  occur.  Such  a  condition  is  the  right  of  eminent  domain. 
This  right  does  not  operate  to  impair  the  contract  affected  by  it,  but 
recognizes  its  obligation  in  the  fullest  extent,  claiming  only  the  ful- 
fillment of  an  essential  and  inseparable  condition.  *  *  *  A  dis- 
tinction has  been  attempted,  in  argument,  between  the  power  of  a 
government  to  appropriate  for  public  uses  property  which  is  corporeal, 
or  may  be  said  to  be  in  being,  and  the  like  power  in  the  government 
to  resume  or  extinguish  a  franchise.  The  distinction  thus  attempted 
we  regard  as  a  refinement  which  has  no  foundation  in  reason,  and  one 
that,  in  truth,  avoids  the  true  legal  or  constitutional  question  in  these 
causes;  namely,  that  of  the  right  in  private  persons,  in  the  use  or  en- 
joyment of  their  private  property,  to  control,  and  actually  to  prohibit, 
the  power  and  duty  of  the  government  to  advance  and  protect  the 
general  good.  We  are  aware  of  nothing  peculiar  to  a  franchise 
which  can  class  it  higher,  or  render  it  more  sacred,  than  other  prop- 
erty. A  franchise  is  property,  and  nothing  more.  It  is  incorporeal 
property,  and  is  so  defined  by  Justice  Blackstone,  when  treating,  in 
his  second  volume  (chapter  3,  p.  20),  of  the  Rights  of  Things." 

See,  also,  Richmond,  F.  &  P.  R.  Co.  v.  Louisa  R.  Co.,  13  How.  71, 
83,  14  L.  Ed.  55 ;  Boston  &  L-  R.  Corp.  v.  Salem  &  E-  R.  Co.,  2  Gray 
(Mass.)  1,  35,  36.    *    *    * 

Judgment  affirmed.2 

remain  free  of  buildings  for  the  benefit  of  abutting  owners,  that  no  lesisla- 
tive  power  exists  to  condemn  this  right  of  an  abutting  owner.  See  dissent- 
ing opinions,  also. 

2  Accord :  Cincinnati  v.  L.  &  N.  Ry.,  223  U.  S.  390,  32  Sup.  Ct.  267,  56  L. 
Ed.  481  (1912). 


Ch.  12)  EMINI'.NT    DOMAIN 

EASTERN  RAILROAD  COMPANY  v.  BOSTON  &  M.  R.  R. 
(1872)  111  Mass.  125,  130,  131,  15  Am.  Rep.  13,  Colt,  J.  (uph 
a  Massachusetts  statute  authorizing  one  railroad  company  to  take  for  a 
passenger  station  land  occupied  for  railroad  purposes  by  another  rail- 
road company) : 

"The  authority  of  the  Legislature  to  grant  these  privileges  to  the 
Eastern  Railroad  Company  is  denied  on  constitutional  grounds.  It 
is  said  that  the  land  in  question  has  already  been  appn 
public  use  under  the  provisions  of  law,  and  that,  in  the  exercise  of 
the  right  of  eminent  domain,  the  state  cannot  legally  give  to  one  rail- 
road corporation  power  to  take  from  another  the  exclusive  use  of 
land  to  be  devoted  to  identically  the  same  public  use ;  that  this  would 
be  to  destroy  vested  rights  and  impair  the  contract  contained  in  its 
charter.  But  it  has  been  often  declared  by  this  court,  that  there  is 
no  such  limitation  on  the  authority  of  the  Legislature.  The  power  of 
the  state  to  take  private  property  for  the  public  use  reaches  every  de- 
scription of  property  within  its  jurisdiction,  even  when  acquired  by 
grant  from  the  state.1  It  is  an  inherent  element  of  sovereignty ;  and 
from  the  necessity  of  the  case,  and  the  highest  considerations  of  pub- 
lic welfare,  it  must  continue  unimpaired  in  the  state.  It  is  impliedly 
reserved  in  every  grant.  It  cannot  be  abridged  so  as  to  bind  future 
legislation.  The  franchise  of  a  corporation  is  not  exempt.  As  an  in- 
corporeal hereditament,  it  may  be  taken,"  in  whole  or  in  part,  and 
with  the  other  property  of  the  corporation  devoted  to  other  or  similar 
public  uses.  The  purposes  of  government  would  be  so  far  defeated, 
if  any  single  owner,  corporation  or  individual,  could  in  this  respect 
control  its  action.  It  belongs  exclusively  to  the  Legislature  to  deter- 
mine whether  the  public  benefit  to  be  secured  is  sufficient  to  warrant 
the  taking;  and  this  is  not  a  judicial  question.  The  necessity  may  be 
left  to  the  adjudication  of  designated  officers  or  tribunals;  but  when 
not  so  delegated,  it  may  be  declared  by  the  Legislature  itself.  The 
right  itself  may  be  delegated  to  corporate  bodies,  public  or  private ; 
and  when  the  enjoyment  of  two  public  rights  would  to  some  extent 
interfere,  it  is,  in  the  language  of  Chief  Justice  Shaw,  'for  the  Legis- 
lature to  determine  which  ?hall  yield,  and  to  what  extent,  and  whether 
wholly  or  in  part  only,  to  the  other ;  and  such  question  will  ordinarily 
be  determined  by  the  Legislature  according  to  their  conviction  of  the 
greater  preponderance  of  public  necessity  and  convenience.'  Com- 
monwealth v.  Essex  Co.,  13  Gray,  239,  247;  Boston  Water 
Co.  v.  Boston  &  Worcester  Railroad  Co.,  23  Pick.  360;  Boston  & 
Lowell  Railroad  Co.  v.  Salem  &  Lowell  Railroad  Co.,  2  Gray,   1 ; 

•  Accord:    Cincinnati  v.  L.  &  N.  By.,  223  C.   S.  300,    MX),  ."-J  Snp.  Ct  267, 
56  L.  Ed.  4M  (1912).    For  a  possible  'iM.ilitu-iitlon  of  this  aa  respects  I 
Ins  of  money,  under  certain  rtate  Cor  titutl  n  ■    see  2  Lewis,  Em    D 
Ed.)  |  413.    Compare  Hammetl   v.  PI  65   Pa.   146    152,   153,  3  Am. 

Rep.  616  (1870);    I     r:    Library  v.  Bliss,  151  KS  N.  B. 

B2,  7  L.  R.  A.  700  (1890). 


666  FUNDAMENTAL   RIGHTS  (Part  2 

Central  Bridge  Co.  v.  Lowell,  4  Gray,  474 ;  Hingham  &  Quincy  Bridge 
Co.  v.  County  of  Norfolk,  6  Allen,  353,  360;  Haverhill  Bridge  v. 
County  Commissioners,  103  Mass.  120,  4  Am.  Rep.  518.  See  also 
New  York,  Housatonic  &  Northern  Railroad  Co.  v.  Boston,  Hartford 
&  Erie  Railroad  Co.,  36  Conn.  196;  White  River  Turnpike  Co.  v. 
Vermont  Central  Railroad  Co.,  21  Vt.  590;  People  v.  Smith,  21  N 
Y.  595,  598."  * 


CHICAGO,  B.  &  Q.  R.  CO.  v.  CHICAGO. 

(Supreme  Court  of  United   States,  1897.     166  U.  S.  226,  17  Sup.   Ct  5S1,  41 
L.  Ed.  979.) 

[Error  to  the  Supreme  Court  of  Illinois.  A  street  was  opened  by 
the  city  of  Chicago  across  the  right  of  way  of  the  Chicago,  Burling- 
ton &  Quincy  Railroad  Company,  and  in  the  proceeding  to  ascertain 
the  damages  consequent  thereon  the  jury  fixed  $1  as  just  compensation 
to  the  company  for  this  use  of  its  right  of  way.  This  judgment 
was  affirmed  by  the  state  Supreme  Court,  and  this  writ  of  error  taken.] 

Mr.  Justice  Harlan.  *  *  *  It  is  proper  now  to  inquire  whether 
the  due  process  of  law  enjoined  by  the  fourteenth  amendment  requires 
compensation  to  be  made  or  adequately  secured  to  the  owner  of  pri- 
vate property  taken  for  public  use  under  the  authority  of  a  state. 

In  Davidson  v.  New  Orleans  [96  U.  S.  97,  24  L-  Ed.  616]  it  was 
said  that  a  statute  declaring  in  terms,  without  more,  that  the  full  and 
exclusive  title  to  a  described  piece  of  land  belonging  to  one  person 
should  be  and  is  hereby  vested  in  another  person,  would,  if  effectual, 
deprive  the  former  of  his  property  without  due  process  of  law,  within 
the  meaning  of  the  fourteenth  amendment.1  See,  also,  Missouri  Pac. 
Ry.  Co.  v.  State,  164  U.  S.  403,  417,  17  Sup.  Ct.  130,  41  L,  Ed.  489. 
Such  an  enactment  would  not  receive  judicial  sanction  in  any  country 
having  a  written  Constitution  distributing  the  powers  of  government 
among  three  co-ordinate  departments,  and  committing  to  the  judiciary, 
expressly  or  by  implication,  authority  to  enforce  the  provisions  of 
such  Constitution.  It  would  be  treated,  not  as  an  exertion  of  legis- 
lative power,  but  as  a  sentence, — an  act  of  spoliation.  Due  protection 
of  the  rights  of  property  has  been  regarded  as  a  vital  principle  of  re- 
publican institutions.    "Next  in  degree  to  the  right  of  personal  liberty," 

2  See  St.  Louis,  etc.,  Ry.  v.  Hannibal  Un.  Dep.  Co.,  125  Mo.  82,  28  S.  W.  4S3 
(1894) ;  Long  Island  W.  S.  Co.  v.  Brooklyn,  166  U.  S.  685,  693,  694,  17  Sup. 
Ct.  71S,  41  L.  Ed.  1165  (1S97) ;  U.  S.  v.  Gettysburg  Elec.  Ry.,  160  U.  S.  66S, 
685,  16  Sup.  Ct.  427,  40  L.  Ed.  576  (1S96) ;  Cary  Library  v.  Bliss,  151  Mass. 
364,  379,  3S0,  25  N.   E.  92,  7  L.   R.  A.  765  (1S90). 

i  In  this  case,  Miller,  J.,  said :  "If  private  property  be  taken  for  public 
uses  without  just  compensation,  it  must  be  remembered  that,  when  the  four- 
teenth amendment  was  adopted,  the  provision  on  that  subject,  in  immediate 
juxtaposition  in  the  fifth  amendment  with  the  one  we  are  construing,  was 
left  out,  and  this  was  taken."    96  U.  S.  105,  24  L.  Ed.  616. 


Ch.  12)  EMINENT    DOMAIN  667 

Mr.  Broom,  in  his  work  on  Constitutional  Law,  says,  "is  that  of  en- 
joying private  property  without  undue  interference  or  molestation." 
Page  228.  The  requirement  that  the  property  shall  not  be  taken  for 
public  use  without  just  compensation  is  but  "an  affirmance  of  a  great 
doctrine  established  by  the  common  law  for  the  protection  of  private 
property.  It  is  founded  in  natural  equity,  and  is  laid  down  as  a  prin- 
ciple of  universal  law.  Indeed,  in  a  free  government,  almost  all  other 
rights  would  become  worthless  if  the  government  possessed  an  uncon- 
trollable power  over  the  private  fortune  of  every  citizen."  2  Story, 
Const.  §  1790;  1  Bl.  Comm.  138,  139;  Cooley,  Const.  Lim.  *559; 
People  v.  Piatt,  17  Johns.  (N.  Y.)  195.  215,  8  Am.  Dec.  382;  Brad- 
shaw  v.  Rogers,  20  Johns.  (N.  Y.)  103,  106;  Petition  of  Mt.  Washing- 
ton Road  Co.,  35  N.  II.  134,  142;  Parham  v.  Justices  of  Inferior 
Court,  9  Ga.  341,  348;  Ex  parte  Martin,  8  Eng.  (Ark.)  199,  206,  58 
Am.  Dec.  321,  et  seq. ;   Johnston  v.  Rankin,  70  N.  C.  550,  555. 

But  if,  as  this  court  has  adjudged,  a  legislative  enactment,  assuming 
arbitrarily  to  take  the  property  of  one  individual  and  give  it  to  an- 
other individual,  would  not  be  due  process  of  law,  as  enjoined  by  the 
fourteenth  amendment,2  it  must  be  that  the  requirement  of  due  pro- 
cess of  law  in  that  amendment  is  applicable  to  the  direct  appropria- 
tion by  the  state  to  public  use,  and  without  compensation,  of  the  pri- 
vate property  of  the  citizen.  The  legislature  may  prescribe  a  form 
of  procedure  to  be  observed  in  the  taking  of  private  property  for' 
public  use,  but  it  is  not  due  process  of  law  if  provision  be  not  made 
for  compensation.  Notice  to  the  owner  to  appear  in  some  judicial 
tribunal  and  show  cause  why  his  property  shall  not  be  taken  for  pub- 
lic use  without  compensation  would  be  a  mockery  of  justice.  Due 
process  of  law,  as  applied  to  judicial  proceedings  instituted  for  the 
taking  of  private  property  for  public  use  means,  therefore,  such  pro- 
cess as  recognizes  the  right  of  the  owner  to  be  compensated  if  his 
property  be  wrested  from  him  and  transferred  to  the  public.  The 
mere  form  of  the  proceeding  instituted  against  the  owner,  even  if 
he  be  admitted  to  defend,  cannot  convert  the  process  used  into  due 
process  of  law,  if  the  necessary  result  be  to  deprive  him  of  his  prop- 
erty without  compensation.  *  *  *  [Here  follow  quotations  from 
Fletcher  v.  Peck,  6  Cranch,  87,  135,  136,  3  L.  Ed.  162,  and  from  Loan 
Ass'n  v.  Topeka,  ante,  p.  582.] 

j  "The  taking  by  a  state  of  the  private  property  of  one  person  or  corpora- 
tion,  without   the  owner's  consent,   for  tin-   private  use  of  another.  Is   DOt    line 

process  of.  law,  and  is  a  violation  of  the  fourteenth  article  of  amendment  of 
the  Constitution  of.  the  Tinted  states.  Wilkinson  v.  Leland,  2  Pet.  627,  658, 
7  L.  Ed.  642  (1829);  Murray  v.  Hoboken  Co.,  18  Hew.  272,  278,  US  U  Ed.  872 
(1865);  Loan  Association  v.  Topeka,  -<>  Wall  665,  22  I..  Ed.  466  iIstu: 
Davidson  v.  New  Orleans,  9G  U.  S.  '.'7.  102,  24  I.  Ed.  inc.  (1877);  Cole  v.  La 
Grange,  113  U.  S.  1,  5  Snp.  Ct  416,  28  L.  Ed.  896  (1884);  Fallbroob  Dtat  v. 
Bradley,  164  U.  S.  112,  158,  161,  17  Sup.  Ct.  68,  II  I..  I'd.  .'^'.l  (1896);  Slate 
v.  Chicago,    M.   &    St.   P.    l!v.  Co..  .'If.   .Minn.   402,  31    N.   W.  365  (1881    "— <;ray. 

j..  iii  Mo.  Pac.  By.  v.  Nebraska,  104  u.  S.  iixi,  417,  17  Sup.  ct.  KiO,  41  L. 
Kd.    is;)   (1896). 


668  FUNDAMENTAL    RIGHTS  (Part    2 

In  the  early  case  of  Gardner  v.  Newburgh,  2  Johns.  Ch.  162,  7  Am. 
Dec.  526,  there  being  no  provision  in  the  Constitution  of  the  state  of 
New  York  on  the  subject,  Chancellor  Kent  said  that  it  was  a  principle 
of  natural  equity,  recognized  by  all  temperate  and  civilized  govern- 
ments, from  a  deep  and  universal  sense  of  its  justice,  that  fair  com- 
pensation be  made  to  the  owner  of  private  property  taken  for  public 
use.  In  Sinnickson  v.  Johnson,  17  N.  J.  Law,  129,  145,  34  Am.  Dec. 
184,  it  was  held  to  be  a  settled  principle  of  universal  law,  reaching 
back  of  all  constitutional  provisions,  that  the  right  to  compensation  was 
an  incident  to  the  exercise  of  the  power  of  eminent  domain ;  that  the 
one  was  so  inseparably  connected  with  the  other  that  they  may  be 
said  to  exist,  not  as  separate  and  distinct  principles,  but  as  parts  of 
one  and  the  same  principle;  and  that  the  legislature  "can  no  more 
take  private  property  for  public  use  without  just  compensation  than  if 
this  restraining  principle  were  incorporated  into,  and  made  part  of,  its 
state  Constitution." 

These  cases  are  referred  to  with  approval  in  Pumpellv  v.  Green 
Bay  Co.,  13  Wall.  166,  178,  20  L.  Ed.  557,  and  in  Monongahela  Nav. 
Co.  v.  U.  S.,  14S  U.  S.  312,  325,  13  Sup.  Ct.  622,  626,  37  L.  Ed.  463, 
this  court  saying  in  the  latter  case:  "And  in  this  there  is  a  natural 
equity  which  commends  it  to  every  one.  It  in  no  wise  detracts  from 
the  power  of  the  public  to  take  whatever  may  be  necessary  for  its 
•  uses;  while,  on  the  other  hand,  it  prevents  the  public  from  loading 
upon  one  individual  more  than  his  just  share  of  the  burdens  of  gov- 
ernment, and  says  that,  when  he  surrenders  to  the  public  something 
more  and  different  from  that  which  is  exacted  from  other  members 
of  the  public,  a  full  and  just  equivalent  shall  be  returned  to  him." 

In  Searl  v.  School  Dist,  133  U.  S.  553,  562,  10  Sup.  Ct.  374,  33  L. 
Ed.  740,  and  in  Sweet  v.  Rechel,  159  U.  S.  380,  398,  16  Sup.  Ct.  43, 
40  L.  Ed.  188,  the  court  said  that  it  was  a  condition  precedent  to  the 
exercise  of  the  power  of  eminent  domain  that  the  statute  make  provi- 
sion for  reasonable  compensation  to  the  owner. 

In  Scott  v.  Toledo,  36  Fed.  385,  395,  396,  1  L-  R.  A.  688,  the  late  Mr. 
Justice  Jackson,  while  circuit  judge,  had  occasion  to  consider  this 
question.  After  full  consideration  that  able  judge  said :  "What- 
ever may  have  been  the  power  of  the  states  on  this  subject  prior  to 
the  adoption  of  the  fourteenth  amendment  to  the  Constitution,  it  seems 
clear  that,  since  that  amendment  went  into  effect,  such  limitations  and 
restraints  have  been  placed  upon  their  power  in  dealing  with  individual 
rights  that  the  states  cannot  now  lawfully  appropriate  private  property 
for  the  public  benefit  or  to  public  uses  without  compensation  to  the 
owner,  and  that  any  attempt  so  to  do,  whether  done  in  pursuance  of  a 
constitutional  provision  or  legislative  enactment,  whether  done  by  the 
legislature  itself  or  under  delegated  authority  by  one  of  the  subordinate 
agencies  of  the  state,  and  whether  done  directly,  by  taking  the  property 
of  one  person  and  vesting  it  in  another  or  the  public,  or  indirectly, 
through  the  forms  of  law,  by  appropriating  the  property  and  requir- 


Ch.  12)  EMINENT   DOMAIN  669 

ir.g  the  owner  thereof  to  compensate  himself,  or  to  refund  to  another 
the  compensation  to  which  he  is  entitled,  would  be  wanting  in  that 
'due  process  of  law'  required  by  said  amendment.  The  conclusion  of 
the  court  on  this  question  is  that,  since  the  adoption  of  the  fourteenth 
amendment,  compensation  for  private  property  taken  for  public  uses 
constitutes  an  essential  element  in  'due  process  of  law,'  and  that  with- 
out such  compensation  the  appropriation  of  private  property  to  pub- 
lic uses,  no  matter  under  what  form  of  procedure  it  is  taken,  would 
violate  the  provisions  of  the  federal  Constitution."  To  the  same  ef- 
fect are  Henderson  v.  Railway  Co.,  21  Fed.  359,  and  Baker  v.  Village 
of  Norwood,  74  Fed.  997.    *    *    * 

In  our  opinion,  a  judgment  of  a  state  court,  even  if  it  be  authorized 
by  statute,  whereby  private  property  is  taken  for  the  state  or  under 
its  direction  for  public  use,  without  compensation  made  or  secured  to 
the  owner,  is,  upon  principle  and  authority,  wanting  in  the  due  process 
of  law  required  by  the  fourteenth  amendment  of  the  Constitution  of 
the  United  States,  and  the  affirmance  of  such  judgment  by  the  highest 
court  of  the  state  is  a  denial  by  that  state  of  a  right  secured  to  the 
owner  by  that  instrument.  *  *  *  [A  majority  of  the  court,  BREW- 
ER, J.,  dissenting,  thought  the  compensation  fixed  not  clearly  unrea- 
sonable.] 

Judgment  affirmed. * 


AMERICAN  PRINT  WORKS  v.  LAWRENCE  (1851)  23  N. 
J.  Law,  590,  615,  57  Am.  Dec.  420.  A  New  York  statute  au- 
thorized the  mayor  of  a  city  to  order  the  destruction  of  property 
necessary  to  stay  a  conflagration.  Lawrence,  mayor  of  New  York 
City,  ordered  the  destruction  of  property  owned  by  the  plaintiff,  in 
order  to  stay  the  great  fire  of  1835,  and  was  sued  therefor.  One  of 
the  questions  in  the  case  being  whether  his  act  was  an  exercise  of  the 
right  of  eminent  domain,  Randolph,  J.,  said: 

"I  think  the  destruction  of  the  property  in  question  does  not  come 
under  the  right  of  eminent  domain,  but  under  the  right  of  necessity. 
of  self-preservation.  The  right  of  eminent  domain  is  a  public  right ; 
it  arises  from  the  laws  of  society,  and  is  vested  in  the  state  or  its 

•  The  federal  Constitution  and  all  of  the  state  Constitutions  except  those 
of  Kansas,  Now  Hampshire,  and  North  Carolina,  now  contain  express  prohibi- 
tions against   the  taking  of  private  property   f"r  public  use  wlthoi 
pensation.    in  Kansas,  corporations  are  thus  prohibited.    I  art.  12, 

|  4.  These  provisions  are  collected  in  l  Lewis.  Eminent  Domain  (3d  Ed.) 
SS  15-61.  In  the  states  mentioned  the  same  result  has  been  reached  by  hold- 
ing, as  in  the  principal  case,  that  the  "due  process  of  law"  chius 

matter.     BucUwaltor  v.  School  Dlst,  65  Kan.  663,  666,  G07.  70  1'. 
Opinion  of  Justices,  66  N.  n.  629,  33    \       1676  (1891);    -  irfolk  & 

Carolina  R.  Et.,  m  N.  C.  878,  16  B.  E.  181,  it  I..  K.  A    •  Similar 

decisions  were   rendered  under  a  number  of  earlier  State   Constitutions  that 
cpress  prohibition,    i      tra  (as  to  the  opening  of  public  roads) : 

Stale  v.   Dawson.  .".    Hill  iS.   C.)   166  (1836). 


670  FUNDAMENTAL    RIGHTS  (Part  2 

grantee,  acting  under  the  right  and  power  of  the  state,  and  it  is  the 
right  to  take  or  destroy  private  property  for  the  use  or  benefit  of  the 
state,  or  of  those  acting  under  and  for  it.  The  right  of  necessity 
arises  under  the  law  of  nature;  is  older  than  the  laws  of  society  or 
society  itself.  It  is  the  right  of  self-defence,  of  self-preservation, 
whether  applied  to  persons  or  to  property.  It  is  a  private  right  vested 
in  every  individual,  and  with  which  the  rights  of  the  state  or  state  ne- 
cessity has  nothing  to  do.  Of  the  right  of  eminent  domain  Constitu- 
tions take  cognizance,  and  say  that  'private  property  shall  not  be 
taken  without  just  compensation,'  because  it  is  a  public  right  belong- 
ing to  the  state;  but  of  the  right  of  necessity,  Constitutions  take  no 
further  notice  than  they  do  with  any  other  private  right,  all  being 
left  under  the  regulation  of  the  law  and  the  legislature.  A  statute  is 
passed  to  take  the  land  or  building  or  property  of  an  individual  for 
a  fortification,  a  lighthouse,  or  a  railroad :  this  comes  under  the  right 
of  eminent  domain,  and  the  Constitution  steps  in  and  requires  pay- 
ment. A  right  of  self-defence,  of  self-preservation,  without  regard 
to  the  lives  or  property  of  others,  exists  by  necessity  in  every  in- 
dividual placed  in  certain  situations  at  sea  or  on  land,  in  the  country 
or  in  a  city;  and  if  the  legislature  think  proper  to  pass  a  statute  to 
regulate  a  portion  of  that  right  in  a  particular  city,  and  instead  of 
leaving  its  exercise  to  the  blind  action  of  all,  make  it  the  duty  of  cer- 
tain officers  to  do  the  act,  does  this  convert  what  was  before  a  mere 
right  of  necessity  in  individuals  into  a  public  right  of  eminent  do- 
main? If  it  does,  I  am  at  an  utter  loss  to  understand  the  transmuta- 
tion, and,  notwithstanding  opinions  to  the  contrary,  I  do  not  believe 
that  the  statute  of  New  York  under  consideration  has  any  thing  to 
do  with  the  right  of  eminent  domain,  nor  have  I  ascertained  that  in 
any  particular  it  is  unconstitutional."  * 


ELDRIDGE  v.  TREZEVANT. 

(Supreme  Court  of  United  States,  1S96.    160  U.  S.  452,  16  Sup.  Ct.  345,  40 
L.  Ed.  490.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Western  Dis- 
trict of  Louisiana.  Acting  under  state  authority  and  in  virtue  of  the 
recommendations  of  the  state  board  of  engineers,  Trezevant,  a  state 
contractor  for  the  work,  was  proceeding  to  construct  a  large  levee 
across  Eldridge's  plantation  to  protect  a  dangerous  and  caving  river 
front.  The  latter's  bill  for  an  injunction  was  dismissed  in  the  above- 
named  court,  and  this  appeal  taken.  Other  facts  appear  in  the  opin- 
ion below.] 

i  See,  also,  the  remarks  of  Carpenter,  J.,  In  the  same  case,  23  N.  J.  Law, 
at  pages  604-607,  57  Am.  Dec.  420  (1851);  and  of  Green,  C.  J.,  on  a  prior 
hearing,  21  N.  J.  Law,  at  pages  256-260  (1847). 


Ch.  12)  EMINENT    DOMAIN  671 

Mr.  Justice  Shiras.  *  *  *  The  plaintiff  expressly  admits,  in 
his  bill,  that,  although  the  Constitution  of  the  state  of  Louisiana  con- 
tains a  provision  that  private  property  shall  not  be  taken  or  damaged 
without  adequate  and  just  compensation  being  first  paid,  the  laws  of 
the  state,  as  interpreted  by  the  supreme  court  of  the  state,  provide  no 
remedy  for  cases  of  proceedings  under  the  levee  laws,  and  that  the 
supreme  court  of  the  state  has  decided  that  such  taking,  damage,  and 
destruction  of  property  for  the  purpose  of  building  a  public  levee  is  an 
exercise  of  the  police  power  of  the  state,  and  damnum  absque  injuria, 
because  the  state  has  a  right  of  servitude  or  easement  over  the  lands 
on  the  shores  of  navigable  rivers  for  the  making  and  repairing  of 
levees,  roads,  and  other  public  works.  But  he  contends  that  as  he 
cannot  sue  the  state  for  compensation,  and  as  an  action  at  law,  if 
such  would  lie,  would  not  furnish  that  just  and  adequate  compensa- 
tion first  paid  contemplated  by  the  provision  of.  the  state  Constitution, 
he  has  a  right,  as  a  citizen  of  another  state,  to  invoke,  in  the  Circuit 
Court  of  the  United  States,  the  protection  of  the  fourteenth  amend- 
ment of  the  Constitution  of  the  United  States,  which  provides  that  no 
state  shall  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  its  laws.     *     *     * 

It  is  important,  however,  to  observe  the  ground  upon  which  the 
state  legislative  and  judicial  authorities  base  their  action.  That 
ground  is  found  in  the  doctrine  existing  in  the  territory  of  Louisiana 
before  its  purchase  by  the  United  States,  and  continuing  to  this  time, 
— that  lands  abutting  on  the  rivers  and  bayous  are  subject  to  a  servi- 
tude in  favor  of  the  public,  whereby  such  portions  thereof  as  are  nec- 
essary for  the  purpose  of  making  and  repairing  public  levees  may 
be  taken,  in  pursuance  of  law,  without  compensation.  This  doctrine 
is  said  to  have  been  derived  from  the  Code  Napoleon.     *     *     * 

But  whether  the  servitude  in  question  was  derived  from  French 
or  Spanish  sources,  or  from  local  and  natural  causes,  we  need  not 
inquire,  because  it  is  explicitly  asserted  in  the  Civil  Code  of  Louisiana 
(article  665),  in  the  following  terms :  "Servitudes  imposed  for  the 
public  or  common  utility  relate  to  the  space  which  is  to  be  left  for 
public  use  by  the  adjacent  proprietors,  on  the  shores  of  navigable 
rivers,  and  for  the  making  and  repairing  of  levees,  roads,  and  other 
public  or  common  works.  All  that  relates  to  this  kind  of  servitude  is 
determined  by  laws  or  particular  regulations." 

In  the  case  of  Zenor  v.  Parish  of  Concordia,  7  La.  Ann.  150,  where 
the  legislature  had  enacted  that  the  police  jury  of  a  parish  exposed 
to  inundation  should  have  plenary  power  to  locate  and  construct 
levees,  and  where  such  police  jury,  in  pursuance  of  these  powers,  had 
placed  and  built  a  levee  on  the  lands  of  the  complainant,  greatly  to 
his  detriment,  it  was  held  that  the  enactment  was  valid,  and  that  no 
liability  for  damages  was  caused  by  a  bona  fide  proceeding  under  it. 
The  court  said:    "In  this  state,  so  much  exposed  to  ruinous  inunda- 


*>72  FUNDAMENTAL    RIGHTS  (Part   2 

tions,  the  public  have  the  undoubted  right,  on  the  shores  of  the  Mis- 
sissippi river,  to  the  use  of  the  space  of  ground  necessary  for  the 
making  and  repairing  of  the  public  levees  and  roads.  Civ.  Code,  art. 
665.  It  was  the  condition  of  the  ancient  grants  of  land  on  the  Mis- 
sissippi river,  and  sufficient  depth  was  always  given  to  each  tract  to 
prevent  the  exercise  of  the  public  rights  from  proving  ruinous  to  the 
individual.  Speculations  and  other  motives  have,  in  later  times, 
caused  the  division  and  sale  of  some  tracts,  and  entries  of  others,  with 
large  fronts  and  little  depth,  in  opposition  to  the  general  policy  of 
the  country.  Thus,  in  the  present  case,  the  plaintiff  has  scarcely  any 
depth,  with  a  large  front,  in  a  deep  bend,  with  a  curving  bank.  The 
policy  of  the  country  and  the  laws  of  the  land,  made  for  the  general 
safety,  cannot  yield  to  cases  of  individual  hardship.  Those  who  pur- 
chase and  own  the  front  on  the  Mississippi  river  gain  all  that  is  made 
by  alluvion,  and  lose  all  that  is  carried  away  by  abrasion.  And  those 
who  choose  to  purchase  tracts  with  little  depth,  in  caving  bends,  ex- 
pose themselves,  knowingly,  to  total  loss,  and  must  suffer  the  conse- 
quences when  they  occur.    They  suffer  damnum  absque  injuria." 

In  Dubose  v.  Commissioners,  11  La.  Ann.  165,  the  plaintiff  sued  for 
damages  occasioned  to  his  land  by  the  acts  of  the  commissioners  in 
changing  the  line  of  the  public  levee ;  but  the  court,  citing  the  provi- 
sions of  Civ.  Code,  art.  665,  held  that  "the  law  concerning  the  ex- 
propriation of  private  property  for  public  use  does  not  apply  to  such 
lands  upon  the  banks  of  navigable  rivers  as  may  be  found  necessary 
for  2evee  purposes.  The  quantity  of  land  to  be  taken  for  such  pur- 
poses presents  a  question  of  policy  or  administration  to  be  decided 
by  the  local  authorities,  whose  decision  should  not  be  revised  by  this 
tribunal,  except  for  the  most  cogent  reasons,  and  where  there  has 
been  manifest  oppression  or  injustice."     *     *     * 

The  first  contention  of  the  plaintiff  in  error  is  that,  as  it  is  ad- 
mitted that  he  owns  the  land  in  fee  through  title  derived  by  patent 
from  the  United  States,  without  reservation,  whatever  may  have 
been  the  conditions  of  the  ancient  grants,  no  such  condition  attaches 
to  his  ownership,  and  the  lands,  although  bordering  on  a  navigable 
stream,  are  as  much  within  the  protection  of  the  constitutional  prin- 
ciple awarding  compensation  as  other  property.  In  other  words,  the 
claim  is  that  the  servitude  under  which  are  held  lands  whose  titles 
are  derived  by  grant  from  Spain  or  France,  or  from  the  state,  does 
not  attach  to  lands  whose  titles  are  derived  from  the  United  States. 

Previous  decisions  of  this  court  furnish  a  ready  answer  to  this  con- 
tention. *  *  *  [Here  are  discussed  various  cases  holding  that 
the  public  lands  of  the  United  States  are  subject  to  the  riparian  laws 
of  the  states  in  which  they  are  situated.] 

These  decisions  not  only  dispose  of  the  proposition  that  lands  sit- 
uated within  a  state,  but  whose  title  is  derived  from  the  United 
States,  are  entitled  to  be  exempted  from  local  regulations  admitted  to 
be  applicable  to  lands  held  by  grant  from  the  state,  but  also  of  the 


Ch.  12)  BMINENT    DOMAIN  673 

other  proposition  that  the  provisions  of  the  fourteenth  amendment 
extend  to  and  override  public  rights,  existing  in  the  form  of  servi- 
tudes or  easements,  held  by  the  courts  of  a  state  to  be  valid  under  the 
Constitution  and  laws  of  such  state.     •    *    * 

Decree  affirmed.1 

[Brewer,  J.,  dissented.] 


FAIRCHILD  v.  ST.  PAUL. 
(Supreme  Court  of  Minnesota,  1891.    46  Minn.  540,  49  N.  W.  325.) 

[Appeal  by  plaintiffs  from  a  judgment  of  the  Ramsey  County  Dis- 
trict Court.    The  facts  appear  in  the  opinion.] 

MITCHELL,  J.  This  was  an  action  to  recover  damages  for  certain 
alleged  acts  of  trespass  in  removing  stone  from  the  premises  of  the 
plaintiffs.  The  defendant  justified  the  acts  on  the  ground  that  it  had 
acquired  a  title  to  the  land  for  the  purposes  of  a  public  street.  The 
case  was  tried  upon  the  theory  that  its  decision  depended  on  the  ques- 
tion whether  or  not  the  city  of  St.  Paul  had  acquired  a  title  in  fee,  and 
by  stipulation  it  was  agreed  that  the  court  should  determine  two  ques- 
tions, viz.:  First,  had  the  defendant  the  power  an.l  right  to  condemn 
the  fee  of  land  for  street  purposes?  and,  if  so,  second,  had  the  defend- 
ant duly  condemned,  for  such  purposes,  the  fee  of  the  land  in  question? 

1.  The  main  contention  of  the  plaintiffs  upon  the  argument  was,  to 
use  their  own  language,  "that  the  public  exigencies  do  not  demand  the 
taking  and  condemnation  of  the  absolute  fee-simple  title  to  land  for  the 
purpose  of  highways  and  streets  ;  that  the  public  wants  are  supplied  by 
the  enjoyment  of  an  easement;  and  that  any  act  of  the  legislature 
which  assumes  and  attempts  to  authorize  a  municipality  to  take  and 
condemn  the  absolute  fee-simple  title  to  land  for  such  purposes  is 
unconstitutional  and  void."  More  briefly  stated,  the  proposition  is 
that  the  legislature  cannot  authorize  the  taking  of  any  greater  estate  in 
land  for  public  use  than  is  necessary ;  that  an  estate  in  fee  is  not  nec- 
essary for  the  purposes  of  a  street ;  therefore  the  legislature  cannot 
authorize  the  taking  of  such  an  estate  for  such  purposes.  While  we 
have  given  the  question  the  careful  examination  due  to  the  elaborate 
brief  and  very  earnest  argument  of  the  learned  counsel,  yet  it  has  never 
seemed  to  us  that  there  was  anything  in  his  contention. 

In  this  case  it  must  be  conceded  that  the  legislature,  if  it  had  the 
power  to  do  so,  has  given  the  city  of  St.  Paul  authority  to  condemn  an 
estate  in  fee  for  street  purposes;  the  language  of  the  charter  being: 
"In  all  cases  the  land  taken  and  condemned  in  the  manner  aforesaid 

»  Compare  Chicago,  eta,  Ry.  r.   Illinois,  post,  p.  734   (public  easement  of 
drainage).    See,  also,  Campbell  v.  Race,  7  Cush.  (Mass.)  408,  :>i  Am  D 
(1851)  (public  right  to  deviate  upon  land  adjoining  highway,  when  latter  tm 
passable). 

Hall  Const.L. — 13 


674  FUNDAMENTAL    RIGHTS  (PaFt    2 

(for  streets)  shall  be  vested  absolutely  in  the  city  of  St.  Paul  in  fee- 
simple."  Mun.  Code  1884,  §  153  (Sp.  Laws  1874,  p.  59,  §  17).  There 
is  nothing  better  settled  than  that,  the  power  of  eminent  domain  being 
an  incident  of  sovereignty,  the  time,  manner,  and  occasion  of  its  ex- 
ercise are  wholly  in  the  control  and  discretion  of  the  legislature,  ex- 
cept as  restrained  by  the  Constitution.  It  rests  in  the  wisdom  of  the 
legislature  to  determine  when  and  in  what  manner  the  public  neces- 
sities require  its  exercise ;  and  with  the  reasonableness  of  the  exercise 
of  that  discretion  the  courts  will  not  interfere.  Wilkin  v.  First  Div., 
etc.,  R.  Co.,  16  Minn.  271  (Gil.  244) ;  Weir  v.  St.  Paul,  S.  &  T.  F.  R. 
Co.,  18  Minn.  155  (Gil.  139).  As  the  legislature  is  the  sole  judge  of 
the  public  necessity  which  requires  or  renders  expedient  the  exercise  of 
the  power  of  eminent  domain,  so  it  is  the  exclusive  judge  of  the 
amount  of  land,  and  of  the  estate  in  land,  which  the  public  end  to  be 
subserved  requires  shall  be  taken.1  The  only  limitation — at  least,  the 
only  one  applicable  to  a  case  like  the  present — which  the  Constitution 
imposes  upon  the  exercise  of  the  right  of  eminent  domain  by  the  leg- 
islature is  that  private  property  shall  not  be  taken  for  public  use  with- 
out just  compensation  therefor  first  paid  or  secured.  Of  course,  there 
is  the  further  limitation,  necessarily  implied,  that  the  use  shall  be  a 
public  one ;  upon  which  question  the  determination  of  the  legislature 
is  not  conclusive  upon  the  courts.  But,  when  the  use  is  public,  the 
necessity  or  expediency  of  appropriating  any  particular  property  is  not 
a  subject  of  judicial  cognizance.  Consequently,  if  in  the  legislative 
judgment  it  is  expedient  to  do  so,  it  has  the  power  expressly  to  au- 
thorize a  municipal  corporation  compulsorily  to  acquire  the  absolute 
fee-simple  to  lands  of  private  persons  condemned  for  street  or  any 
other  public  purpose.  The  authorities  are  so  numerous  and  uniform 
to  this  effect  that  an  extended  citation  of  them  is  unnecessary.  See, 
however,  Dill.  Mun.  Corp.  §  589;  Cooley,  Const.  Lim.  688;  Lewis, 
Em.  Dom.  277;  Elliott,  Roads  &  S.  172;  Mills,  Em.  Dom.  §§  50,  51 ; 
Boom  Co.  v.  Patterson,  98  U.  S.  403,  406,  25  L.  Ed.  206 ;  Sweet  v. 
Buffalo,  etc.,  Ry.  Co.,  79  N.  Y.  293,  299. 

It  is  often  laid  down  as  the  law  that  the  taking  of  property  must 
always  be  limited  to  the  necessity  of  the  case,  and,  consequently,  no 
more  can  be  appropriated  in  any  instance  than  is  needed  for  the  par- 
ticular use  for  which  the  appropriation  is  made.  But  it  will  be  found 
that  this  is  almost  invariably  said,  not  in  discussing  the  extent  of  the 
power  of  the  legislature,  but  with  reference  to  the  construction  of 
statutes  granting  authority  to  exercise  the  right  of  eminent  domain,  and 
where  the  authority  to  take  a  certain  quantity  of  land  or  a  particular 
estate  therein  depended,  not  upon  an  express  grant  of  power  to  do  so, 

iThe  determination  of  these  legislative  questions  may  be  delegated  to 
municipalities,  public  officers,  or  private  corporations  which  have  the  power  of 
eminent  domain,  and  may  be  decided  by  them  without  a  hearing  to  owners  of 
property  affected.  People  v.  Smith,  21  N.  Y.  595  (1860);  Boston  v.  Talbot, 
206  Mass.  82,  90,  91  N.  E.  1014  (1910). 


Ch.  12)  EMINENT    DOMAIN  675 

but  upon  the  existence  of  an  alleged  necessity,  from  which  the  disputed 
power  is  to  be  implied.  This  distinction  is  clearly  brought  out  by 
Justice  Cornell  in  Milwaukee  &  St.  Paul  Ry.  Co.  v.  City  of  Faribault, 
23  Minn.  167.  Upon  the  principle  that  statutes  conferring  compulsory 
powers  to  take  private  property  are  to  be  strictly  construed,  it  follows 
that,  when  the  estate  or  interest  to  be  taken  is  not  defined  by  the 
lature,  only  such  an  estate  or  interest  can  be  taken  as  is  necessary  to 
accomplish  the  purpose  in  view,  and,  when  an  easement  is  sufficient,  no 
greater  estate  can  be  taken.  It  is  on  this  principle  that  where  the 
legislature  has  authorized  the  taking  of  land  for  the  purposes  of  streets, 
without  defining  the  estate  that  may  be  taken,  or  expressly  authorizing 
the  taking  of  the  fee,  it  is  held  that  only  an  easement  can  be  taken. 
This  is  construed,  under  such  statutes,  to  be  the  extent  of  the  grant  of 
authority ;  but  no  well-considered  case  can  be  found  which  holds  that 
the  legislature  might  not  authorize  the  taking  of  the  fee,  if  it  deemed 
it  expedient.  *  *  * 
Judgment  affirmed.' 

«  Within  the  same  principle,  the  legislature.  In  the  Interest  of  economy, 
may  provide  for  taking  a  fee  in  any  property  so  damaged  by  a  public  im- 
provement that  compensation  must  be  made  therefor,  even  though  It  Is  In- 
tended to  dispose  of  this  later.  Boston  v.  Talbot,  206  Masa  82,  '.X>,  91  \.  B. 
1014  (1910),  Knowlton,  C.  J.,  saying:  "The  legislature  well  might  determine 
that  a  taking  in  fee  might  be  necessary  in  certain  eases.  In  reference  i 
sonably  economical  management  of  the  business  In  the  public  Interest 

i  the  use  of  the  fee  would  not  be  needed  permanently,  and  mlgnt  an 
thorize  a  subsequent  sale  or  leasing  of  any  rights  In  the  property  U 
no  longer  devoted  to  the  public  use." 

See,  also,  Dingley  v.  Roston.  post.  p.  I9fl,  note  (fee  taken  In  low  lands  raised 
18  feet  at  public  expense  to  promote  public  health). 

in  some  states  the  delegation  of  the  power  of  eminent  domain  Is  subject 
to  the  implied  condition  of  reasonable  necessity  for  its  use,  and  this  Is  a 
judicial  question.  Tracy  v.  Ellzabetbtown,  etc.,  Ry..  80  Ky. 
(1SS2).  And  commonly,  as  a  matter  of  statutory  construction,  delegated  pow- 
ers of  eminent  domain  are  thus  limited,  both  as  to  amount  of  land  and  Inter- 
est to  be  taken,  unless  the  contrary  Intention  clearly  appears.  Wlnnlslmmett 
Co.  v.  Graeby,  209  Mass.  1.  95  N.  B.  293  (1911).  Compare  Lynch  v.  Forbes,  161 
Mass  302,  37  X.  B,  437,  42  Am.  St.  Rep.  102  (1894);  Sweet  v.  Bechel,  150  0. 
S  380  16  Sup.  Ct  43.  40  L.  Ed.  1SS  (1895);  Matter  of  t'nion  Ferry  Co.,  98 
X.  Y.  139  (1885);  Matter  of  City  of  New  York,  190  N.  Y.  850,  857,  31 
E.  299,  16  I*  H.  A.  (N.  S.)  335  I  I 

Seme  Constitutions,  as  those  of  Maine  and  Vermont,  expressly  limit  the  ex- 
ercise of  the  power  to  cases  of  necessity     Here  the  curt-  ma: 

to  determine  this  question.     See  Stearns  v.  T.arre.  73  Vt.  281,   50  Atl. 
18  U.  R.  A.  240,  S7  Am.  St.  Rep.  7-1    (1900);    Const.   Me.  (1M9)  art  1. 
i  21;   Const.  Vt.  (1793)  c.  1,  §  2.     In  Michigan  the  necessity  must   be  left  to  a 
jury'or  commissioners.  Const.  Mich.  (1850)  art  18,  §  2;  and  to  a  Jury  In  Wis- 
consin, when  a  municipality  takes  property,  Const  Wis.  (1MS>  art.  11,  i  2. 


C76  FUNDAMENTAL    IUGUT3  (Part   2 


SECTION  2.— PUBLIC  USE 


PEOPLE  v.  SALEM  (1870)  20  Mich.  452,  480-483,  4  Am.  Rep. 
400,  CoolEy,  J. :     . 

"If  we  examine  the  subject  critically,  we  shall  find  that  the  most 
important  consideration  in  the  case  of  eminent  domain  is  the  necessity 
of  accomplishing  some  public  good  which  is  otherwise  impracticable, 
and  we  shall  also  find  that  the  law  does  not  so  much  regard  the  means 
as  the  need.  The  power  is  much  nearer  akin  to  that  of  the  public 
police  than  to  that  of  taxation;  it  goes  but  a  step  further,  and  that 
step  is  in  the  same  direction.  Every  man  has  an  abstract  right  to 
the  exclusive  use  of  his  own  property  for  his  own  enjoyment  in  such 
manner  as  he  shall  choose;  but  if  he  should  choose  to  create  a  nui- 
sance upon  it,  or  to  do  anything  which  would  preclude  a  reasonable 
enjoyment  of  adjacent  property,  the  law  would  interfere  to  impose 
restraints.  He  is  said  to  own  his  private  lot  to  the  center  of  the  earth, 
but  he  would  not  be  allowed  to  excavate  it  indefinitely,  lest  his  neigh- 
bor's lot  should  disappear  in  the  excavation.  The  abstract  right  to 
make  use  of  his  own  property  in  his  own  way  is  compelled  to  yield  to 
the  general  comfort  and  protection  of  community,  and  to  a  proper 
regard  to  relative  rights  in  others.  The  situation  of  his  property  may 
even  be  such  that  he  is  compelled  to  dispose  of  it,  because  the  law 
will  not  suffer  his  regular  business  to  be  carried  on  upon  it.  A  needful 
and  lawful  species  of  manufacture  may  so  injuriously  affect  the  health 
and  comfort  of  the  vicinity  that  it  cannot  be  tolerated  in  a  densely 
settled  neighborhood;  and  therefore  the  owner  of  a  lot  in  that  neigh- 
borhood will  not  be  allowed  to  engage  in  that  manufacture  upon  it,  even 
though  it  be  his  regular  and  legitimate  business.  The  butcher,  in  the 
vicinity  of  whose  premises  a  village  has  grown  up,  finds  himself  com- 
pelled to  remove  his  business  elsewhere,  because  his  right  to  make  use 
of  his  lot  as  a  place  for  the  slaughter  of  cattle  has  become  inconsistent 
with  the  superior  right  of  community  to  the  enjoyment  of  pure  air 
and  the  accompanying  blessings  and  comforts.  The  owner  of  a  lot 
within  the  fire  limits  of  a  city  may  be  compelled  to  part  with  the  prop- 
erty because  he  is  unable  to  erect  a  brick  or  stone  structure  upon  it, 
and  the  local  regulations  will  not  permit  one  of  wood. 

"Eminent  domain  only  recognizes  and  enforces  the  superior  right  of 
the  community  against  the  selfishness  of  individuals  in  a  similar  way. 
Every  branch  of  needful  industry  has  a  right  to  exist,  and  community 
has  a  right  to  demand  that  it  be  permitted  to  exist,  and  if  for  that 
purpose  a  peculiar  locality  already  in  possession  of  an  individual  is 
essential,  the  owner's  right  to  undisturbed  occupancy  must  yield  to 
the  superior  interest  of  the  people.    A  railroad  cannot  go  around  the 


Ch.  12)  BMINBNT    DOMAIN  C77 

farm  of  every  unwilling  person,  and  the  business  of  transporting  per- 
sons and  property  for  long  distances  by  rail,  which  has  been  found 
so  essential  to  the  general  enjoyment  and  welfare  could  never  have 
existed  if  it  were  in  the  power  of  any  unwilling  person  to  stop  the  road 
at  his  boundary,  or  to  demand  unreasonable  terms  as  a  condition  of 
passing  him.  The  law  interferes  in  these  cases,  and  regulates  the 
relative  rights  of  the  owner  and  of  the  community  with  as  strict  re- 
gard to  justice  and  equity  as  the  circumstances  will  permit.  It  does 
not  deprive  the  owner  of  his  property,  but  it  compels  him  to  dispose  of 
so  much  of  it  as  is  essential  on  equitable  terms.  While,  therefore, 
eminent  domain  establishes  no  industry,  it  so  regulates  the  relative 
rights  of  all  that  no  individual  shall  have  it  in  his  power  to  preclude 
its  establishment. 

"It  is  proper,  however,  to  add  the  remark,  that  even  where  the 
necessity  is  conceded,  I  do  not  understand  that  the  right  of  eminent 
domain  can  be  exercised  on  behalf  of  private  parties  or  corpor 
unless  the  state  in  permitting  it  reserves  to  itself  a  right  to  supervise 
and  control  the  use  by  such  regulations  as  shall  ensure  to  the  public 
the  benefit  promised  thereby,  and  as  shall  preclude  the  purpose  which 
the  public  had  in  view  in  authorizing  the  appropriation  being  defeated 
by  partiality  or  unreasonably  selfish  action  on  the  part  of  those  who 
only  on  the  ground  of  public  convenience  and  welfare  have  been  suf- 
fered to  make  the  appropriation. 

"In  the  case  of  Sadler  v.  Langham,  34  Ala.  311,  it  was  held  by  the 
Supreme  Court  of  Alabama,  that  the  right  of  eminent  domain  might 
be  exercised  on  behalf  of  mills  which  ground  grain  for  toll,  and  wort 
compelled  by  law  to  render  impartial  service  for  all,  when  it  co- 
be  for  other  mills;  and  the  distinction  made  is  a  very  reasonable  one. 
Except  that  the  necessity  is  wanting,  there  would  be  the  same  justifica- 
tion for  the  condemnation  of  lands  for  stables  for  the  public  draymen 
of  a  city,  as  for  a  way  for  a  railroad  :  the  like  power  of  regulating 
the  use  existing  in  each  case,  and  the  purpose  in  one  being  public  in 
precisely  the  same  sense  as  in  the  other."  * 

npaxe  the  sumo  Judge's  conception  of  a  public  use  for  purposes  of  tax- 
ation. In  the  extract  from  the  same  case  printed  ante,  p.  B85.  See,  also,  In  the 
.vain,-  opinion,  JO  Mich,  at  pages   177.  178,   I    '.ni    Rep.  400. 

CoHtfm'U now ai  Provisions. — In  the  present   (1(  Hons  of  Ala- 

bama, Colorado.  Missouri.  Oklahoma.  South  Carolina.  Washington,  ami 
Wyoming  the  taking   of  private  properly  for  private  0*  •  ■  ly   tor- 

bidden,  witii  certain  relating  to  private  ways,  irrigation,  di 

mining,  and  mining.    In  a  number  of  [rations  these  purpi 

declared  to  be  "public  uses."  The  ordinary  provision  simply  forbids  private 
property  to  be  taken  for  public  use  without  just  compensation.     Foi 

and   "public  Plirpi 

Em.    I '"in.   (3d   Ed.)   jjjj   1,   315.     The  Courts  commonly   use   the   two 
phrases  interchangeably. 


f)78  FUNDAMENTAL    RIGHTS  (Part  2 

TALBOT  v.  HUDSON. 
(Supreme  Judicial  Court  of  .Massachusetts,  1860.    16  Gray,  417.) 

[Hearing,  upon  a  bill  and  answer,  of  a  motion  to  dissolve  a  tem- 
porary injunction  issued  ex  parte  by  a  single  judge  upon  the  filing  of 
the  bill.  The  pleadings  disclosed  that  the  plaintiffs  owned  valuable 
mill,  dam,  and  water  rights  upon  the  Concord  river,  and  had  erected 
and  were  operating  by  the  water  power  thereof  large  and  valuable 
mills,  and  had  acquired  a  legal  right  to  flood  certain  tracts  of  territory 
by  the  backwater  from  their  dams;  that  a  statute  had  authorized 
commissioners  to  reduce  the  height  of  said  dams  33  inches,  with  a 
view  to  draining  extensive  meadows  along  the  Concord  and  Sudbury 
rivers  now  overflowed  by  said  backwater,  which  would  destroy  or 
render  almost  valueless  said  water  power,  dams,  and  mills,  though 
compensation  was  to  be  made  therefor ;  and  that  defendants,  as  such 
commissioners,  were  proposing  to  act  under  this  statute.  Defendants 
also  demurred  to  the  bill,  which  alleged  the  unconstitutionality  of  the 
statute.     Other  facts  appear  in  the  opinion.] 

Bigelow,  C.  J.  *  *  *  It  is  quite  obvious  that  the  first  step  in 
this  inquiry  is  to  ascertain,  if  we  can,  under  what  head  or  branch  of 
legislative  power  or  authority  the  act  in  question  falls.  The  inten- 
tion of  the  legislature  in  this  respect  must  be  gathered  mainly  from 
the  terms  of  the  statute.  There  is  no  express  declaration  of  the  ob- 
jects contemplated  by  it,  but  they  are  left  to  implication.  Looking 
to  the  general  structure  of  the  act  and  the  nature  of  its  provisions, 
we  cannot  doubt  that  it  was  intended  as  an  exercise  of  the  right  of 
eminent  domain.  It  is  similar  to  other  legislative  acts  which  authorize 
the  taking  of  private  property  for  a  public  use.  It  expressly  au- 
thorizes the  taking  and  removal  of  the  dam  by  a  board  of  public  of- 
ficers appointed  for  this  specific  purpose ;  it  provides  the  same  rem- 
edy in  behalf  of  persons  injured  by  such  taking  and  removal  as  is 
given  in  case  of  damages  occasioned  by  the  laying  out  of  highways ; 
it  affords  to  the  party  aggrieved  by  the  award  of  the  commissioners 
a  trial  by  jury,  and  confers  on  this  court  the  power  to  hear  and  de- 
termine all  questions  of  law  arising  in  the  proceedings,  and  to  set 
aside  the  verdict  of  the  jury  for  sufficient  cause.  These  provisions 
are  inconsistent  with  the  idea  that  the  act  was  framed  for  the  purpose 
of  exercising  the  general  police  or  superintending  power  over  private 
property,  which  is  vested  in  the  legislature,  or  in  order  to  prohibit  a 
use  of  it  which  was  deemed  injurious  to  or  inconsistent  with  the 
rights  and  interests  of  the  public.  If  such  were  the  object  of  the  stat- 
ute, there  would  be  no  necessity  for  the  appointment  of  commission- 
ers to  take  down  and  remove  the  dam,  or  for  the  provisions  making 
compensation  to  those  injured  in  their  property  thereby.  Such  en- 
actments would  be  unusual  in  a  statute  intended  only  for  a  prohibition 
and  restraint  upon  the  appropriation  or  use  of  private  property  by 


Ch.  12)  EMINENT    DOMAIN  GT'J 

its  owners;  but  are  the  necessary  and  ordinary  provisions  when  the 
legislature  intend  to  exercise  the  ri-lit  to  t;ike  it  for  a  supposed  public 
use.  Thacher  v.  Dartmouth  Bridge,  18  Pick.  501 ;  Commonwealth  v. 
Tewksbury,  11  Mete.  55. 

Such  being  the  manifest  design  of  the  legislature  in  passing  the  act 
in  question,  we  are  brought  directly  to  a  consideration  of  the  objec- 
tions urged  by  the  plaintiffs  against  its  validity.  The  first  and  prin- 
cipal one  is  that  it  violates  the  tenth  article  of  the  Declaration  of 
Rights,  because  it  authorizes  the  taking  and  appropriation  of  private 
property  to  a  use  which  is  not  of  a  public  nature. 

In  considering  this  objection,  we  are  met  in  the  outset  with  the 
uon,  that  it  is  the  exclusive  province  of  the  legislature  to  de- 
termine whether  the  purpose  or  object  for  which  property  is  taken  is 
a  public  use,  and  that  it  is  not  within  the  province  of  the  judicial  de- 
partment of  the  government  to  revise  or  control  the  will  or  judgment 
of  the  legislature  upon  the  subject,  when  expressed  in  the  form  of  a 
legal  enactment.  But  this  position  seems  to  us  to  be  obviously  un- 
tenable. The  provision  in  the  Constitution,  that  no  part  of  the  prop- 
erty of  an  individual  can  be  taken  from  him  or  applied  to  public  uses 
without  his  consent  or  that  of  the  legislature,  and  that  when  it  is  ap- 
propriated to  public  uses  he  shall  receive  a  reasonable  compensation 
therefor,  necessarily  implies  that  it  can  be  taken  only  for  such  a  use, 
and  is  equivalent  to  a  declaration  that  it  cannot  be  taken  and  appro- 
priated to  a  purpose  in  its  nature  private,  or  for  the  benefit  of  a  few 
individuals.  In  this  view,  it  is  a  direct  and  positive  limitation  upon 
the  exercise  of  legislative  power,  and  any  act  which  goes  beyond  this 
limitation  must  be  unconstitutional  and  void.  No  one  can  doubt  that 
if  the  legislature  should  by  statute  take  the  property  of  A  and  trans- 
fer it  to  B,  it  would  transcend  its  constitutional  power.  In  all  cases, 
therefore,  where  this  power  is  exercised,  it  necessarily  involves  an  in- 
quiry into  the  rightful  authoritv  of  the  legislature  under  the  organic 
law.'    *     *     * 

But  it  is  to  be  borne  in  mind,  that  in  determining  the  question  whether 
a  statute  is  within  the  legitimate  sphere  of  legislative  action,  it  is  the 
duty  of  courts  to  make  all  reasonable  presumptions  in  favor  of  its  valid- 
ity. *  *  *  In  many  cases,  there  can  be  no  difficulty  in  determin- 
ing whether  an  appropriation  of  property  is  for  a  public  or  private 
use.  If  land  is  taken  for  a  fort,  a  canal,  or  a  highway,  it  would 
clearly  fall  within  the  first  class ;  if  it  is  transferred  from  one  person 
to  another  or  to  several  persons  solely  for  their  peculiar  benefit  and 
advantage,  it  would  as  clearly  come  within  the  second  class.  But 
there  are  intermediate  cases  where  public  and  private  interests  are 
blended  together,  in  which  it  becomes  m  lit  to  decide  within 

which  of  the  two  classes  they  may  be  properly  said  to  fall.  There  i- 
no  fixed  rule  or  standard  by  which  such  cases  can  be  tried  and  de- 
termined. Each  must  necessarily  depend  upon  its  own  peculiar  cir- 
cumstances.    In  the  present  case  there  can  be  no  doubt  that  every 


G80  FUNDAMENTAL    RIGHTS  (Part  2 

owner  of  meadow  land  bordering  on  these  rivers  will  be  directly 
benefited  to  a  greater  or  less  extent  by  the  reduction  of  the  height  of 
the  plaintiffs'  dam.  The  act  is  therefore  in  a  certain  sense  for  a 
private  use,  and  enures  directly  to  the  individual  advantage  of  such 
owners.  But  this  is  by  no  means  a  decisive  test  of  its  validity.  Many 
enterprises  of  the  highest  public  utility  are  productive  of  great  and 
immediate  benefits  to  individuals.  A  railroad  or  canal  may  largely 
enhance  the  value  of  private  property  situated  at  or  near  its  termini; 
but  it  is  not  for  that  reason  any  less  a  public  work,  for  the  construc- 
tion of  which  private  property  may  well  be  taken.  We  are  therefore  to 
look  further  into  the  probable  operation  and  effect  of  the  statute  in 
question,  in  order  to  ascertain  whether  some  public  interest  or  benefit 
may  not  be  likely  to  accrue  from  the  execution  of  the  power  conferred 
by  it  upon  the  defendants.  If  any  such  can  be  found,  then  we  are 
bound  to  suppose  that  the  act  was  passed  in  order  to  effect  it.  We 
are  not  to  judge  of  the  wisdom  or  expediency  of  exercising  the 
power  to  accomplish  the  object.  The  legislature  are  the  sole  and  ex- 
clusive judges  whether  the  exigency  exists  which  calls  on  them  to 
exercise  their  authority  to  take  private  property.  If  a  use  in  its  na- 
ture public  can  be  subserved  by  the  appropriation  of  a  portion  of  the 
plaintiffs'  dam  in  the  manner  provided  by  this  act,  it  was  clearly 
within  the  constitutional  authority  of  the  legislature  to  take  it,  and 
in  the  absence  of  any  declared  purpose,  we  must  assume  that  it  was 
taken  for  such  legitimate  and  authorized  use. 

The  geographical  features  of  the  Concord  and  Sudbury  rivers  are 
properly  within  the  judicial  cognizance  of  the  court.  They  are  stated 
in  detail  in  the  opinion  of  the  court  in  Sudbury  Meadows  v.  Middle- 
sex Canal,  23  Pick.  45.  From  that  case  and  an  inspection  of  the 
map,  it  appears  that  these  two  rivers,  forming  parts  of  the  same 
stream,  pass  for  a  distance  exceeding  twenty  miles  through  a  tract 
of  country,  forming  their  banks  or  borders,  consisting  chiefly  of 
meadows  comprising  many  hundreds  of  acres;  that  throughout  this 
extent  the  waters  are  very  sluggish,  having  only  a  slight  fall,  until 
they  reach  the  plaintiffs'  dam.  It  might  well  be  supposed  that  the  nec- 
essary effect  of  an  obstruction  in  a  stream  of  this  nature  would  be 
to  cause  the  waters  to  flow  back  in  the  bed  of  the  rivers,  to  fill  up 
their  courses  or  channels,  to  overflow  their  sides,  and  to  inundate  to 
a  great  extent  the  adjacent  land,  which  is  naturally  low  and  level,  and 
thus  to  render  it  unfit  for  agricultural  purposes  and  deprive  it  of  its 
capacity  to  produce  any  profitable  or  useful  vegetation.  The  improve- 
ment of  so  large  a  territory,  situated  in  several  different  towns  and 
owned  by  a  great  number  of  persons,  by  draining  off  the  water  and 
thereby  rendering  the  land  suitable  for  tillage,  which  could  not  other- 
wise be  usefully  improved  at  all,  would  seem  to  come  fairly  within 
the  scope  of  legislative  action,  and  not  to  be  so  devoid  of  all  public 
utility  and  advantage  as  to  make  it  the  duty  of  this  court  to  pronounce 
a  statute,  which  might  well  be  designed  to  effect  such  a  purpose,  in- 


Ch.  12)  EMINENT    DOMAIN 

valid  and  unconstitutional.  The  act  would  stand  on  a  different 
ground,  if  it  appeared  that  only  a  very  few  individuals  or  a  small 
adjacent  territory  were  to  be  benefited  by  the  taking  of  private  prop- 
erty. But  such  is  not  the  case  here.  The  advantages  which  may  re- 
sult from  the  removal  of  the  obstruction  caused  by  the  plaintiffs'  dam 
are  not  local  in  their  nature,  nor  intended  to  be  confined  to  a  single 
neighborhood.  They  are  designed  to  embrace  a  large  section  of  land 
lying  in  one  of  the  most  populous  and  highly  cultivated  counties  in 
the  state,  and  by  increasing  the  productive  capacity  of  the 
confer  a  benefit,  not  only  on  the  owners  of  the  meadows,  but  on  all 
those  who  will  receive  the  incidental  advantage  arising  from  the  de- 
velopment of  the  agricultural  resources  of  so  extensive  a  territory. 

It  has  never  been  deemed  essential  that  the  entire  community  or 
any  considerable  portion  of  it  should  directly  enjoy  or  participate  in 
an  improvement  or  enterprise,  in  order  to  constitute  a  public  use. 
within  the  true  meaning  of  these  words  as  used  in  the  Constitution 
Such  an  interpretation  would  greatly  narrow  and  cripple  the  au- 
thority of  the  legislature,  so  as  to  deprive  it  of  the  power  of  exert- 
ing a  material  and  beneficial  influence  on  the  welfare  and  prosperity 
of  the  state.  In  a  broad  and  comprehensive  view,  such  as  has 
heretofore  taken  of  the  construction  of  this  clause  of  the  Declaration 
of  Rights,  everything  which  tends  to  enlarge  the  resources,  increase 
the  industrial  energies,  and  promote  the  productive  power  of  any 
considerable  number  of  the  inhabitants  of  a  section  of  the  state,  or 
which  leads  to  the  growth  of  towns  and  the  creation  of  new  sources 
for  the  employment  of  private  capital  and  labor,  indirectly  contributes 
to  the  general  welfare  and  to  the  prosperity  of  the  whole  community. 

It  is  on  this  principle,  that  many  of  the  statutes  of  this  common- 
wealth by  which  private  property  has  been  heretofore  taken  and  ap- 
propriated to  a  supposed  public  use  are  founded.  Such  legislation 
has  the  sanction  of  precedents,  coeval  with  the  origin  and  adoption 
of  the  Constitution,  and  the  principle  has  been  so  often  recognized 
and  approved  as  legitimate  and  constitutional  that  it  has  become  in- 
corporated into  our  jurisprudence.  One  of  the  earliest  and  most 
familiar  instances  of  the  exercise  of  such  power  under  the  Constitu 
tion  is  to  be  found  in  St.  1795,  c.  74,  for  the  support  and  regulation 
of  mills.  By  this  statute  the  owner  of  a  mill  had  power,  for  the 
purpose  of  raising  a  head  of  water  to  operate  his  mill,  to  overflow 
the  land  of  proprietors  above  and  thereby  to  take  a  permaneiv 
ment  in  the  soil  of  another,  to  the  entire  destruction  of  its  beneficial 
use  by  him,  on  paying  a  suitable  compensation  therefor.  Under  the 
right  thus  conferred,  the  more  direct  benefit  was  to  the  owner  of  the 
mill  only  ;  private  property  was  in  effect  taken  and  transferred  from  one 
individual  for  the  benefit  of  another;  and  the  only  public  use,  which 
was  thereby  subserved,  was  the  indirect  benefit  received  by  the  com- 
munity by  the  erection  of  mills  for  the  convenience  of  the  neighbor 
hood,  and  the  general  advantage  which  accrued  to  trade  and  agricul- 


682  FUNDAMENTAL    RIGHTS  (Part    2 

ture  by  increasing  the  facilities  for  traffic  and  the  consumption  of 
the  products  of  the  soil.  Such  was  the  purpose  of  this  statute,  as  ap- 
pears from  the  preambles  to  the  provincial  Acts  of  8  and  13  Anne, 
from  which  the  statute  of  1795  was  substantially  copied.  It  is  thereby 
declared  that  the  building  of  mills  has  been  "serviceable  for  the  pub- 
lic good  and  benefit  of  the  town  or  considerable  neighborhood."  Anc. 
Chart.  3SS,  404. 

In  like  manner,  and  for  similar  purposes,  acts  of  incorporation 
have  been  granted  to  individuals  with  authority  to  create  large  mill 
powers  for  manufacturing  establishments,  by  taking  private  property, 
even  to  the  extent  of  destroying  other  mills  and  water  privileges  on 
the  same  stream.  Boston  &  Roxbury  Mill  Dam  v.  Newman,  12  Pick. 
467,  23  Am.  Dec.  622;  Hazen  v.  Essex  Co.,  12  Cush.  478;  Common- 
wealth v.  Essex  Co.,  13  Gray,  249.  The  main  and  direct  object  of 
these  acts  is  to  confer  a  benefit  on  private  stockholders  who  are  will- 
ing to  embark  their  skill  and  capital  in  the  outlay  necessary  to  carry 
forward  enterprises  which  indirectly  tend  to  the  prosperity  and  wel- 
fare of  the  community.  And  it  is  because  they  thus  lead  incidentally 
to  the  promotion  of  "one  of  the  great  public  industrial  pursuits  of  the 
commonwealth,"  that  they  have  been  heretofore  sanctioned  by  this 
court,  as  well  as  by  the  legislature,  as  being  a  legitimate  exercise  of 
the  right  of  eminent  domain  justifying  the  taking  and  appropriation 
of  private  property.     Hazen  v.  Essex  Co.,  12  Cush.  475. 

It  is  certainly  difficult  to  see  any  good  reason  for  making  a  discrim- 
ination in  this  respect  between  different  branches  of  industry.  If  it 
is  lawful  and  constitutional  to  advance  the  manufacturing  or  me- 
chanical interests  of  a  section  of  the  state  by  allowing  individuals 
acting  primarily  for  their  own  profit  to  take  private  property,  there 
would  seem  to  be  little,  if  any,  room  for  doubt  as  to  the  authority 
of  the  legislature,  acting  as  the  representatives  of  the  whole  people, 
to  make  a  similar  appropriation  by  their  own  immediate  agents  in  or- 
der to  promote  the  agricultural  interests  of  a  large  territory.  Indeed 
it  would  seem  to  be  most  reasonable,  and  consistent  with  the  principle 
upon  which  legislation  of  this  character  has  been  exercised  and  ju- 
dicially sanctioned  in  this  commonwealth,  to  hold  that  the  legislature 
might  provide  that  land  which  has  been  taken  for  a  public  use  and 
subjected  to  a  servitude  or  easement  by  which  its  value  has  been  im- 
paired and  it  has  been  rendered  less  productive,  should  be  relieved 
from  the  burden,  if  the  purpose  for  which  it  was  so  appropriated  has 
ceased  to  be  of  public  utility,  and  its  restoration  to  its  original  condi- 
tion, discharged  of  the  incumbrance,  will  tend  to  promote  the  interest 
of  the  community  by  contributing  to  the  means  of  increasing  the  gen- 
eral wealth  and  prosperity.  If  the  right  of  a  mill  owner  to  raise  a 
dam  and  flow  the  land  of  adjacent  proprietors  has  ceased  to  be  of 
any  public  advantage,  and  tends  to  retard  prosperity  and  to  im- 
poverish the  neighborhood,  and  the  withdrawal  of  the  water  from 
the  land  by  taking  down  the  dam  and  rendering  the  land  available  for 


Cll.  12)  BM1NBNT    DOMAIN 

agricultural  purposes  would  be  so  conducive  to  the  interests  of  the 
community  as  to  render  it  a  work  of  public  utility,  there  is  no  good 
reason  why  the  legislature  may  not  constitutionally  exercise  the  power 
to  take  down  the  dam  on  making  suitable  compensation  to  the  owner. 
It  would  only  be  to  apply  to  the  millowner  for  the  benefit  of  agricul- 
ture the  same  rule  which  had  been  previously  applied  to  the  land- 
owner for  the  promotion  of  manufacturing  and  mechanical  pursuits. 

Nor  arc  we  without  precedent  for  acts  of  legislation  by  which  pri 
vale  property  has  been  taken  for  the  purpose  of  improving  land  and 
rendering  it  fertile  and  productive.  The  St.  of  1795,  c.  62,  for  the 
improvement  of  meadows,  swamps,  and  low  lands,  recognizes  the  right 
of  taking  private  property  for  the  purpose  of  redeeming  lands  from 
the  effects  of  stagnant  water  and  of  being  overflowed  by  obstructions 
in  brooks  and  rivers.  *  *  *  l*"or  the  injury  thus  occasioned  to 
private  property,  a  remedy  is  provided  by  the  statute.  But  it  is 
clearly  an  appropriation  of  private  property  primarily  for  the  benefit 
of  the  owners  of  the  meadows  or  low  lands  which  are  intended  to  be 
improved,  and  where  the  public  use  or  benefit  which  justifies  such 
appropriation  consists  in  the  indirect  advantage  to  the  community, 
derived  from  the  increase  of  the  productive  capacity  of  the  soil  and 
the  promotion  of  the  agricultural  interests  of  the  owners  of  the  land. 

It  was  suggested  at  the  argument,  that  there  was  an  essential  dif- 
ference between  the  provisions  of  statutes  for  the  improvement  of 
meadows  and  low  lands  and  that  under  consideration,  because  by  the 
former  it  was  provided  that  the  damages  should  be  paid  by  the  par- 
ties benefited,  whereas  by  the  latter  they  are  to  be  paid  out  of  the 
public  treasury.  But  we  cannot  see  the  force  or  bearing  of  this  sug- 
gestion. The  mode  of  compensating  the  party  whose  property  i- 
taken  cannot  affect  the  validity  of  the  appropriation,  so  far  as  it  de- 
pends on  the  question,  whether  it  was  taken  for  a  public  use.  If  the 
use  is  not  in  its  nature  public,   thi  lion  is  invalid  and   un- 

constitutional, and  the  mode  by  which  compensation  to  the  owners  of 
land  taken  is  to  be  made  is  wholly  immaterial.  It  is  only  when  prop- 
erty is  taken  for  a  purpose  for  which  it  may  be  constitutionally  ap- 
propriated, that  it  becomes  necessary  to  determine  whether  provision 
is  made  for  compensation,  suitable  and  adequate  to  furnish  a  remedy 
to  the  party  injured.     *     *     * 

Injunction  dissolved.1 

i  Pop  Boston  &  Koxbury  Co.  v.   Newman,   12   Tick.  4G7,   23   Am.  Hoc.   832 
(1832);    Bazen  v.  Kssex  Co..  12  Cush.  4T._.  (1853);   Lowell  v.  Boston,  nute.  i>p 
i  i  M...  ].,i  Ma         .  104S,  1  i  I..  K.  A.  1-7  (1S91); 

Otis  Co.  v.  Ludlow  Mfg.  Co.,  186  Mass.  S9,  70  N  EL  1009,  H>1  Am.  St.  Hop.  568 
(1004),  nfflruiou  In  201  U.  S.  140,  26  Sup.  Ct  ;.  B0  L  Ed  806  (1806).  The 
later  Massachusetts  cases  place  the  decision  In  the  principal  case  upon  other 
grounds  than  tliut  of  eminent  domain.  Bee,  also,  llcad  v.  Amoskeag  Co.,  ante, 
p.   .r)20. 


684  FUNDAMENTAL    EIGHTS  (Part  2 

OPINION  OF  THE  JUSTICES. 

(Supreme  Judicial  Court  of  Massachusetts,  1910.    204  Mass.  CO",  91  N.  E.  405, 
27  L.  R.  A.  [N.  S.]  483.) 

[Answer  to  a  question  of  the  Massachusetts  House  of  Representa- 
tives, reciting  the  great  need  in  Boston  for  broad  and  convenient 
thoroughfares  for  commercial  purposes  and  of  adequate  sites  thereon 
for  large  commercial  buildings;  that  the  commercial  and  industrial 
interests  of  the  city  and  state  suffered  greatly  from  the  lack  thereof ; 
that  the  city  streets  were  so  narrow  and  crooked,  and  the  abutting 
land  held  in  such  small  and  irregularly  shaped  parcels,  that  only 
through  the  power  of  eminent  domain  could  proper  streets  be  laid 
out  and  the  abutting  estates  concentrated  in  parcels  of  suitable  size 
and  shape  for  the  needs  of  commerce  as  now  carried  on  in  the  prin- 
cipal cities  of  the  world ;  and  asking  whether  the  legislature  could  give 
the  power  to  take  such  land  as  was  reasonably  necessary  for  these 
purposes,  with  a  view  to  the  resale  or  lease  to  private  individuals  for 
commercial  purposes,  under  suitable  agreements,  of  the  parts  abutting 
on  said  new  streets  when  laid  out.] 

Opinion  (of  all  the  Justices) :  The  question  relates  to  the  pro- 
posed laying  out  of  a  thoroughfare  or  street  through  a  part  of  the 
city  of  Boston.  The  power  of  the  city,  by  its  officers,  to  lay  out  and 
construct  a  street  or  thoroughfare  in  any  place  within  the  city,  or  of 
any  width  or  mode  of  construction,  if  it  is  found  that  the  public  neces- 
sity and  convenience  require  it,  is  undoubted:  Rev.  Laws,  c.  48,  §  1 ; 
St.  1891,  c.  323;   St.  1902,  c.  521 ;   St.  1904,  c.  443. 

The, question  seems  to  relate  particularly  to  the  power  of  the  Leg- 
islature to  take  and  use  land  outside  of  the  proposed  thoroughfare, 
for  purposes  which  have  no  direct  relation  to  the  construction  or  use 
of  the  street  for  travel.  *  *  *  The  question  is  whether  such  land 
can  be  taken  with  a  view  to  the  subsequent  use  of  it  by  private  indi- 
viduals, under  conveyances,  leases  or  agreements  which  shall  embody 
suitable  contracts  for  the  construction  on  the  land  of  buildings  adapted 
to  use  in  domestic  and  foreign  trade  and  commerce,  and  for  the  use, 
management  and  control  of  the  lands  and  buildings  in  such  manner  as 
to  secure  and  promote  such  trade  and  commerce.  The  proposed  leg- 
islation to  which  the  enquiry  relates,  necessarily  would  contemplate 
action  bv  the  city  in  the  procurement,  management  and  control  of 
land  along  a  street  within  the  city,  for  no  other  purpose  than  to  induce 
and  promote  a  use  of  it  by  merchants  or  traders.  It  would  contemplate 
a  taking  of  private  property  in  the  exercise  of  the  right  of  eminent 
domain,  and  an  expenditure  of  money  to  pay  for  it  and  fit  it  for  occu- 
pation. 

It  is  a  rule  of  law  universally  recognized  in  this  country,  that  neither 
of  these  things  can  be  done  unless  the  taking  or  expenditure  is  for  a 
public  use.    This  has  been  stated  so  often,  and  the  principles  on  which 


Ch.  12)  EMINENT   domain  C85 

it  is  founded  have  been  considered  so  fully,  that  it  is  unnecessary  to 
discuss  it  or  to  cite  authorities.  The  only  question  about  which  there  is 
a  possibility  of  doubt  is  whether  the  proposed  use  of  the  land  outside 
of  the  thoroughfare  is  a  public  use.  It  is  plain  that  a  use  of  the  prop- 
erty to  obtain  the  possible  income  or  profit  that  might  inure  to  the 
city  from  the  ownership  and  control  of  it  would  not  be  a  public  use. 
The  city  cannot  be  authorized  to  take  the  property  of  a  private  owner 
for  such  a  purpose,  nor  can  the  city  tax  its  inhabitants  to  obtain  money 
for  such  a  use.  It  could  as  well  tax  them  to  raise  money  to  carry  on 
any  other  private  business  with  a  hope  of  gain.  Such  proceedings 
are  entirely  outside  the  functions  of  a  state  or  of  any  subdivision  of  a 
state.  *  *  *  [Here  follows  a  quotation  from  Lowell  v.  Boston, 
ante,  p.  573,  and  the  citation  of  various  cases  from  several  states  af- 
firming a  similar  doctrine.] 

Cases  which  have  sustained  statutes  on  the  ground  that  the  use  for 
which  the  money  was  to  be  expended  was  public  are  clearly  distin- 
guishable from  the  considerations  which  are  presented  hypothetically 
by  this  question.  An  illustration  is  found  in  the  many  decisions 
holding  that  cities  and  towns  may  be  permitted  to  aid  in  the  construc- 
tion of  railroads.  A  railroad  is  a  great  highway  for  use  by  the  public. 
Another  illustration  is  furnished  by  the  decisions  that  the  establish- 
ment of  irrigation  districts  under  legislative  authority,  for  the  im- 
provement of  large  areas  of  arid  and  worthless  land  is  allowable. 
Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S.  112,  17  Sup.  Ct.  56, 
41  L.  Ed.  369 ;  Talbot  v.  Hudson,  16  Gray,  417,  was  treated  by  the 
court  as  governed  by  similar  principles. 

The  decision  in  Moore  v.  Sanford,  151  Mass.  285,  24  N.  E.  323,  7 
L.  R.  A.  151,1  rests  upon  the  ground  that  the  work  done  was  in  a 
true  sense  for  the  promotion  of  commerce,  through  its  direct  and  close 
relation  to  the  improvement  of  Boston  Harbor,  in  making  connections 
between  the  great  highways  used  for  interstate  commerce  and  the 
numerous  ships  that  are  passing  back  and  forth  between  Boston  and 
foreign  ports.  All  that  was  done  was  held  to  be  fairly  incidental  to 
the  main  purpose  of  promoting  commerce  between  the  United  States 
ami  distant  countries.  The  improvement  of  harbors  and  the  con- 
struction of  public  docks,  wharves,  and  possibly  of  warehouses,  to  be 
used  under  governmental  authority  as  a  part  of  the  facilities  for  the 
transportation  of   merchandise   in   commercial    enterprises,   and   the 

J  The  Statute  here  authorized  the  t.-ikins  of  certain  submerged  lands,  which 
were  to  lie  reclaimed  tor  the  improvement  of  Boston  If  Oil   fur 

railroad  and  commercial  purposes.    Similar  lands  already  owned  by  tl 
were  made  more  salable  by  thus  exti  of  the  Improi 

Devens,  J.,  said  (151  Mass.  290,  24  \    i'   324,  :  u  u.  a.  161):  "Nor    •    •  ,• 
should  we  be  wining  to  say,  even  if  no  Improvement  of  Boston  IlarK  r 
a  part  of  tlio  purpose,   that  the  legislature  might  not  properly   proi 
the  reclamation  of  a  lar.^e  bodj  Bats,  substantiall] 

in  their  .>nu*inal  condition,  for  rallri  ad  and  commercial  purpose 
with   i'  i-ation,   such  of   them  as  were  necessary   for  the 

pUshment  of  the  object." 


686  FUNDAMENTAL    KIGHTS  (Part  2 

building  of  railroads  to  be  used  for  the  same  object,  may  all  affect  the 
public  so  directly  as  to  constitute  a  public  purpose  for  which  money 
raised  by  taxation  may  be  expended.    *    *    * 

The  use  of  buildings  along  such  a  thoroughfare  as  is  proposed  pre- 
sumably would  be  chiefly  for  trade,  the  buying  and  selling  of  goods, 
and  perhaps,  to  some  extent,  for  the  business  of  manufacturing.  We 
do  not  think  this  is  commerce,  in  such  a  sense  that  money  can  be  raised 
by  taxation  for  the  promotion  of  it,  as  it  can  be  raised  for  the  improve- 
ment of  a  harbor  or  the  construction  of  a  railroad.  In  reference  to 
the  interest  of  the  public  in  it,  it  stands  no  differently  from  other 
useful  kinds  of  business. 

An  affirmative  answer  to  this  question  would  make  it  possible  for 
the  city  to  take  the  home  of  a  resident  near  the  line  of  the  thorough- 
fare, or  the  shop  of  a  humble  tradesman,  and  compel  him  to  give  up 
his  property  and  go  elsewhere,  for  no  other  reason  than  that,  in  the 
opinion  of  the  authorities  of  the  city,  some  other  use  of  the  land 
would  be  more  profitable,  and  therefore  would  better  promote  the 
prosperity  of  the  citizens  generally.  We  know  of  no  case  in  which  the 
exercise  of  the  right  of  eminent  domain  or  the  expenditure  of  public 
money  has  been  justified  on  such  grounds.    *     *    * 

Question  answered  in  the  negative.4 


EVERGREEN  CEMETERY  ASSOCIATION  v.  BEECHER 
(1885)  53  Conn.  551,  552-553,  5  Atl.  353,  Pardee,  J.  (upholding  a 
demurrer  to  a  complaint  filed  by  plaintiff  cemetery  association  seek- 
ing, under  statutory  authority,  to  take  defendant's  land  by  eminent 
domain  to  enlarge  its  cemetery) : 

"The  safety  of  the  living  requires  the  burial  of  the  dead  in  proper 
time  and  place ;  and,  inasmuch  as  it  may  so  happen  that  no  individual 
may  be  willing  to  sell  land  for  such  use,  of  necessity  there  must  remain 
to  the  public  the  right  to  acquire  and  use  it  under  such  regulations  as 
a  proper  respect  for  the  memory  of  the  dead  and  the  feelings  of  sur- 
vivors demands.  In  order  to  secure  for  burial-places  during  a  period 
extending  indefinitely  into  the  future  that  degree  of  care  universally 
demanded,  the  legislature  permits  associations  to  exist  with  power  to 
discharge  in  behalf  and  for  the  benefit  of  the  public  the  duty  of  pro- 
viding, maintaining,  and  protecting  them.     The  use  of  land  by  them 

2  Accord:  Palairet's  Appeal,  67  Pa.  479,  5  Am.  Rep.  450  (1S71)  (act  au- 
thorizing extinguishment  of  irredeemable  ground  rents  at  expense  of  present 
owners  of  land  who  wished  to  do  this). 

•  In  Dingley  v.  Boston,  100  Mass.  544  (1S6S),  it  was  held  that  the  city  of 
Boston  might  be  authorized  to  condemn  certain  low  lands  whose  undrainable 
situation  made  them  dangerous  to  health,  to  raise  their  grade  about  18  feet, 
and  then  to  resell  them  to  private  parties.  The  expense  and  nature  of  the 
improvement  rendered  its  undertaking  impracticable  for  separate  individual 
owners.  This  was  approved  in  Sweet  v.  Rechel,  159  U.  S.  3S0,  16  Sup.  Ct. 
43,  40  L.  Ed.  188  (1895). 


Cll.  12)  EMINENT    DOMAIN  687 

for  this  purpose  does  not  cease  to  be  a  public  use  because  they  require 
varying  sums  for  rights  to  bury  in  different  localities  ;  not  even  if  the 
cost  of  the  right  is  the  practical  exclusion  of  some.  Corporations  take 
land  by  right  of  eminent  domain  primarily  for  the  benefit  of  the  public, 
incidentally  for  the  benefit  of  themselves.  As  a  rule,  men  are  not 
allowed  to  ride  in  cars,  or  pass  along  turnpikes,  or  cross  toll-bridges, 
or  have  grain  ground  at  the  mill,  without  making  compensation.  <  hu- 
man asks  and  pays  for  a  single  seat  in  a  car;  another  for  a  special 
train;  all  have  rights;  each  pays  in  proportion  to  his  use;  and  some 
are  excluded  because  of  their  inability  to  pay  for  any  use  ;  nevertheless 
it  remains  a  public  use  as  long  as  all  persons  have  the  same  measure  of 
right  for  the  same  measure  of  money. 

"But  it  is  a  matter  of  common  knowledge  that  there  are  many  ceme- 
teries which  are  strictly  private ;  in  which  the  public  have  not,  and  can- 
not acquire,  the  right  to  bury.  Clearly  the  proprietors  of  these  cannot 
take  land  for  such  continued  private  use  by  right  of  eminent  domain. 
The  complaint  alleges  that  the  plaintiff  is  an  association  duly  organized 
under  the  laws  of  this  state  for  the  purpose  of  establishing  a  burying- 
ground;  that  it  now  owns  one;  that  it  desires  to  enlarge  it;  and  that 
such  enlargement  is  necessary  and  proper.  There  is  no  allegation  that 
the  land  which  it  desires  to  take  for  such  enlargement  is  for  the  public 
use  in  the  sense  indicated  in  this  opinion."  ■ 


CLARK  v.  NASH. 

iSupreme  Court  of  United  States,  1905     198  U.  S   861,  25  Sup   Ct  678,  to  L. 
Ed,    1086,    i    A:;ii    I  as    1171.) 

[Error  to  the  Utah  Supreme  Court.  Nash  brought  a  statutory  con- 
demnation proceeding  to  obtain  a  right  to  convey  water  by  an  en- 
larged ditch  across  Clark's  land  from  Ft.  Canyon  creek  to  irrigate 
Nash's  land.     Nash's  land  was  arid  without  irrigation,  and  he  owned 

i  Accord:  Board  of  Health  v.  Van  Hoesen,  ^7  Mich.  533,  539,  ID  N.  W.  894 
896  it!  L.  R.  A.  114)  (1891)  (cases),  In  which  McGrath,  J.,  said:    "To  instifj 

the  c lemnation  of  lands  for  a  privati  nly  musl  the  purpose 

tie  one  in  which  the  public  has  an  Interest,  but  the  state  must  have  a  voice  In 
the  manner  In  which  the  public  may  avail  itself  of  that  use.  in  Gilmer  v. 
Ume  Point,  18  Cal.  229  (1881),  a  public  use  is  defined  to  be  a  use  which  con 
cerns  the  whole  community,  as  distinguished  from  a  particular  individual 
The  use  which  the  public  is  to  have  of  such  property  must  be  fixed  and 
definite.  The  general  public  must  have  a  right  to  a  certain  ■'•  finite  use  ol 
the  private  property  on  terms  and  for  charges  t\\r<\  by  law,  Rud  the  owner 
of  the  property  must  be  compelled  by  law  to  permit  the  general  pubti 
loy  it.  it  will  not  suffice  that  the  general  prosperity  of  the  community  Is 
promoted  bv  the  taking  of  private  property  from  the  owner,  ami  trans 
its  title  and  control  to  a  corporation,  to  be  osed  by  such  corporation  as  its 
private  property,  uncontrolled  by  law  as  t..  Its  use;  in  other  words,  a  use  la 
private  so  ion,  as  the  land  is  to  remain  under  private  ownership  ami  control, 
ami  no  right  to  n^  use  or  to  dlred  its  management  is  conferred  upon  the 
public.     In  re  Eureka  Basin    etc.,  Co.,  ■»■  S    1     12  (1R841." 


688  FUNDAMENTAL    RIGHTS  (Part    2 

the  right  to  use  enough  water  from  said  creek  to  irrigate  his  land ; 
but  owing  to  the  conformation  of  the  country  this  water  could  be 
brought  upon  his  land  only  over  Clark's  land,  and  only  by  enlarging  a 
ditch  already  owned  and  used  by  Clark  and  located  on  Clark's  land. 
The  Utah  Supreme  Court  upheld  a  judgment  of  condemnation  of  the 
right  claimed,  upon  payment  of  $40  damages  and  the  assumption 
by  Nash  of  an  obligation  to  bear  his  proportionate  share  of  the  ex- 
pense of  maintaining  said  ditch  in  the  future.] 

Mr.  Justice  Peckham.  The  plaintiffs  in  error  contend  that  the 
proposed  use  of  the  enlarged  ditch  across  their  land  for  the  purpose  of 
conveying  water  to  the  land  of  the  defendant  in  error  alone  is  not 
a  public  use,  and  that,  therefore,  the  defendant  in  error  has  no  consti- 
tutional or  other  right  to  condemn  the  land,  or  any  portion  of  it,  be- 
longing to  the  plaintiffs  in  error,  for  that  purpose.  They  argue  that, 
although  the  use  of  water  in  the  state  of  Utah  for  the  purposes  of 
mining  or  irrigation  or  manufacturing  may  be  a  public  use  where  the 
right  to  use  it  is  common  to  the  public,  yet  that  no  individual  has  the 
right  to  condemn  land  for  the  purpose  of  conveying  water  in  ditches 
across  his  neighbor's  land,  for  the  purpose  of  irrigating  his  own  land 
alone,  even  where  there  is,  as  in  this  case,  a  state  statute  permitting  it. 

In  some  states,  probably  in  most  of  them,  the  proposition  contended 
for  by  the  plaintiffs  in  error  would  be  sound.  But  whether  a  statute 
of  a  state  permitting  condemnation  by  an  individual  for  the  purpose 
of  obtaining  water  for  his  land  or  for  mining  should  be  held  to  be  a 
condemnation  for  a  public  use,  and,  therefore,  a  valid  enactment,  may 
depend  upon  a  number  of  considerations  relating  to  the  situation  of 
the  state  and  its  possibilities  for  land  cultivation,  or  the  successful 
prosecution  of  its  mining  or  other  industries.  Where  the  use  is  as- 
serted to  be  public,  and  the  right  of  the  individual  to  condemn  land  for 
the  purpose  of  exercising  such  use  is  founded  upon  or  is  the  result 
of  some  peculiar  condition  of  the  soil  or  climate,  or  other  peculiarity 
of  the  state,  where  the  right  of  condemnation  is  asserted  under  a  state 
statute,  we  are  always,  where  it  can  fairly  be  done,  strongly  inclined 
to  hold  with  the  state  courts,  when  they  uphold  a  state  statute  provid- 
ing for  such  condemnation.  The  validity  of  such  statutes  may  some- 
times depend  upon  many  different  facts,  the  existence  of  which  would 
make  a  public  use,  even  by  an  individual,  where,  in  the  absence  of  such 
facts,  the  use  would  clearly  be  private.  Those  facts  must  be  general, 
notorious,  and  acknowledged  in  the  state,  and  the  state  courts  may  be 
assumed  to  be  exceptionally  familiar  with  them.  They  are  not  the 
subject  of  judicial  investigation  as  to  their  existence,  but  the  local 
courts  know  and  appreciate  them.  They  understand  the  situation 
which  led  to  the  demand  for  the  enactment  of  the  statute,  and  they 
also  appreciate  the  results  upon  the  growth  and  prosperity  of  the 
state  which,  in  all  probability,  would  flow  from  a  denial  of  its  validity. 
These  are  matters  which  might  properly  be  held  to  have  a  material 
bearing  upon  the  question  whether  the  individual  use  proposed  might 


Ch.  12)  EMINENT    DOMAIN 

not  in  fact  be  a  public  one.  It  is  not  alone  the  fact  that  the  land  is 
arid  and  that  it  will  bear  crops  if  irrigated,  or  that  the  water  is  nec- 
essary for  the  purpose  of  working  a  mine,  that  is  material ;  other 
facts  might  exist  which  are  also  material, — such  as  the  particular 
manner  in  which  the  irrigation  is  carried  on  or  proposed,  or  how  the 
mining  is  to  be  done  in  a  particular  place  where  water  is  needed  for 
that  purpose.  The  general  situation  and  amount  of  the  arid  land  or  of 
the  mines  themselves  might  also  be  material,  and  what  proportion  of 
the  water  each  owner  should  be  entitled  to;  also  the  extent  of  the 
population  living  in  the  surrounding  country,  and  whether  each  owner 
of  land  or  mines  could  be,  in  fact,  furnished  with  the  necessary  water 
in  any  other  way  than  by  the  condemnation  in  his  own  behalf,  and 
not  by  a  company,  for  his  use  and  that  of  others. 

These,  and  many  other  facts  not  necessary  to  be  set  forth  in  detail, 
but  which  can  easily  be  imagined,  might  reasonably  be  regarded  as 
material  upon  the  question  of  public  use,  and  whether  the  use  by  an 
individual  could  be  so  regarded.  With  all  of  these  the  local  courts 
must  be  presumed  to  be  more  or  less  familiar.  This  court  has  stated 
that  what  is  a  public  use  may  frequently  and  largely  depend  upon  the 
facts  surrounding  the  subject,  and  we  have  said  that  the  people  of  a 
state,  as  also  its  courts,  must,  in  the  nature  of  things,  be  more  familiar 
with  such  facts,  and  with  the  necessity  and  occasion  for  the  irrigation 
of  the  lands,  than  can  any  one  be  who  is  a  stranger  to  the  soil  of  the 
state,  and  that  such  knowledge  and  familiarity  must  have  their  due 
weight  with  the  state  courts.  Fallbrook  Irrig.  District  v.  Bradlev, 
164  U.  S.  112,  159,  41  L.  Ed.  369,  388,  17  Sup.  Ct.  56.  It  is  true  that 
in  the  Fallbrook  Case  the  question  was  whether  the  use  of  the  water 
was  a  public  use  when  a  corporation  sought  to  take  land  by  condemna- 
tion under  a  state  statute,  for  the  purpose  of  making  reservoirs  and 
digging  ditches  to  supply  landowners  with  the  water  the  company 
proposed  to  obtain  and  save  for  such  purpose.  This  court  held  that 
such  use  was  public.  The  case  did  not  directly  involve  the  right  of  a 
single  individual  to  condemn  land  under  a  statute  providing  for  that 
condemnation. 

We  are,  however,  as  we  have  said,  disposed  to  agree  with  the  Utah 
court  with  regard  to  the  validity  of  the  state  statute  which  provides. 
under  the  circumstances  stated  in  the  act,  for  the  condemnation  of 
the  land  of  one  individual  for  the  purpose  of  allowing  another  indi- 
vidual to  obtain  water  from  a  stream  in  which  he  has  an  interest,  to 
irrigate  his  land,  which  otherwise  would  remain  absolutely  valueless. 

But  ive  do  not  desire  to  be  understood  by  this  decision  as  approving 
of  the  broad  proposition  that  private  property  may  be  taken  in  all 
cases  where  the  taking  may  promote  the  public  interest  and  tend  to 
develop  the  natural  resources  of  the  state.  We  simply  say  that  in 
this  particular  case,  and  upon  the  facts  stated  in  the  findings  of  tin- 
court,  and  having  reference  to  the  conditions  already  stated,  we  are  of 
Haix  Const.L. — 44 


690  FUNDAMENTAL    EIGHTS  (Part  2 

opinion  that  the  use  is  a  public  one,  although  the  taking  of  the  right 
of  way  is  for  the  purpose  simply  of  thereby  obtaining  the  water  for  an 
individual,  where  it  is  absolutely  necessary  to  enable  him  to  make  any 
use  whatever  of  his  land,  and  which  will  be  valuable  and  fertile  only 
if  water  can  be  obtained.  Other  landowners  adjoining  the  defendant 
in  error,  if  any  there  are,  might  share  in  the  use  of  the  water  by  them- 
selves taking  the  same  proceedings  to  obtain  it,  and  we  do  not  think 
it  necessary,  in  order  to  hold  the  use  to  be  a  public  one,  that  all  should 
join  in  the  same  proceeding,  or  that  a  company  should  be  formed  to 
obtain  the  water  which  the  individual  landowner  might  then  obtain  his 
portion  of  from  the  company  by  paying  the  agreed  price,  or  the  price 
fixed  by  law. 

The  rights  of  a  riparian  owner  in  and  to  the  use  of  the  water  flow- 
ing by  his  land  are  not  the  same  in  the  arid  and  mountainous  states 
of  the  West  that  they  are  in  the  states  of  the  East.  These  rights  have 
been  altered  by  many  of  the  Western  states  by  their  constitutions  and 
laws,  because  of  the  totally  different  circumstances  in  which  their  in- 
habitants are  placed,  from  those  that  exist  in  the  states  of  the  East, 
and  such  alterations  have  been  made  for  the  very  purpose  of  thereby 
contributing  to  the  growth  and  prosperity  of  those  states,  arising 
from  mining  and  the  cultivation  of  an  otherwise  valueless  soil,  by 
means  of  irrigation.  This  court  must  recognize  the  difference  of 
climate  and  soil,  which  render  necessary  these  different  laws  in  the 
states  so  situated. 

We  are  of  opinion,  having  reference  to  the  above  peculiarities  which 
exist  in  the  state  of  Utah,  that  the  statute  permitting  the  defendant 
in  error,  upon  the  facts  appearing  in  this  record,  to  enlarge  the  ditch, 
and  obtain  water  for  his  own  land,  was  within  the  legislative  power 
of  the  state. 

Judgment  affirmed. 

[Harlan  and  Brewer,  JJ.,  dissented.] 


HAIRSTON  v.  DANVILLE  &  W.  RY.  CO.  (1908)  208  U.  S.  598, 
606-607,  28  Sup.  Ct.  331.  52  L  Ed.  637,  13  Ann.  Cas.  1008,  Mr.  Jus- 
tice Moody  (upholding  the  condemnation  of  land  for  a  spur  railroad 
track  leading  to  a  private  plant,  but  incidentally  used  for  car  storage) : 

"When  we  come  to  inquire  what  are  public  uses  for  which  the  right 
of  compulsory  taking  may  be  employed,  and  what  are  private  uses  for 
which  the  right  is  forbidden,  we  find  no  agreement,  either  in  reasoning 
or  conclusion.  The  one  and  only  principle  in  which  all  courts  seem 
to  agree  is  that  the  nature  of  the  uses,  whether  public  or  private,  is 
ultimately  a  judicial'  question.  The  determination  of  this  question 
by  the  courts  has  been  influenced  in  the  different  states  by  considera- 
tions touching  the  resources,  the  capacity  of  the  soil,  the  relative  im- 
portance of  industries  to  the  general  public  welfare,  and  the  long-estab- 


Ch.  12)  EMINENT    DOMAIN  691 

lished  methods  and  habits  of  the  people.  In  all  these  respects  con- 
ditions vary  so  much  in  the  states  and  territories  of  the  Union  that 
different  results  might  well  be  expected.  Some  cases  illustrative  of 
the  tendency  of  local  conditions  to  affect  the  judgment  of  courts  are 
Hays  v.  Risher,  32  Pa.  169;  Boston  &  R.  Mill  Corp.  v.  Newman,  12 
Pick.  467,  23  Am.  Dec.  622  (Conf.  Lowell  v.  Boston,  111  Mass.  454, 
15  Am.  Rep.  39);  Turner  v.  Nye,  154  Mass.  579,  14  L.  R.  A.  487,  28 
N.  E.  1048;  Ex  parte  Bacot,  36  S.  C.  125,  16  L.  R.  A.  586,  15  S.  E. 
204;  Dayton  Gold  &  S.  Min.  Co.  v.  Seawcll,  11  Nev.  394;  Hand 
Gold  Min.  Co.  v.  Parker,  59  Ga.  419;  Head  v.  Amoskeag  Mfg.  Co. 
113  U.  S.  9,  28  L.  Ed.  889,  5  Sup.  Ct.  441 ;  Clark  v.  Xash.  198  U.  S. 
361,  49  L.  Ed.  1085,  25  Sup.  Ct.  676,  4  Ann.  Cas.  1171;  Strickley  v. 
Highland  Boy  Gold  Min.  Co.  [200  U.  S.  527,  26  Sup.  Ct.  301.  50  L. 
Ed.  581,  4  Ann.  Cas.  1174]  supra;  Otis  Co.  v.  Ludlow  Mfg.  Co..  201 
H.  S.  140,  50  L.  Ed.  696,  26  Sup.  Ct.  353. 

"The  propriety  of  keeping  in  view  by  this  court,  while  enforcing 
the  fourteenth  amendment,  the  diversity  of  local  conditions,  and  of 
regarding  with  great  respect  the  judgments  of  the  state  courts  upon 
what  should  be  deemed  public  uses  in  that  state,  is  expressed,  justi- 
fied, and  acted  upon  in  Fallbrook  Irrig.  District  v.  Bradley,  Clark  v. 
Nash,  and  Strickley  v.  Highland  Boy  Gold  Min.  Co.,  ubi  supra. 
What  was  said  in  these  cases  need  not  be  repeated  here.  No  case  is 
recalled  where  this  court  has  condemned,  as  a  violation  of  the  four- 
teenth amendment,  a  taking  upheld  by  the  state  court  as  a  taking  for 
public  uses  in  conformity  with  its  laws.  In  Missouri  P.  R.  Co.  v. 
Nebraska  [164  U.  S.  403,  416,  17  Sup.  Ct.  130.  41  L.  Ed.  4S9],  ubi 
supra,  it  was  pointed  out  that  the  taking  in  that  case  was  not  held  by 
the  state  court  to  be  for  public  uses.  We  must  not  be  understood  as 
saying  that  cases  may  not  arise  where  this  court  would  decline  to  fol- 
low the  state  courts  in  their  determination  of  the  uses  for  which  lan<! 
could"  be  taken  by  the  right  of  eminent  domain.  The  cases  cited,  how- 
ever, show  how  greatly  we  have  deferred  to  the  opinions  of  the  state 
courts  on  this  subject,  which  so  closely  concerns  the  welfare  of  then 
people.  We  have  found  nothing  in  the  federal  Constitution  which 
prevents  the  condemnation  by  one  person  for  his  individual  use  of  a 
right  of  way  over  the  land  of  another  for  the  construction  of  an  irri- 
gation ditch ;  of  a  right  of  way  over  the  land  of  another  for  an  aerial 
bucket  line ;  or  of  the  right  to  flow  the  land  of  another  by  the  erection 
of  a  clam.  It  remains  for  the  future  to  disclose  what  cases,  if  any, 
of  taking  for  uses  which  the  state  Constitution,  law,  and  court  approve 
will  be  held  to  be  forbidden  by  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States.     *    *    * 

"We  need  not  consider  whether  a  condemnation  by  a  railroad,  au- 
thorized by  a  state  law  and  approved  by  the  state  court,  of  land  for  the 
construction  of  a  spur  track  to  be  used  solely  to  transport  commodi- 
ties to  the  main  line  and  thence  to  the  place  of  sale  and  consui 
throughout  the  country,  is  a  violation  of  the  fourteenth  amendment . 


692  FUNDAMENTAL    RIGHTS  (Part    2 

nor  the  authorities  bearing  upon  the  question  whether  such  a  use  is 
public.1  Here  the  proposed  spur  track  can  be  used,  and  was  designed 
to  be  used,  not  only  for  access  to  the  factory  of  the  tobacco  company, 
but  for  the  storage  of  cars  to  be  laden  or  unladen  by  receivers  and 
shippers  of  freight,  and  to  relieve  the  congestion  of  business  which, 
through  the  growth  of  the  town,  overburdened  the  limited  trackage  of 
the  railroad.  *  *  *  The  uses  for  which  the  track  was  desired  are 
not  the  less  public  because  the  motive  which  dictated  its  location  over 
this  particular  land  was  to  reach  a  private  industry,  or  because  the 
proprietors  of  that  industry  contributed  in  any  way  to  the  cost."  2 


STATE  ex  rel.  TACOMA  INDUSTRIAL  CO.  v.  WHITE  RIVER 
POWER  CO. 

(Supreme  Court  of  Washington,  1905.    39  Wash.  648,  82  Pac.  150,  2  L.  R.  A. 
[N.  S.]  842,  4  Ann.  Cas.  9S7.) 

[Certiorari  to  review  an  order  of  the  Peirce  county  Superior  Court. 
The  charter  of  the  White  River  Power  Company,  a  New  Jersey  cor- 
poration admitted  to  do  business  in  Washington,  authorized  it  to 
develop  and  utilize  for  commercial  purposes  the  water  power  of  cer- 
tain streams  in  the  state  of  Washington ;  to  construct  and  operate 
plants  for  the  electric  transmission  and  the  furnishing  of  light,  heat, 
and  power  for  any  purpose  to  individuals,  corporations,  and  munic- 
ipalities; to  store,  transport,  and  sell  water,  water  power  and  priv- 
ileges, for  any  purpose  in  connection  with  said  streams,  and  to  main- 
tain waterworks ;  to  erect  and  operate  mills,  manufactories,  and  other 
erections;  and  to  deal  in  real  estate  in  connection  with  said  business. 
For  the  construction  of  works  thus  authorized  the  company  filed  a 
petition  in  the  court  below  to  condemn  land  and  property  of  the 
Tacoma  Company  and  others.  This  proceeding  was  taken  after  an 
order  in  favor  of  the  petitioner.     Other  facts  appear  in  the  opinion.] 

Rudkin,  J.  *  *  *  At  the  threshold  of  the  proceeding  the  re- 
spondent is  confronted  with  the  objection  that  it  is  seeking  to  take 
private  property  for  a  private  use,  in  violation  of  section  16,  art.  1, 
of  the  state  Constitution.  *  *  *  The  section  of  the  Constitution 
in  question  declares  that  "private  property  shall  not  be  taken  for 
private  use,  except  for  private  ways  of  necessity,  and  for  drains, 
flumes,  or  ditches  on  or  across  the  lands  of  others  for  agricultural, 

i  See  35  L.  R.  A.  (N.  S.)  636  (cases  and  references).  Compare  Towns  v. 
Klamath  Co.,  post,  p.  701,  and  Robinson  v.  Swope,  post,  p.  702,  note. 

2  Accord,  in  addition  to  the  cases  cited  in  this  opinion,  see  Offield  v.  N.  Y., 
N.  H.  &  11.  R.  R.,  203  U.  S.  372,  27  Sup.  Ct.  72,  51  L.  Ed.  231  (1906)  (taking  of 
interest  of  minority  stockholders  in  railroad  by  another  railroad  owning  three- 
fourths  of  stock);  Spencer  v.  Seaboard,  etc.,  Ry.,  137  N.  C.  107,  49  S.  E.  96 
(1904),  annotated  1  L.  R.  A.  (N.  S.)  615-617.  Compare  Matter  of  Tuthill,  163  N. 
Y.  133,  57  N.  E.  303,  49  L.  R.  A.  781.  79  Am.  St.  Rep.  574  (1900),  and  Sutter  Co. 
v.  Nicols,  152  Cal.  0,sS,  03  Pac.  872  (190S),  annotated  in  15  L.  R.  A.  (N.  S.) 
■616,   14  Ann.  Cas.  900. 


Ch.  12)  eminent'  domain  693 

domestic,  or  sanitary  purposes."  The  term  "public  use"  when  applied 
to  the  law  of  eminent  domain  is  not  easily  defined.  It  has  often 
been  said  that  it  is  more  easily  defined  by  negation  than  oth. 
In  determining  the  question  of  public  use,  courts  have  always  been 
influenced  to  a  greater  or  less  extent  by  legislative  declarations,  and 
by  local  customs  and  conditions  and  local  necessities.  In  the  states 
of  Maine,  Massachusetts,  New  Hampshire,  Connecticut,  New  Jersey, 
Indiana,  Iowa,  Kansas,  Wisconsin,  and  perhaps  others,  statutes  per- 
mitting lands  to  be  taken  for  the  purpose  of  creating  water 
for  milling  and  manufacturing  purposes  have  been  enacted  and  en- 
forced, though  not  always  without  protest.  The  Legislature  of  the 
state  of  New  York  has  never  authorized  the  exercise  of  the  right  of 
eminent  domain  in  favor  of  mills  of  any  kind,  and  it  has  been  said 
that  "sites  for  steam  engines,  hotels,  churches,  and  other  public  con- 
veniences might  as  well  be  taken  by  the  exercise  of  this  extraordi- 
nary power."  Hay  v.  Cohoes  Co.,  3  Barb.  (X.  Y.)  47.  It  is  safe  to 
say  that  the  courts  of  that  state  would  not  sanction  the  exercise  of 
the  power  of  eminent  domain  for  any  such  purpose.  Matter  of  Tut- 
hill,  1C3  N.  Y.  133,  57  N.  E.  303,  49  L.  R.  A.  781,  79  Am.  St.  Rep. 
574.  The  courts  of  Michigan  and  Georgia  have  denied  the  right  of 
eminent  domain  in  similar  cases.  Ryerson  v.  Brown.  3?  Mich.  3i3. 
24  Am.  Rep.  564 ;  Loughbridge  v.  Harris,  42  Ga.  500.  On  the  other 
hand,  the  courts  of  Alabama  and  Vermont  have  held  that  the  right  of 
eminent  domain  cannot  be  exercised  in  favor  of  gristmills,  unless  they 
are  public  mills,  required  by  law  to  grind  for  all  in  due  turn  and  for 
regular  tolls.  Sadler  v.  Langham,  34  Ala.  311;  Tyler  v.  Beacher,  44 
Vt.  64S,  8  Am.  Rep.  398. 

In  Head  v.  Amoskeag  Mfg.  Co..  113  U.  S.  9,  5  Sup.  Ct.  441,  28  L. 
Ed.  889,  the  court  upheld  the  New  Hampshire  statute,  as  a  regula- 
tion of  the  manner  in  which  the  rights  of  proprietors  of  land  adjacent 
to  a  stream  may  be  ascertained  and  enjoyed  with  a  due  regard  to  the 
interest  of  all  and  the  public  good,  but  refused  to  pass  upon  the  ques- 
tion whether  the  statute  could  be  upheld  as  a  delegation  of  the  right 
of  eminent  domain.     The  courts  of  the  mining  and  arid  land  states 
have  also  held  that  the  use  of  water  for  mining  and  irrigation  pur- 
poses is  a  public  use.     The  question  is  not  a  new  one  in  this  court. 
It  was  fullv  considered,  in  relation  to  another  statute,  in  the  case  of 
Lumber  Co.  v.  Morris,  33  Wash.  490,  74  Pac.  681,  63  I..  R    A. 
S20,   99  Am.    St.   Rep.  964.     The   court   there   cites   with   a 
*     *     *     from    Cooley    on    Constitutional    Limitations    (pag< 
"Nor  could   it   be  of   importance   that   the   public   would    receive    in- 
cidental  benefits,   such   as   usually   spring    from   the   improvement   of 
lands  or  the  establishment  of  prosperous  private  enterprises.     The 
public  use  implies  a  possession,  occupation,  and  enjoyment  of  the  land 
by  the  public  at  large  or  by  public  agencies;   and  a  due  prol 
the   rights  of  private   property   will    preclude   the  government 
seizing  it  in  the  hands  of  the  owner,  and  turning  it  over  to  another, 


694  FUNDAMENTAL    BIGHTS  (Part  2 

on  vague  grounds  of  public  benefit,  to  spring  from  the  more  profitable 
use  to  which  the  latter  may  devote  it."  And  it  said:  "But  from  a 
consideration  of  all  the  authorities  and  from  our  own  views  on  con- 
struction, we  are  of  the  opinion  that  the  use  under  consideration 
must  be  either  a  use  by  the  public,  or  by  some  agency  which  is  quasi 
public,  and  not  simply  a  use  which  may  incidentally  or  indirectly  pro- 
mote the  public  interests  or  general  prosperity  of  the  state."  *  *  * 
It  will  thus  be  seen  that  this  court  repudiated  the  broad  and  libera! 
construction  adopted  by  the  New  Hampshire  and  other  courts,  and 
committed  itself  to  the  more  restricted  doctrine  laid  down  by  Judge 
Cooley  in  Ryerson  v.  Brown  and  in  his  work  on  Constitutional  Lim- 
itations, supra.  In  Ryerson  v.  Brown  the  court,  speaking  through 
Chief  Justice  Cooley,  said :  "Whether  the  use  to  which  the  machinery 
is  to  be  put  which  is  to  be  operated  by  the  power  can  be  declared  a 
public  use,  is  the  question  that  remains  to  be  considered.  If  the  act 
were  limited  in  its  scope  to  manufactures  which  are  of  local  ne- 
cessity, as  gristmills  are  in  a  new  country  not  yet  penetrated  by  rail- 
roads, the  question  would  be  somewhat  different  from  what  it  is 
now.  But  even  in  such  case  it  would  be  essential  that  the  statute 
should  require  the  use  to  be  public  in  fact ;  in  other  words,  that  it 
should  contain  provisions  entitling  the  public  to  accommodations.  A 
flouring  mill  in  this  state  may  grind  exclusively  the  wheat  of  Wis- 
consin, and  sell  the  product  exclusively  in  Europe,  and  it  is  manifest 
that  in  such  a  case  the  proprietor  can  have  no  valid  claim  to  the  in- 
terposition of  the  law  to  compel  his  neighbor  to  sell  a  business  site 
to  him,  any  more  than  could  the  manufacturer  of  shoes  or  the  re- 
tailer of  groceries.  Indeed,  the  two  last  named  would  have  far  higher 
claims,  for  they  would  subserve  actual  needs,  while  the  former  would 
at  most  only  incidentally  benefit  the  locality  by  furnishing  employ- 
ment and  adding  to  the  local  trade."  And  again :  "What,  then,  is  the 
necessity  for  the  exercise  of  this  extraordinary  power  in  aid  of  manu- 
facturing corporations?  It  is  certainly  not  a  necessity  of  the  ex- 
treme sort,  which  supports  the  like  authority  in  aid  of  railways.  A 
railway  cannot  run  around  unreasonable  landowners;  but  no  one 
man  and  no  number  of  men  can  prevent  the  establishment  of  machine 
shops  or  a  sawmill  by  refusing  to  part  with  the  lands  they  may  hap- 
pen to  own.  No  particular  motive  power  is  indispensable.  At  the 
worst,  the  question  presented  in  any  case  will  be  a  question  of  dif- 
ferent degrees  of  convenience  or  of  probable  profits.  A  mill  at  one 
spot  on  a  stream  may  be  more  profitable  than  at  another;  a  machine 
shop  at  one  point  may  be  more  cheaply  operated  by  water  power  than 
by  steam  power;  but  steam  is  not  excluded  from  any  part  of  the 
state  because  of  any  general  conviction  that  water  power  is  more  ad- 
vantageous or  more  economical.  When  the  owner  of  a  mill  site  en- 
ters upon  the  calculation  whether  he  shall  improve  the  site  in  order 
to  obtain  operating  power  for  machinery,  or,  on  the  other  hand,  pro- 
vide steam  machinery,  the  question  that  confronts  him  is  not  one  of 


Ch.  1-)  EMINENT    DOMAIN 

necessity,  but  of  comparative  cost,  expense  of  operation,  and  probable 
returns." 

in  Yarner  v.  Martin,  21  W.  Va.  548,'  the  court  holds  that  before 
a  corporation  can  exercise  the  right  of  eminent  domain  it  must  possess 
each  and  all  of  these  qualifications:  First.  The  general  public  must 
have  a  definite  and  fixed  use  of  the  property  to  be  condemned ;  a  use 
independent  of  the  will  of  the  private  person  or  private  corporation 
in  whom  the  title  of  property  when  condemned  will  be  vested ;  a  pub- 
lic use,  which  cannot  be  defeated  by  such  private  owner,  but  which 
public  use  continues  to  be  guarded  and  controlled  by  the  general  pub- 
lic through  laws  passed  by  the  Legislature.  Second.  This  public  use 
must  be  clearly  a  needful  one  for  the  public — one  which  cannot  be 
given  up  without  obvious  general  loss  and  inconvenience.  Third.  It 
must  be  impossible,  or  very  difficult,  at  least,  to  secure  the  same  public 
uses  and  purposes  otherwise  than  by  authorizing  the  condemnation 
of  private  property.  *  *  *  In  Fallsburg  Power  &  Manufacturing 
Co.  v.  Alexander,  101  Va.  98,  43  S.  E.  194,  61  L.  R.  A.  129,  99  Am. 
St.  Rep.  855,  the  court  of  appeals  of  Virginia  approved  the  rule  an- 
nounced by  the  Supreme  Court  of  West  Virginia,  and  applied  it  in 
a  case  very  similar  to  the  case  at  bar.  The  court  quoted  extensively 
from  the  decisions  followed  by  this  court  in  the  Healy  Lumber  Com- 
pany Case,  and  held  that  the  proposed  use  was  not  a  public  one. 
Speaking  of  the  company  and  its  objects,  in  that  case,  the  court  said : 
"It  is  urged  upon  us  that,  although  the  charter  in  question  does  not 
command  the  performance  of  the  company's  public  duties,  since  it 
is  'a  public  service  corporation,'  the  right  of  public  control  arises  from 
the  grant  of  the  franchise  of  eminent  domain ;  and  when  the  com- 
pany undertakes  to  devote  its  property  and  its  products  to  the  public 
use  it  becomes  subject  to  public  regulations.  This  proposition  is  un- 
questionably sound,  and  sustained  by  the  authorities  cited.  Munn  v. 
Illinois,  9S'U.  S.  113,  24  L.  Ed.  77;  Budd  v.  People  of  New  York. 
143  U.  S.  538,  12  Sup.  Ct.  468,  36  L.  Ed.  247:  Brass  v.  North  Dakota. 
153  U.  S.  391,  14  Sup.  Ct.  857,  38  L.  Ed.  757;  to  which  many  others 
might  be  added.  But  this  does  not  meet  the  difficulty  in  this  case. 
The  mere  recognition  of  the  corporation  in  its  charter  as  an  'internal 
improvement  company'  does  not  make  it  so,  and  bring  it  within  the  op- 
eration of  the  general  laws  of  the  state  governing  such  companies  and 
controlling  their  operations.  *  *  *  Xot  only  is  the  public  benefit 
to  spring  from  the  use  to  which  the  company  proposes  to  devote  the 
property  vague,  indefinite,  and  uncertain,  but,  under  the  plain  lan- 
guage of  the  charter,  the  public  use  of  the  property,  or  any  use  of  it 
by  the  public,  may  be  gainsaid  or  denied  or  withdrawn  by  the  com- 
pany at  its  will,  since  it  is  authorized  to  use,  not  only  a  part,  but  the 
entire  product,  of  the  work  or  works  it  proposes  to  establish  for  it* 
own  use  and  benefit.     *     *     * " 

i  See  this  strong  and  well-reasoned  case  for  an  exhaustive  discussion  of  the 
nature  of  a  "public  use." 


696  FUNDAMENTAL    RIGHTS  (Part  '2, 

This  is  equally  true  of  the  respondent  company.  It  is  not  claimed 
that  there  is  a  present  demand  for  the  50,000  electrical  horse  power. 
It  is  not  claimed  that  the  respondent  has  a  franchise  to  enter  any  of 
the  cities  or  towns  mentioned,  or  that  it  will  or  can  obtain  one.  It 
does  not  appear  that  there  are  any  street  or  other  railways  to  utilize 
its  product.  It  is  not  under  contract  or  obligation  to  furnish  elec- 
tricity to  any  person,  or  for  any  purpose.  Under  its  articles,  it  may 
erect  and  maintain  mills  and  manufactories  and  operate  the  same. 
For  aught  that  appears,  aside  from  its  professions  and  voluntary 
promises,  it  may  take  the  relator's  property,  generate  electricity  or 
not,  at  will,  and  use  the  same  for  any  purpose,  public  or  private,  to 
suit  its  convenience.2     *     *     * 

It  is  further  contended  by  the  respondent  that  the  use  in  question 
is  declared  to  be  public  by  article  21  of  the  state  Constitution,  which 
reads :  "The  use  of  the  waters  of  this  state  for  irrigation,  mining  and 
manufacturing  purposes  shall  be  deemed  a  public  use."  We  are  not 
called  upon  at  this  time  to  determine  the  full  import  or  meaning  of 
this  constitutional  provision.  What  we  have  already  said  disposes  of 
the  question  before  us.  If  it  was  intended  by  the  article  in  question 
to  extend  the  right  of  eminent  domain  to  private  manufacturing  cor- 
porations, or  to  authorize  the  taking  of  private  property  for  a  private 
use,  it  violates  the  due  process  clause  of  the  federal  Constitution.  A 
state  is  powerless,  by  statute  or  by  constitutional  provision,  to  declare 
a  use  public  which  is  essentially  and  inherently  private.8     *     *     * 

From  a  full  review  of  all  the  authorities,  we  are  convinced  that 
the  respondent  is  not  a  public  service  corporation,  and  that  the  use 
to  which  it  intends  to  apply  the  property  it  now  seeks  to  acquire  is 
not  a  public  use,  within  the  meaning  of  the  Constitution  and  laws  of 
this  state.  We  do  not  mean  to  say  that  the  right  of  eminent  domain 
can  in  no  case  be  extended  to  a  corporation  organized  for  the  pur- 
pose of  generating  and  transmitting  electricity  for  power  and  other 
purposes;  but  before  this  can  be  done,  public  necessity  must  require 
it,  and  the  right  of  the  public  to  the  use  and  enjoyment  of  the  prop- 
erty must  be  regulated,  guarantied,  and  safe-guarded  by  proper  legis- 
lation.    *     *     * 

Order  reversed. 


2  "The  use  of  water  power  by  a  manufacturer  for  his  own  purposes  Is  a 
private  use  and  is  not  on  the  basis  of  a  sale  of  power  to  the  public." — Timlin, 
J.,  in  Water  Power  Cases,  148  Wis.  124,  148,  149,  134  N.  W.  330,  339,  3S  L.  R. 
A.  (N.  S.)  526  (1912). 

s  Citing  Kaukauna  Water  Power  Co.  v.  Green  Bay  Co.,  142  U.  S.  254,  273, 
12  Sup.  Ct.  173,  177,  35  L.  Ed.  1004  (1S91),  Brown,  J.:  "It  is  probably  true 
that  it  is  beyond  the  competency  of  the  state  to  appropriate  to  itself  the  prop- 
erty of  individuals  for  the  sole  purpose  of  creating  a  water  power  to  be 
leased  for  manufacturing  purposes."  But  if  water  power  can  be  produced  as 
incidental  to  the  maintenance  of  a  dam  for  some  other  public  purpose,  as 
the  improvement  of  navigation,  it  may  be  controUed  and  sold  by  the  state. 
Id. ;    U.  S.  t.  Chandler-Dunbar  Co.,  post,  p.  72c. 


Ch.  12)  EMINENT    DOMAIN  GUT 

BROWN  v.  GERALD  (1905)  100  Me.  351,  362,  370-376,  61  Atl. 
785,  70  L.  R.  A.  472,  109  Am.  St.  Rep.  526.  The  Maine  legislature 
chartered  a  company  to  generate  and  sell  electricity  for  lighting,  heat- 
ing, traction,  and  mechanical  purposes.  It  had  contracted  to  sell  its 
entire  output  of  current  derived  from  its  water  power  plant  to  a  sin- 
gle manufacturing  customer,  save  so  much  as  it  might  need  for  sup- 
plying electric  light  customers,  of  which  on  account  of  the  location  of 
its  line  across  the  fields,  it  was  likely  to  have  few.  It  was  held  that 
the  legislature  could  not  give  it  the  power  of  eminent  domain  in  ex- 
tending its  line  to  the  manufacturing  customer;    Savage,  J.,  saying: 

"We  find  that  the  doctrine  that  public  benefit  and  utility  is  a  justi- 
fication for  the  exercise  of  the  right  of  eminent  domain  has  been  as- 
serted more  especially  in  four  classes  of  cases:  Those  relating  to  the 
development  of  water  power  for  mills  under  general  or  special  mill 
or  flowage  acts ;  those  arising  under  drainage  acts  for  the  reclama- 
tion of  wet  and  marshy  lands;  those  relating  to  the  irrigation  of  arid 
lands;  and  those  relating  to  the  promotion  of  mining.  Of  the  mining 
acts,  outside  of  states  whose  Constitutions  in  terms  recognize  mining 
as  a  public  use,  it  may  be  said  that  the  authorities  differ  as  to  the 
effect  of  the  mere  public  benefit.  Overman  Silver  Mining  Co.  v.  Cor- 
coran, 15  Nev.  147;  Consolidated  Channel  Co.  v.  C.  P.  R.  Co.,  51  Cal. 
269.  And  it  was  held  in  Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U. 
S.  ll-\  17  Sup.  Ct.  56,  41  L.  Ed.  369,  that  the  irrigation  acts  of  the 
Western  states  are  sustainable  on  the  ground  of  a  regulation  of  the 
common  interests  of  the  owners — a  doctrine  applied  elsewhere  to 
drainage  acts.  *  *  *  [Here  follows  a  careful  review  of  the  deci- 
sions under  the  mill  acts  in  various  states,  particularly  Massachusetts, 
the  later  decisions  in  the  latter  supporting  such  acts  upon  other  grounds 
than  that  of  eminent  domain.  See  Talbot  v.  Hudson,  ante,  p.  6S3, 
note.] 

"Taking  the  decided  cases  generally,  we  think  that  the  weight  of  au- 
thority does  not  sustain  the  doctrine  that  a  public  use,  such  as  justifies 
the  taking  of  private  property  against  the  will  of  the  owner,  may  rest 
solely  upon  public  benefit,  or  public  interest,  or  great  public  utility. 
*  *  *  And  we  think  there  is  nothing  in  the  creation  and  distribution 
of  power  for  manufacturing  enterprises,  no  matter  how  great  their 
general  utility,  which  makes  it  'alike  proper,  useful,  and  needful'  for 
the  government  to  provide  for  it.  They  are  clearly  private  enter- 
prises, built  up  by  private  capital,  for  private  gain.  They  are  not  sub- 
ject to  governmental  regulation  as  public  enterprises.  Their  promoters 
and  owners  manage  them  to  suit  themselves,  so  long  as  they  do  not 
interfere  with  the  rights  of  others.    *    *    * 

"It  is  contended  that,  granting  that  the  manufacturing  uses  of  the 
current  of  electricity  proposed  to  be  developed  are  private,  neverthe- 
less the  powers  granted  to  this  corporation  are  for  public  uses.  The 
defendant  corporation   claims  that    it   is   a   quasi   public   corporation, 


t>98  FUNDAMENTAL    RIGHTS  (Part  2 

charged  with  the  performance  of  public  duties,  and  subject  to  gov- 
ernmental regulation,  and  that  it  possesses  the  rights  of  quasi  public 
corporations,  among  which  may  be,  if  a  statute  authorizes  it,  the  right 
of  eminent  domain.  It  says  the  uses  of  property  taken  by  it  under 
the  right  of  eminent  domain  for  the  purpose  of  performing  its  public 
duties  are  public  uses.  It  is  generally  well  settled  now  that  when 
the  Legislature  grants  to  a  corporation  the  right  of  eminent  domain,  or 
public  rights,  like  street  rights,  for  public  uses,  and  the  corporation 
accepts  and  exercises  the  grant,  it  thereby  impliedly  comes  under 
obligation  to  the  public  to  perform  all  those  duties  in  which  the  pub- 
lic are  interested,  and  to  aid  in  the  performance  of  which  the  right 
of  eminent  domain  was  granted.  It  can  be  compelled  to  perform  them, 
and  at  reasonable  rates.  It  subjects  itself  to  public  regulation  and 
control,  and  to  forfeiture  of  its  charter  for  failure  to  perform.  It 
devotes  its  property  to  public  use,  and  in  a  way  the  public  have  ac- 
quired an  interest  in  the  use  of  the  property.    *     *     * 

"But  this  public  character  of  a  corporation  does  not  follow  merely 
because  it  has  accepted  a  grant  of  the  right  of  eminent  domain,  unless 
it  was  granted  for  public  uses.  For,  unless  the  grant  was  for  public 
uses,  it  was  unconstitutional  and  void,  and  the  company  by  accept- 
ing it  obtained  no  rights  as  a  public  instrumentality,  and  came  thereby 
under  no  obligations  to  the  public.     *    *    * 

"Now,  we  have  taken  it  for  granted  that  some  of  the  ultimate  pur- 
poses expressed  in  the  defendant  corporation's  charter  are  public 
ones.1  We  repeat  that  we  think  that  no  one  would  now  deny  that 
electric  lighting  for  the  public  is  a  public  use,  and  that  a  corporation 
engaged  in  that  business  may  properly  be  granted  the  right  of  eminent 
domain  for  that  use.  And  we  have  no  occasion  at  this  time  to  deny 
that  the  right  of  eminent  domain  might  properly  be  granted  to  a  cor- 
poration to  enable  it  to  generate,  sell,  and  distribute  electricity  for 
public  lighting,  though  not  a  lighting  company  itself.  We  are  now- 
concerned  with  the  right,  under  eminent  domain,  to  generate,  sell, 
and  distribute  electricity  for  power  for  manufacturing  purposes.  We 
suppose  that  a  corporation  may  be  a  quasi  public  one  as  .to  electric 
lighting,  for  instance,  and  not  as  to  other,  though  chartered,  purposes, 

»  "But  when  the  Legislature  grants  the  right  of  eminent  domain  for  sev- 
eral purposes,  for  some  of  which  the  grant  would  be  constitutional,  and  for 
others  not,  with  the  discretion  in  the  grautee  to  exercise  the  right  when  and 
where  it  chooses,  within  the  confines  of  a  large  territory,  we  think  it  must  use 
that  discretion  in  good  faith,  and  the  taking  must  actually  be  for  the  constitu- 
tional purpose  in  order  to  be  valid.  And  we  think,  further,  that  the  actual 
purpose  is  open  to  judicial  inquiry.  Randolph  on  Eminent  Domain,  47.  Sup- 
pose a  company  were  chartered  to  do  an  electric  light  and  a  hanking  busi- 
ness, and  had  given  to  it  generally  the  right  of  eminent  domain.  Could  it 
condemn  a  lot  for  a  banking  house,  under  guise  of  its  right  to  condemn  for 
lighting  purposes?  And  if  it  should  in  terms  condemn  land  for  lighting  pur- 
poses, when  the  real  and  only  purpose  was  to  secure  a  lot  for  a  banking 
house,  would  the  public,  or  the  owner  of  the  land  taken,  be  concluded?  We 
think  not." — From  opinion  in  principal  case,  100  Me.  at  page  357,  61  Atl. 
785,  70  L.  R.  A.  472,  109  Am.  St  Rep.  52a 


t'h.  12)  EMINENT    OOMAIN  C99 

just  as,  to  use  a  former  illustration,  a  company  may  be  chartered  to 
build  and  operate  an  electric  light  plant,  and  to  run  a  bank,  or  cotton 
mill,  or  shoe  factory.  The  question  now  is,  was  this  defendant  a 
quasi  public  corporation,  as  respects  creating,  selling,  and  distributing 
electric  power  for  manufacturing  or  mechanical  purposes?  Because, 
as  we  have  found,  that  is  the  use  for  which  this  taking  is  to  be  made, 
if  at  all.  We  think  that  the  ultimate  use  of  the  power  is  an  important 
consideration.  If  that  use  is  essentially  a  private  use,  in  a  private 
business,  will  it  become  a  public  use  by  merely  multiplying  the  number 
of  persons  who  may  have  occasion  to  use  the  power?  If  it  would  not 
be  a  public  use  to  supply  power  for  one  mill,  would  it  be  such  to  supply 
for  two  mills,  or  for  six,  or  for  twelve?  We  think  not.  In  each  in- 
dividual case,  it  would  be  supplying  the  power  for  a  private  use.  If 
the  state  cannot  take  the  property  of  one  and  give  the  use  of  it  to  an- 
other for  private  use,  can  it  give  the  use  to  that  other,  in  order  that  in 
the  form  of  electric  power  he  may  distribute  the  use  to  a  dozen  others 
for  their  private  business  purposes?  We  think  not.  There  is  no 
underlying  necessity  or  peculiarity  in  the  business  of  distributing  elec- 
tric power  which  requires  any  such  enlargement  of  the  power  of  emi- 
nent domain.  There  seems  to  be  such  a  necessity  in  the  cases  of  all 
the  quasi  public  corporations  which  we  have  mentioned.  Railroads  and 
telegraph,  telephone,  and  water  companies  cannot  be  built  and  main- 
tained by  individuals  for  their  several  use,  each  one  for  himself.  There 
is  an  'impossibility,'  to  use  Judge  Cooley's  words,  'of  making  provi- 
sions for  them  otherwise'  than  through  the  power  of  eminent  domain. 
But  every  man  can,  if  he  wishes,  have  a  mechanical  power  of  his 
own,  either  steam,  or  water,  or  electric.  He  can  serve  himself,  without 
the  intervention  of  the  state.  Not  so  conveniently  or  advantageously, 
perhaps,  as  it  would  be  to  be  served  by  others.  But  mere  convenience 
and  advantage  in  private  business  must  yield  to  the  property  rights 
of  citizens  sacredly  guarded  by  the  Constitution.  We  cannot  find 
any  ground  for  sustaining  the  defendant's  contention,  except  that  of 
'public  benefit,'  or  general  utility,  and  we  think  that  is  not  sufficient. 

"There  is,  however,  one  other  consideration  which  we  deem  to  be 
of  weight,  though  perhaps  not  conclusive,  in  determining  whether  the 
creation  and  distribution  of  electric  power  is  a  public  use.  In  all  the 
other  public  uses  which  have  been  referred  to,  the  supplying  of  them 
to  some  does  not  disenable  the  company  to  supply  to  others.  The  use 
is  not  exhausted  by  using.  If  the  railroad  carries  one,  it  is  not  thereby 
made  less  able  to  carry  others.  It  is  simply  a  matter  of  more  trains. 
In  a  telegraphic  or  telephonic  service  it  is  simply  a  matter  of  more 
posts  and  wires.  The  capacity  is  practically  unlimited.  In  water 
services,  the  calls  in  those  public  services  for  which  the  right  of  em- 
inent domain  is  given  is  usually  infinitesimal,  in  comparison  with  the 
supply.  It  is  practically  the  same  in  electric  lighting.  The  units  of 
service  are  small  ordinarily  in  comparison  with  the  total  capacity  for 
service.    It  is  practicable  to  serve  all  the  public. 


700  FUNDAMENTAL    RIGH'J  3  (Part  2 

"But  a  power  service  is  entirely  different.  By  every  unit  used,  the 
capacity  to  serve  others  is  by  so  much  exhausted.  It  cannot  be  used 
again.  To  be  useful,  power  must  be  constant  and  steady  during  all 
the  working  hours  of  the  day.  Unless  the  purchaser  can  be  assured 
of  a  definite  and  stable  power,  it  is  of  little  value.  What  he  contracts 
for  another  cannot  have.  Moreover,  it  is  said  that  the  larger  the  unit 
the  more  economical  and  profitable.  Counsel  for  the  defendants  ar- 
gues that  the  best  and  cheapest  service  is  obtained  with  the  largest 
possible  units,  and,  further,  that  all  power  contracts  must  be  time 
contracts.  Suppose,  as  in  this  case,  the  first  customer  agrees  to  take 
it  all;  what  is  the  next  customer  to  do?  There  is  nothing  left  for 
him.  But  has  not  the  company  the  right  to  sell  it  all?  And  may  it 
not  sell  it  all  to  the  only  customer  in  sight  at  the  time?  Must  it  re- 
serve a  part  of  its  product  for  contingent  later  customers?  And  may 
it  not  contract  for  long  periods  of  time?  Purchasers  will  not  buy, 
ordinarily,  if  they  are  subject  to  the  necessity  of  dividing  the  power 
with  later  customers,  unless  the  danger  is  as  remotely  contingent  as 
electric  lighting  seems  to  be. in  this  case.  *  *  *  But  the  defendant 
company  says  it  can  generate  more  power  for  the  public,  and  that  it 
must  do  so  if  the  public  calls  for  power.  No  doubt  its  public  duty, 
if  any,  is  coextensive  with  those  means  which  the  state  has  given  to  it 
to  enable  it  to  perform  those  duties.  The  state  has  given  to  it  the  use 
of  the  water  in  the  Sebasticook  river  within  certain  limits  to  create 
power.  *  *  *  But,  suppose  it  does  create  more  power ;  the  old  cus- 
tomer, or  the  first  new  one,  may  take  it  all.  Really  the  right  of  the 
public  to  be  served,  under  such  conditions,  in  any  event,  is  purely  the- 
oretical, and  not  effectual.    *    *    * 

"Our  attention  has  been  called  to  the  recent  case  of  Rockingham 
Light  &  Power  Co.  v.  Hobbs,  72  N.  H.  531,  58  Atl.  46,  66  L.  R.  A. 
581,  as  an  authority  directly  in  point,  and  fully  sustaining  the  defend- 
ant's contentions.  *  *  *  The  New  Hampshire  court  uses  this  lan- 
guage :  'The  demand  for  power  *  *  *  is  of  a  public  character. 
Like  water,  electricity  exists  in  nature,  in  some  form  or  state,  and  be- 
comes useful  as  an  agency  of  man's  industry  only  when  collected  and 
controlled.  It  requires  a  large  capital  to  collect,  store,  and  distribute 
it  for  general  use.  *  *  *  It  may  happen  that  the  business  cannot 
be  inaugurated  without  the  aid  of  the  power  of  eminent  domain  for 
the  acquisition  of  the  necessary  land,  or  rights  in  land.  All  these 
considerations  tend  to  show  that  the  use  of  land  for  collecting,  storing, 
and  distributing  electricity,  for  the  purpose  of  supplying  power  and 
heat  to  all  who  may  desire  it,  is  a  public  use,  similar  in  character  to  the 
use  of  land  for  collecting,  storing,  and  distributing  water  for  public 
needs,  a  use  that  is  so  manifestly  public  that  it  has  seldom  been  ques- 
tioned and  never  denied.'  It  is,  perhaps,  sufficient  to  say  that  we  are 
unable  to  concur  in  the  reasoning  of  the  New  Hampshire  court,  for 
reasons  already  fully  stated.    *    *    * 


Ch.  12)  EMINENT    DOMAIN  701 

"The  record  of  this  case  shows  a  vote  of  the  corporation  whereby, 
'in  view  of  the  litigation  now  pending,'  it  recognized  itself  as  a  quasi 
public  corporation,  and  pledged  itself  to  the  performance  of  its  duties 
as  such  in  furnishing  the  public  with  electric  light  and  power,  and 
to  make  all  extensions  necessary  to  meet  the  public  demand  for  light 
and  power.  We  do  not  think  this  vote  can  make  any  difference.  In 
a  constitutional  sense,  a  use  cannot  be  enlarged,  it  cannot  be  made 
any  more  public,  by  a  vote.  The  public  duties  of  a  quasi  public  cor- 
poration, except  so  far  as  directly  imposed  by  statute,  arise  by  implica- 
tion of  law.  If  a  corporation  is  not  a  quasi  public  one,  it  cannot  make 
itself  such  by  voting  to  perform  the  duties  of  a  quasi  public  corpora- 
tion.   *    *    *"» 


TOWNS  v.  KLAMATH  COUNTY  (189S)  33  Or.  225,  232,  233, 
53  Pac.  604,  Bean,  J.  (upholding  an  Oregon  statute  anthorizing  the 
laying  out  of  a  county  road  upon  proceedings  taken  upon  the  petition 
of  any  person  that  his  residence  was  not  reached  by  a  convenient  pub- 
lic road) : 

"Laws  exist  in  most  of  the  states  for  the  laying  out  of  what  are 
called  'private  roads,'  or  'roads  of  public  easement';  and  these  stat- 
utes have  in  some  cases  been  held  valid,  and  in  others  invalid.  The 
principle  to  be  deduced  from  the  adjudged  cases,  bearing  upon  the 
question,  seems  to  be  that  if,  by  a  fair  construction  and  operation  of 
the  statutes,  the  road,  when  laid  out,  is  in  fact  a  public  road,  for  the 
use  of  all  who  may  desire  to  use  it,  the  law  is  not  liable  to  the  charge 
of  unconstitutionality,  and  is  valid,  though  the  road  may  be  laid  out 
on  the  application,  paid  for,  and  kept  in  repair,  by  the  petitioner,  and 
primarily  designed  for  his  benefit;   but  if  such  road  is  to  become  a 

=  Accord,  as  to  last  point  discussed:    State  v.  Superior  Court,  50  Wash.  13. 
519  (190S).     See  2  L.  R.  A.  (N.  S.)  842,  note,  and  19  L.  It.  A 
725,   note   (both   collecting   the  cas  C  eminent  domain  for  the 

purpose  of  generating  electric  power  from  water  power). 

in  Minnesota  Canal  Co.  v.  Koochiching  Co.,  97  Minn.  429. 
N.  W.  -10.-,.  5  L.  R.  A.  IN.  S.)  638,  7  Ann.  Cas.  1182  (1900),  It  was  said  (citing 
cases)  that  the  creation  of  electric  power  for  public  sale  was  a  public  use, 
because  II  was  susceptible  of  great  subdivision  ami  of  transportation  for 
long  distances,  but  that  the  power  of  eminent  domain  could  not  be  used  to 
supply  water  rower  from  the  wheels  to  the  public  "A  public  use  does  not  re- 
quire that  the  property  be  capable  of  being  used  by  the  entire  public  or  by 
any  particular  portion  thereof,  but  a  use  which,  by  physical  conditions,  Is 
restricted  to  a  very  few  persons  who  must  use  it  within  a  very  restricted 
area,  is  not  a  public  use.  Water  power  from  the  wheels  must  be  used  at  the 
wheels,  and  the  actual  result,  necessarily,  is  that  a  very  few  Individuals 
will  use  the  power  for  manufacturing  purpos  lusion  of  all  others 

The  effect  Is  the  creation  of  a  power  plant  to  create  water  ixnver  to  sell  to 
a  few  manufacturers  for  use  in  their  private  business,  fnder  such  condi- 
tions the  willingness  of  the  power  companj  to  sell  power  from  the  wheels 
to  the  general  public  has  only  a  theon  I         ;.  J. 

Contra:   Jacobs  v.  Clearview  O  ■  - 11 

s.i  #10  (1908).  As  to  the  use  of  eminent  d  m  aln  for  supplying  water  dlrectlv 
for  power  or  steam  generally,  see  21  L.  R.  A.  (N.  S.)  410-412. 


1 02  FUNDAMENTAL    EIGHTS  (Part  2 

mere  private  way,  and  not  open  to  the  public,  the  law  sanctioning 
it  is  void.  Lewis,  Em.  Dom.  §  167 ;  6  Am.  Law  Rev.  197 ;  Denham 
v.  Commissioners,  108  Mass.  202;  Latah  County  v.  Peterson,  3 
Idaho  (Hash.)  398,  29  Pac.  1089,  16  L.  R.  A.  81 ;  Shaver  v.  Starrett, 
4  Ohio  St.  494.  Within  this  principle,  the  act  in  question  is  valid. 
The  road  provided  for  is  an  open  public  way,  30  feet  in  width,  which 
may  be  traveled  by  any  person  who  desires  to  use  it.  The  fact  that 
it  may  accommodate  but  a  limited  portion  of  the  public,  or  even  but 
a  single  family,  is  no  objection  to  the  validity  of  the  law  providing 
for  its  location.  The  test  is  whether  it  is  an  open  public  way,  or  one 
for  the  exclusive  use  and  benefit  of  the  petitioner."  l 


MATTER  OF  NIAGARA  FALLS  &  WHIRLPOOL  RY.  CO. 
(1888)  108  N.  Y.  375,  381,  382,  384-3S6,  15  N.  E.  429,  Andrews,  J. 
(holding  that  the  power  of  eminent  domain  could  not  be  exercised  by 
a  corporation  chartered  under  the  general  railroad  act  of  the  state 
for  the  purpose  of  constructing  and  operating  an  electric  railway 
along  the  water's  edge  in  the  gorge  of  the  Niagara  river  below  the 
falls) : 

"It  is  necessary  to  a  just  understanding  of  the  question  presented 
to  refer  to  some  additional  facts  disclosed  by  the  evidence.  The 
Niagara  river,  from  the  foot  of  the  American  falls,  flows  northerly 

i  See  Varner  v.  Martin,  21  W.  Va.  534  (1S83);  Phillips  v.  Watson,  63  Iowa, 
28,  18  N.  W.  659  (1SS4) ;  Sherman  v.  Buick,  32  Cal.  241,  91  Am.  Dec.  577 
(1867).  As  to  spur  railway  tracks  to  private  places  of  business,  see  Lewis, 
Em.  Dom.  (3d  Ed.)  §  264  (collecting  cases) ;  Hairston  v.  Danville,  etc.,  Ry., 
ante,  p.  690. 

"In  the  present  law  the  legislature  has  declared  that  the  highway  to  be  laid 
out  under  it  shall  be  a  public  highway.  It  must  be  public,  or  it  cannot!  be  laid 
out  by  eminent  domain.  To  be  public,  it  must  not  only  be  nominally  open  to 
use  by  the  public,  but  it  must  be  so  located  that  the  public  can  get  onto  it 
at  some  point.  A  strip  of  land  lying  entirely  within  the  lines  of  private 
ownership,  upon  which  the  public  cannot  possibly  enter  without  committing 
trespass  on  private  property,  cannot  be  held  to  be  a  public  way." — Winslow, 
J.,  in  Wallman  v.  Connor  Co.,  115  Wis.  617,  620,  92  N.  W.  374  (1902).  So 
Robinson  v.  Swope,  12  Bush  (Ky.)  21  (1S76). 

In  Kentucky  private  ways  of  necessity  may  be  opened  by  the  power  of 
eminent  domain ;  Cofer,  J.,  saying,  in  Robinson  v.  Swope,  12  Bush.  21,  25 
(1876):  "The  public  have  a  right  to  compel  the  attendance  of  any  citizen  upon 
the  tribunals  of  justice,  either  as  a  witness,  juror,  or  party,  and  have  an  in- 
terest in  his  attendance  upon  elections  and  the  public  worship  of  Almighty 
God,  and  because  of  these  rights  and  interests  the  public  also  have  a  further 
interest  that  the  citizen  shall  be  provided  with  a  practicable  way  to  a  market 
at  which  he  can  buy  and  sell,  and  thus  provide  himself  with  those  things 
without  which  he  could  not  discharge  his  civil  and  social  duties.  In  view  of 
these  considerations  and  the  long  acquiescence  of  the  whole  people  of  the 
state  in  the  enforcement  of  the  statute  of  1820,  and  the  amendments  to  it,  and 
of  the  Revised  Statutes,  we  have  no  hesitation  in  holding  that  the  general 
assembly  may,  in  the  exercise  of  the  right  of  eminent  domain,  authorize  the 
establishment  of  private  passways  over  the  lands  of  others  when  it  is  neces- 
sary to  enable  any  inhabitant  of  the  state  to  attend  courts,  elections,  church- 
es, or  mills,  or  to  reach  an  established  public  highway." 


Ch.12)  EMINENT    DOMAIN  708 

for  several  miles  with  a  very  rapid  current,  and  the  river  on  either 
side  is  faced  by  precipitous  cliffs;  that  on  the  American  side  rising 
from  near  the  edge  of  the  river  to  a  height  of  from  150  to  200  feet, 
to  the  table-land  above.  The  river,  from  the  falls  to  the  point  known 
as  'The  Whirlpool,'  is  interesting,  and  persons  visiting  the  falls  have 
been  enabled,  by  means  of  what  is  known  as  an  'inclined  railway,'  to 
descend  from  the  top  of  the  bank  or  table-land  to  the  margin  of  the 
river.  This  railway  was  originally  a  private  enterprise,  but  is  now 
included  in  the  land  taken  by  the  state  for  a  state  reservation.  The 
'Whirlpool'  adjoins  the  lands  of  De  Vaux  College.  The  college  has 
constructed  a  stairway  leading  down  to  the  margin  of  the  river  at  this 
point  for  the  convenience  of  visitors,  and  derives  a  revenue  from  its 
use.  The  petitioner  has  located  its  road  along  the  margin  of  the  river. 
outside  of  the  cliff,  where  the  space  is  sufficient  between  the  cliff  and 
the  river  to  permit  the  track  to  be  laid,  and  at  other  points,  where  the 
cliff  rises  with  more  abruptness  from  the  margin,  the  location  contem- 
plates cutting  into  the  face  of  the  cliff  for  the  roadway.  The  proposed 
road  does  not  connect  at  either  end  with  a  highway.  It  can  be  reached 
only  by  passing  over  the  lands  of  the  state  or  the  lands  of  private 
owners.  There  can  be  no  habitations  along  the  line  of  the  road,  and 
no  traffic,  or  commerce,  or  business,  except  in  conveying  passengers 
over  the  road  to  see  the  river  and  the  'Whirlpool,'  and  returning  them 
again  to  the  point  from  which  they  started.  The  season  for  visitors 
at  the  falls  is  substantially  confined  to  June,  July,  August,  and  Sep- 
tember. The  proposed  road  cannot  be  operated  during  the  winter  on 
account  of  the  piling  up  of  the  ice,  and,  if  its  operation  was  prac- 
ticable in  the  winter  season,  it  would  have  nothing  to  do.  It  is  ap- 
parent that  the  proposed  enterprise  has  been  undertaken  and  is  to  be 
carried  on  for  the  sole  purpose  of  furnishing  sight-seers,  during  about 
four  months  of  the  year,  greater  facilities  than  they  now  enjoy  for 
seeing  the  part  of  Niagara  river  along  which  the  proposed  road  is  to 
be  constructed.     *     *     * 

"The  papers,  on  their  face,  show  that  the  corporation  has  under- 
taken an  ordinary  railroad  enterprise  within  the  purview  of  the  act 
of  1850,  in  aid  of  which  the  power  of  eminent  domain  may  be  appro- 
priately exercised.  But,  when  we  look  beyond  the  formal  documents, 
and  the  actual  business  proposed  to  be  conducted  is  considered,  we 
find  that  the  proposed  railroad  has  no  proper  termini ;  that  it  is  m  i 
a  highway  in  any  just  or  proper  sense;  that  it  cannot,  by  reason  of 
necessary  limitations,  perform  one  part  of  the  duty  it  has  undertaken, 
viz.,  the  transportation  of  freight;  that,  at  most,  it  can  be  operated 
but  a  portion  of  the  year;  and  that  the  sole  object  of  its  construc- 
tion is  to  enable  the  corporation,  for  a  compensation  to  be  received, 
to  provide  for  the  portion  of  the  public  who  may  visit  Niagara  Falls 
better  opportunities  for  seeing  the  natural  attractions  of  the  locality. 
We  feel  constrained  to  say  that,  in  our  judgment,  this  is  not  a  public 
purpose  which  justifies  the  exercise  of  the  high  prerogative  of  sov- 


704  FUNDAMENTAL    RIGHTS  (Part  2 

ereignty  invoked  in  aid  of  this  enterprise.  The  right  of  the  company 
being  challenged  on  this  ground,  the  court  is  compelled  to  consider  it, 
and  it  is  manifest  that  the  inquiry  is  not  precluded  because  the  peti- 
tioner has  organized  itself  under  the  general  railroad  act,  and  has 
assumed  in  its  articles  of  association  the  character  of  an  ordinary 
railroad  corporation.  What  is  a  public  use  is  incapable  of  exact  def- 
inition. The  expressions  'public  interest'  and  'public  use'  are  not 
synonymous.  The  establishment  of  furnaces,  mills,  and  manufactures, 
the  building  of  churches  and  hotels,  and  other  similar  enterprises,  are 
more  or  less  matters  of  public  concern,  and  promote,  in  a  general 
sense,  the  public  welfare.  But  they  lie  without  the  domain  of  public 
uses  for  which  private  ownership  may  be  displaced  by  compulsory 
proceedings.  The  ground  upon  which  private  property  may  be  taken 
for  railroad  uses,  without  the  consent  of  the  owner,  is  primarily  that 
railroads  are  highways  furnishing  means  of  communication  between 
different  points,  promoting  traffic  and  commerce,  facilitating  ex- 
changes ;  in  a  word,  they  are  improved  ways.  In  every  form  of  gov- 
ernment the  duty  of  providing  public  ways  is  acknowledged  to  be  a 
public  duty.     *     *     * 

"Whatever  rule,  founded  on  the  adjudged  cases,  may  be  formulated 
on  this  subject,  it  cannot,  we  think,  be  framed  so  as  to  include  the 
present  case.  The  fact  that  the  road  of  the  petitioner  may  enable 
the  portion  of  the  public  who  visit  Niagara  Falls  more  easily  or  more 
fully  to  gratify  their  curiosity,  or  that  the  road  will  be  public  in  the 
sense  that  all  who  desire  will  be  entitled  to  be  carried  upon  it,  is  not 
sufficient,  we  think,  in  view  of  the  other  necessary  limitations,  to 
make  the  enterprise  a  public  one,  so  as  to  justify  condemnation  pro- 
ceedings. The  case  does  not,  we  think,  differ  in  principle  from  an 
attempt  on  the  part  of  a  private  corporation,  under  color  of  an  act 
of  the  legislature,  to  condemn  lands  for  an  inclined  railway,  or  for 
a  circular  railway,  or  for  an  observatory,  to  promote  the  enjoyment 
or  comfort  of  those  who  may  visit  the  falls.  The  state  has,  under 
recent  legislation,  taken  lands  for  a  park  or  public  place  at  Niagara 
Falls.  The  taking  of  lands  by  municipalities  for  public  parks  is  rec- 
ognized as  a  taking  for  public  use.  Commissioners  v.  Armstrong,  45 
N.  Y.  234,  6  Am.  Rep.  70;  In  re  Mayor,  etc.,  99  N.  Y.  569,  2  N.  E. 
642.  They  contribute  to  the  health  and  enjoyment  of  the  people, 
and  are  laid  out  with  drives  and  ways  for  public  use.  Nahant  Road, 
11  Allen  (Mass.)  530,  and  Mount  Washington  Road,  35  N.  H.  134, 
were  justified  on  the  ground  that  they  were  public  highways  in  the 
ordinary  sense,  although  primarily  intended  as  pleasure  drives."  l 

i  Accord:  Great  Falls  Power  Co.  v.  Great  Falls,  etc.,  R.  Co.,  104  Va.  416, 
52  S.  E.  172  (1905)  (seruble — condemnation  of  park  for  scenic  purposes  by 
electric  railway). 


Ch.  12)  EMINENT    DOMAIN  705 

ATTORNEY  GENERAL  v.  WILLIAMS. 
(Supreme  Judicial  Court  of  Massachusetts,  1889:    17-1  Mas*  4TU,  55  N.  E.  77.) 

[Case  reported  by  Knowlton,  J.,  for  the  consideration  of  the  court, 
upon  an  information,  demurrer,  pleas,  and  certain  findings  of  fact. 
The  facts  appear  in  the  opinion.] 

Knowlton,  J.  This  is  an  information  by  the  attorney  general  to 
prevent  the  erection  and  maintenance  of  that  portion  of  a  building 
on  Copley  Square,  in  the  city  of  Boston,  which  is  above  the  limit  of 
height  prescribed  by  St.  1898,  c.  452.1    *    *    * 

The  first  question  raised  by  the  report  is  whether  the  statute  is  con- 
stitutional. The  streets  mentioned  in  the  statute  are  adjacent  to  Cop- 
ley Square.  On  the  case  as  now  presented,  we  must  assume  that  Cop- 
lev  Square,  in  the  language  of  the  information,  "is  an  open  square  and 
a  public  park,  intended  for  the  use,  benefit,  and  health  of  the  public, 
and  is  surrounded  by  buildings  devoted  to  religious,  charitable,  and 
educational  purposes,  some  of  which  contain  books,  manuscripts,  and 
works  of  art  of  great  value,  many  of  which  are  in  their  nature  irre- 
placeable." Regulations  in  regard  to  the  height  and  mode  of  construc- 
tion of  buildings  in  cities  are  often  made  by  legislative  enactments,  in 
the  exercise  of  the  police  power,  for  the  safety,  comfort,  and  conven- 
ience of  the  people,  and  for  the  benefit  of  property  owners  generally. 
The  right  to  make  such  regulations  is  too  well  established  to  be  ques- 
tioned. Salem  v.  Maynes,  123  Mass.  372;  Inhabitants  of  Watertown 
v.  Mayo,  109  Mass.  315,  12  Am.  Rep.  694;  Sawyer  v.  Davis,  136 
Mass.  239,  49  Am.  Rep.  27.  See  Talbot  v.  Hudson,  16  Gray,  417.  In 
view  of  the  kind  of  buildings  erected  on  the  streets  about  Copley 
Square,  and  the  uses  to  which  some  of  these  buildings  are  put,  it 
would  be  hard  to  say  that  this  statute  might  not  have  been  passed 
in  the  exercise  of  the  police  power,  as  other  statutes  regulating  the 
erection  of  buildings  in  cities  are  commonly  passed.  But  it  differs 
from  most  statutes  relative  to  this  subject,  in  providing  compensation 
to  persons  injured  in  their  property  by  the  limitations  which  it  cre- 
ates. In  this  respect  it  conforms  to  the  constitutional  requirements 
for  the  taking  of  property  by  the  right  of  eminent  domain.  Looking 
to  all  its  provisions  in  connection  with  the  place  to  which  they  apply. 
it  seems  to  have  been  intended  as  a  taking  of  rights  in  proper; 
the  benefit  of  the  public  who  use  Copley  Square.  It  adds  to  the  public 
park  rights  in  light  and  air,  and  in  the  view  over  adjacent  land  above 
the  line  to  which  buildings  may  be  erected.  These  rights  are  in  the 
nature  of  an  easement  created  by  the  statute  and  annexed  to  the  park. 

i  This  act  forbade  the  erection  or  tlie  completion,  on  certain  streets 
cent  to  Copley  Square,  of  any  building  to  a  height  exceeding 90  test,  provided 
for  the  payment  "f  damages  t<>  owm  rs  of  u  then 

before  the  passage  "f  the  act.  and  \"-  ■  e  satii  □  to  all  propertj 

owners  damaged  by  the  limitations  pre  I  by  1 

Hall  Const.L. — »."> 


TOG  FUNDAMENTAL    RIGHTS  (Part  2 

Ample  provision  is  made  for  compensation  to  the  owners  of  the  servi- 
ent estates.  In  all  respects  the  statute  is  in  accordance  with  the  laws 
regulating  the  taking  of  property  by  right  of  eminent  domain,  if  the 
legislature  properly  could  determine  that  the  preservation  or  improve- 
ment of  the  park  in  this  particular  was  for  a  public  use. 

The  uses  which  should  be  deemed  public  in  reference  to  the  right  of 
the  legislature  to  compel  an  individual  to  part  with  his  property  for  a 
compensation,  and  to  authorize  or  direct  taxation  to  pay  for  it,  are 
being  enlarged  and  extended  with  the  progress  of  the  people  in  educa- 
tion and  refinement.  Many  things  which  a  century  ago  were  luxuries 
or  were  altogether  unknown,  have  now  become  necessaries.  It  is  only 
within  a  few  years  that  lands  have  been  taken  in  this  country  for 
public  parks.  Now  the  right  to  take  land  for  this  purpose  is  generally 
recognized  and  frequently  exercised.  Foster  v.  Commissioners,  133 
Mass.  321 ;  Shoemaker  v.  U.  S.,  147  U.  S.  282,  13  Sup.  Ct.  361,  37 
L.  Ed.  170.  Many  statutes  have  been  passed  in  this  commonwealth 
allowing  taxation  for  purposes  affecting  the  health,  comfort,  pleasure, 
and  recreation  of  the  people,  and  thus  conducing  to  their  welfare.  In 
Kingman  v.  City  of  Brockton,  153  Mass.  255,  26  N.  E.  99S,  11  L.  R.  A. 
123,  the  court  said,  referring  to  a  statute  authorizing  the  raising  of 
money  by  taxation  for  the  erection  of  a  memorial  hall :  "The  statute 
*  *  *  may  be  vindicated  on  the  same  ground  as  statutes  authoriz- 
ing the  raising  of  money  for  monuments,  statues,  gates,  or  arches, 
celebrations,  publication  of  town  histories,  parks,  roads  leading  to 
points  of  fine  scenery,  decorations  upon  public  buildings,  or  other 
public  ornaments  or  embellishments  designed  merely  to  promote  the 
general  welfare,  either  by  providing  for  fresh  air,  a  public  recreation, 
or  by  educating  the  public  taste,  or  enforcing  sentiments  of  patriotism 
or  respect  for  the  memory  of  worthy  individuals.2  The  reasonable 
use  of  public  money  for  such  purposes  has  been  sanctioned  by  several 
different  statutes,  and  the  constitutional  right  of  the  legislature  to 
pass  such  statutes  rests  upon  sound  principles."  See,  also,  Higginson 
v.  Inhabitants  of  Nahant,  11  Allen,  530.  and  Hubbard  v.  Taunton,  140 
Mass.  467,  5  N.  E.  157. 

In  Olmstead  v.  Camp,  33  Conn.  551,  89  Am.  Dec.  221,  the  court,  in 
discussing  the  line  between  public  and  private  uses,  says:  "From  the 
nature  of  the  case,  there  can  be  no  precise  line.  The  power  requires  a 
degree  of  elasticity,  to  be  capable  of  meeting  new  conditions  and 
improvements  and  the  ever-increasing  necessities  of  society.  The 
sole  dependence  must  be  on  the  presumed  wisdom  of  the  sovereign  au- 
thority, supervised,  and,  in  cases  of  gross  error  or  extreme  wrong, 
controlled,  by  the  dispassionate  judgment  of  the  court."  The  grounds 
on  which  public  parks  are  desired  are  various.  They  are  to  be  en- 
joyed by  the  people  who  use  them.  They  are  expected  to  minister,  not 
only  to  the  grosser  senses,  but  also  to  the  love  of  the  beautiful  in 

2  See  D.  S.  v.  Gettysburg  Elee.  R.  R.,  post,  p.  940  (preservation  of  battle- 
field). 


v'h.  12)  EMINENT   domain  707 

nature,  in  the  varied  forms  which  the  change  in  seasons  brings.  Their 
value  is  enhanced  by  such  touches  of  art  as  help  to  produce  pleasing 
and  satisfactory  effects  on  the  emotional  and  spiritual  side  of  our 
nature.  Their  influence  should  be  uplifting,  and,  in  the  highest  sense, 
educational.  If  wisely  planned  and  properly  cared  for,  they  promote 
the  mental  as  well  as  the  physical  health  of  the  people.  For  this 
reason  it  has  alwa\  med  proper  to  expend  money  in  the  care 

and  adornment  of  them,  to  make  them  beautiful  and  enjoyable.  Their 
aesthetic  effect  never  has  been  thought  unworthy  of  careful  con 
tion  by  those  best  qualified  to  appreciate  it.  It  hardly  would  be  con- 
tended that  the  same  reasons  which  justify  the  taking  of  land  for  a 
public  park  do  not  always  justify  the  expenditure  of  money  to  make 
the  park  attractive  and  educational  to  those  whose  tastes  are  being 
formed,  and  whose  love  of  beauty  is  being  cultivated.  We  have  al- 
ready quoted  from  the  information  the  language  in  regard  to  the  sur- 
roundings of  the  square.  The  counsel  on  both  sides  referred  in  argu- 
ment to  the  well-known  buildings  which  constitute  these  surroundings. 
Trinity  Church,  the  Museum  of  Fine  Arts,  the  Boston  Public  Library, 
the  New  Old  South  Church,  the  Second  Church  of  Boston,  and  the 
buildings  of  the  Massachusetts  Institute  of  Technology  all  face  the  be- 
holder who  stands  on  Copley  Square  and  looks  around  him.  Some  of 
these  buildings  are  public  in  the  ordinary  sense  of  the  word,  and 
some  of  the  corporations  which  own  them  have  been  beneficiaries  of 
the  commonwealth  on  account  of  their  quasi  public  character,  and  the 
public  certainly  feels  an  interest  in  them. 

It  is  argued  by  the  defendants  that  the  legislature,  in  passing  this 
statute,  was  seeking  to  preserve  the  architectural  symmetry  of  Copley 
Square.  If  this  is  a  fact,  and  if  the  statute  is  merely  for  the  benefit 
of  individual  property  owners,  the  purpose  does  not  justify  the  tak- 
ing of  a  right  in  land  against  the  will  of  the  owner.  But  if  the  legis- 
lature, for  the  benefit  of  the  public,  was  seeking  to  promote  the  beauty 
and  attractiveness  of  a  public  park  in  the  capital  of  the  commonwealth, 
and  to  prevent  unreasonable  encroachments  upon  the  light  and  air 
which  it  had  previously  received,  we  cannot  say  that  the  lawmaking 
power  might  not  determine  that  this  was  a  matter  of  such  public  inter- 
est as  to  call  for  an  expenditure  of  public  money,  and  to  justify  the 
taking  of  private  property.  While  such  a  determination  should  not  be 
made  without  careful  consideration,  and  while  the  growing  tendency 
towards  an  enlargement  of  the  field  of  public  expenditure  should  be 
jealously  watched  and  carefully  held  in  check,  a  determination  of  this 
kind,  once  made  by  the  legislature,  cannot  be  lightly  set  aside.    *    *     * 

Demurrer  and  pleas  overruled." 

'Contra:  Farist  Steel  Co.  v.  Bridgeport,  60  Conn.  278,  22  Atl.  661,  13  I* 
R,  A.  590  (1891).  Compare  Commonwei  Itb  »  ■  on  v  r.  Oa,  188  Mass.  348, 
74  X.  E.  801,  89  L.  B.  A.  S17.  10s  Am,  St  Rep  194  (1905);  Welch  v.  Swasey, 
198  Mass.  864,  7!)  N.  K.  746,  118  Am.  St.  Re]  ■-■  - '■  I..  B,  A.  (N.  S.)  1160 
UiWT),  ntlirmed  in  214  U.  S.  91,  29  Sup.  Ct  507,  Oo  L.  Ed.  923  (1909). 


708  FUNDAMENTAL    EIGHTS  (Part  2 

ALBRIGHT  v.  SUSSEX  COUNTY  LAKE  &  PARK  COM- 
MISSION (1904)  71  N.  J.  Law,  303,  304-308.  57  Atl.  398,  69  L.  R. 
A.  768,  108  Am.  St.  Rep.  749,  2  Ann.  Cas.  48.  Dixon,  J.  (holding  in- 
valid a  statute  authorizing  the  public  acquisition  by  eminent  domain 
of  the  right  of  fishing  in  certain  fresh-water  lakes  of  New  Jersey) : 

"The  language  of  the  Constitution  does  not  authorize  property  to 
be  taken  'for  public  enjoyment,'  or  'for  public  purposes,'  or  generally 
'for  the  public'  Its  expression  is  'for  public  use,'  which  implies  an 
idea  of  utility,  of  usefulness,  not  necessarily  inherent  in  the  other 
phrases  mentioned.  The  duty  is  therefore  devolved  upon  this  court 
to  determine  whether  the  object  to  be  subserved  by  the  condemnation 
of  the  right  to  fish  in  the  plaintiff's  lake  is  a  public  use. 

"In  order  that  a  use  may  be  public,  it  is  not  essential  that  the  whole 
community  should  be  able  directly  to  participate  in  it.  Thus,  a  free 
school  for  children  is  for  a  public  use,  although  only  a  fraction  of 
the  community  can  attend  it.  But  it  is  essential  that  the  utility  should 
in  a  substantial  measure  concern  the  public ;  as,  for  example,  the 
education  of  the  young  concerns  the  community.  The  right  to  be 
condemned  under  this  statute  is  merely  the  right  to  fish.  Such  a 
right  is  in  the  ancient  legal  French  called  a  right  'profit  a.  prendre,' 
a  right  so  peculiarly  for  personal  enjoyment  that  it  is  incapable  of 
being  acquired  by  the  general  public,  either  by  custom  (Cobb  v.  Dav- 
enport, 32  N.  J.  Law,  369)  or  by  dedication  (Id.,  33  N.  J.  Law,  223, 
97  Am.  Dec.  718;  Albright  v.  Cortright,  64  N.  J.  Law,  330,  45  Atl. 
634,  48  L.  R.  A.  616,  81  Am.  St.  Rep.  504).  No  doubt  there  is  a 
public  right  of  fishing  recognized  by  municipal  law.  It  exists  in  the 
water  of  the  ocean  along  the  coast,  and  in  the  arms  of  the  sea  as  far 
as  the  tide  ebbs  and  flows.  But  this  right  differs  from  that  now  under 
consideration  in  several  important  respects.  In  the  first  place,  it  is 
a  mere  incident  of  the  public  ownership  of  the  public  waters,  while 
the  object  of  the  present  proceedings  is  to  sever  the  right  of  fishing 
from  the  title  to  the  lake,  and  give  it  an  independent  existence.  If  the 
Legislature  had  provided  for  the  condemnation  of  the  lake,  so  as  to 
confer  upon  the  public  the  right  of  resorting  thereto  for  all  purposes 
to  which  it  is  adapted,  the  condemnation  might  then  have  been  sup- 
ported on  the  precedents  which  find  a  public  use  in  parks,  and  the 
right  to  fish  would  have  passed  as  an  incident  of  the  public  title.  But 
under  this  statute  the  ownership  of  the-  lake  is  to  remain  private.  In 
the  next  place,  the  natural  supply  of  fish  in  the  public  waters  is  prac- 
tically inexhaustible  if  the  right  to  fish  therein  be  subjected  to  such 
regulations  as  will  reasonably  guard  it  for  the  free  enjoyment  of  the 
general  public.  But  the  natural  supply  of  fish  in  the  inland  lakes  of 
New  Jersey  is  so  small  that,  if  the  right  to  catch  fish  therein  were 
exercised  by  persons  sufficiently  numerous  to  be  deemed  the  public, 
the  supply  would  soon  come  to  an  end.  Lastly,  fishing  in  the  public 
waters  has  from  time  immemorial  constituted  an  industry  fostered  by 


Ch.  12)  BHINENT    DOUAIU  709 

law  for  the  supply  of  the  general  market,  while  fishing  in  these  pri- 
vate waters  has  been  and  can  be  only  for  individual  amusement  and 
gain.  We  think,  therefore,  that  for  present  purposes  there  is  no  sub- 
stantial resemblance  between  the  common  right  to  fish  in  public  wa- 
ters and  the  right  now  in  question.     *     *     * 

"The  right  to  be  enjoyed  under  this  statute  is  necessarily  the  right 
of  each  individual  who  exercises  it  to  abstract  from  what  is  designed 
by  the  statute  to  be  a  common  stock  such  portion  as  he  can  secure, 
and  to  appropriate  that  to  his  own  benefit.  This  is  for  private,  rather 
than  public,  advantage.  The  statute  does,  indeed,  contemplate  the 
acquisition  of  the  common  stock  by  public  agents,  but  they  are  to  ac- 
quire it  for  private  benefit.  If  the  common  stock  thus  to  be  acquired 
were  capable  of  supplying  an  unlimited  number  of  persons,  then  they 
might  be  deemed  in  a  constitutional  sense  the  public ;  but,  as  already 
stated,  the  stock  would  be  quite  inadequate  for  such  a  demand.  The 
fact  that  a  small  supply  is  tendered  free  to  the  first  takers  does  not 
show  that  the  public  can  enjoy  it. 

"But  not  o  ihat  the  property  taken 

should  be  for  the  public ;  it  is  also  necessary  that  it  should  be  for 
use.  The  chief  purpose  in  the  enjoyment  of  the  property  must  be 
utility.  But  it  cannot  be  doubted  that  the  main  object  of  the  present 
statute  is  to  furnish  a  means  of  amusement  or  sport  to  the  few  per- 
sons who  have  the  inclination  and  leisure  for  such  pastime.  The 
public  utility  to  be  subserved  by  such  indulgence  is  imperceptible. 
'The  reason  of  the  case'  therefore  does  not  seem  to  warrant  the  con- 
clusion that  the  proposed  taking  is  'for  public  use.'  When  we  look  to 
'the  settled  practice  of  free  governments,'  we  find  no  parallel  for  the 
present  enterprise.  There  are  many  instances  of  the  exercise  of  emi- 
nent domain  for  the  purpose  of  furnishing  facilities  to  be  enjoyed  by 
individuals ;  such  are  parks,  highways,  ferries,  railways,  telegraph 
and  telephone  lines,  etc.  Eut  these  differ  from  the  right  now  under 
consideration  in  important  respects.  First,  they  are  essentially  use- 
ful; secondly,  they  are  used  by  great  numbers  of  people;  and,  thirdly, 
their  use  by  the  individuals  abstracts  nothing  appreciable  from  the 
common  opportunity  of  use.  There  are  also  some  instances  of  the 
exercise  of  the  power  in  order  to  afford  facilities  for  private  enjoy- 
ment where  it  is  intended  that  each  individual  shall  abstract  a  por- 
tion from  the  common  stock.  An  example  appears  in  the  condemna- 
tion of  water  for  domestic  purposes  in  populous  neighborhoods.  But 
here  also  marked  differences  from  the  present  scheme  are  observable. 
The  end  sought  is  utility  of  the  greatest  urgency,  and  the  natural  sup- 
pi}  is  so  abundant  that  private  abstraction  cannot  exhaust  it.  In  all 
such  instances  these  characteristics  will  be  found  in  substantial  meas- 
ure to  make  them  of  use  to  the  public.  We  have  found  no  instance 
of  the  exercise  of  the  power  in  order  to  afford  a  means  of  pastime 
capable  of  being  enjoyed  by  only  a  few  persons. 

"There  is  another  consideration  deserving  of  some  weight.     The 


710  FUNDAMENTAL    RIGHTS  (Part  - 

Constitution  requires  that  on  taking  private  property  for  public  use 
just  compensation  should  be  made  to  the  owner,  and  this  implies  that 
the  property  taken  shall  be  reasonably  capable  of  just  estimation. 
The  lake  itself  could,  no  doubt,  be  fairly  appraised,  as  could,  prob- 
ably, the  right  of  any  individual,  or  of  any  specified  number  of  in- 
dividuals, to  fish  therein.  But  I  know  of  no  criterion  by  which  the 
right  of  an  unlimited  number  of  persons  to  spend  their  time  upon  the 
lake  for  the  purpose  of  catching  fish  could  be  valued.  It  might  be 
that  the  appraisers  would  evade  the  difficulty  by  awarding  to  the 
owner  the  full  value  of  the  lake,  but  in  that  case  justice  would  re- 
quire that  the  lake  itself,  and  not  a  mere  incidental  right  in  it,  should 
become  public  property.  We  think,  therefore,  that  neither  in  the 
reason  of  the  case  nor  in  the  settled  practice  of  free  governments  is 
there  legal  support  for  the  proposed  condemnation."  i     *     *     * 

i  Accord:  Hartnian  v.  Tresise,  36  Colo.  146,  84  Pac.  685,  4  L.  R.  A.  (N.  S.) 
872  (1906)  (giving  right  to  trespass  in  Ashing,  on  payment  by  each  Individual 
of  damages  done* :  New  England  Trout  Club  v.  Mather.  6S  Vt.  338.  35  Atl.  323. 
33  L.  R.  A.  569  (1895)  (same).  Compare  State  ex  rel.  Burrows  v.  Superior 
Court,  48  Wash.  277,  2S3.  93  Pac.  423,  425,  17  L.  R.  A.  (N.  S.)  1005,  125  Am. 
St.  Rep.  927  (190S),  holding  that  riparian  rights  could  be  condemned  sep- 
arately from  the  land  to  which  they  were  appurtenant;  Crow,  J.,  saying:  "If 
riparian  rights,  right  of  access,  right  of  light  and  air,  and  other  kindred,  in- 
tangible rights  appurtenant  to  real  estate,  are  property,  they  are  certainly 
such  property,  and  such  an  interest  in  real  estate,  as  an  owner  would  be 
entitled  to  alienate,  thereby  conveying  an  easement  If  such  rights  may  be 
conveyed,  we  see  no  reason  why  they  may  not,  under  the  right  of  eminent 
domain,  be  condemned,  when  necessary,  for  public  use,  without  an  appropria- 
tion of  the  actual  land  itself." 

In  Brewster  v.  Rogers  Co.,  169  N.  T.  73,  S3.  62  N.  E.  164,  58  L.  R.  A.  495. 
(1901),  holding  invalid  a  statute  authorizing  the  owners  of  logs  to  float  them 
down  navigable  streams  in  a  manner  injurious  to  the  riparian  land,  upon 
making  individual  compensation  for  such  injuries  as  they  occurred.  Cullen,  J., 
said:  "No  one  would  seriously  assert  that  a  legislative  enactment  which  au- 
thorized A.  to  enter  upon  the  farm  of  B.  without  the  latter's  consent,  when- 
aver  he  saw  fit,  for  the  purpose  of  play,  exercise,  or  recreation,  upon  making 
compensation  therefor  to  B..  was  constitutional.  It  would  not  help  the  mat- 
ter if  the  statute  gave  every  person  in  the  community  the  same  privilege  in 
B.'s  farm.  The  statute  would  still  be  unconstitutional.  Yet  that  farm  could 
unquestionably  be  taken  as  a  park  or  common,  to  be  enjoyed  by  the  communi- 
ty at  large  as  a  place  for  recreation,  amusement,  or  health.  The  distinction  in 
principle  between  the  two  kinds  of  legislation  lies  just  here.  In  the  first  case 
the  easements  sought  to  be  acquired  are  private,  and,  though  every  one  might 
acquire  such  an  easement,  still  they  would  remain  in  their  aggregation  of  the 
same  character  as  each  one  was  in  its  severalty;  that  is  to  say,  merely  a 
number  or  bundle  of  private  easements.  As  the  easements  would  be  private, 
the  purpose  for  which  they  were  acquired  would  be  private.  In  the  second 
case  the  easement  would  be  in  the  public,  and  therefore  the  purpose  for  which 
it  is  taken  public." 


Ch.  12)  EMINENT    LiuMAIN  711 

SECTION  3.— TAKING  AND  INJURING  PROPERTY 


EATON  v.  BOSTON,  C.  &  M.  R.  R. 
('Supreme  Court  of  New  Hampshire,  1872.     51  N.  II.  504,    12  Am.   Rep.  147. i 

[Exceptions  to  rulings  of  court  in  an  action  on  the  case  brought  by 
Eaton  against  the  Boston,  Concord  &  Montreal  Railroad.  Defendant, 
incorporated  by  legislative  authority,  built  its  railroad  across  plaintiff's 
farm  and  beyond,  paying  plaintiff  for  all  damage  due  to  the  construc- 
tion and  maintenance  of  the  road  on  the  part  of  his  land  taken  there- 
for. Beyond  plaintiff's  farm  was  a  narrow  ridge  of  land,  about  25 
feet  high  and  20  rods  wide,  that  protected  the  farm  and  adjacent 
meadows  from  the  overflow  of  Baker's  river.  Defendant  made  a  deep 
cut  through  this  ridge  for  its  road,  and  the  river  water  flowed  through 
this  in  floods  and  freshets  upon  plaintiff's  farm,  carrying  sand  and 
gravel  upon  it.  For  this  damage  plaintiff  sued.  The  lower  court 
ruled  that  defendant  was  liable,  even  though  its  road  was  carefully 
constructed  in  the  usual  manner,  and  these  exceptions  were  taken.) 

Smith,  J.  It  is  virtually  conceded  that,  if  the  cut  through  the  ridge 
had  been  made  by  a  private  land-owner,  who  had  acquired  no  rights 
from  the  plaintiff  or  from  the  legislature,  he  would  be  liable  for  the 
damages  sought  to  be  recovered  in  this  action.  It  seems  to  be  assumed 
that  the  freshets  were  such  as,  looking  at  the  history  of  the  stream 
in  this  respect,  might  be  "reasonably  expected  occasionally  to  occur." 
The  defendants  removed  the  natural  barrier  which  theretofore  had 
completely  protected  the  plaintiff's  meadow  from  the  effect  of  these 
freshets ;  and,  for  the  damages  caused  to  the  plaintiff  in  consequence 
of  such  removal,  the  defendants  are  confessedly  liable,  unless  their  case 
can  be  distinguished  from  that  of  the  private  land-owner  above  sup- 
posed. Such  a  distinction  is  attempted  upon  two  grounds, — first,  that 
the  plaintiff  has  already  been  compensated  for  this  damage,  it  being 
alleged  that  the  defendants  have,  by  negotiation,  or  by  compulsory  pro- 
ceedings, purchased  of  the  plaintiff  the  right  to  inflict  it;  second,  that 
the  defendants  are  acting  under  legislative  authority,  by  virtue  of 
which  they  are  entitled  to  inflict  this  damage  on  the  plaintiff  without 
any  liability  to  compensate  him  therefor.    *    *    * 

The  defendants'  first  position  is,  that  the  plaintiff  has  already  re- 
ceived compensation  for  this  damage.  This  position  the  court  have 
now  overruled.  The  defendants'  next  position  is,  that  the  plaintiff  is 
not  legally  entitled  to  receive  any  compensation,  but  is  bound  to  sub- 
mit to  the  infliction  of  this  damage  without  any  right  of  redress.  The 
argument  is  not  put  in  the  precise  words  we  have  just  used,  but  that 
is  what  we  understand  them  to  mean.    The  defendants  say  that  the 


712  FUNDAMENTAL    EIGHTS  (Part  2 

legislative  charter  authorized  them  to  build  the  road,  if  they  did  it  in  a 
prudent  and  careful  manner ;  that  they  constructed  the  road  at  the  cut 
with  due  care  and  prudence;  and  that  they  cannot  be  made  liable  as 
tort-feasors  for  doing  what  the  legislature  authorized  them  to  do. 
This  involves  two  propositions:  first,  that  the  legislature  have  at- 
tempted to  authorize  the  defendants  to  inflict  this  injury  upon  the 
plaintiff  without  making  compensation ;  and  second,  that  the  legisla- 
ture have  power  to  confer  such  authority.  There  are  decisions  which 
tend  to  show  that  the  charter  should  not  be  construed  as  evincing  any 
legislative  intention  to  authorize  this  injury,  or  to  shield  the  defendants 
from  liability  in  a  common-law  action.  Tinsman  v.  Belvidere  Delaware 
R.  R.  Co.,  2  Dutcher  (N.  J.)  148,  69  Am.  Dec.  565;  Sinnickson  v. 
Johnson,  2  Harr.  (N.  J.)  129,  34  Am.  Dec.  184;  Hooker  v.  New  Haven 
&  Northampton  Co.,  14  Conn.  146,  36  Am.  Dec.  477;  Fletcher  v. 
Auburn  &  Syracuse  R.  R.  Co.,  25  Wend.  462;  Brown  v.  Cayuga  & 
Susquehanna  R.  R.  Co.,  12  N.  Y.  (2  Kernan)  486,  491.  See,  also, 
Eastman  v.  Company,  44  N.  H.  143,  160,  82  Am.  Dec.  201 ;  Hooksett 
v.  Company,  44  N.  H.  105,  110;  Company  v.  Goodale,  46  N.  H.  53, 
57;  Barrows,  J.,  in  Lee  v.  Pembroke  Iron  Co.,  57  Me.  481,  488,  2 
Am.  Rep.  59.  But  we  propose  to  waive  inquiry  on  this  point,  and  to 
consider  only  the  correctness  of  the  second  proposition,  or,  in  other 
words,  the  question  of  legislative  power.    *    *     * 

The  vital  issue  then  is,  whether  the  injuries  complained  of  amount 
to  a  taking  of  the  plaintiff's  property,  within  the  constitutional  mean- 
ing of  those  terms.  It  might  seem  that  to  state  such  a  question  is  to 
answer  it ;  but  an  examination  of  the  authorities  reveals  a  decided  con- 
flict of  opinion.  The  constitutional  prohibition  (which  exists  in  most, 
or  all,  of  the  states)  has  received,  in  some  quarters,  a  construction 
which  renders  it  of  comparatively  little  worth,  being  interpreted  much 
as  if  it  read:  "No  person  shall  be  divested  of  the  formal  title  to  prop- 
erty without  compensation,  but  he  may  without  compensation  be  de- 
prived of  all  that  makes  the  title  valuable."  To  constitute  a  "taking 
of  property,"  it  seems  to  have  sometimes  been  held  necessary  that  there 
should  be  "an  exclusive  appropriation,"  "a  total  assumption  of  pos- 
session," "a  complete  ouster,"  an  absolute  or  total  conversion  of  the 
entire  property,  "a  taking  of  the  property  altogether."  These  views 
seem  to  us  to  be  founded  on  a  misconception  of  the  meaning  of  the 
term  "property,"  as  used  in  the  various  state  Constitutions. 

In  a  strict  legal  sense,  land  is  not  "property,"  but  the  subject  of 
property.  The  term  "property,"  although  in  common  parlance  fre- 
quently applied  to  a  tract  of  land  or  a  chattel,  in  its  legal  signification 
"means  only  the  rights  of  the  owner  in  relation  to  it."  "It  denotes 
a  right  *  *  *  over  a  determinate  thing."  "Property  is  the  right 
of  any  person  to  possess,  use,  enjoy,  and  dispose  of  a  thing."  Selden, 
J.,  in  Wynehamer  v.  People,  13  N.  Y.  378,  433 ;  1  Blackstone,  Com. 
138;  2  Austin  on  Jurisprudence  (3d  Ed.)  817,  818.  If  property  in 
land  consists  in  certain  essential  rights,  and  a  physical  interference 


Ch.  11!)  HMINBNT    DOMAIN  713 

with  the  land  substantially  subverts  one  of  those  rights,  such  interfer- 
ence "takes,"  pro  tanto,  the  owner's  "property."  The  right  of  indefinite 
user  (or  of  using  indefinitely)  is  an  essential  quality  or  attribute  of 
absolute  property,  without  which  absolute  property  can  have  no  legal 
existence.  "Use  is  the  real  side  of  property."  This  right  of  user 
necessarily  includes  the  right  and  power  of  excluding  others  from 
using  the  land.  See  2  Austin  on  Jurisprudence  (3d  Ed.)  836;  Wells. 
J.,  in  Walker  v.  O.  C.  W.  R.  R.,  103  Mass.  10.  14,  4  Am.  Rep.  509. 
From  the  very  nature  of  these  rights  of  user  and  of  exclusion,  it  is  evi- 
dent that  they  cannot  be  materially  abridged  without,  ipso  facto,  tak- 
ing the  owner's  "property."  If  the  right  of  indefinite  user  is  an  es- 
sential element  of  absolute  property  or  complete  ownership,  whatever 
physical  interference  annuls  this  right  takes  "property,"  although  the 
owner  may  still  have  left  to  him  valuable  rights  (in  the  article)  of  a 
more  limited  and  circumscribed  nature.  He  has  not  the  same  property 
that  he  formerly  had.  Then,  he  had  an  unlimited  right;  now,  he  has 
only  a  limited  right.  His  absolute  ownership  has  been  reduced  to  a 
qualified  ownership.  Restricting  A's  unlimited  right  of  using  one  hun- 
dred acres  of  land  to  a  limited  right  of  using  the  same  land,  may  work 
a  far  greater  injury  to  A  than  to  take  from  him  the  title  in  fee-simple 
to  one  acre,  leaving  him  the  unrestricted  right  of  using  the  remain- 
ing ninety-nine  acres.  Nobody  doubts  that  the  latter  transaction  would 
constitute  a  "taking  of  property."     Why  not  the  former? 

If,  on  the  other  hand,  the  land  itself  be  regarded  as  "property,"  the 
practical  result  is  the  same.  The  purpose  of  this  constitutional  prohi- 
bition cannot  be  ignored  in  its  interpretation.  The  f  ramers  of  the  Con- 
stitution intended  to  protect  rights  which  are  worth  protecting;  not 
mere  empty  titles,  or  barren- insignia  of  ownership,  which  are  of  no 
substantial  value.  If  the  land,  "in  its  corporeal  substance  and  entity." 
is  "property,"  still,  all  that  makes  this  property  of  any  value  is  the 
aggregation  of  rights  or  qualities  which  the  law  annexes  as  incidents 
to  the  ownership  of  it.  The  constitutional  prohibition  must  have  been 
intended  to  protect  all  the  essential  elements  of  ownership  which  make 
"property"  valuable.  Among  these  elements  is,  fundamentally,  the 
right  of  user,  including,  of  course,  the  corresponding  right  of  exclud- 
ing others  from  the  use.  See  Comstock.  J.,  in  Wynehamer  v.  People. 
13  N.  Y.  378,  396.  A  physical  interference  with  the  land,  which 
ntially  abridges  this  right,  takes  the  owner's  "property"  to  just 
so  great  an  extent  as  he  is  thereby  deprived  of  this  right.  "To  deprive 
one  of  the  use  of  his  land  is  depriving  him  of  his  land;"  for,  as 
Lord  Coke  said:  "What  is  the  land  but  the  profits  thereof?"  Suther- 
land, J.,  in  People  v.  Kerr,  37  Harb.  357,  399;  Co.  Litt.  4b.  The 
private  injury  is  thereby  as  completely  effected  as  if  the  land  itself  were 
"physically  taken  away." 

The  principle  must  be  the  same  whether  the  owner  is  whol 
prived  of  the  use  of  his  land,  or  only  partially  deprived  of  it;  ah 
the  amount  or  value  of  the  property  taken  in  the  two  instances  may 


714  FUNDAMENTAL    RIGHTS  (Part  2 

widely  differ.  If  the  railroad  corporation  take  a  strip  four  rods  wide 
out  of  a  farm  to  build  their  track  upon,  they  cannot  escape  paying  for 
the  strip  by  the  plea  that  they  have  not  taken  the  whole  farm.  So  a 
partial,  but  substantial,  restriction  of  the  right  of  user  may  not  anni- 
hilate all  the  owner's  rights  of  property  in  the  land,  but  it  is  none  the 
less  true  that  a  part  of  his  property  is  taken.  Taking  a  part  ''is  as 
much  forbidden  by  the  Constitution  as  taking  the  whole.  The  dif- 
ference is  only  one  of  degree ;  the  quantum  of  interest  may  vary,  but 
the  principle  is  the  same."  See  6  Am.  Law  Review,  197-19S;  Law- 
rence, J.,  in  Nevins  v.  City  of  Peoria,  41  111.  502,  511,  89  Am.  Dec. 
392.  The  explicit  language  used  in  one  clause  of  our  Constitution 
indicates  the  spirit  of  the  whole  instrument.  "No  part  of  a  man's 
property  shall  be  taken.  *  *  *"  Constitution  of.N.  H.,  Bill  of 
Rights,  article  12.  The  opposite  construction  would  practically  nullify 
the  Constitution.  If  the  public  can  take  part  of  a  man's  property 
without  compensation,  they  can,  by  successive  takings  of  the  different 
parts,  soon  acquire  the  whole.  Or,  if  it  is  held  that  the  complete  di- 
vestiture of  the  last  scintilla  of  interest  is  a  taking  of  the  whole  for 
which  compensation  must  be  made,  it  will  be  easy  to  leave  the  owner 
an  interest  in  the  land  of  infinitesimal  value. 

The  injury  complained  of  in  this  case  is  not  a  mere  personal  incon- 
venience or  annoyance  to  the  occupant.  Two  marked  characteristic^ 
distinguish  this  injury  from  that  described  in  many  other  cases.  First, 
it  is  a  physical  injury  to  the  land  itself,  a  physical  interference  with  the 
rights  of  property,  an  actual  disturbance  of  the  plaintiff's  possession. 
Second,  it  would  clearly  be  actionable  if  done  by  a  private  person  with- 
out legislative  authority.  The  damage  is  "consequential,"  in  the  sense 
of  not  following  immediately  in  point  of  time  upon  the  act  of  cutting 
through  the  ridge,  but  it  is  what  Sir  William  Erie  calls  "consequen- 
tial damage  to  the  actionable  degree."  See  Brand  v.  H.  &  C.  R.  Co.. 
Law  Reports,  2  Queen's  Bench,  223,  249.  These  occasional  inunda- 
tions may  produce  the  same  effect  in  preventing  the  plaintiff  from 
making  a  beneficial  use  of  the  land  as  would  be  caused  by  a  manual 
asportation  of  the  constituent  materials  of  the  soil.  Covering  the  land 
with  water,  or  with  stones,  is  a  serious  interruption  of  the  plaintiff's 
right  to  use  it  in  the  ordinary  manner.  If  it  be  said  that  the  plaintiff 
still  has  his  land,  it  may  be  answered,  that  the  face  of  the  land  does 
not  remain  unchanged,  and  that  the  injury  may  result  in  taking  away 
part  of  the  soil  ("and,  if  this  may  be  done,  the  plaintiff's  dwelling- 
house  may  soon  follow") ;  and  that,  even  if  the  soil  remains,  the  plain- 
tiff may,  by  these  occasional  submergings,  be  deprived  of  the  profits 
which  would  otherwise  grow  out  of  his  tenure.  "His  dominion  over 
it,  his  power  of  choice  as  to  the  uses  to  which  he  will  devote  it,  are 
materially  limited."  Brinkerhoff,  J.,  in  Reeves  v.  Treasurer  of  Wood 
County,  8  Ohio  St.  333,  346. 

The  nature  of  the  injury  done  to  the  plaintiff  may  also  be  seen  by 
adverting  to  the  nature  of  the  right  claimed  by  the  defendants.     The 


(h.  12)  i:\ll     I.NT    DOMAIN  715 

primary  purpose  of  the  defendants  in  cutting  through  the  ridge  was  to 
construct  their  road  at  a  lower  level  than  would  otherwise  have  been 
practicable.  But,  although  the  cut  was  not  made  "for  the  purpose  of 
conducting  the  water  in  a  given  course"  on  to  the  plaintiff's  land,  it 
has  that  result;  and  the  defendants  persist  in  allowing  this  excavation 
to  remain,  notwithstanding  the  injury  thereby  visibly  caused  to  the 
plaintiff.  Rather  than  raise  the  grade  of  their  track,  they  insist  upon 
keeping  open  a  canal  to  conduct  the  flood-waters  of  the  river  directly 
on  to  the  plaintiff's  land.  If  it  be  said  that  the  water  came  naturally 
from  the  southerly  end  of  the  cut  on  to  the  plaintiff's  land,  the  answer 
is,  that  the  water  did  not  come  naturally  to  the  southerly  end  of  the 
cut.  It  came  there  by  reason  of  the  defendants'  having  made  that  cut. 
In  consequence  of  the  cut,  water  collected  at  the  southerly  boundary  of 
the  ridge,  north  of  the  plaintiff's  farm,  which  would  not  have  been 
there  if  the  ridge  had  remained  in  its  normal  and  unbroken  condition. 
They  have  "so  dealt  with  the  soil"  of  the  ridge,  that,  if  a  flood  came, 
instead  of  being  held  in  check  by  the  ridge,  and  ultimately  getting 
away  by  the  proper  river  channel  without  harm  to  the  plaintiff,  it 
flowed  through  where  the  ridge  once  was  on  to  the  plaintiff's  land. 
"Could  the  defendants  say  they  were  not  liable  because  they  did  not 
cause  the  rain  to  fall,"  which  resulted  in  the  freshet ;  or  because  the 
water  "came  there  by  the  attraction  of  gravitation?"  See  Piratnwell. 
Baron,  in  Smith  v.  Fletcher,  Law  Reports,  7  Exchq.  305,  310.  If  the 
ridge  still  remained  in  its  natural  condition,  could  the  defendants 
pump  up  the  flood-water  into  a  spout  on  the  top  of  the  ridge,  and 
thence,  by  means  of  the  spout,  pour  it  directly  on  to  the  plaintiff's  land  ? 
If  not,  how  can  they  maintain  a  canal  through  which  the  water  by  the 
force  of  gravitation  will  inevitably  find  its  way  to  the  plaintiff's  land? 
See  Ames,  J.,  in  Shipley  v.  Fifty  Associates,  106  Mass.  194,  199,  200. 
8  Am.  Rep.  318;  Chapman,  C.  J.,  in  Salisbury  v.  Herchenroder,  106 
Mass.  458,  460,  8  Am.  Rep.  354.  To  turn  a  stream  of  water  on  to  the 
plaintiff's  premises  is  as  marked  an  infringement  of  his  proprietary 
rights  as  it  would  be  for  the  defendants  to  go  upon  the  premises  in 
person  and  "dig  a  ditch,  or  deposit  upon  them  a  mound  of  earth."  See 
Lawrence,  J.,  in  Kevins  v.  City  of  Peoria.  41  111.  502,  510,  S9  Am. 
Dec.  392;  Dixon,  C.  J.,  in  Pettigrew  v.  Village  of  Evansville.  25  Wis 
223,  231,  236,  3  Am.  Rep.  50.  The  defendants  may,  perhaps,  regret 
that  they  cannot  maintain  their  track  at  ii^  pr<  ent  level  without  there 
l>y  occasionally  pouring  flood-water  on  to  the  land  of  the  plaintiff. 
Indeed,  the  passage  of  this  water  through  the  cut  may  cause  some  in- 
jury to  the  defendants'  road  bed.  But  the  advantages  of  maintaining 
the  track  at  the  present  grade  outweigh,  in  the  defendants'  estimation, 
the  risk  of  injury  by  water  to  themselves  and  to  the  plaintiff. 

In  asserting  the  right  to  maintain  the  present  condition  of  things  as 
to  the  cut,  the  defendants  necessarily  assert  the  right  to  produce  all  the 
results  which  naturally  follow  from  the  existence  of  the  cut.  In  effect. 
they  thus  assert  a  right  to  discharge  water  on  to  the  plaintiff's  lai.l 


716  FUNDAMENTAL    RIGHTS  (Part    2 

Such  a  right  is  an  easement.1  A  right  of  "occasional  flooding"  is 
just  as  much  an  easement  as  a  right  of  "permanent  submerging;"  it 
belongs  to  the  class  of  easements  which  "are  by  their  nature  inter- 
mittent— that  is,  usable  or  used  only  at  times."  See  Goddard's  Law 
of  Easements,  125.  If  the  defendants  had  erected  a  dam  on  their  own 
land  across  the  river  below  the  plaintiff's  meadow,  and  by  means  of 
flash-boards  thereon  had  occasionally  caused  the  water  to  flow  back 
and  overflow  the  plaintiff's  meadow  so  long  and  under  such  circum- 
stances as  to  give  them  a  prescriptive  right  to  continue  such  flowage, 
the  right  thus  acquired  would  unquestionably  be  an  "easement."  The 
right  acquired  in  that  case  does  not  differ  in  its  nature  from  the 
right  now  claimed.  In  the  former  instance,  the  defendants  flow  the 
plaintiff's  land  by  erecting  an  unnatural  barrier  below  his  premises.  In 
the  present  instance,  they  flow  his  land  by  removing  a  natural  barrier 
on  the  land  above  his  premises.  In  both  instances,  they  flow  his  land 
by  making  "a  non-natural  use"  of  their  own  land.  In  both  instances, 
they  do  an  act  upon  their  own  land,  the  effect  of  which  is  to  restrict  or 
burden  the  plaintiff's  ownership  of  his  land  (see  Leconfield  v.  Lons- 
dale, Law  Reports,  5  Com.  Pleas,  657,  696) ;  and  the  weight  of  that 
burden  is  not  necessarily  dependent  upon  the  source  of  the  water, 
whether  from  below  or  above.  See  Bell,  J.,  in  Tillotson  v.  Smith,  32 
N.  H.  90,  95,  96,  64  Am.  Dec.  355.  In  both  instances  they  turn  water 
upon  the  plaintiff's  land  "which  does  not  flow  naturally  in  that  place." 
If  the  right  acquired  in  the  former  instance  is  an  easement,  equally  so 
must  be  the  right  claimed  in  the  latter.  If,  then,  the  claim  set  up  by  the 
defendants  in  this  case  is  well  founded,  an  easement  is  already  vested 
in  them.  An  easement  is  property,  and  is  within  the  protection  of  the 
constitutional  prohibition  now  under  consideration.  If  the  defendants 
have  acquired  this  easement,  it  cannot  be  taken  from  them,  even  for 
the  public  use,  without  compensation.  But  the  right  acquired  by  the 
defendants  is  subtracted  from  the  plaintiff's  ownership  of  the  land. 
Whatever  interest  the  defendants  have  acquired  in  this  respect  the 
plaintiff  has  lost.  If  what  they  have  gained  is  property,  then  what  he 
has  lost  is  property.  If  the  easement,  when  once  acquired,  cannot  be 
taken  from  the  defendants  without  compensation,  can  the  defendants 
take  it  from  the  plaintiff  in  the  first  instance  without  compensation? 
See  Brinkerhoff,  J.,  ubi  supra;  Selden,  J.,  in  Williams  v.  N.  Y.  Cen- 
tral R.  R.,  16  N.  Y.  97,  109,  69  Am.  Dec.  651.  An  easement  is  all  that 
the  railroad  corporation  acquire  when  they  locate  and  construct  their 
track  directly  over  a  man's  land.  The  fee  remains  in  the  original 
owner..  Blake  v.  Rich,  34  N.  H.  282.  Yet  nobody  doubts  that  such 
location  and  construction  is  a  "taking  of  property,"  for  which  compen- 
sation must  be  made.  See  Redfield,  J.,  in  Hatch  v.  Vt.  Central  R.  R., 
25  Vt.  49,  66.     What  difference  does  it  make  in  principle  whether  the 

i  As  to  the  nature  of  this  risht,  see  Williams  v.  Nelson,  23  Pick.  141,  14", 
34  Am.  Dec.  45  (1S39) ;  Turner  v.  Nve,  154  Mass.  579,  5S3,  5S6,  28  N.  E.  1048, 
14  L.  R.  A.  487  (1S91). 


Ch.  12)  EMINENT    DOMAIN  717 

plaintiff's  land  is  encumbered  with  stones,  or  with  iron  rails?  whether 
the  defendants  run  a  locomotive  over  it,  or  flood  it  with  the  wa 
Baker's  river?     See  Wilcox,  J.,  in  March  v.  P.  &  C.  R.  R.,  19  N.  H. 
372,  380;    Walworth,  Chan.,  in  Canal  Com'rs  &  Canal  Appraisers  v. 
People,  5  Wend.  423,  452.    *    *    * 

We  think  that  here  has  been  a  taking  of  the  plaintiff's  property ; 
that,  as  the  statutes  under  which  the  defendants  acted  make  no  pro- 
vision for  the  plaintiff's  compensation,  they  afford  no  justification ; 
that  the  defendants  are  liable  in  this  action  as  wrong-doers;  and  that 
the  ruling  of  the  court  was  correct.  These  conclusions,  which  are 
supported  by  authorities  to  which  reference  will  soon  be  made,  seem  to 
us  so  clear,  that,  if  there  were  no  adverse  authorities,  it  would  be  un- 
necessary to  prolong  the  discussion  of  this  case.  But,  as  there  are 
respectable  authorities  which  are  in  direct  conflict  with  these  conclu- 
sions, it  has  been  thought  desirable  to  examine  some  arguments  which 
have,  at  various  times,  been  advanced  in  support  of  the  opposite  view. 

In  some  instances,  as  soon  as  it  has  been  made  to  appear  that  there 
is  a  legislative  enactment  purporting  to  authorize  the  doing  of  the  act 
complained  of,  the  complaint  has  been  at  once  summarily  disposed  of 
by  the  curt  statement  "that  an  act  authorized  by  law  cannot  be  a 
tort."  This  is  begging  the  question.  It  assumes  the  constitutionality 
of  the  statute.  If  the  enactment  is  opposed  to  the  Constitution,  it  i- 
"in  fact  no  law  at  all."  *  *  *  The  error  in  question  *  *  * 
arises  from  following  English  authorities,  without  adverting  to  the 
immense  difference  between  the  practically  omnipotent  powers  of  the 
British  Parliament  and  the  comparativeiy  limited  powers  of  our  state 
legislatures,  acting  under  the  restrictions  of  written  constitutions.  Par- 
liament is  the  supreme  power  of  the  realm.  It  is  at  once  a  legisla- 
ture and  a  constitutional  convention.    *    *    * 

It  is  said  that  a  land-owner  is  not  entitled  to  compensation  where 
the  damage  is  merely  "consequential."  The  use  of  this  term  "conse- 
quential damage"  "prolongs  the  dispute,"  and  "introduces  an  equivo- 
cation which  is  fatal  to  any  hope  of  a  clear  settlement."  It  means 
both  damage  which  is  so  remote  as  not  to  be  actionable,  and  damage 
which  is  actionable.  Sometimes  it  is  used  to  denote  damage  which, 
though  actionable,  does  not  follow  immediately,  in  point  of  time,  upon 
the  doing  of  the  act  complained  of;  what  Erie,  C.  J.,  aptly  terms 
"consequential  damage  to  the  actionable  degree."  Brand  v.  II.  &  C. 
R.  Co.,  Law  Reports,  2  Queen's  Bench,  223,  249.  It  is  thus  used  to 
signify  damage  which  is  recoverable  at  common  law  in  an  action  of 
case,  as  contradistinguished  from  an  action  of  trespass.  On  th< 
hand,  it  is  used  to  denote  a  damage  which  is  so  remote  a  consequence 
of  an  act  that  the  law  affords  no  remedy  to  recover  it.  *  *  * 
then,  it  is  said  that  a  land-owner  i>  not  entitled  to  compensation  for 
"consequential  damage."  it  is  impossible  either  to  affirm  or  deny  the 
correctness  of  the  statement  until  we  know  in  what  sense  the  phrase 
"consequential  damage"  is  used.     If  it  is  to  be  taken  to  m 


718  FUNDAMENTAL    RIGHTS  (Part  2 

which  would  not  have  been  actionable  at  common  law  if  done  by  a 
private  individual,  the  proposition  is  correct.  The  constitutional  re- 
striction was  designed  "not  to  give  new  rights,  but  to  protect  those 
already  existing."  Pierce  on  Am.  R.  R.  Law,  173 ;  and  see  Rickett 
v.  Directors,  &c,  of  Metropolitan  Railway  Co.,  Law  Reports,  2  House 
of  Lords,  175,  188,  189,  196.  But  this  does  not  concern  the  present 
case,  where  it  is  virtually  conceded  that  the  injury  would  have  been 
actionable  if  done  by  a  private  individual  not  acting  under  statutory 
authority.  If,  upon  the  other  hand,  the  phrase  is  used  to  describe 
damage,  which,  though  not  following  immediately  in  point  of  time 
upon  the  doing  of  the  act  complained  of,  is  nevertheless  actionable, 
there  seems  no  good  reason  for  establishing  an  arbitrary  rule  that 
such  damage  can  in  no  event  amount  to  a  "taking  of  property." 

The  severity  of  the  injury  ultimately  resulting  from  an  act  is  not 
always  in  inverse  proportion  to  the  lapse  of  time  between  the  doing  of 
the  act  and  the  production  of  the  result.  Heavy  damages  are  recov- 
ered in  case  as  well  as  in  trespass.  The  question  whether  the  injury 
constitutes  a  "taking  of  property"  must  depend  on  its  effect  upon 
proprietary  rights,  not  on  the  length  of  time  necessary  to  produce  that 
effect.  If  a  man's  entire  farm  is  permanently  submerged,  is  the  dam- 
age to  him  any  less  because  the  submerging  was  only  the  "consequen- 
tial" result  of  another's  act?  It  has  been  said  "that  a  nuisance  by 
flooding  a  man's  land  was  originally  considered  so  far  a  species  of 
ouster,  that  he  might  have  had  a  remedy  for  it  by  assize  of  novel  dis- 
seisin;" but  if  it  be  conceded  that  at  present  the  only  common  law 
remedy  is  by  an  action  on  the  case,  that  does  not  change  the  aspect  of 
the  constitutional  question.  The  form  of  action  in  which  the  remedy 
must  be  sought  cannot  be  decisive  of  the  question  whether  the  injury 
falls  within  the  constitutional  prohibition.  "We  are  not  to  suppose 
that  the  framers  of  the  Constitution  meant  to  entangle  their  meaning 
in  the  mazes"  of  the  refined  technical  distinctions  by  which  the  com- 
mon-law system  of  forms  of  action  is  "perplexed  and  encumbered." 
Such  a  test  would  be  inapplicable  in  a  large  proportion  of  the  states, 
where  the  distinction  between  trespass  and  case  has  been  annihilated 
by  the  abolition  of  the  old  forms  of  action.     *    *    * 

[After  a  lengthy  review  of  the  authorities:]  By  the  foregoing 
review  of  authorities,  it  appears  that  the  number  of  actual  decisions 
in  irreconcilable  conflict  with  the  present  opinion  is  much  smaller  than 
has  sometimes  been  supposed,  and  that,  in  a  large  proportion  of  the 
cases  cited,  the  application  of  the  principles  here  maintained  would 
not  have  necessitated  the  rendition  of  a  different  judgment  from  thai 
which  the  courts  actually  rendered  in  those  cases.    *    *    * 

Case  discharged.2 

2  Affirmed,  after  full  consideration,  in  Thompson  v.  Androscoggin  Co.,  54  N. 
H.  545  (1S74).  See  the  comment  in  Hyde  v.  Minn.,  etc.,  By.,  29  S.  D.  220, 
136  N.  W.  92,  95-96,  40  L.  R.  A.  (N.  S.)  48  (1912).  Earlier  important  cases 
to  the  same  effect  as  to  flooding  land  are  Hooker  v.  New  Haven,  etc.,  Co.,  14 


Ch.  12)  bmi.m;nt  domain  719 

Com),   m;,  3G  Am.  Dec.  477  (1841);    Pumpelly  v.  Green   Bay  Co.,   U 
L66,   180,  181,  UO  L,  Ed.  557  (1872),  In  which  Miller,  J.,  said,  regarding  B 
ing  of  riparian  land  resulting  from  works  to  Improve  river  navigation:   "We 
are  not  unaware  of  the  numerous  ci  tea  Id  the  state  courts  in  which  the  doc- 
trine  has  been  successfully  Invoked  that  tor  a  consequential  injury  to  the 
property  of  the  individual  arising  from  the  prosecution  of  Improvements  of 
roads,  streets,  rivers,  and  other  highways,  fur  tne  public  good,  there  in  no 
redress;   and  we  do  not  denj   that  the  principle  is  a  sound  one.  in  its  proper 
application,  to  many  injuries  to  property  so  originating.     And  when,  in  the 
exercise  of  our  duties  lure,  we  shall  be  called  upon  to  construe  other  state 
Constitutions,  we  shall  not  be  unmindful  of  the  weight  due  to  the  d 
of  the  courts  of  those  states.    But  we  are  of  opinion  that  th>-  ' 
(erred  to  have  gone  to   the  uttermost  limit  of  sound  judicial   construction  in 
favor  of  this  principle,  and.  in  some  cases,  beyond  it,  and  that  it  remains  true 
that  where  real  estate  is  actually  Invaded  by  superinduced  additions  of  wa- 
ter, earth,  sand,  or  other  material,  or  by  having  any  artificial  structure 
on  it.  so  as  to  effectually  destroy  or  impair  its  u  efulness,  it  is  a  I 
within  the  meaning  of  the  Constitution,  and  that  this   proposition  is   not  in 
conflict  with   the  weight  of  judicial  authority  in   this  country,  and  certainly 
not  with  sound  principle." 

See,  also,  O'Connell  v.  East  Tenn.  Ry.,  S7  Ga.  246,  13  S.  E.  489,  18  L.   K.  a 
394,  '-'7  Am.  St.  Rep.  246  (1891)  (colli  .    Moyer  v.   N.  Y.  I 

R.  It..  88  N.  V.  351   (1882  .     The  sanx    doctrine  is  held  where  an  u 
public  sewer.   In  times  of  heavy  rain,  floods  plaintiff's  property,   Selfert   v. 
Brooklyn,  101  N.  Y.  136,  4  N.  E.  321,  54  Am.  Rep.  664  (1886);    or 
age  is  injuriously  discharged  upou  a  private  oyster  bed   under  public  waters, 
HuiTmire  v.  Brooklyn,  162  N.  Y.  584,  .".7  X.  E.  176,  48  L.  U.  A.  421   1 1900). 

Bui  see  Earl,  J.,  dissenting,  in  Story  v.  N.  Y.  Elev.  K.  R..  90  X.  Y.  122, 
185,  186,  43  Am.  Rep.  14»i  (1882).  "Our  attention  is  called  to  two  cases  (Pum- 
pelly v.  Green  Bay  Co.,  18  Wail.  166,  36  Am.  Dec.  477;  and  Eaton  v.  B.  C. 
&  M.  It.  K..  51  X.  II.  504,  12  Am.  Rep.  147).  which  are  supposed  to  take  a 
new  departure  in  the  construction  of  the  constitutional  provision  we  ai 
considering.  They  are  spoken  of  in  the  subsequent  case  of  Transportation 
Co.  v.  Chicago  [99  U.  S.  635]  as  'the  extremes!  qualification  of  the  do 
to  be  found;    they  hold  tint  permanent   fl<      Ing  o!   prii  may  be 

regarded  as  a  'taking,'  and  thus  they  may  be  Justified  on  the  ground  thai 
there  was  a  physical  Invasion  of  the  real  estate  of  the  private  owner  and  a 
practical  ouster  of  his  possession.  We  should  not  he  embarrassed  by  any 
subtle  meaning  to  be  given  to  the  word  'property*  in  the  constitutional  pro- 
vision. The  broad  meaning  sometimes  given  to  it  by  law  writer- 
definitions  are  more  apl  to  confuse  than  enlighten,  or  a  meaning  which  can 
he  evolved  only  by  philologists  and  etymologists,  was  probably  not  in  the  minds 
of  the  framers  of  our  Constitution ;  they  must  he  supposed  to  have  nsed  the 
word  in  its  ordinary   and   popular   signification,  as   representing  something 

that  can  be  owned  and   possessed  and  taken   from  one  and   transferred   to  ail 
other.      In    popular   parlance   there   is    a    distinction    between   taking    I 

and  injuring  property,     if  the  word  is  to  have  the  broad  meaning  . 

it  by  Austin    and   certain   German   and   French   civilians,   to   whose  definitions 

our  attention  has  been  called,  then  it  would  Include  every  Interference  with 

and   injury   or  damage  to  land   by   which    its   use  and  en  ,  me    less 

lent  or  valuable.     St  •  has  never  been  given  to  it  or  connte- 

in  any  decision  Involving  th nsl  tuttonal   provision  as  to  taking 

private  property,     if  the  word  i  eh  a  broad  signification,  then  it 

was  useless  to  provide  In  the  English  Land  Clauses  Act  of  1845,  tbs 

Ion  should   be  made  for  kind   taken  not   only,   hut   also  for   land    'injuri- 
ously affected,'    and  in  the  Constitution  and  laws  of  some  of  it 
compensation  shall   he  made   for   both   kind   taken   and   land  damaged 
also,   the  reasoning  In  Talcotl   r.   i>  i   ■■   i,    L13,    126-1 

N.  W.  811,  12  L.  It.  A.  (X.  S.i  696,  ll'O  Am.  St  Rep.  419  (1907). 


720  FUNDAMENTAL    RIGHTS  (Part    2 

MANIGAULT  v.  SPRINGS1  (1905)  199  U.  S.  473,  483-4S6,  26 
Sup.  Ct.  127,  50  L.  Ed.  274.  The  South  Carolina  legislature  au- 
thorized defendants  to  erect  a  dam  across  Kinloch  creek  (alleged  by 
plaintiff  to  be  a  navigable  stream)  as  part  of  a  plan  for  draining  cer- 
tain lowlands.  They  were  to  be  liable  for  all  damages  to  land  caused 
thereby  which  might  be  established  in  any  court  of  competent  juris- 
diction. Plaintiff  sought  an  injunction  on  the  ground  of  interference 
with  his  right  of  navigation  of  Kinloch  creek  to  his  lands,  and  because 
the  backwater  of  the  dam  would  compel  him  to  raise  the  dikes  about 
his  rice  plantation  to  prevent  overflowing.  This  was  denied,  Mr.  Jus- 
tice Brown  saying: 

"The  second  assignment  of  error,  that  the  plaintiff  was  deprived  of 
his  property  without  compensation,  and  hence  without  due  process 
of  law,  is  also  unsound.  The  only  allegation  of  the  bill  in  that  con- 
nection is  that  the  construction  of  the  dam  was  not  only  a  destruc- 
tion of  plaintiff's  right  of  navigation  and  of  his  access  to  his  lands 
through  Kinloch  creek,  but  has  caused  the  water  to  fall  back  to  some 
extent  on  the  plantation  on  Minim  creek,  just  opposite  the  mouth  of 
Kinloch,  so  as  to  compel  the  plaintiff  to  raise  his  dikes.  We  do  not 
think  the  overflow  to  the  minor  extent  indicated  constitutes  a  taking 
of  property  within  the  meaning  of  the  law,  when  the  damage  can  be 
prevented  by  raising  the  banks,  or  that,  if  the  damage  stated  did  in 
fact  result,  that  it  would  justify  the  interposition  of  a  court  of  equity. 

"The  question  whether  the  overflow  of  lands  constitutes  'a  taking' 
within  the  constitutional  provision  has  been  discussed  in  several  cases 
in  this  court.     Pumpelly  v.  Green  Bay  &  M.  Canal  Co.,  13  Wall.  166. 

20  L.  Ed.  557;  Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25 
L.  Ed.  336;  Gibson  v.  United  States,  166  U.  S.  269,  41  L.  Ed.  996, 
17  Sup.  Ct.  578;    Scranton  v.  Wheeler,  179  U.  S.  141,  45  L.  Ed.  126. 

21  Sup.  Ct.  48;  Atwater  v.  Canandaigua,  124  N.  Y.  602,  27  N.  E. 
385. 

"A  recent  case  is  that  of  United  States  v.  Lynah,  1SS  U.  S.  445,  47 
L.  Ed.  539,  23  Sup.  Ct.  349,  wherein  it  was  held  that  where  the  gov- 
ernment had  placed  dams  and  other  obstructions  in  the  Savannah 
river  in  such  manner  as  to  hinder  its  natural  flow,  and  to  raise  the 
water  so  as  to  overflow  plaintiff's  lands  and  to  cause  a  total  destruc- 
tion of  their  value,  the  proceeding  must  be  regarded  as  an  actual  ap- 
propriatfon  of  the  land,  and  created  an  obligation  upon  the  govern- 
ment to  make  compensation  for  the  land.  The  case  was  distinguished 
from  that  of  Mills  v.  United  States,  46  Fed.  738,  12  L.  R.  A.  673, 
wherein  the  damage  consisted  in  obliging  the  plaintiff  to  raise  the 
levees  around  his  rice  fields  to  prevent  the  flooding  of  the  fields  in 
high  water.  'Obviously,'  said  the  court,  in  commenting  upon  that 
case,  'there  was  no  taking  of  the  plaintiff's  lands,  but  simply  an  injury 

i  Another  part  of  this  case  is  printed,  post,  p.  §54 


Ch.  12)  EMINENT    DOMAIN  7U  I 

which  could  be  remedied  at  an  expense,  as  alleged,  of  $1C,000,  and 
the  action  was  one  to  recover  the  amount  of  this  consequential  in- 
jury. The  court  rightfully  held  that  it  could  not  be  sustained.'  A 
still  more  recent  case  is  that  of  Bedford  v.  United  States,  192  U.  S. 
217,  4S  L.  Ed.  414,  24  Sup.  Ct.  238,  in  which  it  is  held  that  damages 
to  lands  by  flooding  as  a  result  of  revetments  erected  by  the  Unite! 
States  along  the  banks  of  the  Mississippi  river  to  prevent  erosion  of 
the  banks  from  natural  causes  are  consequential,  and  do  not  con- 
stitute a  taking  of  the  lands  flooded  within  the  meaning  of  the  Con 
stitution. 

"We  think  the  rule  to  be  gathered  from  these  cases  is  that  where 
there  is  a  practical  destruction  or  material  impairment  of  the  value 
of  plaintiff's  lands,  there  is  a  taking  which  demands  compensation ; 
but  otherwise  where,  as  in  this  case,  plaintiff  is  merely  put  to  some 
extra  expense  in  warding  off  the  consequences  of  the  overflow. 

"The  damage  claimed  by  the  plaintiff  in  the  interruption  of  access 
to  his  lands  and  the  impairment  of  his  right  to  navigate  the  creek  does 
not  demand  separate  consideration.  We  have  repeatedly  held  that 
where  the  government  of  the  United  States  has,  for  the  purposes  of 
improving  the  navigation  of  a  river,  erected  piers  or  other  structures 
by  which  access  to  plaintiff's  land  is  rendered  more  difficult,  there  is 
no  claim  for  compensation.  Gibson  v.  United  States,  166  U.  S.  269. 
41  L.  Ed.  996,  17  Sup.  Ct.  578;  Scranton  v.  Wheeler,  179  U.  S.  141. 
45  L.  Ed.  126,  21  Sup.  Ct.  48.  We  see  no  reason  why  the  same  prin- 
ciple should  not  apply  to  cases  where  the  state  legislature,  exercising 
its  police  power,  directs  a  certain  dam  to  be  built,  and  thereby  in- 
cidentally impairs  access  to  lands  above  the  dam.  In  both  cases  the 
sovereign  is  exercising  its  constitutional  right, — in  one  case  in  improv- 
ing the  navigation  of  the  river,  and  in  the  other,  in  draining  its  low- 
lands, and  thereby  enhancing  their  value  for  agricultural  pur- 
poses.    *     *     * 

"In  view  of  the  incidental  character  of  the  damage  probably  re- 
sulting to  plaintiff's  land  from  the  erection  of  this  dam.  and  the  care- 
ful provision  of  the  act  that  the  defendants  shall  be  liable  for  such 
damage,  we  do  not  think,  at  least,  in  the  absence  of  an  allegation  that 
the  defendants  are  financially  irresponsible,  that  a  court  of  equity 
would  be  authorized  to  enjoin  the  erection  until  the  damages,  which, 
if  they  exist  at  all,  must  be  very  difficult  of  ascertainment,  shall  be 
paid." 

N    \'-PnYsicAL  Consequential  Injubies   Pie  to  Operation   of  Ll 
tion—  In  I.epai  Tender  Cases,  12  Wall.  457,  551,  20  I..  Ed  287  (1871),  sirwu. 
.1..   Bald    (upholding   the  federal   lepnl    tender    lows   as   applied    to   pr 
tracts):    "The  argument  |is|  pressed  upon  ns  that  the  legal  tendi 
prohibited  by  the  spirit  of  the  fifth  amendment,  which  forbids  i 
property  for  public  use  without  Jns(  m  or  due  process  of  law 

That  provision  has  always  heen  linden  rrtng  only  to 

propria  Hon,  and  nol  to  consequential  injurli 

lawful  power.     It  has  never  been  supposed  to  have  any   bearing  upon,  or  to 
11  a.  l  Const. L. — Hi 


122  FUNDAMENTAL    RIGHTS  (Part  li 

inhibit  laws  that  indirectly  work  harm  and  loss  to  individuals.  A  new  tariff, 
an  embargo,  a  draft,  or  a  war  may  inevitably  bring  upon  individuals  great 
losses ;  may,  indeed,  render  valuable  property  almost  valueless.  They  may 
destroy  the  worth  of  contracts.  But  who  ever  supposed  that,  because  of  this, 
a  tariff  could  not  be  changed,  or  a  non-Intercourse  act,  or  an  embargo  be  en- 
acted, or  a  war  be  declared?  By  the  act  of  June  28,  1834,  a  new  regulation 
of  the  weight  and  value  of  gold  coin  was  adopted,  and  about  six  per  cent, 
was  taken  from  the  weight  of  each  dollar.  The  effect  of  this  was  that  all 
creditors  were  subjected  to  a  corresponding  loss.  The  debts  then  due  became 
solvable  with  six  per  cent,  less  gold  than  was  required  to  pay  them  before. 
The  result  was  thus  precisely  what  it  is  contended  the  legal  tender  acts 
worked.  But  was  it  ever  imagined  this  was  taking  private  property  without 
compensation  or  without  due  process  of  law?" 

See,  also,  L.  &  N.  Ry.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct.  2G5,  55  L.  Ed. 
297,  34  L.  R.  A.  (N.  S.)  671  (1911)  (life  pass  issued  in  settlement  of  claim 
against  railway  invalidated  by  subsequent  law  forbidding  carriage  save  for 
money  compensation) ;  Armour  Packing  Co.  v.  U.  S.,  209  U.  S.  56,  81-83, 
28  Sup.  Ct.  42S.  52  L.  Ed.  GS1  (1908)  (regulations  affecting  prior  contracts  for 
future  carriage). 


SAWYER  v.  DAVIS. 

i Supreme  Judicial  Court  of  Massachusetts,  1884.     136  Mass.  239.  49  Am. 
Rep.  27.) 

[Case  reserved.  The  plaintiff  manufacturers  had  been  enjoined 
by  the  present  defendants  from  ringing  their  mill  bell  before  6:30  a. 
m.  as  a  nuisance.  See  Davis  v.  Sawyer,  133  Mass.  289,  43  Am.  Rep. 
519.  Acting  under  subsequent  legislative  authority  the  selectmen  of 
Plymouth  granted  to  plaintiffs  a  license  to  ring  their  bell  at  5  a.  m. 
as  they  had  done  before  the  injunction.  Plaintiffs  then  filed  a  bill 
of  review  to  have  the  former  injunction  dissolved  or  modified  in 
accordance  with  said  license.  On  demurrer  to  the  bill,  Colburn,  J., 
reserved  the  case  for  the  full  court.] 

C.  Allen,  J.  Nothing  is  better  established  than  the  power  of  the 
Legislature  to  make  what  are  called  police  regulations,'  declaring  in 
what  manner  property  shall  be  used  and  enjoyed,  and  business  car- 
ried on,  with  a  view  to  the  good  order  and  benefit  of  the  community, 
even  although  they  may  to  some  extent  interfere  with  the  full  enjoy- 
ment of  private  property,  and  although  no  compensation  is  given  to 
a  person  so  inconvenienced.  Bancroft  v.  Cambridge,  126  Mass.  438, 
441.  In  most  instances,  the  illustrations  of  the  proper  exercise  of 
this  power  are  found  in  rules  and  regulations  restraining  the  use  of 
property  by  the  owner,  in  such  a  manner  as  would  cause  disturbance 
and  injury  to  others.  But  the  privilege  of  continuing  in  the  passive 
enjoyment  of  one's  own  property,  in  the  same  manner  as  formerly, 
is  subject  to  a  like  limitation ;  and  with  the  increase  of  population 
in  a  neighborhood,  and  the  advance  and  development  of  business,  the 
quiet  and  seclusion  and  customary  enjoyment  of  homes  are  necessarily 
interfered  with,  until  it  becomes  a  question  how  the  right  which  each 
person  has  of  prosecuting  his  lawful  business  in  a  reasonable  and 
proper  manner  shall  be  made  consistent  with  the  other  right  which 


Ch.  12)  KMIM.NT    LjmmaIN  723 

each  person  has  to  be  free  from  unreasonable  disturbance  in  the  en- 
joyment of  his  property.  Merrifield  v.  Worcester,  110  Mass.  216, 
219,  14  Am.  Rep.  592.  In  this  conflict  of  rights,  police  regulation* 
by  the  Legislature  find  a  proper  office  in  determining  how  far  and 
under  what  circumstances  the  individual  must  yield  with  a  view  to 
the  general  good.  For  example,  if,  in  a  neighborhood  thickly  oc- 
cupied by  dwelJing-houses,  any  one,  for  his  own  entertainment  or  the 
gratification  of  a  whim,  were  to  cause  bells  to  be  rung  and  steam- 
whistles  to  be  blown  to  the  extent  that  is  usual  with  the  bells  and 
steam-whistles  of  locomotive  engines  near  railroad  stations  in  large 
cities,  there  can  be  no  doubt  that  it  would  be  an  infringement  of  the 
rights  of  the  residents,  for  which  they  could  find  ample  remedy  and 
vindication  in  the  courts.  Eut  if  the  Legislature,  with  a  view  to  the 
safety  of  life,  provides  that  bells  shall  be  rung  and  whistles  sounded, 
under  those  circumstances,  persons  living  near  by  must  necessarily 
submit  to  some  annoyance  from  this  source,  which  otherwise  they 
would  have  a  right  to  be  relieved  from. 

It  is  ordinarily  a  proper  subject  for  legislative  discretion  to  deter- 
mine by  general  rules  the  extent  to  which  those  who  are  engaged  in 
customary  and  lawful  and  necessary  occupations  shall  be  required 
or  allowed  to  give  signals  or  warnings  by  bells  or  whistles,  or  other- 
wise, with  a  view  either  to  the  public  safety,  as  in  the  case  of  rail- 
roads, or  to  the  necessary  or  convenient  operation  and  management 
of  their  own  works ;  and  ordinarily  such  determination  is  binding 
upon  the  courts,  as  well  as  upon  citizens  generally.  And  when  the 
Legislature  directs  or  allows  that  to  be  done  which  would  other\vi-< 
be  a  nuisance,  it  will  be  valid,  upon  the  ground  that  the  Legislature 
is  ordinarily  the  proper  judge  of  what  the  public  good  requires,  unless 
carried  to  such  an  extent  that  it  can  fairly  be  said  to  be  an  unwhole- 
some and  unreasonable  law.  Bancroft  v.  Cambridge,  126  Mass.  441 
It  is  accordingly  held  in  many  cases,  and  is  now  a  well-established 
rule  of  law.  at  least  in  this  commonwealth,  that  the  incidental  injury 
which  results  to  the  owner  of  property  situated  near  a  railroad,  cause! 
by  the  necessary  noise,  vibration,  dust,  and  smoke  from  the  passing 
trains,  which  would  clearly  amount  to  an  actionable  nuisance  if  the 
operation  of  the  railroad  were  not  authorized  by  the  Legislature, 
must,  if  the  running  of  the  trains  is  so  authorized,  be  borne  by  the 
individual,  without  compensation  or  remedy  in  any  form.1    The  legis- 

tlie  elaborately  reasoned  ease  to  this  Dan  v.  I'enn.  R.  B.. 
r.O  N.  J.  Law.  I1.".."..  13  ah.  164  (1888).  This  doctrine,  however,  is  generallj 
held  not  to  extend  to  damage  due  to  the  location  and  conduct  of  specially  an- 
noying parts  of  the  railroad  business,  which  art t  common  to  its  lit 

erally,  such  as  engine   houses,  terminal  yards,  water  hydrants,  and 

Baltimore  &  Potomac  B.  B.  v.  Fifth  Bap.  Cburcb,  10S  D.  8.  317,  2  Sup.  C( 

Tilt.  27  L.  Ed.  739  (1883);    Pennsylvania  B,  1:.  v.  Angel,  41  N.  J.  Eq 

Atl    432    50  Am.  Bep.  l   (1886);    Chicago  Q.  W.   By.  v.  first  M.   K.  I 

102  Fed.  85,  42  <'.  C.  A.  17S.  50  L,  H.  a.  488  (1900);   Terminal  Co.  v.  Lellyetl 

114  Tenn.  368,  86  8.  W.  881   (1905),     But  see  Dolan  v.  Chicago,  M.  It  St.  P. 

B.   It..  118  Wis.  362,  96  N.    W.  386  i,l'J03). 


7^i  FUNDAMENTAL    EIGHTS  (Part  2 

lative  sanction  makes  the  business  lawful,  and  defines  what  must  be 
accepted  as  a  reasonable  use  of  property  and  exercise  of  rights  on 
the  part  of  the  railroad  company,  subject  always  to  the  qualification 
that  the  business  must  be  carried  on  without  negligence  or  unnecessary 
disturbance  of  the  rights  of  others.  And  the  same  rule  extends  to 
other  causes  of  annoyance  which  are  regulated  and  sanctioned  by  law. 
[Citing  cases.]      *     *     * 

The  recent  case  of  Baltimore  &  Potomac  Railroad  v.  Fifth  Baptist 
Church,  108  U.  S.  317,  2  Sup.  Ct.  719,  27  L.  Ed.  739,  is  strongly  re- 
lied on  by  the  defendants  as  an  authority  in  their  favor.  There  are, 
however,  two  material  and  decisive  grounds  of  distinction  between 
that  case  and  this.  There  the  railroad  company  had  only  a  general 
legislative  authority  to  construct  works  necessary  and  expedient  for 
the  proper  completion  and  maintenance  of  its  railroad,  under  which 
authority  it  assumed  to  build  an  engine-house  and  machine-shop  by 
an  existing  church,  and  it  was  held  that  it  was  never  intended  to 
grant  a  license  to  select  that  particular  place  for  such  works,  to  the 
nuisance  of  the  church.  Moreover,  in  that  case,  the  disturbance  was 
so  great  as  not  only  to  render  the  church  uncomfortable,  but  almost 
unendurable  as  a  place  of  worship,  and  it  virtually  deprived  the  own- 
ers of  the  use  and  enjoyment  of  their  property.  We  do  not  under- 
stand that  it  was  intended  to  lay  down,  as  a  general  rule  applicable 
to  all  cases  of  comparatively  slight  though  real  annoyance,  naturally 
and  necessarily  resulting  in  a  greater  or  less  degree  to  all  owners  of 
property  in  the  neighborhood  from  a  use  of  property  or  a  method  of 
carrying  on  a  lawful  business  which  clearly  falls  within  the  terms 
and  spirit  of  a  legislative  sanction,  that  such  sanction  will  not  affect 
the  claim  of  such  an  owner  to  relief ;  but  rather  that  the  court  ex- 
pressly waived  the  expression  of  an  opinion  upon  the  point. 

In  this  commonwealth,  as  well  as  in  several  of  the  United  States 
and  in  England,  the  cases  already  cited  show  that  the  question  is 
settled  by  authority,  and  we  remain  satisfied  with  the  reasons  upon 
which  the  doctrine  was  here  established.  Courts  are  compelled  to 
recognize  the  distinction  between  such  serious  disturbances  as  ex- 
isted in  the  case  referred  to,  and  comparatively  slight  ones,  which 
differ  in  degree  only,  and  not  in  kind,  from  those  suffered  by  others 
in  the  same  vicinity.  Slight  infractions  of  the  natural  rights  of  the 
individual  may  be  sanctioned  by  the  Legislature  under  the  proper  ex- 
ercise of  the  police  power,  with  a  view  to  the  general  good.  Grave 
ones  will  fall  within  the  constitutional  limitation  that  the  Legislature 
is  only  authorized  to  pass  reasonable  laws.  The  line  of  distinction 
cannot  be  so  laid  down  as  to  furnish  a  rule  for  the  settlement  of  all 
cases  in  advance.  The  difficulty  of  marking  the  boundaries  of  this 
legislative  power,  or  of  prescribing  limits  to  its  exercise,  was  declared 
in  Commonwealth  v.  Alger,  7  Cush.  53,  85,  and  is  universally  recog- 
nized.   Courts,  however,  must  determine  the  rights  of  parties  in  par- 


Ch.  12)  EMINENT    DOMAIN  "-'< 

ticular  cases  as  they  arise;  always  recognizing  that  the  ownership 
of  property  does  not  of  itself  imply  the  right  to  use  or  enjoy  it  in 
every  possible  manner,  without  regard  to  corresponding  rights  of 
others  as  to  the  use  and  enjoyment  of  their  property;  and  ai 
the  rules  of  the  common  law,  which  have  from  time  to  time  bi 
tablished,  declaring  or  limiting  such  rights  of  use  and  enjoyment, 
may  themselves  be  changed  as  occasion  may  require.  Munn  v.  Il- 
linois, 94  U.  S.  113,  134,  24  L.  Ed.  77. 

In  the  case  before  us,  looking  at  it  for  the  present  without  i 
to  the  decree  of  this  court  in  the  former  case  between  these  p 
we  find  nothing  in  the  facts  set  forth  which  show  that  the 
relied  on  as  authorizing  the  plaintiffs  to  ring  their  bell  (St.  ! 
84)  should  be  declared  unconstitutional.  It  is  virtually  a  license. to 
manufacturers,  and  others  employing  workmen,  to  carry  on  their 
business  in  a  method  deemed  by  the  Legislature  to  be  convenient,  if 
not  necessary,  for  the  purpose  of  giving  notice,  by  ringing  bells,  and 
using  whistles  and  gongs,  in  such  manner  and  at  such  times  as  may 
be  designated  in  writing  by  municipal  officers.  In  character,  it  is  not 
unlike  numerous  other  instances  to  be  found  in  our  statutes,  where 
the  Legislature  has  itself  fixed,  or  has  authorized  municipal  or  other 
boards  or  officers  to  fix,  the  places,  times,  and  methods  in  which  oc- 
cupations may  be  carried  on,  or  acts  done,  which  would  naturally  be 
attended  with  annoyance  to  individuals.  The  example  of  bells  and 
whistles  on  locomotive  engines  has  already  been  mentioned.  Refer- 
ence may  also  be  made  to  the  statutes  regulating  the  use  of  stationary 
steam-engines,  the  places  and  manner  of  manufacturing  or  keeping 
petroleum,  of  carrying  on  other  offensive  trades  and  occupations,  of 
storing  gunpowder,  and  of  establishing  hospitals,  stables,  and  bowling- 
alleys.     *     *     * 

\V'e  can  have  no  doubt  that  the  statute  by  its  just  construction  is 
in  its  terms  applicable  to  the  present  case.     '  *     Ordinarily,  a 

statute  which  authorizes  a  thing  to  be  done,  which  can  be  done  with- 
out creating  a  nuisance,  will  not  be  deemed  to  authorize  a  nuisance. 
*  *  *  But,  on  the  other  hand,  the  authority  to  do  an  act  must  be 
held  to  carry  with  it  whatever  is  naturally  incidental  to  the  ordinary 
and  reasonable  performance  of  that  act.  When  the  Legislature  au- 
thorized factory  bells  to  be  rung,  it  must  have  been  contemplated  that 
they  would  be  heard  in  the  neighborhood.  That  is  a  natural  and  in- 
evitable consequence.  The  Legislature  must  be  deemed  to  have  de- 
termined that  the  benefit  is  greater  than  the  injury  and  annoyance: 
and  to  have  intended  to  enact  that  the  public  must  submit  to  the  dis- 
turbance, for  the  sake  of  the  greater  advantage  that  would  result 
from  this  method  of  carrying  on  the  business  of  manufacturing.  It 
must  be  considered,  therefore,  in  this  case,  that  a  legislative  - 
has  been  given  to  the  very  act  which  this  court  found  to  create  a  pri- 
vate nuisance.     *     *     * 


720  FUNDAMENTAL    RIGHTS  (Part  2 

[The  court  then  decided  that  defendants  had  no  vested  right  to  a 
continuance  of  the  injunction  after  the  law  had  been  changed  by  the 
Legislature.] 

Demurrer  overruled.2 


PASSAIC  v.  PATERSON  BILL  POSTING  CO. 

!  Errors  and  Appeals  of  New  Jersey,  1905.     72  N.   J. 
Atl.  267.  Ill  Am.  St.  Rep.  676,  5  Ann.  Cas.  995.; 

See  ante,  p.  400,  for  a  report  of  this  case,  with  notes. 


(Court  of  Errors  and  Appeals  of  New  Jersey,  1905.     72  N.   J.   Law,  285,  62 
Atl.  267.  Ill  Am.  St.  Rep.  676,  5  Ann.  Cas.  995.) 


UNITED   STATES  v.  CHANDLER-DUNBAR  WATER   POW- 
ER CO. 

(Supreme  Court  of   United   States,  1913.     229  U.  S.  53,  33  Sup.  Ct.  667,  57 
L.  Ed.  .) 

[Error  to  the  federal  District  Court  for  the  Western  District  of 
Michigan.  By  act  of  Congress  of  1909  (35  Stat.  815,  820,  c.  264)  it 
was  declared  that  the  ownership  in  fee  of  all  land  north  of  St.  Mary's 
Falls  ship  canal,  between  said  canal  and  the  international  boundary  at 

2  Accord :  Titus  v.  Boston,  161  Mass.  209,  36  N.  E.  793  (1894)  (damage  from 
proximity  of  city  sewer) ;  Murtha  v.  Lovewell,  166  Mass.  391,  44  N.  E.  347, 
55  Am.  St.  Rep.  410  (1896)  (iron  furnace  casting  sparks  and  red-hot  iron  on 
plaintiff's  land);  Levin  v.  Goodwin,  191  Mass.  341,  77  N.  E.  718,  114  Am. 
St.  Rep.  616  (1906)  (noise  of  bowling  alley). 

"The  general  rule  is  that  the  legislature  may  authorize  small  nuisances 
without  compensation,  but  not  great  ones." — Allen,  J.,  in  Bacon  v.  Boston, 
154  Mass.  100,  102,  28  N.  E.  9  (1S91). 

"To  a  certain  and  to  an  appreciable  extent  the  legislature  may  alter  the 
law  of  nuisance,  although  property  is  affected." — Holmes,  J.,  in  dissenting 
opinion,  Muhlker  v.  N.  Y.  &  H.  R.  R.,  197  U.  £.  544,  570,  25  Sup.  Ct.  522,  49 
L.  Ed.  872  (1905). 

Compare  Blanc  v.  Murray,  36  La.  Ann.  162,  51  Am.  Rep.  7  (1SS4)  (inflam- 
mable building  dangerous  to  adjoining  property — license  held  invalid). 

"The  acts  that  a  legislature  may  authorize,  which,  without  such  authoriza- 
tion, would  constitute  nuisances,  are  those  which  affect  public  highways  or 
public  streams,  or  matters  in  which  the  public  have  an  interest  and  over 
which  the  public  have  control.  The  legislative  authorization  exempts  only 
from  liability  to  suits,  civil  or  criminal,  at  the  instance  of  the  state;  it  does 
not  affect  any  claim  of  a  private  citizen  for  damages  for  any  special  incon- 
venience and  discomfort  not  experienced  by  the  public  at  large." — Baltimore 
&  P.  R.  R.  v.  Fifth  Bap.  Church,  10S  U.  S.  317,  332,  2  Sup.  Ct.  719,  27  L. 
Ed.  739  (1SS3),  by  Field,  J.  See  1  L.  R.  A.  (N.  S.)  49-137,  note  (collecting 
authorities). 

Fence  Laws. — In  many  Western  and  Southern  states  statutes  have  absolved 
the  owners  of  domestic  animals  from  liability  for  their  trespasses  upon  un- 
fenced  land,  even  when  Intentionally  allowed  to  roam  at  large.  These  have 
been  held  constitutional,  except  when  interpreted  to  authorize  the  intentional 
driving  of  animals  upon  unfenced  land.  See  Buford  v.  Houtz,  133  U.  S. 
320,  10  Sup.  Ct.  305,  33  L.  Ed.  61S  (1890) ;  Union  P.  Ry.  v.  Rollins,  5  Kan. 
167  (1869);  Martin  v.  Platte  Val.  Sheep  Co.,  12  Wyo.  432,  76  Pac.  571,  78 
Pac.  1093  (1904) ;  Poindexter  v.  May,  98  Va.  143,  34  S.  E.  971.  47  L.  R.  A. 
588  (1900);  Bulpit  v.  Matthews,  145  111.  345,  34  N.  E.  525  (1893),  22  L.  R. 
A.  55,  and  note.    Compare  Smith  v.  Bivens,  56  Fed.  352  (1893). 


Ch.  12)  BMINENT    DOMAIN  T-~ 

Sault  Ste.  Marie  in  Michigan,  was  necessary  for  the  purposes  of 
navigation,  and  its  condemnation  was  directed.  Defendant  company,  a 
riparian  owner  of  said  land,  had  erected  in  the  rapids  of  St.  Mary's 
river,  under  the  circumstances  stated  in  the  opinion,  the  nc< 
structures  to  produce  a  large  water  power  which  for  20  years  it  had 
heen  using  and  selling,  and  the  erection  of  still  larger  structures  to 
use  the  undeveloped  power  was  contemplated  when  the  above  act  was 
passed.  The  court  above  mentioned,  in  which  the  condemnation  was 
conducted,  awarded  an  item  of  $550,000  to  said  defendant  on  account 
of  its  claim,  as  riparian  owner,  to  the  undeveloped  water  power  of  the 
river  in  excess  of  the  supposed  requirements  of  navigation.  All  par- 
ties took  writs  of  error  from  this,  the  United  States  denying  it  alto- 
gether and  the  defendant  alleging  its  inadequacy.  Other  facts  appear 
below.] 

Mr.  Justice  Lurton.  *  *  *  The  technical  title  to  the  beds  of  the 
navigable  rivers  of  the  United  States  is  either  in  the  states  in  which 
the  rivers  are  situated,  or  in  the  owners  of  the  land  bordering  upon 
such  rivers.  Whether  in  one  or  the  other  is  a  question  of  local  law. 
Shivery  v.  Bowlby,  152  U.  S.  1,  31.  38  L.  Ed.  331,  343,  14  Sup.  Ct. 
;  IS;  Philadelphia  Co.  v.  Stimson,  223  U.  S.  605,  624,  632,  56  L.  Ed. 
570,  578,  581,  32  Sup.  Ct.  340;   Scott  v.  Lattig.  227  U.  S.  229,  33  Sup. 

Ct.  242,  ^7  L.  Ed. .*    Upon  the  admission  of  the  state  of  Michigan 

into  the  Union  the  bed  of  the  St.  Mary's  river  passed  to  the  state,  and 
under  the  law  of  that  state  the  conveyance  of  a  tract  of  land  upon  a 
navigable  river  carries  the  title  to  the  middle  thread.  Webber  v.  Pere 
Marquette  Boom  Co.,  62  Mich.  626.  30  X.  \V.  469 ;  Scranton  v.  Wheel- 
er, 179  U.  S.  141,  163,  45  L.  Ed.  126,  137,  21  Sup.  Ct.  48:  United 
States  v.  Chandler-Dunbar  Water  Power  Co.,  209  U.  S.  447,  52  L.  Ed. 
881.  2S  Sup.  Ct.  579. 

The  technical  title  of  the  Chandler-Dunbar  Company,  therefore, 
includes  the  bed  of  the  river  opposite  its  upland  on  the  bank  to  the 
middle  thread  of  the  stream,  being  the  boundary  line  at  that  point 
between  the  United  States  and  the  Dominion  of  Canada.  Over  this 
bed  flows  about  two-thirds  of  the  volume  of  water  constituting  the 
falls  and  rapids  of  the  St.  Mary's  river.  By  reason  of  that  fact,  and 
the  ownership  of  the  shore,  the  company's  claim  is,  that  it  is  the  owner 
of  the  river  and  of  the  inherent  power  in  the  falls  and  rapids,  subject 
only  to  the  public  right  of  navigation.  While  not  denying  that  this 
right  of  navigation  is  the  dominating  right,  yet  the  claim  is  that  the 
United  States,  in  the  exercise  of  the  power  to  regulate  commerce, 
may  not  exclude  the  rights  of  riparian  owners  to  construct  in  the  river 

i  See,  also.  st.  Anthony  Falls  Co.  v.  si.  Paul  Oom'ra,  168  U.  S.  349,  18  Sup. 
Ct  I'm,  42  I..  Kit.  487  Hs'.iTi  (cases).     In  some  states  the  titles  to  the  beds  of 

navigable  streams  are  trei 1  differently  from  those  to  the  l"-iis  of  navigable 

Delaplaine  v.  c.  &  N.  \V.  By.,   12  wis.  214,  24  Am.  Rep.  386  ii^TTi 
In  all,  tin-  beds  of  the  Great  Lakes  are  public  property.     See  Gould.  ' 
(3d  Ed.)  chapter  III. 


728  FUNDAMENTAL    RIGHTS  (Part    2 

and  upon  their  own  submerged  lands  such  appliances  as  are  necessary 
to  control  and  use  the  current  for  commercial  purposes,  provided  only 
that  such  structures  do  not  impede  or  hinder  navigation,  and  that  the 
flow  of  the  stream  is  not  so  diminished  as  to  leave  less  than  every 
possible  requirement  of  navigation,  present  and  future.  This  claim 
of  a  proprietary  right  in  the  bed  of  the  river  and  in  the  flow  of  the 
stream  over  that  bed,  to  the  extent  that  such  flow  is  in  excess  of  the 
wants  of  navigation,  constitutes  the  ground  upon  which  the  company 
asserts  that  a  necessary  effect  of  the  act  of  March  3,  1909,  and  of  the 
judgment  of  condemnation  in  the  court  below,  is  a  taking  from  it 
of  a  property  right  or  interest  of  great  value,  for  which,  under  the 
fifth  amendment,  compensation  must  be  made.     *     *     * 

This  title  of  the  owner  of  fast  land  upon  the  shore  of  a  navigable 
river  to  the  bed  of  the  river  is,  at  best,  a  qualified  one.  It  is  a  title 
which  inheres  in  the  ownership  of  the  shore;  and,  unless  reserved  or 
excluded  by  implication,  passed  with  it  as  a  shadow  follows  a  sub- 
stance, although  capable  of  distinct  ownership.  It  is  subordinate  to 
the  public  right  of  navigation,  and  however  helpful  in  protecting  the 
owner  against  the  acts  of  third  parties,  is  of  no  avail  against  the  ex- 
ercise of  the  great  and  absolute  power  of  Congress  over  the  improve- 
ment of  navigable  rivers.  That  power  of  use  and  control  comes  from 
the  power  to  regulate  commerce  between  the  states  and  with  foreign 
nations.  It  includes  navigation  and  subjects  every  navigable  river 
to  the  control  of  Congress.  All  means  having  some  positive  relation  to 
the  end  in  view  which  are  not  forbidden  by  some  other  provision  of  the 
Constitution  are  admissible.  If,  in  the  judgment  of  Congress,  the  use 
of  the  bottom  of  the  river  is  proper  for  the  purpose  of  placing  therein 
structures  in  aid  of  navigation,  it  is  not  thereby  taking  private  prop- 
erty for  a  public  use,  for  the  owner's  title  was  in  its  very  nature  sub- 
ject to  that  use  in  the  interest  of  public  navigation.  If  its  judgment 
be  that  structures  placed  in  the  river  and  upon  such  submerged  land 
are  an  obstruction  or  hindrance  to  the  proper  use  of  the  river  for  pur- 
poses of  navigation,  it  may  require  their  removal  and  forbid  the 
use  of  the  bed  of  the  river  by  the  owner  in  any  way  which,  in  its  judg- 
ment, is  injurious  to  the  dominant  right  of  navigation.  So,  also,  it 
may  permit  the  construction  and  maintenance  of  tunnels  under  or 
bridges  over  the  river,  and  may  require  the  removal  of  every  such 
structure  placed  there  with  or  without  its  license,  the  element  of  con- 
tract out  of  the  way,  which  it  shall  require  to  be  removed  or  altered 
as  an  obstruction  to  navigation.  *  *  *  [Here  follow  quotations 
from  Gilman  v.  Philadelphia,  3  Wall.  713,  724,  18  L.  Ed.  96,  Gibson 
v.  U.  S.,  166  U.  S.  269,  271,  17  Sup.  Ct.  578,  41  L.  Ed.  996,  and 
Scranton  v.  Wheeler,  supra.] 

So  unfettered  is  this  control  of  Congress  over  navigable  streams 
of  the  country  that  its  judgment  as  to  whether  a  construction  in  or 
over  such  a  river  is  or  is  not  an  obstacle  and  a  hindrance  to  naviga- 


Ch.  12)  EMINENT    DOMAIN  720 

tion  is  conclusive.  Such  judgment  and  determination  is  the  exercise  of 
legislative  power  in  respect  of  a  subject  wholly  within  its  control. 

In  Pennsylvania  v.  Wheeling  &  B.  Bridge  Co.,  18  How.  421,  430. 
15  L.  Ed.  435,  436,  this  court,  upon  the  facts  in  evidence,  held  that  a 
bridge  over  the  Ohio  river,  constructed  under  an  act  of  the  state  of 
Virginia,  created  an  obstruction  to  navigation,  and  was  a  nuisance 
which  should  be  removed.  Before  the  decree  was  executed,  Congress 
declared  the  bridge  a  lawful  structure,  and  not  an  obstruction.  This 
court  thereupon  refused  to  issue  a  mandate  for  carrying  into  effect  its 
own  decree,  saying:  "Although  it  still  may  be  an  obstruction  in  fact, 
[it]  is  not  so  in  contemplation  of  law."  -     *     *    * 

The  conclusion  to  be  drawn  is,  that  the  question  of  whether  the 
proper  regulation  of  navigation  of  this  river  at  the  place  in  question 
required  that  no  construction  of  any  kind  should  be  placed  or  con- 
tinued in  the  river  by  riparian  owners,  and  whether  the  whole  flow 
of  the  stream  should  be  conserved  for  the  use  and  safety  of  navigation, 
are  questions  legislative  in  character;  and  when  Congress  determined, 
as  it  did  by  the  act  of  March  3,  1909,  that  the  whole  river  between  the 
American  bank  and  the  international  line,  as  well  as  all  of  the  upland 
north  of  the  present  ship  canal,  throughout  its  entire  length,  was  "nec- 
essary for  the  purposes  of  navigation  of  said  waters  and  the  waters 
connected  therewith,"  that  determination  was  conclusive. 

So  much  of  the  zone  covered  by  this  declaration  as  consisted  of  fast 
land  upon  the  banks  of  the  river,  or  in  islands  which  were  private 
property,  is,  of  course,  to  be  paid  for.  But  the  flow  of  the  stream  was 
in  no  sense  private  property,  and  there  is  no  room  for  a  judicial  review 
of  the  judgment  of  Congress  that  the  flow  of  the  river  is  not  in  excess 
of  any  possible  need  of  navigation,  or  for  a  determination  that,  if  in 
excess,  the  riparian  owners  had  any  private  property  rii^lit  in  such 
excess  which  must  be  paid  for  if  they  have  been  excluded  from  the 
use  of  the  same. 

That  Congress  did  not  act  arbitrarily  in  determining  that  "for  the 
purposes  of  navigation  of  said  waters  and  the  waters  connected  there- 
with." the  whole  flow  of  the  stream  should  be  devoted  exclusively  to 
that  end,  is  most  evident  when  we  consider  the  character  of  this  stream 
and  its  relation  to  the  whole  problem  of  lake  navigation.  The  river  St. 
Mary's  is  the  only  outlet  for  the  waters  of   Lake  Superior.     The 

2  Accord  (legislatively  authorized  obstructions  In   navigable  waters,  injuri- 
ous to  riparian  owner):    Oilman  v.  Philadelphia,  3  Wall.  Ti.'{,   18  L.   Ed  96 
(navigation  wholly  obstructed  by  bridge);    Frost  v.  Wash.  Co.  Ry.,  o<. 
Me.  76,  53  Atl.  806,  69  I..  R.  A.  6S  (1901)  (same);   Manlgault  v.  Springs,  supra. 
p.    721  (same,  by  dam  for  drainage  pui 

122  Fed.  378,  381  383,  58  C.  C.  A.  166,   170,  65  I.   R  A    620  (1903 
diverting  i  as  to  erode  land  saying:    "As 

a  riparian  proprietor,  the  plaintiff  was  subject  to  all  the  injury,  not  amount- 
ing to  a  taking  of  his  land,  which  might  result  from  the  lawful  Impro 
of  the  navigation  of  the  stream,  or  the      nstrnctJon  of  piers,  abutm 
bridges,  in  the  exercise  of  the  public  rights  In  and  over  the  stream  In 
Of  such  matters." 


730  FUNDAMENTAL    RIGHTS  (Part  2 

stretch  of  water  called  the  falls  and  rapids  of  the  river  is  about  3,000 
feet  long,  and  from  bank  to  bank  has  a  width  of  about  4,000  feet. 
About  two-thirds  of  the  volume  of  the  stream  flows  over  the  sub- 
merged lands  of  the  Chandler-Dunbar  Company,  the  rest  over  like 
lands  on  the  Canadian  side  of  the  boundary.  The  fall  in  the  rapids 
is  about  18  feet.  This  turbulent  water,  substantially  unnavigable 
without  the  artificial  aid  of  canals  around  the  stream,  constitutes  both 
a  tremendous  obstacle  to  navigation  and  an  equally  great  source  of 
water  power,  if  devoted  to  commercial  purposes.  That  the  wider 
needs  of  navigation  might  not  be  hindered  by  the  presence  in  the  river 
of  the  construction  works  necessary  to  use  it  for  the  development  of 
water  power  for  commercial  uses  under  private  ownership  was  the 
judgment  and  determination  of  Congress.  There  was  also  present  in 
the  mind  of  Congress  the  necessity  of  controlling  the  outflow  from 
Lake  Superior,  which  averages  some  64,000  cubic  feet  per  second. 
That  outflow  has  great  influence  both  upon  the  water  level  of  Lake 
Superior  and  also  upon  the  level  of  the  great  system  of  lakes  below, 
which  receive  that  outflow.  A  difference  of  a  foot  in  the  level  of 
Lake  Superior  may  influence  adversely  access  to  the  harbors  on  that 
lake.  The  same  fall  in  the  water  level  of  the  lower  lakes  will  percepti- 
bly affect  access  to  their  ports.  This  was  a  matter  of  international 
consideration,  for  Canada,  as  well  as  the  United  States,  was  interested 
in  the  control  and  regulation  of  the  lake  water  levels.  *  *  *  [Here 
follow  references  to  prospective  negotiations  upon  the  subject  with  the 
British  government,  and  to  the  large  expenditures  for  canals  and 
locks  at  the  point  by  both  Canada  and  the  United  States,  which  were 
already  made  inadequate  by  the  increasing  commerce,  making  neces- 
sary new  canals.] 

The  upland  belonging  to  the  Chandler-Dunbar  Company  consists  of 
a  strip  of  land  some  2,500  feet  long  and  from  50  to  150  feet  wide.  It 
borders  upon  the  river  on  one  side,  and  on  the  government  canal  strip 
on  the  other.  Under  permits  from  the  Secretary  of  War,  revocable  at 
will,  it  placed  in  the  rapids,  in  connection  with  its  upland  facilities, 
the  necessary  dams,  dykes,  and  forebays  for  the  purpose  of  controlling 
the  current  and  using  its  power  for  commercial  purposes,  and  has  been 
for  some  years  engaged  in  using  and  selling  water  power.  What  it 
did  was  by  the  revocable  permission  of  the  Secretary  of  War,  and 
every  such  permit  or  license  was  revoked  by  the  act  of  1909.    *    *    * 

It  is  a  little  difficult  to  understand  the  basis  for  the  claim  that  in 
appropriating  the  upland  bordering  upon  this  stretch  of  water,  the 
government  not  only  takes  the  land,  but  also  the  great  water  power 
which  potentially  exists  in  the  river.  The  broad  claim  that  the  water 
power  of  the  stream  is  appurtenant  to  the  bank  owned  by  it,  and  not 
dependent  upon  ownership  of  the  soil  over  which  the  river  flows, 
has  been  advanced.  But  whether  this  private  right  to  the  use  of  the 
.'low  of  the  water  and  flow  of  the  stream  be  based  upon  the  qualified 
title  which  the  company  had  to  the  bed  of  the  river  over  which  it 


Ch.  12)  EMINENT    DOMAIN  73] 

flows,  or  the  ownership  of  land  bordering  upon  the  river,  is  of  no 
prime  importance.  In  neither  event  can  there  be  said  to  arise  any 
ownership  of  the  river.  Ownership  of  a  private  stream  wholly  upon 
the  lands  of  an  individual  is  conceivable :  but  that  the  running  water 
in  a  great  navigable  stream  is  capable  of  private  ownership  is  incon- 
ceivable. 

Whatever  substantial  private  property  rights  exist  in  the  flow  of  the 
stream  must  come  from  some  right  which  that  company  has  to  con- 
struct and  maintain  such  works  in  the  river,  such  as  dams,  walls, 
dykes,  etc.,  essential  to  the  utilization  of  the  power  of  the  stream  for 
commercial  purposes.  We  may  put  out  of  view  altogether  the  class 
of  cases  which  deal  with  the  right  of  riparian  owners  upon  non-navi- 
gable stream  to  the  use  and  enjoyment  of  the  stream  and  its  waters. 
The  use  of  the  fall  of  such  a  stream  for  the  production  of  power  may 
be  a  reasonable  use  consistent  with  the  rights  of  those  above  and  below. 
The  necessary  dam  to  use  the  power  might  completely  obstruct  the 
stream,  but  if  the  effect  was  not  injurious  to  the  property  of  those 
above,  or  to  the  equal  rights  of  those  below,  none  could  complain, 
since  no  public  interest  would  be  affected.  We  may  also  lay  out  of 
consideration  the  cases  cited  which  deal  with  the  rights  of  riparian 
owners  upon  navigable  or  non-navigable  streams  as  between  each 
other.  Nor  need  we  consider  cases  cited  which  deal  with  the  rights 
of  riparian  owners  under  state  laws  and  private  or  public  charters 
conferring  rights.  That  riparian  owners  upon  public  navigable  rivers 
have  in  addition  to  the  rights  common  to  the  public,  certain  rights  to 
the  use  and  enjoyment  of  the  stream,  which  are  incident  to  such  own- 
ership of  the  bank,  must  be  conceded.  These  additional  rights  are 
not  dependent  upon  title  to  the  soil  over  which  the  river  flows,  but 
are  incident  to  ownership  upon  the  bank.  Among  these  rights  of  use 
and  enjoyment  is  the  right,  as  against  other  riparian  owners,  to  have 
the  stream  come  to  them  substantially  in  its  natural  state,  both  in 
quantity  and  quality.  They  have  also  the  right  of  access  to  deep 
water,  and  when  not  forbidden  by  public  law  may  construct  for  this 
purpose,  wharves,  docks,  and  piers  in  the  shallow  water  of  the  shore.* 
But  every  such  structure  in  the  water  of  a  navigable  river  is  subor- 
dinate to  the  right  of  navigation,  and  subject  to  the  obligation  to  suf- 
fer the  consequences  of  the  improvement  of  navigation,  and  must  be 
removed  if  Congress,  in  the  assertion  of  its  power  over  navigation, 
shall  determine  that  their  continuance  is  detrimental  to  the  public  in- 
terest in  the  navigation  of  the  river.     Gibson  v.   United  States,   166 

-The  riparian  rights  appurtenant  to  land  upon  public  waters  are  enu- 
in.  rated  in  1  Lewis.  Em.  Dom.  (3d  Ed.)  §  100,  approved  In  Taylor  v.  Comm., 
L02  Va.  769,  77::.    17  S.   K.  875,  102  Am.   St  See,  also.  Union 

0.  v.  Brunswick.  31  Minn.  L':>7.  301,   17   N.   \V    626,    17  Am.  Rep 
769  I L883) ;    Delaplalne  v.  C.  &  X.  W.  By.,  12  Wis.  21  1.  24  Am.  Rep.  386 
Rumsey  v.  N.  Y..  etc.  It.  11.,  183  X.  Y.  Tt».  30  N.  K.  654,  15  L.   B    \ 
\m.   st.  Rep.  600  (1892);    Lamprey   v.  State,  :■-  Minn.   lsi.  :,;;  N.   w 
is.  L.  H.  A.  07u,  36  Am.  St  Rep.  541  U>'Jo>  trlgut  to  accretion  and  reliction). 


732  FUNDAMENTAL    RIGHTS  (Part  2 

U.  S.  269,  41  L.  Ed.  996,  17  Sup.  Ct.  578;  Northern  Transp.  Co. 
v.  Chicago,  99  U.  S.  635,  25  L.  Ed.  336.  It  is  for  Congress  to  decide 
what  is  and  what  is  not  an  obstruction  to  navigation.  Pennsylvania  v. 
Wheeling  &  B.  Bridge  Co.,  18  Plow.  421,  15  L.  Ed.  435;  Union 
Bridge  Co.  v.  United  States,  204  U.  S.  364,  51  L,  Ed.  523,  27  Sup.  Ct. 
367;  Philadelphia  Co.  v.  Stimson,  223  U.  S.  605,  56  L.  Ed.  570,  32 
Sup.  Ct.  340.     *     *     * 

Upon  what  principle  can  it  be  said  that,  in  requiring  the  removal 
of  the  development  works  which  were  in  the  river  upon  sufferance, 
Congress  has  taken  private  property  for  public  use  without  compensa- 
tion? In  deciding  that  a  necessity  existed  for  absolute  control  of  the 
river,  at  the  rapids,  Congress  has,  of  course,  excluded,  until  it  changes 
the  law,  every  such  construction  as  a  hindrance  to  its  plans  and  pur- 
poses for  the  betterment  of  navigation.  The  qualified  title  to  the  bed 
of  the  river  affords  no  ground  for  any  claim  of  a  right  to  construct 
and  maintain  therein  any  structure  which  Congress  has,  by  the  act  of 
1909,  decided  in  effect  to  be  an  obstruction  to  navigation,  and  a  hin- 
drance to  its  plans  for  improvement.  That  title  is  absolutely  subor- 
dinate to  the  right  of  navigation,  and  no  right  of  private  property 
would  have  been  invaded  if  such  submerged  lands  were  occupied  by 
structures  in  aid  of  navigation,  or  kept  free  from  such  obstructions 
in  the  interest  of  navigation.  Scranton  v.  Wheeler,  179  U.  S.  141,  163, 
45  L.  Ed.  126,  137,  21  Sup.  Ct.  48;  Hawkins  Point  Light-House  Case, 
39  Fed.  83.  We  need  not  consider  whether  the  entire  flow  of  the 
river  is  necessary  for  the  purposes  of  navigation,  or  whether  there 
is  a  surplus  which  is  to  be  paid  for,  if  the  Chandler-Dunbar  Company 
is  to  be  excluded  from  the  commercial  use  of  that  surplus.  The  an- 
swer is  found  in  the  fact  that  Congress  has  determined  that  the  stream 
from  the  upland,  taken  to  the  international  boundary,  is  necessary 
for  the  purposes  of  navigation.  That  determination  operates  to  ex- 
clude from  the  river  forever  the  structures  necessary  for  the  com- 
mercial use  of  the  water  power.  That  it  does  not  deprive  the  Chand- 
ler-Dunbar Company  of  private  property  rights  follows  from  the 
considerations  before  stated. 

It  is  said  that  the  twelfth  section  of  the  act  of  1909  authorizes  the 
Secretary  of  War  to  lease  upon  terms  agreed  upon,  any  excess  of  wa- 
ter power  which  results  from  the  conservation  of  the  flow  of  the  river, 
and  the  works  which  the  government  may  construct.  This,  it  is  said, 
is  a  taking  of  private  property  for  commercial  uses,  and  not  for  the 
improvement  of  navigation.  But,  aside  from  the  exclusive  public 
purpose  declared  by  the  eleventh  section  of  the  act,  the  twelfth  section 
declares  that  the  conservation  of  the  flow  of  the  river  is  "primarily 
for  the  purposes  of  navigation,  and  incidentally  for  the  purpose  of 
having  the  water  power  developed,  either  for  the  direct  use  of  the 
United  States,  or  by  lease  *  *  *  through  the  Secretary  of  War." 
If  the  primary  purpose  is  legitimate,  we  can  see  no  sound  objection  to 
leasing  any  excess  of  power  over  the  needs  of  the  government.     The 


Ch.  1-)  BMINENT    DOMAIN 

practice  is  not  unusual  in  respect  to  similar  public  works  constructed 
by  state  governments.  In  Kaukauna  Water  Power  Co.  v.  Green  Baj 
&  M.  Canal  Co.,  142  U.  S.  254,  273,  35  L.  Ed.  1004,  1010,  12  Sup. 
Ct.  173,  respecting  a  Wisconsin  act  to  which  this  objection  was  made, 
the  court  said:  "Hut  if,  in  the  erection  of  a  public  dam  for  a  recog- 
nized public  purpose,  there  is  necessarily  produced  a  surplus  of  water, 
which  may  properly  be  used  for  manufacturing  purposes,  there  is  no 
sound  reason  why  the  state  may  not  retain  to  itself  the  power  of  con- 
trolling or  disposing  of  such  water  as  an  incident  of  its  right  to  make 
such  improvement.  Indeed,  it  might  become  very  necessary  to  retain 
the  disposition  of  it  in  its  own  hands,  in  order  to  preserve  at  all  time- 
a  sufficient  supply  for  the  purposes  of  navigation.  If  the  riparian 
owners  were  allowed  to  tap  the  pond  at  different  places,  and  draw  off 
the  water  for  their  own  use,  serious  consequences  might  arise,  not 
only  in  connection  with  the  public  demand  for  the  purposes  of  navi- 
gation, but  between  the  riparian  owners  themselves  as  to  the  proper 
proportion  each  was  entitled  to  draw, — controversies  which  could  only 
be  avoided  by  the  state  reserving  to  itself  the  immediate  supervision 
of  the  entire  supply.  As  there  is  no  need  of  the  surplus  running  to 
waste,  there  was  nothing  objectionable  in  permitting  the  state  to  let 
out  the  use  of  it  to  private  parties,  and  thus  reimburse  itself  for  the 
expenscs  of  the  improvement."     *     *     * 

The  conclusion,  therefore,  is  that  the  court  below  erred  in  awarding 
$550,000,  or  any  other  sum,  for  the  value  of  what  is  called  "raw  wa- 
ter," that  is,  the  present  money  value  of  the  rapids  and  falls  to  the 
Chandler-Dunbar  Company  as  riparian  owners  of  the  shore  and  ap- 
purtenant submerged  land.     *     *     * 

Judgment  reversed.4 

*  Accord:    Gibson  v.   TJ.  S.,  166  U.  S.  209,  17  Sup.  Ct.  578,  41   L.    I 

mparian  access  to  water  cut  off  by  dike);  Scranton  v.  Wheeler,  17'.' 
r.  s.  141,  21  Sup.  Ct.  48,  15  L.  Ed  126  (1900  (same  by  pier);  Bedford  v. 
r.  S.,  192  U.  S.  217,  21  snp.  Ct  238,  4s  L.  Ed.  411  (1904)  (reveti 
bank  In  aid  of  navigation  causing  a  continuance  of  erosion  of  plaintiffs'  land 
below);  Black  River  Imp.  Co.  v.  La  Crosse  Co.,  ..4  Wis.  659,  11  N.  W.  -it::, 
n  Am.  Rep.  66  (1882)  (diversion  of  water  to  another  channel  in  same  river): 
Com'ra  v.  Withers,  29  Miss.  21,  04  Am.  Dec.  126  (1855)  (diversion  to 

n  same  watershed)  [see  Beidler  v.  Sanitary  District,  211  111.  ffi 
7!  X.  E.  1118,  07  L.  R.  a.  version  to  another  watershed)];   Haw- 

kins Point   Light  House  Case  (<'  LS89)  (lighthouse  i 

ess  to  stream);    Cohn  v.  Wausau  Room  Co.,  47  Wis.  314,  2  N.  W.  546 
by  public  log  boomi;   Lewis  Oyster  Co.  v.  Briggs,  229  i 
:::;  Sup.  Ct  '''7'.).  57  L.   Ed.  —  (1913)   (destruction  of  i>r 

son  v.  V.  S.,  230   D.  S.  1,  33  Sup.  Ct.   1011,  -"'7  I.. 
Kd.  —  (1913)  (levees  in  aid  of  navigation  causing  Hooding  elsewhere);  I 
v.  o.  S.,  230  C.  s.  -ji,  :::;  Sup.  Ct.  1019,  ~>7  I..   Ed.  — 
"ii  of  levee). 
similarly,  although  obstructions  in  a  navigable  stream,  were  originally  law 
fully  cri  removal  may  be  compelled  without  compensation.     Wi  ■• 

■  St.  Ry.  v.  Illinois,  L'01  I'    :• 

iip-  tunnel);    Onion  Bridge  Co.  v.  I  S.  864,  27  Sup.  Cl 

867,  51  L.  Ed.  523  (1907)   [i 
lock)  is  used  by  the  government  Instead  of  i-  in.-  merely  removed 


734  FUNDAMENTAL    EIGHTS  (Part  2 

CHICAGO,  B.  &  Q.  RY.  CO.  v.  ILLINOIS  ex'rel.  GRIMWOOD 
(1906)  200  U.  S.  561,  581,  582,  586,  587,  590,  591,  594,  26  Sup.  Ct. 
341,  50  L,  Ed.  596,  4  Ann.  Cas.  1175,  Mr.  Justice  Harlan: 

"The  concrete  case  arising  upon  the  petition  and  the  demurrer  is 
this:  [Here  facts  are  stated  showing  that  the  railway  lawfully  con- 
structed a  bridge  for  its  track  across  Rob  Roy  creek,  leaving  a  depth 
and  width  of  channel  sufficient  to  carry  off  all  of  the  natural  flow  of 
the  water;  that  under  statutory  authority  a  state  drainage  commis- 
sion has  adopted  a  suitable  plan  for  draining  a  large  body  of  swamp 
land  into  Rob  Roy  creek,  which  is  the  natural  drainage  outlet  for 
these  lands;  that  the  plan  requires  the  channel  to  be  enlarged,  and 
that  this  cannot  be  done  without  removing  the  foundations  of  the  rail- 
way bridge  and  necessitating  the  construction  of  a  new  bridge  with 
a  wider  opening  for  the  water.]  The  company  insists  that  to  require 
it  to  meet  these  expenses  out  of  its  own  funds  will  be,  within  the 
meaning  of  the  Constitution,  a  taking  of  its  property  for  public  use 
without  compensation,  and,  therefore,  without  due  process  of  law, 
as  well  as  a  denial  to  it  of  the  equal  protection  of  the  laws.     *     *     * 

"This  contention  cannot,  however,  be  sustained,  except  upon  the 
theory  that  the  acquisition  by  the  railway  company  of  a  right  of  way 

compensation  must  be  made.  Monongahela,  etc.,  Co.  v.  U.  S.,  148  U.  S.  312, 
13  Sup.  Ct.  622,  37  L.  Ed.  463  (1893).  Compare  Water  Power  Cases,  148  Wis. 
124,  134  N.  W.  330,  38  L.  R.  A.  (N.  S.)  526  (1912)  (invalid  attempt  to  expropri- 
ate owners  of  water  power  plants  under  guise  of  improving  navigation). 

As  to  how  far  flooding  caused  by  incidents  of  navigation  (as  by  a  jam  of 
logs)  must  be  compensated,  see  Grand  Rapids  Co.  v.  Jarvis,  30  Mich.  308, 
316-320  (1S74).  Of  course  a  non-navigable  stream  cannot  be  rendered  naviga- 
ble for  public  use  without  compensation.  Morgan  v.  King,  35  N.  Y.  454,  91 
Am.  Dec.   58   (1866). 

In  Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25  L.  Ed.  336  (1879)  it  was  held 
no  compensation  need  be  made  for  temporarily  obstructing  a  riparian  own- 
er's access  to  navigable  water  by  a  coffer-dam  used  in  constructing  a  street 
tunnel  under  the  Chicago  river.  "Acts  done  in  the  proper  exercise  of  gov- 
ernmental powers,  and  not  directly  encroaching  upon  private  property,  though 
their  consequences  may  impair  its  use,  are  universally  held  not  to  be  a  tak- 
ing."—Strong.  J.,  99  U.  S.  642,  25  L.  Ed.  336.  See  note,  post,  p  770.  under 
Omaha,  etc.,  Ry.  v.  Cable  Co. 

Is  a  bridge  across  a  stream,  which  relieves  it  of  much  water  traffic,  an  "im- 
provement of  navigation,"  so  that  compensation  need  not  be  made  to  the 
uwner  of  the  bed  of  the  stream  for  placing  the  abutments  therein?  See  Stock- 
ton v.  Bait.  &  O.  Ry.  (C.  C.)  32  Fed.  9,  20  (18S7). 

Compensation  foe  Franchises  Used  in  Connection  with  Property 
Taken. — As  to  the  necessity  of  making  compensation  for  these,  see  Mononga- 
hela, etc.,  Co.  v.  United  States,  148  U.  S.  312,  13  Sup.  Ct.  622,  37  L.  Ed.  463 
.1.893),  post,  p.  955  [but  see  Lewis  Oyster  Co.  v.  Briggs,  229  U.  S.  82,  89-90, 
33  Sup.  Ct.  679,  57  L.  Ed.  —  (1913)] ;  Newburyport  Water  Co.  v.  City,  168 
.Mass.  541,  47  N.  E.  533  (1897) ;  Gloucester  Water  Co.  v.  City,  179  Mass.  365, 
60  N.  E.  977  (1901) ;  Kennebec  Dist  v.  Waterville,  97  Me.  185,  54  Atl.  6,  60 
L.  R.  A.  856  (1902);  Brunswick,  etc.,  Dist  v.  Maine  Water  Co.,  99  Me.  371, 
r.9   Atl.  537  (1904). 

What  is  the  legal  effect  of  a  grant  by  Congress  of  the  right  to  bridge  a 
nlvigable  stream,  without  reserving  a  right  of  repeal?  See  U.  S.  v.  Balti- 
more &  O.  R.  Co.,  229  U.  S.  244,  33  Sup.  Ct  850,  57  L   Ed. (1913). 


Chi  V~)  EMINENT    DOMAIN 

through  the  lands  in  question,  and  the  construction  on  that  right  of 
way  of  a  bridge  across  Rob  Roy  creek  at  the  point  in  question,  car- 
ried with  it  a  surrender  by  the  state  of  its  power,  by  appropriate 
agencies,  to  provide  for  such  use  of  that  natural  water  course  as  might 
subsequently  become  necessary  or  proper  for  the  public  interests.  If 
the  state  could  part  with  such  power,  held  in  trust  for  the  public, — 
which  is  by  no  means  admitted, — it  has  not  done  so  in  any  statute. 
cither  by  express  words  or  by  necessary  implication.  When  the  rail- 
way company  laid  the  foundations  of  its  bridge  in  Rob  Roy 
it  did  so  subject  to  the  rights  of  the  public  in  the  use  of  that  water 
course,  and  also  subject  to  the  possibility  that  new  circumstances  and 
future  public  necessities  might,  in  the  judgment  of  the  state,  reason- 
ably require  a  material  change  in  the  methods  used  in  crossing  the 
creek  with  cars.  It  may  be — and  we  take  it  to  be  true — that  the  open- 
ing under  the  bridge  as  originally  constructed  was  sufficient  to  pass 
all  the  water  then  or  now  flowing  through  the  creek.  But  the  duty  of 
the  company,  implied  in  law,  was  to  maintain  an  opening  under  the 
bridge  that  would  be  adequate  and  effectual  for  such  an  increase  in 
the  volume  of  water  as  might  result  from  lawful,  reasonable  regula- 
tions established  by  appropriate  public  authority  from  time  to  time 
for  the  drainage  of  lands  on  either  side  of  the  creek.  Angell,  Water 
Courses  (6th  Ed.)  §  465b,  p.  640. 

"The  supreme  court  of  Illinois  said  in  this  case:  'The  right  of 
drainage  through  a  natural  water  course  or  a  natural  water  way  is  a 
natural  easement,  appurtenant  to  the  land  of  every  individual  through 
whose  land  such  natural  water  course  runs,  and  every  owner  of  land 
along  such  water  course  is  obliged  to  take  notice  of  the  natural  ease- 
ment possessed  by  other  owners  along  the  same  water  course.'  Again, 
in  the  same  case :  'Where  lands  are  valuable  for  cultivation,  and  the 
country,  as  this,  depends  so  much  upon  agriculture,  the  public  wel- 
fare demands  that  the  lands  shall  be  drained ;  and,  in  the  absence  of 
any  constitutional  provision  in  relation  to  such  laws  they  have  been 
sustained,  upon  high  authority,  as  the  exercise  of  the  police  power.' 
Further :  'A  natural  water  course,  being  a  natural  easement,  is  placed 
upon  the  same  ground,  in  many  respects  as  to  the  public  right,  as  is 
a  public  highway.  At  the  common  law,  if  a  railroad  or  another  high- 
way crosses  a  natural  water  course  or  a  public  highway,  such  high- 
way or  railroad  must  be  so  constructed  across  the  existing  highway 
or  waterway,  and  so  maintained,  that  said  highway  or  waterway,  as 
the  case  may  be,  shall  not  only  subserve  the  demands  of  the  public  as 
they  exist  at  the  time  of  crossing  the  same,  but  for  all  future  time. 
*  *  *  The  great  weight  of  authority  is,  that  where  there  is  a  nat- 
ural water  way,  or  where  a  highway  already  exists  and  is  crossed  by 
a  railroad  company  under  its  general  license  to  build  a  railroad,  and 
without  any  specific  grant  by  the  legislative  authority  to  obstruct  tin- 
highway  or  water  way,  the  railroad  company  is  bound  to  make  ami 


736  FUNDAMENTAL    RIGHTS  (Part  2 

keep  its  crossing,  at  its  own  expense,  in  such  condition  as  shall  meet 
all  the  reasonable  requirements  of  the  public  as  the  changed  condi- 
tions and  increased  use  may  demand.'     *     *     * 

"The  recent  case  of  New  Orleans  Gaslight  Co.  v.  Drainage  Commis- 
sion, 197  U.  S.  453,  49  L.  Ed.  831,  25  Sup.  Ct.  471,  *  *  *  would 
seem  to  be  decisive  of  the  question  before  us.  It  there  appeared  that 
a  gas  company  had  acquired  an  exclusive  right  to  supply  gas  to  the 
city  of  New  Orleans  and  its  inhabitants  through  pipes  and  mains  laid 
in  the  streets.  In  the  exercise  of  that  right  it  had  laid  its  pipes  in 
the  streets.  Subsequently  a  drainage  commission,  proceeding  under 
statutory  authority,  devised  a  system  of  drainage  for  the  city,  and  in 
the  execution  of  its  plans  it  became  necessary  to  change  the  location 
in  some  places  of  the  mains  and  pipes  laid  by  the  gas  company.  The 
contention  of  that  company  was  that  it  could  not  be  required,  at  its 
own  cost,  to  shift  its  pipes  and  mains  so  as  to  accommodate  the  drain- 
age system ;  that  to  require  it  to  do  so  would  be  a  taking  of  its  prop- 
erty for  public  use  without  compensation,  in  violation  of  the  Con- 
stitution of  the  United  States.  This  court  said:  'The  gas  company 
did  not  acquire  any  specific  location  in  the  streets;  it  was  content 
with  the  general  right  to  use  them;  and  when  it  located  its  pipes  it 
was  at  the  risk  that  they  might  be,  at  some  future  time,  disturbed, 
when  the  state  might  require,  for  a  necessary  public  use,  that  changes 
in  location  be  made.  *  *  *  There  is  nothing  in  the  grant  to  the 
gas  company,  even  if  it  could  legally  be  done,  undertaking  to  limit  the 
right  of  the  state  to  establish  a  system  of  drainage  in  the  streets.  We 
think  whatever  right  the  gas  company  acquired  was  subject,  in  so  far 
as  the  location  of  its  pipes  was  concerned,  to  such  further  regulations 
as  might  be  required  in  the  interest  of  the  public  health  and  wel- 
fare.'    *     *     * 

"The  duty  of  the  company  will  end  when  it  removes  the  obstruc- 
tions which  it  has  placed  in  the  way  of  enlarging,  deepening,  and  wid- 
ening of  the  channel.  It  follows,  upon  principles  of  justice,  that 
while  the  expense  attendant  upon  the  removal  of  the  present  bridge 
and  culvert  and  the  timbers  and  stones  placed  by  the  company  in  the 
creek,  as  well  as  the  expense  of  the  erection  of  any  new  bridge  which 
the  company  may  elect  to  construct  in  order  to  conform  to  the  plan 
of  the  commissioners,  should  be  borne  by  the  railway  company,  the 
expense  attendant  merely  upon  the  removal  of  soil  in  order  to  en- 
large, deepen,  and  widen  the  channel  must  be  borne  by  the  district."1 
[Holmes,  White  and  McKenna,  JJ.,  dissented  from  compelling 
the  railroad  to  pay  for  the  removal  of  its  present  bridge,  and  Brewer, 
J.,  dissented  upon  all  points.] 

i  Accord :  Manigault  v.  Springs,  ante,  p.  721  (plaintiff's  access  to  naviga- 
tion impaired  in  order  to  drain  lowlands).    Compare  JacUson  v.  U.  S.,  230  U. 

S.  1,  33  Sup.  Ct,  1011,  57  L.  Ed. (1913)  (levees  in  one  place  causing  flood 

ing  elsewhere). 


Ch.  12)  EMINKNT    DOMAIN  7^7 

CHENANGO  BRIDGE  CO.  v.  PAIGE  (1880)  S3  N.  Y.  178,  185. 
186,  38  Am.  Rep.  407,  Earl,  J.  (holding  that  a  private  bridge  could 
be  lawfully  erected  across  a  navigable  fresh-water  stream,  it  not  in- 
terfering with  navigation  in  fact,  nor  being  prohibited  by  the  legisla- 
ture) : 

"The  Chenango  river  is  a  fresh  water  stream.     It  is  the  private 
property  of  the  riparian  owners.     The  public,  in  such  streams,  have 
an  easement  only  for  navigation  and  for  floating  logs  and  timber.     A 
well  said  in  Ex  parte  Jennings,  6  Cow.  518,  16  Am.  Dec.  447:    'The 
public  right  is  one  of  passage,  and  nothing  more,  as  in  a  common  high- 
way.   It  is  called  by  the  cases  an  easement ;   and  the  proprietor  has  a 
right  to  use  the  land  and  water  of  the  river  in  any  way  not  inconsistent 
with  this  easement.     If  he  make  any  erection  rendering  the  passage 
of  boats,  etc.,  inconvenient  or  unsafe,  he  is  guilty  of  a  nuisance;   and 
this  is  the  only  restriction  which  the  law  imposes  upon  him.'     And 
when  the  case  between  these  two  bridge  companies  was  first  before 
this  court  (26  How.  Prac.   124\  Judge  Smith,  in  an  opinion  v 
by  him,  said :    'The  Chenango  river  is  a  fresh  water  stream,  in  which 
the  tide  does  not  ebb  and  flow,  and  is,  therefore,  a  private  river.    The 
riparian  proprietors   own  the  bed  and   banks.     As   early  as    1 
was  declared  a  public   highway,  but  subject  to  the  public  ev. 
for  the  purpose  of  navigation.     The  riparian  owners  might  make  such 
use  of  it  as  they  pleased:    might  bridge  and  dam  it,  except  as  pro- 
hibited by  acts  of  the  legislature,  and  might  cross  it  with  ferries,  ex- 
cept as  so  forbidden.' 

"The  legislature,  except  under  the  power  of  eminent  domain,  upon 
making  compensation,  can  interfere  with  such  streams  only  for  the 
purpose  of  regulating,  preserving  and  protecting  the  public  casement. 
Further  than  that,  it  has  no  more  power  over  these  fresh  water 
streams  than  over  other  private  property.  It  may  make  laws  for 
regulating  booms,  dams,  ferries,  and  bridges,  only  so  far  as  is  nec- 
essary to  protect  and  preserve  the  public  easement ;  and  when  it  goes 
further,  it  invades  private  rights  protected  under  the  Cons' 
Canal  Com'rs  v.  People,  5  Wend.  423,  44S ;  Fenn  v.  Wheeling 
mont  Bridge  Co.,  18  How.  421,  432,  15  L.  Ed.  435;  Morgan  v.  King. 
35  X.  Y.  454,  91  Am.  Dec.  58. 

"Any  person  owning  the  land  upon  both  sides  of  such  a  river  can 
maintain  a  ferry  or  bridge  or  dam  for  his  own  use,  provided  he 
does  it  so  as  not  to  interfere  with  the  public  easement,  without  any 
authority  from  the  legislature,  and  even  in  defiance  of  a  legislative 
prohibition.  In  such  case  he  would  but  be  making  a  proper  use  of 
his  own  property.  Such  use  must,  however,  be  such  as  not  to  inter- 
fere with  the  rights  of  other  riparian  owners.  And  there  is  oi 
limitation:    He  cannot,  without  legislative  authority,  maintain  a  bridge 

H  M  I    I  iONST.L. IT 


738  FUNDAMENTAL    RIGHTS  (Part  2 

or  ferry  for  public  and  general  use,  because  public  highways  and  toll 
bridges  and  toll  ferries  are  subject  to  legislative  regulation  and  con- 
trol." 1 


MINNEAPOLIS  MILL  COMPANY  v.  BOARD  OF  WATER 
COMMISSIONERS  OF  ST.  PAUL. 

(Supreme  Court  of  Minnesota,  1894.     56  Minn.  485,  5S  N.  W.  33.) 

Collins,  J.  These  cases  were  tried  together  in  the  court  below, 
and,  when  plaintiffs  (appellants  here)  rested,  both  actions  were  dis- 
missed, upon  defendant's  motion.  From  orders  refusing  new  trial, 
appeals  were  taken.  Appellants  are  corporations  created  in  1856  by 
acts  of  the  territorial  legislature,  and  authorized  to  build  and  maintain 
dams  in  the  Mississippi  river  at  the  falls  of  St.  Anthony,  about  10  miles 
above  St.  Paul,  for  the  development  of  a  water  power,  and  for  the 
use  and  sale  of  such  power.  One  of  these  corporations,  owning  the 
shore  on  the  east  side  of  the  river,  erected  a  dam  to  the  proper  point 
in  the  river  channel,  and  the  other,  owning  the  east  shore,  built  its 
dam  so  as  to  connect  the  two,  thus  forming  a  power  which  has  ever 
since  been  maintained  and  used.  In  1SS3  the  legislature  authorized 
the  city  of  St.  Paul  to  purchase,  and  there  was  purchased,  the  prop- 
erty and  franchises  of  a  private  corporation  theretofore  engaged  in 
supplying  said  city  with  water.  A  board  of  water  commissioners  was 
created  by  the  same  act,  and  that  board,  a  branch  of  the  city  govern- 
ment, is  the  present  respondent.     *     *     * 

Under  [statutory  authority]  the  respondent  duly  established  a 
pumping  station  at  Lake  Baldwin,  a  body  of  water  with  an  area  less 
than  a  mile  square,  and  by  means  of  its  pumps  forced  water  through 
conduits  to  the  city  for  public  use.  The  outlet  of  this  lake  is  Rice 
creek,  and  this  creek  empties  into  the  Mississippi  river  a  few  miles 
above  the  dams  built  and  maintained  by  appellants.  Claiming  that 
the  result  of  this  diversion  of  water  was  to  greatly  diminish  the  vol- 
ume which  came  to  the  dam,  and  to  materially  affect  and  reduce  the 
water  power,  appellants  brought  these  actions  to  restrain  and  en- 
join perpetually  the  operation  of  respondent's  works  at  the  lake,  and 
the  diversion  of  water  therefrom. 

Counsel  for  both  parties  made  lengthy  oral  arguments,  and  have 
filed  very  full  briefs.     Many  questions  have  been  discussed  which  we 

i  Accord :  Ex  parte  Jennings,  6  Cow.  537,  10  Am.  Dec.  447  (1S2G)  (diver- 
sion of  water  to  canal);  Smith  v.  Rochester,  92  N.  T.  463,  44  Am.  Rep.  393 
(18S3)  (diversion  to  supply  city — citing  cases) ;  Emporia  v.  Soden.  25  Kan. 
5S8,  37  Am.  Rep.  265  (1SS1)  (same) ;  Mayor  of  Baltimore  v.  Appold,  42  Md. 
442  (1S75)  (artificially  increasing  flow  of  stream);  Piatt  v.  Waterbury,  72 
Conn.  531,  45  Atl.  154,  48  L.  R.  A.  691,  77  Am.  St.  Rep.  335  (1900)  (pollution 
by  city  sewage);  Ballance  v.  Peoria,  180  111.  29,  54  N.  E.  428  (1S99)  (bridge 
pier  in  stream). 


Ch.  12)  EMINENT    DOMAIN  739 

do  not  regard  as  connected  with  the  case,  and  hence  we  need  not  refer 
to  them.  There  are  a  few  well-settled  principles  which  we  regard  as 
covering  and  controlling  the  facts  before  us,  and  a  statement  of  these, 
with  a  construction  of  certain  parts  of  the  act  under  which  re 
cut's  board  was  authorized  to  obtain  further  and  other  sources  of 
water  supply,  will  dispose  of  these  appeals. 

1.  The  appellants  are  riparian  owners  on  a  navigable  or  public 
stream,1  and  their  rights  as  such  owners  are  subordinate  to  public 
uses  of  the  water  in  the  stream.  And  their  rights  under  their  char- 
ters are,  equally  with  their  rights  as  riparian  owners,  subordinate  to 
these  public  uses. 

2.  There  can  be  no  doubt  but  that  the  public,  through  their  repre- 
sentatives, have  the  right  to  apply  these  waters  to  such  public  uses 
without  providing  for  or  making  compensation  to  riparian  owners. 

3.  The  navigation  of  the  stream  is  not  the  only  public  use  to  which 
these  public  waters  may  be  thus  applied.  The  right  to  draw  from 
them  a  supply  of  water  for  the  ordinary  use  of  cities  in  their  vicinity 
is  such  a  public  use,  and  has  always  been  so  recognized.  At  the 
present  time  it  is  one  of  the  most  important  public  rights,  and  is 
daily  growing  in  importance  as  population  increases.  The  fact  that 
the  cities,  through  boards  of  commissioners  or  officers  whose  func- 
tions are  to  manage  this  branch  of  the  municipal  government,  charge 
consumers  for  water  used  by  them,  as  a  means  for  paying  the  cost 
and  expenses  of  maintaining  and  operating  the  plant,  or  that  such 
consumers  use  the  water  for  their  domestic  and  such  other  purposes 
as  water  is  ordinarily  furnished  by  city  waterworks,  does  not  affect 
the  real  character  of  the  use,  or  deprive  it  of  its  public  nature. 

4.  In  thus  taking  water  from  navigable  streams  or  lakes  for  such 
ordinary  public  uses,  the  power  of  the  state  is  not  limited  or  controlled 
by  the  rules  which  obtain  between  riparian  owners  as  to  the  diversion 
from,  and  its  return  to,  its  natural  channels.  Once  conceding  that 
the  taking  is  for  a  public  use,  and  the  above  proposition  naturally  fol- 
lows.    *     *     * 

Order  affirmed. * 

[Gilfillan,  C.  J.,  did  not  sit.] 

i  In  Minnesota  the  title  to  the  bed  of  navigable  streams  Is  In  the  state. 
Union  Depot,  etc.,  Co.  v.  Brunswick.  31  Minn.  297,  17  X.  \V.  686,  17  Am  Bep. 
789  (1883). 

2  Affirmed  in  168  U.  S.  349,  IS  Sup.  Ct.  L57,  I'J  I..  Ed,  107  (1897).  Accord: 
Rundle  v.  Delaware,  etc.,  Co.,  14  How.  80,  11  I..  Ed.  835  (1852)  .diversion 
of  water  for   eaual  and   power);     \\  itu]  Reservoir   Co.   v.   Fall    Itr. 

Mass.  548,  18  X.   B.   465,   I  L.    it.   A.  466   (1888)    (same  to  supply  eity    water.  ; 
Auburn  v.  Uuion  Co.,  90  Me.  676,  38    I  "    A.  'ss  (1897) 

Marcus  Sayre  ('<>.  v.  Newark,  60  X.  J.  Eq.  361,  45  Atl.  ;ts.-.  (1899)  (pollution 

by  city  sewage);    state  v.  Sunaj Dam  I  o    70  V  n.   158.   161,  50  AH.   l"s 

59  L.  R.  A  55    L900)  (lowering  lake) ;    People  v.  Canal  Appraiser 
(1865)  (dl  canal),  the  M<  I  Budson  rivers  in  New  lork  be- 

ing governed  by  the  Dutch  civil  law,  under  which  their  valleys  ■ 

while   other    waters    in    He-   State    are  t    to    the    "common-law" 


740  FUNDAMENTAL    RIGHTS  (Part  2 

NEVINS  v.  PEORIA  (1866)  41  111.  502,  508-511,  89  Am.  Dec. 
392,  Lawrence,  J.  (holding  the  city  of  Peoria,  111.,  liable  in  damages 
to  an  owner  of  land  abutting  on  a  street,  the  grade  of  which  had  been 
so  altered  by  the  city  as  to  flood  said  land  with  mud  and  water  after 
each  heavy  rain  and  to  cause  the  formation  near  by  of  an  unhealthful, 
stagnant  pond) : 

"That  a  city  has  absolute  control  over  the  grade  of  its  streets,  that 
it  can  make  the  grade  light  or  heavy,  that  it  can  elevate  or  lower  it  at 
pleasure,  and  that  the  owners  of  adjacent  lots  cannot  call  it  to  ac- 
count for  errors  of  judgment  in  these  respects,  or  demand  damages 
because  they  may  incur  inconvenience  or  expense  in  adjusting  the 
level  of  their  own  premises  to  that  of  the  street,  for  the  purpose  of 
ingress  and  egress,  are  propositions  not  to  be  denied.1  The  city  is 
the  owner  of  the  streets,  and  the  legislature  has  given  it  power  to 
grade  them.  But  it  has  no  more  power  over  them  than  a  private  in- 
dividual has  over  his  own  land,  and  it  cannot,  under  the  specious  plea 
of  public  convenience,  be  permitted  to  exercise  that  dominion  to  the 
injury  of  another's  property  in  a  mode  that  would  render  a  private 
individual  responsible  in  damages,  without  being  responsible  itself. 
Neither  state  nor  municipal  government  can  take  private  property  for 
public  use  without  due  compensation,  and  this  benign  provision  of 
our  Constitution  is  to  be  applied  by  the  courts  whenever  the  property 
of  the  citizen  is  invaded,  and  without  reference  to  the  degree.  We 
can  solve  more  easily  and  safely  questions  of  this  character  if  we 
take  pains  to  free  our  minds  from  the  false  notion  that  a  municipality 
has  some  indefinable  element  of  sovereign  power  which  takes  from  the 
property  of  the  citizen,  as  against  its  aggressions,  the  protection  en- 
joyed against  the  aggressions  of  a  natural  person.  Let  us  see  then 
what  are  the  rights  of  coterminous  land  owners  as  against  each  other. 

"A  man  cannot  do  anything  upon  his  own  soil,  under  the  plea  of 
Ownership,  which  amounts  to  a  nuisance  and  works  injury  to  his 
neighbor,  but  within  that  limit  he  may  do  whatever  his  whim  may 

Chenaugo  Bridge  Co.  v.  Paige,  ante,  p.  737.  See  Smith  v.  Rochester,  92  N. 
Y.  4U3,  4-1  Am.  Eep.  393  (1883). 

Interference  with  Surface  and  Underground  Waters. — Causing  surface 
water  to  flow  or  collect  upon  the  land  of  another  in  a  manner  actionable  be- 
tween private  owners,  whether  caused  by  diversion  or  obstruction,  is  gen- 
erally  hold  to  be  a  "taking"  within  the  principle  of  Pumpelly  v.  Green  Bay 
Co.,  13  Wall.  16G,  181,  20  L.  Ed.  557  (1871)  (quoted  ante,  p.  719).  There  are 
great  differences  in  the  law  of  private  rights  respecting  this,  however,  in  the 
various  states.  See  1  Lewis,  Em.  Dom.  (3d  Ed.)  §§  110-113.  Similarly,  an  in- 
terference with  underground  or  percolating  waters,  actionable  between  pri- 
vate owners,  is  not  privileged  when  caused  on  behalf  of  the  public.  See  For- 
bell  v.  New  York,  164  N.  Y.  522,  58  N.  E.  644,  51  L.  R.  A.  695,  79  Am.  St. 
Rep.  666  (1900) ;  Erickson  v.  Crookston  Waterworks  Co.,  100  Minn.  481, 
111  N.  W.  391,  9  L.  R.  A.  (N.  S.)  1250,  10  Ann.  Cas.  843  (1907)  (citing  cases). 

i  Important  early  cases  establishing  this  doctrine  were  Cast  Plate  Mfrs.  v. 
Meredith,  4  Durnf.  &  E.  794  (1792) ;  Callender  v.  Marsh,  1  Pick.  418  (1823) ; 
Radcliff's  Excrs.  v.  Mayor,  4  N.  Y.  195,  53  Am.  Dec.  357  (1850). 


Ch.  12)  EMINENT    DOMAIN  741 

dictate.  He  may  excavate  to  any  depth,  or  raise  the  surface  to  any 
height,  and  the  neighboring  owner  has  no  right  to  complain,  because 
his  enjoyment  of  his  own  lot  is  not  thereby  prejudiced.  Even  if  a 
building  erected  by  me  near  the  boundary  of  my  lot  is  injured  or  en- 
dangered by  an  excavation  made  by  my  neighbor  in  his  premises,  I 
cannot  complain,  because  I  have  no  right  to  the  use  of  his  soil  for 
the  support  of  my  building.  Whether  he  has  a  right  to  excavate  in 
such  manner  as  to  cause  the  soil  itself  to  fall  from  my  lot  into  his,  is 
a  question  upon  which  the  authorities  are  not  agreed.  Comyn's  Dig. 
Action  on  the  Case  for  Nuisance,  C:  2  Rolle's  Ab.  Trespass,  I,  pi.  1  : 
Partridge  v.  Scott,  3  Mees.  &  W.  220;  Peyton  v.  Mayor,  etc.,  of  f.on- 
don.  9  B.  &  C.  725 ;  Thurston  v.  Hancock,  12  Mass.  220,  7  Am.  Dec 
57;  Wyatt  v.  Harrison,  3  B.  &  Ad.  871  ;  Lasala  v.  Ilolbrook,  4  Paige 
(N.  Y.)  169,  25  Am.  Dec.  524;  Radcliff  v.  Mayor,  etc.,  4  N.  Y.  196. 
53  Am.  Dec.  357.' 

"This  rule  arises  from  the  principle,  that  one  may  do  what  he 
thinks  proper  with  his  own  land,  and  I  have  no  right  to  build  my 
house  in  such  a  situation  as  to  require  the  land  of  my  neighbor  for 
its  support.  The  same  rule  applies  to  corporations.  A  city  owns  the 
streets  for  the  use  of  the  public,  and  has  the  right  to  grade  them  in 
any  manner  the  representatives  of  the  public  may  deem  conducive 
to  its  interests.  It  is  not  liable  for  errors  of  judgment,  and  if  in  the 
process  of  grading  it  leaves  private  property  many  feet  below  or  many 
feet  above  the  surface  of  the  street,  it  is  free  from  all  claim  for  dam- 
ages on  this  account,  for  precisely  the  same  reason  that  a  private  per- 
son is  exempt  under  similar  circumstances. 

"But  suppose  my  neighbor,  in  excavating  or  elevating  his  lot,  turn- 
a  stream  of  water  which  passes  through  his  ground,  so  as  to  cause 
it  to  pass  through  mine.  Here  the  law  gives  me  an  action,  for,  by 
means  of  this  stream,  he  has  virtually  entered  upon  my  premises  an<i 
deprived  me,  to  that  extent,  of  their  use.  The  difference  between  this 
and  the  other  case  is  palpable.  In  that  case  my  possession  and  en 
joyment  of  my  lot  were  not  disturbed,  except  through  my  own  folly 
in  building  my  house  when  it  would  rei  uire  my  neighbor's  soil  to 
support  it.  But  in  this  instance  I  am  prejudiced  in  the  enjoyment  of 
my  lot  in  its  natural  condition  and  without  any  agency  of  my  own. 
This  enjoyment  the  law  secures  to  me.  My  neighbor  has  no  men 
right  to  send  a  stream  of  water  through  my  premises,  than  he  has  to 
come  upon  them  in  person-  and  dig  a  ditch,  or  deposit  upon  ' 
mound  of  earth.  3  Kent's  Com.  p.  440.  But  the  law  goes  further 
than  this.     My  neighbor  has  not  the  right  to  excavate  his  soil  in  such 

<>  Though  the  right  of  lateral  support  obtains  generally  between  adjoining 
private  owners,   there  la  a   aharj  '   authority 

against  the  public  in  grading  sir'. -is.    See  Stearns  v.  Richmond,  83   Vi 
14  s.  ':.  847,  'J'.i  Am.  si.  Rep.  t ■■     !  •  ralcotl  7.  Des  Moines,  134 

113,  109  X.  W.  311,   120  Am.  St.  Rep. 
in  12  L.  R.  A.  (N.  SI  696  IT.     Most  "f  the  later  eases  favor  it 


742  FUNDAMENTAL    RIGHTS  (Part  2 

manner  as  to  create  a  stagnant  and  offensive  pond,  so  near  my  prem- 
ises as  to  be  a  private  nuisance  by  rendering  my  house  unhealthy.  He 
cannot  use  his  property  for  a  purpose  that  will  prevent  my  enjoyment 
of  mine.    3  Blackst.  Com.  217. 

"The  same  law  that  protects  my  right  of  property  against  invasion 
by  private  individuals,  must  protect  it  from  similar  aggression  on  the 
part  of  municipal  corporations.  A  city  may  elevate  or  depress  its 
streets,  as  it  thinks  proper,  but  if,  in  so  doing,  it  turns  a  stream  of 
mud  and  water  upon  the  grounds  and  into  the  cellars  of  one  of  its 
citizens,  or  creates  in  his  neighborhood  a  stagnant  pond  that  brings 
disease  upon  his  household,  upon  what  ground  of  reason  can  it  be 
insisted,  that  the  city  should  be  excused  from  paying  for  the  injuries 
it  has  directly  wrought?"' 


SAUER  v.  CITY  OF  NEW  YORK. 

(Supreme  Court  of  United  States,  1907.     206  U.   S.  536,  27  Sup.  Ct.  6S6,  51 
L.  Ed.  1176.) 

[Error  to  the  New  York  Supreme  Court,  upon  a  judgment  for  de- 
fendant, affirmed  by  the  Appellate  Division  and  the  Court  of  Appeals, 
and  then  remitted  to  the  Supreme  Court  of  the  state  for  final  judg- 
ment. The  plaintiff  owned  land  and  buildings  upon  155th  street  in 
New  York  City,  one  end  of  which  street  was  closed  by  a  steep  bluff 
70  feet  high.  To  connect  this  street  with  the  streets  at  the  top  of 
the  bluff,  the  city  constructed  a  viaduct  above  the  surface  of  155th 
street,  running  with  a  gradual  ascent  to  the  top  of  the  bluff,  and  de- 
voted solely  to  ordinary  street  traffic  by  teams,  vehicles,  and  pedes- 
trians. Opposite  plaintiff's  land  the  viaduct  was  50  feet  high,  63  feet 
wide,  and  came  within  10  feet  of  his  building.  The  viaduct  and  its 
supporting  columns  materially  impaired  the  light,  air,  and  access 
plaintiff's  land  enjoyed  from  the  street.  Other  facts  appear  in  the 
opinion.] 

Mr.  Justice  Moody.  *  *  *  The  plaintiff,  in  his  complaint,  al- 
leged that  this  structure  was  unlawful,  because  the  law  under  which 
it  was  constructed  did  not  provide  for  compensation  for  the  injury 
to  his  private  property  in  the  easements  of  access,  light,  and  air,  ap- 
purtenant to  his  estate.  The  court  of  appeals  denied  the  plaintiff  the 
relief  which  he  sought,  upon  the  ground  that,  under  the  law  of  New 
York,  he  had  no  easements  of  access,  light,  or  air,  as  against  any 
improvement  of  the  street  for  the  purpose  of  adapting  it  to  public 
travel.  In  other  words,  the  court  in  effect  decided  that  the  property 
alleged  to  have  been  injured  did  not  exist.     The  reasons  upon  which 

3  As  to  public  liability  for  the  diversion  of  surface  water,  see  note  to  Min- 
neapolis Mill  Co.  v.  Water  Com'rs,  ante,  p.  740.  Illinois  is  one  of  the  states 
following  the  so-called  "civil-law"  rule.  See  Gould.  Waters  (3d  Ed.)  §§  265, 
266. 


Ch.  12)  EMINENT    DOMAIN 

the  decision  of  that  court  proceeded  will  appear  by  quotations  from 
the  opinion  of  the  court,  delivered  by  Judge  Haight.  Judge  Haight 
said: 

"The  fee  of  the  street  having  been  acquired  according  to  the  provi- 
sions of  the  statute,  we  must  assume  that  full  compensation  was  made 
to  the  owners  of  the  lands  tlirough  which  the  streets  and  avenues 
were  laid  out,  and  that  thereafter  the  owners  of  lands  abutting  li 
hold  their  titles  subject  to  all  of  the  legitimate  and  proper  uses  to 
which  the  streets  and  public  highways  may  be  devoted.  As  such 
owners  they  are  subject  to  the  right  of  the  public  to  grade  and  im- 
prove the  streets,  and  they  are  presumed  to  have  been  compensated 
for  any  future  improvement  or  change  in  the  surface  or  grade  ren- 
dered necessary  for  the  convenience  '<f  public  travel,  especially  in 
cities  where  the  growth  of  population  increases  the  use  of  the  high 
ways.1  The  rule  may  be  different  as  to  peculiar  and  extraordinary 
changes  made  for  some  ulterior  purposes  other  than  the  improvement 
of  the  street,  as,  for  instance,  where  the  natural  surface  has  been 
changed  by  artificial  means,  such  as  the  construction  of  a  railroad 
embankment,  or  a  bridge  over  a  railroad,  making  elevated  approaches 
necessary.  But  as  to  changes  from  the  natural  contour  of  the  sur- 
face, rendered  necessary  in  order  to  adapt  the  street  to  the  free  and 
easy  passage  of  the  public,  they  may  be  lawfully  made  without  addi- 
tional compensation  to  abutting  owners,  and  for  that  purpose  bridges 
may  be  constructed  over  streams  and  viaducts  over  ravines,  with  ap- 
proaches thereto  from  intersecting  streets."     *     *     * 

The  plaintiff  now  contends  that  the  judgment  afterwards  rendered 
by  the  supreme  court  of  New  York,  in  conformity  with  the  opinion  of 
the  court  of  appeals,  denied  rights  secured  to  him  by  the  federal  Con- 
stitution. This  contention  presents  the  only  question  for  our  deter- 
mination, and  the  correctness  of  the  principles  of  local  land  law  ap- 
plied by  the  state  courts  is  not  open  to  inquiry  here,  unless  it  has 
some  bearing  upon  that  question.  But  it  may  not  be  inappropriate  to 
say  that  the  decision  of  the  court  of  appeals  seems  to  be  in  full  ac- 

'  "Highways     •     •     •     are  to  be  considered  ns  purchased  by  the  pi 
him  who  Owned  the  soil,  and  by  the  purchase  the  right  is  acquired  of  doing 
everything  wiih  the  soil  over  which  the  pa  -liieh  may  render  it 

safe  and  convenient;  and  he  who  sells  may  claim  damages,  not  only  on  ac- 
count of  the  value  of  the  land  taken,  but  for  the  diminution  of  the  value  ol 
the  adjoining  lots,  calculating  upon  the  future  probable  reduc 
tion  of  a  street  or  read:  and  all  this  is  a  proper  subject  for  the  inquiry  of 
those  who  arc  authorised  t"  lay  out.  or  of  a  jury,  Lf  the  parlies  should  de- 
mand one.     And  he  who  purchasi  I  for  the  POT] 

n  them,  is  bound  to  consider  the  contingencies  which  may  be 

Parker,  0.  J.,  in  Gall ter  v.  Marsh,  l   P 

(1823).    As  to  the  application  of  this  presumption  to  of  lateral  sup 

port,  compare  Talcott  v.  Dea  Mi  ■        •  N.  W.  311,   12 

L.  It.  A.  i.V  Si  696,   120  Am.  St.   Rep.   119  (19071    and  1  Lewis,  Km.  D 
Ed.)  S  126,     \s  to  the  duty  of  sui  b  si  e  abutter  by  a 

railroad  condemnation,  see  Manning  V.    Now  Jersey   Short   Line   li.   C 
J.   Law.  349,  7n  Atl.  200,  32  L.  U.   A    (N.  S.) 


744  fundamental  rights  (Part  2 

cord  with  the  decisions  of  all  other  courts  in  which  the  same  question 
has  arisen.  The  state  courts  have  uniformly  held  that  the  erection 
over  a  street  of  an  elevated  viaduct,  intended  for  general  public 
travel,  and  not  devoted  to  the  exclusive  use  of  a  private  transportation 
corporation,  is  a  legitimate  street  improvement,  equivalent  to  a  change 
of  grade ;  and  that,  as  in  the  case  of  a  change  of  grade,  an  owner  of 
land  abutting  on  the  street  is  not  entitled  to  damages  for  the  impair- 
ment of  access  to  his  land  and  the  lessening  of  the  circulation  of  light 
and  air  over  it.  Selden  v.  Jacksonville,  28  Fla.  558,  14  L.  R.  A.  370, 
29  Am.  St.  Rep.  278,  10  South.  457;  Willis  v.  Winona  City,  59  Minn. 
27,  26  L.  R.  A.  142,  60  N.  W.  814;  Colclough  v.  Milwaukee,  92  Wis. 
182,  65  N.  W.  1039;  Walish  v.  Milwaukee,  95  Wis.  16,  69  N.  W. 
818;  Home  Bldg.  &  Conveyance  Co.  v.  Roanoke,  91  Va.  52,  27  L.  R. 
A.  551,  20  S.  E.  895  (cited  with  apparent  approval  by  this  court  in 
Meyer  v.  Richmond,  172  U.  S.  82-95,  43  L.  Ed.  374-379,  19  Sup. 
Ct.  106) ;  Willets  Mfg.  Co.  v.  Mercer  County,  62  N.  J.  Law,  95,  40 
Atl.  782 ;  Brand  v.  Multnomah  County,  38  Or.  79,  50  L.  R.  A.  389,  84 
Am.  St.  Rep.  772,  60  Pac.  290,  62  Pac.  209;  Mead  v.  Portland,  45 
Or.  1,  76  Pac.  347  (affirmed  by  this  court  in  200  U.  S.  148,  50  L. 
Ed.  413,  26  Sup.  Ct.  171);  Sears  v.  Crocker,  184  Mass.  588,  100  Am. 
St.  Rep.  377,  69  N.  E.  327;  (semble)  De  Lucca  v.  North  Little  Rock 
(C.  C.)  142  Fed.  597. 

The  case  of  Willis  v.  Winona  is  singularly  like  the  case  at  bar  in 
its  essential  facts.  There,  as  here,  a  viaduct  was  constructed,  con- 
necting by  a  gradual  ascent  the  level  of  a  public  street  with  the  level 
of  a  public  bridge  across  the  Mississippi.  An  owner  of  land  abutting 
on  the  street  over  which  the  viaduct  was  elevated  was  denied  com- 
pensation for  his  injuries,  Mr.  Justice  Mitchell  saying: 

"The  bridge  is  just  as  much  a  public  highway  as  is  Main  street, 
with  which  it  connects;  and,  whether  we  consider  the  approach  as  a 
part  of  the  former  or  of  the  latter,  it  is  merely  a  part  of  the  highway. 
The  city  having,  as  it  was  authorized  to  do,  established  a  new  high- 
way across  the  Mississippi  river,  it  was  necessary  to  connect  it,  for 
purposes  of  travel,  with  Main  and  the  other  streets  of  the  city.  This 
it  has  done,  in  the  only  way  it  could  have  been  done,  by  what,  in  ef- 
fect, amounts  merely  to  raising  the  grade  of  the  center  of  Main  street 
in  front  of  plaintiff's  lot.  It  can  make  no  difference  in  principle 
whether  this  was  done  by  filling  up  the  street  solidly,  or.  as  in  this 
case,  by  supporting  the  way  on  stone  or  iron  columns.  Neither  is  it 
important  if  the  city  raise  the  grade  of  only  a  part  of  the  street,  leav- 
ing the  remainder  at  a  lower  grade.     *     *     * 

"The  doctrine  of  the  courts  everywhere,  both  in  England  and  in 
this  country  (unless  Ohio  and  Kentucky2  are  exceptions),  is  that  so 

2  See  Crawford  v.  Delaware,  7  Ohio  St.  459  (1857) ;  Akron  v.  Chamberlain 
Co.,  34  Ohio  St.  328,  32  Am.  Rep.  367  (1S7S) ;  Louisville  v.  Rolling  Mill  Co., 
3  Bush  (Ky.)  416,  96  Am.  Dec.  243  (1867).  See,  also,  Hamilton  Co.  v.  Rape. 
101  Tenn.  222,  47  S.  W.  416  (1S9S). 


Ch.  12)  EMINK.NT    DOMAIN  745 

long  as  there  is  no  application  of  the  street  to  purposes  other  than 
those  of  a  highway,  any  establishment  or  change  of  grade  made  law- 
fully, and  not  negligently  performed,  does  not  impose  an  additional 
servitude  upon  the  street,  and  hence  is  not  within  the  constitutional 
inhibition  against  taking  private  property  without  compensation,  and 
is  not  the  basis  for  an  action  for  damages,  unless  there  be  an  express 
statute  to  that  effect.  That  this  is  the  rule,  and  that  the  facts  of  this 
case  fall  within  it,  is  too  well  established  by  the  decisions  of  this  court 
to  require  the  citation  of  authorities  from  other  jurisdictions.    *    *    * 

"The  New  York  elevated  railway  cases  cited  by  plaintiff  are  not 
authority  in  his  favor,  for  they  recognize  and  affirm  the  very  doctrine 
that  we  have  laid  down  (Story  v.  New  York  Elev.  R.  Co.,  90  N.  V 
122,  43  Am.  Rep.  146),  but  hold  that  the  construction  and  maintenance 
on  the  street  of  an  elevated  railroad  operated  by  steam,  and  which 
was  not  open  to  the  public  for  purposes  of  travel  and  traffic,  was  a 
perversion  of  the  street  from  street  uses,  and  imposed  upon  it  an 
additional  servitude,  which  entitled  abutting  owners  to  dam- 
ages."    *     *     * 

Has  the  plaintiff  been  deprived  of  his  property  without  due  process 
of  law?  The  viaduct  did  not  invade  the  plaintiff's  land.  It  was  en- 
tirely outside  that  land.  But  it  is  said  that  appurtenant  to  the  land 
there  were  easements  of  access,  light,  and  air,  and  that  the  construc- 
tion and  operation  of  the  viaduct  impaired  these  easements  to  such 
an  extent  as  to  constitute  a  taking  of  them.  The  only  question  which 
need  here  be  decided  is  whether  the  plaintiff  had,  as  appurtenant  to 
his  land,  easements  of  the  kind  described;  in  other  words,  wdiether 
the  property  which  the  plaintiff  alleged  was  taken  existed  at  all.  The 
court  below  has  decided  that  the  plaintiff  had  no  such  easements: 
in  other  words,  that  there  was  no  property  taken.  It  is  clear  that, 
under  the  law  of  New  York,  an  owner  of  land  abutting  on  the  street 
has  easements  of  access,  light,  and  air  as  against  the  erection  of  an 
elevated  roadway  by  or  for  a  private  corporation  for  its  own  exclu- 
sive purposes,  but  that  he  has  no  such  easements  as  against  the  pub- 
lic use  of  the  streets,  or  any  structures  which  may  be  erected  upon 
the  street  to  subserve  and  promote  that  public  use.  The  same  law 
which  declares  the  easements  defines,  qualifies,  and  limits  them. 
Surely  such  questions  must  be  for  the  final  determination  of  the  state 
court.  It  has  authority  to  declare  that  the  abutting  landowner  has 
no  easement  of  any  kind  over  the  abutting  street ;  it  may  determine 
that  he  has  a  limited  easement:  or  it  may  determine  that  he  has  an 
lalified  easement.  The  r i l; h t  of  an  owner  of  land 
abutting  on  pub  He  highways  has  been  a  fruitful  source  of  litigation 
in  the  courts  of  all  the  states,  and  the  decisions  have  been  con 
and  often  in  the  same  state  irreconcilable  in  principle.  The  courts 
have  modified  or  overruled  their  own  de  I  each  state  has  in 

the  end  fixed  and  limited,  by  leg]  lation  or  judicial  decision,  the  rie,h'v 
of  abutting  owners  in  accordance  with  its  own  view  of  the  law  and 


746  FUNDAMENTAL    RIGHTS  (Part    2 

public  policy.  As  has  already  been  pointed  out,  this  court  has  neither 
the  right  nor  the  duty  to  reconcile  these  conflicting  decisions  nor  to 
reduce  the  law  of  the  various  states  to  a  uniform  rule  which  it  shall 
announce  and  impose.  Upon  the  ground,  then,  that  under  the  law 
of  New  York,  as  determined  by  its  highest  court,  the  plaintiff  never 
owned  the  easements  which  he  claimed,  and  that  therefore  there  was 
no  property  taken,  we  hold  that  no  violation  of  the  fourteenth  amend- 
■  ment  is  shown. 

The  remaining  question  in  the  case  is  whether  the  judgment  under 
review  impaired  the  obligation  of  a  contract.  It  appears  from  the 
cases  to  be  cited  that  the  courts  of  New  York  have  expressed  the 
rights  of  owners  of  land  abutting  upon  public  streets  to  and  over 
those  streets  in  terms  of  contract  rather  than  in  terms  of  title.  In  the 
city  of  New  York  the  city  owns  the  fee  of  the  public  streets  (whether 
laid  out  under  the  civil  law  of  the  Dutch  regime,  or  as  the  result  of 
conveyances  between  the  city  and  the  owners  of  land,  or  by  condemna- 
tion proceedings  under  the  statutory  law  of  the  state)  upon  a  trust 
that  they  shall  forever  be  kept  open  as  public  streets,  which  is  re- 
garded as  a  covenant  running  with  the  abutting  land.  Accepting,  for 
the  purposes  of  this  discussion,  the  view  that  the  plaintiff's  rights 
have  their  origin  in  a  contract,  then  it  must  be  that  the  terms  of  the 
trust  and  the  extent  of  the  resulting  covenant  are  for  the  courts  of 
New  York  finally  to  decide  and  limit,  providing  that  in  doing  so  they 
deny  no  federal  right  of  the  owner.  The  plaintiff  asserts  that  the 
case  of  Story  v.  New  York  Elev.  R.  Co.,  90  N.  Y.  122,  43  Am.  Rep. 
146,  decided  in  18S2,  four  years  before  he  acquired  title  to  the  prop- 
erty, interpreted  the  contract  between  the  city  of  New  York  and  the 
owners  of  land  abutting  upon  its  streets  as  assuring  the  owner  ease- 
ments of  access,  light,  and  air,  which  could  not  lawfully  be  impaired 
by  the  erection  on  the  street  of  an  elevated  structure  designed  for 
public  travel ;  that  he  is  entitled  to  the  benefit  of  his  contract  as  thus 
interpreted,  and  that  the  judgment  of  the  court  denying  him  its  bene- 
fits impaired  its  obligation.  If  the  facts  upon  which  this  claim  is 
based  are  accurately  stated,  then  the  case  comes  within  the  authority 
of  Muhlker  v.  New  York  &  H.  R.  Co.,  197  U.  S.  544,  49  L.  Ed.  872, 
25  Sup.  Ct.  522,  which  holds  that,  when  the  court  of  appeals  has  once 
interpreted  the  contract  existing  between  the  landowner  and  the  city, 
that  interpretation  becomes  a  part  of  the  contract,  upon  which  one 
acquiring  land  may  rely,  and  that  any  subsequent  change  of  it  to  his 
injury  impairs  the  obligation  of  the  contract.     *     *     * 

The  plaintiff  in  the  Story  Case  held  the  title  to  land  injuriously  af- 
fected by  the  construction  of  an  elevated  railroad,  as  a  successor  to  a 
grantee  from  the  city.  In  the  deed  of  the  city  the  land  was  bounded 
on  the  street  and  contained  a  covenant  that  it  should  "forever  there- 
after continue  and  be  for  the  free  and  common  passage  of,  and  as 
public  streets  and  ways  for,  the  inhabitants  of  the  said  city,  and  all 
others  passing  and  returning  through  or  by  the  same,  in  like  manner 


C'h.  12)  EMINENT    DOMAIN  717 

as  the  other  streets  of  the  same  city  now  are,  or  lawfully  ought  to  be." 
It  was  held  that  by  virtue  of  this  covenant,  which  ran  with  the  land, 
the  plaintiff  was  entitled  to  casements  in  the  street  of  access,  and  of 
free  and  uninterrupted  passage  of  light  and  air;  that  the  easements 
were  property  within  the  meaning  of  the  Constitution' of  the  state, 
and  could  not  lawfully  be  taken  from  their  owner  without  compensa- 
tion, and  that  the  erection-  of  the  elevated  structure  was  a  taking. 
The  decision  rested  upon  the  view  that  the  erection  of  an  el 
structure  for  railroad  purposes  was  not  a  legitimate  street  use. 
"There  is  no  change,"  said  Judge  Danforth  (page  156),  "in  the  street 
surface  intended ;  but  the  elevation  of  a  structure  useless  for  general 
street  purposes,  and  as  foreign  thereto  as  the  house  in  Vesey  street 
(^Corning  v.  Lowerre,  6  Johns.  Ch.  439)  or  the  freight  depot  (Barnev 
v.  Keokuk,  94  U.  S.  324,  24  L.  Ed.  224)." 

"The  question  here  presented,"  said  Judge  Tracy  (p.  174,  Am.  Rep. 
p.  156),  "is  not  whether  the  legislature  has  the  power  to  regulate  and 
control  the  public  uses  of  the  public  streets  of  the  city,  but  whether 
it  has  the  power  to  grant  to  a  railroad  corporation  authority  to  take- 
possession  of  such  streets  and  appropriate  them  to  uses  inconsistent 
with  and  destructive  of  their  continued  use  as  open  public  streets  of 
the  city."  [Here  follow  quotations  to  the  same  effect  from  Lahr 
v.  Elev.  R.  Co.,  104  N.  Y.  268,  10  N.  E.  528,  and  Kane  v.  Elev. 
R.  Co.,  125  N.  Y.  164,  26  N.  E.  278,  11  L.  R.  A.  640  holding  that 
even  apart  from  express  covenant,  New  York  City  owned  the  fee  of 
all  streets  upon  a  statutory  trust  that  they  should  be  kept  open  as 
public  streets.]     *     *     * 

It  would  be  difficult  for  words  to  show  more  clearly  than  those 
quoted  from  the  opinions  that  such  a  case  as  that  now  before  us  was 
not  within  the  scope  of  the  decisions  or  of  the  reasons  upon 
they  were  founded.  The  difference  between  a  structure  erected  for 
the  exclusive  use  of  a  railroad  and  one  erected  for  the  general  use  of 
the  public  was  sharply  defined.  It  was  only  the  former  which  the 
court  had  in  view.  That  the  structure  was  elevated,  and  for  that 
reason  affected  access,  light,  and  air,  was  an  important  element  in  the 
decisions,  but  it  was  not  the  only  essential  element.  The  structures 
in  these  cases  were  held  to  violate  the  landowners'  ri  it  only 

because  they  were  elevated  and  thereby  >t,  and 

air.  but  also  because  they  were  designed  for  the  exclusive  and  per- 
manent use  of  private  corporations.     The  limitation  of  tl 
the  decision  to  such  structures,  erected  for  such  purposes, 
only  in  the  decisions  themselves,  but  quite  clearly   from   sub- 
decisions  of  the  court  of  appeals.     In  the  case  of  Fobes  v.  Rome,  W. 
&  O.  R.  Co.,  121  N.  Y.  505,  8  L.  R.  A.  453,  24  X.  E.  919.  Judge  Peck- 
ham,  now    Mr,   Justice    Pcckham,   made  the    following  statement    of 
the  effect  of  the  Story  Case.    Certain  portions  of  it  are  italicized  here 
for  the  purpose  of  emphasizing  the  point  now  under  consideration: 

"It  was  not  intended  in  the  Story  Case  to  overrule  or  change  the 


748  FUNDAMENTAL    EIGHTS  (Part  2 

law  in  regard  to  steam  surface  railroads.  The  case  embodied  the 
application  of  what  was  regarded  as  well-established  principles  of 
law  to  a  new  combination  of  facts,  such  facts  amounting,  as  was  de- 
termined, to  an  absolute  and  permanent  obstruction  in  a  portion  of 
the  public  street,  and  in  a  total  and  exclusive  use  of  such  portion 
by  the  defendant,  and  such  permanent  obstruction  and  total  and  ex- 
clusive use,  it  was  further  held,  amounted  to  a  taking  of  some  por- 
tion of  the  plaintiff's  easement  in  the  street  for  the  purpose  of  fur- 
nishing light,  air,  and  access  to  his  adjoining  lot.  This  absolute  and 
permanent  obstruction  of  the  street,  and  this  total  and  exclusive  use 
of  a  portion  thereof  by  the  defendant  were  accomplished  by  the  erec- 
tion of  a  structure  for  the  elevated  railroad  of  defendant;  which 
structure  is  fully  described  in  the  case  as  reported. 

"The  structure,  by  the  mere  fact  of  its  existence  in  the  street,  per- 
manently and  at  every  moment  of  the  day  took  away  from  the  plaintiff 
some  portion  of  the  light  and  air  which  otherwise  would  have  reached 
him,  and,  in  a  degree  very  appreciable,  interfered  with  and  took  away 
from  him  his  facility  of  access  to  his  lot;  such  interference  not  be- 
ing intermittent  and  caused  by  the  temporary  use  of  the  street  by  the 
passage  of  the  vehicles  of  the  defendant  while  it  was  operating  its 
road  through  the  street,  but  caused  by  the  iron  posts  and  by  the  super- 
structure imposed  thereon,  and  existing  for  every  moment  of  the  day 
and  night.  Such  a  permanent,  total,  exclusive,  and  absolute  appro- 
priation of  a  portion  of  the  street  as  this  structure  amounted  to  was 
held  to  be  illegal  and  wholly  beyond  any  legitimate  or  lawful  use  of 
a  public  street.  The  taking  of  the  property  of  the  plaintiff  in  that 
case  was  held  to  follow  upon  the  permanent  and  exclusive  nature  of 
the  appropriation  by  the  defendant  of  the  public  street,  or  of  some 
portion  thereof."  * 

»  The  same  view  is  taken  of  a  subway  exclusively  for  rapid  transit,  even 
though  owued  or  operated  by  the  city  itself,  as  against  the  abutting  owner 
of  the  street  fee. 

"The  subway  occupies  a  part  of  the  street  which,  although  beneath  the  sur- 
face, might,  by  proper  construction  and  change  of  grade,  be  used  for  ordi- 
nary highway  purposes,  and  traveled  upon  freely,  without  license  or  recom- 
pense, by  persons  using  their  own  vehicles  or  their  own  methods  of  trans- 
portation. The  occupation  by  the  subway  and  its  trains  of  cars  is  exclusive, 
for  no  one  may  enter  either  without  payment  of  fare.  Highways  are  free 
and  open  to  all  the  people;  the  subway  is  not.  Highways  are  for  the  ex- 
clusive use  of  none;  the  subway  is  for  the  exclusive  use  of  one.  Highways 
are  for  travel  by  means  under  the  exclusive  control  of  the  traveler;  the  sub- 
way is  for  travel  by  means  under  the  exclusive  control  of  its  owner  or  op- 
erator." — Matter  of  Rapid  Transit  K.  R.  Com'rs,  197  N.  T.  81,  99,  90  N.  E. 
450,  401.  S  Ann.  Gas.  300  (1909),  by  Vann,  J.  And  so  of  the  approaches  to  a 
public  toll  bridge  owned  by  a  private  corporation.  Willamette  Iron  Works 
v.  Oregon  Ev.  &  Nav.  Co.,  26  Or.  224,  37  Pac.  1016,  29  L.  R.  A.  SS,  46  Am. 
St  Rep.  620  (1894). 

Contra  (holding  railway  embankments  and  elevated  structures  in  streets  to 
be  no  taking  of  abutter's  street  easements) :    Murphy  v.  Chicago,  29  111.  279. 
81  Am.  Dec.  307  (1862);    Doane  v.  Lake  St.  Ry..  165  111.  510.  517-518 
E.  520.  36  L.  R.  A.  97,  56  Am.   St.  Rep.  265  (1S97) ;    Garrett  v.  Lake  Roland 
Ky.,  79  Md.  277,  29  AtL  S30,  24  L.  R.  A.  396  (1S94).     See,  also,  Chicago  v. 


Ch.  12)  EMINENT    DOMAIN  749 

The  distinction  between  the  erection  of  an  elevated  structure  for 
the  exclusive  use  of  a  private  corporation  and  the  same  structure  for 
the  use  of  public  travel  is  clearly  illustrated  in  the  contrast  in  the 
decisions  of  Reining  v.  New  York,  L.  &  W.  R.  Co.,  128  N*.  Y.  157, 
14  L.  R.  A.  133,  28  N.  E.  640,  and  Talbot  v.  New  York  &  H.  R.  Co., 
151  N.  Y.  155,  45  N.  E.  382.  In  the  first  case  it  was  held  that  the 
abutting  landowner  had  the  right  to  compensation  for  the  construction 
of  a  viaduct  in  the  street  for  the  practically  exclusive  occupation  of 
a  railroad.  In  the  second  case  it  was  held  that  the  abutting  owner 
had  no  right  of  compensation  for  the  erection  of  a  public  bridge  with 
inclined  approaches  and  a  guard  wall,  to  carry  travel  over  a  railroad, 
although  the  structure  impaired  the  access  to  his  land.4     *     *     * 

The  trust  upon  which  streets  are  held  is  that  they  shall  be  devoted 
to  the  uses  of  public  travel.  When  they,  or  a  substantial  part  of 
them,  are  turned  over  to  the  exclusive  use  of  a  single  person  or  cor- 
poration, we  see  no  reason  why  a  state  court  may  not  hold  that  it  is 
a  perversion  of  their  legitimate  uses,  a  violation  of  the  trust,  and  the 
imposition  of  a  new  servitude.  But  the  same  court  may  consistently 
hold  that  with  the  acquisition  of  the  fee,  and  in  accordance  with  the 
trust,  the  city  obtained  the  right  to  use  the  surface,  the  soil  below,  and 
the  space  above  the  surface,  in  any  manner  which  is  plainly  designed  to 
promote  the  ease,  facility,  and  safety  of  all  those  who  may  desire  to 
travel  upon  the  streets;  and  that  the  rights  attached  to  the  ad 
land,  or  held  by  contract  by  its  owner,  are  subordinate  to  such  uses. 
whether  they  were  foreseen  or  not  when  the  street  was  laid  out.  In 
earlier  and  simpler  times  the  surface  of  the  streets  was  enough  to 
accommodate  all  travel.  But  under  the  more  complex  conditions  of 
modern  urban  life,  with  its  high  and  populous  buildings,  and  its  rapid 
interurban  transportation,  the  requirements  of  public  travel  are  largely 
increased.  Sometimes  the  increased  demands  may  be  met  by  subways 
and  sometimes  by  viaducts.  The  construction  of  either  solely  for  pub- 
lic travel  may  well  be  held  by  a  state  court  to  be  a  reasonable  adapta- 
tion of  the  streets  to  the  uses  for  which  they  were  primarily  de- 
signed. What  we  might  hold  on  these  questions  where  we  had  full 
jurisdiction  of  the  subject,  it  is  not  necessary  here  even  to  cons 

In  basing  its  judgment  on  the  broad,  plain,  and  approved  distinc- 
tion between  the  abandonment  of  the  street  to  private  uses  and  its 
further  devotion  to  public  uses,  the  court  below  overruled  none  of 
its  decisions,  but,  on  the  contrary,  acted  upon  the  principles  which 
they  clearly  declared.  The  plaintiff,  therefore,  has  not  shown  that  in 
his  case  the  state  court  has  changed,  to  his  injury,  the  interpr 

Ramsey,  ^7  ni.  848  (1877) 

fee,  Bears  »   C    *k<  r,  184  Mass,  586,  69  N.  E.  327,  100  Am.  St  Rei    57 
'And  so  Rauensteln  v.  X.  Y..  etc.,  R.  R.,   I       N.  v.  528,  .".'J  N    E. 
I.,   n.  a.  768  (1893).    Compare  Buchner  v.  i 
X.  W.  273  (1882),   60  Wis.  264,   19   N     W  -  . 

R.,  72  Wis.  i"i.  171,  i(i  x  w.  145  re  abutter  owned  fee  In  Btreet 


750  FUNDAMENTAL    RIGHTS  (Part    2 

of  his  contract  with  the  city,  which  it  had  previously  made,  and  upon 
which  he  had  the  right  to  rely.     *     *     * 

Judgment  affirmed." 

[McKenna,  J.,  gave  a  dissenting  opinion,  in  which  Day,  J.,  con- 
curred.] 


FOBES  v.  ROME,  W.  &  O.  R.  CO.  (1890)  121  N.  Y.  505,  512- 
516,  24  N.  E.  919,  8  L.  R.  A.  453,  Peckham,  J.  (holding  that  an  abut- 
ting landowner,  having  no  fee  in  the  street,  could  recover  no  com- 
pensation for  damages  due  to  a  steam  surface  railway  in  the  street) : 

"For  many  years  prior  to  the  decision  of  the  case  of  Story  v. 
Railroad  Co.,  90  N.  Y.  122,  43  Am.  Rep.  146,  I  think  the  law  was 
that  a  duly-incorporated  railroad  company,  having  authority  from 
the  state  to  build  its  road,  and  laying  its  tracks  and  operating  its  road 
through  and  upon  the  surface  of  the  streets  of  a  city  under  the  pro- 
tection of  a  license  from  such  city,  took  thereby  no  portion  of  the 
property  of  an  individual  who  owned  land  adjoining  the  street,  but 
bounded  by  its  exterior  line.  The  company  was  therefore  not  liable 
to  such  an  owner  for  any  consequential  damages  to  his  adjoining 
property  arising  from  a  reasonable  use  of  the  street  for  railroad  pur- 
poses, not  exclusive  in  its  nature,  and  substantially  upon  the  same 
grade  as  the  street  itself,  and  leaving  the  passage  across  and  through 
the  street  free  and  unobstructed  for  the  public  use.  *  *  *  [Here 
are  stated  and  discussed  Drake  v.  Hudson  River  R.  R.,  7  Barb.  508. 
and  Williams  v.  N.  Y.  C.  R.  R.,  16  N.  Y.  97,  69  Am.  Dec.  651,  con- 
cerning steam  railroads,  and  Wager  v.  T.  U.  R.  R.,  25  N.  Y.  526,  and 
People  v.  Kerr,  27  N.  Y.  188,  concerning  horse  street  railways.] 

"I  think  there  is  no  authority  in  this  court  which  holds  that  there 
is  any  real  difference  between  a  railroad  operated  by  horse-power,  and 
one  operated  by  the  power  of  steam,  in  the  streets  of  the  city.  If 
the  legislature  can  authorize  the  one,  it  can,  under  the  same  circum- 
stances, authorize  the  other.  I  refer  to  railroads  on  the  same  grade 
as  the  street  itself,  and  where  the  chief  difference  lies  in  the  different 
motive  powers  which  are  used. 

"In  Craig  v.  Railroad,  39  N.  Y.  404,  it  was  held  that  the  owner  of 
a  lot  on  a  street,  who  owned  the  fee  thereof  subject  only  to  the  public 
easement  for  a  street,  was  entitled  to  compensation  for  the  new  and 
additional  burden  upon  the  land  so  used  as  a  street  by  the  erection  of 
even  a  horse  railroad  thereon.1     In  this  case,  Judge  Miller  said  he 

5  See  Bohm  v.  Met.  Kiev.  Ry.,  post,  p.  779. 

1  In  this  case  Miller,  J.,  said  (pages  410,  -111) :  "The  use  of  a  railroad,  no 
matter  how  it  is  operated,  whether  hy  horse  or  steam  power,  necessarily  in- 
cludes, to  a  certain  extent,  an  exclusive  occupation  of  a.  portion  of  the  high- 
way, for  the  track  of  the  road,  and  the  running  of  its  cars  by  the  company, 
and  a  permanent  occupation  of  the  soil.  It  requires  that  all  other  parties 
shall  stand  aside,  and  make  way  for  its  progress.  This  is  clearly  inconsist- 
ent with  the  legal  object  and  design  of  a   highway,  which  is  entirely  open 


Ch.  12)  EMINENT    DOMAIN  731 

saw  no  distinction  in  the  application  of  the  rule  between  cases  of 
steam  and  cases  of  horse  power,  in  Kellinger  v.  Railroad  Co.,  50  N. 
Y.  206,  it  is  held  that  one  who  did  not  own  the  fee  of  the  street  could 
not  recover  damages  for  inconvenience  of  access  to  his  adjoining  lands 
caused  by  the  lawful  erection  of  a  street  railroad  through  the  street. 
By  these  last  two  decisions,  it  is  seen  that  to  construct  even  a 
horse  railroad  in  a  city  street  is  to  place  a  new  and  additional  burden 
upon  the  land,  the  right  to  do  which  does  not  exist  by  reason  of  the 
general  right  of  passage  through  the  street;  but,  if  the  adjoining 
owner  of  land  is  not  the  owner  of  the  fee  in  the  street,  and  the  rail- 
road company  has  obtained  the  proper  authority,  he  has  no  right  to 
compensation  for  such  added  burden,  nor  to  complain  of  such  use 
so  long  as  it  is  not  exclusive  or  excessive.  The  same  reasoning  ap- 
plies, as  we  have  seen,  in  the  case  of  a  steam  surface  railroad.  Such 
a  use  of  the  streets  would  be  an  additional  burden  upon  the  land;  and. 
of  course,  if  the  adjoining  owner  had  title  in  fee  to  the  center  of  the 
street,  subject  only  to  the  public  easement,  he  would  have  a  right  of 
action,  as  held  by  the  Williams  and  other  cases,  while,  if  he  did  not, 
no  such  right  would  exist  in  his  favor  merely  because  it  was  a  steam 
instead  of  a  horse  railroad  which  was  to  be  constructed.  The  au- 
thority of  the  law,  and  the  consent  of  the  city,  would  be  enough  to 
authorize  the  building  of  either;  and  the  difference  between  the 
steam  and  the  horse  railroad  would  not  be  one  of  such  a  nature  as  to 
require  or  permit  any  difference  in  the  decision  of  the  iwo  cases.  If 
the  use  of  either  became  unreasonable,  excessive,  or  exclusive,  or  such 
as  not  to  leave  the  passage  of  the  street  substantially  free  and  un- 
obstructed, then  such  excessive,  improper,  or  unreasonable  use  would 
be  enjoined,  and  the  adjoining  owner  would  be  entitled  to  recover 
damages  sustained  by  him  therefrom  in  his  means  of  access,  etc.,  to 
Ins  land.  Mahady  v.  Railroad  Co.,  91  N.  Y.  149,  43  Am.  Rep. 
661.     *     *     * 

"It  was  not  intended  in  the  Story  Case  to  overrule  or  change  the 
law  in  regard  to  steam  surface  railroads."  * 

and  tree  to  all,  for  purposes  of  locomotive  travel  and  transportation.  The 
enjoyment  of  the  easement  in  a  highway  never  confers  an  exclusive  right 
upon  anj  one  who  nmy  have  occasion  t<>  use  it.  while  the  laying  down  of 
calls  and  the  employment  of  ears  is  to  the  detriment  and  a  of  all 

others  at  the  time  when  the  ears  are  running,  and  a  restraint  upon  a  free. 
undisturbed,  and  general  public  use." 

*  See  Spencer  v.  Toint  Pleasant  &  Ohio  It.  R..  23  W.  Va.  406  (1884),  tor 
an  elaborate  discussion  of  the  effect  of  the  abutter's  ownership  of  the  fee  In 
the  street,  wheo  the  street  is  used  bj  a  COD  aercial  railroad.  Many  of  the 
older  decisions  held  steam  railroads  DO  additional  harden  on  the  fee.  See  1 
Lewis,  Eminent  Domain  (3d  Ed.)  5  lot,  note  31,  collecting  cases. 


"52  FUNDAMENTAL    EIGHTS  (Part  2 

ADAMS  v.  CHICAGO,  B.  &  N.  R.  CO. 

(Supreme  Court  of  Minnesota,  1S8S.    39  Minn.  286.  39  N.  W.  629,  1  L.  R.  A, 
493,  12  Am.  St.  Rep.  644.) 

[Appeal  by  defendant  from  an  order  of  the  Winona  county  district 
court  refusing  a  new  trial.  Plaintiff  owns  as  his  residence  a  lot  abut- 
ting on  the  south  side  of  a  street  in  Winona,  70  feet  wide.  Defend- 
ant, under  legislative  authority,  has  constructed  and  operates  an  or- 
dinary commercial  railroad  upon  the  north  half  of  the  street  in  front 
of  plaintiff's  lot.  Plaintiff's  access  is  not  impaired,  but  his  light  and 
air  are  injuriously  affected  as  a  result  of  operating  the  railroad  in  an 
ordinary  and  prudent  manner.  The  lower  court  ordered  judgment 
for  plaintiff  for  damage  to  the  rental  value  of  his  premises  up  to 
the  commencement  of  the  action.] 

Gilfillan,  C.  J.  *  *  *  It  is  well  settled  that  where  there  is 
no  taking  of,  or  encroachment  on,  one's  property  or  property  rights 
by  the  construction  and  operating  of  a  railroad,  any  inconveniences 
caused  by  it,  as  from  noises,  smoke,  cinders,  etc.,  not  due  to  improper 
construction,  or  negligence  in  operating  it,  furnish  no  ground  of  ac- 
tion.    *     *     * 

The  plaintiff  does  not  claim  to  own  the  land  in  the  street  which  the 
company  has  taken  for  its  road,  but  claims  only  a  right  or  interest  in 
the  nature  of  an  easement  in  it  appurtenant  to  his  lot.  *  *  *  The 
main  question  in  the  case  is,  Has  the  owner  of  a  lot  abutting  on  a 
public  street  a  right  or  interest  in  the  street  opposite  his  lot,  as  ap- 
purtenant to  his  lot,  and  independent  of  his  ownership  of  the  soil  of 
the  street,  and,  if  so,  what  is  that  right  or  interest?  If  he  has,  and 
the  acts  of  the  defendant  in  constructing  and  operating  its  railroad 
along  that  part  of  the  street  opposite  plaintiff's  lot  prevents  or  im- 
pairs his  enjoyment  of  such  right  or  interest,  then  he  has  a  right  to 
recover. 

We  find  a  great  many  cases  in  which  is  stated,  in  general  terms, 
the  proposition  that,  although  the  fee  of  the  street  be  in  the  state  or 
municipality,  the  owner  of  an  abutting  lot  has,  as  appurtenant  to  his 
lot,  an  interest  or  easement  in  the  street  in  front  of  it,  which  is  en- 
tirely distinct  from  the  interest  of  the  public.  Railroad  Co.  v.  Heisel, 
38  Mich.  62,  31  Am.  Rep.  306;  Railroad  Co.  v.  Applegate,  8  Dana 
(Ky.)  294,  33  Am.  Dec.  497;  Railroad  Co.  v.  Combs,  10  Bush  (Ky.) 
382,  19  Am.  Rep.  67;  Haynes  v.  Thomas,  7  Ind.  3S;  Protzman  v. 
Railroad  Co.,  9  Ind.  467,  6S  Am.  Dec.  650 ;  Stone  v.  Railroad  Co.,  6S 
111.  394,  IS  Am.  Rep.  556;  Tate  v.  Railroad  Co.,  7  Ind.  479;  Lack- 
land v.  Railroad  Co.,  31  Mo.  180;  Railroad  Co.  v.  Cumminsville,  14 
Ohio  St.  523;  Railroad  Co.  v.  Lawrence,  38  Ohio  St.  41,  43  Am. 
Rep.  419 ;  Crawford  v.  Village  of  Delaware,  7  Ohio  St.  459 ;  Denver 
v.  Bayer,  7  Colo.  113,  2  Pac.  6;  Rensselaer  v.  Leopold,  106  Ind.  29, 
5  N.  E.  761.     In  38  Mich.  62,  31  Am.  Rep.  306,  the  supreme  court 


Ch.  12)  emim:m    domain  783 

states  it  thus:  "Every  lot-owner  has  a  peculiar  interest  in  the  ad- 
jacent street  which  neither  the  local  nor  general  public  can  pretend  to 
claim;  a  private  right  in  the  nature  of  an  incorporeal  hereditament, 
legally  attached  to  his  contiguous  ground ;  an  incidental  title  to  certain 
facilities  and  franchises  which  is  in  the  nature  of  property,  and  which 
can  no  more  he  appropriated  against  his  will  than  any  tangible  prop- 
erty of  which  he  may  be  owner."  Although  the  proposition  was  ap 
parently  stated  with  care  and  upon  deliberation,  it  seems  to  us  (and 
we  say  it  with  diffidence,  because  of  the  eminent  character  of  that 
court)  that  the  decision  of  the  case  was  a  departure  from  the  doctrine 
thus  laid  down,  (and  the  same  may  be  said  of  several  of  the  cases 
referred  to.)  For  where  the  railroad  was  laid  upon  a  part  of  the 
street  opposite  the  party's  lot,  of  which  part  he  did  not  own  the  fee. 
it  denied  his  right  to  recover  for  damages  caused  to  his  lot  incidental 
to  a  proper  operating  of  the  railroad,  and  limited  it  to  cases  where 
the  acts  of  the  company,  of  omission  or  commission,  amounted  to  a 
nuisance.  As  the  lot-owner  can  recover  for  a  private  nuisance,  com- 
mitted by  the  improper  operation  of  a  railroad,  even  on  the  com- 
pany's own  land,  in  which  he  has  no  interest,  ^Railroad  Co.  v.  Church. 
108'U.  S.  317,  2  Sup.  Ct.  719,  27  L.  Ed.  739)  it  would  seem  as  though, 
if  he  is  in  no  better  plight  in  respect  to  the  company's  acts  in  the 
street,  his  "peculiar  interest,"  distinct  from  that  of  the  public,  in  the 
street,  is  of  very  little  value.  His  title  to  his  interest  in  the  street 
is  precarious,  if  authority  from  the  state  or  municipality  may  justify 
what  would  without  such  authority  be  a  private  wrong  as  to  him. 
None  of  the  cases  we  have  referred  to,  nor  any  till  we  come  to  what 
are  known  as  the  "Elevated  Railway  Cases,"  attempt  to  define  the 
limits  and  extent  of  the  right  of  an  abutting  lot-owner  in  the  street 
opposite  his  lot,  where  he  does  not  own  the  fee.  That  it  extends  to 
purposes  of  ingress  and  egress  to  and  from  his  lot  is  conceded  by  all. 
And  for  this  purpose  it  may  extend  beyond  the  part  of  the  street 
directly  in  front;  for,  as  we  have  seen,  an  action  by  him  will  lie  for 
obstructing  the  street,  away  from  his  lot,  so  as  to  cut  off  or  materially 
interfere  with  his  only  access  to  it. 

The  questions  are  asked,  how  does  the  lot-owner  gel  an  easement 
in  the  street?  *  *  *  In  the  case  of  dedication  after  it  has  be- 
come perfect,  the  abutting  lot-owners  arc  presumed  to  act  with  re- 
spect to  their  lots  on  the  faith  of  it  as  they  are  also  in  case  of  con- 
demnation. Suppose  one  buys  a  piece  of  land  fronting  on  a  public 
street,  or  suppose  he  improves  it.  say  by  erecting  buildings  with  refer 
ence  to  use  in  connect  ion  with  the  street,  would  it  not  be  a  fraud  on 
him  to  afterwards  close  the  street?  Xot  only  do  the  abutting  lot- 
pwners  pay  for  all  the  advantages  which  the  street  may  furnish  to 
their  lots  in  the  enhanced  price  of  the  lots,  hut,  in  ca-es  of  condemna 
tion,  their  lots  are  liable  to  be,  and  are  usually,  specially  taxed  to  pay 
the  whole  cost  of  the  land  taken;    and,  whether  the  street  be  estah- 

HALL  C0N6T.Ii. — -IS 


I  54  FUNDAMENTAL    RIGHTS  (Part    2 

lished  by  dedication  or  condemnation,  the  abutting  lots  are  liable  to 
be  and  are  usually  specially  taxed  for  the  whole  cost  of  putting  and 
keeping  it  in  proper  condition  for  public  use.  It  would  be  hard  to 
justify  the  imposition  of  these  taxes  on  them  instead  of  on  the  pub- 
lic at  large,  if  their  owners  have  no  other  interest  in  or  advantage 
from  the  street  beyond  the  public  at  large,  or  if  such  interest  or  ad- 
vantage is  of  so  precarious  a  tenure  that  they  may  at  any  time  be 
deprived  of  it.1 

It  is,  however,  hardly  necessary  to  inquire  how  the  lot-owner  gets 
his  private  right  in  the  street;  for  it  is  established  law  that  he  has  a 
private  right,  which,  as  we  have  stated,  all  the  cases  concede  extends 
to  the  necessity  of  access.  Access  to  the  lot  is  only  one  of  the  direct 
advantages  which  the  street  affords  to  it.  In  a  city  densely  peopled 
and  built  up,  the  admission  of  light  and  air  into  buildings  is  about  as 
important  to  their  proper  use  and  enjoyment  as  access  to  them.  Light 
and  air  are  largely  got  from  the  open  space  which  the  streets  afford. 
What  reason  can  be  given  for  excluding  a  right  tp  the  street  for  ad- 
mitting light  and  air,  when  the  right  to  it  for  access  is  conceded  ?  For 
mere  purposes  of  access  to  the  lots,  a  strip  10  or  15  feet  wide  might 
be  sufficient.  Yet  everybody  knows  that  a  lot  fronting  on  a  street  60 
or  70  feet  wide  is  more  valuable,  because  of  the  uses  that  can  be  made 
of  it,  than  though  it  front  on  such  a  narrow  strip.  Take  a  case  in 
one  of  the  states  where  the  fee  of  the  streets  is  in  the  state  or  mu- 
nicipality, and  of  a  street  60  feet  wide.  The  abutting  lot-owners  have 
paid  for  the  advantages  of  the  street  on  the  basis  of  that  width,  ei- 
ther in  the  enhanced  price  paid  for  their  lots,  or,  if  the  street  was 
established  by  condemnation  in  the  taxes,  they  have  paid  for  the  land 
taken.  In  such  a  case,  if  the  state  or  municipality  should  attempt 
to  cut  the  street  down  to  a  width  of  10  or  15  feet,  would  it  be  an  an- 
swer to  objections  by  lot-owners  that  the  diminished  width  would  be 
sufficient  for  mere  purposes  of  access  to  their  lots?  It  would  seem 
as  though  the  question  suggests  the  answer.     *     *     * 

The  private  right  in  a  street  is  of  course  subordinate  to  the  public 
right.  The  latter  right  is  for  use  as  a  public  street,  and  the  incidental 
right  to  put  and  keep  it  in  condition  for  such  use,  and  for  no  other 
purpose.  Whatever  limitation  or  abridgment  of  the  advantages  which 
the  abutting  lot  is  entitled  to  from  the  street,  may  be  caused  by  the 
exercise  of  the  public  right,  the  owner  of  the  lot  must  submit  to.  If 
putting  it  to  proper  street  uses  causes  annoying  noises  to  be  made  in 
front  of  his  lot,  or  the  air  to  be  filled  with  dust  and  smoke,  so  as  to 
darken  his  premises,  or  pollute  the  air  that  passes  from  the  street 

i  As  to  the  origin  of  abutters'  easements  in  public  highways,  see,  also,  Bar- 
nett  v.  Johnson,  15  N.  J.  Eq.  481  (1S56)  (easement  of  light  and  air  over  public 
toll-canal) ;  Dill  v.  Board  of  Education,  47  N.  J.  Eq.  421,  433  ff.,  20  Atl.  739, 
10  L.  R.  A.  276  (1S90) ;  Donahue  v.  Keystone  Gas  Co.,  181  N.  T.  313,  318  ff., 
73  N.  E.  110S,  70  L.  R.  A.  761,  106  Am.  St.  Rep.  549  (1905).  There  are  no 
abutters'  easements  over  a  public  railroad  right  of  way.  Kotz  v.  I.  C.  R.  R., 
188  Til.   578.  59   N.   E.  240   (19011. 


Ch.  12)  EMINENT    DOMAIN 

upon  them,  he  has  no  legal  cause  of  complaint.  His  right  to  complain 
arises  when  such  interruptions  to  the  enjoyment  of  his  private  right 
are  caused  by  a  perversion  of  the  street  to  uses  for  which  it  was  not 
intended;  by  employing  it  for  uses  which  the  public  right  does  not 
justify.  That  constructing  and  operating  an  ordinary  commercial 
railroad  on  a  street  is  a  perversion  of  the  street  to  a  use  for  which 
it  was  not  intended;  one  not  justified  by  the  public  right;  and 
the  state  or  municipality,  as  representing  such  right,  cannot,  as  against 
private  rights,  authorize, — the  decisions  of  this  court  are  full  and  ex 
plicit.  It  has  always  been  held  here,  contrary  to  the  decisions  in  many 
of  the  states,  that  laying  such  a  railroad  upon  a  public  street  or  high- 
way is  the  imposition  of  an  additional  servitude  upon  it, — an  appro- 
priation of  it  to  a  use  for  which  it  was  not  intended.  Carli  v.  Rail- 
way Co.,  28  Minn.  373,  10  N.  W.  205,  41  Am.  Rep.  290,  and  cases 
cited.  Many  of  the  decisions  cited,  to  show  that  upon  a  state  oi 
such  as  exists  in  this  case  the  lot-owner  can  have  no  right  of  action, 
were  by  courts  which  hold  that  the  use  of  a  street  for  an  ordinary 
railroad  is  a  legitimate  street  use, — one  that  comes  within  the  uses 
and  purposes  for  which  streets  are  established.  Where  that  is  the 
rule,  inasmuch  as  the  right  or  interest  of  the  abutting  lot-owner  is 
subordinate  and  subject  to  the  right  to  devote  the  street  to  use  for  a 
railroad,  as  well  as  for  any  other  proper  mode  of  street  travel,  of 
course  no  cause  of  action  in  favor  of  the  lot-owner,  whether  he  owns 
the  fee  of  the  street  or  not,  could  grow  out  of  the  proper  construction 
and  operating  of  a  railroad  in  the  street.  For  that  reason  the  deci- 
sions of  such  courts  can  be  of  no  authority  here,  where  a  different 
rule  upon  the  rightfulness  of  using  the  street  for  such  a  purpose  pre- 
vails. 

The  conclusions  arrived  at  are  that  the  owner  of  a  lot  abutting  on 
a  public  street  has,  independent  of  the  fee  in  the  street,  as  appurtenant 
to  his  lot,  an  easement  in  the  street  in  front  of  his  lot  to  the  fill! 
width  of  the  street,  for  admission  of  light  and  air  to  his  lot,  which 
easement  is  subordinate  only  to  the  public  right.  That  depriving  him 
of  or  interfering  with  his  enjoyment  of  the  easement  for  any  public 
use  not  a  proper  street  use  is  a  taking  of  his  property  within  the 
meaning  of  the  Constitution.  That  appropriating  a  public  si 
the  construction  and  operation  of  an  ordinary  commercial  railroad 
upon  it  is  not  a  proper  street  use.  That  where,  without  his  consent 
and  without  compensation  to  him.  such  a  railroad  is  laid  and  opi 
along  the  portion  of  the  street  in  front  of  his  lot,  so  as  upon  that 
part  of  the  street  to  cause  smoke,  dust,  cinders,  etc.,  which  darken 
or  pollute  the  air  coming  from  that  part  of  the  street  upon  his  lot. 
he  may  recover  whatever  damages  to  his  lot  are  caused  by  so  laying 
and  operating  such  railroad  on  that  part  of  the  street.  That  the  re- 
covery should  be  limited  to  the  dan  rating  the  rail 
road  in  front  of  plaintiff's  lot.  and  ought  not  to  include  any  that  might 
have  accrued  from  operating  it  on  other  parts  of  the  street,  was  an- 


756  FUNDAMENTAL    RIGHTS  (Part  2 

doubtedly  the  opinion  of  the  court  below  when  it  came  to  make  its 
findings  of  fact.2  *  *  *  [This  rule  is  approved,  but  a  new  trial 
is  ordered  solely  on  the  question  of  damage,  because  the  evidence 
taken  did  not  conform  to  it.] 

[Vanderburgh,  J.,  gave  a  short  dissenting  opinion.] 


DONAHUE  v.  KEYSTONE  GAS  CO.  (1905)  181  N.  Y.  313,  319, 
320,  73  N.  E.  1108,  70  L.  R.  A.  761,  106  Am.  St.  Rep.  549,  Vann,  J. 
(holding  a  gas  company  liable  for  negligently  injuring  trees  in  front 
of  plaintiff's  lot  on  a  street  owned  in  fee  by  the  public) : 

"The  defendant  insists  with  great  persistence  that  it  did  not  injure 
the  plaintiff,  because  it  did  not  touch  his  premises  or  throw  anything 
upon  them.  Interference  with  access  or  with  light  does  not  necessarily 
involve  contact  with  tangible  property,  yet  either  is  a  trespass  upon 
a  property  right.  Why  should  the  law  protect  the  air  of  an  abutting 
owner  from  the  smoke  of  a  semi-trespasser,  and  not  protect  the  cool- 
ness of  the  air  from  injury  by  an  absolute  trespasser?  If  the  air  is 
better  in  the  one  case,  it  is  in  the  other,  for  the  difference  is  in  degree 
only.  Upon  what  principle  can  pure  air  be  called  a  property  right, 
and  cool  air  no  right  at  all?     *     *     * 

"The  [abutter's]  easement,  as  for  convenience  it  may  be  called,  con- 
sists in  the  right  to  have  the  street  kept  open,  and  includes  all  the 
incidental  privileges  which  may  fairly  be  implied  from  that  right.  It 
is  the  proximity  of  the  street — the  situation  of  the  abutting  land  with 
reference  to  an  open  street — which  gives  to  the  abutting  owner  the 
special  right  to  the  enjoyment  and  use  of  whatever  is  permitted  or 
maintained  by  the  public  authorities  as  a  part  of  the  street.  These 
easements  are  created  by  operation  of  law  when  streets  are  opened, 
and  they  are  presumed  to  be  paid  for  by  taking  the  benefits  into  ac- 
count when  land  is  procured  for  the  purpose.  *  *  *  If  the  street  is 
improved  so  as  to  be  more  useful,  or  ornamented  so  as  to  be  more 
beautiful,  the  public  is  benefited  generally,  and  the  abutter  is  benefited 
specially.  So  long  as  a  hitching  post  or  a  shade  tree  is  physically 
and  legally  a  part  of  the  street,  he  is  entitled  to  all  the  special  bene- 

2  Contra  (not  confining  abutter's  easement  to  light  and  air  from  part  of 
street  immediately  in  front  of  his  premises) :  Field  v.  Barling,  149  111.  556, 
37  N.  E.  850,  24  L.  R.  A.  40G,  41  Am.  St.  Rep.  311  (1S94) ;  Townsend  v.  Ep- 
stein, 93  Md.  537,  49  Atl.  629,  52  L.  R.  A.  409,  S6  Am.  St.  Rep.  441  (1901). 
The  easement  of  access  is  everywhere  held  to  extend  far  enough  from  plain- 
tiff's premises  to  secure  reasonable  egress  to  the  general  street  system;  Brak- 
ken  v.  Minn.  &  St.  L.  Ry.,  29  Minn.  41,  11  N.  W.  124  (1881).  Of  course  the 
public  must  compensate  an  abutter  whose  access  is  destroyed  by  the.  vaca- 
tion of  a  street,  Borghart  v.  Cedar  Rapids,  126  Iowa,  313,  101  N.  W.  1120. 
68  L.  R.  A.  306  (1905) ;  but  the  obstruction  of  a  street  in  one  direction, 
leaving  a  less  convenient  egress  the  other  wav,  is  not  a  taking  under  the 
federal  Constitution,  Meyer  v.  Richmond,  172  U.  S.  S2,  19  Sup.  Ct.  106.  43 
L.  Ed.  374  (189S).  The  state  decisions  are  in  some  conflict.  1  Lewis,  Em. 
Dom.  (3d  Ed.)  U  202,   203. 


Cll.  12)  EMINENT    DOMAIN  I  E  i 

fits  which  flow  therefrom  to  his  lot,  free  from  interference  by  a  wrong- 
doer, but  subject  to  removal  by  the  municipal  government.  The  ease- 
ment extends  to  all  parts  of  the  street  which  enlarge  the  use  and  in- 
crease the  value  of  the  adjacent  lot.  It  is  not  limited  to  light,  air, 
and  access,  but  includes  all  the  advantages  which  in   the 

situation  of  the  abutter's  land  upon  the  open  space  of  the  street. 
These  rights  exist  whether  he  owns  the  Ice  of  the  street  or  nut.  As 
they  are  dependent  upon  the  street,  and  cannot  exist  without  it,  they 
are  a  part  of  it,  and  thus  become  'an  integral  part  of  the  estate'  of  the 
abutting  owner,  subject  to  interference  by  no  one  except  the  rep- 
resentatives  of  the  public. 

i  adequate  reason  is  given  for  the  attempt  to  limit  the  easement 
to  light,  air,  and  access.  What  distinction,  in  principle,  is  there  be- 
tween these  benefits,  which  are  incidental  to  a  street,  and  any  other 
incidental  advantage  which  adds  to  the  value  of  abutting  land?  Why 
should  the  law  extend  this  protection  to  the  one  and  withhold  it  from 
the  other?"  '  - 


LA  CROSSE  CITY  RY.  CO.  v.  HIGBEE. 

(Supreme  Court  of  Wisconsin,  1900.     107  Wis.  889,  83  N.  W.  701, 
51  Iv.  R.  A.  923.) 

[Appeal  from  an  order  of  the  La  Crosse  county  circuit  court. 
Plaintiff,  an  electric  street  railway  company,  placed  one  of  its  nulruad 
poles  at  the  outer  edge  of  the  sidewalk  before  defendant's  premises. 
Defendant  owned  the  fee  in  the  street.  The  pole  did  not  materially  in- 
terfere with  public  travel,  nor  with  access  to  defendant's  premises, 
and  no  compensation  was  tendered  to  defendant     Plaintiff  asked  an 

1  In  First  Nat.   Bank  v.  Tyson,  133  Ala.  459,  -477  i  14,  59   I.    R 

a.  399,  '.h  a  1 ;  1 .  st.  Rep.  10  (1901),  (in-  defendant  was  enjoii  mitting 

ornamental  building  columns  to  projeel  two  feel  Into  the  streel  from  a  lot 
adjacent  to  plaintiff's,  the  court  saying,  by  Haralson,  J.:  "it  is  difflcnll  to  on 
derstand,  why  an  easement  of  view  from  every  part  of  a  public  street,  is 
not,  in  e  light  and  air,  a  valuable  right,  of  which  the  owner  or  a  building  on 
the  treet,  ought  not  to  he  deprived  by  an  encroachment  on  the  highway  by 
a  coterminous  or  adjacent  proprietor.  The  right  ot  view  or  prospect,  is  one 
Implied,  like  other  rights,  from  the  dedication  of 
As  was  well  said  by  the  learned  Judge  below  In  respect  to  this  right,  'It 
to  he  a  valuable  right  appurtenant  to  Hie  ownership  of  land  abutting  on  the 
highway,  and   to  stand   Upon   the  to   reason,   with   r  • 

at   and   air,   and    to    be   inferior   to  thorn   only   in    ■■ 

convenience  or  necessity,  and  that  an  interference  with  it  is  inconsistent  with 
inlred  by  dedication.    The  opportunity  of  al 
by  a  display  of  goods  and  si_-ns  is  valuable,  as  1  have  no  doubt  the 
streets  of  an]   citj    In  the  world  will  demonsl 

And   in   a    later    Stage   Of    the   SI  On,    J..    Ill    111 

Ala.  457,  468,  39  South.  '■•■-  9,  562  w 

.:.  or  his  right  to  have  the  sidewalk  remain 
niancnt  obstructions,  so  that  his  building  maj  be  In  view  of  p 
the  sidewalk,  is  ,1  substantial,  legal  right,  and  an  unlawful  del 
substantial,  legal  riylit  necessarily  bui  ilea  Injury  to  the  party  so  deprived." 


758  FUNDAMENTAL    RIGHTS  (Part  2 

injunction  against  defendant's  cutting  down  said  pole,  and  a  demur- 
rer thereto  was  sustained.     Plaintiff  appealed.] 

Marshall,  J.  *  *  *  From  what  has  been  said  this  case  is  left 
to  turn  on  whether  a  street-railroad  pole,  properly  placed,  is  an  ad- 
ditional burden  on  the  fee  of  the  land  upon  which  it  is  located,  within 
the  principle  of  Hobart  v.  Railroad  Co.  [27  Wis.  194,  9  Am.  Rep. 
461].  Such  principle,  briefly  stated,  is  that  a  railroad,  constructed  and 
operated  in  the  street  of  a  city  at  grade,  so  as  not  to  materially  inter- 
fere with  its  common  use  for  public  travel  by  ordinary  modes,  or 
with  private  rights  of  abutting  landowners,  for  the  purpose  of  trans- 
porting persons  from  place  to  place  on  such  street  at  their  reason- 
able convenience,  is  not  an  additional  burden  upon  the  fee  thereof. 

In  Chicago  &  N.  W.  Ry.  Co.  v.  Milwaukee,  R.  &  K.  Electric  Ry. 
Co.,  95  Wis.  561,  70  N.  W.  678,  37  L.  R.  A.  856,  60  Am.  St.  Rep,  136. 
the  court  pointed  out  the  significance  of  the  purpose  of  a  street  rail- 
way as  indicated  in  the  rule  under  consideration,  namely,  the  car- 
riage of  passengers ;  also  the  significance  of  the  place  where  such  pur- 
pose may  be  exercised,  namely,  in  city  streets ;  and  it  was  held  that 
a  railway  having  for  its  purpose  the  carriage  of  freight,  a  commercial 
railway,  is  not  covered  by  the  Hobart  Case. 

In  Zehren  v.  Light  Co.,  99  Wis.  83,  74  N.  W.  538,  41  L.  R.  A.  575. 
67  Am.  St.  Rep.  844,  the  significance  of  that  part  of  the  rule  of  the 
Hobart  Case  relative  to  where  a  street  railway  may  be  constructed 
was  again  pointed  out  and  discussed,  and  it  was  held  that  it  does  not 
extend  to  a  purely  country  highway.     *     *     * 

It  is  claimed  by  appellant  that  no  significance  should  be  given  to  the 
fact  that  in  the  Hobart  Case  the  motive  power  was  obtained  by  the 
use  of  horses,  while  the  contrary  is  urged  by  counsel  for  the  respond- 
ent. *  *  *  What  would  be  fairly  gathered  from  all  that  was  said 
on  the  subject  is  that  the  motive  power,  of  itself,  is  not  sufficient  to 
class  an  electric  street  railway  with  an  ordinary  railroad,  as  regards 
its  being  an  added  burden  upon  the  fee.  That  is  in  line  with  all  or 
nearly  all  authority  on  the  subject.  Williams  v.  Railwav  Co.  (C.  C.) 
41  Fed.  556;  Jaynes  v.  Railway  Co.,  53  Neb.  631,  74  N.  W.  67,  39 
L.  R.  A.  751;  Louisville  Bagging  Mfg.  Co.  v.  Central  Pass.  Ry.  Co.. 
95  Ky.  50,  23  S.  W.  592,  44  Am.  St.  Rep.  203;  Roebling  v.  Railroad 
Co.,  58  N.  J.  Law,  666,  34  Atl.  1090,  33  L.  R.  A.  129;  Reid  v.  Rail- 
road Co.,  94  Va.  117,  26  S.  E.  428,  36  L.  R.  A.  274,  64  Am.  St.  Rep. 
708;  Briggs  v.  Railroad  Co.",  79  Me.  363,  10  Atl.  47,  1  Am.  St.  Rep. 
316;  Newell  v.  Railway  Co.,  35  Minn.  112,  27  N.  W.  839,  59  Am. 
Rep.  303;  Nichols  v.  Railway  Co.,  87  Mich.  361,  49  N.  W.  538,  16 
L.  R.  A.  371 ;  Railway  Co.  v.  Mills,  85  Mich.  634,  48  N.  W.  1007 ; 
Booth,  St.  Ry.  Law,  §  80 ;  Joyce,  Electric  Law,  §§  344,  345.     *     *     * 

So  it  follows  that,  in  determining  whether  a  street  railroad  is  an 
additional  burden  upon  the  land  already  set  aside  for  the  public  use 
as  a  highway,  we  are  to  look  to  the  manner  of  its  construction  and 
use,  and  not  to  the  motive  power.     The  latter  may  be  steam,  horse, 


Ch.  12)  EMINENT    DOMAIN  lo'J 

electric  or  compressed  air  power,  and  the  road  and  its  operation  be 
consistent  with  the  common  public  use  for  which  the  street  was  orig- 
inally designed,  and  not  violate  private  rights;  and  cither  may  be  so 
used,  and  the  road  be  so  constructed  and  operated,  as  to  have  the 
opposite  effect.  Electric  railroads  constructed  in  the  usual  way  and 
operated  by  the  use  of  the  overhead  trolley  wire  supported  by  cross 
wires  fastened  to  poles  set  at  the  curb  lines  of  the  street,  or  other- 
wise located  so  as  not  to  materially  interfere  with  the  ordinary  com- 
mon use  of  the  street,  belong  to  the  former  class,  as  we  shall  see  later ; 
and  that  has  become  so  firmly  established  by  the  courts  that  it  cannot 
be  considered  open  to  serious  question.     *     *     * 

When  a  new  mode  of  using  the  public  streets  and  highways  is 
adopted,  the  question  arises  of  whether  it  violates  the  rights  of  the 
owners  of  the  fee  to  the  streets  and  is  inconsistent  with  the  original 
design  in  setting  the  land  aside  for  a  public  thoroughfare,  keeping 
in  view  the  fact  that  such  design  is  presumed  to  have  contemplated 
the  adoption  from  time  to  time  of  improvements  in  mechanical  ap- 
pliances and  their  use  in  aid  of  travel  upon  the  street, — the  keeping 
abreast  with  the  march  of  civilization,  with  the  growth  of  popula- 
tion and  consequent  increase  of  travel,  so  as  to  adequately  satisfy 
public  needs  and  conveniences.  Lands  are  set  aside  for  public  streets 
and  highways,  not  for  the  present,  with  its  necessities  and  modes  of 
use,  but  for  all  time,  with  all  the  added  demands  that  may  be  made 
upon  the  public  ways  within  the  scope  of  their  original  design,  in  the 
course  of  natural  development  that  is  constantly  going  on.  Subject 
to  that  test  the  traction  engine,  automobile,  and  sti  vs.  re- 

gardless of  the  motive  power  used,  are  entitled  to  the  use  of  the  street, 
subject  to  the  necessity  for  consent  by  public  authority  in  proper  cases, 
and  reasonable  police  regulations.     *     *     * 

On  the  question  of  whether  the  manner  in  which  the  road,  with  its 
appurtenances,  was  constructed,  affects  the  right  of  the  defendant  to 
recover  for  an  additional  burden  upon  the  fee  of  the  street,  we  must 
come  down  to  the  simple  question  of  whether  the  pole,  set  at  the 
outer  edge  of  the  sidewalk  on  defendant's  premises,  interfei 
access  to  or  egress  from  his  property.  We  understand  from  the  com- 
plaint that  the  pole  was  not  located  so  as  to  interfere  with  any  drive- 
way or  other  avenue  used  for  passage  to  or  from  the  street  to  re- 
spondent's property  outside  of  the  street  line.  It  merely  prevented  a 
person  from  stepping  on  or  off  the  sidewalk  at  the  precise  point  where 
the  pole  was  located.  That  is  not  such  an  unreasonable  interference 
with  private  property  as  to  violate  the  rule  that  a  street  railway  can- 
not be  so  constructed  as  to  interfere  with  access  to  abutting  property. 
without  the  consent  of  the  owner  thereof.  As  well  might  it  be  said 
that  the  mere  fact,  thai  because  of  the  location  of  the  rails  in  the 
street  one  traveling  with  a  vehicle  must  approach  to  or  go  from  prop- 
erty abutting  thereon  at  a  different  angle  than  he  otherwise  would. 
or  the  fact  that  he  cannot  as  conveniently  use  the  street  in   front  of 


760  fundamental  rigiits  (Part  2 

such  property  for  ordinary  temporary  purposes  incident  to  the  oc- 
cupancy thereof,  is  a  violation  of  private  rights.  Interference  with 
access  to  property,  within  the  meaning  of  the  street-railway  cases, 
means. some  substantial  interference.  Railway  Co.  v.  Mills,  85  Mich. 
634,  48  N.  W.  1007;  Joyce,  Electric  Law,  §  380.  A  street-railway 
pole,  properly  placed  at  the  curb  line  of  a  street,  no  more  interferes 
with  access  to  or  egress  from  property  outside  of  the  street  line  than 
a  lamp  post  or  hitching  post  or  shade  tree,  and  no  more  interferes 
with  the  ordinary  use  of  the  street  for  public  travel.  *  *  * 
Order  reversed. f 


PALMER  v.  LARCHMONT  ELECTRIC  CO.  (1899)  158  N.  Y. 
231,  235,  52  N.  E.  1092,  43  L.  R.  A.  672,  Haight,  J.  (holding  elec- 
tric light  poles  not  a  burden  on  the  street  fee) : 

"We  think  the  Eels  Case1  is  clearly  distinguishable  from  that  under 
consideration.  In  that  case  ejectment  was  brought  to  remove  the 
poles  of  a  telegraph  and  telephone  company  which  were  not  used  in 
any  sense  for  a  street  purpose.  It  is  urged  that  the  wires  might  be 
used  for  the  purpose  of  notifying  the  fire  department  of  a  municipality 
of  the  breaking  out  of  a  fire.  Undoubtedly,  and  so  far  as  they  are 
used  for  that  purpose,  it  clearly  would  be  for  a  municipal  purpose ; 
but  there  is  a  broad  distinction  between  a  municipal  purpose  and  a 
street  purpose.  The  primary  object  of  highways  is  for  the  public 
travel  by  persons  and  animals,  and  by  carriages  or  vehicles  used  for 
the  transportation  of  persons  and  goods,  other  than  by  railroads. 
Sewers  drain  the  surface  water  from  the  highways,  and  thus  relieve 
them  from  impairment  and  destruction.  In  this  respect  sewers  are 
for  a  street  purpose.  In  addition,  they  may  drain  also  the  abutting 
property  and  houses,  and  thus  tend  to  promote  the  public  health.     In 

t  Compare  Fobes  v.  Railroad,  ante,  p.  750,  and  Jaynes  v.  Omaha  St.  Ry., 
53  Neb.  631,  74  N.  W.  07,  39  L.  R.  A.  751  (1S9S). 

The  cases  upon  all  phases  of  an  abutter's  right  to  compensation  for  any 
Uind  of  a  railroad  in  a  street  are  exhaustively  collected  in  36  L.  R.  A.  (N. 
S.)  673-S38  (1912). 

i  "The  primary  law  of  the  highway  is  motion,  and  whatever  vehicles  are 
used,  or  whatever  method  of  transmission  of  intelligence  is  adopted,  the  ve- 
hicle must  move,  and  the  intelligence  be  transmitted  by  some  moving  body, 
which  must  pass  along  the  highway,  either  on  or  over  or  perhaps  under  it ; 
but  it  cannot  permanently  appropriate  any  part  of  it.  *  *  *  The  primary 
or  fundamental  idea  of  a  highway  is  that  it  is  a  place  for  uninterrupted  pas- 
sage by  men,  animals,  or  vehicles,  and  a  place  by  which  to  afford  light,  air, 
and  access  to  the  property  of  abutting  owners,  who,  in  this  respect,  enjoy  a 
greater  interest  in  the  street  than  the  general  public,  even  though  their  ti- 
tle to  the  land  stops  with  the  exterior  line  of  the  street.  It  is  not  a  place 
which  can  be  permanently  and  exclusively  appropriated  to  the  use  of  any 
person  or  corporation,  no  matter  what  the  business  or  object  of  the  latter 
might  be."— Eels  v.  Amer.  Teleph.  &  Teleg.  Co.,  143  N.  T.  133,  139,  3S  X.  E. 
202,  204,  25  L.  R.  A.  640  (lS'Jl).  by  Peckham,  J.,  approved  in  Krueger  v.  Wis. 
Teleph.  Co.,  100  Wis.  96,  107-109,  SI  X.  W.  lull,  50  L.  R.  A.  29S  (1900)  (col- 
lecting cases  as  to  telegraph  and  telephone  poles  in  streets). 


Ch.  12)  EMINENT    DOMAIN 

this  respect  they  are  for  a  municipal  purpose.  Water  supplied  by 
mains  through  the  highways  may  be  used  for  cleansing  and  sprinkling 
the  streets.  In  this  respect  it  is  for  a  street  purpose.  It  may  be  used 
by  the  abutting  owners  for  cleansing  and  for  domestic  purposes,  and 
is  also  used  for  the  extinguishment  of  fires.  In  this  respect  it  is  for 
a  municipal  purpose.  Light  is,  as  we  have  seen,  an  aid  to  the  public 
in  the  nighttime  in  traveling  upon  the  highway.  It  is  therefore  use'l 
for  a  street  purpose.2  All  of  the  street  purposes  which  we  have  refer- 
red to  are  clearly  incident  to  the  highway,  and  are  deemed  within  the 
grant  of  lands  for  highway  purposes  whenever  the  necessity  for  these 
uses  arises.  Not  so  with  telegraph  and  telephone  wires.  They  in  nn 
way  preserve  or  improve  the  streets,  or  aid  the  public  in  traveling  over 
them." 


JULIA  BUILDING  ASS'N.  v.  BELL  TELEPHONE  CO.  (1885) 
88  Mo.  258.  267-269,  57  Am.  Rep.  398,  Norton,  J.  (holding  telephone 
poles  and  wires  a  proper  street  use  against  the  abutting  owner's  fee 
in  the  street) : 

"A  highway  may  be  said  to  be  nothing  but  an  easement  on  the  land 
and  that  the  public  have  no  other  right  in  it  than  the  right  of  passage. 
with  the  powers  and  privileges  incident  to  the  right.  'While  this  rule 
as  to  the  extent  of  the  interest  which  the  public  acquires  in  highways 
is  strictly  true  as  to  highways  in  the  country,  it  must  be  taken  with 
some  limitation  as  to  the  streets  of  a  city  or  large  village.  There  are 
certain  uses,  such  as  the  construction  of  sewers,  the  laying  of  gas 
and  water  pipes  to  which  the  latter  are  generally  applied.  These — 
called  urban  servitude — are  the  necessary  incidents  of  streets  in  large 
cities,  and  are  paramount  to  the  rights  of  the  owner  in  fee.  Whether 
the  streets  be  laid  out  and  opened  upon  property  owned  by  the  cor- 
poration, or  whether  they  become  public  streets  by  dedication,  or  by 
grant,  or  upon  compensation  being  made  to  the  owner  of  the  fee, 
they  have  all  the  incidents  attached  to  them  which  are  necessary  to 
their  full  enjoyment  as  streets ;  and  the  corporation  has  the  power 
to  authorize  their  appropriation  to  all  such  uses  as  are  conducive  to 
the  public  good  and  do  not  interfere  with  their  complete  and  unre- 
stricted use  as  highways;  and  in  doing  so  it  is  not  obliged  to  confine 
itself  to  such  uses  as  have  already  been  permitted.  As  civilization  ad- 
vances new  uses  may  be  found  expedient.'  Angell  on  Corp.  §  312; 
Thompson  on  Highways,  c.  2,  pp.  25-27. 

"In  1816  when  Sixth  street  was  dedicated  by  Chouteau  and  Luca? 
to  the  public,  St.  Louis  was  a  small  French  village  and  the  necessity 

i  Where  the  Lighting  is  snpplied  for  private  users  only,  tha  poles  are  n  bur- 
don  on  the  tee  Callen  v.  Columbus  Edison  Co.,  88  Ohio  St.  166,  64  N.  K.  141, 
5S  L.  It.  A.  78?  (1901).     Wi  le  equipment  supplies  both  pul 

private  lighting,  see  Carpenter  v.  Capital  Elec.  Co.,  IT--  [11  29,  80  86,  52  N. 
E.  9?:?,  4M  I..  K.  a.  646,  c,o  Am.  St  Rep.  288  (1899),  and  French  v.  Robb,  07  N 
.7.   Law,  LV.O,  51  Atl.  1309,  57  L.   H.  A.  9B6,  91  Am.  St   Rep.  438 


762  FUNDAMENTAL    RIGHTS  (Part    2 

for  devoting  any  part  of  its  streets  for  the  construction  of  sewers, 
water  and  gas  pipes  did  not  exist;  at  that  time  street  horse  railroads 
were  unknown  and  the  transmission  of  messages  by  means  of  elec- 
tricity was  not  only  unknown,  but  not  thought  of.  But  in  the  advance 
of  civilization  and  the  growth  of  the  village  into  a  large  and  populous 
city,  public  necessity  has  demanded  and  required  the  devotion  of  many 
of  its  streets  to  the  above  uses,  and  hence  the  laying  of  tracks  of 
street  horse  railroads  in  its  streets  has  been  authorized  and  sanc- 
tioned both  by  legislative  and  municipal  enactment,  and  it  has  been 
held  that  such  use  of  a  street  is  not  an  improper  use.  These  streets 
are  required  by  the  public  to  promote  trade  and  facilitate  communica- 
tions in  the  daily  transactions  of  business  between  the  citizens  of  one 
part  of  the  city  with  those  of  another,  as  well  as  to  accommodate  the 
public  at  large  in  these  respects.  If  a  citizen  living  or  doing  business 
on  one  end  of  Sixth  street  wishes  to  communicate  with  a  citizen  living 
and  doing  business  on  the  other  end,  or  at  any  intermediate  point  he  is 
entitled  to  use  the  street,  either  on  foot,  on  horseback,  or  in  a  car- 
riage or  other  vehicle  in  bearing  his  message.  The  defendants  in  this 
case  propose  to  use  the  street  by  making  the  telephone  poles  and  wires 
the  messenger  to  bear  such  communications  instantaneously  and  with 
more  dispatch  than  in  any  of  the  above  methods,  or  any  other  known 
method,  of  bearing  oral  communications.  Not  only  would  such  com- 
munications be  borne  with  more  dispatch,  but,  to  the  extent'  of  the 
number  of  communications  daily  transmitted  by  it,  the  street  would 
be  relieved  of  that  number  of  footmen,  horsemen,  or  carriages.  If  a 
thousand  messages  were  daily  transmitted  by  means  of  telephone  poles, 
wires,  and  other  appliances  used  in  telephoning,  the  street  through 
these  means  would  serve  the  same  purpose  which  would  otherwise 
require  its  use  either  by  a  thousand  footmen,  horsemen,  or  carriages 
to  effectuate  the  same  purpose.  In  this  view  of  it  the  erection  of 
telephone  poles  and  wires  for  transmission  of  oral  messages,  so  far 
from  imposing  a  new  and  additional  servitude,  would,  to  the  extent 
of  each  message  transmitted,  relieve  the  street  of  a  servitude  or  use 
by  a  footman,  horseman,  or  carriage."  l 


McDEVITT  v.  PEOPLE'S  NATURAL  GAS  CO.  (1894)  160  Pa. 
367,  373,  374,  28  Atl.  948,  Williams,  J.  (permitting  natural  gas  mains 
to  be  laid  in  a  city  street  without  compensation  to  the  abutting  owner 
of  the  street  fee) : 

"Forbes  street  was  a  city  highway,  and  subject,  like  all  other  streets 
in  a  city,  to  urban  servitudes  for  the  benefit  of  the  public.  In  land 
taken  for  a  highway  in  the  country,  the  easement  acquired  by  the 
public  is  only  for  the  purposes  of  a  way  over  the  surface.  For  all 
other  purposes  the  land  may  be  occupied  by  the  owner,  so  long  as  the 

i  See  cases  accord  and  contra  collected  in  Krueger  v.  Wis.  Telei>h.  Co.,  106 
Wis.  96,  107-109,  81  N.  W.  1041,  50  L.  R.  A.  298  (1900). 


Ch.  12)  EMINENT    DOMAIN  i  <>'■'• 

public  easement  is  not  disturbed.  We  accordingly  held  in  Sterling's 
Appeal,  111  Pa.  35,  2  Atl.  106,  56  Am.  Kep.  246,  that  the  maintenance 
of  a  pipe  line  under  such  a  highway  imposed  an  additional  servitude 
upon  the  land.  It  may  be  a  very  slight  one,  but  to  some  extent  it 
abridges  the  rights  of  the  land-owner  in  the  soil.     0  er  Ster- 

reit  said  in  that  case :  'As  to  streets  and  alleys  in  cities  and  boroughs, 
there  are  reasons  why  a  different  rule,  to  some  extent,  should  pre- 
vail.' These  reasons  are  obvious.  The  necessity  for  drainage,  for 
a  water  supply,  for  gas  for  purposes  of  lighting,  for  natural  or  fuel 
gas  for  heat,  for  subways  for  telegraph  and  other  wires,  and  for  other 
urban  necessities  or  conveniences,  gives  to  the  municipality  a  control 
over  the  subsurface  that  the  township  has  not.  Property  in  a  city  is 
no  less  sacred  than  property  in  the  country.  The  title  of  the  owner 
is  neither  better  nor  worse  because  of  the  location  of  his  land.  But 
its  situation  may  subject  it  to  a  greater  servitude  in  favor  of  the  pub- 
lic in  a  large,  compactly  built  city  than  would  be  imposed  upon  it  in  • 
the  open  country.  The  city  has  the  right  to  use  the  streets  and  alleys, 
to  whatever  depth  below  the  surface  it  may  be  desirable  to  go,  for 
sewers,  gas  and  water  mains,  and  any  other  urban  uses.  In  taking  the 
streets  for  these  necessary  or  desirable  purposes,  it  is  acting,  not  for 
its  own  profit,  but  for  the  public  good.  It  is  the  representative  of 
the  inhabitants  of  the  city,  considering  their  health,  their  family  com- 
fort, and  their  business  needs;  and  every  lot-owner  shares  in  the 
benefits  which  such  an  appropriation  of  the  streets  and  alleys  confers. 
If  the  city  abridges  his  control  over  the  soil  in  and  under  the  streets, 
it  compensates  him  by  making  him  a  sharer  in  the  public  advantages 
that  result  from  proper  drainage,  from  an  abundant  water  supply, 
from  the  general  distribution  of  gas.  and  the  like.  The  disturbance 
of  the  owner's  control  over  the  subsurface  of  the  streets  is,  in  a  legal 
sense,  an  invasion  of  his  rights,  but  it  is  damnum  absque  injuria.  He 
has  no  right  of  action  against  the  municipality  therefor."  ' 

i  "It  tins  never  been  doubted  that,  by  authority  of  the  legislature,  high- 
ways might  be  used  Cor  gas  or  water  .  led  f<>r  the  c 
the  citizens,  although  the  gas  or  water  "as  conducted  thereunder  bj 
nies  formed  for  the  purpose;   or  for  sewers,  whose  object  was  not  men  •■.  the 
incidental  one  of  cleansing  the  streets,  but  also  the  drainage  of  i>ri 

talcs,  the  rights  of  Which  to  enter  therein  were  subject  to  public 

Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Mien.  7.V,  Attorney  Qeneral  v. 
Metropolitan  Railroad,  125  Mass.  616,  617,  28  Am.  Rep.  2M ;  Boston  v.  Kieh- 
ardson  [13  Allen.  146J."— Pierce  v.  Drew,  L36  Masa.  75,  81,  49  Am.  Kep.  7 
(1883),  by  Devens,  J. 
As  to  differences  between  the  right  to  use  a  highway  for  incidental  purposes 
and  the  righl  to  use  it  for  such  purposes  ben 
eflclal  oniv   to  dis   inl  land  v.  Larchmont  Co.,  168  N.  I.  231,  235 

I  I  L.  R,  A.  672  (1899)  I  !l<  ctrlc  light  pol 

Co.  v.  Duhrenil.   105  Md.    l-l,  66  AH.    139,  9   L.   B.  A.   (N.   S.j  684  (1901 

ter);   Van  Brunt  v.  1  latbush,  L28  N.  1 27  N.  E.  973  (li 

on  Consol.  Has  Co.,  L98  Mass.  356,  84  8  L,  U 

A.  (N.   S 

"It  may  be  that  the  owners  of  the  fee  lu  highways  should  QOl 

crs,  conductors,   or  wires  lu  which  they  have  no  luterest  or  right 


764  FUNDAMENTAL    RIGHTS  (Part  2 

NEW  ENGLAND  TELEPHONE  &  TELEGRAPH  CO.  v.  BOS- 
TON TERMINAL  CO.  (1903)  182  Mass.  397,  399,  65  N.  E.  835, 
Knowlton,  C.  J.  (holding  that  corporations  which  had  placed  conduits 
and  manholes  in  a  street  for  the  purpose  of  supplying  electricity  to 
the  public  obtained  thereby  no  property  interest  in  the  street  which  re- 
quired compensation  when  the  street  was  vacated) : 

"In  this  commonwealth,  on  the  laying  out  and  construction  of  a 
highway  or  public  street,  the  fee  of  the  land  remains  in  the  land- 
owner, and  the  public  acquire  an  easement  in  the  street  for  travel. 
This  easement  is  held  to  include  every  kind  of  travel  and  communica- 
tion for  the  movement  or  transportation  of  persons  or  property  which 
is  reasonable  and  proper  in  the  use  of  a  public  street.  It  includes  the 
use  of  all  kinds  of  vehicles  which  can  be  introduced  with  a  reason- 
able regard  for  the  safety  and  convenience  of  the  public,  and  every 
reasonable  means  of  transportation,  transmission,  and  movement  be- 
neath the  surface  of  the  ground,  as  well  as  upon  or  above  it.  Accord- 
ingly it  has  been  held  that  the  public  easement  which  is  paid  for  in 
assessing  damages  to  the  owner  includes  the  use  of  the  street  for  horse 
cars  and  electric  cars,  for  wires  of  telegraph,  telephone,  and  electric 
lighting  companies,  and  for  water  pipes,  gas  pipes,  sewers,  and  such 
other  similar  arrangements  for  communication  or  transportation  as 
further  invention  may  make  desirable.  Pierce  v.  Drew,  136  Mass.  75, 
49  Am.  Rep.  7;  Suburban  Light  &  Power  Co.  v.  Aldermen  of  Bos- 
ton, 153  Mass.  200,  26  N.  E.  447,  10  L.  R.  A.  497;  Attorney  General 
v.  Railroad  Co.,  125  Mass.  515,  28  Am.  Rep.  264;  Howe  v.  Railway 
Co.,  167  Mass.  46,  44  N.  E.  386;  Natick  Gaslight  Co.  v.  Inhabitants 
of  Natick,  175  Mass.  246,  56  N.  E.  292.  All  these  agencies  have  a 
share  in  the  use  of  the  streets  under  the  rights  of  the  public.  A  per- 
son who  walks  or  drives  through  a  public  street  does  it  as  one  of  the 
public,  and  not  in  the  exercise  of  a  private  right  of  way.  The  per- 
manent constructions  above  referred  to  are  permitted  because  they 
are  used  by  the  public,  or  a  part  of  the  public,  or  are  held  and  used 
in  private  ownership  for  the  benefit  of  the  public.  The  rights  in  the 
streets  which  are  so  exercised  or  enjoyed  are  not  private  rights  of 
property,  but  are  a  part  of  the  public  rights  which  are  shared  in  com- 
mon, although  used  and  enjoyed  in  different  ways  by  the  different 
members  of  the  public  who  pass  through  a  street,  or  whose  property 
is  carried  through  it."  1 

to  use,  but  which  are  intended  for  the  use  of  other  localities;  but  sewers, 
conductors,  and  lighting  wires  intended  for  the  use,  benefit,  and  improve- 
ment of  the  highway  through  which  they  pass,  and  of  the  abutting  owners 
thereon,  which  promote  the  comfort  and  safety  of  the  traveling  public,  stand 
upon  a  different  footing,  and  are  no  burden  upon  the  fee  not  intended  by  the 
grant  for  highway  purposes." — Palmer  v.  Larchmont  Co.,  158  N.  Y.  231,  239, 
52  N.  E.  1092,  1095,  43  L.  K.  A.  672  (1899),  by  Haight,  J. 

i  Accord:  White  v.  Blanchard  Granite  Co.,  178  Mass.  363,  59  N.  E.  1025 
(1901)  (private  horse  freight  railway) ;  Sears  v.  Crocker,  1S4  Mass.  5S6,  69 
N.  E.  327,  100  Am.  St  Rep.  577  (1904)  (subway  for  street  cars);    Cheney   v. 


Ch.  1-)  EMIM.Ni     DOMAIN  70o 

RIGNEY  v.  CHICAGO. 
(Supreme   Court  of   Illinois,    1882.     102    111.   64.) 

[Appeal  from  a  decision  of  the  Appellate  Court  of  the  First  Dis- 
trict, affirming  a  decision  of  the  circuit  court  of  Cook  county.  Plain- 
tiff owned  residential  premises  on  Kinzie  street  in  Chicago,  220  feet 
east  of  Halsted  street.  De.fendant  city  in  1874  constructed  a  viaduct 
for  general  street  purposes  along  Halsted  street  and  across  Kinzie 
street,  which  cut  off  traffic  between  these  two  streets  at  their  inter- 
section, except  by  a  flight  of  stairs.  Halsted  street  was  one  of  the  main 
thoroughfares  of  Chicago,  and  this  obstruction  reduced  the  value  of 
plaintiff's  property  from  $5,000  to  about  $1,700.  The  defendant 
owned  the  streets  in  fee.  Plaintiff  sued,  under  the  state  Constitution 
of  1870,  for  the  damage  thus  caused.  The  trial  court  directed  a  ver- 
dict for  the  defendant,  and  the  Appellate  Court  affirmed  this.  The 
constitutional  provision  in  question  appears  in  the  opinion.] 

Mr.  Justice  Mulkey.  *  *  *  Previous  to,  and  at  the  time  of 
the  adoption  of,  the  present  Constitution,  it  was  the  settled  doctrine 
of  this  court  that  any  actual  physical  injury  to  private  property,  by 
reason  of  the  erection,  construction,  or  operation  of  a  public  improve- 
ment in  or  along  a  public  street  or  highway,  whereby  its  appropriate 
use  or  enjoyment  was  materially  interrupted,  or  its  value  substantially 
impaired,  was  regarded  as  a  taking  of  private  property,  within  the 
meaning  of  the  Constitution,  to  the  extent  of  the  damages  thereby 
occasioned,  and  actions  for  such  injuries  were  uniformly  sustained. 

This  construction,  making  an  actual  physical  invasion  of  the  prop- 
erty affected  the  test  in  every  case,  excluded  from  the  benefits  of 
the  Constitution  many  cases  of  great  hardship,  for,  as  in  the  present 
case,  it  often  happened  that  while  there  was  no  actual  physical  injury 
to  the  property,  yet  the  approaches  to  it  were  so  cut  off  and  dc-; 
as  to  leave  it  almost  valueless.  Under  this  condition  of  affairs  the 
framers  of  the  present  Constitution,  doubtless  with  a  view  of  giving 
greater  security  to  private  rights  by  affording  relief  in  such  cases  of 
hardship  where  it  had  before  been  denied,  declared  therein  that  "pri- 
vate property  shall  not  be  taken  or  damaged  for  public  use  without 
just  compensation."  The  addition  of  the  words  "or  damaged"  can 
hardly  be  regarded  as  accidental,  or  as  having  been  used  without  any 
definite  purpose.  On  the  contrary,  we  regard  them  as  significant,  and 
expressive  of  a  deliberate  purpose  to  change  the  organic  law  of  the 
state.     *     *     * 

It  is  conceded  that  some  little  confusion  exists  with  respect  to  the 
use  of  the  expression,  "physical  injury,"  in  connection  with  the  term 

Barker,  108  M  I  N.  H.   192,  16  L    EL   \.  (N 

not  giving  local  service).     See  Comm.  v    Morrison,  197  Mas-.    U 

415,  14  L.  K.  A.  (N.  S.)  194,  123  Am.  St.  Keu.  [>■<!$  (VMS)  (stationary  m;jut  luucb 
wagon  not  allowed). 


766  FUNDAMENTAL    RIGHTS  (Part  2 

proprrty;  but  it  is  believed  this  arises  mainly  from  the  ambiguous 
character  of  the  latter  term,  and  doubtless  all  the  apparently]  con- 
flicting expressions  to  be  found  in  the  opinions  of  this  court  upon 
this  subject  may  be  harmonized,  upon  the  theory  that  the  term  prop- 
erty, in  that  connection,  is  used  in  different  senses.  Property,  in  its 
appropriate  sense,  means  that  dominion  or  indefinite  right  of  user 
and  disposition  which  one  may  lawfully  exercise  over  particular  things 
or  subjects,  and  generally  to  the  exclusion  of  all  others,  and  doubt- 
less this  is  substantially  the  sense  in  which  it  is  used  in  the  Constitu- 
tion ;  yet  the  term  is  often  used  to  indicate  the  res  or  subject  of  the 
property,  rather  than  the  property  itself,  and  it  is  evidently  used  in 
this  sense  in  some  of  the  cases  in  connection  with  the  expression  phys- 
ical injury,  while  at  other  times  it  is  probably  used  in  its  more  ap- 
propriate sense,  as  above  mentioned.  The  meaning,  therefore,  of 
the  expression  "physical  injury,"  when  used  in  connection  with  the 
term  "property,"  would  in  any  case  necessarily  depend  upon  whether 
the  term  property  was  used  in  the  one  sense  or  the  other.  To  illus- 
trate: If  the  lot  and  buildings  of  appellant  are  to  be  regarded  as 
property,  and  not  merely  the  subject  of  property,  as  strictly  speak- 
ing they  are,  then  there  has  clearly  been  no  physical  injury  to  it;  but 
if  by  property  is  meant  the  right  of  user,  enjoyment  and  disposition 
of  the  lot  and  buildings,  then  it  is  evident  there  has  been  a  direct 
physical  interference  with  appellant's  property,  and  when  considered 
from  this  aspect,  it  may  appropriately  be  said  the  injury  to  the  prop- 
erty is  direct  and  physical.     *     *     * 

Under  the  Constitution  of  1848  it  was  essential  to  a  right  of  re- 
covery, as  we  have  already  seen,  that  there  should  be  a  direct  physical 
injury  to  the  corpus  or  subject  of  the  property,  such  as  overflowing 
it,  casting  sparks  or  cinders  upon  it,  and  the  like ;  but  under  the 
present  Constitution  it  is  sufficient  if  there  is  a  direct  physical  ob- 
struction or  injury  to  the  right  of  user  or  enjoyment,  by  which  the 
owner  sustains  some  special  pecuniary  damage  in  excess  of  that  sus- 
tained by  the  public  generally,  which,  by  the  common  law,  would, 
in  the  absence  of  any  constitutional  or  statutory  provisions,  give  a 
right  of  action.     *     *     * 

The  question  then  recurs,  What  additional  class  of  cases  did  the 
framers  of  the  new  Constitution  intend  to  provide  for  which  are  not 
embraced  in  the  old?  While  it  is  clear  that  the  present  Constitution 
was  intended  to  afford  redress  in  a  certain  class  of  cases  for  which 
there  was  no  remedy  under  the  old  Constitution,  yet  we  think  it 
equally  clear  that  it  was  not  intended  to  reach  every  possible  injury 
that  might  be  occasioned  by  a  public  improvement.  There  are  cer- 
tain injuries  which  are  necessarily  incident  to  the  ownership  of  prop- 
erty in  towns  or  cities  which  directly  impair  the  value  of  private  prop- 
erty, for  which  the  law  does  not,  and  never  has  afforded  any  relief. 
For  instance,  the  building  of  a  jail,  police  station,  or  the  like,  will 
generally   cause  a  direct    depreciation   in   the   value   of  neighboring 


Ch.  12)  fcSIINBNT   DOMAIN  707 

property,  yet  that  is  clearly  a  case  of  damnum  absque  injuria.1  So 
as  to  an  obstruction  in  a  public  street, — if  it  does  not  practically  af- 
fect the  use  or  enjoyment  of  neighboring  property,  and  thereby  im- 
pair its  value,  no  action  will  lie.  In  all  cases,  to  warrant  a  recovery 
it  must  appear  there  has  been  some  direct  physical  disturbance  of  a 
right,  either  public  or  private,  which  the  plaintiff  enjoys  in  connec- 
tion with  bis  property,  and  which  gives  to  it  an  additional  value,  and 
that  by  reason  of  such  disturbance  he  has  sustained  a  special  damage 
with  respect  to  his  property  in  excess  of  that  sustained  by  the  public 
generally.  In  the  absence  of  any  statutory  or  constitutional  provisions 
on  the  subject,  the  common  law  afforded  redress  in  all  such  cases, 
and  we  have  no  doubt  it  was  the  intention  of  the  framers  of  the 
present  Constitution  to  require  compensation  to  be  made  in  all  cases 
where,  but  for  some  legislative  enactment,  an  action  would  lie  by 
the  common  law. 

The  English  courts,  in  construing  certain  statutes  providing  com- 
pensation for  injuries  occasioned  by  public  improvements,  in  which 
the  language  is  substantially  the  same  as  that  in  our  present  Con- 
stitution, after  a  most  thorough  consideration  of  the  question,  lay 
down  substantially  the  same  rule  here  announced.  Chamberland  v. 
West  End  of  London  Railway  Co..  2  Best  &  Smith,  605;  Beckitt  v. 
Midland  Railway  Co.,  L.  R.  1  C.  P.  241,  on  appeal  3  C.  P.  82;  Mc- 
Carthy v.  Metropolitan  Board  of  Works,  L.  R.  7  C.  P.  508.  These 
statutes  required  compensation  to  be  made  where  property  was  "in- 
juriously affected,"  which  the  English  courts  construe  as  synonymous 
with  the  word  "damaged."  Hall  v.  Mayor  of  Bristol,  L.  R.  2  C.  P. 
322;   East  and  West  India  Docks  Co.  v.  Gattke,  3  McN.  &  G.  155. 

The  rule  we  have  adopted  was  unanimously  sustained  by  the  House 
of  Lords  in  the  McCarthy  Case,  supra,  and  is  believed  to  be  in  con- 
sonance with  reason,  justice,  and  sound  legal  principles,  and  while  it 
has  not  heretofore  been  formulated  in  express  terms,  as  now 
yet  the  principles  upon  which  the  rule  rests  are  fully  recognized  in 
the  previous  decisions  of  this  court.     *     *     * 

Judgment  reversed.2 

[Dickey,  C.  J.,  gave  a  concurring  opinion.  Scott,  Craig,  and 
Sheldon,  JJ.,  dissented.] 

i  Accord:    Long  v.  Elberton,  109  Ga.  28,  34  S.  E.  333,  46  L.  R.  A. 
Am.  St  Rep.  363  (1899)  (jail);    ffrazer  L86  11L  480,  :>~  N.  E.  1055. 

51  L.  R.  A.  306,  7"  Am.  st.  Rep.  296  (1900)  (small-pox  hospital);    Van  de  \.rc 
v.  Kansas  City,  107  Mo.  83,  17  S.  W.  695,  28  Am  St.  Rep.  396  (1891)  (tire  en- 
gine house);    Lambert  v.  Norfolk,   108   \  a.  259,  til    S.   0.  776,   17   L.   R 
s.i  1061,  L28  Am.  St.  Rep.  945  (1908)  (cemetery);   Kotz  v.  ill.  Cent  it  K..  L88 
ill.  578,  59  N.  '■'    240  (1901)  (elevation  of  railroad  on  private  right  ol 
See  Austin  v.  Augusta  Ter.  By.,  108  Ga.  671,  34  S.  B.  B52,  47  L.  B 
(1899),  and  Hyde  v.  Minn.,  etc.,  By.,  29  8.  I  "    w   92.  10  t 

t\.  s.i   i^  (1912)  (excellent  discussion). 

2  Constitutional  Provisions.— The  Constitutions  of  Arkansas.  California 
Colorado     Georgia,     Illinois,    Louisiana,    Minnesota,    Mississippi,    Missouri. 
Montana    Nebraska,   North  Dakota,  Oklahoma,  South  Dakota,  Texa 
vir-iuia   Washington,  Wert  Virginia,  and  Wyoming  require  compensa 


768  FUNDAMENTAL    RIGHTS  (Part  2 

TIDEWATER  RY.  CO.  v.  SHARTZER  (1907)  107  Va.  562,  567, 
568,  59  S.  E.  407,  17  L.  R.  A.  (N.  S.)  1053,  Keith,  P.  (holding  a  rail- 
way liable,  under  the  damage  clause  of  the  Virginia  Constitution,  for 
annoyance  from  smoke,  noise,  dust,  cinders,  and  danger  from  fire, 
resulting  to  lands  no  part  of  which  were  taken) : 

"Considering  the  terms  of  the  Constitution  and  of  the  statute  as 
they  stood  prior  to  1902,  and  recognizing  that  the  changes  then  in- 
troduced were  designed  to  enlarge  the  right  to  compensation  and  ex- 
tend it  to  cases  where,  under  the  old  law,  compensation  was  denied, 
it  would  seem  that  the  language  employed  in  the  existing  Constitution 
and  Code  [is]  not  difficult  of  interpretation,  and  should  be  held  to 
embrace  and  give  a  remedy  for  every  'physical  injury  to  property, 
whether  by  noise,  smoke,  gases,  vibrations,  or  otherwise.'  Lewis  on 
Em.  Dom.  §  236. 

property  "damaged"  or  "injured"  for  public  use.  In  Alabama,  Kentucky,  and 
Pennsylvania,  compensation  is  similarly  required  only  where  the  damage  is 
done  by  "municipal  or  other  corporations  or  individuals"  invested  with  pow- 
ers of  eminent  domain. 

"The  effect  of  such  provisions  is  not  to  authorize  compensation  in  all  cases 
where  property  may  be  injured  by  public  works,  but  only  where  the  enjoy- 
ment of  some  right  of  the  plaintiff  in  reference  to  his  property  is  interfered 
with,  and  the  property  thereby  rendered  less  valuable.  The  test  is,  would 
the  injury,  if  caused  by  a  private  person  without  authority  of  statute,  give 
the  plaintiff  a  cause  of  action  against  such  person?  If  so,  then  he  is  enti- 
tled to  compensation  notwithstanding  the  statute  which  legalizes  the  damag- 
ing work.  The  constitutional  or  statutory  provision  simply- prevents  the  de- 
fendant from  shielding  himself  under  legislative  authority  against  liability 
tor  damages  consequent  upon  the  work.  Hence,  if  no  part  of  the  plaintiff's 
land  is  taken,  and  no  other  right  of  his  is  disturbed,  he  cannot  have  com- 
pensation."—Peel  v.  Atlanta,  85  Ga.  138,  140,  141,  11  S.  E.  5S2,  583,  8  L.  R. 
A.  787  (1890),  by  Blandford,  J.  And  so  Baker  v.  Boston  Elev.  Ry.,  183  Mass. 
178,  1S3,  1S4,  66  N.  E.  711,  713,  by  Knowlton,  C.  J.  (under  statute  entitling 
abutting  owners  to  recover  who  are  damaged  by  the  maintenance  of  an  ele- 
vated street  railway) :  "We  are  of  opinion  that  noise,  such  as  would  consti- 
tute a  private  nuisance  to  abutting  property  if  it  were  not  authorized,  should 
be  treated  as  causing  special  and  peculiar  damages,  under  this  statute,  which 
entitle  the  landowner  to  compensation." 

Injukies  Due  to  Changes  of  Street  Grade. — The  constitutional  "dam- 
age clauses"  are  generally  held  to  cover  all  such  injuries  suffered  by 
abutting  owners.  See  the  annotations  in  36  L.  R.  A.  (N.  S.)  1194-1202  (1911). 
In  a  few  states  an  exception  is  made  where  the  grade  is  officially  established 
for  the  first  time.  See  Leiper  v.  Denver,  36  Colo.  110,  85  Pac.  849.  7  L.  R.  A. 
(N.  S.)  108,  118  Am.  St.  Rep.  101,  10  Ann.  Cas.  847  (1906),  and  Kentucky  and 
Washington  cases  cited  in  36  L.  R.  A.  (N.  S.)  1202. 

Injuries  Due  to  Railroads  in  Street. — As  to  how  far  the  constitu- 
tional "damage  clauses"  cover  these,  see  36  L.  R.  A.  (N.  S.)  741-749.  In 
Pennsylvania  and  Missouri  these  are  construed  less  favorably  than  else- 
where, as  regards  abutters  affected  by  the  operation  of  steam  railroads  in 
the  streets.  See  Willock  v.  Beaver  Val.  Ry.,  222  Pa.  590,  72  Atl.  237  (1909) ; 
Gaus  &  Sons  Co.  v.  St.  Louis,  etc.,  Ry.,  113  Mo.  30S,  20  S.  W.  658,  18  L.  R. 
A.  339,  35  Am.  St.  Rep.  706  (1S92);  De  Geofroy  v.  Merchants'  Bridge  Ry.,  179 
Mo.  69S,  79  S.  W.  3S6,  64  L.  R.  A.  959,  101  Am.  St.  Rep.  524  (1904). 

As  to  how  far  novel  methods  of  street  transportation  are  within  the  "dam- 
age clauses,"  see  Kipp  v.  Daly-Davis  Copper  Co.,  41  Mont.  509,  110  Pac.  237, 
36  L.  R.  A.  (N.  S.)  666,  21  Ann.  Cas.  1372  (1910)  (cases). 


Ch.  12)  EMINENT    DOMAIN  769 

"It  is  contended  on  the  part  of  plaintiff  in  error  that  'the  proper 
construction  of  the  clause  under  consideration  is  to  take  away  from 
public  service  corporations  the  immunity  that  they  have  heretofore 
enjoyed  under  legislative  sanction,  and  place  them  on  the  same  footing 
with  individuals  and  private  corporations.  The  words  "or  damaged" 
mean  actionable  damages ;  that  is,  such  damages  as  would  form  the 
basis  of  an  action  at  common  law  or  under  some  general  statute, 
such  as  may  be  caused  by  the  physical  invasion  of  property  or  an  in- 
terference with  some  right,  public  or  private,  appurtenant  to  the 
property.' 

"To  this  proposition  we  cannot  give  our  unqualified  assent.  A  per- 
son, natural  or  artificial,  who  is  asking  nothing  with  respect  to  his 
property,  is  limited  in  the  use  of  his  own  property  only  by  the  maxim 
that  he  must  enjoy  it  in  such  a  manner  as  not  to  injure  that  of  an- 
other ;  or,  less  literally,  but  more  accurately,  perhaps,  'so  use  your 
own  property  as  not  to  injure  the  rights  of  another.'  Broom's  Leg. 
i  7th  Ed.)  p.  364. 

"But  in  the  case  before  us  the  Tidewater  Railway  Company  was 
not  the  owner  of  the  property.  It  had  been  unable  to  acquire  what 
it  needed  because  of  its  'inability  to  agree  on  terms  of  purchase  with 
those  entitled'  to  the  land  it  desired,  and  therefore  had  invoked  the 
exercise  of  the  power  of  eminent  domain ;  and  the  state  has  seen  fit 
to  prescribe  upon  what  terms  that  power  shall  be  exercised."  l 


OMAHA  HORSE  RY.  CO.  v.  CABLE  TRAMWAY  CO.  (1887) 
32  Fed.  727,  734,  Brewer,  J.  (holding,  under  the  damage  clause  of  the 
Nebraska  Constitution,  that  a  horse  railway  company  was  entitled  to 
compensation  for  loss  of  traffic  due  to  inconvenience  of  access  to  its 
cars,  caused  by  a  cable  road  being  placed  between  its  tracks  and  the 
sidewalk) : 

"Whenever  a  proposed  public  use  causes  to  property,  no  part  of 
which  is  taken,  an  injury  of  such  a  character  as,  if  it  accrued  when 

i  In  Lambert  v.  Norfolk.  108  Va.  259,  268,  Gl  S.  E.  770,  77!'.  17  I..  K.  A 
(N.  S.l  1001,  128  Am.  St.  Rep.  946  (1908),  a  recovery  was  denied  for  the  'li- 
ruiiiisiicii  market  value  of  plaintiff's  land  due  to  the  proximity  of  a  newly  es- 
tablished  municipal  cemetery;  Keith,  p.,  quoting  approvingly  from  Dillon,  Mo- 
nte. Corp.  |  5s7d :  "This  amendment  must,  I  seems  t"  as,  be  limited  t.> 
cases  where  the  corpus  of  the  owner's  property  Itself,  or  some  appurtenant 
ri::ht  or  easement  connected  therewith,  or  by  the  law  annexed  thereto,  Is  di- 
rectly (that  is,  in  general,  if  not  always,  physically)  affected,  and  la  a 
dally  affected  (that  is,  in  a  manner  Dot  common  to  the  property  owner  and  to 
i in-  public  at  large);  and  such  direct  and  speda]  injury  must  be  such  as  to 
depreciate  the  value  oi'  the  owner's  pro 

So,-,  also.  Omaha  &  N.  P.  K.  R.  v.  Jai  e  el  .  SO  Neb.  276,    i S  N    W.  478,  27 
Am.  St.  Rep.  399  (1890);    Lake  Erie  >\    \V.  R.  R  v.  Scott,  132  111.  429,  -I  N. 
E.  78,  8  L.  K.  a.  830  (1890);    in.  I  ent  R.  R.  v.  Trustees  of  Schools,  i 
406,  72  N.   E.  .••.:i  (1904);    I.,  &  N.  R.  R.  v.  Hall,  143  Ivy.  4'J7,  llJO  S.    ■ 
(1911);  and  17  I..  it.  A.  (N.  S.)  I0oo  {\.' 
Hall  Const. L. — 49 


770  fundamental  kights  (Part  2 

a  portion  of  the  property  was  taken,  would  form  a  proper  element 
of  the  damages  to  the  part  not  taken,  there  is  a  damage  within  the 
scope  and  protection  of  this  constitutional  provision,  and  entitling  the 
owner  to  compensation.  Take  this  illustration :  A  railroad  company 
condemns  a  right  of  way  through  a  farm  ;  the  value  of  the  strip  of 
land  thus  taken  is  always  awarded  as  damages;  so,  also,  the  injury 
which  results  to  the  balance  of  the  farm  by  reason  of  the  appropria- 
tion of  the  strip  taken  to  the  contemplated  use;  and  in  this  injury 
is  considered  the  difficulty  of  passage,  the  impairment  of  free  access 
between  one  part  of  the  farm  and  the  other.  The  presence  of  a  rail- 
road track,  with  its  moving  trains  through  the  middle  of  a  farm, 
causes  both  risk  and  inconvenience  in  passing  from  one  part  of  the 
farm  to  the  other.  And  this  inaccessibility,  as  we  may  call  it,  forms 
one  element  of  damages.  Another  illustration  of  a  similar  nature: 
Suppose  the  owner  of  a  lot  in  the  city  builds  a  store  on  the  rear  of 
that  lot,  leaving  vacant  ground  between  it  and  the  street.  If  a  rail- 
road company  condemns  a  right  of  way  over  his  vacant  ground  in 
front  of  his  store,  thus  interfering  with  freedom  of  access  from  the 
street,  the  same  rule  of  estimating  damages  would  apply,  and  the  in- 
accessibility would  be  declared  a  proper  subject  for  compensation. 
This  principle  controls  the  case  at  bar.  A  railroad  track,  with  passing 
cars  between  plaintiff's  track  and  the  sidewalk,  the  ordinary  passage- 
way of  foot  passengers,  impairs  more  or  less  access  to  plaintiff's  cars. 
It  is  a  direct  hindrance  and  injury  to  accessibility  thereto."  1 

i  For  the  proper  elements  of  legal  damage,  when  a  public  street  is  opened 
across  a  steam  railroad's  right  of  way,  see  Paris  v.  Cairo,  V.  &  C.  Ry..  248  111 
213,  93  N.  E.  729  (1911) ;  C,  B.  &  Q.  Ky.  v.  Chicago,  1GG  U.  S.  220,  251  ft'.,  17 
Sup.  Ct.  5S1,  41  L.  Ed.  979  (1S97) ;  Cin.,  etc.,  Ry.  v.  Connersville,  21S  TJ.  S.  336, 
31  Sup.  Ct.  93,  54  L.  Ed.  1060,  20  Ann.  Cas.  1206  (1910)  (street  cut  through 
railway  embankment). 

Tempokaby  Interferences  with  Property. — "It  is  well  settled  that 
inconvenience,  expense,  or  loss  of  business  occasioned  to  abutting  owners 
by  the  temporary  obstruction  of  a  public  street,  and  the  consequent  inter- 
ference with  their  right  of  access  to  their  property,  made  necessary  by 
the  construction  of  a  public  improvement,  gives  no  cause  of  action  against 
the  municipality.  The  Constitution  provides  no  remedy  for  the  property  own- 
er under  such  circumstances.  Such  claim  is  not  damage  to  property  not  tak- 
en, within  the  meaning  of  the  Constitution.  Lefkovitz  v.  City  of  Chicago,  23S 
111.  23,  87  N.  E.  58  (1908);  Osgood  v.  City  of  Chicago,  154  111.  194.  41  N.  E. 
40  (1894) ;  Northern  Transportation  Co.  v.  City  of  Chicago.  99  U.  S.  635,  25 
L.  Ed.  336  (1878)."— Chicago  Flour  Co.  v.  Chicago,  243  111.  268,  271,  90  N.  E. 
674,  676  (1910),  by  Dunn,  J.  See,  also,  Transp.  Co.  v.  Chicago,  ante,  p.  734, 
note.  And  so  of  entries  on  land  to  make  preliminary  surveys  for  public  Im- 
provements. State  v.  Seymour,  35  N.  J.  Law,  47,  53  (1871) ;  State  v.  Simons, 
145  Ala.  95,  40  South.  662  (1906). 


Ch.  12)  EMINENT   DOMAIN  771 

SECTION  4.— COMPENSATION 


BANGOR  &  PISCATAQUIS  R.  C<  l.  v.  McCOMB  (1872)  W  Me. 

290,  296,  297,  KENT,  J.  (discussing  the  meaning  of  the  constitutional 
requirement  of  "just  compensation"  when  property  is  taken  by  emi- 
nent domain) : 

"We  are  not  to  forget  that  the  property  has  been  taken  without 
the  consent  of  the  owner ;  that  the  act  overrides  the  fundamental 
right  of  every  man  to  possess,  manage  and  defend  his  property,  and 
that  it  is  enough  thus  to  seize  his  estate  without  making  him  a  pecun- 
iary sufferer.  The  words  selected  are  significant, — 'just  compensation.' 
These  words  cover  more  than  the  mere  value  of  the  quantity  taken, 
measured  by  rods  or  acres.  They  intend  nothing  less  than  to  save 
the  owner  from  suffering  in  his  property  or  estate,  by  reason  of  this 
setting  aside  of  his  right  of  property, — as  far  as  compensation  in 
money  can  go, — under  the  rules  of  law  applicable  to  such  cases. 

"In  some  cases  it  is  very  easy  to  apply  those  rules.  If  it  is  clear 
that  all  of  a  lot  of  land,  shown  to  have  been  worth  two  thousand  dol- 
lars, was  taken,  then  that  sum  would  be  the  extent  of  the  damage. 
If  personal  property  is  taken  from  the  possession  of  the  owner  and 
converted  to  the  use  of  the  public,  the  value  of  the  thing  taken,  at 
the  time  of  the  taking,  would  be  the  just  compensation  required.  If 
a  man's  horse  is  taken  and  it  goes  from  his  possession,  he  has  no 
longer  any  connection  with  the  subsequent  use  or  appropriation  of 
the  property.  It  can  no  longer  affect  him  in  the  use  or  value  of  his 
remaining  property.  But  not  so  with  land,  unless  the  whole  lot  is 
taken.  The  land  remains  unmoved,  and  in  various  ways  the  taking 
of  a  part  may  injure  the  former  owner  beyond  the  mere  value  of  so 
much  land. 

"The  effect  of  the  location  of  the  part  taken,  upon  the  remaining 
portion/may  be  such  as  to  render  it  of  very  little  value.  It  may  leave 
only  small  gores,  or  parts  incapable  of  piofitable  use.  Or  it  may  dis- 
figure the  lot,  so  that  it  would  be  worth  but  little,  although  the  extent 
of  the  part  remaining  might  be  greater  than  of  the  part  taken  \n- 
Other,  and  often  a  more  serious  injury,  is  in  the  use  to  which  the  land 
taken  is  to  be  appropriated.  If  for  a  common  highway,  the  use  might 
be  much  less  injury  to  the  remaining  land,  than  if  for  a  railroad. 
There  are  various  considi  ble  to  different  cases,  and  to 

the  situation  of  different  lots,  which  may  properly  be  regarded  in  de- 
termining the  just  com  to  the  owner.  The  constitutional 
provision  cannot  he  carried  out,  in  its  letter  and  spirit,  by  anything 
short  of  a  just  compensation  for  all  the  direct  damages  to  the  owner 
of  the  lot,  confined  to  that  lot,  occasioned  by  the  taking  of  his  land. 


772  FUNDAMENTAL    RIGHTS  (Part    2 

The  paramount  law  intends  that  such  owner,  so  far  as  that  lot  is  in 
question,  shall  be  put  in  as  good  a  condition,  pecuniarily,  by  a  just 
compensation,  as  he  would  have  been  in  if  that  lot  of  land  had  re- 
mained entire,  as  his  own  property.  How  much  less  is  that  lot,  and 
its  erections  thereon  remaining,  worth  to  the  owner,  as  property  to 
be  used  or  leased  or  sold  the  day  after  the  part  was  taken,  to  be  used 
for  the  purpose  designed,  than  the  whole  lot  intact  was  the  day  before 
such  taking?" 

[The  taking  being  for  the  purposes  of  a  railroad,  it  was  held  proper 
to  include  all  depreciation  of  the  sale  value  of  the  remainder  of  the 
tract  due  to  prospective  noise,  vibration,  smoke,  and  exposure  to  fire 
from  the  operation  of  the  road.]  * 

i  Accord :  South  Buffalo  Ry.  v.  Kirkover,  176  N.  Y.  301,  68  N.  E.  366  (1903) 
(use  for  which  part  is  taken  may  enhance  damage  to  remainder). 

"The  exception  to  the  Massachusetts  rule  denying  damages  for  quasi  nui- 
sances authorized  by  statute  is  that  some  annoyances,  which  otherwise  could 
not  have  been  recovered  for,  may  enhance  the  damages  allowed,  in  so  far  as 
they  are  brought  nearer  to  the  petitioner's  land  by  the  taking  of  a  part  of  it. 
The  petitioner  is  'entitled  to  recover,  not  only  compensation  for  the  land  tak- 
en, but  also  for  such  injury  to  his  remaining  land  as  is  caused  by  the  appro- 
priation of  a  part  of  it  for  the  uses  for  which  it  is  taken,'  (Johnson  v.  Bos- 
ton, 130  Mass.  452,  454  [1SS1])  not,  it  will  be  observed,  an  arbitrary  princi- 
ple that  taking  part  of  a  petitioner's  land  lets  in  a  claim  to  other  damages 
otherwise  not  allowable,  (compare  Blesch  v.  Railway  Co.,  48  Wis.  168,  189, 
190,  2  N.  W.  113  [1S79])  but  only  that  so  far  as  increased  proximity  is  the 
source  of  the  trouble  it  may  be  allowed  for.  The  difference  between  the  an- 
noyance just  outside  the  petitioner's  original  parcel  and  the  same  in  its  in- 
tended place  is  the  measure.  Walker  v.  Railway  Co.,  103  Mass.  10,  4  Am. 
Rep.  509  (1869).  The  distinction,  if  difficult  to  apply,  is  logical  with  reference 
to  matters  in  the  nature  of  nuisances  which  would  not  have  been  actionable 
apart  from  statute,  but  it  must  not  be  carried  too  far." — Taft  v.  Common- 
wealth, 158  Mass.  526,  54S,  33  N.  E.  1046,  1049  (1893).  by  Holmes,  J.  See, 
also,  Lincoln  v.  Commonwealth,  164  Mass.  36S,  41  N.  E.  4S9  (1S95). 

"It  is,  we  think,  settled  in  this  state,  that  a  person  whose  lands  are  ac- 
tually taken  for  the  uses  of  a  railroad  may  recover  the  value  of  the  lands 
taken,  and  for  any  other  injury  to  his  lands  not  taken,  being  a  part  of  the 
tract  used,  together  with  that  which  is  taken,  and  that  no  deduction  can  be 
made  from  such  damage  upon  the  pretext  that  his  injury  would  have  been 
just  as  great  had  the  road  been  constructed  in  any  other  place,  and  just  off 
his  land."— Blesch  v.  C.  &  N.  W.  Ry.,  48  Wis.  168,  1S9,  2  N.  W.  113,  117 
(1S80),  by  Taylor,  J. 

In  Baker  v.  Boston  Elev.  Ry.,  183  Mass.  178,  1S5,  66  N.  E.  711,  714  (1903), 
it  was  held  that,  under  a  statute  permitting  the  recovery  of  damages  due  to 
the  operation  of  an  elevated  railway  in  the  streets  of  Boston,  an  abutting 
owner  could  recover  all  damages  from  noise  so  great  as  to  amount  to  a  pri- 
vate nuisance,  Knowlton,  C.  J.,  saying:  "In  reference  to  the  amount  to  be 
recovered,  the  principle  on  which  the  statute  is  founded  seems  analogous  to 
the  common  law  in  regard  to  noise  as  a  disturbance  to  neighboring  landown- 
ers. In  actions  at  law,  so  long  as  the  noise  is  not  so  excessive  as  to  consti- 
tute a  private  nuisance  to  the  neighboring  property,  it  is  treated  as  per- 
missible, and  there  is  no  liability  for  the  effect  of  it.  But  when  it  increases 
so  as  to  become  a  private  nuisance,  its  effect  is  treated  as  of  a  different  char- 
acter; and  the  party  injured  by  it  may  recover  all  the  damage  caused  by 
the  nuisance,  without  attempting  to  determine  how  much  of  the  effect  is 
produced  by  that  part  of  the  noise  which  might  have  been  innocently  made, 
and  how  much  by  that  part  which  is  in  excess  of  that  which  is  allowable." 

Separate  Tracts  or  Same  Owner. — The  rule  of  the  principal  case 
does  not  include  damage  inflicted  by  the  taking  upon  distinct  and  separate 
tracts  of  land,  other  than  that  a  part  of  which  is  taken,  though  owned  by  the 


Ch.  12)  BMINBNT    DOMAIN  773 


BAUMAN  v.  ROSS. 

(Supreme  Court  of  United  States,   1897.     167  D.  S.  548,  17  Sup.  Ct.  068, 
4_'  L.   Ed.   270.) 

[Appeals  from  judgments  of  the  Supreme  Court  and  the  Court  of 
Appeals  of  the  District  of  Columbia  modifying  a  verdict  of  commis- 
sioners in  proceedings  to  condemn  land  for  streets  in  the  District. 
The  proceedings  were  taken  under  an  act  of  Congress  of  March  2, 
1893,  sections  11  and  15  of  which  provided  in  substance  that  when 
part  only  of  a  tract  of  land  was  thus  taken  the  damages  to  be  paid 
therefor  should  be  reduced  by  the  amount  that  the  remainder  of  the 
tract  was  increased  in  value  by  the  purpose  of  the  taking,  and  that 
the  assessment  to  pay  for  property  thus  taken  should  be  charged  half 
upon  land  benefited  by  the  improvement  and  half  upon  the  District, 
making  due  allowance  for  the  value  of  benefits  deducted  from  parts 
of  tracts  taken  as  above,  i'art  of  a  tract  of  land  of  one  Bauman 
was  sought  to  be  condemned  in  these  proceedings  and  the  award  of 
compensation  to  him  deducted  the  benefits  to  the  remainder  of  the 
tract.  The  two  courts  above  mentioned  held  this  violated  the  fifth 
amendment  to  the  federal  Constitution:  "Nor  shall  private  property 
be  taken  for  public  use  without  just  compensation."] 

Mr.  Justice  Gray.  *  *  *  The  just  compensation  required  by 
the  Constitution  to  be  made  to  the  owner  is  to  be  measured  by  the 
loss  caused  to  him  by  the  appropriation.  He  is  entitled  to  receive 
the  value  of  what  he  has  been  deprived  of,  and  no  more.  To  award 
him  less  would  be  unjust  to  him  :  to  award  him  more  would  be  un- 
just to  the  public. 

Consequently,  when  part  only  of  a  parcel  of  land  is  taken  for  a 
highway,  the  value  of  that  part  is  not  the  sole  measure  of  the  com- 
pensation or  damages  to  be  paid  to  the  owner;  but  the  incidental  in- 
jury or  benefit  to  the  part  not  taken  is  also  to  be  considered.  When 
the  part  not  taken  is  left  in  such  shape  or  condition  as  to  be  in  it- 
same  person.  As  to  what  are  distinct  and  separate  tracts,  sec  Sharp  v.  r  E 
181  U.  S.  341,  24  Sup.  Ct  114,  48  I..  Ed.  211  (1903);  Wellington  v.  B 
R.  R.,  104  Mass.  380,  M  N,  E.  652  (1895):  Davenpi  it.  etc.,  Ry.  v.  Slnnet,  111 
111.  App.  75  (1903);    White  v.  Met  Blev.  R.  R.,  154  111.  620,  (1894) 

Separate  [nterests   in   Sam?-.  Tract.— The  owners  of  such  interi 
to  be  COl  separately  and  may  not  unite  their   Interests   for  the  pur- 

pose of  Increasing  the  total  amount  of  dai  ..her  of  Corn- 

Boston,  195  Mass.  338,  S3  N  E.  244  1907),  affirmed  In  217  0.  8 
189,  193,  80  Sup.  Ct  459,  400,  54  L.  Ed.  725  (1910),  Holmes.  .1..  savin-:  -It  Is 
true  that  the  mere  mode  of  occupation  does  not  necessarily  limit  the  rigbl 
of  an  owner's  recovery.    Mississippi  &   R    l-'  •  Co   v.  Patterson,  0^  D 

s.    103,   108,  25  i.    Ed.  206,  208  (1878);    Louisville  >v;  N.  B    Co,  v.  Barber  a 

v.  Co.,  197  U.  S.  430,  435,   19  L.  Ed    B19,  822,  25 
Bui  theConsti  aot  n  iul  e  jard  ol  the  mode  of  ownership, 

Of  the  siat-  of  the  title.     It  does  aot   require  B   parcel  of  land  to  he  valued 
us  an  unencumbered  whole  when  it  is  not  held  as  an  on  I  whole. 

[uirea  that  an  owner  of  p  en  shot 

is   taken    from    him.      It   deals    With    pi  With    tracts    of    land.      And 

the  question  is.  What  has  the  owner  lost?  not.  What  has  the  taker  gained?" 


774  FUNDAMENTAL    RIGHTS  (Part  2 

self  of  less  value  than  before,  the  owner  is  entitled  to  additional  dam- 
ages on  that  account.  When,  on  the  other  hand,  the  part  which  he  re- 
tains is  specially  and  directly  increased  in  value  by  the  public  improve- 
ment, the  damages  to  the  whole  parcel  by  the  appropriation  of  part 
of  it  are  lessened.  If,  for  example,  by  the  widening  of  a  street,  the 
part  which  lies  next  the  street,  being  the  most  valuable  part  of  the 
land,  is  taken  for  the  public  use,  and  what  was  before  in  the  rear  be- 
comes the  front  part,  and  upon  a  wider  street,  and  thereby  of  greater 
value  than  the  whole  was  before,  it  is  neither  just  in  itself,  nor  re- 
quired by  the  Constitution,  that  the  owner  should  be  entitled  both  to 
receive  the  full  value  of  the  part  taken,  considered  as  front  land,  and 
to  retain  the  increase  in  value  of  the  back  land,  which  has  been  made 
front  land  by  the  same  taking. 

Of  the  overwhelming  number  of  decisions  in  the  courts  of  the  sev- 
eral states  which  support  this  view,  a  few  of  the  most  important  may 
conveniently  be  referred  to.  *  *  *  [Here  are  discussed  cases 
from  Massachusetts,  New  York,  New  Jersey,  Pennsylvania,  and 
Ohio.] 

The  rule  upon  the  subject  was  expressed  by  Mr.  Justice  Brewer, 
when  a  member  of  the  supreme  court  of  the  state  of  Kansas,  as  fol- 
lows :  "Outside  of  any  special  constitutional  or  statutory  restrictions, 
the  right  of  the  state  to  take  private  property  for  public  use,  and 
the  corresponding  right  of  the  individual  to  receive  compensation  for 
the  property  thus  taken,  may  be  assumed."  "But  this  compensation 
is  secured  if  the  individual  receive  an  amount  which,  with  the  direct 
benefits  accruing,  will  equal  the  loss  sustained  by  the  appropriation. 
We,  of  course,  exclude  the  indirect  and  general  benefits  which  result 
to  the  public  as  a  whole,  and  therefore  to  the  individual  as  one  of 
the  public;  for  he  pays  in  taxation  for  his  share  of  such  general 
benefits.  But,  if  the  proposed  road  or  other  improvement  inure  to 
the  direct  and  special  benefit  of  the  individual  out  of  whose  property 
a  part  is  taken,  he  receives  something  which  none  else  of  the  public 
receive,  and  it  is  just  that  this  should  be  taken  into  account  in  deter- 
mining what  is  compensation.  Otherwise,  he  is  favored  above  the 
rest,  and,  instead  of  simply  being  made  whole,  he  profits  by  the  ap- 
propriation, and  the  taxes  of  the  others  must  be  increased  for  his  spe- 
cial advantage.  Upon  general  principles,  then,  and  with  due  regard 
to  right  and  justice,  it  should  be  held  that  the  public  may  show  what 
direct  and  special  benefits  accrue  to  an  individual  claiming  road  dam- 
ages, and  that  these  special  benefits  should  be  applied  to  the  reduc- 
tion of  the  damages  otherwise  shown  to  have  been  sustained."  Com- 
missioners v.  O'Sullivan,  17  Kan.  58-60. 

The  Constitution  of  the  United  States  contains  no  express  prohibi- 
tion against  considering  benefits  in  estimating  the  just  compensation 
to  be  paid  for  private  property  taken  for  the  public  use;  and,  for  the 
reasons  and  upon  the  authorities  above  stated,  no  such  prohibition 
can  be  implied ;    and  it  is  therefore  within  the  authority  of  congress, 


Ch.  12)  EMINENT    DOMAIN  7  ,  .". 

in  the  exercise  of  the  right  of  eminent  domain,  to  direct  that,  when 
part  of  a  parcel  of  land  is  appropriated  to  the  public  use  for  a  highway 
in  the  District  of  Columbia,  the  tribunal  vested  by  law  with  the  duty 
of  assessing  the  compensation  or  damages  due  to  the  owner,  whether 
for  the  value  of  the  part  taken,  or  for  any  injury  to  the  rest,  shall 
take  into  consideration,  by  way  of  lessening  the  whole  or  either  part 
of  the  sum  due  him,  any  special  and  direct  benefits,  capable  of  present 
estimate  and  reasonable  compulation,  caused  by  the  establishment  of 
the  highway  to  the  part  not  taken.  *  *  * 
Judgments  reversed.1 


Matter  of  CITY  OF  NEW  YORK. 

(Court  of  Appeals  of  New  York.  1007.     1'JO  N.  I.  35      38  N.   E.  299,  16  L.  B. 
A.  (X.  S.)  335,  13  Ann.  Cas.  " 

[Appeal  from  an  order  of  the  Appellate  Division  of  the  first  ju- 
dicial department,  affirming  an  order  of  Special  Term  confirming  a 
report  of  commissioners  in  condemnation  proceedings  taken  by  New 
York  City  to  acquire  for  water-front  improvements  several  pieces  of 
land  owned  by  the  Consolidated  Gas  Company.  Parts  only  of  two  of 
these  tracts  of  land  were  taken,  and,  while  these  parts  were  of  sub- 
stantial value,  the  benefits  that  would  accrue  to  the  remainder  of  these 
tracts  from  the  projected  improvements  upon  the  parts  taken  ex- 
ceeded in  value  the  lands  taken.  Under  statutory  authority,  no  com- 
pensation was  allowed  for  the  parts  thus  taken,  and  the  Gas  Company 
appealed.] 

Cullen,  C.  J.  *  *  *  There  is  but  a  single  question  before  us. 
That  is,  whether  the  statutory  rule  of  compensation  conforms  to  the 
requirement  of  the  Constitution  that  private  property  shall  not  be 
taken  for  public  use  without  just  compensation.  Article  1,  §  6.  That 
this  is  a  judicial  question  was  held  by  the  Supreme  Court  of  the 
United  States  In  Monongahela  Navigation  Co.  v.  United  States,  148 
U.  S.  312,  13  Sup.  Ct.  622,  37  L.  Ed.  463,  where,  in  declaring  certain 
provisions  of  the  federal  statute  as  to  condemnation  unconstitutional 
and  invalid,  the  court,  through  Justice  Brewer,  said:  "By  this  legisla- 
tion Congress  seems  to  have  assumed  the  right  to  determine  what 
shall  be  the  measure  of  compensation.  But  this  is  a  judicial,  and 
not  a  legislative,  question.  *  *  *  It  docs  not  rest  with  the  public, 
taking  the  property,  through  Congress  or  the  Legislature,  its  repre- 
sentative, to  say  what  compensation  shall  be  paid,  or  even  what  shall 
be  the  rule  of  compensation."  Of  course,  this  is  true  only  in  one  di- 
rection; that  is  to  say,  that,  as  the  right  to  exercise  the  power  of  emi- 
nent domain  must  proceed  from  legislative  authority,  the  Legislature 
may  require  more  liberal  compensation  than  that  which  would  satisfy 

i  See  the  comment  on  tliis  ense  In  Mattel  of  Cltj   •>!    New   York.   190  N.   ■* 
350,  3G2,  303,  S3  N.  E.  299,  16  L.  B.  A.  (N.  S.)  :v.'.o,  13  Ann.  Cas.  59S  (1907). 


776  FUNDAMENTAL    RIGHTS  (Part  2 

the  constitutional  requirement,  but  it  cannot  direct  that  anything  less 
than  just  compensation  shall  be  made.     *     *     * 

The  question  before  us  has  been  the  subject  of  many  diverse  views 
in  the  courts  of  the  various  states.  Mr.  Lewis,  in  his  work  on  Emi- 
nent Domain,  thus  states  the  condition  of  the  authorities,  dividing 
them  into  five  classes:  *  (1)  Slates  holding  that  benefits  cannot  be  set 
off  at  all  (Mississippi).  (2)  Holding  that  special  benefits  may  be  set 
off  against  the  remainder,  but  not  against  the  part  taken  (Maryland, 
Nebraska,  Tennessee,  Virginia,  West  Virginia,  Wisconsin).  (3)  Hold- 
ing that  benefits  both  general  and  special  may  be  set  off  against  the 
remainder,  but  not  against  the  part  taken  (Georgia,  Louisiana,  Ken- 
tucky, Texas).  (4)  Holding  that  special  benefits  may  be  set  off  against 
the  part  taken  and  the  remainder  (Connecticut,  Kansas,  Maine,  Minne- 
sota, Missouri,  New  Hampshire,  North  Carolina,  Oregon,  Pennsyl- 
vania, Virginia,  District  of  Columbia).  (5)  Holding  that  benefits, 
both  general  and  special,  may  be  set  off  against  the  part  taken  and 
the  value  of  the  remainder  (Alabama,  California,  Delaware,  Illinois, 
Indiana,  New  York,  Ohio,  Oregon,  South  Carolina).  It  would  be 
impossible,  within  the  limits  of  an  opinion,  to  discuss  the  various  de- 
cisions cited  by  the  learned  author,  or  to  examine  in  every  case  the 
accuracy  of  his  classification.  It  may  be  observed,  however,  that  Il- 
linois, whatever  may  have  been  the  earlier  decisions  in  that  state,  can- 
not now  be  placed  in  the  fifth  class,  because  the  later  cases  hold  that 
the  owner  must  be  paid  the  full  value  of  the  land  taken  in  money 
alone  without  regard  to  the  benefits  he  may  receive.  Carpenter  v. 
Jennings,  77  111.  250;  Chaplin  v.  Highway  Com'rs,  129  111.  651,  22  N. 
E.  484;  Schroeder  v.  City  of  Joliet,  189  111.  43,  59  N.  E.  550,  52  L. 
R.  A.  634.  With  reference  to  this  state  also,  I  think  the  author  has 
fallen  into  error,  and  that  with  us  the  question  is  still  an  open  one. 
In  the  several  cases  cited  by  the  Supreme  Court  of  the  United  States 
in  Bauman  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct.  966,  42  L.  Ed.  270, 
and  by  Mr.  Lewis  (Livingston  v.  Mayor,  etc.,  of  New  York,  8  Wend. 
[N.  Y.]  85,  22  Am.  Dec.  622;  In  re  Furman  St.,  17  Wend.  [N.  Y.] 
649;  People  v.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y.  419,  55  Am.  Dec. 
266;  Genet  v.  City  of  Brooklyn,  99  N.  Y.  296,  1  N.  E.  777;  Granger 
v.  Syracuse,  38  How.  Prac.  [N.  Y.]  308;  Rexford  v.  Knight,  15  Barb. 
[N.  Y.]  627),  with  the  single  exception  of  Rexford  v.  Knight,  supra, 
the  proceedings,  the  validity  of  which  were  attacked,  were  dual,  in- 
volving not  only  an  award  of  compensation  for  land  taken,  but  an 
assessment  on  adjacent  property  for  the  cost  of  the  improvement.  I 
cannot  find  that  in  any  of  those  cases  the  owner  was  awarded  any- 
thing less  than  the  full  value  of  his  land;    the  attack  being  made  on 

i  A  more  recent  classification  by  the  same  writer  is  in  2  Lewis,  Em.  Dom. 
(3d  Ed.)  §§  687-693.  As  to  the  various  classes  of  benefits  that  land  may  re- 
ceive from  a  public  improvement,  see  Trinity  College  v.  Hartford,  32  Conn. 
452,  476-478  (1S65) ;  Baker  v.  Boston  Elev.  Ry.,  183  Mass.  178,  1S2,  66  N.  E. 
711  (1903) ;  and  as  to  the  distinction  between  general  and  special  benefits, 
see  2  Lewis,  Em.  Dom.  (3d  Ed.)  §§  702,  703. 


Ch.  12)  EMiNi;.M    DOMAIN  777 

the  provision  for  setting  off  the  assessment  against  the  award.  It  is 
the  blending  of  the  two  powers,  that  of  eminent  domain  and  that  of 
taxation,  which  has  led  to  the  confusion  as  to  the  effect  of  the  deci- 
sions of  this  state.     *     *     * 

In  Bohm  v.  Metropolitan  Elevated  R.  Co.,  129  N.  Y.  576,  29  N.  E. 
802,  14  L.  R.  A,  344,  Judge  Peckham  said  as  to  the  rule  of  compensa- 
tion:  "Before  entering  on  a  discussion  of  these  matters,  I  think  it 
proper  to  say  that  I  should  hesitate  to  admit  the  correctness  of  the 
claim  made  by  defendants  that  where  private  property  is  taken  by  a 
mere  business  corporation,  as  for  a  public  use  under  the  granted  power 
of  eminent  domain,  the  Legislature  could  provide  that  such  property 
could  be  paid  for  by  benefits  accruing  to  the  landowner's  adjacent 
property  consequent  upon  the  taking.  This  is  the  case  in  regard  to 
municipal  corporations  where  land  is  taken  for  a  public  street,  or  other 
public  and  municipal  purposes,  and,  where  the  benefits  arising  to  the 
adjacent  lands  of  the  owner  whose  property  is  taken,  may  be  set  off 
against  the  value  of  the  land  taken.  So  in  the  case  of  property  taken 
by  the  state  for  canal  or  other  public  purposes,  where  the  owner  of 
the  land  taken  was  frequently  paid  its  value  by  the  benefits  received 
to  his  adjacent  land  not  taken.  The  principle  underlying  these  cases 
is,  however,  the  right  of  the  municipality  or  state  to  tax  the  owners  of 
the  land  left,  in  order  to  pay  for  the  land  taken,  on  the  ground  that 
they  are  specially  benefited  by  the  taking,  and  hence  should  be  specially 
taxed  for  the  payment  of  *the  land.  The  case  of  Genet  v.  City  of 
Brooklyn,  99  N.  Y.  296,  1  N.  E.  777,  is  no  authority  for  a  contrary 
view,  for  I  think  it  supports  that  which  I  have  suggested.  A  mere 
trading  or  business  corporation  has  no  power  of  taxation,  and  the 
state  could  not  delegate  such  power  to  it."  This  review  of  the  cases 
shows  that  there  is  no  controlling  decision  of  the  court  or  of  its  pred- 
ecessor, the  Court  of  Errors,  on  the  question  presented,  and  we  must 
determine  it  on  principle. 

We  will  first  consider  the  proceedings  as  solely  in  the  exercise  of 
the  power  of  eminent  domain.  It  is  the  settled  law  of  this  state  that 
the  character  and  quantity  of  the  estate  in  lands  to  be  acquired  for 
public  use  rests  wholly  in  the  determination  of  the  Legislature.  It 
may,  as  in  this  case  it  has.  authorize  the  acquisition  of  the  fee  in  which 
case  there  is  no  right  of  reversion  left  in  the  original  owner.  *  * 
[Here  are  discussed  Heyward  v.  Mayor  of  N.  Y..  7  X.  Y.  314  (alms- 
house), Brooklvn  Park  Com.  v.  Armstrong,  45  X.  Y.  234,  6  Am.  Rep. 
70  (park),  and  Whitney  v.  X.  Y..  96  X.  Y.  241  (canal),  holding  that 
the  abandonment  of  a  public  purpose  for  which  land  has  been  con- 
demned gives  no  reversion  or  right  of  action  to  the  former  owner.] 

If,  then,  under  the  settled  law  of  this  state,  land  acquired  in  fee 
for  a  public  use  can  be  forever  diverted  from  the  owner,  and  there 
is  no  obligation  to  continue  the  public  use  for  which  it  was  appro- 
priated and  no  cause  of  action  arises  in  favor  of  the  landowner  for 
the   abandonment  of  the   improvement,   how  is   it  possible  to  assert 


778  FUNDAMENTAL    RIGHTS  (Part  - 

that  the  benefits  that  result  from  such  an  improvement  can  be  con- 
sidered as  compensation  for  deprivation  of  the  land?  With  the  ut- 
most deference  to  the  opinions  of  the  learned  courts  of  other  states 
and  of  the  United  States,  it  seems  to  me  that  the  question  admits  of 
but  one  answer.  I  frankly  concede  that  mere  theoretical  possibilities 
of  what  may  occur  ought  not  to  control  the  practical  administration 
of  the  law,  but  I  have  cited  three  cases  that  have  actually  occurred 
in  this  state.  In  the  Heyward  Case  probably  no  real  damage  could 
have  occurred  to  the  landowner  by  the  removal  of  the  almshouse, 
but  in  the  Brooklyn  Park  Case  and  in  the  canal  cases  injury  to  the 
adjacent  property  by  the  abandonment  of  the  improvement  might 
have  and  in  all  probability  did  actually  occur.  In  the  Brooklyn  Park 
Case  the  contemplated  improvement  was  abandoned  before  its  pros- 
ecution was  ever  actually  commenced.  But  in  that  case  the  landowner 
had  no  just  cause  of  complaint  because  he  was  paid  the  full  value  of 
his  property  and  subjected  to  no  assessment.  In  the  case  of  the  aban- 
doned canals  the  landowners  certainly  lost  compensation  for  their 
property.  It  may  be  further  said  that,  with  the  exception  of  the  law 
regulating  compensation  for  canals,  I  do  not  now  recall  any  statute 
of  this  state,  except  the  one  now  before  us,  which  has  assumed  to 
offset  benefits  against  the  value  of  the  land  taken  in  a  proceeding 
strictly  in  the  exercise  of  the  power  of  eminent  domain.  A  curious 
result  that  may  arise  from  such  a  rule  of  compensation  is  found  in 
Matter  of  48th  St.,  19  App.  Div.  602,  46  N.  Y.  Supp.  311.  Under  the 
charter  provisions  regulating  street  openings  in  the  city  of  Brooklyn, 
commissioners  of  appraisal  merely  made  the  award  for  land  taken. 
The  local  assessments  for  benefits  were  made  by  the  board  of  as- 
sessors, a  body  of  permanent  officers.  The  proceedings,  therefore, 
of  eminent  domain  and  of  taxation  were  wholly  distinct.  The  com- 
missioners in  making  their  award  deducted  supposed  benefits.  Had 
the  award  been  allowed  to  stand,  the  landowner  would  have  had  to 
pay  a  double  share  of  the  cost  of  improvement,  first,  by  deduction 
from  his  award;  and,  second,  by  the  assessment  laid  on  his  adjacent 
property  by  the  board  of  assessors.  The  Appellate  Division  of  the 
Supreme  Court  set  aside  the  action  of  the  commissioners,  holding  that 
in  such  a  situation  no  benefits  could  be  deducted  from  the  awards  in 
the  appraisal  proceedings ;  yet,  if  the  true  rule  of  compensation  justi- 
fies the  deduction  for  benefits,  I  cannot  see  why  as  a  matter  of  strict 
law  the  commissioners  are  not  justified  in  their  action,  regardless  of 
the  inequitable  results  that  would  flow  from  it.  I  appreciate  fully 
that  it  is  not  possible  to  lay  down  a  fixed  rule  on  this  subject  which  will 
in  every  case  work  exact  justice.  That  benefits  may  not  be  set  off 
against  consequential  damages  to  the  part  of  the  land  not  taken  I  do 
not  assert.  On  the  contrary,  this  would  generally  accomplish  an 
equitable  result  (Newman  v.  Metropolitan  El.  Ry.  Co.,  118  N.  Y.  618, 
23  N.  E.  901,  7  L.  R.  A.  289;  Bohm  v.  Metr.  El.  Ry.  Co.,  supra),  but 
this  much  we  can  hold,  and  I  think  we  should  hold,  that  in  no  case 


t'h.  12)  EMINKNT    DOMAIN  77'.» 

should  an  award  be  made  for  less  than  the  value  of  the  property  ac- 
tually taken   by   condemnation.     In  that  position   the   courts   of   this 
state  will  not  stand  alone,  but  will  have  the  support  of  those  in  the 
states  already  enumerated  in  the  first  three  of  Air.  Lewis'  classe 
in  addition  thereto,  the  courts  of  Illinois.     *     *     * 

Order  reversed. 

[It  was  held  that  the  set-off  of  benefits  against  land  taken  for  this 
improvement  could  not  be  justified  under  the  taxing  power  on  account 
of  the  accidental  and  arbitrary  mode  in  which  the  burden  was  dis- 
tributed.    See  Spencer  v.  Merchant,  ante,  p.  644  and  notes.] 


BOHM  v.  METROPOLITAN  ELEVATED  RY.  CO. 

(Court  or  Appeals  of  New  York,  1892.    129  X.  V.  r>76,  29  N.  B.  SOU,  14 
L.   R.   A.   IS44.) 

[Appeal  from  a  judgment  of  the  New  York  City  General  Term  of 
the  Superior  Court,  affirming  a  judgment  for  plaintiff  entered  on 
trial  at  Special  Term.  Plaintiff  sued  to  recover  damages  all. 
be  due  to  interference  with  easements  of  light,  air,  and  access  ap- 
purtenant to  his  premises  on  Second  avenue  in  Xcw  York  City,  caused 
by  defendant's  elevated  street  railroad  in  that  street.  Other  facts  ap- 
pear in  the  opinion.] 

Peckham,  J.  *  *  *  The  plaintiffs  own  no  land  in  the  street. 
Their  ownership  of  the  land  is  bounded  by  the  exterior  lines  of  the 
street  itself.  Hence,  when  under  legislative  and  municipal  authority 
the  railroad  structure  was  built,  it  was  supposed  by  many  there  was 
no  liability  to  abutting  owners,  because  no  land  of  theirs  was  taken, 
and  any  damage  they  sustained  was  indirect  only,  and  damnum  absque 
injuria.  When  the  courts  acquired  possession  of  the  question,  and 
it  was  seen  that  abutting  land,  which,  before  the  erection  of  the  road, 
was  worth,  for  instance,  $10,000.  might  be  reduced  to  a  half  or  a 
quarter  of  that  sum  in  value,  or  even  rendered  practically  worthless, 

tson  of  the  building  of  the  road,  it  became  necessary  t<> 
tain  if  there  were  not  some  principle  of  law  which  could  be  resorted 
to  in  order  to  render  those  who  wrought  such  damage  liable  for  their 
work.     It  has  now  been   decided  that,   although  the   land   itself  \va< 
not  taken,  yet  the  abutting  owner,  by  reason  of  his  situation,  had  a 
kind  of  property  in  the  public  street  for  the  purpose  of  giving  ; 
land  facilities  of  light,  of  air,  and  of  access  from  such  street.     Thes< 
rights  of  obtaining  for  the  adjacent  lands  facilities  of  light,  etc..  wen 
called  "easements,"  and  were  held  to  be  appurtenant  to  the  land  which 
fronted   on   the  public  street.     These   easements  were   decided   to   be 
property,  and  protected  by  the  constitution  from  being  taken  without 
just  compensation.     It  was  held  that  the  defendants,  by  the  ei 
of  their  structure  and  the  operation  of  their  trains,  interfered  with 


780  FUNDAMENTAL    RIGHTS  (Part  2 

the  beneficial  enjoyment  of  these  easements  by  the  adjacent  land- 
owner, and  in  law  took  a  portion  of  them.  By  this  mode  of  reason- 
ing the  difficulty  of  regarding  the  whole  damage  done  to  the  adjacent 
owner  as  consequential  only,  (because  none  of  his  property  was  taken,) 
and  therefore  not  collectible  from  the  defendants,  was  overcome. 
The  interference  with  these  easements  became  a  taking  of  them  pro 
tanto,  and  their  value  was  to  be  paid  for;  and,  in  addition,  the  dam- 
age done  the  remaining  and  adjoining  land  by  reason  of  the  taking 
was  also  to  be  paid  for,  and  this  damage  was  in  reality  the  one  great 
injury  which  owners  sustained  from  the  building  and  operation  of 
the  defendants'  road.  For  the  purpose  of  permitting  such  a  recovery, 
the  taking  of  property  had  to  be  shown.  The  Cases  of  Story,  Lahr, 
Drucker,  Abendroth,  and  Kane  (the  last  of  which  is  reported  in  125 
N.  Y.  164,  26  N.  E.  278,  11  L.  R.  A.  640,  and  in  which  the  others  are 
referred  to)  finally  and  completely  settled  these  matters. 

It  seems  to  me  plain  from  this  review  of  the  law  that  the  real  in- 
jury (if  any)  suffered  by  the  land-owner  in  any  particular  case  lies 
in  the  effect  produced  upon  his  abutting  land  by  the  wrongful  inter- 
ference of  defendants  with  these  easements  of  light,  air,  and  access 
to  such  land ;  and  where  they  are  interfered  with,  and,  in  legal  effect, 
taken  to  any  extent,  it  is  not  possible  to  think  of  them  as  of  any  value 
in  and  of  themselves,  separated  from  the  adjoining  land,  but  their 
value  is  to  be  measured  by  the  injury  which  such  taking  inflicts  upon 
the  land  which  is  left,  and  to  which  they  were  appurtenant.  This  is 
a  consequential  damage.  It  is  not  the  light  or  the  air  that  is  valuable, 
separated  from  the  land  adjoining.  With  regard  to  the  subject  un- 
der discussion,  there  is  and  can  be  no  value  in  a  given  quantity  of 
air  or  space  or  light  in  the  public  street,  except  as  it  may  be  used  in 
connection  with  and  as  appurtenant  to  the  abutting  land.  When  a 
person  interferes  with  such  light,  air,  or  access,  and  takes  it,  he  takes 
nothing  which  is  alone  and  intrinsically  valuable,  but  only  as  its  loss 
affects  the  adjoining  land.  This  loss,  while  purely  consequential,  is 
nevertheless  a  liability  which  the  person  proposing  to  take  the  prop- 
erty is  bound  to  discharge.  The  rule  which  the  counsel  for  the  plain- 
tiffs contends  for  is  a  pure  abstraction,  and  liable  in  many  instances 
to  cause  injustice  in  its  application,  because  it  would  fly  in  the  face 
of  the  actual  facts.  Easements,  he  says,  are  worth  exactly  the  amount 
which  they  add  to  the  value  of  the  premises  to  which  they  are  appur- 
tenant ;  and  no  reference  to  the  particular  agency  by  which  the  taking 
or  interference  with  such  easements  has  been  accomplished  should  be 
permitted,  even  for  the  purpose  of  determining  the  damage  that  has 
been  thereby  caused.  The  pure  abstraction  of  a  curtailment  or  de- 
struction of  the  easement  must  be  indulged  in,  and  no  effect  other 
than  such  curtailment  or  destruction  upon  the  property  left  is  to  be 
regarded.  Carrying  out  this  principle,  it  might  appear  that  a  lot  on 
Second  avenue,  with  its  easements  of  light,  air,  and  access  unim- 
paired, would  be  worth  $5,000.    To  deprive  it  in  some  undefined  way 


Cll.  12)  BMINENT    DOMAIN  7;»  1 

other  than  by  defendants  of  a  portion  of-  such  easements  equal  to 
the  amount  taken  by  the  defendants  might  detract  from  the  value  of 
the  lot  $2,500.  Therefore  $2,500  is  the  value  of  the  easement,  which 
the  defendants  must  pay.  This  is,  as  I  have  said,  a  pure  abstraction. 
No  such  case  exists  or  can  exist.  The  same  property  cannot  be  taken 
by  some  other  agency  and  by  the  defendants  at  the  same  time. 
in,'  the  theory  of  the  plaintiffs'  counsel,  it  can  be  easily  seen  how, 
in  fact,  the  injustice  imagined  might  be  perpetrated.  A  plaintiff,  after 
proving  that  the  damage  to  his  property,  if  the  easement  had  been 
taken  by  some  process  and  by  some  person  other  than  defendants, 
would  upon  such  hypothesis  have  been  $2,500,  might  be  met  by  de- 
fendants with  proof  of  the  fact  that  he  had  sustained  no  damage 
whatever,  and,  on  the  contrary,  by  reason  of  the  erection  of  the  road, 
he  had  been  specially  and  peculiarly  benefited,  his  property  being  in 
actual  fact  worth  50  or  100  per  cent,  more  than  it  was  before.  Would 
there  not  be  great  injustice  in  awarding  to  such  an  owner  $2,500  for 
damages  which  in  truth  he  had  never  suffered?  The  separate  value 
of  light  and  air,  upon  the  facts  existing  in  all  these  cases,  can,  in  the 
nature  of  things,  be  nothing  but  nominal.  They  must  be  joined  to  the 
land  to  be  of  value.     *     *     * 

The  inquiry  whether  the  land  would  have  been  injured  if  certain 
circumstances  had  not  occurred,  which  not  only  prevented  such  in- 
jury, but  enhanced  its  value,  is  wholly  immaterial.  The  question  is, 
what,  in  fact,  has  been  the  actual  result  upon  the  land  remaining? 
Has  its  actual  market  value  been  decreased  by  the  taking,  or  has  the 
taking  prevented  an  enhancement  in  value  greater  than  has  actually 
occurred;  and,  if  so,  to  what  extent?  The  amount  of  such  decrease 
in  the  value  of  the  remaining  land,  or  the  amount  of  the  difference 
between  its  actual  market  value  and  what  it  would  have  been  worth 
if  the  railroad  had  not  taken  the  other  property,  is  the  amount  of  the 
damage  which  the  defendants  should  pay.  If,  on  the  contrary,  there 
has  been  neither  decrease  in  value  caused  by  the  railroad,  nor  any 
prevention  of  an  increase  from  the  same  cause,  how  can  it  be  truly 
said  that  the  lot-owner  has  been  injured  to  the  extent  of  a  fa; 
The  absence  of  injury  may  have  been  the  result  of  the  general  g 
of  the  city,  by  reason  of  which  the  particular  property  has  grown  in 
value  with  the  rest  of  the  city.  It  is  the  fact,  not  the  cause,  which  is 
material.  Where  it  appears  that  the  property  left  has  actually  ad- 
vanced, in  value,  unlessflk  can  be  shown  that,  but  for  the  act  of  de- 
fendants in  taking  these  easements,  it  would  have  grown  still  more 
in  value,  the  fact  is  plain  that  it  has  not  been  damaged.     *     *     * 

The  defendants  are  not,  however,  compelled  to  base  their  claims 
of  exemption  upon  quite  so  broad  a  foundation.  They  ?ay  it  appears 
by  the  uncontradicted  evidence  that  the  railroad  1  ed  the 

increase  in  value  -of  all  the  lands  on  Second  avenue,  including  the 
plaintiffs'  lots;  and,  as  I  have  said,  the  evidence  bears  out  such  claim 
If  this  be  the  fact,  how  can  it  be  said  that  the  plaintiffs  have  stiff eivd 


782  FUNDAMENTAL    RIGHTS  (Part  2 

damage?  There  is  no  shadow  of  evidence  that,  if  the  defendants  had 
not  taken  this  property  and  built  their  railroad,  the  property  of  the 
plaintiffs  would  have  been  as  valuable,  or  anything  like  as  valuable, 
as  it  is.  The  plaintiffs  have  in  truth  been  specially  benefited  by  this 
railroad,  although  quite  a  number  of  others  have  also  participated 
therein.  This  special  cause  is  the  railroad,  and  a  special  benefit  may 
result  to  many  from  such  special  cause.  The  fact  that  other  property 
in  the  vicinity  and  in  the  side  streets  has  been  more  than  proportion- 
ately increased  in  value  by  reason  of  the  existence  of  the  defendants' 
road  is  not  of  the  slightest  importance  upon  the  question  of  whether 
the  plaintiffs  have  been  injured  by  defendants'  conduct.  *  *  *  It 
is  only  necessary  for  us  in  this  case  to  decide  that,  if  the  property  of 
the  plaintiffs  have  increased  in  value  since  the  taking  of  these  ease- 
ments, or  a  portion  of  them,  and  if  such  increase  is  largely  due  to  the 
building  and  operation  of  the  defendants'  road,  and  if  such  increase 
would  not  have  been  greater  but  for  Ihe  action  of  defendants,  then 
the  plaintiffs  have  suffered  no  damage.  Whether  the  increase  is  com- 
mon to  every  other  owner  in  the  avenue,  and  is  greater  in  proportion 
with  some  owners  of  property  in  the  side  streets  than  with  the  plain- 
tiffs, are  matters  of  no  importance.  The  plaintiffs  are  not  damaged 
because  their  neighbors  are  benefited  to  an  even  greater  extent  than 
they  are  by  the  defendants'  road.     *     *     * 

Judgment  reversed.1 

[Gray,  J.,  not  voting.] 

i  See  Newman  v.  Metrop.  Elev.  Ry.,  118  N.  T.  618,  23  N.  E.  901,  7  L.  R.  A. 
280  (1S90).  Compare  Becker  v.  Met.  El.  Ry.,  131  N.  T.  509,  30  N.  E.  499  (1S92). 
Where  the  only  taking  is  of  the  abutter's  easements  of  light,  air,  and  access, 
no  recovery  is  allowed  for  elements  of  damage  due  to  the  operation  of  the 
railroad,  but  not  affecting  these,  such  as  noise,  vibration,  disturbance  of  pri- 
vacy, obstruction  of  view,  etc.,  American  B.  N.  Co.  v.  N.  Y.  Elev.  R.  R.,  129 
N.  Y.  252,  29  N.  E.  302  (1S91) ;  Bischoff  v.  N.  Y.  E.  R.  R.,  13S  N.  Y.  257,  33 
N.  E.  1073  (1S93) ;  though  these  would  be  recoverable  as  part  of  the  damage 
to  the  remainder  of  the  tract  if  a  part  of  the  land  itself  were  taken,  South 
Buffalo  Ry.  v.  Kirkovcr,  170  N.  Y.  301,  68  N.  E.  366  (1903).  For  the  elements 
of  damage  that  do  affect  these  easements,  see  the  above  cases  in  129  N.  Y. 
and  13S  N.  Y. 

Elements  or  Compensation  and  Modes  of  Valuation. — See,  for  some 
phases  of  these,  as  regards  real  estate:  Boom  Co.  v.  Patterson,  98  U.  S. 
•403,  25  L.   Ed.  206  (1879);    U.   S.  v.  Chandler-Dunbar  Co.,  229  U.    S.  53.   74 

ff.,  33  Sup.  Ct.   667,  57  L.  Ed.  (1913):    McGovern  v.  N.  Y.   City,  229  IT. 

S.  363,  33   Sup.  Ct.  876,  57  L.  Ed.  (1913) ;    Minn.  Rate  Cases,   230  U.  S. 

352,,  33  Sup.  Ct.  729.  57  L.  Ed.  (1913) ;    personalty  and  fixtures :    W.  Lar- 

remore  in  11  Col.  L.  Rev.  147  (1911) ;  business  and  employments  (under  spe- 
cial statutes):  Id.  152-156;  Matter  of  AshokaffKbam,  N.  Y.  Dept.  Repts. 
(Adv.  Sheets,  Jan.  2,  1913)  129;  improvements  affixed  to  realty  by  taking  par- 
ty before  condemnation:  St.  Johnsville  v.  Smith,  184  N.  Y.  341,  77  N.  E.  617. 
5  L.  R.  A.  (N.  S.)  922,  6  Ann.  Cas.  379  (1906);  Norfolk,  etc.,  Ry.  v.  Consol. 
Turnpike  Co..  Ill  Va.  131,  6S  S.  E.  346,  Ann.  Cas.  1912A,  239  (1910);  5  L.  R. 
A.  (N.  S.)  922,  923,  cases  and  references. 


Ch.  12)  EM1NKNT    DOMAIN  783 


SWEET  v.  RECHEL. 

(Supreme  Court  of  United  States,  L895.     159  U.  S.  380,  16  Sup.  Ct.  43,  40 
L.   Ed.  188.) 

[Error  to  United  States  Circuit  Court  for  Massachusetts.  Plaintiff 
sued  to  recover  from  defendant  land  in  Doston  held  by  defendant  un- 
der a  title  derived  from  condemnation  proceedings  taken  by  the  city 
of  Boston  under  legislative  authority.  For  the  public  health  the  city 
was  empowered  to  take  and  raise  the  grade  of  certain  submerged  land 
privately  owned.  The  city  was  to  file  with  the  county  register  of 
deeds  a  description  of  the  land  thus  taken,  with  a  statement  of  the 
taking,  and  thereupon  title  was  to  vest  in  the  city.  Any  owner  of 
land  so  taken  who  agreed  with  the  city  upon  his  damages  was  to  have 
them  paid  forthwith  by  the  city,  and  any  other  person  interested  was 
authorized  within  one  year  from  said  taking  to  file  a  bill  in  equity 
to  have  his  damages  ascertained  by  commissioners  under  judicial  di- 
rection, and  to  have  an  execution  against  the  city  for  the  damages 
thus  ascertained.  Plaintiff  alleged  the  invalidity  of  title  derived  un- 
der this  proceeding  and  took  this  writ  from  a  judgment  in  favor  of 
defendant.] 

Mr.  Justice  Harlan.  *  *  *  But  must  compensation  be  ac- 
tually made  or  tendered  in  advance  of  such  taking  or  appropriation? 
Is  it  not  sufficient,  in  order  to  meet  the  requirements  of  the  Constitu- 
tion, if  adequate  provision  be  made  for  compensation? 

The  Constitutions  of  some  of  the  states  expressly  require  that  com- 
pensation be  first  made  to  the  owner  before  the  rights  of  the  public 
can  attach.  But  neither  the  Constitution  of  Massachusetts  nor  the 
Constitution  of  the  United  States  contains  any  such  provision.  The 
former  only  requires  that  the  owner  "shrill  receive  a  reasonable  com- 
pensation";  the  latter,  that  private  property  shall  not  be  taken  for 
public  'use  "without  just  compensation."  Reasonable  compensation 
and  just  compensation  mean  the  same  tiling. 

In  Haverhill  Bridge  Prop'rs  v.  County  Com'rs,  103  Mass.  120.  124. 
4  Am.  Rep.  518.  the  court  said:  "The  duty  of  paying  an  adequate 
compensation  for  private  property  taken  is  inseparable  from  the  ex- 
ercise of  the  right  of  eminent  domain.  The  act  granting  the  power 
must  provide  for  compensation,  and  a  ready  means  of  ascertaining  the 
amount.  Payment  need  not  precede  the  seizure,  but  the  means  for 
securing  indemnity  must  be  such  that  the  owner  will  be  put  to  no  risk 
or  unreasonable  delay." 

A  leading  case  upon  this  point  is  Connecticut  River  R.  R.  v.  Frank- 
lin Com'rs,  127  .Mass.  50.  52,  56,  34  Am.  Rep.  338.  That  ca^. 
under  a  statute  of  Massachusetts  authorizing  the  manager  of  a  rail 
road  owned  by  the  commonwealth  to  take  land  for  a  passenger  station 
to  be  used  by  that  and  other  railroads,  and  providing  no 
of  compensation  to  the  owner  than  that  the  land  should  be  paid  for 
out  of  the  earnings  of  the  railroad.     The  statute  was  held  to  be 


7S4  FUNDAMENTAL    RIGHTS  (Part  2 

The  court  said:  "It  has  long  been  settled  by  the  decisions  of  this 
court,  that  a  statute  which  undertakes  to  appropriate  private  prop- 
erty for  a  public  highway  of  any  kind,  without  adequate  provision 
for  the  payment  of  compensation,  is  unconstitutional  and  void,  and 
does  not  justify  an  entry  on  the  land  of  the  owner  without  his  con- 
sent,"— citing  among  other  cases  Boston  &  L.  R.  Corp.  v.  Salem  & 
h.  R.  Co.,  2  Gray,  1,  37.  Again :  "Statutes  taking  private  property 
for  a  public  highway,  and  providing  for  the  ascertaining  of  the  dam- 
ages, and  for  payment  thereof  out  of  the  treasury  of  the  county,  town, 
or  city,  have  often  been  held  to  be  constitutional.  But,  in  the  cases  in 
which  it  has  been  so  held,  the  liability  to  pay  the  damages  rested  upon 
the  whole  property  of  the  inhabitants  of  the  municipality,  and  might 
be  enforced  by  writ  of  execution  or  warrant  of  distress,  or  by  manda- 
mus to  compel  the  levy  of  a  general  tax.  The  rule  has  not  been  ex- 
tended to  cases  in  which  only  a  special  fund  was  charged  with  the 
payment  of  the  damages,  and  the  municipality  had  no  power  to  levy 
a  general  tax  to  pay  them."  "When,"  the  court  said,  "private  prop- 
erty is  taken  directly  by  the  commonwealth  for  the  public  use,  it  is 
not  necessary  or  usual  that  the  commonwealth  should  be  made  sub- 
ject to  compulsory  process  for  the  collection  of  the  money  to  be  paid 
by  way  of  compensation.  It  is  sufficient  if  the  statute  which  au- 
thorizes the  taking  of  the  property  should  provide  for  the  assessment 
of  the  damages  in  the  ordinary  manner,  and  direct  that  the  damages 
so  assessed  be  paid  out  of  the  treasury  of  the  commonwealth,  and  au- 
thorize the  governor  to  draw  his  warrant  therefor." 

Much  stress  was  placed  by  counsel  in  that  case  upon  the  admitted 
fact  that  the  earnings  of  the  railroad  owned  by  the  commonwealth 
would  probably  be  sufficient  to  meet  and  extinguish  all  claims  for 
damages  for  lands  taken.  But  that,  the  court  well  said,  fell  short  of 
the  constitutional  requirement  that  the  owner  of  property  shall  have 
prompt  and  certain  compensation,  without  being  subjected  to  undue 
risk  or  unreasonable  delay. 

In  the  later  case  of  Brickett  v.  Haverhill  Aqueduct  Co.,  142  Mass. 
394,  396,  8  N.  E.  119,  the  language  of  the  court  was  that  "a  statute 
which  attempts  to  authorize  the  appropriation  of  private  property  for 
public  uses,  without  making  adequate  provision  for  compensation,  is 
unconstitutional  and  void." 

In  view  of  these  authorities,  it  is  clear  that,  as  the  constitution  of 
Massachusetts  does  not  require  compensation  to  be  first  actually  made 
or  tendered  before  the  rights  of  the  public  in  the  property  taken  or 
applied  become  complete,  the  requirements  of  that  instrument  are  fully 
met  where  the  statute  makes  such  provision  for  reasonable  compen- 
sation as  will  be  adequate  and  certain  in  its  results.  It  is  equally 
clear  that  an  adequate  provision  is  made  when  the  statute,  author- 
izing a  public  municipal  corporation  to  take  private  property  for  pub- 
lic uses,  directs  the  regular  ascertainment,  without  improper  delay 
and  in  some  legal  mode,  of  the  damages  sustained  by  the  owner,  and 


Cfa.  l-j  EMINENT    in, MAIN 

gi"es  him  an  unqualified  right  to  a  judgment  for  the  amount  of  such 
damages,  which  can  be  enforced — that  is,  collected — by  judicial  pro- 
cess. 

Substantially  the  same  principles  have  been  announced  by  this  court 
when  interpreting  the  clause  of  the  Constitution  of  the  United 
that   forbids  the   taking  of   private  property    for  public  use   without 
just  compensation.     *     *     *     [Here  are  discussed  Cherokee  Xatio:i 
v.  So.  Kan.  R.  K.,  135  U.  S.  641,  658,  10  Sup.  Ct.  965,  34  L.  Ed 
Kennedy  v.  Indianapolis,  103  U.  S.  599,  603,  26  L.  Ed.  550; 
more,  etc.,  Co.  v.  Nesbit,  10  How.  3!  .  13  L.  Ed    I 

good  v.  Mohawk,  etc.,  Co.,  18  Wend.  (N.  Y.)  9,  17,  18,  31  Am.  Dec. 
313;  People  v.  Hayden,  6  Hill  (N.  Y.)  359,  361;  and  Stacey  v.  Vt. 
C.  R.  R.,  27  Vt.  39,44.] 

The  case  now  before  us  differs  from  all,  or  nearly  all,  of  those  cited 
by  the  plaintiffs  in  this :  that  in  the  latter  the  statute  under  which  the 
property  was  taken,  cither  expressly  or  by  necessary  implication,  made 
the  payment  or  tender  of  the  compensation  awarded  to  the  owner  of 
the  property  appropriated  to  public  use  a  condition  precedent  to  the 
acquisition  of  title  by  the  party  at  whose  instance  the  property  was 
taken ;  whereas,  in  the  present  case,  the  statute  vests  the  title  in  the 
city  of  Boston  from  at  least  the  time  it  filed  in  the  office  of  the  regis- 
try of  deeds  a  description  of  the  lands  taken  by  it,  describing  them 
with  as  much  certainty  as  is  required  in  a  common  conveyance  of 
lands,  and  stating  that  the  same  were  taken  pursuant  to  the  provisions 
of  the  statute.  As  soon  as  they  were  so  taken,  the  city,  invested  from 
that  time  with  the  title,  had  the  right  forthwith  to  raise  the  grade,  and 
could  not  throw  the  property  back  upon  the  former  owner,  or  com- 
pel him  to  pay  the  cost  of  raising  the  grade ;  and  the  owner  became, 
from  the  moment  the  property  was  taken,  absolutely  entitled  to  rea- 
sonable compensation,  the  amount  to  be  ascertained  without  undue 
delay,  in  the  mode  prescribed,  and  its  payment  to  be  assured,  if  neces 
sary,  by  decree  against  the  city,  which  could  be  effectively  enforced. 

We  are  of  opinion  that,  upon  both  principle  and  authority,  it  wa- 
competent  for  the  legislature,  in  the  exercise  of  the  police  powers  of 
the  commonwealth,  and  of  its  power  to  appropriate  private  property 
for  public  uses,  to  authorize  the  city  to  take  the  fee  in  the  laa 
scribed  in  the  statute,  prior  to  making  compensation,  and  that  the 
provision  made  for  compensating  the  owner  was  certain  and  ade- 
quate.    *     *     * 

Judgment  affirmed. ' 

i  Accord:  People  v.  Adirondack  Ry.,  mo  n.  y.  22r>.  CM  N.  r.  689  (1899) 
Compare  the  stricter  rules  discussed  in  Mulligan  v.  Perth  Amboy,  52  N.  J. 
Law.  182,  134-136,  18  At!.  670  (1889);  and  Cushman  v.  Smith,  34  v 
(1852).  Where  the  condemning  municipality  appears  unable  to  pay  by  taxa- 
tion, compare  Keene  v.  Bristol,  26  Pa.  46  (1856),  and  Matter  of  Cedar  Rapids, 
85  Iowa,  39,  51  N.  W.  ll-i'J  (1892). 
Hall  Const.L. — 00 


786  FUNDAMENTAL    RIGHTS  (Part  2 

BREWSTER  v.  ROGERS  CO.  (1901)  169  N.  Y.  73,  80-82,  62 
N.  E.  164,  58  L.  R.  A.  495,  Cullen,  J.  (discussing  a  statute  authoriz- 
ing certain  injuries  to  riparian  lands  by  persons  desiring  to  float  logs 
down  public  streams,  provided  that  such  persons  first  file  a  bond  ap- 
proved by  a  county  judge  for  $5,000  to  pay  for  such  injuries) : 

"But  the  statute  cannot  be  upheld  as  a  constitutional  exercise  of 
the  power  of  eminent  domain.  It  was  settled  early  in  the  history  of 
this  state  that,  where  private  property  is  taken  for  public  use,  com- 
pensation need  not  necessarily  precede  the  appropriation ;  but  it  was 
also  settled  that,  where  payment  does  not  precede  appropriation,  it 
must  be  secure  and  certain.  Bloodgood  v.  Railroad  Co.,  18  Wend. 
(N.  Y.)  9,  31  Am.  Dec.  313.  The  responsibility  of  the  state  or  of  one 
of  its  municipal  corporations  or  political  divisions  is  deemed  sufficient, 
but  a  fund  to  be  raised  solely  from  a  local  assessment  district  of  lim- 
ited area  'is  not  a  sure  and  adequate  provision,  dependent  upon  "no 
hazard,  casualty,  or  contingency  whatever,"  such  as  law  and  justice 
require  to  meet  the  constitutional  requirement.'  Sage  v.  City  of 
Brooklyn,  89  N.  Y.  189.  It  is  clear,  therefore,  that  the  property 
owner  cannot  be  relegated  to  the  doubtful  responsibility  or  solvency 
ii  a  private  corporation  or  of  an  individual.  Bloodgood  v.  Railroad 
Co.,  supra.  Nor  is  the  statutory  direction  that  the  parties  seeking 
to  use  a  river  shall  first  give  a  bond  a  sufficient  compliance  to  the  con- 
ititutional  requirement.  The  statute  arbitrarily  fixes  the  amount  of 
the  bond  at  $5,000  in  all  cases,  regardless  of  what  may  be  the  value 
of  the  property  rights  appropriated  or  the  amount  of  the  damage 
inflicted,  which  may  far  exceed  that  sum.  The  application  for  the 
approval  of  the  bond  is  ex  parte,  and  no  landowner  has  any  oppor- 
tunity to  be  heard  on  the  sufficiency  of  the  sureties.  But  one  bond 
is  required,  no  matter  how  many  owners  there  may  be  whose  lands 
and  properties  are  invaded,  and,  once  given,  it  seems  to  authorize  the 
indefinite  and  continued  use  of  the  river.  No  such  provision  can  be 
regarded  as  affording  adequate  security  for  compensation.  The  old 
general  railroad  act,  in  cases  where  the  title  of  the  company  to  any 
part  of  its  road  proves  defective,  empowered  the  company,  by  an  or- 
der made  in  condemnation  proceedings,  to  continue  in  possession  of 
the  land  upon  giving  sufficient  security.  The  constitutionality  of  this 
provision  was  upheld  by  the  supreme  court.  In  re  St.  Lawrence  & 
A.  R.  Co.,  66  Hun,  306,  21  N.  Y.  Supp.  131.  We  think  the  case  was 
properly  decided,  but  it  is  clearly  distinguishable  in  principle  from 
that  before  us.  There  the  amount  and  character  of  the  security  were 
determined  in  a  judicial  proceeding  in  which  the  landowner  appeared 
and  was  heard.  *  *  *  The  security  provided  by  the  statute  is 
arbitrary,  and  no  opportunity  is  afforded  the  landowner  to  show  that 
it  is  inadequate  in  amount  or  insufficient  in  character."  * 

i  Compare  Powers  v.  Bears,  12  Wis.  213,  78  Am.  Dec.  733  (1860)  (requiring 
actual   compensation   in  advance  from  all   private   parties),   and   Brickett  v. 


Ch.  12)  EMINENT    DOMAIN  787 

Haverhill  Aqueduct  Co.,  142  Mass.  894,  397,  S  N.  E.  lit);  121  (1RS6)  (permitting 
taking  by  private  water  company  subject  merely  to  action  for 
which  Morton,  C.  J.,  said:    "The  question  whether  the  provision  for  i 
satlon  furnished  by  the  statute  is  an  adequate  one   is  a   pracl 
It  seems  to  us  that  the  remedy  which  the  statute  in  question  furnishes 
the  corporation,  supplemented  by  the  remedies  afforded  by  the  general  laws, 
if  it  refuses  to  pay  the  damages  assessed,  affords  to  any  i  e  prop 

erty  is  taken  or  injured  by  the  acts  of  the  corporation  a  n 
that  he  will  recover  and  receive  compensation  therefor.     We  are  not.  there- 
fore, prepared  to  hold  that  the  statute  is  unconstitutional,  because  it  does 
not  make  adequate  provision  for  compensation." 

in  Otis  Co.  v.  i.udiow  Mfg.  Co.,  201  D.  s.  no.  in::,  1.-4.  20  Sup 
355,  50  L.  Ed.  G96  (190G),  Holmes,  J.,  said  (upholding  a  Massachusetts 
permitting  a  mill  owner  to  flood  upper  la  ml  subject  only  to  a  suit  for  com 
pensation  either  in  gross  or  for  annual  damages):    "In   considering  whether 
these  provisions  are  sufficient,  it  is  Important  to  know  exactly  what  the  up- 
per owner  loses  by  the  clam.     The  state  court  lays  It  down  that  there  is  no 
taking  under  the  right  of  eminent  domain.     186  Mass.  95,   101  Am.    - 
663,  TO  X.  i:.  1009  (1904).     We  assume  this  to  mean  what  often  has  bei 
with  regard  to  the  mill  acts,  that  under  them  no  easement  or  title  01   any 
kind  is  gained  in  or  over  the  upper  land,  aud  thai  ould  be  diked 

..ut.  Storm  v.  Manchaog  Co.,  13  Allen  (Mass.)  10.  1:;  (1866);   Lowell  v.  B 
111  Mass.  464,  466,  15  Am.  Rep.  39  (1873)  ;   although  the  language  has  not  been 
uniform,  and   it  seems  to  have  been  held  otherwise  when   the  dam   - 
paid  in  gross.     Isele  v.  Arlington  Five  Cents  Sav.  Bank,  135  Mas-;.  142 
Taking  the  law  to  be  as  stated  by  the  court,  it  would  follow  that  only  the 
damage  physically  suffered  is  to  be  paid  for.     When  a  title  is  taken,  for  in- 
stance, to  the  waters  of  a  stream,  it  is  held  that  the  whole  value  of 
tie  must  be  paid,  although  a  considerable  use  may  he  left  In  fact  to  the  par- 
ty aggrieved.     Howe  v.  Weymouth.  Ms  Mass.  tin."..  20  X.  E.  816  (1889);  I  nil.,- 
scheid  v.  Old  Colony  R.  Co.,  171  Mass.  209,  .".0  X.  E.  C09  (1898).     Flowi 
der  the  mill  acts  seems  to  he  regarded  as  presenting  the  converse  CS 
uo  title  Is  gained  to  have  the  water  on  the  upper  land,  the  dam  owner  pays 
only  for  the  harm  actually  done  from  time  to  time.     If  this  is  so.  somewhat 
less  elaborate  provisions  might  be  justified  than  could  be  sustained  w  I 
title  is  lost     So  far  as  security  goes,   looking  to  the  reasonable   probabili- 
ties in  such  cases,  it  would  seem  to  be  sufficient     We  must  bear  in  mind,  as 
we  presume  the  state  court  meant  to  suggest  by  Its  citation  of  the  ■ 
Brlckett   v.   Haverhill   Aqueduct  Co.,  112   Mass.  394,  397,   8   N.   E.    119 
that — as  was  said  there  in  words  that  need  bul  little  change, — if  other  rem 
edles  proved  ineffectual,  the  'court  would,  bj  -  -  in  equity,  n 

the  defendant  from  a  further  use  of  tin'  water,  and.  if  necessary,  order  the 
removal  of  the  dam.'     In  other  words,  the  right  to  an  lnjunctJ 

taken  into  account  in  Massachusetts,  in  deciding  whether  the 
tv  for  payment  is  sufficient,  even  when  there  is  a  talcing  by  eminent  domain 
.See  also  Attv.  Gen.  v.  Old  i  Co.,  160  Mass.  62,  90,  22  L.  K.  A 

x.  i;.  252  (1893);    Manlgault  v.  Springs,  199  tJ.  S.  473,  485,    I 

271,  20  Sup.  Ct  127  (1905).    This  seems  a iswei  to  thi  that,  in 

the  state  of  the  business  of  the  courl                     at  for  past  d 
iii.t  be  n                             ral  years,  that  the  defendant   may  be 
dam  Inadequate  security,  and  valuable  Improve nts  ■ 

ue    1..    ,\c    X.    Ry.   V.    Cent.  St;..   Yds..  212  V.   - 

L.   Ed.  411   (1909);    Water   Power  Cases,   L48  Wis.   124,   141,   134   X.    ■ 
38  I..  K.  A.  (X.  s.i  626  (1912). 
Procedure    in    Ascertaining    Compensation.— "By    the   Constitution    of 
tilted    states,    the   estimate    of    the   Just    eompei:-  ropertj 

taken    for    the   public   use.    under    the  domain,    is   not   re- 

quired to  be  made  by  a  jury,  but  may  be  intrusted  by  congres 
sioners  appointed  by  a  court  or  by  the  executive,  or  to  an  Inquest  i 
log  of  more-  or  fewer  men  than  an  ordinary  jury.  Custlsa  v.  Turnpil  e 
Cranch,  2:::;.  3  U  Ed.  209  (1810);  Seco  be  >.  Railroad  Co.,  2:;  Wall  L< 
11s.  23  I  I  d.  67  (1874);  D.  S.  v.  .lone-.  109  V.  S.  513,  519,  ::  Sup.  «'i 
I,.  Ed.  1015  (1B83);  shoemaker  v.  U.  S.,  1-17  V.  S.  2S2,  800,  801,  18  E 
361,  .".7  1..  Ed.  I7u  (1893);   Long  Island  Water-Supplj  lo.  v.  Brooklyn,  100  U. 


788  fundamental  itiGuxs  (Part  2 

CHAPTER  XIII 
RETROACTIVE  LAWS  IN  CIVIL  CASES 


SECTION  1.— STATE  LAWS  IMPAIRING  OBLIGATIONS  OF 
CONTRACTS » 


NEW  ORLEANS  WATERWORKS  CO.  v.  LOUISIANA  SUGAR 
REFINING  CO. 

(Supreme  Court  of  United  States,  1SSS.     125  U.  S.  18,  8  Sup.  Ct  741, 
31  L.   Ed.  607.) 

[Error  to  the  Supreme  Court  of  Louisiana,  which  had  affirmed  a 
judgment  of  the  civil  district  court  of  New  Orleans  in  favor  of  the 
Louisiana  Sugar  Company,  denying  an  injunction  against  laying  wa- 
ter pipes  asked  by  the  plaintiff.     The  facts  appear  in  the  opinion.] 

Mr.  Justice  Gray.  The  plaintiff,  in  its  original  petition,  relied  on 
a  charter  from  the  legislature  of  Louisiana,  which  granted  to  it  the 
exclusive  privilege  of  supplying  the  city  of  New  Orleans  and  its  in- 
habitants with  water  from  the  Mississippi  river,  but  provided  that 
the  city  council  should  not  be  thereby  prevented  from  granting  to 
any  person  "contiguous  to  the  river"  the  privilege  of  laying  pipes 
to  the  river  for  his  own  use.  The  only  matter  complained  of  by  the 
plaintiff,  as  impairing  the  obligation  of  the  contract  contained  in  its 

S.  6S5,  17  Sup.  Ct.  718,  41  L.  Ed.  1165  (1897)."— Bauman  v.  Ross,  167  U.  S.  548, 
593,  17  Sup.  Ct.  906,  42  L.  Ed.  270  (1897),  by  Gray,  J.  See,  also,  People  v. 
Adirondack  Ry.,  160  N.  Y.  225,  236-241,  54  N.   E.  6,89  (1S99). 

i  The  cases  in  this  section  deal  exclusively  with  the  effect  of  that  clause 
of  Const  art.  I,  §  10,  par.  1,  which  provides:  "No  state  shall  *  *  *  pass 
any  *  *  *  law  impairing  the  obligation  of  contracts."  As  has  often  been 
observed,  there  is  no  corresponding  prohibition  upon  the  federal  government, 
though  some  federal  interferences  with  contracts  may  violate  other  prohibi- 
tions. 

"The  United  States  cannot  any  more  than  a  state  interfere  with  private 
rights,  except  for  legitimate  governmental  purposes.  They  are  not  included 
within  the  constitutional  prohibition  which  prevents  states  from  passing  laws 
impairing  the  obligation  of  contracts,  but  equally  with  the  states  they  are 
prohibited  from  depriving  persons  or  corporations  of  property  without  due 
process  of  law."— Waite,  C.  J.,  in  Sinking  Fund  Cases,  99  U.  S.  700,  71S,  719, 
25  L.  Ed.  490  (1879).  See,  as  illustrating  the  constitutional  protection  afford- 
ed contracts  as  property,  Long  Island  Water  Co.  v.  Brooklyn,  ante,  p.  661; 
Houston,  etc.,  Ry.  v.  Texas,  170  U.  S.  243,  261,  IS  Sup.  Ct.  610,  42  L.  Ed.  1023 
(1898);  Choate  v.  Trapp,  224  U.  S.  665,  32  Sup.  Ct.  565,  56  L.  Ed.  941  (1912) 
(Congress  cannot  repeal  exemption  from  land  taxation  granted  to  Indians 
as  part  of  a  contract). 

The  contract  clause  of  the  Constitution  was  not  retroactive.  Owings  v. 
Speed,  5  Wheat.  420,  5  L.  Ed.  124  (1820). 


Ch.  13)  LAWS   IMPAIRING    OBLIGATIONS   OF   CONTRACTS 

charter,  was  an  ordinance  of  the  city  council,  granting  to  the  Louisi- 
ana Sugar  Refining  Company  permission  to  lay  pipes  from  the  river 
to  its  factory,  which,  the  plaintiff  contended,  was  not  contiguous  to 
the  river.  The  Louisiana  Sugar  Refining  Company,  in  its  answer, 
alleged  that  its  factory  was  contiguous  to  the  river;  that  it  had  the 
right  as  a  riparian  proprietor  to  draw  water  from  the  river  for  its 
own  use ;  that  its  pipes  were  being  laid  for  its  own  use  only ;  that 
the  plaintiff  had  no  exclusive  privilege  that  would  impair  such 
use  of  the  water  by  the  defendant  company;  and  that  the  rights 
and  privileges  claimed  by  the  plaintiff  would  constitute  a  monopoly, 
and  be  therefore  null  and  void.  The  evidence  showed  that  the 
pipes  of  the  defendant  company  were  being  laid  exclusively  for  the 
use  of  its  factory,  and  that  no  private  ownership  intervened  be- 
tween it  and  the  river,  but  only  a  public  street,  and  a  broad  quay  or 
levee,  owned  by  the  city  and  open  to  the  public,  except  that  some  large 
sugar  sheds,  occupied  by  lessees  of  the  city,  stood  upon  it,  and  that 
the  tracks  of  a  railroad  were  laid  across  it. 

The  grounds  upon  which  the  supreme  court  of  Louisiana  gave 
judgment  for  the  defendants  appear  by  its  opinion,  which,  under  the 
practice  of  that  state,  is  strictly  part  of  the  record.  *  *  *  That 
opinion,  as  printed  in  35  La.  Ann.  1111,  and  in  the  record  before  us, 
shows  that  the  grounds  of  the  judgment  were  that  the  right  confer- 
red by  the  legislature  of  the  state  upon  the  Commercial  Bank  by  its 
charter  in  1833,  and  confirmed  to  the  plaintiff  by  its  charter  in  1877. 
was  the  exclusive  privilege  of  supplying  the  city  and  its  inhabitants 
with  water  by  means  of  pipes  and  conduits  through  the  streets  and 
lands  of  the  city ;  that  by  the  general  law  of  Louisiana,  independently 
of  anything  in  those  statutes,  riparian  or  contiguous  proprietors  had 
the  right  of  laying  pipes  to  the  river  to  draw  the  water  necessary  for 
their  own  use,  subject  to  the  authority  of  the  state  and  the  city,  in 
the  exercise  of  the  police  power,  to  regulate  this  right,  as  the  public 
security  and  the  public  good  might  require;  that  section  IS  of  the 
plaintiffs  charter  had  no  other  object  than  to  secure,  beyond  t' 
sibility  of  doubt,  this  right  of  the  contiguous  owners  and  the  control 
of  the  municipal  authorities;  and  that  the  city  was  authorized  to 
permit  the  defendant  company  to  lav  pipes  across  the  quay  and 
through  the  streets  from  the  river  to  its  factory,  for  the  purpose  of 
supplying  it  with  water  for  its  own  use. 

The  only  grounds  on  which  the  plaintiff  in  error  attacks  the  judg- 
ment of  the  state  court  are  that  the  court  erred  in  its  construction  of 
the  contract  between  the  state  and  the  plaintiff,  contained  in  the  plain- 
tiff's charter;  and  in  not  adjudging  that  the  ordinance  of  the  city 
counsel,  granting  to  the  defendant  company  permi 
from  its  factory  to  the  river.  .  because  it  impaired   tl 

ligation  of  that  contract.     *     *     * 

This  being  a  writ  of  error  to  the  highest  court  of  a  st:,' 
question  must  have  been  decided  by   tliat   :ourt  against  the  plaintilt 


790  FUNDAMENTAL    RIGHTS  (Part  2 

in  error;  else  this  court  has  no  jurisdiction  to  review  the  judgment. 
As  was  said  by  Mr.  Justice  Story,  50  years  ago,  upon  a  full  review  of 
the  earlier  decisions,  "It  is  sufficient  if  it  appears  by  clear  and  neces- 
sary intendment  that  the  question  must  have  been  raised,  and  must 
have  been  decided  in  order  to  have  induced  the  judgment,"  and  "it 
is  not  sufficient  to  show  that  a  question  might  have  arisen  or  been 
applicable  to  the  case,  unless  it  is  further  shown,  on  the  record,  that 
it  did  arise,  and  was  applied  by  the  state  court  to  the  case."  Crowell 
v.  Randell,  10  Pet.  368,  398,  9  L.  Ed.  458.  The  rule  so  laid  down 
has  been  often  affirmed,  and  constantly  acted  on.  Railroad  Co.  v. 
Marshall,  12  How.  165,  167,  13  L.  Ed.  938;  Bridge  Propr's  v.  Ho- 
boken  Co.,  1  Wall.  116,  143,  17  L.  Ed.  571;  Steines  v.  Franklin 
Co.,  14  Wall.  15,  21,  20  L.  Ed.  846.  In  Klinger  v.  Missouri,  13  Wall. 
257,  263,  20  L.  Ed.  635,  Mr.  Justice  Bradley  declared  the  rule  to  be 
well  settled  that  "where  it  appears  by  the  record  that  the  judgment 
of  the  state  court  might  have  been  based  either  upon  a  law  which 
would  raise  a  question  of  repugnancy  to  the  Constitution,  laws,  or 
treaties  of  the  United  States,  or  upon  some  other  independent  ground, 
and  it  appears  that  the  court  did,  in  fact,  base  its  judgment  on  such 
independent  ground,  and  not  on  the  law  raising  the  federal  question, 
this  court  will  not  take  jurisdiction  of  the  case,  even  though  it  might 
think  the  position  of  the  state  court  an  unsound  one.1  [But  where  it 
does  not  appear  on  which  of  the  two  grounds  the  judgment  was 
based,  then,  if  the  independent  ground  upon  which  it  might  have  been 
based  was  a  good  and  valid  one,  sufficient  of  itself  to  sustain  the 
judgment,  this  court  will  not  assume  jurisdiction  of  the  case;  but  if 
such  independent  ground  was  not  a  good  and  valid  one,  it  will  be 
presumed  that  the  state  court  based  its  judgment  on  the  law  raising 
the  federal  question,  and  this  court  will  then  take  jurisdiction."]  2 
And  in  many  recent  cases  under  section  709  of  the  Revised  Statutes, 
this  court,  speaking  by  the  Chief  Justice,  has  reasserted  the  rule,  that 
to  give  it  jurisdiction  of  a  writ  of  error  to  a  state  court,  it  must  ap- 
pear affirmatively,  not  only  that  a  federal  question  was  presented  for 
decision  to  the  highest  court  of  the  state  having  jurisdiction,  but  that 
"its  decision  was  necessary  to  the  determination  of  the  cause,  and  that 
it  was  actually  decided,  or  that  the  judgment  as  rendered  could  not 
have  been  given  without  deciding  it."  Brown  v.  Atwell,  92  U.  S. 
327,  23  L.  Ed.  511;  Bank  v.  Board,  98  U.  S.  140,  25  L.  Ed.  114; 
Chouteau  v.  Gibson,  111  U.  S.  200,  4  Sup.  Ct.  340,  2S  L.  Ed.  400; 
Adams  Co.  v.  Railroad  Co.,  112  U.  S.  123,  5  Sup.  Ct.  77,  28  L.  Ed. 

i  The  remainder  of  the  paragraph  from  which  this  quotation  Is  made  is 
inserted  here  in  brackets. 

-  As  to  how  clearly  it  must  appear  that  a  non-federal  ground  of  decision 
was  present  in  the  case  and  might  possibly  have  controlled  the  actual  de- 
cision, see  St.  Louis,  etc.,  Ry.  v.  McWhirter,  229  U.  S.  2G5,  276,  33  Sup.  Ct 

S58,  57   L.   Ed.   (1913);    Adams  v.  Russell,   229  U.    S.   353,   358-301,  ZV 

Sup.  Ct.  846,  57  L.  Ed.  (1913).     See,  also,  Osborn  v.  Bank,  post,  p.  1332, 

note  4. 


L'h.  13)  LAWS   IMPAIRING    OBLIGATIONS    0*   OONTB  7'Jl 

678;    Railway  v.  Guthard,  114  U.  S.  133,  5  Sup.  Ct.  811,  29  L.  Ed. 
118. 

In  order  to  come  within  the  provision  of  the  Constitution  of  the 
L'nited  States  which  declares  that  no  state  shall  pass  any  law  im- 
pairing the  obligation  of  contracts,  not  only  must  the  obligation  of  a 
contract  have  been  impaired,  but  it  must  have  been  impaired  by  a  law 
of  the  state.  The  prohibition  is  aimed  at  the  legislative  power  of  the 
state,  and  not  at  the  decisions  of  its  courts,  or  the  acts  of  administra- 
tive or  executive  boards  or  officers,  or  the  doings  of  corporations  or 
individuals.  This  court,  therefore,  has  no  jurisdiction  to  review  a 
judgment  of  the  highest  court  of  a  state,  on  the  ground  that  the  ob- 
ligation of  a  contract  has  been  impaired,  unless  some  legislative  act 
of  the  state  has  been  upheld  by  the  judgment  sought  to  be  rev 
The  general  rule,  as  applied  to  this  class  of  cases,  has  been  clearly 
stated  in  two  opinions  of  this  court,  delivered  by  Mr.  Justice  Miller: 
"It  must  be  the  Constitution  or  some  law  of  the  state  which  impair 
the  obligation  of  the  contract,  or  which  is  otherwise  in  conflict  with 
the  Constitution  of  the  United  States ;  and  the  decision  of  the  state 
court  must  sustain  the  law  or  Constitution  of  the  state,  in  the  matter 
in  which  the  conflict  is  supposed  to  exist;  or  the  case  for  this  court 
does  not  arise."  Railroad  Co.  v.  Rock,  4  Wall.  177,  181,  18  L.  Ed 
381,  "We  are  not  authorized  by  the  judiciary  act  to  review  the  judg- 
ments of  the  state  courts,  because  their  judgments  refuse  to  give  effect 
to  valid  contracts,  or  because  those  judgments,  in  their  effect,  impair 
the  obligation  of  contracts."  If  we  did,  every  case  decided  in  a  state 
court  could  be  brought  here,  where  the  party  setting  up  a  contract 
alleged  that  the  court  had  taken  a  different  view  of  its  obligation  to 
that  which  he  held."    Knox  v.  Bank.  12  Wall.  379.  383,  20  T..  Ed.  287. 

As  later  decisions  have  shown,  it  is  not  strictly  and  literally  true 
that  a  law  of  a  state,  in  order  to  come  within  the  constitutional  pro- 
hibition, must  be  either  in  the  form  of  a  statute  enacted  by  the  legis- 
lature in  the  ordinary  course  of  legislation,  or  in  the  form  of  a  Con- 
stitution established  bv  the  people  of  the  state  as  their  fundanient.il 
law.  In  Williams  v.  P.ruffy,  96  U.  S.  176.  183,  24  L.  Ed.  716.  it  was 
said  by  Air.  Justice  Field,  delivering  judgment:  "Any  enactment, 
from  whatever  source  originating,  to  which  a  state  gives  the  force  of 
law,  is  a  statute  of  the  state,  within  the  meaning  of  the  clause  cited 
relating  to  the  jurisdiction  of  this  court."  (Rev.  St.  §  700;)  and  it 
was  therefore  held  that  a  statute  of  the  so-called  Confederate  States, 
if  enforced  by  one  of  the  states  as  its  law  was  within  the  prohibition 
of  the  Constitution.     So  a  by-law  or  ordinance  of  a  municipal  cor 

3  This  is  so  even  though  a  state  court  subsequently  changes  a  division  r<- 
lied  upon  in  the  making  of  a  coi  ^as'n  r.  BiaJtan,  19." 

U.  S.  635,  24  Sup.  Ct.  532,  48  L.  Ed  t'ross  Lake  Club  v.  Louisiana 

224  0.   S.   632,  689,  32  Sup.  Ct  57'      ■  ■   L.    i  <L  024  (1912)   (cases).     See,  also 
Oelpcke  v.  Pubuciue,  post,  p.  1356,  note  3. 


792  FUNDAMENTAL    EIGHTS  (Part  2 

poration  may  be  such  an  exercise  of  legislative  power  delegated  by 
the  legislature  to  the  corporation  as  a  political  subdivision  of  the  state, 
having  all  the  force  of  law  within  the  limits  of  the  municipality,  that 
it  may  properly  be  considered  as  a  law,  within  the  meaning  of  this 
article  of  the  Constitution  of  the  United  States.  For  instance,  the 
power  of  determining  what  persons  and  property  shall  be  taxed  be- 
longs exclusively  to  the  legislative  branch  of  the  government,  and, 
whether  exercised  by  the  legislature  itself,  or  delegated  by  it  to  a  mu- 
nicipal corporation,  is  strictly  a  legislative  power.  U.  S.  v.  New  Or- 
leans, 98  U.  S.  3S1,  392,  25  L.  Ed.  225;  Meriwether  v.  Garrett,  102 
U.  S.  472,  26  L.  Ed.  197.     *     *    * 

But  the  ordinance  now  in  question  involved  no  exercise  of  legisla- 
tive power.  The  legislature,  in  the  charter  granted  to  the  plaintiff, 
provided  that  nothing  therein  should  "be  so  construed  as  to  prevent 
the  city  council  from  granting  to  any  person  or  persons,  contiguous 
to  the  river,  the  privilege  of  laying  pipes  to  the  river,  exclusively  for 
his  or  their  own  use."  The  legislature  itself  thus  defined  the  class 
of  persons  to  whom,  and  the  object  for  which,  the  permission  might 
be  granted.  All  that  was  left  to  the  city  council  was  the  duty  of  de- 
termining what  persons  came  within  the  definition,  and  how  and  where 
they  might  be  permitted  to  lay  pipes,  for  the  purpose  of  securing  their 
several  rights  to  draw  water  from  the  river,  without  unreasonably  in- 
terfering with  the  convenient  use  by  the  public  of  the  lands  and  high- 
ways of  the  city.  The  rule  was  established  by  the  legislature,  and  its 
execution  only  committed  to  the  municipal  authorities.  The  power 
conferred  upon  the  city  council  was  not  legislative,  but  administrative, 
and  might  equally  well  have  been  vested  by  law  in  the  mayor  alone, 
or  in  any  other  officer  of  the  city.  Railroad  Co.  v.  Ellerman,  105  U. 
S.  166,  172,  26  L.  Ed.  1015 ;  Day  v.  Green,  4  Cush.  (Mass.)  433,  438. 
The  permission  granted  by  the  city  council  to  the  defendant  company, 
though  put  in  the  form  of  an  ordinance,  was  in  effect  but  a  license, 
and  not  a  by-law  of  the  city,  still  less  a  law  of  the  state.  If  that  li- 
cense was  within  the  authority  vested  in  the  city  council  by  the  law 
of  Louisiana,  it  was  valid;  if  it  transcended  that  authority,  it  was 
illegal  and  void.  But  the  question  whether  it  was  lawful  or  unlawful 
depended  wholly  on  the  law  of  the  state,  and  not  at  all  on  any  pro- 
vision of  the  Constitution  or  laws  of  the  United  States.     *     *     * 

[After  discussing  various  cases:]  These  cases  are  quite  in  harmony 
with  the  line  of  cases,  beginning  before  these  were  decided,  in  which, 
on  a  writ  of  error  upon  a  judgment  of  the  highest  court  of  a  state, 
giving  effect  to  a  statute  of  the  state,  drawn  in  question  as  affecting 
the  obligation  of  a  previous  contract,  this  court,  exercising  its  para- 
mount authority  of  determining  whether  the  statute  upheld  by  the 
state  court  did  impair  the  obligation  of  the  previous  contract,  is  not 
concluded  by  the  opinion  of  the  state  court  as  to  the  validity  or  the 
construction  of  that  contract,  even  if  contained  in  a  statute  of  the 


Ch.  13)  LAWS  IMPAIRING   OBLIGATIONS  OF  OOKTBAOTB  "'•>'■'■ 

state,  but  determines  for  itself  what  that  contract  was.4  Leading 
cases  of  that  class  are  Bridge  Propr's  v.  Hoboken  Co.,  1  Wall.  116,  17 
L.  Ed.  571,  in  which  the  state  court  affirmed  the  validity  of  a  statute 
authorizing  a  railway  viaduct  to  be  built  across  a  river,  which  was 
drawn  in  question  as  impairing  the  obligation  of  a  contract,  previously 
made  by  the  slate  with  the  proprietors  of  a  bridge,  that  no  other  bridge 
should  be  built  across  the  river;  and  cases  in  which  the  state  court 
affirmed  the  validity  of  a  statute,  imposing  taxes  upon  a  corporation, 
and  drawn  in  question  as  impairing  the  obligation  of  a  contract  in  a 
previous  statute  exempting  it  from  such  taxation.  Bank  v.  Knoop. 
16  How.  369,  14  L.  Ed.  977;  Trust  Co.  v.  Debolt.  Id.  416,  14  L.  Ed. 
997;  Hank  v.  Debolt,  18  How.  380.  15  L.  Ed.  458;  Bank  v.  Skellv. 
1  Black,  436,  17  L.  I'd.  173;  New  lersey  v.  Yard,  95  U.  S.  104,  24 
L.  Ed.  r?2;  Railroad  v.  Gaines,  97  U.  S.  697,  709,  24  L.  Ed.  1091  ; 
University  v.  People,  99  U.  S.  309,  25  L.  Ed.  387;  Railroad  v.  Palmes, 
109  U.  S.  244,  3  Sun.  Ct.  193,  27  L.  lid.  922;  Gas-Light  Co.  v. 
Co.,  109  U.  S.  398,  3  Sup.  Ct.  205;  Railroad  Co.  v.  Dennis,  116  U. 
S.  665,  6  Sup.  Ct.  625,  29  L.  Ed.  770.  In  each  of  those  cases, 
the  state  court  upheld  a  right  claimed  under  the  later  statute,  and 
could  not  have  made  the  decision  that  it  did  without  upholding 
that  right ;  and  thus  gave  effect  to  the  law  of  the  state  drawn  in 
question  as  impairing  the  obligation  of  a  contract.  The  distinction 
between  the  two  classes  of  cases, — those  in  which  the  state  court  has. 
and  those  in  which  it  has  not.  given  effect  to  the  statute  drawn  in 
question  as  impairing  the  obligation  of  a  contract, — as  affecting  the 
consideration  by  this  court,  on  writ  of  error,  of  the  true  construction 
and  effect  of  the  previous  contract,  is  clearly  brought  out  in  Railroad 
v.  Railroad.  14  Wall.  23,  20  L.  Ed.  850.  That  was  a  writ  of  error  to 
the  supreme  judicial  court  of  Maine,  in  which  a  foreclosure,  under  a 
statute  of  1857,  of  a  railroad  mortgage  made  in  1852,  was  contested 
upon  the  ground  that  it  impaired  the  obligation  of  the  contract,  and 
the  parties  agreed  that  the  opinion  of  that  court  should  be  con 
as  part  of  the  record.  Mr.  Justice  Miller,  in  delivering  judgment, 
after  stating  that  it  did  appear  that  the  question  whether  the  statute 
of  1857  impaired  the  obligation  of  the  mortgage  contract  "was  dis- 
cussed in  the  opinion  of  the  court,  and  that  the  court  was  of  the  opin- 
ion  that  the  statute  did  not   impair  the  obligation  of  the  contract," 

«  "In  ordinary  eases  the  decision  of  the  hishest  court  of  a  state  with  re- 
cord tu  the  validity  of  one  of  its  statutes  would  be  binding  upon  tin-;  court; 
i>ut.  where  the  question  raised  is  wh<  .is  or  has  u 

made,  the  obligation  of  which  is  alleged  to  bare  i n  Impaired  by  legislative 

action,  it  Is  the  prerogative  of  this  court,  under  the  Constitution  of  the  Tutt- 
ed States  and  the  act  of  congress  relating  to  writs  of  error  to  the  judgments 
of  state  courts,  to  Inquire  and  Judge  for  Itself  with  regard  to  the  ma 
such  contract,  whatever  may  he  the  views  or  divisions  of  the  Btal 
relation  thereto."     McGahey  \.  vn.     .a.  188  O.  S.  862,  667,  10  Sup.  t't.  '.'T'J. 

::i   L,    Ed.  3<W    (1890),  by   Bradley,   -I       So  in  all  eases  where  the  Inter,    . 

of  a  state  statute  i\ Tins  part  of  a  "federal  question."     See  Geli>eke  v.   Du> 
buque,  note  3;  post,  i>.  1356. 


794  FUNDAMENTAL    RIGHTS  (Part    2 

said:  "If  this  were  all  of  the  case,  we  should  undoubtedly  be  bound 
in  this  court  to  inquire  whether  the  act  of  1857  did,  as  construed  by 
that  court,  impair  the  obligation  of  the  contract.  Bridge  Propr's  v. 
Hoboken  Co.,  1  Wall.  116,  17  L.  Ed.  571.  But  a  full  examination  of 
the  opinion  of  the  court  shows  that  its  judgment  was  based  upon  the 
ground  that  the  foreclosure  was  valid,  without  reference  to  the  statute 
of  1857,  because  the  method  pursued  was  in  strict  conformity  to  the 
mode  of  foreclosure  authorized,  when  the  contract  was  made  by  the 
laws  then  in  existence.  Now,  if  the  state  court  was  right  in  their 
view  of  the  law  as  it  stood  when  the  contract  was  made,  it  is  obvious 
that  the  mere  fact  that  a  new  law  was  made  does  not  impair  the  ob- 
ligation of  the  contract.  And  it  is  also  clear  that  we  cannot  inquire 
whether  the  supreme  judicial  court  of  Maine  was  right  in  that  opinion. 
Here  is,  therefore,  a  clear  case  of  a  sufficient  ground  on  which  the 
validity  of  the  decree  of  the  state  court  could  rest,  even  if  it  had  been 
in  error  as  to  the  effect  of  the  act  of  1857  in  impairing  the  obligation 
of  the  contract.  And  when  there  is  such  distinct  and  sufficient  ground 
for  the  support  of  the  judgment  of  the  state  court,  we  cannot  take 
jurisdiction,  because  we  could  not  reverse  the  case,  though  the  fed- 
eral question  was  decided  erroneously  in  the  court  below  against  the 
plaintiff  in  error.  Rector  v.  Ashley,  6  Wall.  142,  18  L.  Ed.  733; 
Klinger  v.  Missouri,  13  Wall.  257,  20  L.  Ed.  635 ;  Steines  v.  Franklin 
County,  14  Wall.  15,  20  L.  Ed.  846.  The  writ  of  error  must  there- 
fore be  dismissed  for  want  of  jurisdiction."    Id.  25,  26. 

The  result  of  the  authorities,  applying  to  cases  of  contracts  the 
settled  rules  that  in  order  to  give  this  court  jurisdiction  of  a  writ  of 
error  to  a  state  court,  a  federal  question  must  have  been,  expressly 
or  in  effect,  decided  by  that  court,  and,  therefore,  that  when  the  record 
shows  that  a  federal  question  and  another  question  were  presented  to 
that  court  and  its  decision  turned  on  the  other  question  only,  this  court 
has  no  jurisdiction,  may  be  summed  up  as  follows:  When  the  state 
court  decides  against  a  right  claimed  under  a  contract,  and  there  was 
no  law  subsequent  to  the  contract,  this  court  clearly  has  no  jurisdic- 
tion. When  the  existence  and  the  construction  of  a  contract  are  un- 
disputed, and  the  state  court  upholds  a  subsequent  law,  on  the  ground 
that  it  did  not  impair  the  obligation  of  the  admitted  contract,  it  is 
equally  clear  that  this  court  has  jurisdiction.  When  the  state  court 
holds  that  there  was  a  contract  conferring  certain  rights,  and  that  a 
subsequent  law  did  not  impair  those  rights,  this  court  has  jurisdiction 
to  consider  the  true  construction  of  the  supposed  contract;  and,  if  it 
is  of  opinion  that  it  did  not  confer  the  rights  affirmed  by  the  state 
court,  and  therefore  its  obligation  was  not  impaired  by  the  subsequent 
law,  may  on  that  ground  affirm  the  judgment.  So,  when  the  state 
court  upholds  the  subsequent  law,  on  the  ground  that  the  contract  did 
not  confer  the  right  claimed,  this  court  may  inquire  whether  the  sup- 
posed contract  did  give  the  right,  because,  if  it  did,  the  subsequent 
law  cannot  be  upheld.    But  when  the  state  court  gives  no  effect  to  the 


Ch.   13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTBACT8  W8 

subsequent  law,  but  decides,  on  grounds  independent  of  that  law,  that 
the  right  claimed  was  not  conferred  by  the  contract,  the  case  stands 
just  as  if  the  subsequent  law  had  not  been  passed,  and  this  court  has 
no  jurisdiction.  In  the  present  case,  the  supreme  court  of  Louisiana 
did  not,  and  the  plaintiff  in  error  does  not  pretend  that  it  did,  give 
any  effect  to  the  provision  of  the  Constitution  of  1879  abolishing 
monopolies.  Its  judgment  was  based  wholly  upon  the  general  law 
of  the  state,  and  upon  the  construction  and  effect  of  the  charter  from 
the  legislature  to  the  plaintiff  company,  and  of  the  license  from  the 
city  council  to  the  defendant  company,  and  in  no  degree  upon  the 
Constitution  or  any  law  of  the  state  subsequent  to  the  plaintiff's  char- 
ter.    *     *     * 

Case  dismissed  for  want  of  jurisdiction.* 


OGDEN  v.  SAUNDERS. 
(Supreme  Court  of  United   States,  1827.     12  Wheat  213,  6  L.   Ed.   606.) 

[Error  to  the  United  States  District  Court  for  Louisiana.  Ogden, 
then  a  citizen  of  New  York,  accepted  in  that  state  certain  bills  of  ex- 
change drawn  upon  him  in  1806  in  Kentucky,  of  which  Saunders  be- 
came the  owner.  Ogden  later  became  a  citizen  of  Louisiana,  and 
was  there  sued  in  assumpsit  by  Saunders  upon  the  bills,  in  the  above- 
named  court.  One  of  Ogden's  pleas  was  a  discharge  in  bankruptcy 
in  New  York,  under  an  act  passed  there  in  1S01.  On  a  special  verdict 
finding  those  facts,  the  plaintiff  received  judgment,  and  Ogden  took 
this  writ  of  error.  Saunders  was  a  citizen  of  Kentucky.  Several 
somewhat  similar  cases  were  argued  at  the  same  time.) 

Mr.  Justice  Washington.  *  *  *  What  is  it,  then,  which  con- 
stitutes the  obligation  of  a  contract?  The  answer  is  given  by  the 
Chief  Justice,  in  the  case  of  Sturges  v,  Crowninshield,1  to  which  I 
readily  assent  now,  as  I  did  then;  it  is  the  law  which  binds  the  par- 
ties to  perform  their  agreement.  The  law,  then,  which  has  this  bind- 
ing obligation,  must  govern  and  control  the  contract  in  every  shape 
in  which  it  is  intended  to  bear  upon  it,  whether  it  affect  its  validity, 
construction,  or  discharge. 

But  the  question,  which  law  is  referred  to  in  the  above  definition, 
still  remains  to  be  solved.    It  cannot,  for  a  moment,  be  conceded  that 

'See  Bridqe  Prop'rs  v.  Hoboken  Co.,  1  Wall.  110,  17  I.  Ed  571 
McCullough  v.  Virginia,  172  U.  S.  102,  116-122,  19  Sup.  Ct  134,  43 
382  (1808),  explained  In  Yazoo,  etc.,  K.  li.  v.  Adams,  180  0.  S.  n.  it 
Sup.  Ct  256,  15  L.  IM.  415  (1901);    Hi  B  B.  r.  Texas,  177  0    - 

86,  100,  20  Sup.  Ct.  545,  -14  L.  Ed  I    St  Paul  Gaa  Co.  r.  8 

181  U.  s.  142,  21  sup.  Ct  576,  45  L.  Ed.  788  0901);   Terre  Haute,  etc.,  By.  r. 
[ndiana,  194  0.  S.  579,  24  Sup.  Ct  767,  48  U  Bd  1124  (1904). 

i  4  Wheat  117.  4  L.  Ed.  529  (1819),  holding  Invalid  all  dischargi 
by  Insolvency  or  bankruptcy  laws  passed  «u6*tguf»»j/  to  the  making  of  the 
contracts  affected  thereby. 


796  FUNDAMENTAL    RIGHTS  (Part  2 

the  mere  moral  law  is  intended,  since  the  obligation  which  that  im- 
poses is  altogether  of  the  imperfect  kind  which  the  parties  to  it  are 
free  to  obey  or  not,  as  they  please.  It  cannot  be  supposed  that  it  was 
with  this  law  the  grave  authors  of  this  instrument  were  dealing. 

The  universal  law  of  all  civilized  nations,  which  declares  that  men 
shall  perform  that  to  which  they  have  agreed,  has  been  supposed  by 
the  counsel  who  have  argued  this  cause  for  the  defendant  in  error, 
to  be  the  law  which  is  alluded  to;  and  I  have  no  objection  to  ac- 
knowledging its  obligation,  whilst  I  must  deny  that  it  is  that  which 
exclusively  governs  the  contract.  It  is  upon  this  law  that  the  obliga- 
tion which  nations  acknowledge  to  perform  their  compacts  with  each 
other  is  founded,  and  I,  therefore,  feel  no  objection  to  answer  the 
question  asked  by  the  same  counsel — What  law  it  is  which  constitutes 
the  obligation  of  the  compact  between  Virginia  and  Kentucky — by 
admitting,  that  it  is  this  common  law  of  nations  which  requires  them 
to  perform  it.  I  admit  further  that  it  is  this  law  which  creates  the 
obligation  of  a  contract  made  upon  a  desert  spot,  where  no  municipal 
law  exists,  and  (which  was  another  case  put  by  the  same  counsel) 
which  contract,  by  the  tacit  assent  of  all  nations,  their  tribunals  are 
authorized  to  enforce. 

But  can  it  be  seriously  insisted  that  this,  any  more  than  the  moral 
law  upon  which  it  is  founded,  was  exclusively  in  the  contemplation 
of  those  who  framed  this  Constitution?  What  is  the  language  of  this 
universal  law?  It  is  simply  that  all  men  are  bound  to  perform  their 
contracts.  The  injunction  is  as  absolute  as  the  contracts  to  which  it 
applies.  It  admits  of  no  qualification  and  no  restraint,  either  as  to  its 
validity,  construction,  or  discharge,  further  than  may  be  necessary  to 
develop  the  intention  of  the  parties  to  the  contract.  And  if  it  be  true 
that  this  is  exclusively  the  law,  to  which  the  Constitution  refers  us, 
it  is  very  apparent  that  the  sphere  of  state  legislation  upon  subjects 
connected  with  the  contracts  of  individuals,  would  be  abridged  beyond 
what  it  can  for  a  moment  be  believed  the  sovereign  states  of  this 
Union  would  have  consented  to;  for  it  will  be  found,  upon  examina- 
tion, that  there  are  few  laws  which  concern  the  general  police  of  a 
state,  or  the  government  of  its  citizens,  in  their  intercourse  with  each 
other  or  with  strangers,  which  may  not  in  some  way  or  other  affect 
the  contracts  which  they  have  entered  into,  or  may  thereafter  form. 
For  what  are  laws  of  evidence,  or  which  concern  remedies — frauds 
and  perjuries — laws  of  registration,  and  those  which  affect  landlord 
and  tenant,  sales  at  auction,  acts  of  limitation,  and  those  which  limit 
the  fees  of  professional  men,  and  the  charges  of  tavern-keepers,  and 
a  multitude  of  others  which  crowd  the  codes  of  every  state,  but  laws 
which  may  affect  the  validity,  construction,  or  duration,  or  discharge 
of  contracts?  Whilst  I  admit,  then,  that  this  common  law  of  nations, 
which  has  been  mentioned,  may  form  in  part  the  obligation  of  a  con- 
tract, I  must  unhesitatingly  insist  that  this  law  is  to  be  taken  in  strict 
subordination  to  the  municipal  laws  of  the  land  where  the  contract  is 


Ch.  13)  LAWS   IMPAIKXNO   (juu.l.wn  i\s   OF  0OHTBAOX8  79*1 

made,  or  is  to  be  executed.  The  former  can  be  satisfied  by  nothing 
short  of  performance;  the  latter  may  affect  and  control  the  validity, 
construction,  evidence,  remedy,  performance,  and  discharge  of  the 
contract.  The  former  is  the  common  law  of  all  civilized  nations,  and 
of  each  of  them;  the  latter  is  the  peculiar  law  of  each,  and  is  para- 
mount to  the  former  whenever  they  come  in  collision  with  each  other. 

It  is,  then,  the  municipal  law  of  the  state,  whether  that  be  written 
or  unwritten,  which  is  emphatically  the  law  of  the  contract  made 
within  the  state,  and  must  govern  it  throughout,  wherever  its  per- 
formance is  sought  to  be  enforced.2 

It  forms,  in  my  humble  opinion,  a  part  of  the  contract,  and  travels 
with  it  wherever  the  parties  to  it  may  be  found.  It  is  so  regarded  by 
all  the  civilized  nations  of  the  world,  and  is  enforced  by  the  tribunals 
of  those  nations  according  to  its  own  forms,  unless  the  parties  to  it 
have  otherwise  agreed,  as  where  the  contract  is  to  be  executed  in,  or 
refers  to  the  laws  of,  some  other  country  than  that  in  which  it  is 
formed,  or  where  it  is  of  an  immoral  character,  or  contravenes  the 
policy  of  the  nation  to  whose  tribunals  the  appeal  is  made ;  in  which 
latter  cases,  the  remedy  which  the  comity  of  nations  affords  for  en- 
forcing the  obligation  of  contracts  wherever  formed,  is  denied.  Free 
from  these  objections,  this  law,  which  accompanies  the  contract  as 
forming  a  part  of  it,  is  regarded  and  enforced  everywhere,  whether 
it  affect  the  validity,  construction,  or  discharge  of  the  contract.  It 
is  upon  this  principle  of  universal  law,  that  the  <  of  the  con- 

tract, or  of  one  of  the  parties  to  it,  by  the  bankrupt  laws  of  the  coun- 
try where  it  was  made,  operates  as  a  discharge  everywhere. 

If,  then,  it  be  true  that  the  law  of  the  country  where  the  CCfltrad 
is  made  or  to  be  executed,  forms  a  part  of  that  contract  and  of  its  ob- 
ligation, it  would  seem  to  be  somewhat  of  a  solecism  to  say  that  it 
does,  at  the  same  time,  impair  that  obligation. 

But  it  is  contended  that  if  the  municipal  law  of  the  state  where  the 
contract  is  so  made  form  a  part  of  it,  so  does  that  clause  of  the  Con- 
stitution which  prohibits  the  states  from  passing  laws  to  impair  the 
obligation  of  contracts;  and,  consequently,  that  the  law  is  rendered 
inoperative  by  force  of  its  controlling  associate.  All  this  I  adm 
vided  it  be  first  proved  that  the  law  so  incorporated  with  ami   form- 

2  It  is  now  generally  said  that  the  ol'li^ation  of  a  cob  la  upon 

the  lav,    o  See  X.  \V.  Ins.  Co.  v.  McCue,  223  1'.  S.  234, 

246,  247,  .•:■-•  Sup.  Ct  220,  56  I..  Ed.  419,  38  i ..  R.  A.  (N.  S.i  57  I 
v.  Walsh,  226  U.  s.  112,  122,  33  Sup.  Ct  69,  57  L.  Ed.  ul  only 

the  law  in  force  there  when  the  contract  was  made  i"1  UtuOon- 

ally  protected  part  of  the  obligation.  Subsequent  statutes  enlarging  rights 
under  ij    be  validly  repealed.     Knights  Templar,  ■ 

J.   197,  208,  23  Sup.  Ct   L08,    17   l..   Ed.   133 
eel  produced  by  a  prior  law  of  one  si  ite  upon  a  contract  made  In  au 
otiier'!,,  oiiin  the  couti  applies  only  to  tub 

laws,  Pinney  v.  Nelson,  is::  t  .  S.  in,  147,  22  Sup.  Ct  52,  40  L.  L\l.  125 
(1001).    Hut  sue  note  U,  below. 


70S  FUNDAMENTAL    RIGHTS  (Part  - 

ing  a  part  of  the  contract,  does,  in  effect,  impair  its  obligation;  and 
before  this  can  be  proved,  it  must  be  affirmed  and  satisfactorily  made 
out,  that  if,  by  the  terms  of  the  contract,  it  is  agreed  that,  on  the  hap- 
pening of  a  certain  event,  as,  upon  the  future  insolvency  of  one  of 
the  parties,  and  his  surrender  of  all  his  property  for  the  benefit  of  his . 
creditors,  the  contract  shall  be  considered  as  performed  and  at  an 
end,  this  stipulation  would  impair  the  obligation  of  the  contract.  If 
this  proposition  can  be  successfully  affirmed,  I  can  only  say,  that  the 
soundness  of  it  is  beyond  the  reach  of  my  mind  to  understand. 

Again,  it  is  insisted  that  if  the  law  of  the  contract  forms  a  part  of 
it,  the  law  itself  cannot  be  repealed  without  impairing  the  obligation 
of  the  contract.  This  proposition  I  must  be  permitted  to  deny.  It 
may  be  repealed  at  any  time,  at  the  will  of  the  legislature,  and  then 
it  ceases  to  form  any  part  of  those  contracts  which  may  afterwards 
be  entered  into.  The  repeal  is  no  more  void  than  a  new  law  would 
be  which  operates  upon  contracts  to  affect  their  validity,  construction, 
or  duration.  Both  are  valid  (if  the  view  which  I  take  of  this  case  be 
correct),  as  they  may  affect  contracts  afterwards  formed ;  but  neither 
are  so,  if  they  bear  upon  existing  contracts ;  and,  in  the  former  case,  in 
which  the  repeal  contains  no  enactment,  the  Constitution  would  forbid 
the  application  of  the  repealing  law  to  past  contracts,  and  to  those  only. 

To  illustrate  this  argument,  let  us  take  four  laws,  which,  either  by 
new  enactments,  or  by  the  repeal  of  former  laws,  may  affect  contracts 
as  to  their  validity,  construction,  evidence,  or  remedy.  Laws  against 
usury  are  of  the  first  description.  A  law  which  converts  a  penalty, 
stipulated  for  by  the  parties,  as  the  only  atonement  for  a  breach  of 
the  contract,  into  a  mere  agreement  for  a  just  compensation,  to  be 
measured  by  the  legal  rate  of  interest,  is  of  the  second.  The  statute 
of  frauds,  and  the  statute  of  limitations,  may  be  cited  as  examples  of 
the  last  two. 

The  validity  of  these  laws  can  never  be  questioned  by  those  who 
accompany  me  in  the  view  which  I  take  of  the  question  under  consid- 
eration, unless  they  operate,  by  their  express  provisions,  upon  con- 
tracts previously  entered  into;  and  even  then  they  are  void  only  so 
far  as  they  do  so  operate;  because,  in  that  case,  and  in  that  case  only, 
do  they  impair  the  obligation  of  those  contracts.  But  if  they  equally 
impair  the  obligation  of  contracts  subsequently  made,  which  they  must 
do,  if  this  be  the  operation  of  a  bankrupt  law  upon  such  contracts,  it 
would  seem  to  follow  that  all  such  laws,  whether  in  the  form  of  new 
enactments,  or  of  repealing  laws,  producing  the  same  legal  conse- 
quences, are  made  void  by  the  Constitution;  and  yet  the  counsel  for 
the  defendants  in  error  have  not  ventured  to  maintain  so  alarming  a 
proposition. 

If  it  be  conceded  that  those  laws  are  not  repugnant  to  the  Con- 
stitution, so  far  as  they  apply  to  subsequent  contracts,  I  am  yet  to 
be  instructed  how  to  distinguish  between  those  laws,  and  the  one  now 
under  consideration.     How  has  this  been  attempted  by  the  learned 


C'll.   13)  LAWS    IMPAIRING    OBLIGATIONS   OF   CONTRACTS 

counsel  who  have  argued  this  cause  upon  the  ground  of  such  a  dis- 
tinction? 

They  have  insisted  that  the  effect  of  the  law  first  supposed,  is  to 
annihilate  the  contract  in  its  birth,  or  rather  to  prevent  it  from  having 
a  legal  existence,  and  consequently,  that  there  is  no  obligation  to  be 
impaired.  But  this  is  clearly  not  so,  since  it  may  legitimately  avoid 
all  contracts  afterwards  entered  into,  which  reserve  to  the  lender  a 
higher  rate  of  interest  than  this  law  permits. 

The  validity  of  the  second  law  is  admitted,  and  yet  this  can  only  be 
in  its  application  to  subsequent  contracts;  for  it  has  not,  and  I  think 
it  cannot,  for  a  moment,  be  maintained,  that  a  law  which,  in  express 
terms,  varies  the  construction  of  an  existing  contract,  or  which,  re- 
pealing a  former  law,  is  made  to  produce  the  same  effect,  does  not  im- 
pair the  obligation  of  that  contract. 

The  statute  of  frauds,  and  the  statute  of  limitations,  which  have 
been  put  as  examples  of  the  third  and  fourth  classes  of  laws,  are 
also  admitted  to  be  valid,  because  they  merely  concern  the  modes  Oi 
proceeding  in  the  trial  of  causes.  The  former,  supplying  a  rule  of 
evidence,  and  the  latter,  forming  a  part  of  the  remedy  given  by  the 
legislature  to  enforce  the  obligation,  and  likewise  providing  a  rule 
of  evidence. 

All  this  I  admit.  But  how  does  it  happen  that  these  laws,  like 
those  which  affect  the  validity  and  construction  of  contracts,  are  valid 
as  to  subsequent,  and  yet  void  as  to  prior  and  subsisting  contracts' 
For  we  are  informed  by  the  learned  jud.t,re  who  delivered  the  opinion 
of  this  court,  in  the  case  of  Sturges  v.  Crowninshield,  4  Wheat.  \21. 
4  L.  Ed.  529,  that,  "if,  in  a  state  where  six  years  may  be  pleaded  in 
bar  to  an  action  of  assumpsit,  a  law  should  pass  declaring  that  con- 
tracts already  in  existence,  not  barred  by  the  statute,  should  be  con- 
strued within  it.  there  could  be  little  doubt  of  its  unconstitutionality." 

It  is  thus  most  apparent  that,  whichever  way  we  turn,  whether  to 
laws  affecting  the  validity,  construction,  or  discharges  of  contracts, 
or  the  evidence  or  remedy  to  be  employed  in  enforcing  them,  we  are 
met  by  this  overruling  and  admitted  distinction,  between  those  which 
operate  retrospectively,  and  those  which  operate  prospectively.  In  all 
of  them  the  law  is  pronounced  to  be  void  in  the  first  class  of  cases, 
and  not  so  in  the  second. 

Let  us  stop,  then,  to  make  a  more  critical  examination  of  the  act  of 
limitations,  which  although  it  concerns  the  remedy,  or,  if  it  must  In- 
conceded,  the  evidence,  is  yet  void  or  otherwise,  as  it  is  made  to  ap- 
ply retroactively,  or  prospectively,  and  see  if  it  can.  upon  any  intel- 
ligible principle,  be  distinguished  from  a  bankrupt  law,  when  applied 
in  the  same  manner.  What  is  the  effect  of  the  former?  The  answer 
is,  to  discharge  the  debtor  and  all  his  future  acquisitions  from  his 
contract;  because  he  is  permitted  to  plead  it  in  bar  of  any  remedy 
which  can  be  instituted  against  him,  and  consequently  in  bar  or  de- 


800  FUNDAMENTAL    RIGHTS  (Part  2 

struction  of  the  obligation  which  his  contract  imposed  upon  him. 
What  is  the  effect  of  a  discharge  under  a  bankrupt  law?  I  can  an- 
swer this  question  in  no  other  terms  than  those  which  are  given  to 
the  former  question.  If  there  be  a  difference,  it  is  one  which,  in  the 
eye  of  justice,  at  least,  is  more  favorable  to  the  validity  of  the  latter 
than  of  the  former ;  for  in  the  one,  the  debtor  surrenders  everything 
which  he  possesses  towards  the  discharge  of  his  obligation,  and  in 
the  other,  he  surrenders  nothing,  and  sullenly  shelters  himself  be- 
hind a  legal  objection  with  which  the  law  has  provided  him,  for  the 
purpose  of  protecting  his  person,  and  his  present  as  well  as  his  fu- 
ture acquisitions,  against  the  performance  of  his  contract.  *  *  * 
[Here  follows  mention  of  further  similarities  in  the  legal  effects  of  the 
two  laws,  in  that  the  bar  of  each  may  be  waived  by  the  debtor's  subse- 
quent promise,  without  a  new  consideration,  and  that  each  must  be 
pleaded  by  the  debtor  to  bar  the  creditor's  remedy  upon  the  original 
obligation.] 

[Johnson,  Thompson,  and  Trimble,  J  J.,  gave  concurring  opin- 
ions ;  and  Marshall,  C.  J.,  gave  a  dissenting  opinion  3  for  himself 
and  Duvall  and  Story,  JJ.,  in  the  course  of  which  he  said:  "If  one 
law  enters  into  all  subsequent  contracts,  so  does  every  other  law 
which  relates  to  the  subject.  A  legislative  act,  then,  declaring  that 
all  contracts  should  be  subject  to  legislative  control  and  should  be 
discharged  as  the  legislature  might  prescribe,  would  become  a  com- 
ponent part  of  every  contract  and  be  one  of  its  conditions."  *  12 
Wheat.  339,  6  L.  Ed.  606.] 

Judgment  having  been  entered  in  favor  of  the  validity  of  a  cer- 
tificate of  discharge  under  the  state  laws  in  those  cases,  argued  in 
connection  with  Ogden  v.  Saunders,  where  the  contract  was  made  be- 
tween citizens  of  the  state  under  whose  law  the  discharge  was  ob- 
tained, and  in  whose  courts  the  certificate  was  pleaded,  the  cause  was 
further  argued  by  the  same  counsel,  upon  the  points  reserved,  as  to 
the  effect  of  such  a  discharge  in  respect  to  a  contract  made  with  a 
citizen  of  another  state,  and  where  the  certificate  was  pleaded  in  the 
courts  of  another  state,  or  of  the  United  States.     *     *     * 

Mr.  Justice  Johnson.  I  am  instructed  by  the  majority  of  the  court 
finally  to  dispose  of  this  cause.  The  present  majority  is  not  the  same 
which  determined  the  general  question  on  the  constitutionality  of 
state  insolvent  laws,  with  reference  to  the  violation  of  the  obligation 
of  contracts.  I  now  stand  united  with  the  minority  on  the  former 
question,  and,  therefore,  feel  it  due  to  myself  and  the  community  to 
maintain  my  consistency. 

The  question  now  to  be  considered  is,  whether  a  discharge  of  a 

3  This  is  Chief  Justice  Marshall's  only  dissenting  opinion  upon  a  constitu- 
tional question.  In  the  34  years  he  was  upon  the  bench  he  wrote  519  out 
of  the  1,106  opinions  delivered  in  the  court.  He  dissented  altogether  but  8 
times.     Carson,  Sup.  Ct.  of  ('.  S.,  206,  note. 

i  Compare  Murray  v.  Charleston,  96  U.  S.  432,  440,  449,  24  L.  Ed.  7C0  (1S78). 


Ch.   13)  LAWS    IMPAIRING    OBLIGATIONS   OT   CONTRACTS  ""I 

debtor  under  a  state  insolvent  law,  would  be  valid  against  a  creditor 
or  citizen  of  another  state,  who  has  never  voluntarily  subjected  him- 
self to  the  state  laws,  otherwise  than  by  the  origin  of  his  contract. 

As  between  its  own  citizens,  whatever  be  the  origin  of  the  contract, 
there  is  now  no  question  to  he  made  on  the  effect  of  such  a  discharge; 
nor  is  it  to  be  questioned  that  a  discharge  not  valid  under  the  Constitu- 
tion in  the  courts  of  the  United  States,  is  equally  invalid  in  the  state 
courts.  The  question  to  be  considered  goes  to  the  invalidity  of  the 
discharge  altogether,  and,  therefore,  steers  clear  of  that  provision  in 
the  Constitution  which  purports  to  give  validity  in  every  state  to  the 
records,  judicial  proceedings,  and  so  forth,  of  each  state.     *     *     * 

The  question  is  one  partly  international,  partly  constitutional.  My 
opinion  on  the  subject  is  briefly  this:  that  the  provision  in  the  Con- 
stitution which  gives  the  power  to  the  general  government  to  establish 
tribunals  of  its  own  in  every  state,  in  order  that  the  citizens  of  other 
states  or  sovereignties  might  therein  prosecute  their  rights  under  the 
jurisdiction  of  the  United  States,  had  for  its  object  an  harmonious 
distribution  of  justice  throughout  the  Union ;  to  confine  the  states,  in 
the  exercise  of  their  judicial  sovereignty,  to  cases  between  their  own 
citizens ;  to  prevent,  in  fact,  the  exercise  of  that  very  power  over 
the  rights  of  citizens  of  other  states,  which  the  origin  of  the  contract 
might  be  supposed  to  give  to  each  state;  and  thus,  to  obviate  that  con- 
tlictus  legum,  which  has  employed  the  pens  of  Huberus,  and  various 
others,  and  which  any  one  who  studies  the  subject  will  plainl 
ceive  it  is  infinitely  more  easy  to  prevent  than  to  adjust. 

These  conflicts  of  power  and  right  necessarily  arise  only  after  con- 
tracts are  entered  into.  Contracts,  then,  become  the  appropriate  sub- 
jects of  judicial  cognizance;  and  if  the  just  claims  which  they  give 
rise  to,  are  violated  by  arbitrary  laws,  or  if  the  course  of  distributive 
justice  be  turned  aside,  or  obstructed  by  legislative  interference,  it 
becomes  a  subject  of  jealousy,  irritation,  and  national  complaint  or 
retaliation. 

It  is  not  unimportant  to  observe,  that  the  Constitution  was  adopted 
at  the  very  period  when  the  courts  of  Great  Britain  were  engaged  in 
adjusting  the  conflicts  of  right  which  arose  upon  their  own  bankrupt 
law,  among  the  subjects  of  that  crown  in  the  several  dominions  of  Scot- 
land, Ireland,  and  the  West  Indies.  The  first  case  we  have  on  the 
effect  of  foreign  discharges,  that  of  Tali:. mine  v.  Golding,  1  Cooke's 
Bank.  Law.  487.  occurred  in  1783,  and  the  law  could  hardly  be  held 
settled  before  the  case  of  Hunter  v.  Potts,  4  Term  Rep.  182,  which 
was  decided  in  1791. 

Any  one  who  will  take  the  trouble  to  investigate  the  subject,  will. 
I  think,  be  satisfied,  that  although  die  British  courts  profess 
cide  upon  a  principle  of  universal   law,  when  adjudicating  upon  the 
effect  of  a  foreign  discharge,  neither  the  passage  in  Vattcl,  to 

ll.w .[.  Const. L. — 51 


802  FUNDAMENTAL    RIGHTS  (Part  2 

they  constantly  refer,  nor  the  practice  and  doctrines  of  other  nations, 
will  sustain  them  in  the  principle  to  the  extent  in  which  they  assert  it. 
It  was  all-important  to  a  great  commercial  nation,  the  creditors  of 
all  the  rest  of  the  world,  to  maintain  the  doctrine  as  one  of  universal 
obligation,  that  the  assignment  of  the  bankrupt's  effects,  under  a  law 
of  the  country  of  the  contract,  should  carry  the  interest  in  his  debt=. 
wherever  his  debtor  may  reside ;  and  that  no  foreign  discharge  of 
his  debtor  should  operate  against  debts  contracted  with  the  bankrupt 
in  his  own  country.  But  I  think  it  perfectly  clear  that,  in  the  United 
States,  a  different  doctrine  has  been  established ;  and,  since  the  power 
to  discharge  the  bankrupt  is  asserted  on  the  same  principle  with  the 
power  to  assign  his  debts,  that  the  departure  from  it  in  the  one  in- 
stance carries  with  it  a  negation  of  the  principle  altogether. 

It  is  vain  to  deny  that  it  is  now  the  established  doctrine  in  England, 
that  the  discharge  of  a  bankrupt  shall  be  effectual  against  contracts 
of  the  state  that  give  the  discharge,  whatsoever  be  the  allegiance  or 
country  of  the  creditor.  But  I  think  it  equally  clear,  that  this  is  a 
rule  peculiar  to  her  jurisprudence,  and  that  reciprocity  is  the  general 
rule  of  other  countries ;  that  the  effect  given  to  such  discharge  is  so 
much  a  matter  of  comity,  that  the  states  of  the  European  continent, 
in  all  cases,  reserve  the  right  of  deciding  whether  reciprocity  will  not 
operate  injuriously  upon  their  own  citizens.  *  *  *  [Here  follows 
an  examination  of  the  American  decisions  as  to  the  extra-territorial 
effect  to  be  given  to  bankruptcy  proceedings  in  a  foreign  jurisdiction.] 

I  think  it,  then,  fully  established,  that  in  the  United  States  a  cred-' 
itor  of  the  foreign  bankrupt  may  attach  the  debt  due  the  foreign  bank- 
rupt, and  apply  the  money  to  the  satisfaction  of  his  peculiar  debt,  to 
the  prejudice  of  the  rights  of  the  assignees  or  other  creditors. 

I  do  not  here  speak  of  assignees,  or  rights  created,  under  the  bank- 
rupt's own  deed ;  those  stand  on  a  different  ground,  and  do  not  affect 
this  question.  I  confine  myself  to  assignments,  or  transfers,  resting  on 
the  operation  of  the  laws  of  the  country,  independent  of  the  bank- 
rupt's deed;  to  the  rights  and  liabilities  of  debtor,  creditor,  bankrupt, 
and  assignees,  as  created  by  law. 

What  is  the  actual  bearing  of  this  right  to  attach,  so  generally 
recognized  by  our  decisions?  It  imports  a  general  abandonment  of 
the  British  principles;  for,  according  to  their  laws,  the  assignee  alone 
has  the  power  to  release  the  debtor.  But  the  right  to  attach  neces- 
sarily implies  the  right  to  release  the  debtor,  and  that  right  is  here  as- 
serted under  the  laws  of  a  state  which  is  not  the  state  of  the  contract. 

So,  also,  the  creditor  of  the  bankrupt  is,  by  the  laws  of  his  country, 
entitled  to  no  more  than  a  ratable  participation  in  the  bankrupt's  ef- 
fects. But  the  right  to  attach  imports  a  right  to  exclusive  satisfac- 
tion, if  the  effects  so  attached  should  prove  adequate  to  make  satis- 
faction. 

The  right  to  attach  also  imports  the  right  to  sue'  the  bankrupt ;  and 
who  would  impute  to  the  bankrupt  law  of  another  country,  the  power 


Ch,  13)  LAWS    tMPAIBING   OBLIGATIONS   0>   CON!  803 

to  restrain  the  citizens  of  these  states  in  the  exercise  of  their  right 
to  go  into  the  tribunals  of  their  own  country  for  the  recovery  of 
debts,  wherever  they  may  have  originated?  Vet,  universally,  after 
the  law  takes  the  bankrupt  into  its  own  hands,  his  creditors  are  pro- 
hibited from  suing. 

Thus  much  for  the  law  of  this  case  in  an  international  view.  I 
will  consider  it  with  reference  to  the  provisions  of  the  Constitution. 

I  have  said  above,  that  I  had  no  doubt  the  erection  of  a  distinct 
tribunal  for  the  resort  of  citizens  of  other  states,  was  introdii' 
industria,  into  the  Constitution,  to  prevent,  among  other  evils,  the  as- 
sertion of  a  power  over  the  rights  of  the  citizens  of  other  states,  upon 
the  metaphysical  ideas  of  the  British  courts  on  the  subject  of  jurisdic- 
tion over  contracts,  And  there  was  good  reason  for  it;  for,  upon 
that  principle  it  is,  that  a  power  is  asserted  over  the  rights  of  cred- 
itors which  involves  a  mere  mockery  of  justice. 

Thus,  in  the  case  of  Burrows  v.  Jamineau  (reported  in  2  Strange, 
and  better  reported  in  Moseley,  1,  ami  some  other  books),  the  cr 
residing  in  England,  was  cited,  probably,  by  a  placard  on  a  door-post 
;i   I.     iiorn,  to  appear  there  to  answer  to  his  debtor;    and  his 
passed  upon  by  the  court,  perhaps,  without  his  having  ever  heard  of 
the  institution  of  legal  process  to  destroy  it. 

The  Scotch,  if  I  remember  correctly,  attach  the  summons  on  the 
flagstaff,  or  in  the  market-place,  at  the  shore,  of  Leith ;  and  the  civil 
law  process  by  proclamation,  or  viis  et  modis,  is  not  much  Utter,  as 
the  means  of  subjecting  the  rights  of  foreign  creditors  to  their  tribu- 
nals. 

All  this  mockery  of  justice,  and  the  jealousies,  recriminations,  and 
perhaps  retaliations  which  might  grow  out  of  it  are  avoided,  if  the 
power  of  the  states  over  contracts,  after  they  become  the  subject  ex- 
clusively of  judicial  cognizance,  is  limited  to  the  controversies  of 
their  own  citizens. 

And  it  does  appear  to  me  almost  incontrovertible,  that  the  states 
cannot  proceed  one  step  further  without  exercising  a  power  incom- 
patible with  the  acknowledged  powers  of  other  stales,  or  of  the  United 
States,  and  with  the  rights  of  the  citizens  of  other  si 

Every  bankrupt  or  insolvent  system  in  the  world  must  partake  of 
the  character  of  a  judicial  investigation.     Parties  wl  are  to 

be  affected,  are  entitled  to  a  hearing.  Hence  every  system,  in  com- 
mon with  the  particular  system  now  before  us.  professes  to  summon 
the  creditors  before  some  tribunal,  to  show  cause  against  granting  a 
discharge  to  the  bankrupt.5 

But  on  what  principle  can  a  citizen  of  another  state  be  forced  into 
the  courts  of  a  state   for  this  in-  .        judgment   to  be 

passed  is  to  prostrate  his  rights;    and  on  the  subject  of  these 

«  Bee  Baldwin  v.  Halo,  1  Wall.  22S, 

D.  8   714.  24  L.  Ed   563  (1S7T)  (under  fourteenth  am UnenO. 


804  FUNDAMENTAL    RIGHTS  (Part  2 

the  Constitution  exempts  him  from  the  jurisdiction  of  the  state  tribu- 
nals, without  regard  to  the  place  where  the  contract  may  originate. 
In  the  only  tribunal  to  which  he  owes  allegiance,  the  state  insolvent 
or  bankrupt  laws  cannot  be  carried  into  effect;  they  have  a  law  of 
their  own  on  the  subject  (2  Stats,  at  Large>  4);  and  a  certificate  of 
discharge  under  any  other  law  would  not  be  acknowledged  as  valid 
even  in  the  courts  of  the  state  in  which  the  court  of  the  United  States 
that  grants  it  is  held.  Where  is  the  reciprocity?  Where  the  reason 
upon  which  the  state  courts  can  thus  exercise  a  power  over  the  suitors 
of  that  court,  when  that  court  possesses  no  such  power  over  the 
suitors  of  the  state  courts? 

In  fact,  the  Constitution  takes  away  the  only  ground  upon  which 
this  eminent  dominion  over  particular  contracts  can  be  claimed,  which 
is  that  of  sovereignty.  For  the  constitutional  suitors  in  the  courts  of 
the  United  States  are  not  only  exempted  from  the  necessity  of  re- 
sorting to  the  state  tribunals,  but  actually  cannot  be  forced  into  them. 
If,  then,  the  law  of  the  English  courts  had  ever  been  practically 
adopted  in  this  country  in  the  state  tribunals,  the  Constitution  has 
produced  such  a  radical  modification  of  state  power  over  even  their 
own  contracts,  in  the  hands  of  individuals  not  subject  to  their  jurisdic- 
tion, as  to  furnish  ground  for  excepting  the  rights  of  such  individuals 
from  the  power  which  the  states  unquestionably  possess  over  their  own 
contracts,  and  their  own  citizens.     *     *     * 

And  the  purport  of  this  adjudication,  as  I  understand  it,  is,  that  as 
between  citizens  of  the  same  state,  a  discharge  of  a  bankrupt  by  the 
laws  of  that  state  is  valid  as  it  affects  posterior  contracts;  that  as 
against  creditors,  citizens  of  other  states,  it  is  invalid  as  to  all  con- 
tracts. 

The  propositions  which  I  have  endeavored  to  maintain  in  the  opin- 
ion which  I  have  delivered  are  these : 

1.  That  the  power  given  to  the  United  States  to  pass  bankrupt  laws 
is  not  exclusive. 

2.  That  the  fair  and  ordinary  exercise  of  that  power  by  the  states 
does  not  necessarily  involve  a  violation  of  the  obligation  of  contracts, 
multo  fortiori  of  posterior  contracts. 

3.  But  when,  in  the  exercise  of  that  power,  the  states  pass  beyond 
their  own  limits,  and  the  rights  of  their  own  citizens,  and  act  upon 
the  rights  of  citizens  of  other  states,  there  arises  a  conflict  of  sov- 
ereign power,  and  a  collision  with  the  judicial  powers  granted  to  the 
United  States,  which  renders  the  exercise  of  such  a  power  incom- 
patible with  the  rights  of  other  states,  and  with  the  Constitution  of 
the  United  States. 

Judgment  affirmed.8 

[Washington,  Thompson,  and  Trimble,   J  J.,   dissented.] 

'The  rtocl line  of  the  second  part  of  Ogden  v.  Saunders  has  been  applied 
as  well  to  *uits  in  the  federal  courts  of  the  discharging  state,  Boyle  v.  Zach- 


Ch.  13)  LAWS    IMI'AIKlNG    OBLIGATIONS   OF    CONTRACTS  MJo 

VON  HOFFMAN  v.  QUINCY. 
(Supreme  Court  of  United  States,  1868.     4  Wall.  535,  18  L.  Ed.  403.) 

[Error  to  the  United  States  Circuit  Court  for  the  Southern  Dis- 
trict of  Illinois.  The  city  of  Quincy,  111.,  issued  bonds  in  aid  of  rail- 
roads, under  statutes  authorizing  the  levy  of  a  special  tax  upon  prop- 
erty therein  sufficient  to  pay  the  annual  interest  on  such  bonds  and 
to  be  devoted  to  this  purpose  only.  A  subsequent  statute  reduced 
the  city's  taxing  powers  for  debts  and  general  expenses  to  x/i  per 
cent.,  which  would  leave  nothing  for  these  bonds  after  paying  cur- 
rent expenses.  Von  Hoffman  petitioned  in  the  above-named  court 
for  a  mandamus  to  compel  the  city  and  its  officers  to  levy  taxes  un- 
der the  original  acts  and  pay  a  judgment  for  interest  on  said  bonds, 
which  he  had  recovered  against  the  city.  Upon  judgment  for  the  city 
upon  his  petition,  Von  Hoffman  took  this  writ  of  error.] 

Mr.  Justice  Swayne.  *  *  *  It  is  *  *  *  settled  that  the 
laws  which  subsist  at  the  time  and  place  of  the  making  of  a  contract. 
and  where  it  is  to  be  performed,  enter  into  and  form  a  part  of  it,  as 
if  they  were  expressly  referred  to  or  incorporated  in  its  terms.  This 
principle  embraces  alike  those  which  affect  its  validity,  construction,  dis- 
charge, and  enforcement.  Illustrations  of  this  proposition  are  found, 
in  the  obligation  of  the  debtor  to  pay  interest  after  the  maturity  of 
the  debt,  where  the  contract  is  silent ;  in  the  liability  of  the  drawer 
of  a  protested  bill  to  pay  exchange  and  damages,  and  in  the  right  of 
the   drawer  and   indorser   to   require   proof  of  demand   and   notice. 

arte,  6  Pet.  005,  8  L.  Ed.  ."-7  ns.",2);   even  when  the  contract  alleged  to  be  'lis 
charged  was  made,  and  expressly  performable  there.  Baldwin  v.  Hale,  l  Wall. 
22."..  IT  I..  Ed.  531   (1863).    See  the  acute  criticism  of  this  position  by  Taney, 
O  J.,  in  Cook  v.  Moffat,  ."  Bow.  295,  309  311,  12  I..  Ed.  159  (1847).      I 
eral  Supreme  Court  i  led  that  a  contrary  holding  by  a 

state  court  of  tin-  discharging  state  would  present  a  federal  question.     As  to 

■  the  observations  of   Holmes,  .1..  In   Pho  I  i\   Nat.  Hank  v.  Batcbeller, 
i;,i    Mass.  589,  21  N.  E.  '.M7.  8  I..   K.  A.  644   (1890),  and  the  earlier  • 
Scribner  v.  Fisher,  2  Gray  (Mass.i  43  (1854).     A  recognition  of  such  a  dis- 

by  tiii>  Btate  courts  of  another  si  ite  has,  however,  been  held  invalid 

Supreme  Court.     Shaw  v.  Bobbins,   12  0  L.  Ed.  680 

(1827).     But  if  a  citizen  of  another  state  voluntarily  becomes  a   party   to  a 
bankruptcy  proc ling  lie  is  hound  by  the  local  law  relating  thereto,  baclud- 

discharge  ol  the  debtor.    Clay  v.  Smith.  3  Pet  411.  7  1..  I 
With  Ogderj   v.   Saunders  compan  rd,    l"'-'  O.  s. 

527,  3  Sup.  ft.  363,  27  I..  Ed.  102  tnadian  legislative  disri. 

debts  of  Canadian  corporation  held  valid  in  United  States  against  creditors 
there). 

Can  a   contract  made  in  one  state  where  there  is  no  bankruptcy  law   be 

eoniptilsorih    discharged  under  a   prior  law  of  another  state  where  both  par- 

i    resident  at   the  time  of  dlsi  -'    Wend. 

iN.  V.i       -  i);    Lowenberg  i  ic.  941,  16  1. 

R.  A.  159  (1892)  (no);    Marsh  v.  Putnan  .  3  Graj   (Mass  I  551  (1854)  (3 

Prior    state    statutes    providing    for    an    equal    distribution    of    an    insolvent 
property  in  the  state,  ai.  ditors  only  as  will  relea 

claims,  are  valid  against  non-resident  credll  u  -.    Denny  v.  Bennett,  128  ' 
489,  1'  Sup.  Ct    134,  32   U   Ed     l'.''    [IS  90,   l'-rowu  v.  Smart.   140   D. 

S.  454,  12  Sup.  Ct.  958,  :;<;  1..   Ed   77. 


S06  FUNDAMENTAL    RIGHTS  (Part  2 

These  are  as  much  incidents  and  conditions  of  the  contract  as  if  they 
rested  upon  the  basis  of  a  distinct  agreement.  Green  v.  Biddle,  8 
Wheat.  92,  5  L.  Ed.  547;  Branson  v.  Kinzie,  1  How.  319,  11  L.  Ed. 
143;  McCracken  v.  Hay  ward,  2  How.  612,  11  L.  Ed.  397;  People  v. 
Bond,  10  Cal.  570;  Ogden  v.  Saunders,  12  Wheat.  231,  6  L.  Ed.  606. 

In  Green  v.  Biddle,  the  subject  of  laws  which  affect  the  remedy  was 
elaborately  discussed.  The  controversy  grew  out  of  a  compact  be- 
tween the  states  of  Virginia  and  Kentucky.  It  was  made  in  con- 
templation of  the  separation  of  the  territory  of  the  latter  from  the 
former,  and  its  erection  into  a  state,  and  is  contained  in  an  act  of 
the  legislature  of  Virginia,  passed  in  1789,  whereby  it  was  provided 
"that  all  private  rights  and  interests  within"  the  district  of  Kentucky 
"derived  from  the  laws  of  Virginia  prior  to  such  separation  shall  re- 
main valid  and  secure  under  the  laws  of  the  proposed  state,  and  shall 
be  determined  by  the  laws  now  existing  in  this  state."  By  two  acts 
of  the  legislature  of  Kentucky,  passed  respectively  in  1797  and  1812, 
several  new  provisions  relating  to  the  consequences  of  a  recovery  in 
the  action  of  ejectment — all  eminently  beneficial  to  the  defendant, 
and  onerous  to  the  plaintiff — were  adopted  into  the  laws  of  that  state. 
So  far  as  they  affected  the  lands  covered  by  the  compact,  this  court 
declared  them  void.  It  was  said:  "It  is  no  answer  that  the  acts  of 
Kentucky  now  in  question  are  regulations  of  the  remedy,  and  not  of 
the  right  to  the  lands.  If  these  acts  so  change  the  nature  and  extent 
of  existing  remedies  as  materially  to  impair  the  rights  and  interests 
of  the  owner,  they  are  just  as  much  a  violation  of  the  compact  as  if 
they  overturned  his  rights  and  interests." 

In  Branson  v.  Kinzie,  1  How.  311,  11  L.  Ed.  143,  the  subject  was 
again  fully  considered.  A  mortgage  was  executed  in  Illinois  con- 
taining a  power  of  sale.  Subsequently,  an  act  of  the  legislature  was 
passed  which  required  mortgaged  premises  to  be  sold  for  not  less  than 
two-thirds  of  their  appraised  value,  and  allowed  the  mortgagor  a  year 
after  the  sale  to  redeem.  It  was  held  that  the  statute,  by  thus  chang- 
ing the  pre-existing  remedies,  impaired  the  obligation  of  the  contract, 
and  was  therefore  void.1 

In  McCracken  v.  Hay  ward,  2  How.  608,  11  L.  Ed.  397,  the  same 
principle,  upon  facts  somewhat  varied,  was  again  sustained  and  ap- 
plied. A  statutory  provision  that  personal  property  should  not  be 
sold  under  execution  for  less  than  two-thirds  of  its  appraised  value 
was  adjudged,  so  far  as  it  affected  prior  contracts,  to  be  void,  for 
the  same  reason.     *     *     * 

A  statute  of  frauds  embracing  a  pre-existing  parol  contract  not  be- 
fore required  to  be  in  writing  would  affect  its  validity.  A  statute 
declaring  that  the  word  "ton"  should  thereafter  be  held,  in  prior  as 
well  as  subsequent  contracts,  to  mean' half  or  double  the  weight  be- 

i  Accord:  Baraitz  v.  Beverly,  163  U.  S.  118,  16  Sup.  Ct  1042,  41  L.  Ed.  93 
(.1896)  (subsequent  right  of  redemption  from  mortgage  sale  and  prohibition  of 
second  sale  of  redeemed  property  for  any  balance  due  on  debt). 


Ch.  13)  LAWS    IMPAIEING    OBLIGATION  I  HACTS  801 

fore  prescribed,  would  affect  its  construction.  A  statute  providing 
that  a  previous  contract  of  indcbtmcnt  may  be  extinguished  by  a  pro- 
ress  of  bankruptcy  would  involve  its  discharge,  and  a  statute  forbid- 
ding the  sale  of  any  of  the  debtor's  property,  under  a  judgment  upon 
such  a  contract,  would  relate  to  the  remedy. 

It  cannot  be  doubted,  either  upon  principle  or  authority,  that  each 
of  such  laws  passed  by  a  state  would  impair  the  obligation  of  the 
contract,  and  the  last-mentioned  not  less  than  the  first.  Nothing  can 
be  more  material  to  the  obligation  than  the  means  of  enforcement. 
Without  the  remedy  the  contract  may,  indeed,  in  the  sense  of  the  law, 
be  said  not  to  exist,2  and  its  obligation  to  fall  within  the  cl 
those  moral  and  social  duties  which  depend  for  their  fulfilment  wholly 
upon  the  will  of  the  individual.  The  ideas  of  validity  and  remedy  are 
inseparable,  and  both  are  parts  of  the  obligation,  which  is  guai 
by  the  Constitution  against  invasion.  The  obligation  of  a  contract  "is 
the  law  which  binds  the  parties  to  perform  their  agreement."  Sturges 
v.  Crowninshield,  4  Wheat.  157,  4  L.  Ed.  529,  The  prohibition  has  no 
reference  to  the  degree  of  impairment.  The  largest  and  least  are 
alike  forbidden.  In  Green  v.  Biddle,  8  Wheat.  84,  5  L.  Ed.  547,  it 
was  said :  "The  objection  to  a  law  on  the  ground  of  its  impairing  the 
obligation  of  a  contract  can  never  depend  upon  the  extent  of  the 
change  which  the  law  effects  in  it.  Any  deviation  from  its  terms  by 
postponing  or  accelerating  the  period  of  performance  which  it  pre- 
scribes, imposing  conditions  not  expressed  in  the  contract,  or  dis- 
pensing with  those  which  are,  however  minute  or  apparently  imma- 
terial in  their  effect  upon  the  contract  of  the  parties,  impairs  its  obli- 
gation. Upon  this  principle  it  is  that  if  a  creditor  agree  with  his 
debtor  to  postpone  the  day  of  payment,  or  in  any  other  way  to  change 
the  terms  of  the  contract,  without  the  consent  of  the  surety,  the  lat- 
ter is  discharged,  although  the  change  was  for  his  advantage." 

"One  of  the  tests  that  a  contract  has  been  impaired  is  that  its  value 
has,  by  legislation,  been  diminished.  It  is  not,  by  the  Constitution, 
to  be  impaired  at  all.  This  is  not  a  question  of  degree  or  cause,  but 
of  encroaching,  in  any  respect,  on  its  obligation — dispensing  with  any 
part  of  its  force."  Planters'  Bank  v.  Sharp  et  al.,  6  How.  327,  12  L. 
Ed.  447. 

This  has  reference  to  legislation  which  affects  the  contract  directly, 
and  not  incidentally  or  only  by  consequence. 

The  right  to  imprison  for  debt  is  not  a  part  of  the  contract.  It  is 
regarded  as  penal  rather  than  remedial.'     The  states  may  abolish  it 

•  That,  eren  In  the  sense  of  the  Constitution,  a  contract  may  have  an  "oh 
ligation,"  though  without  a  Judicial  remed; 

state  v.  Toung,  29  Minn.  -174,  626  544,  Si  N.   W.   7.J7   (1881).     Compare  li.    R 
Co.  \.  Ti  mi..  103  i  .  s.  337,  26  1..  Ed 

a  But  compare  Qompera  v.   Buck's   Stove  Co.,  --i   D.  s.  418,    in 
Sup.  Ct  4W2,  55  L.  Ed.  797.  34  L.  it.  A.  (N.  8.)  874  (ion)  (remedial  Ina 
uient  for  contempt  In  refusing  to  obey  mandatory  Injunction). 


808  FUNDAMENTAL    RIGHTS  (Part  2 

whenever  they  think  proper.  Beers  v.  Haughton,  9  Pet.  359,  9  L.  Ed. 
145;  Ogden  v.  Saunders,  12  Wheat.  230,  6  L.  Ed.  606;  Mason  v. 
Haile,  12  Wheat.  373,  6  L.  Ed.  660;  Sturges  v.  Crowninshield,  4 
Wheat.  200,  4  L.  Ed.  529.  They  may  also  exempt  from  sale,  under 
execution,  the  necessary  implements  of  agriculture,  the  tools  of  a 
mechanic,  and  articles  of  necessity  in  household  furniture.  It  is  said: 
"Regulations  of  this  description  have  always  been  considered  in  every 
civilized  community  as  properly  belonging  to  the  remedy,  to  be  ex- 
ercised by  every  sovereignty  according  to  its  own  views  of  policy  and 
humanity."* 

It  is  competent  for  the  states  to  change  the  form  of  the  remedy,  or 
to  modify  it  otherwise,  as  they  may  see  fit,  provided  no  substantial 
right  secured  by  the  contract  is  thereby  impaired.  No  attempt  has 
been -made  to  fix  definitely  the  line  between  alterations  of  the  remedy, 
which  are  to  be  deemed  legitimate,  and  those  which,  under  the  form  of 
modifying  the  remedy,  impair  substantial  rights.  Every  case  must  be 
determined  upon  its  own  circumstances.  Whenever  the  result  last 
mentioned  is  produced,  the  act  is  within  the  prohibition  of  the  Consti- 
tution, and  to  that  extent  void.  Bronson  v.  Kinzie,  1  How.  311,  11 
L.  Ed.  143;   McCracken  v.  Hayward,  2  How.  608.  11  L.  Ed.  397. 

If  these  doctrines  were  res  integrae  the  consistency  and  soundness 
of  the  reasoning  which  maintains  a  distinction  between  the  contract 
and  the  remedy — or,  to  speak  more  accurately,  between  the  remedy 
and  the  other  parts  of  the  contract — might  perhaps  well  be  doubted. 
1  Kent's  Commentaries,  456;  Sedgwick  on  Stat,  and  Cons.  Law,  652; 
Mr.  Justice  Washington's  dissenting  opinion  in  Mason  v.  Haile,  12 
Wheat.  379,  6  L.  Ed.  660.  But  they  rest  in  this  court  upon  a  founda- 
tion of  authority  too  firm  to  be  shaken ;  and  they  are  supported  by 
such  an  array  of  judicial  names  that  it  is  hard  for  the  mind  not  to 
feel  constrained  to  believe  they  are  correct.  The  doctrine  upon  the 
subject  established  by  the  latest  adjudications  of  this  court  render 
the  distinction  one  rather  of  form  than  substance. 

When  the  bonds  in  question  were  issued,  there  were  laws  in  force 
which  authorized  and  required  the  collection  of  taxes  sufficient  in 
amount  to  meet  the  interest,  as  it  accrued  from  time  to  time,  upon  the 
entire  debt.  But  for  the  act  of  the  14th  of  February,  1863,  there 
would  be  no  difficulty  in  enforcing  them.  The  amount  permitted  to 
be  collected  by  that  act  will  be  insufficient;  and  it  is  not  certain  that 
anything  will  be  yielded  applicable  to  that  object.  To  the  extent  of 
the  deficiency  the  obligation  of  the  contract  will  be  impaired,  and  if 
there  be  nothing  applicable,  it  may  be  regarded  as  annulled.     A  right 

i  In  Bronson  v.  Kinzie,  1  How.  311,  315,  11  L.  Ed.  143  (1843),  by  Taney,  C.  J. 
Contra:  Edwards  v.  Kearzey,  96  U.  S.  593,  G03,  604,  24  L.  Ed.  793  (1878) 
(semb)e),  Clifford  and  Hunt,  JJ.,  dissenting  96  U.  S.  609-611,  24  L.  Ed.  793. 
Most  state  courts  have  upheld  such  exemptions,  though,  retrospective.  4 
Rose's  Notes  on  U.  S.  Reps.  262  (collecting  cases). 


Ch.  lo)  LAWS    liil'AIKING    OBLIGATIONS    OF    CONTHACT8  bO'J 

without  a  remedy  is  as  if  it  were  not.  For  every  beneficial  purpose- 
it  may  be  said  not  to  exist. 

It  is  well  settled  that  a  state  may  disable  itself  by  contract  from 
exercising  its  taxing  power  in  particular  cases.  Xew  Jersey  v.  Wil- 
son, 7  Cranch,  166,  3  L.  Ed.  303;  Dodge  v.  Woolsey,  18  How.  331. 
15  L.  Ed.  401;  Piqua  Branch  v.  Knoop,  16  How.  369,  14  L.  Ed.  977. 
It  is  equally  clear  that  where  a  state  has  authorized  a  municipal  cor- 
poration to  contract  and  to  exercise  the  power  of  local  taxation  to 
the  extent  necessary  to  meet  its  engagements,  the  power  thus  given 
cannot  be  withdrawn  until  the  contract  is  satisfied.  The  state  and 
the  corporation,  in  such  cases,  are  equally  bound.  The  power  given 
becomes  a  trust  which  the  donor  cannot  annul,  and  which  the  donee 
is  bound  to  execute;  and  neither  the  state  nor  the  corporation  can 
any  more  impair  the  obligation  of  the  contract  in  this  way  than  in 
any  other.  People  v.  Bond,  10  Cal.  570;  Dominic  v.  Sayre,  5  X.  Y. 
Super.  Ct.  555. 

The  laws  requiring  taxes  to  the  requisite  amount  to  be  collected,  in 
force  when  the  bonds  were  issued,  are  still  in  force  for  all  the  pur- 
poses of  this  case.  The  act  of  1863  is,  so  far  as  it  affects  these  bonds, 
a  nullity.  It  is  the  duty  of  the  city  to  impose  and  collect  the  taxes  in 
all  respects  as  if  that  act  had  not  been  passed.  A  different  result 
would  leave  nothing  of  the  contract  but  an  abstract  right,  of  no  prac- 
tical value,  and  render  the  protection  of  the  Constitution  a  shadow 
and  a  delusion.     *     *     * 

Judgment  reversed.0 

o  If  through  resignation  or  failure  to  elect,  there  are  no  existing  officers 
empowered  to  levy  the  stipulated  taxes  for  the  municipality,  the  federal 
courts  will  not  appoint  officials  to  do  this,  unless  courts  are  authorized  there- 
to by  state  statute,  Heine  v.  Levee  Com'rs,  19  Wall.  665,  22  L.  I 
nor,  If  the  taxes  have  been  assessed  will  they  appoint  a  collector.  Thompson 
v.  Allen  Co.,  115  U.  S.  660,  0  Sup.  Ct  140.  29  L.  Ed.  471'  (1886).  Bo,  also,  if 
existing  officials  choose  to  go  to  jail  for  contempt  rather  than  obey  a  man- 

the  court  can  do  no  more.    See  In  re  Copenhaver  (C.  C.i  51  1 
(1893). 

As  to  how  far  the  benefit  of  former  tax  laws  persists  to  creditors  when  the 
legislature  has  abolished  a  municipality,  or  erected  a  new  one  with  thi 
or  different  boundaries,  see  Mt.  Pleasant  v.  Beckwith,  100  O.  s.  51 1.  25  L.  Ed. 
699  (1880);    .Meriwether  v.  Garrett.  102  D.  8.  472,  26  L.  Ed  197  (1880 
bile  v.  Watson,  11G  O.  8.  289,  6  Sup.  Ct  398,  29  I..  Ed.  620  (1886);    Graham 
v.  Folsou,  200  U.  S.  248,  26  Sup.  Ot  246,  50  I..  Ed.  4',i   0 

Alteration  of  Remedies. —  In  Oshkosh  Waterworks  Co.  v.  Oshkosh,  187 
U.  B.  437,  439,  23  Sup.  Ct  234,  47  L.  Ed.  249  (1903),  Harlan,  J.,  said:  "It 
Is  well  settled  that  While,  In  D  general  sense,  the  laws  in  force  at  the  time 
a  contract  is  made  enter  into  its  obligation,  parties  have  no  rested  ri_-ht  i:. 
the  particular  remedies  or  modes  of  procedure  then  existing,  it  is  true  the 
legislature  may  not  withdraw  all  remedies,  and  thus,  in  effect  de-trey  the 

i tract;    nor  may  it  impose  such  new   restrictions  or  conditions  as  would 

iiy  delay  or  embarrass  the  ani  rights  under  the  i 

according  to  the  usual -course  of  Justice  as  established  when  the  contract 
was  made.  Neither  could  be  done  without  Impairing  the  obligation  of  the 
contract.     But  it  is  equal!.,  ed   that  the  legislature  may  modify  or 

change  existing  remedies,  or  prescribe  new  modes  of  procedure,  without  tni- 


blO  FUNDAMENTAL    RIGHTS  (Part  2 

pairing  the  obligation  of  contracts,  provided  a  substantial  or  efficacious  rem- 
edy remains  or  is  given,  by  means  of  which  a  party  can  enforce  his  rights 
under  the  contract.*' 

As  to  what  changes  in  details  of  remedy,  such  as  rules  of  evidence,  statutes 
of  limitation,  requirements  of  registry,  etc.,  may  impair  substantial  rights  un- 
der contracts,  see  McGahey  v.  Virginia,  135  V.  S.  662,  10  Sup.  Ct  972,  34  L. 
Ed.  304  (1890)  and  cases  there  cited.  As  to  rules  of  evidence  in  general,  see 
Marx  v.  Hanthorn,  148  U.  S.  172,  181,  182,  13  Sup.  Ct.  508,  37  L.  Ed.  410 
(1S93).  As  to  permissible  changes,  see  Oshkosh  W.  W.  Co.  v.  Oshkosh,  above 
(cases) ;  Reitler  v.  Harris,  223  U.  S.  437,  32  Sup.  Ct.  24S,  56  L.  Ed.  497  (1912) ; 

Nat.  Sur.  Co.  v.  Arch.,  etc.,  Co.,  226  TJ.  S.  276,  33  Sup.  Ct.  276,  57  L.  Ed.  

(1912);    Pitts.  Steel  Co.  v.  Bait  Eq.  Soc,  226  U.  S.  455.  33  Supr  Ct.  167,  57  L. 

Ed.  (1913);    Sup.  Euling  of  Mystic  Circle  v.  Snyder,  227   U.  S.  497,  33 

Sup.  Ct.  292,  57  L.  Ed.  (1913)  (imposing  penalty  for  unsuccessful  suit  in 

bad  faith  on  contract). 

Existing  remedies  permitting  a  suit  against  a  state  may  be  impaired  by  the 
state,  under  the  eleventh  amendment  and  the  doctrine  of  Hans  v.  Louisiana, 
post,  p.  1366.  See  Beers  v.  Arkansas,  20  How.  527,  15  L.  Ed.  991  (1S57);  Balt- 
zer  v.  North  Carolina,  161  U.  S.  240,  16  Sup.  Ct.  500,  40  L.  Ed.  684  (1S96) 
(citing  cases).  But  not  a  contractual  right  of  set-off  against  a  state's  suit  for 
taxes.  Virginia  Coupon  Cases,  114  U.  S.  269-340,  5  Sup.  Ct.  903-934,  962- 
907,  1C20,  29  L.  Ed.  185-210,  240  (1SS5),  and  Hans  v.  Louisiana,  post,  p.  1371, 
note  2. 

A  subsequent  law,  validating  a  void  contract  or  giving  a  more  efficient  rem- 
edy upon  a  prior  contract,  does  not  violate  the  contract  clause  of  the  Consti- 
tution. Satterlee  v.  Matthewson,  2  Pet.  3S0,  7  L.  Ed.  45S  (1S29) ;  Bernheimer 
v.  Converse,  206  U.  S.  516,  530,  27  Sup.  Ct.  755,  .759,  51  L.  Ed.  1163  (1907),  in 
which  Day,  J.,  said  (upholding  a  Minnesota  statute  providing  a  more  effec- 
tive method  of  enforcing  a  stockholder's  existing  liability  to  corporation  cred- 
itors) :  "Any  statute  which  took  away  the  benefit  of  such  contract  or  obliga- 
tion would  be  void  as  to  the  creditor,  and  any  attempt  to  increase  the  obliga- 
tion beyond  that  incurred  by  the  stockholder  would  fall  within  the  prohibi- 
tion of  the  Constitution.  But  there  was  nothing  in  the  laws  of  Minnesota 
*  *  *  preventing  the  legislature  from  giving  additional  remedies  to  make 
the  obligation  of  the  stockholder  effectual,  so  long  as  his  original  undertak- 
ing was  not  enlarged.  There  is  a  broad  distinction  between  laws  impairing 
the  obligation  of  contracts  and  those  which  simply  undertake  to  give  a  more 
efficient  remedy  to  enforce  a  contract  already  made."  And  so  Brearley  School 
v.  Ward,  201  N.  Y.  358,  365,  94  N.  E.  1001,  1003,  40  L.  R.  A.  (N.  S.)  1215,  Ann. 
Cas.  1912B,  1251  (1911)  by  Bartlett,  J. :  "The  difference  between  a  statute  ex- 
tending exemptions  from  execution  and  lessening  exemptions  from  execution 
is  fundamental.  *  *  *  If  the  change  be  favorable  to  the  creditor,  as  it 
must  be  when  exemptions  are  thereby  lessened,  it  does  not  impair  the  obliga- 
tion of  the  contract,  but,  on  the  contrary,  strengthens  it." 

Foreign  Remedies.  That  part  of  the  obligation  of  a  contract  which 
concerns  remedies  for  its  enforcement  has  no  force  in  other  jurisdictions. 
Suits  upon  a  contract  brought  elsewhere  than  in  the  jurisdiction  whose  law 
created  its  original  obligation,  are  subject  to  the  remedies  of  the  forum. 
Bank  of  U.  S.  v.  Donnally,  8  Pet.  361.  8  L.  Ed.  974  (1S34)  (statute  of  limita- 
tions) ;  Chic,  etc.,  Ry.  v.  *Sturm,  174  U.  S.  710,  717,  718,  19  Sup.  Ct.  797,  43  L. 
Ed.  1144  (1899)  (exemption  laws) ;  Knights  of  Pythias  v.  Meyer,  198  U.  S. 
508,  517,  25  Sup.  Ct  754,  49  L.  Ed.  1146  (1905)  (rules  of  evidence— semble). 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS   OF    C0NTBACT8  811 

FLETCHER  v.  PECK. 
(Supreme  Court  of  United  States,  lhlO.  7.  ?,  L.  Bd  1^2.) 

|  Krror  to  the  United  States  Circuit  Court  for  Massachusetts. 
Fletcher  brought  an  action  of  covenant  in  that  court  against  Peck, 
and,  upon  the  facts  and  pleadings  stated  in  the  opinion  below,  the 
court  gave  judgment  for  Peck  upon  the  third  count,  overruling  a 
demurrer  to  Peck's  plea  thereto.] 

Mr.  Chief  Justice  Marshall.  *  *  *  This  suit  was  instituted 
on  several  covenants  contained  in  a  deed  made  by  John  Peck,  the  de- 
fendant in  error,  conveying  to  Robert  Fletcher,  the  plaintiff  in  error, 
certain  lands  which  were  part  of  a  large  purchase  made  by  James 
Gunn  and  others,  in  the  year  1795,  from  the  state  of  Georgia,  the 
contract  for  which  was  made  in  the  form  of  a  bill  passed  by  the  legis- 
lature of  that  state.     *     *     * 

The  fourth  covenant  in  the  deed  is,  that  the  title  to  the  premises 
has  been  in  no  way  constitutionally  or  legally  impaired  by  virtue  of 
any  subsequent  act  of  any  subsequent  legislature  of  the  state  of 
Georgia. 

The  third  count  recites  the  undue  means  practised  on  certain  mem- 
bers of  the  legislature,  as  stated  in  the  second  count,  and  then  alleges 
that,  in  consequence  of  these  practices  and  of  other  causes,  a  subse- 
quent legislature  passed  an  act  annulling  and  rescinding  the  law  un- 
der which  the  conveyance  to  the  original  grantees  was  made,  declar- 
ing that  conveyance  void,  and  asserting  the  title  of  the  state  to  the 
lands  it  contained.  The  count  proceeds  to  recite  at  large  this  rescind- 
ing act,  and  concludes  with  averring  that,  by  reason  of  this  act,  the 
title  of  the  said  Peck  in  the  premises  was  constitutionally  and  legally 
impaired,  and  rendered  null  and  void. 

After  protesting  as  before  that  no  such  promises  were  made  as 
stated  in  this  count,  the  defendant  again  pleads  that  himself  and  the 
first  purchaser  under  the  original  grantees,  and  all  intermediate  hold- 
ers of  the  property,  were  purchasers  without  notice. 

To  this  plea  there  is  a  demurrer  and  joinder.     *     *     * 

In  this  case  the  legislature  may  have  had  ample  proof  that  the  orig- 
inal grant  was  obtained  by  practices  which  can  never  be  too  much  rep- 
robated, and  which  would  have  justified  its  abrogation  so  far  as  re- 
spected those  to  whom  crime  was  imputable.  But  the  grant,  when  is- 
sued, conveyed  an  estate  in  fee-simple  to  the  grantee,  clothed  with 
all  the  solemnities  which  law  can  bestow.  This  estate  was  transfer- 
able; and  those  who  purchased  parts  of  it  were  not  stained  by  that 
guilt  which  infected  the  original  transaction.  Their  case  is  not  dis- 
tinguishable from  the  ordinary  case  of  purchasers  of  a  legal  estate 
without  knowledge  of  any  secret  fraud  which  ought  have  led  to  the 
emanation  of  the  original  grant.  According  to  the  well-known  course 
of  equity,  their  rights  could  not  be  affected   by  such   fraud.     Their 


812  fundamental  rights  (Part  2 

situation  was  the  same,  their  title  was  the  same,  with  that  of  every 
other  member  of  the  community  who  holds  land  by  regular  convey- 
ances from  the  original  patentee. 

Is  the  power  of  the  legislature  competent  to  the  annihilation  of 
such  title,  and  to  a  resumption  of  the  property  thus  held  ?  The  prin- 
ciple asserted  is,  that  one  legislature  is  competent  to  repeal  any  act 
which  a  former  legislature  was  competent  to  pass ;  and  that  one  legis- 
lature cannot  abridge  the  powers  of  a  succeeding  legislature. 

The  correctness  of  this  principle,  so  far  as  respects  general  legisla- 
tion, can  never  be  controverted.  But  if  an  act  be  done  under  a  law, 
a  succeeding  legislature  cannot  undo  it.  The  past  cannot  be  recalled 
by  the  most  absolute  power.  Conveyances  have  been  made,  those 
conveyances  have  vested  legal  estates,  and,  if  those  estates  may  be 
seized  by  the  sovereign  authority,  still,  that  they  originally  vested  is 
a  fact,  and  cannot  cease  to  be  a  fact.  When,  then,  a  law  is  in  its  na- 
ture a  contract,  when  absolute  rights  have  vested  under  that  contract, 
a  repeal  of  the  law  cannot  divest  those  rights ;  and  the  act  of  annul- 
ling them,  if  legitimate,  is  rendered  so  by  a  power  applicable  to  the 
case  of  every  individual  in  the  community.     *     *     * 

The  Constitution  of  the  United  States  declares  that  no  state  shall 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts.  Does  the  case  now  under  consideration  come 
within  this  prohibitory  section  of  the  Constitution? 

In  considering  this  very  interesting  question,  we  immediately  ask 
ourselves  what  is  a  contract?  Is  a  grant  a  contract?  A  contract  is 
a  compact  between  two  or  more  parties,  and  is  either  executory  or 
executed.  An  executory  contract  is  one  in  which  a  party  binds  him- 
self to  do,  or  not  to  do,  a  particular  thing;  such  was  the  law  under 
which  the  conveyance  was  made  by  the  governor.  A  contract  ex- 
ecuted is  one  in  which  the  object  of  contract  is  performed;-  and  this, 
says  Blackstone,  differs  in  nothing  from  a  grant.  The  contract  be- 
tween Georgia  and  the  purchasers  was  executed  by  the  grant.  A  con- 
tract executed,  as  well  as  one  which  is  executory,  contains  obligations 
binding  on  the  parties.  A  grant,  in  its  own  nature,  amounts  to  an  ex- 
tinguishment of  the  right  of  the  grantor,  and  implies  a  contract  not 
to  reassert  that  right.1  A  party  is,  therefore,  always  estopped  by  his 
own  grant. 

Since,  then,  in  fact,  a  grant  is  a  contract  executed,  the  obligation  of 
which    still   continues,   and    since   the   Constitution    uses   the   general 

i  So  Houston,  etc.,  R.  R.  v.  Texas,  177  U.  S.  G6,  9S,  90.  20  Sup.  Ct.  545,  557, 
44  L.  Ed.  G7.3  (1900),  by  Peckham,  J.  (holding  that  a  state  having  received  its 
own  treasury  warrants  in  satisfaction  of  debts  due  it.  could  not  repudiate  the 
settlement  even  though  the  warrants  had  been  illegally  issued):  "Neither 
party  could  undo  what  had  been  fully  executed  and  completed,  and  the  law 
therefore  implies  a  contract  that  neither  party  will  attempt  to  do  so,  or,  in 
other  words,  the  law  implies  a  contract  that  the  payments  made  shall  not  be 
thereafter  repudiated  or  denied.  Any  subsequent  statute  of  the  state  which 
repudiated  or  permitted  the  repudiation  of  the  payments  would  impair  the 
obligation  of  the  contract  which  the  law  raises  from  the  transaction  itself.' 


Ch.  13)  LAWS    [MPAIBING    OBLIGATIONS    OF    CONTRA* 

term  contract,  without  distinguishing  between  those  which  are  ex- 
ecutory and  those  which  are  executed,  it  must  be  construed  to  com- 
prehend the  latter  as  well  as  the  former.  A  law  annul' 
ances  between  individuals,  and  declaring  that  the  grantors  should 
stand  seised  of  their  former  estates,  notwithstanding  those  grants, 
would  be  as  repugnant  to  the  Constitution  as  a  law  discharging  the 
vendors  of  property  from  the  obligation  of  executing  their  contracts 
by  conveyances.  It  would  be  strange  if  a  contract  to  convey  was 
secured  by  the  Constitution,  while  an  absolute  conveyance  remained 
unprotected. 

If,  under  a  fair  construction  of  the  Constitution,  grants  are  com- 
prehended under  the  term  contracts,  is  a  grant  from  the  state  e  : 
from  the  operation  of  the  provision?  Is  the  clause  to  be  considered 
as  inhibiting  the  state  from  impairing  the  obligation  of  contracts  be- 
tween two  individuals,  but  as  excluding  from  that  inhibition  con- 
tracts made  with  itself? 

The  words  themselves  contain  no  such  distinction.  They  are  gen- 
eral, and  arc  applicable  to  contracts  of  every  description.  If  con- 
tracts made  with  the  state  are  to  be  exempted  from  their  operation, 
the  exception  must  arise  from  the  character  of  the  contracting  party. 
not  from  the  words  which  are  employed.  Whatever  respect  might 
have  been  felt  for  the  state  sovereignties,  it  is  not  to  be  di 
that  the  framers  of  the  Constitution  viewed,  with  some  apprehen- 
sion, the  violent  acts  which  might  grow  out  of  the  feelings  of  the  mo- 
ment ;  and  that  the  people  of  the  United  States,  in  adopting  that  in- 
strument, have  manifested  a  determination  to  shield  themselves  and 
their  property  from  the  effects  of  those  sudden  and  strong  passions 
to  which  men  are  exposed.  The  restrictions  on  the  legislative  power 
of  the  states  are  obviously  founded  in  this  sentiment :  and  the  Con- 
stitution of  the  United  States  contains  what  may  be  deemed  a  bill  of 
rights  for  the  people  of  each  state. 

No  state  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts.  A  bill  of  attainder  may  affect 
the  life  of  an  individual,  or  may  confiscate  his  property,  or  may  do 
both.  In  this  form  the  power  of  the  legislature  over  the  lives  and 
fortunes  of  individuals  is  expressly  restrained.  What  motive,  then, 
for  implying,  in  words  which  import  a  general  prohibition  to  impair 
the  obligation  of  contracts,  an  exception  in  favor  of  the  right  to  im- 
pair the  obligation  of  those  contracts  into  which  the  state  may  enter? 

The  state  legislatures  can  pass  no  ex  law.     An  < 

facto  law  is  one  which  renders  an  act  punishable  in  a  manner  in  which 
it  was  not  punishable  when  it  was  committed.     Such  a  law  may  in- 
flict penalties  on  the  person,  or  may  inflict  pecuniary  penalties  which 
swell  the   public  treasury.     The  legislature   is   then   prol 
passing  a  law  by  which  a  man's  art  of  it,  shall  be 

for  a  crime  which  was  not  declared,  by  some  previous  law,  to  render 


8L4  fundamental  rights  (Part  2 

him  liable  to  that  punishment.  Why,  then,  should  violence  be  done 
to  the  natural  meaning  of  words  for  the  purpose  of  leaving  to  the 
legislature  the  power  of  seizing,  for  public  use,  the  estate  of  an  in- 
dividual in  the  form  of  a  law  annulling  the  "title  by  which  he  holds 
that  estate?  The  court  can  perceive  no  sufficient  grounds  for  making 
that  distinction.  This  rescinding  act  would  have  the  effect  of  an  ex 
post  facto  law.  It  forfeits  the  estate  of  Fletcher  for  a  crime  not  com- 
mitted by  himself,  but  by  those  from  whom  he  purchased.  This  can- 
not be  effected  in  the  form  of  an  ex  post  facto  law,  or  bill  of  at- 
tainder; why.  then,  is  it  allowable  in  the  form  of  a  law  annulling  the 
original  grant? 

The  argument  in  favor  of  presuming  an  intention  to  except  a  case, 
not  excepted  by  the  words  of  the  Constitution,  is  susceptible  of  some 
illustration  from  a  principle  originally  engrafted  in  that  instrument, 
though  no  longer  a  part  of  it.  The  Constitution,  as  passed,  gave  the 
courts  of  the  United  States  jurisdiction  in  suits  brought  against  indi- 
vidual states.  A  state,  then,  which  violated  its  own  contract,  was 
suable  in  the  courts  of  the  United  States  for  that  violation.  Would  it 
have  been  a  defence  in  such  a  suit  to  say  that  the  state  had  passed  a 
law  absolving  itself  from  the  contract?  It  is  scarcely  to  be  conceived 
that  such  a  defence  could  be  set  up.  And  yet,  if  a  state  is  neither  re- 
strained by  the  general  principles  of  our  political  institutions,  nor  by 
the  words  of  the  Constitution,  from  impairing  the  obligation  of  its 
own  contracts,  such  a  defence  would  be  a  valid  one.  This  feature  is 
no  longer  found  in  the  Constitution;  but  it  aids  in  the  construction 
of  those  clauses  with  which  it  was  originally  associated. 

It  is,  then,  the  unanimous  opinion  of  the  court,  that,  in  this  case,  the 
estate  having  passed  into  the  hands  of  a  purchaser  for  a  valuable  con- 
sideration, without  notice,  the  state  of  Georgia  was  restrained,  either 
by  general  principles  which  are  common  to  our  free  institutions,  or 
by  the  particular  provisions  of  the  Constitution  of  the  United  States, 
from  passing  a  law  whereby  the  estate  of  the  plaintiff  in  the  premises 
so  purchased  could  be  constitutionally  and  legally  impaired  and  ren- 
dered null  and  void.     *     *     * 

Judgment  affirmed.2 

Mr.  Justice  Johnson  [dissenting  on  two  points].  *  *  *  Whether 
the  words,  "acts  impairing  the  obligation  of  contracts,"  can  be  con- 
strued to  have  the  same  force  as  must  have  been  given  to  the  words 
"obligation  and  effect  of  contracts,"  is  the  difficulty  in  my  mind. 

There  can  be  no  solid  objection  to  adopting  the  technical  definition 
of  the  word  "contract,"  given  by  Blackstone.  The  etymology,  the 
classical  signification,  and  the  civil-law  idea  of  the  word,  will  all  sup- 
port it.  But  the  difficulty  arises  on  the  word  "obligation,"  which  cer- 
tainly imports  an  existing  moral  or  physical  necessity.     Now  a  grant 

2  A  contract  between  two  states,  though  for  the  benefit  of  private  individu- 
als, is  likewise  protected.     Green  v.  Biddle,  8  Wheat.  1,  92,  5  L.  Ed.  547  (1823). 


Ch.  loj  LAWS    IMPAIRING    0BLIOA1  ONTBACTS 

or  conveyance  by  no  means  necessarily  implies  the  continuance  of  an 
obligation  beyond  the  moment  of  executing  it.  It  is  most  generally 
but  the  consummation  of  a  contract,  is  functus  officio  the  moment  it 
is  executed,  and  continues  afterwards  to  be  nothing  more  than  the 
evidence  that  a  certain  act  was  done.*     *     *     • 


TRUSTEES    OF   DARTMOUTH   COLLEGE  v.   WOODWARD. 
(Supreme  Court  of  United  States,  1819.    4  Wheat  518,  4  U  Ed.  829.) 

|  The  facts  are  stated  in  the  opinion  below.] 

.Marshall,  C.  J.  This  is  an  action  of  trover,  brought  by  the  Trus- 
tees of  Dartmouth  College  against  William  H.  Woodward,  in  the  state 
court  of  New  Hampshire,  for  the  hook  of  records,  corporate  seal,  and 
other  corporate  property,  to  which  the  plaintiffs  allege  themselves  to  be 
entitled.  A  special  verdict,  after  setting  out  the  rights  of  the  parties, 
finds  for  the  defendant,  if  certain  acts  of  the  Legislature  of  New 
hire,  passed  on  the  27th  of  June  and  on  the  18th  of  December, 
1816,  be  valid,  and  binding  on  the  trustees  without  their  assent,  and 
not  repugnant  to  the  Constitution  of  the  United  States;  otii. 
it  finds  for  the  plaintiffs.  The  Superior  Court  of  Judicature  of  New 
Hampshire  rendered  a  judgment  upon  this  verdict  for  the  defendant, 
which  judgment  has  been  brought  before  this  court  by  writ  of  error. 
The  single  question  now  to  be  considered  is,  do  the  acts  to  which  the 
verdict  refers  violate  the  Constitution  of  the  United  States?     *     *     * 

The  title  of  the  plaintiffs  originates  in  a  charter  dated  the  13th  day 
of  December,   in  the  year   1769,  incorporating  twelve  persons  there- 
in mentioned,  by  the  name  of  "The  Trustees  of  Dartmouth  Col 
granting  to  them  and  their  successors  the  usual  corporate  pri\ 
and  powers,  and  authorizing  the  trustees,  who  are  to  govern  the  col- 
lege, to  fill  up  all  vacancies  which  may  be  created  in  their  own  b 

The  defendant  claims  under  three  acts  of  the  Legislature  of   New 
Hampshire,  the  most  material  of   which  was  passed  on  the  27th  of 
June,  1816,  and  is  entitled  "An  act  to  amend  the  charter  and  enlarge 
and  improve  the  corporation  of   Dartmouth  College."     Among 
alterations  in  the  charter,  this  act  increases  the  number  of  trus 

l:,   tl pinion  "i"   McLean,   3.,  In  Churlea   River  Bridge  v.   Warren 

Bridge,  it   Pet  420,  578,  9  I..  Ed.  773  (1837). 

[gatlons  have  tntracta  within  the 

rational  prohibition  of  impairment,  because  tiol   ti 
gatlon  tu  pay  a  tort  Judgment,  Louisiana  v.  Mayor.  109  D.  S.  285,  ::  5 
211,  -7  U  Ed.  936  (1883);    obligation  to  pay  Interest  on  contract  judgment, 
Morley  v.  l-  S.,  etc.,  Ry.,  146  D.  S.  162,  13  Sup.  Ct  54,  ■"•''•  L.  I 

existing  law  regarding  the  uon-alienablUtj 
execution  of  property  Interests  created  by  will  or  declaration 
no  part  of  a  contract  creating  such  interests,  and  may  be  changed 
ley  School  v.  Ward,  201  N.  Y.  358,  368  371,  94  N.  E.  1001,  40  L.  EL  A.  (N.  S.) 
1216,  Ann.  Caa  1912B,  251  (1811)  (cases). 


816  FUNDAMENTAL    RIGHTS  (Part  2 

twenty-one,  gives  the  appointment  of  the  additional  members  to  the 
executive  of  the  state,  and  creates  a  board  of  overseers,  with  power 
to  inspect  and  control  the  most  important  acts  of  the  trustees.  This 
board  consists  of  twenty-five  persons.  The  President  of  the  Senate, 
the  Speaker  of  the  House  of  Representatives  of  New  Hampshire,  and 
the  Governor  and  Lieutenant-Governor  of  Vermont,  for  the  time  be- 
ing, are  to  be  members  ex  officio.  The  board  is  to  be  completed  by 
the  Governor  and  Council  of  New  Hampshire,  who  are  also  em- 
powered to  fill  all  vacancies  which  may  occur.  The  acts  of  the  18th 
and  26th  of  December  are  supplemental  to  that  of  the  27th  of  June, 
and  are  principally  intended  to  carry  that  act  into  effect. 

The  majority  of  the  trustees  of  the  college  have  refused  to  accept 
this  amended  charter,  and  have  brought  this  suit  for  the  corporate 
property,  which  is  in  possession  of  a  person  holding  by  virtue  of  the 
acts  which  have  been  stated. 

It  can  require  no  argument  to  prove  that  the  circumstances  of  this 
case  constitute  a  contract.  An  application  is  made  to  the  crown  for  a 
charter  to  incorporate  a  religious  and  literary  institution.  In  the  ap- 
plication it  is  stated  that  large  contributions  have  been  made  for  the 
object,  which  will  be  conferred  on  the  corporation  as  soon  as  it  shall  be 
created.  The  charter  is  granted,  and  on  its  faith  the  property  is  con- 
veyed. Surely  in  this  transaction  every  ingredient  of  a  complete  and 
legitimate  contract  is  to  be  found. 

The  points  for  consideration  are,  1.  Is  this  contract  protected  by  the 
Constitution  of  the  United  States?  2.  Is  it  impaired  by  the  acts  under 
which  the  defendant  holds? 

1.  On  the  first  point  it  has  been  argued  that  the  word  "contract,"  in 
its  broadest  sense,  would  comprehend  the  political  relations  between 
the  government  and  its  citizens,  would  extend  to  offices  held  within  a 
state  for  state  purposes,  and  to  many  of  those  laws  concerning  civil 
institutions,  which  must  change  with  circumstances,  and  be  modified 
by  ordinary  legislation;  which  deeply  concern  the  public,  and  which, 
to  preserve  good  government,  the  public  judgment  must  control.  That 
even  marriage  is  a  contract,  and  its  obligations  are  affected  by  the  laws 
respecting  divorces.  That  the  clause  in  the  Constitution,  if  construed 
in  its  greatest  latitude,  would  prohibit  these  laws.  Taken  in  its  broad, 
unlimited  sense,  the  clause  would  be  an  unprofitable  and  vexatious  in- 
terference with  the  internal  concerns  of  a  state,  would  unnecessarily 
and  unwisely  embarrass  its  legislation,  and  render  immutable  those 
civil  institutions  which  are  established  for  purposes  of  internal  govern- 
ment, and  which,  to  subserve  those  purposes,  ought  to  vary  with  vary- 
ing circumstances.  That  as  the  f  ramers  of  the  Constitution  could  never 
have  intended  to  insert  in  that  instrument  a  provision  so  unnecessary, 
so  mischievous,  and  so  repugnant  to  its  general  spirit,  the  term  "con- 
tract" must  be  understood  in  a  more  limited  sense.  That  it  must  be 
understood  as  intended  to  guard  against  a  power  of  at  least  doubtful 
utility,  the  abuse  of  which  had  been  extensively  felt,  and  to  restrain 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    Of    CONTBAl  B17 

the  legislature  in  future  from  violating  the  right  to  property.  Thnt  an- 
terior to  the  formation  of  the  Constitution,  a  course  of  legislation  had 
prevailed  in  many,  if  not  in  all,  of  the  states,  which  weakened  the  con- 
fidence of  man  in  man,  and  embarrassed  all  transactions  between  indi- 
viduals, by  dispensing  with  a  faithful  performance  of  engagements. 
To  correct  this  mischief,  by  restraining  the  power  which  produced  it, 
the  state  legislatures  were  forbidden  "to  pass  any  law  impairing  the 
obligation  of  contracts,"  that  is,  of  contracts  respecting  property,  under 
v.  hi'  h  some  individual  could  claim  a  right  to  something  beneficial  to 
himself;  and  that  since  the  clause  in  the  Constitution  must  ii 
struction  receive  some  limitation,  it  may  be  confined,  and  ought  to  be 
confined,  to  cases  of  this  description;  to  cases  within  the  mischief  it 
was  intended  to  remedy. 

The  general  correctness  of  these  observations  cannot  be  controverted. 
That  the  framers  of  the  Constitution  did  not  intend  to  restrain  the 
States  in  the  regulation  of  their  civil  institutions,  adopted  for  internal 
government,  and  that  the  instrument  they  have  given  us  is  not  to  be  so 
construed,  may  be  admitted.1  The  provision  of  the  Constitution  never 
has  been  understood  to  embrace  other  contracts  than  those  which  re- 
spect property  or  some  object  of  value,  and  confer  rights  which  may- 
be asserted  in  a  court  of  justice.  It  has  never  been  understood  to  re- 
strict the  general  right  of  the  legislature  to  legislate  on  the  subject  of 
divorces."  Those  acts  enable  some  tribunal,  not  to  impair  a  mai 
contract,  but  to  liberate  one  of  the  parties  because  it  has  been  broken 
by  the  other.  When  any  state  legislature  shall  pass  an  act  annulling  all 
marriage  contracts,  or  allowing  either  party  to  annul  it  without  the 
consent  of  the  other,  it  will  be  time  enough  to  inquire  whether  such 
an  act  be  constitutional. 

The  parties  in  this  case  differ  less  on  general  principles,  less  on  the 
true  construction  of  the  Constitution  in  the  abstract,  than  on  the  ap 
plication  of  those  principles  to  this  case,  and  on  the  true  construction 
of  the  charter  of  1769.  This  is  the  point  on  which  the  cause  essential- 
ly depends.  If  the  act  of  incorporation  be  a  grant  of  political  power, 
if  it  create  a  civil  institution  to  be  employed  in  the  administration  of 
the  government,  or  if  the  funds  of  the  college  be  public  property,  or  if 

i  Charters  of  municipal  corporations  arc  not  contracts,  Laramie  Co.  v.  A! 
ban?  Co.,  92  0.  8.  307,  28  I*  Ed.  662  (1876);    New  Orleans  v.  New  Orleans 
Wain-works  Co..  142  V.  S.  79,  L2  Sup.  Ct  i  12,  86  U  Ed.  943  (1891);    and  on- 
to u  city  under  a  contract  made  by  It  maj  i  by  the 
lire  so  far  us  they  concern   governmental   matters  In  which   the  dty 
i  the  state  Worcester  v.  Street  Ry.,  196  0.  S.  589,  26  Sup. 
Ct.  -"-V.  49  I..  Ed  "'in  (1905).    Nor  lias  a  public  officer,  generallj  speaking;  any 
contract;  right  to  either  office  or  compensation.    Taylor  v.  Beckham,  its  rj,  s 
548,  576,  r,T7.  20  Sup.  Ct  890,  1009,  44  I..  Ed.  1187  (1900)  (citing  ■ 
-■A  state  may  grant  a   legislative  divorce  upon  any  grounds  it 
\\,.  are  clear  thai    marriage  is  not   a  contract   within   iin>  meaning  of  the 
prohibition."     Maynard  v.  Hill.  1lt.  D.  S.  190,  210,  8  Sup.  Ct  723,  729,  31   L: 
1,1    654  (1888),  by  Pield,  J.     Nor  is  an  Inchoate  right  of  dower  prote 
the  contract  clause.     Boyd  v.  Harr    on,  8fl  a  a.  538,  Cm7  (lsuuj. 
Hall  Const. L.— 02 


SIS  FUNDAMENTAL    BIGHTS  (Part   2 

the  state  of  New  Hampshire,  as  a  government,  be  alone  interested  in 
its  transactions,  the  subject  is  one  in  which  the  legislature  of  the  state 
may  act  according  to  its  own  judgment,  unrestrained  by  any  limita- 
tion of  its  power  imposed  by  the  Constitution  of  the  United  States. 

But  if  this  be  a  private  eleemosynary  institution,  endowed  with  a 
capacity  to  take  property  for  objects  unconnected  with  government, 
whose  funds  are  bestowed  by  individuals  on  the  faith  of  the  charter; 
if  the  donors  have  stipulated  for  the  future  disposition  and  manage- 
ment of  those  funds  in  the  manner  prescribed  by  themselves;  there 
may  be  more  difficulty  in  the  case,  although  neither  the  persons  who 
have  made  these  stipulations,  nor  those  for  whose  benefit  they  were 
made,  should  be  parties  to  the  cause.  Those  who  are  no  longer  inter- 
ested in  the  property  may  yet  retain  such  an  interest  in  the  preserva- 
tion of  their  own  arrangements  as  to  have  a  right  to  insist  that  those 
arrangements  shall  be  held  sacred.  Or,  if  they  have  themselves  disap- 
peared, it  becomes  a  subject  of  serious  and  anxious  inquiry  whether 
those  whom  they  have  legally  empowered  to  represent  them  forever 
may  not  assert  all  the  rights  which  they  possessed  while  in  being; 
whether,  if  they  be  without  personal  representatives  who  may  feel 
injured  by  a  violation  of  the  compact,  the  trustees  be  not  so  completely 
their  representatives  in  the  eye  of  the  law  as  to  stand  in  their  place, 
not  only  as  respects  the  government  of  the  college,  but  also  as  respects 
the  maintenance  of  the  college  charter. 

It  becomes  then  the  duty  of  the  court  most  seriously  to  examine  this 
charter,  and  to  ascertain  its  true  character.  *  *  *  [Here  is  recited 
the  success  of  Rev.  Eleazer  Wheelock  in  establishing  a  charity  school 
for  the  religious  instruction  of  Indians,  his  solicitation  of  money  and 
land  to  establish  a  college  in  New  Hampshire  to  extend  the  undertaking 
and  to  promote  learning  among  the  English,  and  his  appointment  of 
trustees  of  the  property  contributed.]  Dr.  Wheelock  then  applied  to 
the  crown  for  an  act  of  incorporation,  and  represented  the  expediency 
of  appointing  those  whom  he  had,  by  his  last  will,  named  as  trustees 
in  America  to  be  members  of  the  proposed  corporation.  "In  consider- 
ation of  the  premises,"  "for  the  education  and  instruction  of  the  youth 
of  the  Indian  tribes,"  &c,  "and  also  of  English  youth  and  any  others," 
the  charter  was  granted,  and  the  Trustees  of  Dartmouth  College  were 
by  that  name  created  a  body  corporate,  with  power,  for  the  use  of  the 
said  college,  to  acquire  real  and  personal  property,  and  to  pay  the 
president,  tutors,  and  other  officers  of  the  college  such  salaries  as  they 
shall  allow.  *  *  *  [Here  are  mentioned  the  charter  powers  of  the 
trustees  to  appoint  a  president  and  members  of  the  instructing  body  of 
the  college,  to  fill  vacancies  in  their  own  body,  and  to  make  regulations 
for  the  government  of  the  college,  not  repugnant  to  law  and  not  ex- 
cluding persons  for  their  religious  sentiments  or  professions.]  This 
charter  was  accepted,  and  the  property,  both  real  and  personal,  which 
had  been  contributed  for  the  benefit  of  the  college,  was  conveyed  to' 
and  vested  in  the  corporate  body. 


Cll.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS  819 

From  tliis  brief  review  of  the  most  essential  parts  of  the  charter,  it 
is  apparent  that  the  funds  of  the  college  consisted  entirely  of  private 
donations.  *  *  *  Dartmouth  College  is  really  endowed  bv  pri- 
vate individuals,  who  have  bestowed  their  funds  for  the  propagation 
of  the  Christian  religion  among  the  Indians,  and  for  the  promotion  of 
piety  and  learning  generally.  From  these  funds  the  salaries  of  the 
tutors  are  drawn,  and  these  salaries  lessen  the  expense  of  education  to 
the  students.  It  is  then  an  eleemosynary  (1  Bl.  Com.  471)  and,  as  far 
as  respects  its  funds,  a  private  corporation. 

Do  its  objects  stamp  on  it  a  different  character?    Are  the  tri 
and  professors  public  officers,  invested  with  any  portion  of  political 
power,  partaking  in  any  degree  in  the  administration  of  civil  govern- 
ment, and  performing  duties  which  flow  from  the  sovereign  authority  ? 

That  education  is  an  object  of  national  concern  and  a  proper  sub- 
ject of  legislation,  all  admit.  That  there  may  be  an  institution  founded 
by  government  and  placed  entirely  under  its  immediate  control,  the 
officers  of  which  would  be  public  officers,  amenable  exclusively  to  gov- 
ernment, none  will  deny.  But  is  Dartmouth  College  such  an  institu- 
tion? Is  education  altogether  in  the  hands  of  government?  Does 
every  teacher  of  youth  become  a  public  officer,  and  do  donations  for  the 
purpose  of  education  necessarily  become  public  property,  so  far  that 
the  will  of  the  legislature,  not  the  will  of  the  donor,  becomes  the  law 
of  the  donation?  These  questions  are  of  serious  moment  to  society,  and 
deserve  to  be  well  considered.     *     *     * 

\Y  hence,  then,  can  be  derived  the  idea  that  Darmouth  College  has 
become  a  public  institution,  and  its  trustees  public  officers,  exercising 
powers  conferred  by  the  public  for  public  objects?  Not  from  the 
source  whence  its  funds  were  drawn,  for  its  foundation  is  purely  pri- 
vate and  eleemosynary;  not  from  the  application  of  those  fun 
money  may  be  given  for  education,  and  the  persons  receiving  it  do  not. 
by  being  employed  in  the  education  of  youth,  become  members  of  the 
civil  government.  Is  it  from  the  act  of  incorporation?  Let  this  sub- 
ject be  considered. 

A  corporation  is  an  artificial  being,  invisible,  intangible,  and  existing 
only  in  contemplation  of  law.  Being  the  mere  creature  of  law.  it  pos- 
sesses only  those  properties  which  the  charter  of  its  creation  confers 
Upon  it,  cither  expressly  or  as  incidental  to  its  very  existence.  These 
are  such  as  are  supposed  best  calculated  to  effect  the  object  for  which 
it  was  created.  Among  the  most  important  are  immortality,  and,  if  the 
expression  may  be  allowed,  individuality;  properties,  by  which  a  per- 
petual succession  of  many  persons  are  considered  as  the  same,  and  may 
act  as  a  single  individual.  They  enable  a  corporation  to  man. 
own  affairs,  and  to  hold  property  without  the  perplexing  intricacies. 
the  hazardous  and  endless  necessity,  of  perpetual  conveyances  for  the 
purpose  of  transmitting  it  from  hand  to  hand.  It  is  chiefly  for  the  pur- 
pose of  clothing  bodies  of  men  in  succession  with  these  qualities  and 
capacities  that  corporations  were  invented  and  are  in  use.     By  these 


820  FUNDAMENTAL    RIGHTS  (Part  2 

means,  a  perpetual  succession  of  individuals  are  capable  of  acting  for 
the  promotion  of  the  particular  object,  like  one  immortal  being-  But 
this  being  does  not  share  in  the  civil  government  of  the  country,  unless 
that  be  the  purpose  for  which  it  was  created.  Its  immortality  no  more 
confers  on  it  political  power  or  a  political  character  than  immortality 
would  confer  such  power  or  character  on  a  natural  person.  It  is  no 
more  a  state  instrument  than  a  natural  person  exercising  the  same 
powers  would  be.  If,  then,  a  natural  person,  employed  by  individuals 
in  the  education  of  youth,  or  for  the  government  of  a  seminary  in  which 
youth  is  educated,  would  not  become  a  public  officer,  or  be  considered 
as  a  member  of  the  civil  government,  how  is  it  that  this  artificial  being, 
created  by  law  for  the  purpose  of  being  employed  by  the  same  indi- 
viduals for  the  same  purposes,  should  become  a  part  of  the  civil  gov- 
ernment of  the  country?  Is  it  because  its  existence,  its  capacities,  its 
powers,  are  given  by  law?  Because  the  government  has  given  it  the 
power  to  take  and  to  hold  property,  in  a  particular  form  and  for  par- 
ticular purposes,  has  the  government  a  consequent  right  substantially 
to  change  that  form,  or  to  vary  the  purposes  to  which  the  property  is 
to  be  applied?  This  principle  has  never  been  asserted  or  recognized, 
and  is  supported  by  no  authority.    Can  it  derive  aid  from  reason  ? 

The  objects  for  which  a  corporation  is  created  are  universally  such 
as  the  government  wishes  to  promote.  They  are  deemed  beneficial  to 
the  country;  and  this  benefit  constitutes  the  consideration,  and,  in 
most  cases,  the  sole  consideration  of  the  grant.  In  most  eleemosynary 
institutions,  the  object  would  be  difficult,  perhaps  unattainable,  without 
the  aid  of  a  charter  of  incorporation.  Charitable  or  public-spirited  in- 
dividuals, desirous  of  making  permanent  appropriations  for  charitable 
or  other  useful  purposes,  find  it  impossible  to  effect  their  design  se- 
curely and  certainly  without  an  incorporating  act.  They  apply  to  the 
government,  state  their  beneficent  object,  and  offer  to  advance  the 
money  necessary  for  its  accomplishment,  provided  the  government  will 
confer  on  the  instrument  which  is  to  execute  their  designs  the  capacity 
to  execute  them.  The  proposition  is  considered  and  approved.  The 
benefit  to  the  public  is  considered  as  an  ample  compensation  for  the 
faculty  it  confers,  and  the  corporation  is  created.  If  the  advantages 
to  the  public  constitute  a  full  compensation  for  the  faculty  it  gives, 
there  can  be  no  reason  for  exacting  a  further  compensation,  by  claim- 
ing a  right  to  exercise  over  this  artificial  being  a  power  which  changes 
its  nature,  and  touches  the  fund  for  the  security  and  application  of 
which  it  was  created.  There  can  be  no  reason  for  implying  in  a  char- 
ter, given  for  a  valuable  consideration,  a  power  which  is  not  only  not 
expressed,  but  is  in  direct  contradiction  to  its  express  stipulations. 

From  the  fact,  then,  that  a  charter  of  incorporation  has  been  granted, 
nothing  can  be  inferred  which  changes  the  character  of  the  institution, 
or  transfers  to  the  government  any  new  power  over  it.  The  character 
of  civil  institutions  does  not  grow  out  of  their  incorporation,  but  out  of 
the  manner  in  which  they  are  formed,  and  the  objects  for  which  they 


Ch.  13)  LAWS    IMPAIRING    OULH.aiim.ns   Of    CONTRACT!  821 

are  created.  The  right  to  change  them  is  not  founded  on  their  being 
incorporated,  but  on  their  being  the  instruments  of  government,  cre- 
ated for  its  purposes.  The  same  institutions,  created  for  the  same 
objects,  though  not  incorporated,  would  be  public  institutions,  and,  of 
course,  be  controllable  by  the  legislature.  The  incorporating  act  nei- 
ther gives  nor  prevents  this  control.  Neither,  in  reason,  can  the  in- 
corporating act  change  the  character  of  a  private  eleemosynary  in- 
stitution. 

We  are  next  led  to. the  inquiry,  for  whose  benefit  the  property  given 
to  Dartmouth  College  was  secured?  The  counsel  for  the  defendant 
have  insisted  that  the  beneficial  interest  is  in  the  people  of  New  Hamp- 
shire. *  *  *  The  particular  interests  of  New  Hampshire  never 
entered  into  the  mind  of  the  donors,  never  constituted  a  motive  for 
their  donation.  The  propagation  of  the  Christian  religion  among  the 
savages,  and  the  dissemination  of  useful  knowledge  among  the  youth 
of  the  country,  were  the  avowed  and  the  sole  objects  of  their  contribu- 
tions. In  these  New  Hampshire  would  participate;  but  nothing  par- 
ticular or  exclusive  was  intended  for  her.  *  *  *  The  clause  which 
constitutes  the  incorporation,  and  expresses  the  objects  for  which  it 
was  made,  declares  those  objects  to  be  the  instruction  of  the  Indians, 
"and  also  of  English  youth  and  any  others."  So  that  the  objects  of 
the  contributors  and  the  incorporating  act  were  the  same, — the  pro- 
motion of  Christianity  and  of  education  generally,  not  the  interests  of 
New  Hampshire  particularly.     *     *     * 

Yet  a  question  remains  to  be  considered  of  more  real  difficulty,  on 
which  more  doubt  has  been  entertained  than  on  all  that  have  been  dis- 
cussed. The  founders  of  the  college,  at  least  those  whose  contributions 
were  in  money,  have  parted  with  the  property  bestowed  upon  it,  and 
their  representatives  have  no  interest  in  that  property.  The  donors  of 
land  are  equally  without  interest  so  long  as  the  corporation  shall  exist. 
Could  they  be  found,  they  are  unaffected  by  any  alteration  in  its  con- 
stitution, and  probably  regardless  of  its  form  or  even  of  its  existence. 
The  students  are  fluctuating,  and  no  individual  among  our  youth  has  a 
vested  interest  in  the  institution  which  can  be  asserted  in  a  court  of 
justice.  Neither  the  founders  of  the  college,  nor  the  youth  for  whose 
benefit  it  was  founded,  complain  of  the  alteration  made  in  its  charter, 
or  think  themselves  injured  by  it.  The  trustees  alone  complain,  and 
the  trustees  have  no  beneficial  interest  to  be  protected.  Can  this  be 
such  a  contract  as  the  Constitution  intended  to  withdraw  from  the  pow- 
er of  state  legislation?  Contracts,  the  parties  to  which  have  a  vested 
beneficial  interest,  and  those  only,  it   ha  I,   are  the  objects 

about  which  the  Constitution  is  solicitous,  and  to  which  its  protection 
is  extended. 

The  court  has  bestowed  on  this  argument  the  most  deliberate  consid- 
eration, and  the  result  will  be  stated.  Dr.  Wheclock,  acting  for  him- 
self and  for  those  who,  at  his  solicitation,  had  made  contributions  to 
his  school,  applied  for  this  charter,  as, the  instrument  which  should  en- 


822  FUNDAMENTAL    RIGHTS  (Part  2 

able  him  and  them  to  perpetuate  their  beneficent  intention.  It  was 
granted.  An  artificial,  immortal  being  was  created  by  the  crown,  capa- 
ble of  receiving  and  distributing  forever,  according  to  the  will  of  the 
donors,  the  donations  which  should  be  made  to  it.  On  this  being,  the 
contributions  which  had  been  collected  were  immediately  bestowed. 
These  gifts  were  made,  not  indeed  to  make  a  profit  for  the  donors  or 
their  posterity,  but  for  something,  in  their  opinion,  of  inestimable 
value;  for  something  which  they  deemed  a  full  equivalent  for  the 
money  with  which  it  was  purchased.  The  consideration  for  which  they 
stipulated,  is  the  perpetual  application  of  the  fund  to  its  object,  in  the 
mode  prescribed  by  themselves.  Their  descendants  may  take  no  in- 
terest in  the  preservation  of  this  consideration.  But  in  this  respect 
their  descendants  are  not  their  representatives.  They  are  represented 
by  the  corporation.  The  corporation  is  the  assignee  of  their  rights, 
stands  in  their  place,  and  distributes  their  bounty,  as  they  would  them- 
selves have  distributed  it  had  they  been  immortal.  So  with  respect  to 
the  students  who  are  to  derive  learning  from  this  source.  The  cor- 
poration is  a  trustee  for  them  also.  Their  potential  rights,  which,  tak- 
en distributively,  are  imperceptible,  amount  collectively  to  a  most  im- 
portant interest.  These  are,  in  the  aggregate,  to  be  exercised,  assert- 
ed, and  protected  by  the  corporation.     *     *     * 

This  is  plainly  a  contract  to  which  the  donors,  the  trustees,  and  the 
crown  (to  whose  rights  and  obligations  New  Hampshire  succeeds)  were 
the  original  parties.  It  is  a  contract  made  on  a  valuable  consideration. 
It  is  a  contract  for  the  security  and  disposition  of  property.  It  is  a 
contract  on  the  faith  of  which  real  and  personal  estate  has  been  con- 
veyed to  the  corporation.  It  is  then  a  contract  within  the  letter  of  the 
Constitution,  and  within  its  spirit  also,  unless  the  fact  that  the  prop- 
erty is  invested  by  the  donors  in  trustees  for  the  promotion  of  religion 
and  education,  for  the  benefit  of  persons  who  are  perpetually  changing, 
though  the  objects  remain  the  same,  shall  create  a  particular  exception, 
taking  this  case  out  of  the  prohibition  contained  in  the  Constitution. 

It  is  more  than  possible  that  the  preservation  of  rights  of  this  de- 
scription was  not  particularly  in  the  view  of  the  framers  of  the  Consti- 
tution when  the  clause  under  consideration  was  introduced  into  that 
instrument.  It  is  probable  that  interferences  of  more  frequent  recur- 
rence, to  which  the  temptation  was  stronger  and  of  which  the  mischief 
was  more  extensive,  constituted  the  great  motive  for  imposing  this 
restriction  on  the  state  legislatures.  But  although  a  particular  and  a 
rare  case  may  not  in  itself  be  of  sufficient  magnitude  to  induce  a  rule, 
yet  it  must  be  governed  by  the  rule,  when  established,  unless  some 
plain  and  strong  reason  for  excluding  it  can  be  given.  It  is  not  enough 
to  say  that  this  particular  case  was  not  in  the  mind  of  the  convention 
when  the  article  was  framed,  nor  of  the  American  people  when  it  was 
adopted.  It  is  necessary  to  go  farther,  and  to  say  that,  had  this  par- 
ticular case  been  suggested,  the  language  would  have  been  so  varied 
as  to  exclude  it,  or  it  would  have  been  made  a  special  exception.    The 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS  823 

case,  being  within  the  words  of  the  rule,  must  be  within  its  operation 
likewise,  unless  there  be  something  in  the  literal  construction  so  ob- 
viously absurd,  or  mischievous,  or  repugnant  to  the  general  spirit  of 
the  instrument  as  to  justify  those  who  expound  the  Constitution  in 
making  it  an  exception. 

On  what  safe  and  intelligible  ground  can  this  exception  stand? 
There  is  no  expression  in  the  Constitution,  no  sentiment  delivered  by 
its  contemporaneous  expounders,  which  would  justify  us  in  making 
it.  In  the  absence  of  all  authority  of  this  kind,  is  there,  in  the  na- 
ture and  reason  of  the  case  itself,  that  which  would  sustain  a  con- 
struction of  the  Constitution  not  warranted  by  its  words?  Are  con- 
tracts of  this  description  of  a  character  to  excite  so  little  interest  that 
we  must  exclude  them  from  the  provisions  of  the  Constitution,  as  be- 
ing unworthy  of  the  attention  of  those  who  framed  the  instrument? 
Or  does  public  policy  so  imperiously  demand  their  remaining  exposed 
to  legislative  alteration  as  to  compel  us,  or  rather  permit  us  to  say, 
that  these  words,  which  were  introduced  to  give  stability  to  contracts, 
and  which  in  their  plain  import  comprehend  this  contract,  must  yet  be 
so  construed  as  to  exclude  it?     *     *     * 

All  feel  that  these  objects  are  not  deemed  unimportant  in  the  United 
States.  The  interest  which  this  case  has  excited  proves  that  they  are 
not.  The  framers  of  the  Constitution  did  not  deem  them  unworthy  of 
its  care  and  protection.  They  have,  though  in  a  different  mode,  mani- 
fested their  respect  for  science  by  reserving  to  the  government  of  the 
Union  the  power  "to  promote  the  progress  of  science  and  useful  arts, 
by  securing  for  limited  times,  to  authors  and  inventors,  the  exclusive 
right  to  their  respective  writings  and  discoveries."  They  have  so  far 
withdrawn  science  and  the  useful  arts  from  the  action  of  the  state 
governments.  Why,  then,  should  they  be  supposed  so  regardless  of 
contracts  made  for  the  advancement  of  literature  as  to  intend  to  ex- 
clude them  from  provisions  made  for  the  security  of  ordinary  contracts 
between  man  and  man?  No  reason  for  making  this  supposition  is 
perceived. 

If  the  insignificance  of  the  object  does  not  require  that  we  should 
exclude  contracts  respecting  it  from  the  protection  of  the  Constitution  ; 
neither,  as  we  conceive,  is  the  policy  of  leaving  them  subject  to  legis- 
lative alteration  so  apparent  as  to  require  a  forced  construction  of  that 
instrument  in  order  to  effect  it.  These  eleemosynary  institutions  do 
not  fill  the  place  which  would  otherwise  be  occupied  by  government, 
but  that  which  would  otherwise  remain  vacant.  They  are  complete  ac- 
quisitions to  literature.  They  are  donations  to  education;  donations 
which  any  government  must  be  disposed  rather  to  encourage  than  to 
discountenance.  It  requires  no  very  critical  examination  of  the  human 
mind  to  enable  us  to  determine  that  one  great  inducement  to  these 
gifts  is  the  conviction  felt  by  the  giver  that  the  disposition  he  make* 
of  them  is  immutable.  It  is  probable  that  no  man  ever  was.  and  that 
no  man  ever  will  be,  the  founder  of  a  college,  believing  at  the  time  that 


824  FUNDAMENTAL    RIGHTS  (Part    2 

an  act  of  incorporation  constitutes  no  security  for  the  institution ;  be- 
lieving that  it  is  immediately  to  be  deemed  a  public  institution,  whose 
funds  are  to  be  governed  and  applied,  not  by  the  will  of  the  donor,  but 
by  the  will  of  the  legislature.  All  such  gifts  are  made  in  the  pleasing, 
perhaps  delusive,  hope  that  the  charity  will  flow  forever  in  the  channel 
which  the  givers  have  marked  out  for  it.  If  every  man  finds  in  his 
own  bosom  strong  evidence  of  the  universality  of  this  sentiment,  there 
can  be  but  little  reason  to  imagine  that  the  f  ramers  of  our  Constitution 
were  strangers  to  it ;  and  that,  feeling  the  necessity  and  policy  of  giving 
permanence  and  security  to  contracts,  of  withdrawing  them  from  the 
influence  of  legislative  bodies,  whose  fluctuating  policy  and  repeated 
interferences  produced  the  most  perplexing  and  injurious  embarrass- 
ments, they  still  deemed  it  necessary  to  leave  these  contracts  subject  to 
those  interferences.  The  motives  for  such  an  exception  must  be  very 
powerful  to  justify  the  construction  which  makes  it.     *     *     * 

The  opinion  of  the  court,  after  mature  deliberation  is,  that  this  is  a 
contract,  the  obligation  of  which  cannot  be  impaired  without  violating 
the  Constitution  of  the  United  States.  This  opinion  appears  to  us  to 
be  equally  supported  by  reason  and  by  the  former  decisions  of  this 
court. 

2.  We  next  proceed  to  the  inquiry  whether  its  obligation  has  been 
impaired  by  those  acts  of  the  Legislature  of  New  Hampshire  to  which 
the  special  verdict  refers.     *     *     * 

On  the  effect  of  this  law  two  opinions  cannot  be  entertained.  Be- 
tween acting  directly  and  acting  through  the  agency  of  trustees  and 
overseers  no  essential  difference  is  perceived.  The  whole  power  of 
governing  the  college  is  transferred  from  trustees  appointed  according 
to  the  will  of  the  founder,  expressed  in  the  charter,  to  the  executive  of 
New  Hampshire.  The  management  and  application  of  the  funds  of 
this  eleemosynary  institution,  which  are  placed  by  the  donors  in  the 
hands  of  trustees  named  in  the  charter,  and  empowered  to  perpetuate 
themselves,  are  placed  by  this  act  under  the  control  of  the  government 
of  the  state.  The  will  of  the  state  is  substituted  for  the  will  of  the 
donors  in  every  essential  operation  of  the  college.  This  is  not  an  im- 
material change.  The  founders  of  the  college  contracted,  not  merely 
for  the  perpetual  application  of  the  funds  which  they  gave  to  the 
objects  for  which  those  funds  were  given,  they  contracted  also  to  secure 
that  application  by  the  constitution  of  the  corporation.  They  con- 
tracted for  a  system  which  should,  as  far  as  human  foresight  can  pro- 
vide, retain  forever  the  government  of  the  literary  institution  they  had 
formed,  in  the  hands  of  persons  approved  by  themselves.  This  system 
is  totally  changed.  The  charter  of  1769  exists  no  longer.  It  is  re- 
organized, and  reorganized  in  such  a  manner  as  to  convert  a  literary 
institution,  moulded  according  to  the  will  of  its  founders  and  placed 
under  the  control  of  private  literary  men,  into  a  machine  entirely  sub- 
servient to  the  will  of  government.  This  may  be  for  the  advantage 
of  this  college  in  particular,  and  may  be  for  the  advantage  of  literature 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS 

in  general ;  but  it  is  not  according  to  the  will  of  the  donors,  and  is  sub- 
versive of  that  contract  on  the  faith  of  which  their  property  was  giv- 
en.    *     *     * 

Judgment  reversed.* 

[Washington  and  Story,  JJ.,  gave  concurring  opinions.  Liv- 
ingston, J.,  concurred  in  all  the  opinions,  John  sun,  [.,  concurred  in 
Chief  Justice  Marshall's  opinion,  and  Duvall,  J.,  dissented.] 


PIQUA  BRANCH  OF  STATE  BANK  OF  OHIO  v.  K\TOOP. 
(Supreme  Court  of  United  States,  1853.     10  How.  369,  11  U  Ed.  977.) 

[Error  to  Ohio  Supreme  Court.  An  Ohio  statute  of  1S45  au- 
thorized the  incorporation  of  banks  subject  to  the  provisions  of  the 
act.  It  provided  that  each  company  accepting  the  act  and  complying 
therewith  should  pay  6  per  cent,  of  its  semi-annual  profits  to  the 
state,  in  lieu  of  all  taxes  to  which  the  company  or  its  stockholders 
would  otherwise  be  subject.  The  Piqua  Bank  was  organized  under 
this  act  in  1S47,  as  a  branch  of  the  State  Bank  of  Ohio.  In  1851  a 
state  statute  purported  to  subject  the  capital  stock,  surplus,  and  con- 
tingent fund  of  banks  in  the  state  to  the  same  taxation  as  other  per- 
sonal property.  The  state's  suit  against  the  Piqua  Branch  for  taxes 
under  the  act  of  1851  was  sustained  by  the  state  courts,  and  this  writ 
of  error  was  taken.] 

Mr.  Justice  McLean.  *  *  *  The  idea  that  a  state,  by  exempt- 
ing from  taxation  certain  property,  parts  with  a  portion  of  its  sov- 
ereignty, is  of  modern  growth ;  and  so  is  the  argument  that  if  a  state 

a  Though  the  Dartmouth  College  Case  dealt  primarily  with  the  charters  of 
eleemosynary  corporations,  it  has  been  uniformly  accepted  since  as 
t>le  to  the  charters  of  all  kinds  of  private  business  corporations,  which  there- 
fore (unless  limited  by  appropriate  statutory  or  constitutional  reservations) 
become  irrevocable  contracts.  This  was  assumed  without  discussion  in  the 
tirst  subsequent  case  involving  the  point.  Providence  iiank  v.  Billings,  i  Pet. 
514,  560,  7  L  Ed.  939  (1830).  In  Stone  v.  Mississippi,  101  U.  S.  814,  816,  .'.". 
L079  (1879),  it  was  said  by  Waite,  C.  J.:  "it  is  now  too  late  to  contend 
that  any  contract  which  a  state  actually  enters  into  when  granting  a  char- 
ter to  a  private  corporation  is  not  within  the  protection  of  the  »  •  •  Con- 
stitution. •  •  •  The  doctrines  of  Trustees  of  Dartmouth  College  v.  Wood- 
ward announced  by  this  court  more  than  60  years  ago  have  become  so  im- 
bedded in  the  C6  of  the  United  States  as  to  make  them  to  all  in- 
tents and  purposes  a  part  of  the  Constitution  Itself."  And  so  in  Pearsall  r. 
Gt  Northern  Ry.,  161  D.  S.  646,  660,  16  Sup.  Ct  705 

by  Brown,  J.  :    "The  doctrine  of  this  case  has  beei  t  or  less 

criticism  by  the  courts  and  the  profession,  but  has  been  reaffirmed  and  ap- 
plied so  often  as  to  have  become  firmly  established  as  a  canon  of  American 
jurisprudi  u< 

aid  that  this  case  has  been  •  Lied  more  times  by  American  courts  than 

ler  judicial  precedent.  An  excellent  independent  discussion  of  the  case 
by  Charles  Doe,  late  Chief  Justice  of  New  Hampshire,  is  to  he  found  in  6 
Harv.   Law  Kev.   L61,  218. 


826  FUNDAMENTAL    RIGHTS  (Part  2 

may  part  with  this  in  one  instance  it  may  in  every  other,  so  as  to  di- 
vest itself  of  the  sovereign  power  of  taxation.  Such  an  argument 
would  be  as  strong  and  as  conclusive  against  the  exercise  of  the  tax- 
ing power.  For  if  the  legislature  may  levy  a  tax  upon  property,  they 
may  absorb  the  entire  property  of  the  taxpayer.  The  same  may  be 
said  of  every  power  where  there  is  an  exercise  of  judgment.     *     *     * 

The  assumption  that  a  state,  in  exempting  certain  property  from  tax- 
ation, relinquishes  a  part  of  its  sovereign  power,  is  unfounded.  The 
taxing  power  may  select  its  objects  of  taxation;  and  this  is  generally 
regulated  by  the  amount  necessary  to  answer  the  purposes  of  the  state. 
Now  the  exemption  of  property  from  taxation  is  a  question  of  policy 
and  not  of  power.  A  sound  currency  should  be  a  desirable  object  to 
every  government ;  and  this  in  our  country  is  secured  generally 
through  the  instrumentality  of  a  well-regulated  system  of  banking. 
To  establish  such  institutions  as  shall  meet  the  public  wants  and  se- 
cure the  public  confidence,  inducements  must  be  held  out  to  capitalists 
to  invest  their  funds.  They  must  know  the  rate  of  interest  to  be 
charged  by  the  bank,  the  time  the  charter  shall  run,  the  liabilities  of 
the  company,  the  rate  of  taxation,  and  other  privileges  necessary  to 
a  successful  banking  operation. 

These  privileges  are  proffered  by  the  state,  accepted  by  the  stock- 
holders, and  in  consideration  funds  are  invested  in  the  bank.  Here 
is  a  contract  by  the  state  and  the  bank,  a  contract  founded  upon  con- 
siderations of  policy  required  by  the  general  interests  of  the  com- 
munity, a  contract  protected  by  the  laws  of  England  and  America,  and 
by  all  civilized  states  where  the  common  or  the  civil  law  is  estab- 
lished.    *     *     * 

There  is  no  constitutional  objection  to  the  exercise  of  the  power  to 
make  a  binding  contract  by  a  state.  It  necessarily  exists  in  its  sov- 
ereignty, and  it  has  been  so  held  by  all  the  courts  in  this  country.  A 
denial  of  this  is  a  denial  of  state  sovereignty.  It  takes  from  the  state 
a  power  essential  to  the  discharge  of  its  functions  as  sovereign.  If  it 
do  not  possess  this  attribute,  it  could  not  communicate  it  to  others. 
There  is  no  power  possessed  by  it  more  essential  than  this.  Through 
the  instrumentality  of  contracts,  the  machinery  of  the  government  is 
carried  on.  Money  is  borrowed,  and  obligations  given  for  payment. 
Contracts  are  made  with  individuals,  who  give  bonds  to  the  state.  So 
in  the  granting  of  charters.  If  there  be  any  force  in  the  argument, 
it  applies  to  contracts  made  with  individuals,  the  same  as  with  cor- 
porations. But  it  is  said  the  state  cannot  barter  away  any  part  of  its 
sovereignty.     No  one  ever  contended  that  it  could. 

A  state,  in  granting  privileges  to  a  bank,  with  a  view  of  affording 
a  sound  currency,  or  of  advancing  any  policy  connected  with  the  pub- 
lic interest,  exercises  its  sovereignty,  and  for  a  public  purpose,  of 
which  it  is  the  exclusive  judge.  Under  such  circumstances,  a  con- 
tract made  for  a  specific  tax,  as  in  the  case  before  us,  is  binding.    This 


Ch.  loj  LAWS    IMl'AlklM;    OBLIGATIONS   OK    CONTRA 

tax  continues,  although  all  other  banks  should  be  exempted  from 
taxation.  Having  the  power  to  make  the  contract,  and  rights  be- 
coming vested  under  it,  it  can  no  more  be  disregarded  nor  set  aside 
by  a  subsequent  legislature,  than  a  grant  for  land.  This  act,  so  far 
from  parting  with  any  portion  of  the  sovereignty,  is  an  exercise  of  it. 
.  Can  any  one  deny  this  power  to  the  legislature?  Has  it  not  a  r 
select  the  objects  of  taxation  and  determine  the  amount?  To  deny 
cither  of  these,  is  to  take  away  state  sovereignty. 

It  must  be  admitted  that  the  state  has  the  sovereign  power  to  do 
this,  and  it  would  have  the  sovereign  power  to  impair  or  annul  a  con- 
tract so  made,  had  not  the  Constitution  of  the  United  States  inhibited 
the  exercise  of  such  a  power.  The  vague  and  undefined  and  inde- 
finable notion,  that  every  exemption  from  taxation  or  a  specific  tax, 
which  withdraws  certain  objects  from  the  general  tax  law,  affects 
the  sovereignty  of  the  state,  is  indefensible. 

There  has  been  rarely,  if  ever,  it  is  believed,  a  tax  law  passed  by 
any  state  in  the  Union,  which  did  not  contain  some  exemptions  from 
general  taxation.  The  act  of  Ohio  of  the  25th  of  March,  1851,  in  the 
fifty-eighth  section,  declared  that  "the  provisions  of  that  act  shall  not 
extend  to  any  joint-stock  company  which  now  is,  or  may  hereafter 
be  organized,  whose  charter  or  act  of  incorporation  shall  have  guar- 
anteed to  such  company  an  exemption  from  taxation,  or  has  prescribed 
any  other  as  the  exclusive  mode  of  taxing  the  same."  Here  is  a  rec- 
ognition of  the  principle  now  repudiated.  In  the  same  act,  there  arc 
eighteen  exemptions  from  taxation. 

The  federal  government  enters  into  an  arrangement  with  a  foreign 
state  for  reciprocal  duties  on  imported  merchandise,  from  the  one 
country  to  the  other.  Does  this  affect  the  sovereign  power  of  either 
state?  The  sovereign  power  in  each  was  exercised  in  making  the 
compact,  and  this  was  done  for  the  mutual  advantage  of  both  coun- 
tries. Whether  this  be  done  by  treaty,  or  by  law,  is  immaterial.  The 
compact  is  made,  and  it  is  binding  on  both  countries. 

The  argument  is,  and  must  be,  that  a  sovereign  state  may  make  a 
binding  contract  with  one  of  its  citizens,  and,  in  the  exercise  of  its 
sovereignty,  repudiate  it.  The  Constitution  of  the  Union,  when  first 
adopted,  made  states  subject  to  the  federal  judicial  power.  Could  a 
sta;-e,  while  this  power  continued,  being  sued  for  a  debt  contracted  in 
its  sovereign  capacity,  have  repudiated  it  in  the  same  capacity?  In 
this  respect  the  Constitution  was  very  properly  changed,  as  no  state 
should  be  subject  to  the  judicial  power  generally. 

Much  stress  was  laid  on  the  argument,  and  in  the  decisions  of  the 
Supreme  Court,  on  the  fact  that  the  banks  paid  no  bonus  for  their 
charters,  and  that  no  contract  can  be  binding  which  is  not  mutual. 
This  is  a  matter  which  can  have  no  influence  in  deciding  th< 
question.      1  lid  not  require  a  bonus,  but  other  requisitions 

are  found  in  the  charter,  which  the  legislature  deemed  sufficient,  and 
this  is  not  questionable  by  any  other  authority.     The  obligation  is  as 


828  FUNDAMENTAL    EIGHTS  (Part  2 

strong  on  the  state,  from  the  privileges  granted  and  accepted,  as  if  a 
bonus  had  been  paid.1     *     *     * 

Judgment  reversed. 

[Taney,  C.  J.,  gave  a  concurring  opinion.  Catron,  Daniel,  and 
Campbell,  JJ.,  gave  dissenting  opinions.]2 

i  The  acceptance  of  the  charter  for  the  objects  for  which  the  corporation 
was  created  constitutes  a  sufficient  consideration  for  the  charter  contract. 
Home  of  Friendless  v.  Rouse,  8  Wall.  430,  437,  438, 19  L.  Ed.  495  (1869).  Where 
the  alleged  contract  is  not  contained  in  an  accepted  charter  or  amendment 
thereof,  a  consideration  and  an  intention  to  make  the  alleged  privilege  the 
subject  of  contract  must  be  strictly  shown,  Grand  Lodge  v.  New  Orleans,  166 
U.  S.  143,  17  Sup.  Ct.  523,  41  L.  Ed.  951  (1897)  (citing  cases),  mere  encourage- 
ments and  bounties  not  being  sufficient;  though  doubtless  a  state  might  by 
apt  words  dispense  with  the  necessity  of  consideration  for  its  contracts,  Wis- 
consin, etc.,  Ey.  v.  Powers,  191  U.  S.  379,  386,  24  Sup.  Ct  107,  48  Ii.  Ed.  229 
(1903). 

-  The  grounds  of  this  dissent  are  indicated  by  the  following  extract  from  a 
similar  dissenting  opinion  of  Miller,  J.,  sixteen  years  later,  iu  Washington 
University  v.  Rouse,  8  Wall.  439,  443,  444,  19  L.  Ed.  49S  (1809) :  "We  do  not 
believe  that  any  legislative  body,  sitting  under  a  state  Constitution  of  the 
usual  character,  has  a  right  to  sell,  to  give,  or  to  bargain  away  forever  the 
taxing  power  of  the  state.  This  is  a  power  which,  in  modern  political  socie- 
ties, is  absolutely  necessary  to  the  continued  existence  of  every  such  society. 
While  under  such  forms  of  government,  the  ancient  chiefs  or  heads  of  the 
government  might  carry  it  on  by  revenues  owned  by  them  personally,  and 
by  the  exaction  of  personal  service  from  their  subjects,  no  civilized  govern- 
ment has  ever  existed  that  did  not  depend  upon  taxation  in  some  form  for  the 
continuance  of  that  existence.  To  hold,  then,  that  any  one  of  the  annual  leg- 
islatures can,  by  contract,  deprive  the  state  forever  of  the  power  of  taxation, 
is  to  hold  that  they  can  destroy  the  government  which  they  are  appointed 
to  serve,  and  that  their  action  in  that  regard  is  strictly  lawful.  It  cannot  be 
maintained,  that  this  power  to  bargain  away,  for  an  unlimited  time,  the  right 
of  taxation,  if  it  exist  at  all,  is  limited,  in  reference  to  the  subjects  of  tax- 
ation. In  all  the  discussion  of  this  question,  in  this  court  and  elsewhere,  no 
such  limitation  has  been  claimed.  If  the  legislature  can  exempt  in  perpetu- 
ity, one  piece  of  land,  it  can  exempt  all  land.  If  it  can  exempt  all  land,  it 
can  exempt  all  other  property.  It  can,  as  well,  exempt  persons  as  corpora- 
tions. And  no  hindrance  can  be  seen,  in  the  principle  adopted  by  the  court, 
to  rich  corporations,  as  railroads  and  express  companies,  or  rich  men,  mak- 
ing contracts  with  the  legislatures,  as  they  best  may,  and  with  such  appli- 
ances as  it  is  known  they  do  use,  for  perpetual  exemption  from  all  the  bur- 
dens of  supporting  the  government.  The  result  of  such  a  principle,  under  the 
growing  tendency  to  special  and  partial  legislation,  would  be,  to  exempt  the 
rich  from  taxation,  and  cast  all  the  burden  of  the  support  of  government, 
and  the  payment  of  its  debts,  on  those  who  are  too  poor  or  too  honest  to 
purchase  such  immunity.  With  as  full  respect  for  the  authority  of  former 
decisions,  as  belongs,  from  teaching  and  habit,  to  judges  trained  in  the  com- 
mon-law system  of  jurisprudence,  we  think  that  there  may  be  questions  touch- 
ing the  powers  of  legislative  bodies,  which  can  never  be  finally  closed  by  the 
decisions  of  a  court,  and  that  the  one  we  have  here  considered  is  of  this  char- 
acter. We  are  strengthened,  in  this  view  of  the  subject,  by  the  fact  that  a 
series  of  dissents,  from  this  doctrine,  by  some  of  our  predecessors,  shows 
that  it  has  never  received  the  full  assent  of  this  court;  and  referring  to  those 
dissents  for  more  elaborate  defence  of  our  views,  we  content  ourselves  with 
thus  renewing  the  protest  against  a  doctrine  which  we  think  must  finally  be 
abandoned." 

"The  argument  against  the  power  of  the  legislature  of  a  state  to  alienate 
beyond  the  power  to  resume  the  right  to  tax,  which  was  involved  in  the  long 
contest  in  which  Ohio  was  defeated  in  the  United  States  Supreme  Court,  is  a 
very  strong  one.  It  runs  to  this:  A  corporate  charter  is  a  grant  from  the 
crown  to  individual  subjects,  and  therefore  a  contract  between  the  king  and 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS  t-'J 

BRIDGE  PROPRIETORS  v.  HOBOKEN  CO.  (1864)  1  Wall. 
116,  145,  146,  17  L,  Ed.  571,  Mr.  Justice  MlLLEB  (holding  that  an  ex- 
clusive franchise  for  99  years  to  maintain  toll  bridges  within  certain 
•limits  over  the  Passaic  and  Hackensack  rivers  in  Xew  Jersey  was 
protected  by  the  Constitution) : 

"Approaching  the  merits  of  the  case,  the  first  question  that  pn 
itself  for  solution,  is  whether  the  act  of  1790,  and  thi 
made  under  it  by  the  commissioners  with  the  bridge  builders,  con- 
stitute a  contract  that  no  bridge  shall  be  built  within  the  designated 
limits,  but  the  two  which  that  statute  authorized.  This  we  think  to 
be  so  very  clear  as  not  to  need  argument  or  illustration.  The  parties 
who  built  the  bridges  had  the  positive  enactment  of  the  legislature, 
in  the  very  statute  which  authorized  the  contract  with  them,  that  no 
other  bridge  should  be  built.  They  had  a  grant  of  tolls  on  their 
bridges  for  ninety-nine  years,  and  the  prohibition  against  the  erection 
of  other  bridges  was  the  necessary  and  only  means  of  securing  to 
them  the  monopoly  of  those  tolls.  Without  this,  they  would  not 
have  invested  their  money  in  building  the  bridges,  which  were  then 
much  needed,  and  which  could  not  have  been  built  without  some  such 
security  for  a  permanent  and  sufficient  return  for  the  capital  so  ex- 
pended. On  the  faith  of  this  enactment  they  invested  the  money 
necessary  to  erect  the  bridges.  These  acts  and  promises,  on  the  one 
side  and  the  other,  are  wanting  in  no  element  necessary  to  constitute 
a  contract.  Such  legislative  provisions  of  the  states  have  so  often 
been  held  to  be  contracts,  that  a  reference  to  authorities  is  super- 
fluous." ' 

Lis  subjects,   the  grantees,  equally  binding  upon  both.     The  king   may   not 

inted;   in-  ii ■■'  oie  thing- to  another.    Bat 

Ing  power  was  in  parliament,  never  In  tlie  king.     The  crown  could 

fain  or  grant  the  taxing  power  away.    And,  :is  every  parliament  was 

unrestricted,  m  t  could  tie  the  bands  of  Its  successors.    An  Ameri- 

lature  grants  charters  in  the  exercise  of  the  royal  prerogarh 
it  parts  with  the  rights  of  the  crown  when  it  does;   but  It  ad  can- 

not, touch  the  parliamentary  powers-"— J.  B.  G.,  in  60  L.  It.  A. 

i  Ace  ints  of  monopoly) :    West   River  Co.  v.  Dix,  I 

631,  12  ;  IS)  (bridge — semble);   Richmond  R.  K.  v.  Louisa  K.  H..  18 

How.  71,81,  H  I-  Ed.  65  (1851)  (railroad  betv         two  points— OBsumed) ;  Ihe 
Binghainpton  Bridge,  •".  Wall.  51,  is  I..  Ed.  137  il1-' 

Gas  Co.   v.   Li  I  15  D.  B.  650,  I 252,  29  L    I 

(supplying  city  gas);   New  Orleans  Water  Co.  v.  Rivers,  U  .  <i  Sup. 

!,  29  1  .   !'«l-  525  (1885)  (dtj    fl 
So  as  i"  state  or  contracts  as  to  rates  of  public  s 

nles:    1  os    v  .    es  v.  City  Water  Co.,  itt  i 

Ed.  886  ii: '■ 

sup.  Ct  410,    IG  1..   Ed.  592  (1902)  (street   railway) 

U   D.   S.   265,  273,  29  Sup.   Ct  50,  53  L.   Ed.   17< 
phone — Bemble). 

Irrepealable  contracts  may  i>e  condemned  under  the  state's  i 
nent  domain.    West  River  Bridge  Co.  v.  lux.  fi  How.  507,  12  L.  Ed.  635 
Long  island  Water  Co.  v.  Brooklyi 


830  FUNDAMENTAL    RIGHT3  (Part  2 

CHARLES  RIVER  BRIDGE  v.  WARREN  BRIDGE. 
(Supreme  Court  of  United  States,  1S37.     11  Pet.  420,  9  L.  Ed.  773.) 

[Error  to  the  Massachusetts  Supreme  Court.  In  1785  Massachu- 
setts by  statute  incorporated  a  company,  "The  Proprietors  of  the' 
Charles  River  Bridge,"  empowered  to  erect  a  bridge  between  Boston 
and  Charleston  in  the  place  where  there  was  then  a  ferry,  and  to  take 
certain  tolls  for  the  use  thereof.  The  charter  was  limited  to  40  years 
and  until  its  expiration  the  company  was  to  pay  £200.  annually  to 
Harvard  College,  which  had  owned  the  ferry  superseded  by  the 
bridge.  The  bridge  was  opened  in  1786,  and  in  '1792  the  company 
charter  was  extended  to  70  years.  In  1828  Massachusetts  incor- 
porated the  Warren  Bridge  Company  to  erect  another  bridge  over  the 
Charles  river  a  few  rods  from  the  first  bridge.  The  new  bridge  was 
to  be  a  free  bridge  at  the  end  of  6  years,  or  sooner  if  the  tolls  paid 
its  cost  before  then.  The  original  bridge  company  asked  an  injunc- 
tion in  the  state  courts  .against  the  erection  and  use  of  the  Warren 
bridge,  which  was  denied  by  an  equal  division  of  the  state  Supreme 
Court.  This  writ  of  error  was  then  taken.  Before  its  argument  the 
Warren  bridge  had  become  free.] 

Mr.  Chief  Justice  Taney.  *  *  *  [After  discussing  the  original 
ferry  franchise  and  other  matters  unconnected  with  the  contract  clause 
of  the  Constitution.]  This  brings  us  to  the  act  of  the  legislature  of 
Massachusetts,  of  1785,  by  which  the  plaintiffs  were  incorporated  by 
the  name  of  "The  Proprietors  of  the  Charles  River  Bridge" ;  and  it 
is  here,  and  in  the  law  of  1792,  prolonging  their  charter,  that  we 
must  look  for  the  extent  and  nature  of  the  franchise  conferred  upon 
the  plaintiffs. 

Much  has  been  said  in  the  argument  of  the  principles  of  construc- 
tion by  which  this  law  is  to  be  expounded,  and  what  undertakings,  on 
the  part  of  the  state,  may  be  implied.  The  court  think  there  can  be 
no  serious  difficulty  on  that  head.  It  is  the  grant  of  certain  franchises 
by  the  public  to  a  private  corporation,  and  in  a  matter  where  the 
public  interest  is  concerned.  The  rule  of  construction  in  such  cases 
is  well  settled,  both  in  England  and  by  the  decisions  of  our  own 
tribunals.  In  2  Barn.  &  Adol.  793,  in  the  case  of  the  Proprietors  of 
the  Stourbridge  Canal  against  Wheely  and  others,  the  court  say:  "The 
canal  having  been  made  under  an  act  of  parliament,  the  rights  of  the 
plaintiffs  are  derived  entirely  from  that  act.  This,  like  many  other 
cases,  is  a  bargain  between  a  company  of  adventurers  and  the  public, 
the  terms  of  which  are  expressed  in  the  statute;  and  the  rule  of  con- 
struction, in  all  such  cases,  is  now  fully  established  to  be  this:  that 
any  ambiguity  in  the  terms  of  the  contract  must  operate  against  the 
adventurers,  and  in  favor  of  the  public,  and  the  plaintiffs  can  claim 
nothing  that  is  not  clearly  given  them  by  the  act."  And  the  doctrine 
thus  laid  down  is  abundantly  sustained  by  the  authorities  referred  to 
in  this  decision.    The  case  itself  was  as  strong  a  one  as  could  well  be 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACT!  831 

imagined  for  giving  to  the  canal  company,  by  implication,  a  right  to 
the  tolls  they  demanded.  Their  canal  had  been  used  by  the  defend- 
ants, to  a  very  considerable  extent,  in  transporting  large  quantities  of 
coal.  The  rights  of  all  persons  to  navigate  the  canal  were  expressly 
secured  by  the  act  of  parliament ;  so  that  the  company  could  not  pre- 
vent them  from  using  it,  and  the  toll  demanded  was  admitted  to  be 
reasonable.  Yet,  as  they  only  used  one  of  the  levels  of  the  canal,  and 
did  not  pass  through  the  locks :  and  the  statute,  in  giving  the  right 
to  exact  toll,  had  given  it  for  articles  which  passed  "through  an 
or  more  of  the  locks,"  and  had  said  nothing  as  to  toll  for  navigating 
one  of  the  levels ;  the  court  held  that  the  right  to  demand  toll,  in  the 
latter  case,  could  not  be  implied,  and  that  the  company  were  not  en- 
titled to  recover  it.  This  was  a  fair  case  for  an  equitable  coi 
tion  of  the  act  of  incorporation,  and  for  an  implied  grant ;  if  such 
a  rule  of  construction  could  ever  be  permitted  in  a  law  of  that  dc- 
n.  For  the  canal  had  been  made  at  the  expense  of  the  com- 
pany; the  defendants  had  availed  themselves  of  the  fruits  of  their 
labors,  and  used  the  canal  freely  and  extensively  for  their  own  profit. 
Still  the  right  to  exact  toll  could  not  be  implied,  because  such  a  priv- 
ilege was  not  found  in  the  charter. 

Borrowing,  as  we  have  done,  our  system  of  jurisprudence  from  the 
English  law;  and  having  adopted,  in  every  other  case,  civil  and  crim- 
inal, its  rules  for  the  construction  of  statutes ;  is  there  anything  in 
our  local  situation,  or  in  the  nature  of  our  political  institutions,  which 
should  lead  us  to  depart  from  the  principle  where  corporations  are 
concerned?  Are  we  to  apply  to  acts  of  incorporation  a  rule  of  con- 
struction differing  from  that  of  the  English  law,  and.  by  implication, 
make  the  terms  of  a  charter  in  one  of  the  states,  more  unfavorable 
to  the  public,  than  upon  an  act  of  parliament,  framed  in  the  same 
words,  would  be  sanctioned  in  an  English  court?  Can  any  good  rea- 
son be  assigned  for  excepting  this  particular  class  of  cases  from  the 
operation  of  the  general  principle,  and  for  introducing  a  new  and 
adverse  rule  of  construction  in  favor  of  corporations,  while  we  adopt 
and  adhere  to  the  rules  of  construction  known  to  the  English  common 
law,  in  every  other  case,  without  exception?  We  think  not;  and  it 
would  present  a  singular  spectacle,  if,  while  the  courts  in  England  are 
restraining,  within  the  strictest  limits,  the  spirit  of  monopoly,  and  ex- 
clusive privileges  in  nature  of  monopolies,  and  confining  corporations 
to  the  privileges  plainly  given  to  them  in  their  charter,  the  courts  of 
this  country  should  be  found  enlarging  these  privileges  by  implica- 
tion; and  construing  a  statute  more  unfavorably  to  the  public,  and 
to  the  rights  of  the  community,  than  would  be  done  in  a  like  case  in 
an  English  court  of  justice.  *  *  *  [Mere  follows  a  brief  i 
sion  of  several  cases,  the  chief  of  which.  Providence  Bank  v.  Billings, 
4  Pet.  514,  7  L.  Ed.  939  (1830),  decided  that  a  charter  incorporating 
a  bank  with  the  usual  powers  carried  with  it  no  exemption  from  state 
taxation  upon  the  banking  business.] 


832  FUNDAMENTAL    RIGHTS  (Part  2 

The  case  now  before  the  court  is,  in  principle,  precisely  the  same. 
It  is  a  charter  from  a  state.  The  act  of  incorporation  is  silent  in 
relation  to  the  contested  power.  The  argument  in  favor  of  the  Pro- 
prietors of  the  Charles  River  Bridge  is  the  same,  almost  in  words, 
with  that  used  by  the  Providence  Bank;  that  is,  that  the  power 
claimed  by  the  state,  if  it  exists,  may  be  so  used  as  to  destroy  the  value 
of  the  franchise  they  have  granted  to  the  corporation.  The  argument 
must  receive  the  same  answer;  and  the  fact  that  the  power  has  been 
already  exercised  so  as  to  destroy  the  value  of  the  franchise,  cannot 
in  any  degree  affect  the  principle.  The  existence  of  the  power  does  not, 
and  cannot,  depend  upon  the  circumstance  of  its  having  been  exercised 
or  not. 

It  may,  perhaps,  be  said,  that  in  the  case  of  the  Providence  Bank, 
this  court  were  speaking  of  the  taxing  power;  which  is  of  vital  im- 
portance to  the  very  existence  of  every  government.  But  the  object 
and  end  of  all  government  is  to  promote  the  happiness  and  prosperity 
of  the  community  by  which  it  is  established;  and  it  can  never  be  as- 
sumed, that  the  government  intended  to  diminish  its  power  of  accom- 
plishing the  end  for  which  it  was  created.  And  in  a  country  like  ours, 
free,  active,  and  enterprising,  continually  advancing  in  numbers  and 
wealth,  new  channels  of  communication  are  daily  found  necessary, 
both  for  travel  and  trade;  and  are  essential  to  the  comfort,  conven- 
ience, and  prosperity  of  the  people.  A  state  ought  never  to  be  pre- 
sumed to  surrender  this  power,  because,  like  the  taxing  power,  the 
whole  community  have  an  interest  in  preserving  it  undiminished.  And 
when  a  corporation  alleges,  that  a  state  has  surrendered,  for  seventy 
years,  its  power  of  improvement  and  public  accommodation,  in  a  great 
and  important  line  of  travel,  along  which  a  vast  number  of  its  citizens 
must  daily  pass,  the  community  have  a  right  to  insist,  in  the  language 
of  this  court  above  quoted,  "that  its  abandonment  ought  not  to  be 
presumed  in  a  case  in  which  the  deliberate  purpose  of  the  state  to 
abandon  it  does  not  appear."  The  continued  existence  of  a  govern- 
ment would  be  of  no  great  value,  if  by  implications  and  presumptions 
it  was  disarmed  of  the  powers  necessary  to  accomplish  the  ends  of 
its  creation  ;  and  the  functions  it  was  designed  to  perform,  transferred 
to  the  hands  of  privileged  corporations.  The  rule  of  construction  an- 
nounced by  the  court  was  not  confined  to  the  taxing  power ;  nor  is 
it  so  limited  in  the  opinion  delivered.  On  the  contrary,  it  was  dis- 
tinctly placed  on  the  ground  that  the  interests  of  the  community  were 
concerned  in  preserving,  undiminished,  the  power  then  in  question ; 
and  whenever  any  power  of  the  state  is  said  to  be  surrendered  or  dim- 
inished, whether  it  be  the  taxing  power  or  any  other  affecting  the  pub- 
lic interest,  the  same  principle  applies,  and  the  rule  of  construction 
must  be  the  same.1     No  one  will  question  that  the  interests  of  the 

i  "The  great  object  of  an  incorporation  is  to  bestow  the  character  and  prop- 
erties of  individuality  on  a  collective  and  changing  body  of  men.  This  ca- 
pacity is  always  given  to  such  a  body.    Any  privileges  which  may  exempt  it 


Ch.  L8)  laws  impairing  obligations  of  contracts  833 

great  body  of  the  people  of  the  state  would,  in  this  instanc*,  be  af- 
fected by  the  surrender  of  this  great  line  of  travel  to  a  single  corpora- 
tion, with  the  right  to  exact  toll,  and  exclude  competition  for  seventy 
years.  While  the  rights  of  private  property  are  sacredly  guarded,  we 
must  not  forget  that  the  community  also  have  rights,  and  that  the 
happiness  and  well-being  of  every  citizen  depends  on  their  faithful 
preservation. 

Adopting  the  rule  of  construction  above  stated  as  the  settled  one, 
we  proceed  to  apply  it  to  the  charter  of  1785  to  the  Proprietors  of 
the  Charles  River  Bridge.  *  *  *  The  relative  position  of  the 
Warren  Bridge  has  already  been  described.  It  does  not  interrupt  the 
passage  over  the  Charles  River  Bridge,  nor  make  the  way  to  it  or 
from  it  less  convenient.  None  of  the  faculties  or  franchises  granted 
to  that  corporation  have  been  revoked  by  the  legislature ;   and  its  right 

from  the  burdens  common  to  individuals,  do  not  flow  necessarily  from  the 
charter,  but  must  be  expressed  In  it,  or  they  do  not  exist." — Marshall,  0.  J., 
in  Providence  Bank  v.  BllllngB,  4  Pet  514,  562,  7  U  Ed.  939  (1830). 

"The  principle  Is  this:  That  all  rights  which  are  asserted  against  the  state 
must  lie  clearly  deiined,  and  not  raised  by  Inference  or  presumption;  and  if 
the  charter  is  silent  about  a  power,  it  does  oot  exist  if,  on  a  fair  reading  of 
the  instrument,  reasonable  donbl  to  the  proper  interpretation  to  be 

to  it,  those  doubts  are  to  be  solved  in  favor  of  the  state;    and 
is  susceptible  of  two  meanings,  the  one  restricting  and  the  other  extending 
the  powers  of  the  corporation,  that  construction  Is  to  be  adopted  whl 
the  Least  barm  to  the  state.    But  if  there  is  no  ambiguity  in  the  chart 
the  powers  ionferred  are  plainly  marked,  and  their  limits  can  be  readily  as- 
certained, then  it  is  the  duty  of  the  court  to  sustain  and  uphold   it.  and  to 
carry  out  the  true  meaning  and  intention  of  the  parties  to  it.     Any  Other  rule 
tructlon  would  defeat  all  legislative  grants,  and  overthrow  all  other 
contracts."     Davis,   J.,   In   The  Binghanipton   Bridge,   3   Wall.   61,    T5,    18    E. 
Ed.   137  (1865). 

Sxbici   Constbuoiion  of  PUB]  Some   typical  instances  of  the 

operation  of  the  doctrine  of  strict   construction   are   given   below: 

An   exclusive   bridge   franchise  does    not   forbid   a    railway    bridge, 
Proprs.  v.  Ilohoken  Co..  1   Wall.  116,  17  I..  Ed.   "'71    (1864);    nor  a  ferry,  l'ar- 
rott  v.  Lawrence,  2  Dill.  332,  Fed,  Cas,  No.  10,772  (1872). 

A  grant  of  the  "sole  privilege  of  supplying  the  city  of  Mobile  with  water 
from  Three  Mile  Creek"  held  to  be  confined  to  a  supply  from  that  creek,  stein 
v.  Bienville  Water  Co.,  141  U.  S.  07,  11  Sup.  Ct  892,  35  I*  Ed.  622  (1891). 

The  grant  of  a  franchise  to  supply  a  city  with  water  for  30  years,  unless 
the  city  before  that  became  the  owner  of  the  plant,  with  n  proviso  that  the 
city  should  not  grant  to  any  other  person  or  corporation  any  contract  or  priv- 
ilege to  furnish  water  to  the  city  during  said  30  years,  held  BOl  to  prevent 
the  city   itself    from  building  a   Qi  id   furnishing   water   Withl 

period.  Knoxville  Water  Co.  v.  Knoxvllle,  200  O.  B.  22,  26  Sup.  Ot  224,  50  !.. 
Ed.  r?53  (1906).  But  a  grant  of  an  "exclusive  privilege"  of  supplying  water 
forbids  the  competition  of  the  citv  itself.  Vicksburg  v.  Vicksburg  Water  Co., 
202  V.  S.  453,  26  Sup.  Ct.  600,50  L.  Ed.  1102,  6  Ann.  fas.  258  (1906). 

Two   street;   railway  'porati.-i,  for   25   years  had   obtained    with 

the  consent  of  tiie  legislature  several  25-year  franchises  from  < 

use  of  its  streets.     In   L865  id   the  life  of  the  corporal 

99  years  and  provided  that  "all  contracts,  stipulations,  licenses,  and  under- 
takings   *    •    •    as  made  or  amended  bj  and  between  the  said  a 
ell  and  any  one  or  more  of  the  said  corporations,  respecting    •     •     •     i- :i i l - 
ways   in  or   upon    the  streets     *  •     of   said  city   shall   be     •     •     • 

tinned  in  force  during  the  life  h  ■     ctual    •    •    • 

made  a  part     *     *     *     of  said  several  acts  lamended  hereby]."     Held  uet  to 
Hall  Co.nst.L. — 53 


S34  FUNDAMENTAL    RIGHTS  (Part  2 

to  take  the  tolls  granted  by  the  charter  remains  unaltered.  In  short, 
all  the  franchises  and  rights  of  property  enumerated  in  the  charter, 
and  there  mentioned  to  have  been  granted  to  it  remain  unimpaired. 
But  its  income  is  destroyed  by  the  Warren  Bridge ;  which,  being  free, 
draws  off  the  passengers  and  property  which  would  have  gone  over 
it,  and  renders  their  franchise  of  no  value.  This  is  the  gist  of  the 
complaint.  For  it  is  not  pretended  that  the  erection  of  the  Warren 
Bridge  would  have  done  them  any  injury,  or  in  any  degree  affected 
their  right  of  property,  if  it  had  not  diminished  the  amount  of  their 
tolls.  In  order  then  to  entitle  themselves  to  relief,  it  is  necessary  to 
show  that  the  legislature  contracted  not  to  do  the  act  of  which  they 
complain;  and  that  they  impaired  or,  in  other  words,  violated  that 
contract  by  the  erection  of  the  Warren  Bridge. 

The  inquiry  then  is,  does  the  charter  contain  such  a  contract  on  the 

extend  the  street  franchises  to  99  years.  Blair  v.  Chicago,  201  U.  S.  400,  462- 
471,  26  Sup.  Ct.  427,  50  L.  Ed.  801  (1906). 

A  charter  provision,  empowering  a  railway  company  "from  time  to  time  to 
fix,  regulate,  and  receive"  tolls  and  charges  for  transportation,  does  not  exclude 
state  regulation  of  rates.  R.  R.  Commission  Cases,  116  U.  S.  307,  6  Sup. 
Ct.  334,  3S8,  1191,  29  L.  Ed.  636  (1S86) ;  So.  Pac.  Co.  v.  Campbell,  230  U.  S. 
537,  33  Sup.  Ct.  1027,  57  L.  Ed. (1913)  (cases). 

The  legislature  authorized  a  city  to  contract  for  the  construction  and  main- 
tenance of  waterworks  "at  such  rates  as  may  be  fixed  by  ordinance  and  for 
a  period  not  exceeding  30  years."  Held  to  mean  that  rates  should  be  fixed 
by  ordinance  from  time  to  time,  not  once  for  all  for  the  life  of  the  contract. 
Freeport  Water  Co.  v.  Freeport,  ISO  U.  S.  587,  21  Sup.  Ct.  493,  45  L.  Ed.  679 
(1901). 

An  ordinance  providing  that  the  grantee  "shall  charge  the  following  an- 
nual water  rates"  (followed  by  a  schedule)  held  to  be  no  contract,  but  a  com- 
mand that  might  be  subsequently  altered.  Rogers  Park  Co.  v.  Fergus,  ISO  U. 
S.  624,  21  Sup.  Ct.  490,  45  L.  Ed.  702  (1901). 

A  charter  provision  that  the  capital  stock  and  property  of  a  railroad  "shall 
be  exempt  from  taxation  for  10  years  after  the  completion  of  said  road  with- 
in the  limits  of  this  state"  held  to  become  operative  only  after  the  road's 
completion.  Vicksburg,  etc.,  Ry.  v.  Dennis,  116  U.  S.  665.  6  Sup.  Ct.  625,  29 
L.  Ed.  770  (1SS6). 

A  charter  provision  that  a  banking  corporation  shall  pay  "an  annual  tax 
of  Vo  per  cent,  on  each  share  of  capital  stock,  wThich  shall  be  in  lieu  of  all 
other  taxes,"  held  to  exempt  only  shares  in  the  hands  of  stockholders,  not 
the  capital  stock,  surplus  or  accumulated  profits  of  the  corporation,  Shelby 
Co.  v.  Union  Bank,  161  U.  S.  149,  16  Sup.  Ct.  55S,  40  L.  Ed.  650  (1S96) ;  and 
not  to  exempt  even  stockholders'  shares  issued  after  the  state  had  made 
future  issues  taxable,  Bank  of  Commerce  v.  Tennessee,  163  U.  S.  416,  422- 
424,  16  Sup.  Ct.  1113,  41  L.  Ed.  211  (1896). 

Exemption  from  taxation  of  certain  land  and  buildings  thereon  so  long  as 
it  belongs  to  a  certain  educational  institution  does  not  exempt  leasehold  in- 
terests of  lessees  of  that  land  from  that  institution.  Jetton  v.  University  of 
South,  20S  U.  S.  4S9.  2S  Sup.  Ct.  375,  52  L.  Ed.  584  (1908). 

A  general  exemption  of  the  property  of  a  corporation  from  taxation  Is  con- 
strued to  refer  only  to  property  necessary  for  the  business  of  the  company. 
Ford  v.  Delta  &  Pine  Land  Co.,  164  U.  S.  662,  667,  17  Sup.  Ct.  230,  41  L.  Ed. 
590  (1897)  (citing  cases).  Compare  University  v.  People,  99  U.  S.  309,  25  L. 
Ed.  3S7  (1S79).  A  general  tax  exemption  is  usually  construed  not  to  exempt 
from  special  assessments  for  local  improvements.  111.  Cent.  R.  R.'v.  Decatur, 
147  U.  S.  190,  13  Sup.  Ct.  293,  37  L.  Ed.  132  (1S93)  (exemption  from  "all  taxes 
under  the  laws  of  this  state");  Ford  v.  Delta,  etc.,  Co.,  164  U.  S.  662,  670- 
672,  17  Sup.  Ct.  230,  41  L.  Ed.  590  (1S97).  See  a  long  and  complete  note  on 
contract  exemptions  from  taxation  in  60  L.  R.  A.  33-109  (189S). 


Ch.  13)  LAWS    IMI'AIIUNQ    OBLIGATIONS    OF    CONTBAI  835 

part  of  the  state?  Is  there  any  such  stipulation  to  be  found  in  that 
instrument?  It  must  be  admitted  on  all  hands,  that  there  is  none, — 
no  words  that  even  relate  to  another  bridge,  or  to  the  diminution  of 
their  tolls,  or  to  the  line  of  travel.  If  a  contract  on  that  subject  can 
be  gathered  from  the  charter,  it  must  be  by  implication,  and 
be  found  in  the  words  used.  Can  such  an  agreement  be  implied? 
The  rule  of  construction  before  staled  is  an  answer  to  the  qui 
In  charters  of  this  description,  no  rights  are  taken  from  the  public, 
or  given  to  the  corporation,  beyond  those  which  the  words  of  the 
charter,  by  their  natural  and  proper  construction,  purport  to  convey. 
There  are  no  words  which  import  such  a  contract  as  the  plaintilTs  in 
error  contend  for,  and  none  can  be  implied ;  and  the  same  answer 
must  be  given  to  them  that  was  given  by  this  court  to  the  Providence 
Bank.  The  whole  community  are  interested  in  this  inquiry,  and  they 
a  right  to  require  that  the  power  of  promoting  their  comfort 
and  convenience,  and  of  advancing  the  public  prosperity,  by  providing 
safe,  convenient,  and  cheap  ways  for  the  transportation  of  produce 
and  the  purposes  of  travel,  shall  not  be  construed  to  have  been  sur- 
rendered or  diminished  by  the  state,  unless  it  shall  appear  by  plain 
words  that  it  was  intended  to  be  done.     *     *     * 

And  what  would  be  the  fruits  of  this  doctrine  of  implied  contracts 
on  the  part  of  the  states,  and  of  property  in  a  line  of  travel  by  a  cor- 
poration, if  it  should  now  be  sanctioned  by  this  court?  To  what  result? 
would  it  lead  us?  If  it  is  to  be  found  in  the  charter  to  this  bridge,  the 
same  process  of  reasoning  must  discover  it,  in  the  various  acts  which 
have  been  passed,  within  the  last  forty  years,  for  turnpike  companies. 
And  what  is  to  be  the  extent  of  the  privileges  of  exclusion  on  the  dif- 
ferent sides  of  the  road?  The  counsel  who  have  so  ably  argued  this 
case  have  not  attempted  to  define  it  by  any  certain  boundaries.  How  far 
must  the  new  improvement  be  distant  from  the  old  one?  How  near 
may  you  approach  without  invading  its  rights  in  the  privileged  line? 
If  this  court  should  establish  the  principles  now  contended  for.  what 
is  to  become  of  the  numerous  railroads  established  on  the  same  line 
of  travel  with  turnpike  companies;  and  which  have  rendered  the 
franchises  of  the  turnpike  corporations  of  no  value?  Let  it  once  be 
understood  that  such  charters  carry  with  them  these  implied  con- 
tracts, and  give  this  unknown  and  undefined  property  in  a  line  of 
travelling,  and  you  will  soon  find  the  old  turnpike  corporations  awak- 
ening from  their  sleep  and  calling  upon  this  court  to  put  down  the  im 
provements  which  have  taken  their  place.  The  millions  of  property 
which  have  been  invested  in  railroads  and  canals  upon  lines  of  travel 
which  had  been  before  occupied  by  turnpike  corporations  will  be  put 
in  jeopardy.  We  shall  be  thrown  back  to  the  improvements  of  the 
last  century,  and  obliged  to  stand  still  until  the  claims  of  the  old  turn 
pike  corporations  shall  be  satisfied,  and  they  <hall  consent  to  permit 
these  states  to  avail  themselves  of  the  lights  of  modern  science,  and 
to  partake  of  the  benefit  of  those  improvements  which  are  now  adding 


836  FUNDAMENTAL    EIGHTS  (Part  2 

to  the  wealth  and  prosperity,  and  the  convenience  and  comfort,  of  ev- 
ery other  part  of  the  civilized  world.  Nor  is  this  all.  This  court  will 
find  itself  compelled  to  fix,  by  some  arbitrary  rule,  the  width  of  this 
new  kind  of  property  in  a  line  of  travel ;  for  if  such  a  right  of  prop- 
erty exists,  we  have  no  lights  to  guide  us  in  marking  out  its  extent, 
unless,  indeed,  we  resort  to  the  old  feudal  grants,  and  to  the  exclusive 
rights  of  ferries,  by  prescription,  between  towns,  and  are  prepared  to 
decide  that  when  a  turnpike  road  from  one  town  to  another  had  been, 
made,  no  railroad  or  canal,  between  these  two  points,  could  after- 
wards be  established.  This  court  are  not  prepared  to  sanction  prin- 
ciples which  must  lead  to  such  results.     *     *     * 

Judgment  affirmed. 

[McLean,  J.,  concurred  in  the  result.  Story,  J.,  gave  an  elaborate 
dissenting  opinion,  in  which  Thompson,  J.,  concurred.] 


ROCHESTER  RY.  CO.  v.  ROCHESTER. 

(Supreme  Court  of  United  States,  1907.     205  U.  S.  236,  27  Sup.  Ct.  469.  51 
L.  Ed.  784.) 

[Error  to  New  York  Supreme  Court.  The  Brighton  Railroad  was 
incorporated  in  1868  and  operated  a  street  railway  in  Rochester,  N.  Y. 
A  statute  of  1869,  adjusting  a  number  of  differences  between  it  and 
the  city  and  assumed  to  be  an  irrepealable  contract,  exempted  it  from 
the  expense  of  street  pavements.  The  Rochester  Railway  Company 
was  incorporated  in  1890  under  a  general  law  of  18S4,  and  at  once 
leased  the  Brighton  road,  and  shortly  after  acquired  all  of  its  capital 
stock  under  a  general  statute  of  1879,  which  thereupon  vested  in  the 
Rochester  Company  the  "estate,  property,  rights,  privileges,  and  fran- 
chises" of  the  Brighton  Company.  Thereafter  the  Rochester  Com- 
pany was  assessed  and  sued  for  the  cost  of  paving  streets  occupied 
by  the  original  Brighton  road,  the  assessment  was  upheld  by  the  New 
York  Court  of  Appeals,  and  the  case  remanded  to  the  state  Supreme 
Court.  This  writ  of  error  was  then  taken.  Other  facts  appear  in 
the  opinion.] 

Mr.  Justice  Moody.  *  *  *  This  court  has  frequently  had  oc- 
casion to  decide  whether  an  immunity  from  the  exercise  of  govern- 
mental power  which  has  been  granted  by  contract  to  one  has,  by  legis- 
lative authority,  been  vested  in  or  transferred  to  another,  and  in  the 
decisions  certain  general  principles,  which  control  in  the  determina- 
tion of  the  case  at  bar,  have  been  established.  Although  the  obligations 
of  such  a  contract  are  protected  by  the  federal  Constitution  from  im- 
pairment by  the  state,  the  contract  itself  is  not  property,  which,  as 
such,  can  be  transferred  by  the  owner  to  another,  because,  being  per- 
sonal to  him  with  whom  it  was  made,  it  is  incapable  of  assignment. 


Ch.  13)  laws  imi'aiuim;  obligations  of  CONTRACTS  837 

The  person  with  whom  the  contract  is  made  by  the  state  may  co 
to  enjoy  its  benefits  unmolested  as  long  as  he  chooses,  but  there  his 
rights  end,  and  he  cannot,  by  any  form  of  conveyance,  transmit  the 
contract  or  its  benefits  to  a  successor.     Morgan  v.  Louisiana,  93  U. 
S.  217,  23  L.  Ed.  860;  Wilson  v.  Gaines,  103  U.  S.  417,  26  L.  Ed.  401 ; 

ille  &  N.  R.  Co.  v.  Palmes,  109  U.  S.  244,  27  L.  Ed. 
Sup.  Ct.  193;  Pickard  v.  East  Tennessee,  V.  &  G.  R.  Co.,  13" 
637,  32  L.  Ed.  1051,  9  Sup.  Ct.  640;  St.  Louis  &  S.  F.  R.  Co.  v.  Gill, 
156  U.  S.  649,  39  L.  Ed.  567,  15  Sup.  Ct.  484;  Norfolk  &  W.  R  Co. 
v.  Pendleton,  156  U.  S.  667,  39  L.  Ed.  574,  15  Sup.  Ct.  413.  But 
the  state,  by  virtue  of  the  same  power  which  created  the  original 
contract  of  exemption,  may  either  by  the  same  law  or  by  subsequent 
laws,  authorize  or  direct  the  transfer  of  the  exemption  to  a  successor 
in  title.  In  that  case  the  exemption  is  taken,  not  by  reason  of  the 
inherent  right  of  the  original  holder  to  assign  it,  but  by  the  action  of 
the  state  in  authorizing  or  directing  its  transfer.  As  in  determining 
whether  a  contract  of  exemption  from  a  governmental  power  was 
granted,  so  in  determining  whether  its  transfer  to  another  was  au- 
thorized or  directed,  every  doubt  is  resolved  in  favor  of  the  continu- 
ance of  the  governmental  power,  and  clear  and  unmistakable  evidence 
of  the  intent  to  part  with  it  is  required. 

Keeping  these  fundamental  principles  steadily  in  mind,  we  proceed 
to  inquire  whether  the  state  of  New  York  has  authorized  or  directed 
the  transfer  from  the  Brighton  Railroad  to  the  Rochester  Railroad  of 
the  contract  of  exemption.  A  legislative  authorization  of  the  trans- 
fer of  "the  property  and  franchises"  (Morgan  v.  Louisiana  and  Pick- 
ard v.  East  Tennessee,  V.  &  G.  R.  Co.,  ubi  supra) ;  of  "the  proper- 
ty" (Wilson  v.  Gaines  and  Louisville  &  N.  R.  Co.  v.  Palmes,  ubi  su- 
pra); of  "the  charter  and  works"  (Memphis  &  L.  R.  R.  Co.  v. 

om'rs  [Memphis  &  L.  R.  R.  Co.  v.  Merry]  112  U.  S.  609,  28 
L.  Ed.  837,  5  Sup.  Ct.  299);  or  of  "the  rights  of  franchise  and  prop- 
erty" i  Xorfolk  &  W.  R.  Co.  v.  Pendleton,  ubi  supra), — is  not  suf- 
ficient to  include  an  exemption  from  the  taxing  or  other  power  of 
the  state,  and  it  cannot  be  contended  that  the  word  "estate"  has 
any  larger  meaning.1     It  is.  however,  argued  that  the  word  "prn 
is  sufficiently  broad  to  embrace  within   its  meaning  such  an  exemp- 
tion, and  that,  when  it  is  added  to  the  other  words,  the  legislative  in- 
tent to  transfer  the  exemption  is  clearly  manifested,  and  that  t'.ie  words 
of  the  law  under  consideration,  "the  estate,  property,  rights,  prh 
and  franchises,"  indicate  the  purpose  to  vest   in  the  purchasi: 
poration  every  asset  of  the  selling  corporation  which  is  of  com. 
value.     There  is  authority  sustaining  this  position,  which  cannot  be 

i  Compare  New  Jersey  v.  Wll 
plained  In  Choate  v.  Trapp,  224   0.  S.  665,  674  677,  82  Sop,  <'t 

L2)  (tax  exemptions  granted  bj   I  ntted  States  t.>  Indians  are  liberally 
construed).     See  Armstrong  v.  Athens  i  •  .   16  Pet  281,   10  L.  !  d 
Given  v.  Wright,   117  V.  S.  64fi  •    '-"■'  '■■   '■ '■    1021 


838  FUNDAMENTAL    EIGHTS  (Part  2 

set  aside  without  examination.  *  *  *  [Here  follows  a  discussion 
of  Humphrey  v.  Pegues,  16  Wall.  244,  21  L.  Ed.  326;  Chesapeake  & 
O.  R.  R.  v.  Virginia,  94  U.  S.  718,  24  L-  Ed.  310;  Central  R.  R.  v. 
Georgia,  92  U.  S.  665,  23  L.  Ed.  757;  and  Tennessee  v.  Whitworth, 
117  U.  S.  139,  6  Sup.  Ct.  649,  29  L.  Ed.  833.] 

If  the  authority  of  these  four  cases,  supported  by  some  dicta  which 
need  not  be  cited,  remained  unimpaired,  it  would  justify  the  opinion 
that  a  legislative  transfer  of  the  "privileges"  of  a  corporation  includes 
an  exemption  from  the  taxing  or  other  governmental  power  granted 
by  a  contract  with  the  state.  But  other  and  later  cases  have  essential- 
ly modified  the  rule  which  may  be  deduced  from  them. 

In  the  case  of  the  Chesapeake  &  O.  R.  Co.  v.  Miller,  114  U.  S.  176, 
29  L.  Ed.  121,  5  Sup.  Ct.  813,  it  was  held  that  the  foreclosure  of  a 
mortgage  on  railroad  property  under  the  provisions  of  a  statute  which 
authorized  the  purchaser  under  a  foreclosure  sale  to  become  a  corpo- 
ration, and  provided  that  it  should  "'succeed  to  all  such  franchises, 
rights,  and  privileges"  as  were  possessed  by  the  mortgagor  company, 
did  not  vest  in  the  purchasing  corporation  an  immunity  from  taxation. 

In  Pickard  v.  East  Tennessee,  V.  &  G.  R.  Co.,  130  U.  S.  637,  32 
L.  Ed.  1051,  9  Sup.  Ct.  640,  Mr.  Justice  Field,  in  delivering  the  opinion 
of  the  court,  said :  "The  later,  and,  we  think,  the  better,  opinion,  is 
that  unless  other  provisions  remove  all  doubt  of  the  intention  of  the 
legislature  to  include  the  immunity  in  the  term  'privileges'  it  will  not 
be  so  construed.  It  can  have  its  full  force  by  confining  it  to  other 
grants  to  the  corporation." 

In  Wilmington  &  W.  R.  Co.  v.  Alsbrook,  146  U.  S.  279,  36  L.  Ed. 
972,  13  Sup.  Ct.  72,  Mr.  Chief  Justice  Fuller,  in  delivering  the  opinion 
of  the  court,  said,  on  page  297,  L.  Ed.  page  979,  Sup.  Ct.  page  77 : 
"We  do  not  deny  that  exemption  from  taxation  may  be  construed  as 
included  in  the  word  'privileges,'  if  there  are  other  provisions  remov- 
ing all  doubt  of  the  intention  of  the  legislature  in  that  respect." 

In  Keokuk  &  W.  R.  Co.  v.  Missouri,  152  U.  S.  301,  38  L.  Ed.  450, 
14  Sup.  Ct.  592,  Mr.  Justice  Brown,  in  delivering  the  opinion  of  the 
court,  said:  "Whether,  under  the  name  'franchises  and  privileges,'  an 
immunity  from  taxation  would  pass  to  the  new  company,  may  admit 
of  some  doubt,  in  view  of  the  decisions  of  this  court,  which,  upon 
this  point,  are  not  easy  to  be  reconciled." 

These  conflicting  views  were  before  the  court  in  Phcenix  F.  &  M. 
Ins.  Co.  v.  Tennessee,  161  U.  S.  174,  40  L.  Ed.  660,  16  Sup.  Ct.  471. 
The  plaintiff  in  error  in  that  case  claimed  to  have  an  immunity  from 
taxation  by  virtue  of  a  provision  in  its  charter  granting  it  "all  the 
rights  and  privileges"  of  the  De  Soto  Insurance  Company,  which  had 
an  immunity  from  taxation.  *  *  *  The  opinion  reviews  all  the 
cases,  cites  the  foregoing  quotations  from  the  opinions  of  Mr.  Justice 
Brown,  Mr.  Justice  Field,  and  of  the  Chief  Justice,  and,  after  say- 
ing: "There  must  be  other  language  than  the  mere  word  'privilege,'  or 
other  provisions  in  the  statute  removing  all  doubt  as  to  the  intention 


Ch.  13)  LAWS    IMPAIRING    0BUOA1 

of  the  legislature  before  the  exemption  will  be  admitted,"  concludes 
that:  "If  this  were  an  original  question  we  should  have  no  hesitation 
in  holding  that  the  plaintiff  in  error  did  not  acquire  the  exemption  from 
taxation  claimed  by  it,  and  we  think  at  the  present  time  the  weight  of 
authority,  as  well  as  the  better  opinion,  is  in  favor  of  the  same  conclu- 
sion which  we  should  otherwise  reach." 

In  Gulf  &  S.  I.  R.  Co.  v.  Hcwes,  133  U.  S.  66,  46  L.  Ed.  86,  22 
Sup.  Ct.  26,  Mr.  Justice  Brown,  in  delivering  the  opinion  of  the  court, 
said,  citing  this  case  as  authority:  "The  better  opinion  is  that  a  sub- 
rogation to  the  'rights  and  privileges'  of  a  former  corporation  docs 
not  include  an  immunity  from  taxation." 

We  think  it  is  now  the  rule,  notwithstanding  earlier  decisions  and 
dicta  to  the  contrary,  that  a  statute  authorizing  or  directing  the  grant 
or  transfer  of  the  "privileges"  of  a  corporation  which  enjoys  immunity 
from  taxation  or  regulation  should  not  be  interpreted  as  including  that 
immunity.  We,  therefore,  conclude  that  the  words  "the  estate,  prop- 
erty, rights,  privileges,  and  franchises"  did  not  embrace  within  their 
meaning  the  immunity  from  the  burden  of  paving  enjoyed  by  the 
Brighton  Railroad  Company.  Nor  is  there  anything  in  this,  or  any 
other  statute,  which  tends  to  show  that  the  legislature  used  the  words 
with  any  larger  meaning  than  they  would  have  standing  alone.  The 
meaning  is  not  enlarged,  as  faintly  suggested,  by  the  expression  in 
the  statute  that  they  are  to  be  held  by  the  successor  "fully  and  entire- 
ly, and  without  change  and  diminution," — words  of  unnecessary  em- 
phasis, without  which  all  included  in  "estate,  property,  rights,  privi- 
leges, and  franchises"  would  pass,  and  with  which  nothing  more  could 
pass.  *  *  *  The  omission  in  the  statute  under  consideration  of 
the  words  "exemptions"  or  "immunities,"  either  of  which  would  be  apt 
to  transfer  the  immunity  claimed,'-  is  significant,  in  view  of  the  fact 
that  each  of  these  words  was  employed  by  the  legislature  about  the 
same  time  in  other  statutes  dealing  with  the  transfer  of  corporate 
property,  and  raises  a  doubt  of  the  intention  of  the  legislature,  which, 
in  cases  of  the  interpretation  of  a  statute  claimed  to  devest  the  state  of 
a  governmental  power,  is  equivalent  to  a  denial. 

The  conclusion  that  the  exemption  of  the  Brighton  Railroad  did  not 
accompany  the  transfer  of  its  property  to  the  Rochester  Railroad  is 
reached  by  another  and  entirely  independent  course  of  reasoning, 
based  upon  a  consideration  of  the  law  under  which  the  Rochester 
Railroad  was  incorporated.  That  was  the  genera]  incorporation  law  of 
1884.  Every  corporation  incorporated  under  it  was  made  "subject  to 
all  the  liabilities  imposed  by  the  act"  (§  1).  and  directed  to  keep  the 
street  surface  about  and  between  its  tracks  "in  permanent  repair 
*  *  *  Here  a  corporation  deriving  its  right  to  exist  under  the  act 
of  1884  is  asserting  an  exemption  from  a  duty  imposed  upon  it  by 
the  law  which  created  it.    The  authorities  are  numerous  and  conclusive 

•  Accord:  Phoenix  ins.  Co.  v.  Tennessee,  101  V.  S.  174,  177-170,  16  Sup. 
Ct  471,  40  L.  E0.  600  (1S96). 


810  FUNDAMENTAL    RIGHTS  (Part  l! 

that  no  corporation  can  receive,  by  transfer  from  another,  an  exemp- 
tion from  taxation  or  governmental  regulation  which  is  inconsistent 
with  its  own  charter  or  with  the  Constitution  or  laws  of  the  state  then 
applicable ;  and  this  is  true,  even  though,  under  legislative  authority, 
the  exemption  is  transferred  by  words  which  clearly  include  it.3  Trask 
v.  Maguire,  18  Wall.  391,  21  L.  Ed.  938;  Shields  v.  Ohio,  95  U.  S. 
319,  24  L.  Ed.  357;  Maine  C.  R.  Co.  v.  Maine,  96  U.  S.  499,  24  L. 
Ed.  836;  Atlantic  &  G.  R.  Co.  v.  Georgia,  98  U.  S.  359,  25  L.  Ed. 
185 ;  Louisville  &  N.  R.  Co.  v.  Palmes,  109  U.  S.  244,  27  L.  Ed.  922, 
3  Sup.  Ct.  193 ;  Memphis  &  L.  R.  R.  Co.  v.  Railroad  Com'rs  (Mem- 
phis &  L.  R.  R.  Co.  v.  Berry)  112  U.  S.  609,  28  L.  Ed.  837,  5  Sup. 
Ct.  299;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Berry,  113  U.  S.  465,  28  L. 
Ed.  1055,  5  Sup.  Ct.  529;  Keokuk  &  W.  R.  Co.  v.  Missouri,  152  U. 
S.  301,  38  L.  Ed.  450,  14  Sup.  Ct.  592;  Norfolk  &  W.  R.  Co.  v.  Pen- 
dleton, 156  U.  S.  667,  39  L.  Ed.  574,  15  Sup.  Ct.  413 ;  Yazoo  &  M.  Val- 
ley R.  Co.  v.  Adams,  ISO  U.  S.  1,  45  L.  Ed.  395,  21  Sup.  Ct.  240; 
Grand  Rapids  &  I.  R.  Co.  v.  Osborn,  193  U.  S.  17,  48  L.  Ed-  598,  24 
Sup.  Ct.  310;  San  Antonio  Traction  Co.  v.  Altgelt,  200  U.  S.  304,  50 
L.  Ed.  491,  26  Sup.  Ct.  261. 

The  principle  governing  these  decisions,  so  plain  that  it  needs  no 
reasoning  to  support  it,  is  that  those  who  seek  and  obtain  the  benefit  of 
a  charter  of  incorporation  must  take  the  benefit  under  the  conditions 
and  with  the  burdens  prescribed  by  the  laws  then  in  force,  whether  writ- 
ten in  the  Constitution,  in  general  laws,  or  in  the  charter  itself.  The 
Rochester  Railroad,  therefore,  having  accepted  its  charter  under  a  law 
which  imposed  upon  it  the  duty  of  laying  pavements,  is  bound  to  per- 
form that  duty,  even  in  respect  of  tracks  which,  while  owned  by  a 
predecessor  in  title,  would  have  been  exempt. 

The  foregoing  considerations  would  be  conclusive  of  the  case  were 
it  not  that  the  plaintiff  m  error  takes  another  position,  which,  if  tena- 
ble, would  avoid  the  result  reached  by  either  course  of  reasoning.  It 
is  insisted  that  this  is  not  a  case  of  transfer  of  an  exemption ;  that 
the  rules  governing  transfer  are  not  applicable  here ;  that  the  Brighton 
Railroad  has  not  ceased  to  exist  as  a  corporation ;  that  it  has  been 
merely  joined  by  merger  with  the  Rochester  Railroad,  which  controls 
it  by  stock  holdings,  and  operates  it  by  virtue  of  its  franchises ;  and 
that,  therefore,  the  Rochester  Railroad  may  claim  and  enjoy  the  ex- 
emption of  the  Brighton  Railroad  in  its  behalf  in  respect  of  its  prop- 
erty. In  support  of  this  view  counsel  cite  Tomlinson  v.  Branch,  15 
Wall.  460,  21  L.  Ed.  189;  Central  R.  &  Bkg.  Co.  v.  Georgia,  92  U. 
S.  665,  23  L.  Ed.  757;  Tennessee  v.  Whitworth,  ubi  supra.  These 
cases  hold  that  where  corporations  are  united  in  such  manner  that  one 
continues  to  exist  as  a  corporation,  owning  and  operating  its  property, 
by  virtue  of  its  own  charter,  the  corporation  thus  continuing  to  exist 

3  The  same  rule  applies  if  the  business  of  an  exempt  corporation  is  materi- 
ally changed,  as  from  insurance  to  banking.  Memphis  Bank  v.  Tennessee,  101 
U.  S.  186,  16  Sup.  Ct  468,  40  L.  Ed.  664  (1896). 


Cll.  V.i)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS 

still  holds  its  immunities  and  exemptions  in  respect  of  the  property 
to  which  they  apply.  *  *  *  An  examination,  however,  of  the 
statute  under  which  the  union  of  the  two  corporations  was  made, 
and  the  transactions  by  which  the  union  was  accom;  vs  that 

the  Brighton  Railroad  has  ceased  to  exist  as  a  corporation.  The  Ro- 
chester Railroad  first  took  a  lease  of  the  Urighton  Railroad,  apparent- 
ly for  the  purpose  of  bringing  itself  within  the  provisions  of  the  act  of 
1879.  Then  all  the  stock  of  the  latter  corporation  was  acquired  by  « 
change  of  shares  of  stock  of  the  former  corporation.  Then  a  cer- 
tificate of  the  transfer  of  stock  was  hied  with  the  secretary  of  state. 
Thereupon,  by  operation  of  the  law,  the  "estate,  property,  riyhts,  prisi 
leges,  and  franchises"  of  the  Brighton  Railroad  vested  in  the  Ro- 
chester Railroad,  to  be  thereafter  controlled  by  the  Rochester  Railroad 
in  its  own  corporate  name.  The  law  does  not  expressly  dissolve  the 
selling  corporation,  but  it  leaves  it  without  stock,  officers,  property, 
or  franchises.  A  corporation  without  shareholders,  without  officers 
to  manage  its  business,  without  property  with  which  to  do  business. 
and  without  the  right  lawfully  to  do  business,  is  dissolved  by  the  op- 
eration of  the  law  which  brings  this  condition  into  existence.4 
C.  R.  Co.  v.  Maine,  Keokuk  &  W.  R.  Co.  v.  Missouri,  and  Yazoo  & 
M.  Valley  R.  Co.  v.  Adams,  ubi  supra. 

Judgment  affirmed." 

[White,  J.,  concurred  in  the  result] 

*  As  to  when  a  consolidation  preserves  the  Identity  of  one  or  more  of  the 
constituent  corporations,  and  when  not,  Bee  especially  Keokuk,  etc.,  K.  K.  r. 
Missouri,  152  U.  S.  301,  1-1  Sup.  Cfc  592,  38   L.  Ed,  150  (1894). 

o  Accord:     Covington  Turnpike  Co.  v.  Sandford,  104  r.  s.  r>78,  586-588,  17 
Sup.  Ot  198,   11   L.  Ed.  560  (1896)  (grant  ol   "powers,  rights,  and  cant 
of  preceding  company  does  not  include  an  exemption  from  rate  regulation), 
are  Louisville  v.  Cumberland  Teleph.  Co.,  224  r.  s.  era.  661,  .".-  Sup. 
Ct  072,  66  L.  Ed.  934  (1912)  hy  Lamar,  J.  (holding  that  the  street  franchises 
of   a   telephoue   company  passed   under    statutory   authority    to   transfer   Its 
"property,   business  assets,  and  effects");    "While  franchises  b 
transferable  without  express  authority,  there  are  other  franchises  to  hare, 
to   hold,  and   to  use.   which  are   contractual   and   proprietary   In   their  na- 
ture, and  which  confer  rights  and  privileges  which  can  he  sold  wherever  the 
company,  as  here,  bas  power  to  dispose  of  its  property,     in  the  present  case 
the   Ohio   Valley   Company    was   by    its   charier    given   authority    to    in 
and  <iis|ioso  of  franchises.     Among  those  thus  held  was  the  right  to  o 
streets  in  the  city  for  the  purpo  e  ni  In  conducting  u  telephone  bus! 

ness.      Such  a   sine:    franchise   lias  been   called   by    various  names. --an   ineoi 

poreal  hereditament,  an  interest  In  land,  an  easement,  a  right  of  way. — but, 
howsoever  designated,  it  is  property.    •    •    •    That  the  street  rights,  how 
ever  designated,  pa  Cumberland  Company,  is  the  natural  and  ob 

rloue  construction  ol  the  int  and  property  of  a  telepho  • 

pany    are  useless   when    dissevered    fr the   streets,   and    there   would, 

feet,  have  been  no  property  out.  of  which  to  pay  the  debts  or  with  winch  to 
perform  the  public  dut  lea  Impos  ed  U  i  he     ■  ■  ■  :  rigl 

panics  had  ool  been  transferred  by  the  statu  pan.  ' 

in  Uwensboro  v.  Cumberland    I  71.  B3  Sup    Ct 

988,  990,  992,  57  L.  Ed.  —  (1913),  Lurton,  J.,  said:  "That  an  ordinance  grant- 
bag  the  right  to  place  and  a  the  streets  of  a  city  poles  and 

of  BUCh  a  company   is   the  granting  of  D    property   right    has  been    man] 

decided  by  this  court.    *    *    *    As  a  property  right  it  was  asslgnabl 

ble,  and  alienable.    Generally  it  la  an  asset  of  great  value  to  such  utility  com- 


842  FUNDAMENTAL    RIGHTS  (Part  -' 

COVINGTON  v.  KENTUCKY  (1899)  173  U.  S.  231,  238,  239,  19 
Sup.  Ct.  383,  43  L.  Ed.  679.  A  Kentucky  statute  of  1856  provided  that 
all  subsequent  charters  or  grants  to  corporations,  or  amendments  there- 
of should  "be  subject  to  amendment  or  repeal  at  the  will  of  the  Legis- 
lature, unless  a  contrary  intent  be  therein  plainly  expressed."  By 
a  statute  of  1886  the  city  of  Covington  was  authorized  to  construct 
a  municipal  waterworks,  and  one  section  of  the  act  provided  that  the 
waterworks  property  "shall  be  and  remain  forever  exempt  from  state, 
county,  and  city  tax."  The  Kentucky  Constitution  of  1891  required 
the  taxation  of  such  property.  In  an  action  involving  the  validity  of 
such  taxation  of  the  Covington  waterworks  property,  the  court  said, 
by  Mr.  Justice  Harlan  : 

"We  are  of  opinion  that  the  exemption  from  taxation  embodied 
in  that  act  did  not  tie  the  hands  of  the  commonwealth  of  Kentucky, 
so  that  it  could  not,  by  legislation,  withdraw  such  exemption,  and  sub- 
ject the  property  in  question  to  taxation.  The  act  of  1886  was  passed 
subject  to  the  provision  in  a  general  statute  of  Kentucky,  above  re- 
ferred to,  that  all  statutes  'shall  be  subject  to  amendment  or  repeal 
at  the  will  of  the  legislature,  unless  a  contrary  intent  be  therein  plain- 
ly expressed.'  If  that  act  in  any  sense  constituted  a  contract  between 
the  city  and  the  commonwealth,  the  reservation  in  an  existing  gen- 
eral statute  of  the  right  to  amend  or  repeal  it  was  itself  a  part  of  that 
contract.  Griffin  v.  Insurance  Co.,  3  Bush  (Ky.)  592,  96  Am.  Dec. 
259.  The  city  accepted  the  act  of  1886,  and  acquired  under  it  the 
property  taxed  subject  to  that  reservation.  There  was  in  that  act  no 
'plainly-expressed'  intent  never  to  amend  or  to  repeal  it.  It  is  true 
that  the  legislature  said  that  the  reservoirs,  machinery,  pipes,  mains, 
and  appurtenances,  with  the  land  upon  which  they  were  situated, 
should  be  forever  exempt  from  state,  county,  and  city  taxes.  But  such 
a  provision  falls  short  of  a  plain  expression  by  the  legislature  that  at 
no  time  would  it  exercise  the  reserved  power  of  amending  or  repealing 
the  act  under  which  the  property  was  acquired.  The  utmost  that  can 
be  said  is  that  it  may  be  inferred  from  the  terms  in  which  the  exemp- 
tion was  declared  that  the  legislature  had  no  purpose,  at  the  time  the 
act  of  1886  was  passed,  to  withdraw  the  exemption  from  taxation ; 

panies,  and  a  principal  basis  for  credit.  The  grant  by  ordinance  to  an  in- 
corporated telephone  company,  its  successors  and  assigns,  of  the  right  to  oc- 
cupy the  streets  and  alleys  of  a  city  with  its  poles  and  wires  for  the  neces- 
sary conduct  of  a  public  telephone  business,  is  a  grant  of  a  property  right  in 
perpetuity,  unless  limited  in  duration  by  the  giant  itself,  or  as  a  consequence 
of  some  limitation  imposed  by  the  general  law  of  the  state,  or  by  the  cor- 
porate powers  of  the  city  making  the  grant.  *  *  *  That  a  corporation  is 
capable  of  taking  a  grant  of  street  rights  of  longer  duration  than  its  own 
corporate  existence  is  the  settled   law  of  this  court." 

In  Boise  Artesian  Water  Co.  v.  Boise  City.  230  TJ.  S.  84.  33  Sup.  Ct.  997. 

f>7  L.  Ed. (1913),  the  same  was  held  of  a  municipal  grant  to  lay  water 

pipes  in  the  streets.  See  also  Detroit  v.  Detroit,  etc.  Ry.  Co.,  184  U.  S.  368, 
.".9*4,  395.  22  Sup.  Ct  410,  46  L.  Ed.  592  (1902);  People  v.  O'Brien,  post,  at 
pp.  84S-S.">0. 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTBACT8  843 

not  that  the  power  reserved  would  never  be  exerted,  so  far  as  taxa- 
tion was  concerned,  if  in  the  judgment  of  the  legislature  the  public 
interests  required  that  to  be  clone.  The  power  expressly  reserved  to 
amend  or  repeal  a  statute  should  not  be  frittered  away  by  any  con- 
struction of  subsequent  statutes  based  upon  mere  inference.  Before 
a  statute — particularly  one  relating  to  taxation — should  be  held  to  be 
irrepealable,  or  not  subject  to  amendment,  an  intent  not  to  repeal  or 
amend  must  be  so  directly  and  unmistakably  expressed  as  to  le 
room  for  doubt;  otherwise,  the  intent  is  not  plainly  expressed.  It  is 
not  so  expressed  when  the  existence  of  the  intent  arises  only  from  in- 
ference or  conjecture. 

"The  views  we  have  expressed  as  to  the  power  of  the  legislature  un- 
der a  reservation  made  by  general  statute  of  the  right  to  amend  or  re- 
peal are  supported  by  many  adjudged  cases:  Tomlinson  v.  Jessup,  15 
Wall.  454,  457,  21  L.  Ed.  204;  Railroad  Co.  v.  Maine,  96  U.  S.  499, 
510,  24  L.  Ed.  836;  Railroad  Co.  v.  Georgia,  98  U.  S.  359,  365,  25  L. 
Ed.  185;  Iloge  v.  Railroad  Co.,  99  U.  S.  348,  353,  25  L.  Ed.  303; 
Sinking  Fund  Cases,  99  U.  S.  700,  720,  25  L.  Ed.  496;  Greenwood 
v.  Freight  Co.,  105  U.  S.  13,  21,  26  L.  Ed.  961;  Close  v.  Cemetery. 
107  U.  S.  466,  476,  2  Sup.  Ct.  267,  27  L.  Ed.  408;  Waterworks  Co.  v. 
Schottler,  110  U.  S.  347,  352,  4  Sup.  Ct.  48,  28  L.  Ed.  173;  Louis- 
ville Gas  Co.  v.  Citizens'  Gas-Light  Co.,  115  U.  S.  683,  6%,  6  Sup. 
Ct.  265,  29  L.  Ed.  510;  Gibbs  v.  Gas  Co.,  130  U.  S.  396,  40S,  9  Sup. 
Ct.  553,  32  L.  Ed.  979;  Sioux  City  St.  Ry.  Co.  v.  Sioux  City,  138 
U.  S.  98,  108,  11  Sup.  Ct.  226.  34  L.  Ed.  898;  Water  Co.  v.  Clark. 
143  U.  S.  1,  12,  12  Sup.  Ct.  346,  36  L.  Ed.  55."  • 

i  As  to  what  language  or  circumstances  will  plainly  express  such  a  legis- 
lative Intent,  see  Louisville  Gas  Co.  v.  Citizens'  Co.,  115  U.  S.  Os::,  ti  Sup.  Ct 
265,  29  I..  Ed.  610  (1885);  New  Jersey  v.  Yard.  95  D.  S.  104,  24  L.  Ed.  352 
(1S77).  The  most  unqualified  reservation  of  a  reserved  right  to  amend  or  re- 
peal  future  grants,  made  by  a  general  or  special  act  of  the  legislature,  of 
course  cannot  affect  a  subsequent  Lroej  i  learly  made  by  the  same 

body.     Only  a  constitutional  prohibition  can  do  this.     New  Jersey  v.   Yard, 
above. 

a  slate  Constitution  forbidding  Irrepealable  grants  applies  even  to  a  grant 
made  in  compromise  of  disputes  arising  over  the  terms  of  an  Irrepealable 
grant,  the  latter  made  prior  to  the  constitutional  prohibition.    Norther 
Ry.  v.  Maryland,  is;  r.  S.  258,  28  Sup.  Ct  62,  «  I..  Ed  167  (19 

The  federal  courts  have  no  Jurisdiction,  under  the  contract  clause  of  the 
Constitution,  to  review  controversies  in  state  courts  over  contracts  that  are 
repealable.  "The  whole  foundation  of  our  jurisdiction  in  this  class  of  cases 
must  rest  upon  a  contract  which  cannot  be  legally  impaired." — Brown,  J.,  in 
Gulf,  etc,  Co.  v.  Hewes.  1S3  U.  8,  66,  T5,  22  Sup.  CL  20,  40  L,  Ed.  86 


844  FUNDAMENTAL    BIGHTS  (Part  2 

GREENWOOD  v.  FREIGHT  CO. 
(Supreme  Court  of  United  States,  1882.    105  U.  S.  13,  26  L.  Ed.  901.) 

[Appeal  from  United  States  Circuit  Court  for  Massachusetts.  A 
Massachusetts  statute  of  1867  incorporated  the  Marginal  Freight 
Railroad  Company  to  operate  a  railroad  in  the  streets  of  Boston.  An 
existing  act  of  1831  provided  that  every  act  of  incorporation  passed 
thereafter  should  "be  subject  to  amendment,  alteration,  or  repeal,  at 
the  pleasure  of  the  legislature."  In  1872  the  legislature  repealed  the 
charter  of  the  Marginal  Company  and  incorporated  the  Union  Com- 
pany for  the  same  purposes,  with  a  power  to  take  the  Marginal  Com- 
pany's track  by  eminent  domain.  Greenwood,  a  stockholder  in  the 
Marginal  Company,  filed  a  bill  in  the  above-named  court  against  all 
parties  to  enjoin  action  under  this  latter  statute.  There  was  a  judg- 
ment for  defendants  upon  demurrer,  and  this  writ  of  error  was  taken.] 

Mr.  Justice  Miller.  *  *  *  What  is  the  effect  of  the  repeal  of 
the  charter  of  a  corporation  like  this? 

One  obvious  effect  of  the  repeal  of  a  statute  is  that  it  no  longer  ex- 
ists. Its  life  is  at  an  end.  Whatever  force  the  law  may  give  to  trans- 
actions into  which  the  corporation  entered  and  which  were  authorized 
by  the  charter  while  in  force,  it  can  originate  no  new  transactions  de- 
pendent on  the  power  conferred  by  the  charter.  If  the  corporation  be 
a  bank,  with  power  to  lend  money  and  to  issue  circulating  notes,  it  can 
make  no  new  loan  nor  issue  any  new  notes  designed  to  circulate  as 
money.  If  the  essence  of  the  grant  of  the  charter  be  to  operate  a 
railroad,  and  to  use  the  streets  of  the  city  for  that  purpose,  it  can  no 
longer  so  use  the  streets  of  the  city,  and  no  longer  exercise  the  fran- 
chise of  running  a  railroad  in  the  city.  In  short,  whatever  power  is 
dependent  solely  upon  the  grant  of  the  charter,  and  which  could  not  be 
exercised  by  unincorporated  private  persons  under  the  general  laws 
of  the  state,  is  abrogated  by  the  repeal  of  the  law  which  granted  these 
special  rights. 

Personal  and  real  property  acquired  by  the  corporation  during  its 
lawful  existence,  rights  of  contract,  or  choses  in  action  so  acquired, 
and  which  do  not  in  their  nature  depend  upon  the  general  powers  con- 
ferred by  the  charter,  are  not  destroyed  by  such  a  repeal ;  and  the 
courts  may,  if  the  legislature  does  not  provide  some  special  remedy, 
enforce  such  rights  by  the  means  within  their  power.  The  rights  of  the 
share-holders  of  such  a  corporation,  to  their  interest  in  its  property, 
are  not  annihilated  by  such  a  repeal,  and  there  must  remain  in  the 
courts  the  power  to  protect  those  rights.  And  while  we  are  conscious 
that  no  definition,  at  once  comprehensive  and  satisfactory,  can  be  here 
laid  down  of  what  those  rights  and  powers  are  that  remain  to  the 
stock-holders  and  the  creditors  of  such  a  corporation  after  the  act 
of  repeal,  we  are  of  opinion  that  the  foregoing  observations  are  suffi- 
cient for  the  case  before  us. 


Ch.  13)  LAWS    IMPAIBINU    OBLIGATIONS    OF   CONTBAI 

A  short  reference  to  the  origin  of  this  reservation  of  the  right  to 
repeal  charters  of  corporations  may  be  of  service  in  enabling  us  to  de- 
cide upon  its  office  and  effect  when  called  into  operation  by  the  legis- 
lative exercise  of  the  power. 

As  early  as  1806.  in  the  case  of  Wales  v.  Stetson,  2  Mass.  143,  3 
Am.  Dec.  39,  the  Supreme  Court  of  that  state  made  the  dec'. 
"that  the  rights  legally  vested  in  all  corporations  cannot  be  controlled 
or  destroyed  by  any  subsequent  statute,  unless  a  power  for  that  pur- 
pose be  reserved  to  the  legislature  in  the  act  of  incorporation."  In 
Trustees  of  Dartmouth  College  v.  Woodward,  4  Wheat.  5 IS,  4  L.  Ed. 
629,  decided  in  1819,  this  court  announced  principles  on  the  subject  of 
the  protection  that  the  charters  of  private  corporations  were  entitled  to 
claim,  under  the  clause  of  the  federal  Constitution  against  impairing 
the  obligation  of  contracts,  which,  though  received  at  the  time  with 
some  dissatisfaction,  have  never  been  overruled  in  this  court.  The 
opinion  in  that  case  carried  the  protection  of  the  constitutional  pro- 
vision somewhat  in  advance  of  what  had  been  decided  in  Fletcher  v. 
Peck,  6  Cranch,  87,  3  I_.  Ed.  162,  and  the  preceding  cases,  and  held 
that  it  applied  not  only  to  contracts  between  individuals,  and  to  grants 
of  property  made  by  the  state  to  individuals  or  to  corporations,  but 
that  the  rights  and  franchises  conferred  upon  private  as  distinguished 
from  public  corporations  by  the  legislative  acts  under  which  their  ex- 
istence was  authorized,  and  the  right  to  exercise  the  functions  con- 
ferred upon  them  by  the  statute,  were,  when  accepted  by  the  corpora- 
tors, contracts  which  the  state  could  not  impair. 

It  became  obvious  at  once  that  many  acts  of  incorporation  which  had 
been  passed  as  laws  of  a  public  character,  partaking  in  no  general 
sense  of  a  bargain  between  the  states  and  the  corporations  which  they 
created,  but  which  yet  conferred  private  rights,  were  no  longer  subject 
to  amendment,  alteration,  or  repeal,  except  by  the  consent  of  the  cor- 
porate body,  and  that  the  general  control  which  the  legislatures  creat- 
ing such  bodies  had  previously  supposed  they  had  the  right  to  exercise, 
no  longer  existed.  It  was,  no  doubt,  with  a  view  to  suggest  a  method 
by  which  the  state  legislatures  could  retain  in  a  large  measure  this  im- 
portant power,  without  violating  the  provision  of  the  federal  Constitu- 
tion, that  .Mr.  Justice  Story,  in  his  concurring  opinion  in  the  Dartmouth 
College  Case,  suggested  that  when  the  legislature  was  enacting  a  char- 
ter for  a  corporation,  a  provision  in  the  statute  reserving  to  the 
lature  the  right  to  amend  or  repeal  it  must  be  held  to  be  a  part  of  the 
contract  itself,  and  the  subsequent  exercise  of  the  right  would  be  in 
accordance  with  the  contract,  and  could  not.  therefore,  impair  its  obli- 
gation. And  he  cites  with  approval  the  observations  we  have  al 
quoted  from  the  ease  of  Wales  v.  Stetson,  2  .Mass.  143,  3  Am.  D 
It  would  seem  that  the  states  were  not  slow  to  avail  themselves  of  this 
suggestion.     *     *     * 

'Phis  history  of  the  rest  use  in  acts  of  incorporation  sup- 

ports our  proposition,  that  whatever  right,  franchise,  or  power  in  the 


M6  FUNDAMENTAL    RIGHTS  (Part  2 

corporation  depends  for  its  existence  upon  the  granting  clauses  of  the 
charter,  is  lost  by  its  repeal.  This  view  is  sustained  by  the  decisions 
of  this  court  and  of  other  courts  on  the  same  question.  Pennsylvania 
College  Cases,  supra;  Tomlinson  v.  Jessup,  15  Wall.  454,  21  L.  Ed. 
204;  Railroad  Company  v.  Maine,  96  U.  S.  499,  24  L.  Ed.  836;  Sink- 
ing Fund  Cases,  99  Id.  700,  25  L.  Ed.  496;  Railroad  Company  v. 
Georgia,  98  Id.  359,  25  L.  Ed.  185 ;  McLaren  v.  Pennington,  supra 
[1  Paige  (N.  Y.)  102]  ;  Erie  &  N.  E.  Railroad  v.  Casey,  supra  [26  Pa. 
287] ;  Miners'  Bank  v.  United  States,  1  G.  Greene  (Iowa)  553 ;  2 
Kent.  Com.  306,  307. 

It  results  from  this  view  of  the  subject  that  whatever  right  remained 
in  the  Marginal  Company  to  its  rolling-stock,  its  horses,  its  harness, 
its  stables,  the  debts  due  to  it,  and  the  funds  on  hand,  if  any,  it  no 
longer  had  the  right  to  run  its  cars  through  the  streets,  or  any  of  the 
streets,  of  Boston.  It  no  longer  had  the  right  to  cumber  these  streets 
with  a  railroad  track  which  it  could  not  use,1  for  these  belonged  by  law, 
to  no  person  of  right,  and  were  vested  in  defendants  only  by  virtue  of 
the  repealed  charter.  It  was,  therefore,  in  the  power  of  the  Massa- 
chusetts legislature  to  grant  to  another  corporation,  as  it  did,  the  au- 
thority to  operate  a  street  railroad  through  the  same  streets  and  over 
the  same  ground  previously  occupied  by  the  Marginal  Company. 
Whether  this  action  was  oppressive  or  unjust  in  view  of  the  public 
good,  or  whether  the  legislature  was  governed  by  sufficient  reason  in 
thus  repealing  the  charter  of  one  company  and  in  chartering  another  at 
the  same  time  to  perform  as  part  of  its  functions  the  duties  required 
of  the  first,  is  not,  as  we  have  seen,  a  judicial  question  in  this  case. 
*     *     * 

Decree  affirmed.' 


PEOPLE  v.  O'BRIEN. 

(Court  of  Appeals  of  New  York,  1SSS.     Ill  N.  Y.  1,  18  N.  E.  692,  2  L.  R.  A. 
255,  7  Ana.  St.  Rep.  6S4.) 

[Appeals  from  New  York  Supreme  Court.  In  1SS4  the  Broadway 
Surface  Railroad  Company  was  incorporated  under  a  general  act, 
subject  to  a  reserved  right  of  repeal,  and  became  thereby  empowered 
to  operate  a  street  railway  in  New  York  City  when  it  should  obtain 
authority  therefor  from  that  city,  which,  under  the  state  Constitution, 

i  A  street  railway  company  whose  franchise  has  expired  or  been  lawfully 
repealed  can  be  made  to  remove  its  tracks  from  the  public  streets.  Detroit 
United  Ry.  v.  Detroit,  229  U.  S.  39,  33  Sup.  Ct.  697,  57  L.  Ed.  — ■  (1913).  And 
a  water  company  in  a  similar  situation  cannot  require  the  city  to  purchase 
its  plant,  instead  of  erecting  a  new  one  for  itself.  Denver  v.  N.  Y.  Trust  Co., 
229  U.  S.  123,  33  Sup.  Ct.  657,  57  L.  Ed. (1913). 

2  Whether  a  general  power  reserved  to  amend,  alter,  or  repeal  corporate 
charters  shall  be  exercised  or  not  lies  wholly  within  the  discretion  of  the  leg- 
islature. Hamilton  Gas  Co.  v.  Hamilton,  146  U.  S.  25S,  270,  271,  13  Sup.  Ct. 
90,  36  L.  Ed.  963  (1892) ;  D.  S.  v.  Union  Pac.  Ry.,  160  U.  S.  1,  36,  37,  16  Sup. 
Ct.  190,  40  L.  Ed.  319  (1S95)  (cases). 


Ch.  13)  LAWS    IHFAIRING    OBLIGATIONS   OF    COKTBAI   M  847 

could  be  obtained  only  at  the  pleasure  of  the  city  authorities.    In  De- 
cember, 1884,  the  right  to  operate  a  railway  upon  Broadway  was  ob- 
tained by  the  company  from  the  city  common  council  in  return 
considerable  annual  payment  to  the  city.     As  permitted  by  its  char- 
ter, the  company  mortgaged  its  property  and  franchises  to  secure  its 
bondholders,  and  its  bonds  and  stock  were  largely  invested  in  by 'in- 
nocent persons,  and  it  became  liable  to  many  creditors.     Its  ro 
built  and  operated  in  1885,  and  in   1886  the  company  was  dissolved 
by  an  act  of   the  legislature,  which  also  purported  to  authorize  the 
winding  up  of  the  affairs  of  the  company  by  public  authority  and  the 
virtual  confiscation  of  its  franchise  to  use  the  city  streets.    The  ground 
of  this   was  bribery  in  obtaining  the    Broadway   franchise    from  the 
city.     In  a  suit  to  which  all  interested  persons  were  parties,  1 1  • 
state   courts   declared   invalid   the  confiscatory   part  of    the   r< 
act,  but  upheld  other  parts  of  it.     Both  parts  of  this  decision  were  ap- 
pealed from.] 

RUGER,  C.  J.  *  *  *  We  think  the  material  question  for  discus- 
sion here  is  whether  the  franchise  to  maintain  tracks  and  run  cars 
on  Broadway  survived  the  dissolution  of  the  corporation,  and,  if  s  i, 
upon  whom  the  right  of  administering  its  affairs  devolved.  «  *  * 
The  statutes  upon  which  the  action  is  predicated  confessedly  assume 
the  right  and  power  of  the  legislature  to  wrest  from  the  company  its 
franchises,  to  transfer  them  to  other  persons,  and  bestow  their  value 
upon  the  donees  of  the  state.  The  statutes  contemplate  the  a 
destruction  of  the  property  of  the  corporation,  and  the  loss  of  its 
value  to  the  creditors  who  have  made  loans  in  good  faith  upon  the 
security  of  mortgages  upon  such  property;  and  this  action  is  avow- 
edly prosecuted  to  accomplish  the  purposes  of  the  legislation.  It  is 
therefore  urgently  contended  by  the  attorney  general  that  none  of  the 
franchises  of  the  corporation  survived  its  dissolution,  and  that  the 
mortgages  previously  given  thereon,  as  well  as  all  contracts  made  with 

ling  street  railroads  for  the  mutual  use  of  their  respective  roads 
fell  with  the  repeal,  and  could  not  be  enforced.     If  it  could  be  sup- 
posed for  a  moment  that  this  claim  was  reasonably  supported  by  au- 
thority, or  maintainable  in  logic  or  reason,  it  would  give  grave 
for  alarm  to  all  holders  of  corporate  securities.     The  contention  that 

ies  representing  a  large  part  of  the  world's  wealth,  are  beyond 
the  reach  of  the  protection  which  the  Constitution  gives  to  pr 
and  are  subject  to  the  arbitrary  will  of  successive  legislatures,  to  sanc- 
tion or  destroy  at  their  pleasure  or  discretion,  is  a  proposition  so  re- 

i  and  justice,  as  well  as  the  traditions  of  the 
Saxon  race,  in  respect  to  the  security  of  rights  of  property,  that  then- 
is  little  reason  to  suppose  that  it  will  ever  receive  the  sanction  of  the 
judiciary;    and  we  desire  in 

probation  of  such  a  doctrine.     V\  en  the  inten- 

tion of  the  legislature',  or  even  of  the  ftamers  of  our  Constitution,  in 
respect  to  the  effect  of  the  power  of  repeal  reserved  in  acts  of  incor- 


848  FUNDAMENTAL    RIGHTS  (Part  2 

poration  upon  the  property  rights  of  a  corporation,  such  power  must 
still  be  exercised  in  subjection  to  the  provisions  of  the  federal  Con- 
stitution. Considering  the  power  which  the  state  has  to  terminate  the 
life  of  corporations  organized  under  its  laws,  and  the  authority  which 
its  attorney  general  has  by  suit  to  forfeit  its  franchises  for  misuse  or 
abuse,  and  to  regulate  and  restrain  corporations  in  the  exercise  of  their 
corporate  powers,  there  is  little  danger  to  be  apprehended  from  the 
overgrowth  of  power  or  the  monopolistic  tendencies  of  such  organiza- 
tions; but,  whatever  that  danger  may  be,  it  is  trivial  in  comparison 
with  the  wide-spread  loss  and  destruction  which  would  follow  a  ju- 
dicial determination  that  the  property  invested  in  corporate  securities 
was  beyond  the  pale  of  the  protection  afforded  by  the  fundamental 
law.  It  is  not,  perhaps,  strange,  in  the  great  variety  of  cases  bearing 
upon  the  subject,  and  the  manifold  aspects  in  which  questions  relating 
to  corporate  rights  and  property  have  been  presented,  that  dicta 
couched  in  general  language  may  be  found,  giving  color  to  the  plain- 
tiff's claim;  but  we  think  that  there  are  no  reported  cases  in  which 
the  judgment  of  the  court  has  ever  taken  either  the  franchises  or 
property  of  a  corporation  from  its  stockholders  and  creditors,  through 
the  exercise  of  the  reserved  power  of  amendment  and  repeal,  or  trans- 
ferred it  to  other  persons  or  corporations,  without  provision  made 
for  compensation.     *     *     * 

The  title  to  streets  in  New  York  is  vested  in  the  city,  in  trust  for 
the  people  of  the  state,  but  under  the  Constitution  and  statutes  it  had 
authority  to  convey  such  title  as  was  necessary  for  the  purpose  to  cor- 
porations desiring  to  acquire  the  same  for  use  as  a  street  railroad. 
The  city  had  authority  to  limit  the  estate  granted,  either  as  to  the  ex- 
tent of  its  use  or  the  time  of  its  enjoyment,  and  also  had  power  to 
grant  an  interest  in  public  streets  for  a  public  use  in  perpetuity  which 
should  be  irrevocable.  Yates  v.  Van  De  Bogert,  56  N.  Y.  526. 
*  *  *  When  we  consider  the  mode  required  by  the  statutes  and 
the  Constitution  to  be  pursued  in  disposing  of  this  franchise,  the  in- 
ference as  to  its  perpetuity  seems  to  be  irresistible ;  for  it  cannot  be 
supposed  that  either  the  legislature  or  the  framers  of  the  Constitution 
intended  to  offer  for  public  sale  property  the  title  to  which  was  de- 
feasible at  the  option  of  the  vendor,  or  that  such  property  could  be 
made  the  subject  of  successive  sales  to  different  vendees  as  often  as 
popular  caprice  might  require  it  to  be  done.  Neither  can  it  be  sup- 
posed that  they  contemplated  the  resumption  of  property  which  they 
had  expressly  authorized  their  grantee  to  mortgage  and  otherwise  dis- 
pose of,  to  the  destruction  of  interests  created  therein  by  their  con- 
sent. We  are  therefore  of  the  opinion  that  the  Broadway  Surface 
Railroad  Company  took  an  estate  in  perpetuity  in  Broadway,  through 
its  grant  from  the  city,  under  the  authority  of  the  Constitution  and  the 
act  of  the  legislature.  It  is  also  well  settled  by  authority  in  this  state 
that  such  a  right  constitutes  property,  within  the  usual  and  common 


Cll.  13)  LAWS    IMPAIRING    OBLIGATIONS    •  iii'J 

signification  of  that  word.    Railroad  Co.  v.  Kerr,  72  N.  Y.  330;  People 
v.  Sturtevant,  9  N.  Y.  263,  59  Am.  Dec.  53G. 

When  we  consider  the  generality  with  which  investments  have  been 
made  in  securities  based  upon  corporate  franchises  throughout  the 
whole  country,  the  numerous  laws  adopted  in  the  several  states  pro- 
viding for  their  security  and  enjoyment,  and  the  extent  of  lit 
conducted  in  the  various  courts,  state  and  federal,  in  which  thi 
been  upheld  and  enforced,  there  is  no  question  but  that,  in  the  view  of 
legislatures,  courts,  and  the  public  at  large,  certain  corporate  fran 
chises  have  been  uniformly  regarded  as  indestructible  by  legislative- 
authority,  and'  as  constituting  properly  in  the  highest  sense  of  the 
term.  It  is,  however,  earnestly  contended  for  the  state  that  such  a 
franchise  is  a  mere  license  or  privilege,  enjoyable  during  the  life  of 
the  grantee  only,  and  revocable  at  the  will  of  the  state.  We  believe 
this  proposition  to  be  not  only  repugnant  to  justice  and  reason,  but 
contrary  to  the  uniform  course  of  authority  in  this  country.  The 
laws  of  this  state  have  made  such  interests  taxable,  inheritable,  alien- 
able, subject  to  levy  and  sale  under  execution,  to  condemnation  under 
the  exercise  of  the  right  of  eminent  domain,  and  invested  them  will: 
the  attributes  of  property  generally.     *     *     * 

It  may  be  assumed  in  this  discussion  that  the  authority  of  the  legis- 
lature to  repeal  a  charter,  if  it  has  expressed  its  intention  to  reserve 
such  power  in  its  grant,  constitutes  a  valid  reservation.  Parties  to  a 
contract  may  lawfully  provide  for  its  termination  at  the  election  of 
either  party,  and  it  may  therefore  be  conceded  that  the  state  had  au- 
thority to  repeal  this  charter,  provided  no  rights  of  property  were 
thereby  invaded  or  destroyed.  In  speaking  of  the  franchises  of  a 
corporation,  we  shall  assume  that  none  are  assignable  except  by  the 
special  authority  of  the  legislature.  We  must  also  be  understood  as 
referring  only  to  such  franchises  as  arc  usually  authorized  to  be 
transferred  by  statute,  viz.,  those  requiring  for  their  enjoyment  the 
use  of  corporeal  property, — such  as  railroads,  canals,  telegraph,  gas, 
water,  bridge,  and  similar  companies, — and  not  to  those  which  are  in 
their  nature  purely  incorporeal  and  inalienable, — such  as  the  right  of 
corporate  life,  the  exercise  of  banking,  trading,  and  insurance  ; 
and  similar  privileges.  The  franchises  last  referred  to  being  personal 
in  character,  and  dependent  upon  the  continued  existence  of  the  donee 
for  their  lawful  exercise,  necessarily  expire  with  the  extinction  of 
ite  life,  unless  special  provision  is  otherwise  made.  People  v. 
Railroad  Co.,  89  N.  Y.  84;  Metz  v.  Railroad  Co..  58  N.  Y.  61.  17  Am 
Rep.  201.  *  *  *  It  is  also  to  be  observed  that  in  none  of  the  pro- 
visions for  repeal  in  this  state  is  there  anything  contained  which  pur- 
ports to  confer  power  to  take  away  or  destroy  property,  or  annul  con 
tracts ;  and  the  contention  that  the  property  of  a  dissolved  corporation 
is  forfeited,  rests  wholly  upon  what  is  claimed  to  be  the  neci 
consequence  of  the  extinction  of  corporate  life.  We  do  not  think 
li  w  i  Const.L.— 54 


S50  FUNDAMENTAL    RIGHTS  (Part  2 

the  dissolution  of  a  corporation  works  any  such  effect.  It  would  not 
naturally  seem  to  have  any  other  operation  upon  its  contracts  or 
property  rights  than  the  death  of  a  natural  person  upon  his.  Mumma 
v.  Potomac  Co.,  8  Pet.  285,  8  L.  Ed.  945.  The  power  to  repeal  the 
charter  of  a  corporation  cannot,  upon  any  legal  principle,  include  the 
power  to  repeal  what  is  in  its  nature  irrepealable,  or  to  undo  what  has 
been  lawfully  done,  under  power  lawfully  conferred.  Butler  v. 
Palmer,  1  Hill,  335.  The  authorities  seem  to  be  uniform,  to  the  effect 
that  a  reservation  of  the  right  to  repeal  enables  a  legislature  to  effect 
a  destruction  of  the  corporate  life  and  disable  it  from  continuing  its 
corporate  business,  (People  v.  Railroad  Co.,  70  N.  Y.  569;  Philips  v. 
Wickham,  1  Paige.  590;)  and  a  reservation  of  the  right  to  alter  and 
amend,  confers  power  to  pass  all  needful  laws  for  the  regulation  and 
control  of  the  domestic  affairs  of  a  corporation,  freed  from  the  re- 
strictions imposed  by  the  federal  Constitution  upon  legislation  im- 
pairing the  obligation  of  contracts.  Munn  v.  Illinois,  94  U.  S.  123,  24 
L.  Ed.  77. 

We  think  no  well-considered  case  has  gone  further  than  this,  while, 
in  many  cases,  such  power  has  been  expressly  held  to  be  limited  to  the 
effect  stated.  *  *  *  [Here  follows  a  discussion  of  Fletcher  v. 
Peck,  6  Cranch,  87,  3  L.  Ed.  162 ;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518,  4  L.  Ed.  629;  and  Sinking  Fund  Cases,  99  U.  S.  700, 
25  L.  Ed.  496.  In  regard  to  the  last  case — one  in  which  Congress 
under  its  reserved  power  had  required  a  federal  railroad  corpora- 
tion to  maintain  a  sinking  fund  in  order  to  secure  the  future  payment 
of  its  debts  to  the  United  States — the  court  continues:]  The  judges 
dissenting  in  that  case  contended  that  the  reserved  power  could  not 
be  construed  as  authorizing  the  alteration,  violation,  or  nullification 
of  any  of  the  material  provisions  of  the  grant,  but  should  be  held  to 
mean  simply  a  reservation  of  the  power  to  legislate,  freed  from  the 
restrictions  imposed  by  the  constitutional  provisions  against  legisla- 
tion impairing  the  obligations  of  contracts.  Mr.  Justice  Bradley  said: 
"The  reserved  power  in  question  is  simply  that  of  legislation,  to  al- 
ter, amend,  or  repeal  a  charter.  This  is  very  different  from  the  power 
to  violate  or  to  alter  the  terms  of  a  contract  at  will.  A  reservation 
of  power  to  violate  a  contract,  or  alter  it,  or  impair  its  obligation, 
would  be  repugnant  to  the  contract  itself,  and  void.  A  proviso  repug- 
nant to  the  granting  part  of  a  deed,  or  to  the  enacting  part  of  a  stat- 
ute, is  void.  Interpreted  as  a  reservation  of  the  right  to  legislate, 
the  reserved  power  is  sustainable  on  sound  principles ;  but,  interpreted 
as  the  reservation  of  the  right  to  violate  an  executed  contract,  it  is 
not  sustainable."  This  dissent  proceeded  upon  the  ground  that  the 
acts  of  congress  under  consideration  changed  some  of  the  essential 
features  of  the  contract,  and  were,  therefore,  void,  as  being  obnoxious 
to  the  provisions  of  the  Constitution  for  the  protection  of  lives,  liberty, 
and  property.  The  majority  of  the  court  held,  however,  that  such  acts 
were  simply  an  exercise  of  the  power  of  congress  to  regulate  the  in- 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACT!  6ol 

ternal  administration  of  the  affairs  of  a  corporation,  which,  to  a  cer- 
tain extent,  it  was  unanimously  agreed  that  it  possessed.  There  wa- 
no  dispute  or  disagreement  as  to  the  correctness  of  the  rule  stated, 
that  the  power  of  amendment  and  repeal  was  a  restricted  power,  lim- 
ited by  the  provisions  of  the  Constitution.  An  interpretation  confer- 
ring the  power  of  violating  a  contract  at  will  upon  one  of  its  parties, 
under  a  clause  authorizing  its  amendment  or  repeal,  would  seem  v> 
be  inconsistent  with  any  reasonable  notion  of  the  nature  of  such  an 
instrument,  and  beyond  the  power  of  parties  lawfully  to  create.  If  it 
is  possible  to  conceive  the  idea  of  a  repealable  grant,  certainly  such 
a  grant,  accompanied  with  power  to  convey  or  pledge  the  interest 
granted,  must,  on  the  execution  of  the  power,  necessarily  preclude  a 
resumption  by  the  grantor  of  the  subject  of  the  grant,  or  any  right  of 
property  acquired  under  it.  An  express  reservation  by  the  legislature 
of  power  to  take  away  or  destroy  property  lawfully  acquired  or  created 
under  authority  conferred  by  a  charter  would  necessarily  violate  the 
fundamental  law,  and  be  void,  and  it  is  equally  clear  that  any  legisla- 
tion which  authorizes  such  a  result  to  be  accomplished  indirectly 
would  be  equally  ineffectual  and  void.     *     *     * 

We  are  therefore  of  the  opinion  that  the  Broadway  Surface  Com- 
pany took  an  indefeasible  title  in  the  land,  necessary  to  enable  it  to 
construct  and  mafntain  a  street  railroad  in  Broadway,  and  to  run 
cars  thereon  for  the  transportation  of  freight  and  passengers  which 
survived  its  dissolution.     *     *     * 

[Other  parts  of  the  statute  sustained  below  were  also  held  invali'I. 
and  as  to  these  the  judgment  was  reversed.  Andrews  and  Ear?..  JJ., 
concurred  in  the  result  upon  grounds  consistent  with  those  above 
given.     Peckham  and  Gray,  JJ.,  did  not  sit.]  ' 

i  See  Vicksburg  v.  Waterworks  Co.,  202  V.  S.  4T,."..  465.  26  Sup.  Ct.  I 
L.  r.d.  1102,  u  Ann.  Cms.  253  is  to  the  alienability  of  such  frai 

nud  their  survival  of  the  original  grantee,  stv  •      .      L.oro  v.  Cum! 

Teleph.  Co.,  ante,  p.  841,  note;  Detroit  v.  Detroit,  etc.  By.,  184  I      - 
395,  22  Sup.  Ct  410,  46  L.  Ed.  59J  (1902). 

As  to  what  changes  may  constitutionally  he  made  under  the  reservation  of 
a   legislative  power  to  alter  or  amend  corporate  charter-. 
Cases,  99  U.  S.  700.  28  L.  Ed.  490  (1878);   St  Louis,  etc.,  By.  v.  Paul.   11 
4(H.  19  Sup.  Ct.  418,  43  L.  Ed.  746  (1899);    Looker  v.  Afaynard,  179  r.  s.  46, 
L'l   Sup.   Ct  21,  45  L.   Ed.  79  ll9tni  liege  v.   Kentucky,  I'll    (".  S.  4.".. 

29  sup.  Ct  33,  53  L.  Ed.  81  (190S) ;    Any.  Gen.   v.   K.   K.   Cos.,  35  Wis.   425 
(1874) ;    I>o\v  v.  Northern  It  R.,  67  N.  II.  1,  3G  Atl.  510  (1SS7);   Ohio  ex  rel.  v. 
Nell.   52   OMo   St.   375,  40  N.   E.   7L'0   (1895).      In   Looker   v.   Maynar.l. 
Clay,  J.,  said  (.179   I'.   S.  52,  L'l    Sup.   Ct  23,  45  L.  Ed.  79.  I 

i  such  a  provision,  whether  contained  iu  an  original  act  of  In 
ration,  or  In  a  Constitution  or  general  law  subject  to  which  a  charter  Is  ac- 
cepted, is,  at  the  lea  ve  to  the  legislature  the  power  to  make  any 
alteration  or  amendment  of  a  charter  subject  to  it,  which  will  not  defeat  or 
substantially  impair  the  object  of  the  grant  or  any  right  vested  under  the 
grant  and  which  the  legislature  may  deem  necessary  to  carry  Into  effect  the 
purpose  of  the  grant  or  to  protect  the  rig  ts  of  the  public  or  of  the  o 
tion.  its  stockholders  or  creditors,  or  to  promote  the  due  administration  of  its 
affairs." 

lor  the  effect  of  B  reservation  of  a  right  to  "make  regulations  proper  for  the 
conduct''  of  a  steam  railroad  which  Is  granted  a  franchise  to  use  city  - 


S52  FUNDAMENTAL    RIGHTS  (Part    2 

AMERICAN  SMELTING  &  REFINING  CO.  v.  COLORADO  ex 
rel.  LINDSLEY. 

(Supreme  Court   of   United   States,   1907.     204   U.    S.    103,  27   Sup.   Ct.   198, 
51  L.  Ed.  393,  9  Ann.  Cas.  978.) 

[Error  to  Colorado  Supreme  Court.  The  defendant  company  was 
incorporated  in  New  Jersey  in  1899,  and  in  that  year  it  was  admitted 
to  do  business  iii  Colorado  upon  complying  with  a  statute  of  1897  pro- 
viding that  foreign  corporations  must  file  in  the  office  of  the  secretary 
of  state  copies  of  their  charters  or  certificates  of  incorporation,  and 
at  the  same  time  pay  a  fee  of  15  cents  upon  each  $1,000  of  capital 
stock  exceeding  $50,000,  before  they  could  do  business  in  the  state; 
"and  such  corporations  shall  be  subjected  to  all  the  liabilities,  restric- 
tions, and  duties  which  are  or  may  be  imposed  upon  corporations  of 
like  character  organized  under  the  general  laws  of  this  state,  and  shall 
have  no  other  or  greater  powers."  An  act  of  1901  required  foreign 
corporations  to  pay  $5  for  an  official  certificate  of  payment  of  the  above 
fee.  The  company  paid  a  fee  upon  $65,000,000  of  capital  stock  in 
1899,  and  in  1901  paid  an  additional  fee  for  increasing  it  to-$100,000,- 
000.  It  invested  more  than  $5,000,000  in  a  plant  in  the  state.  In  1902 
a  state  law  required  an  annual  license  tax  of  2  cents  on  each  $1,000  of 
capital  stock  from  domestic  corporations,  and  4  cents  on  each  $1,000 
from  every  foreign  corporation  "as  a  condition  precedent  to  its  right 
to  do  any  business"  in  the  state.  The  company  refused  to  pay,  and  the 
state  sued  to  forfeit  its  right  to  remain  in  the  state.  Judgment  against 
the  company  was  affirmed  by  the  state  Supreme  Court,  and  this  writ 
of  error  was  taken.     Other  facts  appear  in  the  opinion.] 

Mr.  Justice  Peckham.  *  *  *  The  result  of  these  statutes  was 
that  the  foreign  corporation,  upon  filing  the  proper  papers  and  paying 
the  statutory  fees  and  obtaining  the  certificate  to  that  effect  from  the 
secretary  of  state,  obtained  the  right  to  enter  and  do  business  in  Col- 
orado. The  act  of  1901  did  not  increase  the  amount  of  the  exaction 
for  entering  and  doing  business  in  the  state,  but  simply  provided  for 
a  certificate,  acknowledging  payment,  from  the  secretary,  and  it  im- 
posed the  payment  of  a  small  fee  for  such  certificate.  The  right  ob- 
tained was  a  right  to  enter  the  state  and  do  business  therein  as  a  cor- 
poration. It  was  also  subject  by  statute  to  the  liabilities,  restrictions, 
and  duties  which  were  or  might  thereafter  be  imposed  upon  domestic 

see  So.  Pac.  Co.  v.  Portland,  227  U.  S.  559,  33  Sup.  Ct.  SOS,  57  L.  Ed.  

(1913). 

As  to  the  amendment  of  corporate  charters  by  implication  from  general  reg- 
ulative legislation,  see  N.  T.,  etc.,  Ry.  v.  Williams,  ante,  p.  531,  and  notes. 

If  a  corporate  grant  is  the  consideration  for  an  executory  continuing  con- 
tract, the  state  cannot  repeal  its  obligation  and  leave  that  of  the  corporation  in 
force.  Louisville  Water  Co.  v.  Clark,  143  U.  S.  1,  12  Sup.  Ct.  346,  36  L.  Ed. 
55  (1892) ;  Duluth,  etc.,  R.  R.  v.  St.  Louis  County,  179  U.  S.  302,  21  Sup.  Ct.  124, 
45  L.  Ed.  201  (1900)  (for  reasons  given  in  Stearns  v.  Minnesota,  179  U.  S. 
223,  25S-2C2,  21  Sup.   Ct.  73,  45  L.  Ed.  1G2). 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS  853 

corporations  of  like  character.     Domestic  corporations  at  that  time 
had  the  right  to  a  corporate  existence  of  twenty  years. 

These  provisions  of  law,  existing  when  the  corporation  applied  for 
leave  to  enter  the  state,  made  the  payment  required,  and  received 
its  permit,  amounted  to  a  contract  that  the  foreign  corporation  so  per- 
mitted  to  come  in  the  state  and  do  business  therein,  while  subjected  to 
all,  should  not  be  subjected  to  any  greater,  liabilities,  restrictions,  or 
duties  than  then  were  or  thereafter  might  be  imposed  upon  domestic 
corporations  of  like  character. 

A  provision  in  a  statute  of  this  nature  subjecting  a  foreign  corpo- 
ration to  all  the  liabilities,  etc.,  of  a  domestic  one  of  like  character 
must  mean  that  it  shall  not  be  subjected  to  any  greater  liabilities  than 
are  imposed  upon  such  domestic  corporation.  The  power  to  impose 
different  liabilities  was  with  the  state  at  the  outset.  It  could  make 
them  greater  or  less  than  in  case  of  a  domestic  corporation,  or  it  could 
make  them  the  same.  Having  the  general  power  to  do  as  it  pleased, 
when  it  enacted  that  the  foreign  corporation,  upon  coming  in  the  state. 
should  be  subjected  to  all  the  liabilities  of  domestic  corporations,  it 
amounted  to  the  same  thing  as  if  the  statute  had  said  the  foreign  cor- 
porations should  be  subjected  to  the  same  liabilities.  In  other  words 
the  liabilities,  restrictions,  and  duties  imposed  upon  domestic  corpo- 
rations constitute  the  measure  and  limit  of  the  liabiiities,  restrii 
and  duties  which  might  thereafter  be  imposed  upon  the  corporation 
thus  admitted  to  do  business  in  the  state.  It  was  not  a  mere  license  to 
come  in  the  state  and  do  business  therein  upon  payment  of  a  sum 
named,  liable  to  be  revoked  or  the  sum  increased  at  the  pleasure  of 
the  state,  without  further  limitation.  It  was  a  clear  contract  that  the 
liabilities,  etc.,  should  be  the  same  as  the  domestic  corporation,  and  the 
same  treatment  in  that  regard  should  be  measured  out  to  both.  If  it 
were  desired  to  increase  the  liabilities  of  the  foreign,  it  could  only  be 
done  by  increasing  those  of  the  domestic,  corporation  at  the  same 
time  and  to  the  same  extent. 

Such  being  the  contract,  how  long  was  it  to  last?  Only  until  the 
state  chose  to  alter  it?  Or  was  it  to  last  for  some  definite  time,  capable 
of  being  ascertained  from  the  terms  of  the  statutes  as  they  then  ex- 
isted? It  seems  to  us  that  the  only  limitation  imposed  is  the  term 
for  which  the  corporation  would  have  the  right  to  continue  in  the  state 
as  a  corporation.  One  of  the  restrictions  as  to  domestic  corporations  is 
that  which  limits  their  corporate  life  to  twenty  years,  unless  extended 
as  provided  by  law.  The  same  restriction  applies  to  the  foreign  cor- 
poration. Iron  Silver  Min.  Co.  v.  Cowie,  31  Colo.  450,  72  Pac.  1067. 
Counsel  for  the  state  concedes  that  the  was  admit- 

a  period  of  twenty  years,  but  subjei  wer  of  the  state  to  tax. 

During  that  time,   therefore,  the  contract  lasts.1     This  is  the  only 

i  "Undoubtedly,  if  the  corporation  violated  the  laws  of  the  state  pi 
applicable  to  it,  or  If  otherwise  it  gave  just  cause  tor  its  expulsion.  It  could 


S54  FUNDAMENTAL    EIGHTS  (Part  2 

legitimate,  and  we  think  it  is  the  necessary,  implication  arising  from 
the  statute. 

This  is  not  an  exemption  from  taxation,  it  is  simply  a  limita- 
tion of  the  power  to  tax  beyond  the  rate  of  taxation  imposed  upon 
a  domestic  corporation.  Instead  of  such  a  limitation  the  act  of  1902, 
already  referred  to,  imposes  a  tax  or  fee  upon  or  exacts  from  the 
foreign  corporation  double  the  amount  which  is  imposed  upon  or  ex- 
acted from  the  domestic  one.  The  latter  is  granted  the  right  to  con- 
tinue to  do  business  upon  the  annual  payment  of  2  cents  upon  each 
$1,000  of  its  capital  stock,  while  the  former  must  pay  4  cents  for  the 
same  right.  This  cannot  be  done  while  the  right  to  remain  exists.  It 
is  a  violation  of  the  obligation  of  an  existing  valid  contract.  Home  of 
the  Friendless  v.  Rouse,  8  Wall.  430,  19  L.  Ed.  495. 

Nor  is  this  a  case  where  the  power  given  by  the  state  Constitution  to 
the  general  assembly  to  alter,  amend,  or  annul  a  charter  is  applicable. 
The  act  does  not  alter  the  charter  or  annul  or  amend  it.  It  simply 
increases  the  taxation  which,  up  to  the  time  of  its  enactment,  had  been 
imposed  on  all  foreign  corporations  doing  business  in  the  state. 

A  discussion  as  to  the  name  or  nature  of  the  tax  imposed  by  the  act 
of  1902,  or  the  former  acts,  is  wholly  unimportant  with  reference  to 
the  view  we  take  of  this  case.     *     *     * 

Whatever  be  the  name  or  nature  of  the  tax,  it  must  be  measured  in 
amount  by  the  same  rate  as  is  provided  for  the  domestic  institution, 
and,  if  the  latter  is  not  taxed  in  that  way,  neither  can  the  state  thus 
tax  the  foreign  corporation.     *     *     * 

Judgment  reversed.2 

[Fuller,  C.  J.,  and  Harlan,  Holmes,  and  Moody,  JJ.,  dissented.] 


MANIGAULT  v.  SPRINGS. 

(Supreme   Court   of   United   States,   1905.     199    U.    S.   473,   26  Sup.   Ct   127, 
50  L.  Ed.   274.) 

[Appeal  from  United  States  Circuit  Court  for  South  Carolina. 
Manigault,  Springs,  and  others  were  adjoining  riparian  owners  on  the 
Santee  river  at  the  mouth  of  Kinloch  creek.  Springs  and  others  built 
a  dam  across  the  creek,  which  interfered  with  Manigault's  passage 
up  the  creek  and  his  irrigation.  In  1S9S  a  contract  was  made  between 
the  parties  by  which  the  obstructions  were  to  be  removed  to  give  a 
clear  passage  up  the  creek,  and  the  removal  was  effected.  In  1903 
the  legislature  of   South  Carolina  authorized    Springs   to  erect  and 

uot  insist  upon  such  a  contract  as  a  defense." — Peckham,  J.,  204  U.  S.  at  p.  Ill, 
27  Sup.  Ct.  200,  51  L.  Ed.  393,  9  Ann.  Cas.  978,  in  the  principal  case. 

2  Compare  N.  T.,  etc.,  R.  R.  v.  Pa.,  153  D.  S.  62S,  14  Sup.  Ct.  952,  38  L.  Ed. 
846  (1S94),  and  Powers  v.  Det,  etc.,  Ey.,  201  U.  S.  543,  26  Sup.  Ct  556,  50  L. 
YJd.  860  (1906),  lioth,  however,  under  irrepealable  charters. 


Cll.  13)  LAWS    IMPAIKIXU    OBLIGATIONS    OF    CONTHACT8 

maintain  a  dam  across  the  creek  in  order  to  drain  the  low  lands  on  the 
Santee  river  and  enhance  their  values.  Manigault  applied  for  an  in- 
junction against  this  in  the  above-named  court.  A  demurrer  to  his 
bill  was  sustained  and  this  appeal  taken.  Another  portion  of  the  case 
appears  ante,  p.  720.] 

Mr.  Justice  Brown.  *  *  *  The  main  argument  was  addressed 
to  the  question  whether  the  contract  of  August,  1S98,  providii 
the  removal  of  the  obstruction  on  December  31  and  the  free  ingress 
and  egress  through  the  creek  thereafter,  was  impaired  by  the  act  of 
the  general  assembly  of  1903,  permitting  the  defendants  by  name  to 
construct  and  maintain  the  dam  in  question. 

It  is  the  settled  law  of  this  court  that  the  interdiction  of  statutes  im- 
pairing the  obligation  of  contracts  does  not  prevent  the  state  from 
exercising  such  powers  as  are  vested  in  it  for  the  promotion  of  the 
common  weal,  or  are  necessary  for  the  general  good  of  the  public, 
though  contracts  previously  entered  into  between  individuals  may  there- 
by be  affected.  This  power,  which,  in  its  various  ramificati 
known  as  the  police  power,  is  an  exercise  of  the  sovereign  right  of 
the  government  to  protect  the  lives,  health,  morals,  comfort,  and  gen- 
eral welfare  of  the  people,  and  is  paramount  to  any  rights  under  con- 
tracts between  individuals.  Familiar  instances  of  this  are  where  par- 
ties enter  into  contracts,  perfectly  lawful  at  the  time,  to  sell  liquor,  op- 
erate a  brewery  or  distillery,  or  carry  on  a  lottery,  all  of  which  are 
subject  to  impairment  by  a  change  of  policy  on  the  part  of  the  state, 
prohibiting  the  establishment  or  continuance  of  such  traffic;  in  other 
words,  that  parties,  by  entering  into  contracts,  may  not  estop  the  legis- 
lature from  enacting  laws  intended  for  the  public  good.1 

While  this  power  is  subject  to  limitations  in  certain  cases, .there  is 
wide  discretion  on  the  part  of  the  legislature  in  determining  what  is 
and  what  is  not  necessary, — a  discretion  which  courts  ordinarily  will 
not  interfere  with.  The  leading  case  upon  this  point  is  that  of  Charles 
River  Bridge  v.  Warren  Bridge,  11  Pet.  420.  9  L.  Ed.  773,  in  which  a 
franchise  to  maintain  a  ferry  between  Cambridge  and  Boston,  under 
which  a  bridge  was  subsequently  erected,  was  held  to  be  subject  to  the 
power  of  the  legislature  to  establish  a  parallel  bridge  between  the  same 
points.  In  Stone  v.  Mississippi,  101  U.  S.  S14,  25  L.  Ed.  1079,  a  char- 
ter to  a  lottery  company  for  twenty-five  years  was  held  to  be  subject  to 
the  power  of  the  state  to  abolish  lotteries  altogether.  Sinn' 
nouncing  the  same  principle  are  Boyd  v.  Alabama,  94  U.  S.  v. 

i  "One  whose  rights,  such  ns  they  are,  are  subject  to  Btate  restriction,  can- 
BOt  remove  them  from  the  power  of  the  state  by  making  a  contract  about 
in,  in.  The  contract  will  carry  with  it  the  Infirmity  of  the  subject-matter." 
Holmes,  J.,  In  Hudson  Water  Co.  v.  McCarter,  209  0.  &  848,  867,  28  Sup 
Ct  529,  531,  532,  52  U  Ed.  828,  l  I  Am  <  is  560  i'-1  8).  Compare  I-  &  N,  R. 
K.  v.  Mottley,  219  U.  S.  187,  31  Sup.  Ct  266,  66  1..  Ed.  297,  84  l>.  K.  A  ,.\ 
s.i  671  (1911)  (prior  contract  tor  life  line  Invalidated  bj 

act  of  Congress  requiring  cash  fares);  Phlla  etc.  B.  R.  Co.  v.  Schubert,  224 
D.  S.  CO."..  82  Sup.  Ct  589,  66  l..  Ed.  911  (1912)  (prior  contracts  regulating  em- 
ployers' liability  abrogated  by  federal  Employers'  Liability 


856  FUNDAMENTAL    RIGHTS  (Part    2 

L.  Ed.  302;  Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  24  L.  Ed. 
9S9;  Butchers'  Union  S.  H.  &  L.  S.  L.  Co.  v.  Crescent  City,  L.  S.  L. 
&  S.  H.  Co.,  Ill  U.  S.  746,  28  h.  Ed.  535,  4  Sup.  Ct.  652;  New  Or- 
leans Gaslight  Co.  v.  Louisiana  Light  &  H.  P.  &  Mfg.  Co.,  115  U. 
S.  650,  672,  29  L,  Ed.  516,  524,  6  Sup.  Ct.  252;  Mugler  v.  Kansas,  123 
U.  S.  623,  665,  31  L.  Ed.  205,  211,  8  Sup.  Ct.  273;  Chicago,  B.  &  Q. 
R.  Co.  v.  Chicago,  166  U.  S.  226,  41  L.  Ed.  979,  17  Sup.  Ct.  581.2 

It  only  remains  to  consider  in  connection  with  this  branch  of  the 
case,  whether  the  act  of  the  general  assembly  of  1903  was  a  proper 
exercise  of  the  police  power  of  the  state.  Of  this  we  have  no  doubt. 
Although  it  was  not  an  exercise  of  that  power  in  its  ordinarily  accepted 
sense  of  protecting  the  health,  lives,  and  morals  of  the  community,  it  is 
defensible  in  its  broader  meaning  of  providing  for  the  general  welfare 
of  the  people  by  the  reclamation  of  swampy,  overflowed,  and  infertile 
lands,  and  the  erection  of  dams,  levees,  and  dikes  for  that  purpose. 
We  have  often  held  that  private  interests  are  subservient  to  that  right, 
except  where  property  is  taken  for  which  compensation  must  be  paid, 
and  must  give  way  to  any  general  scheme  for  the  reclamation  or  im- 
provement of  such  lands.     *     *     * 

Judgment  affirmed.8 

2  It  will  be  noticed  that  the  court  here  does  not  distinguish  two  very  dif- 
ferent classes  of  cases :  One,  where  contracts  that  may  affect  the  public  in- 
terest are  made  between  individuals  or  corporations ;  and  the  other,  where 
the  state  itself,  or  an  authorized  subdivision  of  it,  has  contracted  about  sueh 
a  matter.  Compare  the  results  in  Buffalo  East  Side  R.  R.  v.  Buffalo  St.  R. 
R.,  Ill  N.  ¥.  132,  19  N.  E.  63,  2  E.  R.  A.  284  (188S)  (contract  between  com- 
panies as  to  rates),  with  those  in  Detroit  v.  Det,  etc.,  Ry.,  184  U.  S.  368,  22 
Sup.  Ct.  410,  46  L.  Ed.  592  (1902)  (similar  contract  between  city  and  compa- 
ny). See,  also,  Bedford  v.  Eastern  Bldg.  Ass'n,  1S1  TJ.  S.  227,  21  Sup.  Ct. 
597,  45  .L.  Ed.  S34  (1901) ;  Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  187  U.  S. 
611,  615,  23  Sup.  Ct.  20C,  47  L.  Ed.  328  (1903).  The  doctrine  of  the  principal 
case  is  perhaps  the  true  ground  upon  which  to  rest  the  retroactive  abolition 
of  imprisonment  for  debt  and  the  exemption  from  execution  of  small  amounts 
of  personal  property.  See  Von  Hoffman  v.  Quincy,  ante,  p.  805;  Edwards  v. 
Kearzey,  96  TJ.  S.  595,  609.  24  L.  Ed.  793  (1S77)  by  Clifford,  J. 

s  Accord :  People  v.  Hawley.  3  Mich.  330,  342  (1S54)  (prohibition  law  af- 
fecting existing  contracts  for  sale  of  liquor) ;  Salem  v.  Maynes,  123  Mass. 
372  (1877)  (ordinance  forbidding  wooden  buildings  already  contracted  for  in 
8re  district) ;  Knoxville  Water  Co.  v.  Knoxville,  1S9  U.  S.  434,  43S,  23  Sup. 
Ct.  531,  47  L.  Ed.  SS7  (1903)  (regulation  of  water  rates  affecting  existing  con- 
tracts with  consumers);    Portland  Ry.  Co.  v.  Oregon  Rv.   Comm.,  229  U.   S. 

397,  412,  413,  33  Sup.  Ct.  820,  57  L.  Ed.  (1913)  (agreement  of  railroad  with 

predecessor  as  to  rates) ;  Lyons  v.  Bost.  &  L.  Ry.,  1S1  Mass.  551,  64  N.  E. 
404  (1902)  (forbidding  subrogation  of  insurer  to  fire  claim  against  railroad 
provided  for  in  existing  policies)  [but  see  Brit,  etc.,  Co.  v.  Colo.,  etc.,  Ry., 
52  Colo.  589,  125  Pac.  508.  11  E.  R.  A.  (N.  S.)  1202  (1912)  (contra)].  See, 
also,  the  cases  in  note  2,  above. 


Cll.  13)  LAWS    IMl'AllUNQ    OBLIGATIONS    OK    COM  11ACTS  857 

BEER  CO.  v.  MASSACHUSETTS  (1878)  97  U.  S.  25,  32  13,  24 
L.  Ed.  989,  Mr.  Justice  Bradley  (after  holding  that  the  state's  re- 
served power  to  regulate  and  repeal  corporate  charters  enabled  it  to 
enforce  a  prohibition  law  against  a  corporation  chartered  to  manufac- 
ture malt  liquor) : 

"But  there  is  another  question  in  the  case,  which,  as  it  seems  to  us, 
is  equally  decisive.  The  plaintiff  in  error  was  incorporated  'for  the 
purpose  of  manufacturing  malt  liquors  in  all  their  varieties,'  it  is  true; 
and  the  right  to  manufacture,  undoubtedly,  as  the  plaintiff's  counsel 
contends,  included  the  incidental  right  to  dispose  of  the  liquors  manu- 
factured. But  although  this  right  or  capacity  was  thus  granted  in  the 
most  unqualified  form,  it  cannot  be  construed  as  conferring  any  greater 
or  more  sacred  right  than  any  citizen  had  to  manufacture  malt  liq- 
quor ;  nor  as  exempting  the  corporation  from  any  control  therein  to 
which  a  citizen  would  be  subject,  if  the  interests  of  the  community 
should  require  it.  If  the  public  safety  or  the  public  morals  require 
the  discontinuance  of  any  manufacture  or  traffic,  the  hand  of  the  legis- 
lature cannot  be  stayed  from  providing  for  its  discontinuance,  by  any 
incidental  inconvenience  which  individuals  or  corporations  may  suf- 
fer. All  rights  are  held  subject  to  the  police  power  of  the  state. 
*     *     * 

"The  plaintiff  in  error  boldly  takes  the  ground  that,  being  a  cor- 
poration, it  has  a  right,  by  contract,  to  manufacture  and  sell  beer  for- 
ever, notwithstanding  and  in  spite  of  any  exigencies  which  may  occur 
in  the  morals  or  the  health  of  the  community,  requiring  such  man- 
ufacture to  cease.  We  do  not  so  understand  the  rights  of  the  plain- 
tiff. The  legislature  had  no  power  to  confer  any  such  rights.  What- 
ever differences  of  opinion  may  exist  as  to  the  extent  and  boundaries 
of  the  police  power,  and  however  difficult  it  may  be  to  render  a  satis- 
factory definition  of  it,  there  seems  to  be  no  doubt  that  it  does  extend 
to  the  protection  of  the  lives,  health,  and  property  of  the  citizens,  and 
to  the  preservation  of  good  order  and  the  public  morals.  The  legis- 
lature cannot,  by  any  contract,  divest  itself  of  the  power  to  provide 
for  these  objects.  They  belong  emphatically  to  that  class  of  objects 
which  demand  the  application  of  the  maxim.  Salus  populi  suprema  lex: 
and  they  are  to  be  attained  and  provided  for  by  such  appropriate 
means  as  the  legislative  discretion  may  devise.  That  discretion  can 
no  more  be  bargained  away  than  the  power  itself.  Boyd  v.  Alabama, 
94  U.  S.  645,  24  L.  Ed.  302."  »    *    *  .  • 

i  "We  are  not  prepared  to  admit  that  It   I  I   for  one  legislature, 

by  any  contract  with  an   Individual,   to  restrain  the  power  of  a   sub 
legislature  to  legislate  for  the  public  6  to  that  cud  to  suppress 

anv  and  all   practices  tending  to  corrupt  irals." — Field,  J.,  In 

Boyd  v.  Alabama,  94  D.  S.  0-iO,  660,  24  h.   Ed.  30-'  Ub77)   tsemble). 


858  FUNDAMENTAL    EIGHTS  (Part  2 

FERTILIZING  CO.  v.  HYDE  PARK. 
(Supreme  Court  of  United  States,  1878.     97  U.  S.  659,  24  L.  Ed.  1036.) 

[Error  to  the  Illinois  Supreme  Court.  By  special  act  the  North- 
western Fertilizing  Company  was  incorporated  in  1867  for  50  years, 
authorized  to  establish  works  to  manufacture  fertilizer  from  animal 
matter  in  Cook  county,  Illinois,  at  any  point  south  of  the  dividing 
line  between  townships  37  and  38.  The  company  established  works 
within  the  prescribed  limits,  where  the  country  was  swampy,  unin- 
habited, and  unpromising  for  future  improvement.  Dead  animal  mat- 
ter was  conveyed  there  daily  from  Chicago.  The  works  were  within 
the  limits  of  the  village  of  Hyde  Park,  which  grew  rapidly,  and  the 
business  of  the  company  became  an  intolerable  nuisance  to  those  in 
the  neighborhood.  The  village  by  ordinance  forbade  the  conduct 
therein  of  offensive  businesses  and  the  transportation  through  it  of 
offensive  matter.  In  1873  a  bill  was  filed  by  the  company  to  enjoin 
the  prosecution  under  this  ordinance  of  persons  transporting  such 
matter  for  the  company.  The  state  Supreme  Court,  on  appeal,  dis- 
missed the  bill,  and  this  writ  of  error  was  taken.  Other  facts  appear 
in  the  opinion.] 

Mr.  Justice  Swayne.  *  *  *  The  plaintiff  in  error  claims  that 
it  is  protected  by  its  charter  from  the  enforcement  against  it  of  the 
ordinances  complained  of,  and  that  its  charter  is  a  contract  within  the 
meaning  of  the  contract  clause  of  the  Constitution  of  the  United 
States.    Whether  this  is  so,  is  the  question  to  be  considered. 

The  rule  of  construction  in  this  class  of  cases  is  that  it  shall  be 
most  strongly  against  the  corporation.  Every  reasonable  doubt  is  to 
be  resolved  adversely.  Nothing  is  to  be  taken  as  conceded  but  what 
is  given  in  unmistakable  terms,  or  by  an  implication  equally  clear. 
The  affirmative  must  be  shown.  Silence  is  negation,  and  doubt  is 
fatal  to  the  claim.  This  doctrine  is  vital  to  the  public  welfare.  It  is 
axiomatic  in  the  jurisprudence  of  this  court.  It  may  be  well  to  cite 
a  few  cases  by  way  of  illustration.  In  "Rector,  etc.,  of  Christ  Church 
v.  County  of  Philadelphia,  24  How.  301,  16  L.  Ed.  602,  in  Tucker  v. 
Ferguson,  22  Wall.  527,  22  L.  Ed.  805,  and  in  West  Wisconsin  Rail- 
road Company  v.  Board  of  Supervisors,  93  U.  S.  595,  23  L.  Ed.  814, 
property  had  been  expressly  exempted  for  a  time  from  taxation. 
Taxes  were  imposed  contrary  to  the  terms  of  the  exemption  in  each 
case.  The  corporations  objected.  This  court  held  that  the  promised 
forbearance  was  only  a  bounty  or  gratuity,  and  that  there  was  no 
contract.  In  Providence  Bank  v.  Billings  &  Pittman,  4  Pet.  515,  7 
L.  Ed.  939,  the  bank  had  been  incorporated  with  the  powers  usually 
given  to  such  institutions.  The  charter  was  silent  as  to  taxation.  The 
legislature  imposed  taxes.  "The  power  to  tax  involves  the  power  to 
destroy."  McCulloch  v.  Maryland,  4  Wheat.  316,  4  L.  Ed.  579.  The 
tank  resisted,  and  brought  the  case  here  for  final  determination.    This 


Ch.  13)  LAWS    IMPAIRING   OBLIGATIONS   OF   CONTRACTS 

court  held  that  there  was  no  immunity,  and  that  the  bank  was  liable 
for  the  taxes  as  an  individual  would  have  been.  There  is  the  same 
silence  in  the  charter  here  in  question  as  to  taxation  and  as  to  liability 
for  nuisances.  Can  exemption  be  claimed  as  to  one  more  than  the 
other?    Is  not  the  case  just  cited  conclusive  as  to  both? 

Continued  succession  is  given  to  corporations  to  prevent  embarrass- 
ment arising  from  the  death  of  their  members.  One  striking  differ- 
ence between  the  artificial  and  a  natural  person  is,  that  the  latter  can 
do  any  thing  not  forbidden  by  law,  while  the  former  can  do  only  what 
is  so  permitted.  Its  powers  and  immunities  depend  primarily  upon  the 
law  of  its  creation.  Beyond  that  it  is  subject,  like  individuals,  to  the 
will  of  the  law-making  power. 

If  the  intent  of  the  legislature  touching  the  point  under  considera- 
tion be  sought  in  the  charter  and  its  history,  it  will  be  found  to  be  in 
accordance  with  the  view  we  have  expressed  as  matter  of  law.  Three 
days  before  the  charter  of  the  plaintiff  in  error  became  a  law,  the 
legislature  declared  that  the  power  of  the  village  as  to  nuisances  should 
not  extend  to  those  engaged  in  the  business  to  which  the  charter  re- 
lates. The  subject  must  have  been  fully  present  to  the  legislative 
mind  when  the  company's  charter  was  passed.  If  it  were  intended 
the  exemption  should  be  inviolable,  why  was  it  not  put  in  the  com- 
pany's charter  as  well  as  in  that  of  the  village?  The  silence  of  the 
former,  under  the  circumstances,  is  a  pregnant  fact.  In  one  case  it 
was  doubtless  known  to  all  concerned  that- the  restriction  would  be 
irrepealable,  while  in  the  other,  that  it  could  be  revoked  at  any  time. 
In  the  revised  village  charter  of  1869,  the  exemption  was  limited  to 
two  years  from  the  passage  of  the  act.  This  was  equivalent  to  declara- 
tion that  after  the  lapse  of  the  two  years  the  full  power  of  the  village 
might  be  applied  to  the  extent  found  necessary.  Corporations  in  such 
cases  are  usually  prolific  of  promises,  and  the  legislature  was  willing 
to  await  the  event  for  the  time  named. 

That  a  nuisance  of  a  flagrant  character  existed,  as  found  by  the 
court  below,  is  not  controverted.  We  cannot  doubt  that  the  police 
power  of  the  state  was  applicable  and  adequate  to  give  an  effectual 
remedy.  That  power  belonged  to  the  states  when  the  federal  Con- 
stitution was  adopted.  They  did  not  surrender  it,  and  they  all  have  it 
now.  It  extends  to  the  entire  property  and  business  within  their  local 
jurisdiction.  Both  are  subject  to  it  in  all  proper  cases.  It  rests 
upon  the  fundamental  principle  that  every  one  shall  so  use  his  own 
as  not  to  wrong  and  injure  another.  To  regulate  and  abate  nuisances 
is  one  of  its  ordinary  functions.  The  adjudged  cases  showing  its  ex- 
ercise where  corporate  franchises  were  involved  are  numerous. 
*     *     * 

In  the  case  before  us  it  does  not  appear  that  the  factory  could  not 
he  removed  to  some  other  place  south  of  the  designated  line,  where  it 
could  be  operated,  and  where  offal  could  be  conveyed  to  it  from  the 
city  by  some  other  railroad,  both  without  rightful  objection.    The  com- 


860  FUNDAMENTAL    RIGHTS     '  (Part    2 

pany  had  the  choice  of  any  point  within  the  designated  limits.  In  that 
respect  there  is  no  restriction.  The  charter  was  a  sufficient  license 
until  revoked ;  but  we  cannot  regard  it  as  a  contract  guaranteeing,  in 
the  locality  originally  selected,  exemption  for  fifty  years  from  the 
exercise  of  the  police  power  of  the  state,  however  serious  the  nuisance 
might  become  in  the  future,  by  reason  of  the  growth  of  population 
around  it.  The  owners  had  no  such  exemption  before  they  were  in- 
corporated, and  we  think  the  charter  did  not  give  it  to  them.     *     *     * 

Decree  affirmed.1 

[Field,  J.,  did  not  sit  in  the  case;  Miller,  J.,  gave  a  concurring 
opinion,  solely  on  the  ground  the  contract  entitled  the  company  to 
no  specific  location  in  the  prescribed  territory ;  and  Strong,  J.,  gave  a 
dissenting  opinion.] 


STONE  v.  MISSISSIPPI. 
(Supreme  Court  of  United  States,  1879.    101  U.  S.  814,  25  L.  Ed.  1079.) 

[Error  to  the  Mississippi  Supreme  Court.  In  1867  the  state  legisla- 
ture chartered  a  corporation  empowered  for  25  years  to  conduct  a  lot- 
tery in  consideration  of  the  payment  to  the  state  of  $5,000,  an  annual 
sum  of  $1,000,  and  V2  Per  cent,  of  the  proceeds  of  its  sale  of  tickets 
In  1868  and  1870  a  new  Constitution  and  a  statute  forbade  all  lotteries 
in  the  state.  A  quo  warranto  proceeding  against  the  managers  of  the 
company  for  violating  these  later  acts  was  sustained  by  the  state  Su- 
preme Court,  and  this  writ  of  error  was  taken.] 

Mr.  Chief  Justice  Waite.  *  *  *  If  the  legislature  that  grant- 
ed this  charter  had  the  power  to  bind  the  people  of  the  state  and  all 
succeeding  legislatures  to  allow  the  corporation  to  continue  its  corpo- 
rate business  during  the  whole  term  of  its  authorized  existence,  there 
is  no  doubt  about  the  sufficiency  of  the  language  employed  to  effect 
that  object,  although  there  was  an  evident  purpose  to  conceal  the  vice 
of  the  transaction  by  the  phrases  that  were  used.  Whether  the  al- 
leged contract  exists,  therefore,  or  not,  depends  on  the  authority  of 
the  legislature  to  bind  the  state  and  the  people  of  the  state  in  that  way. 
*     *     * 

The  question  is  therefore  directly  presented,  whether,  in  view  of 
these  facts,  the  legislature  of  a  state  can,  by  the  charter  of  a  lottery 
company,  defeat  the  will  of  the  people,  authoritatively  expressed,  in  re- 
lation to  the  further  continuance  of  such  business  in  their  midst.     We 

1  Accord :  New  Orleans  Gas  Co.  v.  Drainage  Commission,  197  U.  S.  453, 
25  Sup.  Ct.  471,  49  L.  Ed.  831  (1905)  (company  with  exclusive  franchise  to  use 
streets  for  gas  compelled  to  move  pipes  to  accommodate  sewers) ;  Chic,  etc., 
Ry.  v.  Illinois,  200  U.  S.  561,  26  Sup.  Ct.  341,  50  L.  Ed.  596,  4  Ann.  Cas.  1175 
(1906)  (railway  compelled  to  move  bridge  and  culvert  to  accommodate  in- 
creased artificial  drainage  into  creels) ;  West  Chic.  R.  R.  v.  Illinois,  201  U.  S. 
506,  26  Sup.  Ct.  51S,  DO  L.  Ed.  845  (1906)  (street  railway  compelled  to  lower 
tunnel  under  navigable  river  on  account  of  increased  draft  of  vessels). 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS   01     CONTRACTS  8G1 

think  it  cannot.  No  legislature  can  bargain  away  the  public  health  or 
the  public  morals.  The  people  themselves  cannot  do  it,  much  less 
their  servants.  The  supervision  of  both  these  subjects  of  governmental 
power  is  continuing  in  its  nature,  and  tlicy  are  to  be  dealt  with  as  the 
special  exigencies  of  the  moment  may  require.  Government  is  organ- 
ized with  a  view  to  their  preservation,  and  cannot  divest  itself  of  the 
power  to  provide  for  them.  For  this  purpose  the  largest  legislative  dis- 
cretion is  allowed,  and  the  discretion  cannot  be  parted  with  any  more 
than  the  power  itself.  Beer  Company  v.  Massachusetts,  97  U.  S.  25. 
24  L.  Ed.  989. 

In  Trustees  of  Dartmouth  College  v.  Woodward,  4  Wheat.  518,  4 
L.  Ed.  629,  it  was  argued  that  the  contract  clause  of  the  Constitution, 
if  given  the  effect  contended  for  in  respect  to  corporate  franchises, 
"would  be  an  unprofitable  and  vexatious  interference  with  the  internal 
concerns  of  a  state,  would  unnecessarily  and  unwisely  embarrass  its 
legislation,  and  render  immutable  those  civil  institutions  which  are  es- 
tablished  for  the  purpose  of  internal  government,  and  which,  to  sub- 
serve those  purposes,  ought  to  vary  with  varying  circumstances"  (p. 
628);  but  Mr.  Chief  Justice  Marshall,  when  he  announced  the  opinion 
of  the  court,  was  careful  to  say  (p.  629j,  "that  the  framers  of  the 
Constitution  did  not  intend  to  restrain  states  in  the  regulation  of  their 
civil  institutions,  adopted  for  internal  government,  and  that  the  instru- 
ment they  have  given  us  is  not  to  be  so  construed."  The  present  case, 
we  think,  comes  within  this  limitation.  We  have  held,  not  however, 
without  strong  opposition  at  times,  that  this  clause  protected  a  corpo- 
ration in  its  charter  exemptions  from  taxation.  While  taxation  is  in 
general  necessary  for  the  support  of  government,  it  is  not  part  of  the 
government  itself.  Government  was  not  organized  for  the  purposes  of 
taxation,  but  taxation  may  be  necessary  for  the  purposes  of  govern- 
ment. As  such,  taxation  becomes  an  incident  to  the  exercise  of  the 
legitimate  functions  of  government,  but  nothing  more.  No  govern- 
ment dependent  on  taxation  for  support  can  bargain  away  its  whole 
power  of  taxation,  for  that  would  be  substantially  abdication.  All  that 
has  been  determined  thus  far  is,  that  for  a  consideration  it  may,  in  the 
exercise  of  a  reasonable  discretion,  and  for  the  public  good,  surrender 
a  part  of  its  powers  in  this  particular.1 

i  he  power  of  governing  is  a  trust  committed  by  the  people  to 
the  government,  no  part  of  which  can  be  granted  away.  The  people, 
in  their  sovereign  capacity,  have  established  their  agencies  for  the  pres- 
ervation of  the  public  health  and  the  public  morals,  and  the  protection 
of  public  and  private  rights.  These  several  agencies  can  govern  ac- 
cording to  their  discretion,  if  within  the  scope  of  their  general  author- 
ity, while  in  power:  but  they  cannot  give  away  nor  sell  the  discretion 
of  those  that  are  to  come  after  them,  in  respect  to  matters  the  govern- 

i  A  state  legislature  cannot  bind  itself  not  to  issue  more  bonds,  or  not  t" 
rurther  debt.     Board  of  Liquidation  v.  McComb,  02  I'.  S.  531,  535,  23 
]..  i;.l.  623  (18751  (semble). 


862  FUNDAMENTAL    RIGHTS  (Part  2 

merit  of  which,  from  the  very  nature  of  things,  must  "vary  with  vary- 
ing circumstances."  They  may  create  corporations,  and  give  them,  so 
to  speak,  a  limited  citizenship ;  but  as  citizens,  limited  in  their  privi- 
leges, or  otherwise,  these  creatures  of  the  government  creation  are 
subject  to  such  rules  and  regulations  as  may  from  time  to  time  be  or- 
dained and  established  for  the  preservation  of  health  and  morality. 

The  contracts  which  the  Constitution  protects  are  those  that  relate 
to  property  rights,  not  governmental.  It  is  not  always  easy  to  tell  on 
which  side  of  the  line  which  separates  governmental  from  property 
rights  a  particular  case  is  to  be  put ;  but  in  respect  to  lotteries  there 
can  be  no  difficulty.  They  are  not,  in  the  legal  acceptation  of  the 
term,  mala  in  se,  but,  as  we  have  just  seen,  may  properly  be  made  mala 
prohibita.  They  are  a  species  of  gambling,  and  wrong  in  their  influ- 
ences. They  disturb  the  checks  and  balances  of  a  well-ordered  com- 
munity. Society  built  on  such  a  foundation  would  almost  of  necessity 
bring  forth  a  population  of  speculators  and  gamblers,  living  on  the 
expectation  of  what,  "by  the  casting  of  lots,  or  by  lot,  chance,  or  other- 
wise," might  be  "awarded"  to  them  from  the  accumulations  of  others. 
Certainly  the  right  to  suppress  them  is  governmental,  to  be  exercised 
at  all  times  by  those  in  power,  at  their  discretion.  Any  one,  therefore, 
who  accepts  a  lottery  charter  does  so  with  the  implied  understanding 
that  the  people,  in  their  sovereign  capacity,  and  through  their  properly 
constituted  agencies,  may  resume  it  at  any  time  when  the  public  good 
shall  require,  whether  it  be  paid  for  or  not.  All  that  one  can  get  by 
such  a  charter  is  a  suspension  of  certain  governmental  rights  in  his 
favor,  subject  to  withdrawal  at  will.  He  has  in  legal  effect  nothing 
more  than  a  license  to  enjoy  the  privilege  on  the  terms  named  for  the 
specified  time,  unless  it  be  sooner  abrogated  by  the  sovereign  power  of 
the  state.  It  is  a  permit,  good  as  against  existing  laws,  but  subject  to 
future  legislative  and  constitutional  control  or  withdrawal. 

Judgment  affirmed.2 

2  Some  earlier  state  decisions  denied  that  lottery  contracts  similar  to  the 
one  in  the  principal  case  could  be  impaired  by  subsequent  legislation.  Kel- 
lum  v.  State,  66  Ind.  at  597  (1879) ;  Broadbent  v.  Tuskaloosa  Ass'n,  45  Ala. 
170,  172  (1871) ;   Gregory  v.  Trustees,  2  Mete.  (Ky.)  589,  598  (1859). 

It  is  generally  held  that  statutes  exempting  persons  from  jury  or  militia 
duty  after  a  certain  period  of  service  as  firemen  may  validly  be  repealed. 
State  v.  Cantwell,  142  N.  C.  604,  55  S.  E.  820  (1906),  annotated  in  8  L.  R.  A. 
(N.  S.)  49S-500,  9  Ann.  Cas.  141.  So,  also,  an  exemption  based  upon  prior 
militia  service.  Commonwealth  v.  Bird,  12  Mass.  442  (1815).  Contra :  Ex 
parte  Goodin,  67  Mo.  637  (1878)  (fireman). 

The  state  can  make  no  binding  agreement  not  to  exercise  its  power  of  emi- 
nent domain.     See  Long  Island  Water  Co.  v.  Brooklyn,  ante,  p.  663,  note  1. 


Ch.  13)  LAWS    UtPAIBINQ    OBLIGATIONS    OF    CONTRACTS  80S 


BUTCHERS'  UNION  SLAUGHTER-HOUSE,  ETC.,  CO.  v. 
CRESCENT  CITY,  ETC.,  SLAUGHTER-HOUSE  CO. 

(Supreme  Court  of  United  States,  1883.     ill  U.  S.  746,  4  Sup.  ft.  662, 
28   L    Ed 

[Appeal  from  United  States  Circuit  Court  for  the  Eastern  District 
of  Louisiana.  In  1869  the  Louisiana  legislature  granted  the  Crescent 
City  Company  exclusive  slaughter-house  privileges  at  New  Oilcans 
for  25  years,  under  a  statute  passed  to  promote  the  public  health  of 
the  city  and  sustained  by  the  federal  Supreme  Court  in  tl  :  Slaughter- 
House  Cases,  16  Wall.  36,  21  L.  Ed.  394.  In  1879  a  new  state  Con- 
stitution purported  to  repeal  the  monopoly  features  of  all  prior  state 
charters  except  those  of  railroad  companies,  and  in  1881  the  city  au- 
thorities of  New  Orleans,  under  legislative  authority,  opened  the 
slaughter-house  and  butchering  business  there  to  general  competition. 
The  Crescent  City  Company  sought  an  injunction  in  the  above-named 
court  against  the  Butchers'  Union  Company,  which  was  about  to 
enter  the  business  in  violation  of  the  former's  monopoly.  This  appeal 
was  taken  from  the  granting  of  the  injunction.] 

Mr.  Justice  MlLLER.  *  *  *  No  one  can  examine  the  provisions 
of  the  act  of  1869  with  the  knowledge  that  they  were  accepted  by  the 
Crescent  City  Company,  and  so  far  acted  on  that  a  very  large  amount 
of  money  was  expended  in  a  vast  slaughter-house,  and  an  equally 
extensive  stock-yard  and  landing-place,  and  hesitate  to  pronounce 
that  in  form  they  have  all  the  elements  of  a  contract  on  sufficient  con- 
sideration. It  admits  of  as  little  doubt  that  the  ordinance  of  the  city 
of  New  Orleans,  under  the  new  Constitution,  impaired  the  supposed 
obligation  imposed  by  those  provisions  on  the  state,  by  taking  away 
the  exclusive  right  of  the  company  granted  to  it  for  twenty-five  years, 
which  was  to  the  company  the  most  valuable  thing  supposed  to  be 
secured  to  it  by  the  statutory  contract.  We  do  not  think  it  nee 
to  spend  time  in  demonstrating  either  of  these  propositions.  We  do 
not  believe  they  will  be  controverted. 

The  appellant,  however,  insists  that,  so  far  as  the  act  of  1869  par- 
takes of  the  nature  of  an  irrepealable  contract,  the  legislature  ex 
its  authority,  and  it  had  no  power  to  tie  the  hands  of  the  legislature 
in  the  future  from  legislating  on  that  subject  without  bcint;  bound  by 
the  terms  of  the  statute  then  enacted.  This  proposition  presents  the 
real  point  in  the  case. 

Let  us  see  clearly  what  it  is.     It  does  not  deny  the  power  of  that 
legislature  to  create  a  corporation,  with  power  to  do  the  busii: 
landing  live-stock  and  providing  a  place  for  slaughtering  them  in  the 
city.     It  does  not  deny  the  power  to  locate  the  place  where  tin 
be  done  exclusively.     It  does  not  deny  even  the  power  to  give  an  ex- 
clusive right,  for  the  time  being,  to  particular  persons  or  to  a  CO 
tion  to  provide  this  stock-landing  and  to  establish  this  slaughter-house. 


864  FUNDAMENTAL    RIGHTS  (Part  2 

But  it  does  deny  the  power  of  that  legislature  to  continue  this  right 
so  that  no  future  legislature  nor  even  the  same  body  can  repeal  or 
modify  it,  or  grant  similar  privileges  to  others.  It  concedes  that  such 
a  law,  so  long  as  it  remains  on  the  statute-book  as  the  latest  expres- 
sion of  the  legislative  will,  is  a  valid  law,  and  must  be  obeyed,  which 
is  all  that  was  decided  by  this  court  in  the  Slaughter-House  Cases. 
But  it  asserts  the  right  of  the  legislature  to  repeal  such  a  statute,  or 
to  make  a  new  one  inconsistent  with  it,  whenever,  in  the  wisdom  of 
such  legislature,  it  is  for  the  good  of  the  public  it  should  be  done. 
Nor  does  this  propositi6n  contravene  the  established  principle  that 
the  legislature  of  a  state  may  make  contracts  on  many  subjects  which 
will  bind  it,  and  will  bind  succeeding  legislatures  for  the  time  the 
contract  has  to  run,  so  that  its  provisions  can  neither  be  repealed  nor 
its  obligation  impaired.  The  examples  are  numerous  where  this  has 
been  done  and  the  contract  upheld. 

The  denial  of  this  power,  in  the  present  instance,  rests  upon  the 
ground  that  the  power  of  the  legislature  intended  to  be  suspended  is 
one  so  indispensable  to  the  public  welfare  that  it  cannot  be  bargained 
away  by  contract.  It  is  that  well-known  but  undefined  power  called 
the  police  power.  We  have  not  found  a  better  definition  of  it  for 
our  present  purpose  than  the  extract  from  Kent's  Commentaries  in 
the  earlier  part  of  this  opinion.  "The  power  to  regulate  unwhole- 
some trades,  slaughter-houses,  operations  offensive  to  the  senses," 
there  mentioned,  points  unmistakably  to  the  powers  exercised  by  the 
act  of  1869,  and  the  ordinances  of  the  city  under  the  Constitution 
of  1879.  While  we  are  not  prepared  to  say  that  the  legislature  can 
make  valid  contracts  on  no  subject  embraced  in  the  largest  definition 
of  the  police  power,  we  think  that,  in  regard  to  two  subjects  so  em- 
braced, it  cannot,  by  any  contract,  limit  the  exercise  of  those  powers 
to  the  prejudice  of  the  general  welfare.  These  are  the  public  health 
and  public  morals.  The  preservation  of  these  is  so  necessary  to  the 
best  interests  of  social  organization  that  a  wise  policy  forbids  the  legis- 
lative body  to  divest  itself  of  the  power  to  enact  laws  for  the  preserva- 
tion of  health  and  the  repression  of  crime. 

It  cannot  be  permitted  that,  when  the  Constitution  of  a  state,  the 
fundamental  law  of  the  land,  has  imposed  upon  its  legislature  the 
duty  of  guarding,  by  suitable  laws,  the  health  of  its  citizens,  especially 
in  crowded  cities,  and  the  protection  of  their  person  and  property  by 
suppressing  and  preventing  crime,  that  the  power  which  enables  it  to 
perform  this  duty  can  be  sold,  bargained  away,  under  any  circum- 
stances, as  if  it  were  a  mere  privilege  which  the  legislator  could  dis- 
pose of  at  his  pleasure.  This  principle  has  been  asserted  and  repeated 
in  this  court  in  the  last  few  years  in  no  ambiguous  terms.  The  first 
time  it  seems  to  have  been  distinctly  and  clearly  presented,  was  in 
the  case  of  Boyd  v.  Alabama,  94  U.  S.  645,  24  L.  Ed.  302.  *  *  * 
[Here  the  court  considers  this  case  (quoting  the  dictum  printed  ante, 
p.  857,  note),  Beer  Co.  v.  Massachusetts,  ante,  p.  857,  Stone  v.  Mis- 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS  668 

sissippi,  ante,  p.   860.  and   Fertilizing  Co.   v.   Hyde   Turk,  ante,  p 
858.]     *    *    * 

Decree  reversed. 

[Fif.ld  and  BRADLEY,  JJ.,  gave  concurring  opinions.  Harlan  and 
Woods,  JJ.,  agreed  with  the  latter.  These  opinions  went  on  the 
ground  that  the  legislature,  under  the  fourteenth  amendment,  could 
not  grant  a  monopoly  of  a  common  employment,  where  the  monopoly 
feature  was  only  colorably  related  to  the  public  health.] 


NEW  ORLEANS  GAS  CO.  v.  LOUISIANA  LIGHT  CO. 

(Supreme  Court  of  United  States,  1885.     115  U.  B.  650,  »;  Sup.  i.t.  282, 
29  L.  Ed.   516.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Eastern  Dis- 
trict of  Louisiana.  In  1875  the  New  Orleans  Gas  Company  became 
the  owner  of  an  exclusive  legislative  grant  to  supply  gas  in  New  Or- 
leans by  pipes  in  the  street  for  50  years  from  that  date.  The  state 
Constitution  of  1879  purported  to  abolish  this  monopoly  provision, 
and  in  1881  the  Louisiana  Light  Company  was  organized  under  a 
general  law  and  authorized  by  the  city  of  New  Orleans  to  supply  gas 
through  street  pipes.  The  New  Orleans  Company  sought  to  enjoin 
this  in  the  above-named  court.  A  demurrer  to  the  bill  was  sustained 
on  the  ground  of  the  plaintiff's  not  being  properly  incorporated,  and 
this  appeal  was  taken.  The  Supreme  Court  held  that  the  plaintiff  was 
properly  incorporated  and  then  dealt  with  the  validity  of  the  plaintiff's 
alleged  exclusive  contract.] 

Mr.  Justice  Harlan.  *  *  *  The  manufacture  and  distribution 
of  illuminating  gas,  by  means  of  pipes  or  conduits  placed,  under  legis- 
lative authority,  in  the  streets  of  a  town  or  city,  is  a  business  of  a 
public  character.  Under  proper  management  the  business  contribute? 
very  materially  to  the  public  convenience,  while,  in  the  absence  of  ef- 
ficient supervision,  it  may  disturb  the  comfort  and  endanger  the  health 
and  property  of  the  community.  It  also  holds  important  relations  to 
the  public  through  the  facilities  furnished,  by  the  lighting  of  streets 
with  gas,  for  the  detection  and  prevention  of  crime.  *  *  *  For 
these  reasons,  and  the  necessity  of  uniform  regulations  for  the  manu- 
facture and  distribution  of  gas  for  use  by  the  community,  we  are  of 
opinion  that  the  supplying  of  it  to  the  city  of  New  Orleans,  and  to  its 
inhabitants,  by  the  means  designated  in  the  legislation  of  Louisiana, 
was  an  object  for  which  the  State  could  rightfully  make  pro 
*  *  *  Legislation  of  that  character  is  not  liable  to  the  ob 
that  it  is  a  mere  monopi  iting  citizens  from  engaging 

try  pursuit   or  business  open  as  of  common  right  to  all. 
terms  of  equality;   for  the  right  to  dig  up  the  streets  and  other  public 
Ham.  Const.  I,. — 55 


866  FUNDAMENTAL    RIGHTS  (Part  2 

ways  of  New  Orleans,  and  place  therein  pipes  and  mains  for  the  dis- 
tribution of  gas  for  public  and  private  use,  is  a  franchise,  the  privilege 
of  exercising  which  could  only  be  granted  by  the  state,  or  by  the  mu- 
nicipal government  of  that  city  acting  under  legislative  authority.  Dill. 
Mun.  Corp.  (3d  Ed.)  §  691 ;  State  v.  Cincinnati  Gas  Co.,  18  Ohio  St. 
262.  See,  also,  Boston  v.  Richardson,  13  Allen  (Mass.)  146.  *  *  * 
It  will  therefore  be  assumed,  in  the  further  consideration  of  this  case, 
that  the  charter  of  the  Crescent  City  Gas-Light  Company, — to  whose 
rights  and  franchises  the  present  plaintiff  has  succeeded, — so  far  as  it 
created  a  corporation  with  authority  to  manufacture  gas  and  to  dis- 
tribute the  same  by  means  of  pipes,  mains,  and  conduits,  laid  in  the 
streets  and  other  public  ways  of  New  Orleans,  constituted  *  *  * 
a  contract    *    *     *    within  the  provision  of  the  Constitution.     *    *    * 

But  it  is  earnestly  insisted  that,  since  the  supplying  of  New  Orleans 
and  its  inhabitants  with  gas  has  relation  to  the  public  comfort,  and, 
in  some  sense,  to  the  public  health  and  the  public  safety,  and,  for 
that  reason,  is  an  object  to  which  the  police  power  extends,,  it  was 
not  competent  for  one  legislature  to  limit  or  restrict  the  power  of  a 
subsequent  legislature,  in  respect  to  those  subjects.  It  is,  conse- 
quently, claimed  that  the  state  may  at  pleasure  recall  the  grant  of  ex- 
clusive privileges  to  the  plaintiff;  and  that  no  agreement  by  her, 
upon  whatever  consideration,  in  reference  to  a  matter  connected  in 
any  degree  with  the  public  comfort,  the  public  health,  or  the  public 
safety,  will  constitute  a  contract  the  obligation  of  which  is  protected 
against  impairment  by  the  national  Constitution.  And  this  position 
is  supposed  by  counsel  to  be  justified  by  recent  adjudications  of  this 
court  in  which  the  nature  and  scope  of  the  police  power  have  been 
considered  *  *  *  [Here  follow  references  to  the  Slaughter-House 
Cases,  16  Wall.  36,  62,  21  L.  Ed.  394,  Stone  v.  Mississippi,  101  U.  S. 
814,  818,  25  L.  Ed.  1079,  Gibbons  v.  Ogden,  9  Wheat.  1,  203,  6  L. 
Ed.  23,  and  Barbier  v.  Connolly,  113  U.  S.  27,  31,  5  Sup.  Ct.  357,  28 
L.  Ed.  923 — cases  suggesting  definitions  of  the  "police  power."]  Def- 
initions of  the  police  power  must,  however,  be  taken  subject  to  the 
condition  that  the  state  cannot,  in  its  exercise,  for  any  purpose  what- 
ever, encroach  upon  the  powers  of  the  general  government,  or  rights 
granted  or  secured  by  the  supreme  law  of  the  land.     *     *     * 

That  the  police  power,  according  to  its  largest  definition,  is  restricted 
in  its  exercise  by  the  national  Constitution,  is  further  shown  by  those 
cases  in  which  grants  of  exclusive  privileges  respecting  public  high- 
ways and  bridges  over  navigable  streams  have  been  sustained  as  con- 
tracts the  obligations  of  which  are  fully  protected  against  impairment 
by  state  enactments.  *  *  *  [Here  follow  references  to  Bridge 
Prop'rs  v.  Hoboken  Co.,  ante,  p.  829,  The  Binghamton  Bridge-.  3 
Wall.  51,  18  L.  Ed.  137,  and  other  cases.]  Numerous  other  cases 
could  be  cited  as  establishing  the  doctrine  that  the  state  may  by  con- 
tract restrict  the  exercise  of  some  of  its  most  important  powers.  We 
particularly  refer  to  those  in  which  it  is  held  that  an  exemption  from 


Cll.  13)  LAWS    IMPAIUINQ    0BLJGAT10N8    OF    CONTRACTS  fc'JT 

taxation,  for  a  valuable  consideration  at  the  time  advanced,  or  for 
services  to  be  thereafter  performed,  constitutes  a  contract  within  the 
meaning  of  the  Constitution.  Asylum  v.  New  Orleans,  105  U.  S.  368, 
26  L.  Ed.  1128;  Home  of  the  Friendless  v.  Rouse,  8  Wall.  430,  19 
L.  Ed.  495;  New  Jersey  v.  Wilson,  7  Cranch,  166,  3  L.  Ed.  303; 
Bank  of  Ohio  v.  Knoop,  16  How.  376,  14  L.  Ed.  977;  Gordon  v.  Ap- 
peal Tax  Court,  3  How.  133,  11  L.  Ed.  529;  Wilmington  R.  R.  v. 
Reid,  13  Wall.  266,  20  L.  Ed.  568;  Humphrey  v.  Pegues,  16  Wall. 
248.  249,  21  L.  Ed.  326;  Farrington  v.  Tennessee,  95  U.  S.  I 
L.  Ed.  558. 

If  the  state  can,  by  contract,  restrict  the  exercise  of  her  power  to 
construct  and  maintain  highways,  bridges,  and  ferries,  by  granting 
to  a  particular  corporation  the  exclusive  right  to  construct  and  op- 
erate a  railroad  within  certain  lines  and  between  given  points,  or  to 
maintain  a  bridge  or  operate  a  ferry  over  one  of  her  navigable  streams 
within  designated  limits;  if  she  may  restrict  the  exercise  of  the  power 
of  taxation,  by  granting  exemption  from  taxation  to  particular  in- 
dividuals and  corporations, — it  is  difficult  to  perceive  upon  what 
ground  we  can  deny  her  authority,  when  not  forbidden  by  her  own 
organic  law,  in  consideration  of  money  to  be  expended  and  important 
services  to  be  rendered  for  the  promotion  of  the  public  comfort,  the 
public  health,  or  the  public  safety,  to  grant  a  franchise,  to  be  exercised 
exclusively  by  those  who  thus  do  for  the  public  what  the  state  might 
undertake  to  perform  either  herself  or  by  subordinate  municipal 
agencies.  The  former  adjudications  of  this  court,  upon  which  counsel 
mainly  rely,  do  not  declare  any  different  doctrine,  or  justify  the  con- 
clusion for  which  the  defendant  contends.  *  *  *  [Here  follows 
an  examination  of  Beer  Co.  v.  Massachusetts,  ante,  p.  857,  Fertilizing 
Co.  v.  Hyde  Park,  ante,  p.  858,  Stone  v.  Mississippi,  supra,  p.  SoO, 
and  Butch.  L'n.  Co.  v.  Cres.  City  Co.,  ante,  p.  863.] 

The  principle  upon  which  [these]  decisions  *  *  *  rest  is  that 
Jslature  cannot  so  limit  the  discretion  of  its  successors  that  they 
may  not  enact  such  laws  as  are  necessary  to  protect  the  public  health 
or  the  public  morals.  That  principle,  it  may  be  observed,  was  an- 
nounced with  reference  to  particular  kinds  of  private  business  which, 
in  whatever  manner  conducted,  were  detrimental  to  the  public  health 
or  the  public  morals.  It  is  fairly  the  result  of  those  cases  that  stat- 
utory authority,  given  by  the  state,  to  corporations  or  individuals  to 
engage  in  a  particular  private  business  attended  by  such  results,  while 
it  protects  them  for  the  time  against  public  prosecution,  does  not  con- 
stitute a  contract  preventing  the  withdrawal  of  such  authority,  or  the 
granting  of  it  to  others. 

The  present  case  involves  no  such  considerations.  For.  as  we  have 
seen,  the  manufacture  of  gas,  and  its  distribution  for  public  and  pri- 
vate use  by  means  of  pipes  laid,  under  legislative  authority,  in  the 
streets  and  ways  of  a  city,  is  not  an  ordinary  business  in  which  every 
one  may  engage,  but  is  a  franchise  belonging  to  the  government,  to 


£>G8  fundamental  RIGHTS  (Part  2 

be  granted,  for  the  accomplishment  of  public  objects,  to  whomsoever, 
and  upon  what  terms,  it  pleases.  It  is  a  business  of  a  public  nature, 
and  meets  a  public  necessity  for  which  the  state  may  make  provision. 
It  is  one  which,  so  far  from  affecting  the  public  injuriously,  has  be- 
come one  of  the  most  important  agencies  of  civilization  for  the  pro- 
motion of  the  public  convenience  and  the  public  safety.  *  *  *  It 
is  not  our  province  to  declare  that  the  legislature  unwisely  exercised 
the  discretion  with  which  it  was  invested.  Nor  are  we  prepared  to 
hold  that  the  state  was  incapable — her  authority  in  the  premises  not 
being,  at  the  time,  limited  by  her  own  organic  law — of  providing  for 
supplying  gas  to  one  of  her  municipalities  and  its  inhabitants  by 
means  of  a  valid  contract  with  a  private  corporation  of  her  own 
creation.     *     *     * 

With  reference  to  the  contract  in  this  case,  it  may  be  said  that  it 
is  not,  in  any  legal  sense,  to  the  prejudice  of  the  public  health  or  the 
public  safety.  It  is  none  the  less  a  contract  because  the  manufacture 
and  distribution  of  gas,  when  not  subjected  to  proper  supervision, 
may  possibly  work  injury  to  the  public;  for  the  grant  of  exclusive 
privileges  to  the  plaintiff  does  not  restrict  the  power  of  the  state,  or 
of  the  municipal  government  of  New  Orleans  acting  under  authority 
for  that  purpose,  to  establish  and  enforce  regulations,  not  inconsistent 
with  the  essential  rights  granted  by  plaintiff's  charter,  necessary  for 
the  protection  of  the  public  against  injury,  whether  arising  from  the 
want  of  due  care  in  the  conduct  of  its  business,  or  from  an  improper 
use  of  the  streets  in  laying  gas-pipes,  or  from  the  failure  of  the  grantee 
to  furnish  gas  of  the  required  quality  and  amount.  The  constitutional 
prohibition  upon  state  laws  impairing  the  obligation  of  contracts  does 
not  restrict  the  power  of  the  state  to  protect  the  public  health,  the 
public  morals,  or  the  public  safety,  as  the  one  or  the  other  may  be 
involved  in  the  execution  of  such  contracts.  Rights  and  privileges 
arising  from  contracts  with  a  state  are  subject  to  regulations  for  the 
protection  of  the  public  health,  the  public  morals,  and  the  public 
safety,  in  the  same  sense,  and  to  the  same  extent,  as  are  all  contracts 
and  all  property,  whether  owned  by  natural  persons  or  corpora- 
tions.    *     *     * 

The  article  in  the  state  Constitution  of  1879  in  relation  to  monop- 
olies is  not,  in  any  legal  sense,  an  exercise  of  the  police  power  for  the 
preservation  of  the  public  health,  or  the  promotion  of  the  public 
safety;  for  the  exclusiveness  of  a  grant  has  no  relation  whatever  to 
the  public  health,  or  to  the  public  safety.  These  considerations  de- 
pend upon  the  nature  of  the  business  or  duty  to  which  the  grant  re- 
lates, and  not  at  all  upon  the  inquiry  whether  a  franchise  is  exercised 
by  one  rather  than  by  many.  The  monopoly  clause  only  evinces  a 
purpose  to  reverse  the  policy  previously  pursued  of  granting  to  pri- 
vate corporations  franchises  accompanied  by  exclusive  privileges,  as  a 
means  of  accomplishing  public  objects.  *  *  *  If,  in  the  judgment 
of  the  state,  the  public  interests  will  be  best  subserved  by  an  abandon- 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS   OF    CONTRACT!  809 

merit  of  the  policy  of  granting  exclusive  privileges  to  corporations, 
other  than  railroad  companies,  in  consideration  of  services  to  be  per- 
formed by  them  for  the  public,  the  way  is  open  for  the  accomplish- 
ment of  that  result  with  respect  to  corporations  whose  contracts  with 
the  state  are  unaffected  by  that  change  in  her  organic  law.  The 
rights  and  franchises  which  have  become  vested  upon  the  faith  of 
such  contracts  can  be  taken  by  the  public,  upon  just  compensation  to 
the  company,  under  the  state's  power  of  eminent  domain.  West 
River  Bridge  Co.  v.  Dix  [6  How.  507,  12  L.  Ed.  535]  ubi  supra; 
Richmond,  etc.,  R.  Co.,  v.  Louisa.  R.  Co.,  13  How.  71,  83,  14  L.  Ed. 
55;  Boston  Water-power  Co.  v.  Boston  &  W.  R.  Corp.,  23  Pick. 
(Mass.)  360,  393;  Boston  &  L.  R.  Corp.  v.  Salem  &  L.  R.  Co.,  2 
Gray  iMass.)  1,  35.  In  that  way  the  plighted  faith  of  the  public  will 
be  kepi  with  those  who  have  made  large  investments  upon  the  assur- 
ance by  the  state  that  the  contract  with  them  will  be  per- 
formed. *  *  * 
Decree  reversed.1 


TEXAS  &  N.  O.  R.  CO.  v.  MILLER  (1911)  221  U.  S.  408,  414,  415, 
31  Sup.  Ct.  534,  55  L.  Ed.  789.  The  defendant  railroad  company  was 
incorporated  by  a  Louisiana  statute  containing  a  provision  exempting 
che  company  from  liability  for  the  death  of  any  person  in  its  service, 
even  if  caused  by  its  negligence.  La.  Laws  1878,  No.  21,  §  17,  p.  267. 
A  later  Louisiana  statute  conferred  upon  certain  relatives  a  right  of 
action  for  the  death  of  a  person  negligently  caused  by  another.  La. 
Laws  1884,  No.  71,  p.  94.  Suit  was  brought  against  defendant  in  Tex- 
as, under  this  latter  statute,  for  negligently  causing  the  death  of  an  em- 
ploye in  Louisiana.  On  writ  of  error,  in  affirming  a  judgment  for 
plaintiff,  Mr.  Justice  Van  Deventer  said: 

"The  doctrine  that  a  corporate  charter  is  a  contract  which  the  Con- 
stitution of  the  United  States  protects  against  impairment  by  subse- 
quent state  legislation  is  ever  limited  in  the  area  of  its  operation  by  the 
equally  well-settled  principle  that  a  legislature  can  neither  bargain 
away  the  police  power  nor  in  any  wise  withdraw  from  its  sue 
the  power  to  take  appropriate  measures  to  guard  the  safety,  health, 
and  morals  of  all  who  may  be  within  their  jurisdiction.  Boston  Beer 
Co.  v.  Massachusetts,  97  U.  S.  25.  24  L.  Ed.  989;  Northwestern  Fer- 
tilizing Co.  v.  Hyde  Park,  97  U.  S.  659.  24  L.  Ed.  1036;  Stone  v.  Mis- 
sissippi, 101  U.  S.  814,  25  L.  Ed.  1079;  Douglas  v.  Kentucky,  168  U. 

»  Accord  :     See  enses  cited  in  note  to  Bridie  Prop'rs  v.  Hobokeo  Co..  ante. 

'     -    .        _:  . 
Ct.  50,  ".:;  L.   IV..  176  (1908),  it   was  said  that  by  contract  the  ^over-.: 
power  of  rate  regulation  might  lie  suspende  I  "tor  ■  definite  term,  not 
unreasonable  in  point  of  time."  polls  v.  Minn.  St.  By.,  215 

r.  s.  -117.  30  Sup.  Ct  ll\  54  T..  Ed.  259  (1910)  i upholding  a  50-year  contract 
for  a  5-ceut  street  railway  fare). 


870  FUNDAMENTAL    RIGHTS  (Part  2 

S.  488,  42  L.  Ed.  553,  18  Sup.  Ct.  199.  In  the  first  of  these  cases  it  was 
said: 

"  'Whatever  differences  of  opinion  may  exist  as  to  the  extent  and 
boundaries  of  the  police  power,  and  however  difficult  it  may  be  to 
render  a  satisfactory  definition  of  it,  there  seems  to  be  no  doubt  that  it 
does  extend  to  the  protection  of  the  lives,  health,  and  property  of  the 
citizens,  and  to  the  preservation  of  good  order  and  the  public  morals. 
The  legislature  cannot,  by  any  contract,  divest  itself  of  the  power  to 
provide  for  these  objects.  They  belong  emphatically  to  that  class  of 
objects  which  demand  the  application  of  the  maxim,  Salus  populi  su- 
prema  lex;  and  they  are  to  be  attained  and  provided  for  by  such  ap- 
propriate means  as  the  legislative  discretion  may  devise.  That  discre- 
tion can  no  more  be  bargained  away  than  the  power  itself.' 

"The  fact  that  the  provision  in  question  was  embodied  in  the  statute 
incorporating  the  Louisiana  company  does  not  suffice  to  show  that  it 
became  a  part  of  the  charter  contract,  for  obviously  nothing  became  a 
part  of  that  contract  that  was  not  within  the  contracting  power  of  the 
legislature.  Such  of  the  provisions  of  the  statute  as  were  within  that 
power  became  both  a  law  and  a  contract  and  were  within  the  protec- 
tion of  the  contract  clause  of  the  Constitution,  but  such  of  them  as 
were  not  within  that  power  became  a  law  only,  and  were  as  much  sub- 
ject to  amendment  or  repeal  as  if  they  had  been  embodied  in  a  sepa- 
rate enactment.  As  was  said  by  this  court  in  Stone  v.  Mississippi, 
supra:  'It  is  to  be  kept  in  mind  that  it  is  not  the  charter  which  is  pro- 
tected, but  only  any  contract  the  charter  rriay  contain.' 

"The  subject  to  which  the  provision  in  question  relates  is  the  civil 
liability  of  a  railroad  company  for  the  death  of  its  employes,  resulting 
from  its  negligence.  That  is  a  matter  of  public  concern,  and  not  of 
mere  private  right.  It  is  closely  connected  with  the  safety  of  the  em- 
ployes, and  undoubtedly  belongs  to  that  class  of  subjects  over  which 
the  legislature  possesses  a  regulatory  but  not  a  contracting  power. 
Manifestly,  therefore,  the  charter  contract  did  not  embrace  that  pro- 
vision, and  the  contract  clause  of  the  Constitution  did  not  prevent  its 
repeal."  * 

i  Accord :  Minneapolis  &  St.  L.  Ry.  v.  Emmons,  149  D.  S.  364,  367,  36S,  13 
Sup.  Ct.  S70,  37  L.  Ed.  769  (1S93)  (railroad  required  to  fence  track,  despite  as- 
sumed contract  to  contrary);  N.  Y.,  etc.,  R,  R.  v.  Bristol,  151  U.  S.  556,  567, 
14  Sup.  Ct.  437,  38  L.  Ed.  269  (1894)  (abolition  of  grade  crossings  compelled 
similarly) ;  C,  B.  &  Q.  R.  R.  v.  Nebraska,  170  U.  S.  57,  72,  IS  Sup.  Ct  513, 
019.  42  L.  Ed.  948  (1898)  (repair  of  viaduct  required  similarly),  Shiras,  J., 
saying:  "Usually,  where  a  contract,  not  contrary  to  public  policy,  bas  been 
entered  into  between  parties  competent  to  contract,  it  is  not  within  the  pow- 
er of  either  party  to  withdraw  from  its  terms,  without  the  consent  of  the  other ; 
and  the  obligation  of  such  a  contract  is  constitutionally  protected  from  hos- 
tile" legislation.  Where,  however,  the  respective  parties  are  not  private  per- 
sons, dealing  with  matters  and  things  in  which  the  public  has  no  concern,  but 
are  persons  or  corporations  whose  rights  and  powers  were  created  for  pub- 
lic purposes,  by  legislative  acts,  and  where  the  subject-matter  of  the  con- 
tract is  one  which  affects  the  safety  and  welfare  of  the  public,  other  princi- 
ples apply.  Contracts  of  the  latter  description  are  held  to  be  within  the 
supervising  power  and  control  of  the  legislature  when  exercised  to  protect 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTRACTS  671 


GRAND  TRUNK  WESTERN'  R.  CO.  v.  SOUTH  BEND. 

(Supreme  Court  of  United  States,  1913.    L'27  U.  S.  544,  33  .Sup.  Ct.  30:;,  J7  L. 
Ed.  .) 

[Error  to  the  Supreme  Court  of  Indiana.  In  1868  the  city  of  South 
Bend,  Indiana,  granted  to  plaintiff  company's  predecessor  the  right 
to  lay  a  double  steam  railroad  track  in  Division  street.  A  single  track 
was  built  in  1871,  and  in  1881  the  company  condemned  a  strip  18 
feet  broad  to  widen  said  street  for  a  double  track  which  was  then  laid 
for  half  the  permitted  distance.  In  1901,  when  the  company  was  pre- 
paring to  construct  the  remainder  of  said  double  track,  then  needed 
by  its  increasing  business,  the  city  repealed  its  former  grant  and  ob- 
structed the  company's  proceeding  thereunder.  The  company  filed 
a  bill  to  enjoin  such  interference,  alleging  that  the  location  of  its  freight 
and  passenger  stations  made  a  double  track  on  said  street  particularly 
necessary,  that  said  street  was  821/.  feet  wide,  that  there  was  ample 
room  both  for  the  tracks  and  for  general  travel,  and  that  the  use  of 
two  tracks  would  offer  less  obstruction  from  passing  trains  than  when 
all  travel  both  ways  had  to  go  over  one  track.  The  city's  demurrer 
was  sustained  by  the  state  courts.] 

Mr.  Justice  Lamar.  *  *  *  Undoubtedly  the  railroad  here  took 
no  vested  interest  in  the  maintenance  of  the  laws  or  regulations  in  force 
when  the  ordinance  was  passed  in  1868,  but  the  rights  acquired  were 
subject  to  the  power  of  the  municipality  to  pass  reasonable  regulations 
necessary  to  secure  the  public  safety.  Northern  P.  R.  Co.  v.  Minne- 
sota, 208  U.  S.  583,  52  L.  Ed.  630,  28  Sup.  Ct.  341.  And  while  the 
franchise  to  lay  and  use  a  double  track  was  a  contract  which  could 
not  be  impaired,  yet,  as  the  police  power  remained  efficient  and  opera- 
tive, the  municipality  had  ample  authority  to  make  regulations  neces- 
sitating changes  of  a  nature  which  could  not  have  been  compelled  if 
the  grant  had  been  from  it  as  a  private  proprietor.  The  city  could 
therefore  legislate  as  to  crossings,  grades,  character  of  rails,  rate  of 
speed,  giving  of  signals,  and  the  details  of  operating  track  and  train, 
regulating  the  use  of  the  franchise,  and  preserving  the  concurrent 
rights  of  the  public  and  the  company.  And,  as  in  the  viaduct  cases, 
it  might  require  these  tracks  to  be  lowered  or  elevated  (Chicago,  B. 
&  Q.  R.  Co.  v.  Nebraska,  170  U.  S.  57,  42  L.  Ed.  948,  18  Sup.  Ct. 
513);  or.  the  franchise,  and  not  the  particular  location,  being  the 
essence  of  the  contract,  the  city,  under  the  power  to  regulate,  might 
I  the  company  to  remove  the  tracks  from  the  center  to  the  side, 
or  from  the  side  to  the  center,  of  the  street.     New  Orleans  Gaslight 

the  public  safety,  health,  and  morals,  and  that  clause  of  the  federal  Con- 
stitution which  protects  contracts  from  legislative  anion  cannot  in  ev< 
essfully  invoked.     The  presumption  Is  that,  when  such  contra' 

entered  Into,  it  Is  with  the  knowledge  that  panics  cannot,  by  01  l 
nients  on  subjects  Involving  the  rights  of  the  public,  withdraw  such  - 
he  police  r  ure." 


872  FUNDAMENTAL    RIGHTS  (Part  2 

Co.  v.  Drainage  Commission,  197  U.  S.  453,  49  L.  Ed.  831,  25  Sup.  Ct. 
471;  Macon  Consol.  Street  R.  Co.  v.  Macon,  112  Ga.  783,  38  S.  E. 
60;  Atlantic  &  B.  R.  Co.  v.  Cordele,  128  Ga.  296,  57  S.  E.  493;  Snouf- 
fer  v.  Cedar  Rapids,  118  Iowa,  288  (5),  92  N.  W.  79. 

These,  however,  are  examples  of  the  persistence  of  the  power  to 
regulate,  and  do  not  sustain  the  validity  of  the  repealing  ordinance  of 
1901,  since  it  is  not  regulative  of  the  use,  but  destructive  of  the  fran- 
chise. In  every  case  like  this,  involving  an  inquiry  as  to  whether  a 
law  is  valid,  as  an  exertion  of  the  police  power,  or  void,  as  impairing 
the  obligation  of  a  contract,  the  determination  must  depend  on  the 
nature  of  the  contract  and  the  right  of  government  to  make  it.  The 
difference  between  the  two  classes  of  cases  is  that  which  results  from 
the  want  of  authority  to  barter  away  the  police  power,  whose  con- 
tinued existence  is  essential  to  the  well-being  of  society,  and  the  un- 
doubted right  of  government  to  contract  as  to  some  matters,  and  the 
want  of  power,  when  such  contract  is  made,  to  destroy  or  impair  its 
obligation.  New  Orleans  Gaslight  Co.  v.  Louisiana  Light  &  H.  P.  & 
Mfg.  Co.,  115  U.  S.  650,  29  L.  Ed.  516,  6  Sup.  Ct.  252. 

The  state,  with  its  plenary  control  over  the  streets,  had  this  gov- 
ernmental power  to  make  the  grant.  There  was  nothing  contrary  to 
public  policy  in  any  of  its  terms,  and  being  valid  and  innocuous,  the 
police  power  could  not  be  invoked  to  abrogate  it  as  a  whole  or  to  im- 
pair it  in  part.  Walla  Walla  v.  Walla  Walla  Water  Co.,  172  U.  S. 
17,  43  L.  Ed.  348,  19  Sup.  Ct.  77.  Tracks  laid  in  a  street,  under  leg- 
islative authority,  become  legalized,  and,  when  used  in  the  customary 
manner,  cannot  be  treated  as  unlawful,  either  in  maintenance  or  op- 
eration. As  said  by  this  court :  "A  railway  over  *  *  *  the  streets 
of  the  city  of  Washington  may  be  authorized  by  Congress,  and  if, 
when  used  with  reasonable  care,  it  produces  only  that  incidental  in- 
convenience which  unavoidably  follows  the  additional  occupation  of 
the  streets  by  its  cars,  with  the  noises  and  disturbances  necessarily 
attending  their  use,  no  one  can  complain  that  he  is  incommoded." 
Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  331,  27 
L.  Ed.  739,  744,  2  Sup.  Ct.  719.  The  inconvenience  consequent  upon 
the  running  of  a  railroad  through  a  city,  under  state  authority,  is  not 
a  nuisance  in  law,  but  is  insuperably  connected  with  the  exercise  of  the 
franchise  granted  by  the  state.  If  the  police  power  could  lay  hold  of 
such  inconveniences,  and  make  them  the  basis  of  the  right  to  repeal 
such  an  ordinance,  the  contract  could  be  abrogated  because  of  the  very 
growth  in  population  and  business  the  railroad  was  intended  to  secure. 

The  power  to  regulate  implies  the  existence,  and  not  the  destruction, 
of  the  thing  to  be  controlled.  And  while  the  city  retained  the  power 
to  regulate  the  streets  and  the  use  of  the  franchise,  it  could  neither 
destroy  the  public  use  nor  impair  the  private  contract,  which,  as  it 
contemplated  permanent,  and  not  temporary,  structures,  granted  a 
permanent,  and  not  a  revocable,  franchise.  Both  the  street  and  the 
railroad  were  arteries  of  commerce.     Both  were  highways  of  public 


Ch.  13)  LAWS    IMPAIRING    OBUGATIOiNS    OF    CONTKACTS  bl'J- 

utility,  and  both  were  laid  out  subject  to  the  authority  of  the  state, 
though  the  power  to  regulate  the  use  of  the  streets  has  been  delegated 
to  the  municipality.  So  that,  while  the  company  was  itself  authorized 
to  select  the  route  between  the  terminal  points  named  in  the  charter,  it 
could  not  use  streets  without  the  consent  of  the  city  through  which 
the  line  ran.  In  determining  whether  they  would  grant  or  refuse  that 
consent  the  municipal  authorities  were  obliged  to  balance  the  | 
and  prospective  inconveniences  of  having  trains  operated  through  its 
streets  against  the  advantage  of  having  the  railroad  accessible  to  its 
citizens.  It  could  have  refused  its  consent,  except  on  terms;  it  could 
have  forced  the  road  to  the  outskirts  of  the  town,  or  could  have  per- 
mitted the  company  to  lay  tracks  in  the  more  thickly  settled  parts  of 
the  city.  When  such  consent  was  once  given,  the  condition  precedent 
had  been  performed,  and  the  street  franchise  was  thereafter  held, 
not  from  the  city,  but  from  the  state ;  which,  however,  did  not  con- 
fer upon  the  municipality  any  authority  to  withdraw  that  consent, 
nor  was  there  any  attempt  by  the  council  to  reserve  such  power  in  the 
ordinance  itself. 

It  is  said,  however,  that  even  if  the  city  could  not  prevent  the  use  of 
the  rails  already  laid,  it  could  repeal  so  much  of  the  ordinance  as  re- 
lated to  that  part  of  the  street  on  which  the  double  track  had  ii'  it 
actually  built.  But  this  was  not  a  grant  of  several  distinct  and  separate 
franchises,  where  the  acceptance  and  use  of  one  did  not  nec< 
execute  the  contract  as  to  others  not  connected  with  the  main  object 
of  the  ordinance,  and  not  at  the  time  directly  within  the  coutemj 
of  the  parties.  Pearsall  v.  Great  Northern  R.  Co.,  161  U.  S.  673,  40 
L,.  Ed.  847,  16  Sup.  Ct.  705.  This  franchise  was  single  and  specific ; 
and  when  accepted  and  acted  upon  became  binding, — not  foot  by  foot, 
as  the  rails  were  laid,  but  as  an  entirety.  Here  the  company  not  only 
accepted  the  ordinance  and  constructed  the  road,  but,  relying  on  the 
franchise,  acquired  from  the  abutters  by  purchase  or  condemnation  an 
18-foot  strip  with  a  view  of  laying  thereon  a  double  track  as  the  in- 
crease in  business  made  that  necessary.  Subsequently  it  built  the 
double  track  for  a  part  of  the  distance,  and  has  not  abandoned  or  for- 
feited the  right  to  use  the  balance  of  the  easement  when  needed  for 
the  discharge  of  its  public  duties  as  a  carrier.     *     *     * 

The  defendant  relies  on  Baltimore  v.  Baltimore  Trust  &  G.  Co.,  166 
U.  S.  673,  41  L.  Ed.  1160,  17  Sup.  Ct.  6%.  where,  however,  the  facts 
were  materially  different.  For  there  the  company  had  a  sweeping  grant 
to  lay  double  tracks  through  many  miles  of  the  streets.  The  city  repeal- 
ed the  ordinance  so  far  as  it  related  to  a  short  distance  in  a  crowded 
part  of  Lexington  street,  which,  as  appears  in  the  original  record, 
varied  from  48  to  50  feet  in  width,  the  sidewalks  being  about  11  feel 
in  width  and  the  roadway  proper  being  about  29  feet  from  curb  to 
curb.  With  double  tracks,  there  was  only  7%  feet  from  the  curb  t<> 
the  nearest  rail,  and,  allowing  for  the  overhanging  of  the  car,  this 
space  was  not  wide  enough  to  permit  vans  and  large  wagons  to  pass. 


874  FUNDAMENTAL    BIGHTS  (Part  2 

At  some  points  buggies  and  narrow  vehicles  could  only  pass  by  run- 
ning the  wheels  on  the  edge  of  the  sidewalk.  These  facts  are  wholly 
different  from  the  situation  disclosed  by  this  record,  where  the  sweep- 
ing grant  conferred  the  right  to  lay  a  single  track,  but  the  specific 
grant  "immediately  within  the  contemplation  of  the  parties"  (Pear- 
sail  v.  Great  Northern  R.  Co.,  161  U.  S.  673,  40  L.  Ed.  847,  16  Sup. 
Ct.  705)  was  a  definite  franchise  to  construct  this  particular  double 
track  between  designated  points  on  Division  street,  which  is  82% 
feet  wide,  or  32  feet  wider  than  Lexington  street.  It  is  admitted  that 
a  double  track  has  been  actually  used  on  it  for  more  than  twenty 
years. 

The  statute  and  the  ordinance  in  the  Baltimore  Case  were  also  ma- 
terially different  from  those  here  involved.  The  court  declined  to 
decide  whether  the  council  had  the  power  to  make  an  irrepealable  con- 
tract, it  being  sufficient  to  hold  that  the  direction  to  lay  but  one  track 
for  a  short  distance  on  Lexington  street  did  not  substantially  change 
the  terms  of  the  contract,  granting  such  very  broad  and  general  right 
to  lay  many  miles  of  double  track  throughout  the  city.  But,  regard- 
less of  the  construction,  there  was  no  impairment,  because  of  the  im- 
portant fact  that  the  legislature  of  Maryland  had  ratified  the  street 
ordinance  on  condition  that  it  might  at  any  time  be  amended  or  re- 
pealed by  the  city  council.     *     *     * 

Judgment  reversed.1 

[Day,  J.,  concurs  in  the  result  on  the  ground  that  the  facts  stated 
in  the  complaint  and  admitted  by  the  demurrer  raise  no  presumption 
that  the  repeal  was  the  reasonable  exercise  of  the  police  power,  and 
that  nothing  else  is  necessary  to  be  decided.  Hughes  and  Pitney, 
JJ.,  dissent.] 


ILLINOIS  CENTRAL  R.  CO.  v.  ILLINOIS. 

(Supreme  Court  of  United  States,  1892.     146  U.  S.  387,  13  Sup.  Ct.  110, 
36  L.  Ed.  1018.) 

[Appeals  from  the  federal  Circuit  Court  for  the  Northern  District 
of  Illinois.  In  1869  the  Illinois  legislature  granted  to  the  Illinois  Cen- 
tral Railroad  Company,  its  successors  and  assigns,  in  fee,  all  of  the 
state's  right  and  title  to  the  submerged  lands  under  Lake  Michigan  in 
the  Chicago  harbor  for  a  distance  of  one  mile  from  shore.  Over  1,000 
acres  of  land  were  included,  covering  all  of  the  present  and  probable 
future  harbor  area  at  Chicago,  the  vessel  tonnage  of  which  port  was 
equal  to  that  of  New  York  and  Boston  combined,  amounting  in  1890 
to  nearly  9,000,000  tons.     The  grant  was  expressly  in  perpetuity,  but 

i  See  also  So.  Pac.  Co.  v.  Portland,  227  U.  S.  559,  33  Sup.  Ct.  308,  57  L.  Ed. 
(1913)  (reserved  power  to  "regulate  the  conduct"  of  a  steam  railroad  hav- 
ing a  street  franchise  does  not  authorize  prohibition  of  hauling  freight  cars 
in    street). 


I'll.  LS)  LAWS    IMPAIRING    OBLIGATIONS   OIT    CONTRACTS  875 

the  fee  of  the  lands  was  not  to  be  aliened  by  the  company.  Other 
limitations  are  mentioned  in  the  opinion.  In  1873  the  legislature  re- 
pealed the  grant.  In  1883  bills  in  equity  were  filed  in  the  above-named 
court  to  determine  the  rights  of  the  parties  in  the  land  thus  granted. 
The  repeal  was  upheld  and  this  appeal  taken.] 

Mr.  Justice  Field.  *  *  *  The  act,  if  valid  and  operative  to  the 
extent  claimed,  placed  under  the  control  of  the  railroad  company  near- 
ly the  whole  of  the  submerged  lands  of  the  harbor,  subject  only  to 
the  limitations  that  it  should  not  authorize  obstructions  to  the  harbor, 
or  impair  the  public  right  of  navigation,  or  exclude  the  legislature 
from  regulating  the  rates  of  wharfage  or  dockage  to  be  charged.  With 
these  limitations,  the  act  put  it  in  the  power  of  the  company  to  delay 
indefinitely  the  improvement  of  the  harbor,  or  to  construct  as  many 
docks,  piers,  and  wharves  and  other  works  as  it  might  choose  and  at 
such  positions  in  the  harbor  as  might  suit  its  purposes,  and  permit  any 
kind  of  business  to  be  conducted  thereon,  and  to  lease  them  out  on  its 
own  terms  for  indefinite  periods.  The  inhibition  against  the  technical 
transfer  of  the  fee  of  any  portion  of  the  submerged  lands  was  of  little 
consequence  when  it  could  make  a  lease  for  any  period,  and  renew  it 
at  its  pleasure;  and  the  inhibitions  against  authorizing  obstructions 
to  the  harbor  and  impairing  the  public  right  of  navigation  placed  no 
impediments  upon  the  action  of  the  railroad  company  which  did  not 
previously  exist.     *     *     * 

The  question,  therefore,  to  be  considered,  is  whether  the  legislature 
was  competent  to  thus  deprive  the  state  of  its  ownership  of  the  sub- 
merged lands  in  the  harbor  of  Chicago,  and  of  the  consequent  control 
of  its  waters ;  or,  in  other  words,  whether  the  railroad  corporation  can 
hold  the  lands  and  control  the  waters  by  the  grant,  against  any  future 
exercise  of  power  over  them  by  the  state. 

That  the  state  holds  the  title  to  the  lands  under  the  navigable  wa- 
ters of  Lake  Michigan,  within  its  limits,  in  the  same  manner  that  the 
state  holds  title  to  soils  under  tide  water,  by  the  common  law,  we  have 
already  shown;  and  that  title  necessarily  carries  with  it  control  over 
the  waters  above  them,  whenever  the  lands  are  subjected  to  use 
it  is  a  title  different  in  character  from  that  which  the  state  holds  in 
lands  intended  for  sale.  It  is  different  from  the  title  which  the  United 
States  hold  in  the  public  lands  winch  are  open  to  pre-emption  and 
sale.  It  is  a  title  held  in  trust  for  the  people  of  the  state,  that  they 
may  enjoy  the  navigation  of  the  waters,  carry  on  commerce  over  them. 
and  have  liberty  of  fishing  therein,  freed  from  the  obstruction  or  inter- 
ference of  private  parties.  The  interest  of  the  people  in  the  navigation 
of  the  waters  and  in  commerce  over  them  may  he  improved  in  many 
instances  by  the  erection  of  wharves,  docks,  and  piers  therein,  [or 
which  purpi  se  the  state  may  grant  parcels  of  the  submerged  lands; 
and,  so  long  as  their  disposition  is  made  for  such  purpose,  no  valid  ob- 
jections can  be  made  to  the  grants.  It  is  grants  of  parcels  of  lands 
under  navigable  waters  that  may  afford  foundation  for  wharves,  piers. 


"i~6  FUNDAMENTAL    RIGHTS  (Part  2 

docks,  and  other  structures  in  aid  of  commerce,  and  grants  of  parcels 
which,  being  occupied,  do  not  substantially  impair  the  public  interest 
in  the  lands  and  waters  remaining,  that  are  chiefly  considered  and  sus- 
tained in  the  adjudged  cases  as  a  valid  exercise  of  legislative  power 
consistently  with  the  trust  to  the  public  upon  which  such  lands  are 
held  by  the  state.  But  that  is  a  very  different  doctrine  from  the  one 
which  would  sanction  the  abdication  of  the  general  control  of  the  state 
over  lands  under  the  navigable  waters  of  an  entire  harbor  or  bay,  or 
of  a  sea  or  lake.  Such  abdication  is  not  consistent  with  the  exercise 
of  that  trust  which  requires  the  government  of  the  state  to  preserve 
such  waters  for  the  use  of  the  public.  *  *  *  The  state  can  no 
more  abdicate  its  trust  over  property  in  which  the  whole  people  are 
interested,  like  navigable  waters  and  soils  under  them,  so  as  to  leave 
them  entirely  under  the  use  and  control  of  private  parties,  except  in 
the  instance  of  parcels  mentioned  for  the  improvement  of  the  naviga- 
tion and  use  of  the  waters,  or  when  parcels  can  be  disposed  of  without 
impairment  of  the  public  interest  in  what  remains,  than  it  can  abdicate 
its  police  powers  in  the  administration  of  government  and  the  preser- 
vation of  the  peace.     *     *     * 

Any  grant  of  the  kind  is  necessarily  revocable,  and  the  exercise  of 
the  trust  by  which  the  property  was  held  by  the  state  can  be  resumed 
at  any  time.  Undoubtedly  there  may  be  expenses  incurred  in  improve- 
ments made  under  such  a  grant,  which  the  state  ought  to  pay ;  but, 
be  that  as  it  may,  the  power  to  resume  the  trust  whenever  the  state 
judges  best  is,  we  think,  incontrovertible.  The  position  advanced  by 
the  railroad  company  in  support  of  its  claim  to  the  ownership  of  the 
submerged  lands,  and  the  right  to  the  erection  of  wharves,  piers,  and 
docks  at  its  pleasure,  or  for  its  business  in  the  harbor  of  Chicago, 
would  place  every  harbor  in  the  country  at  the  mercy  of  a  majority  of 
the  legislature  of  the  state  in  which  the  harbor  is  situated. 

We  cannot,  it  is  true,  cite  any  authority,  where  a  grant  of  this  kind 
has  been  held  invalid,  for  we  believe  that  no  instance  exists  where  the 
harbor  of  a  great  city  and  its  commerce  have  been  allowed  to  pass  in- 
to the  control  of  any  private  corporation.  But  the  decisions  are  nu- 
merous which  declare  that  such  property  is  held  by  the  state,  by  vir- 
tue of  its  sovereignty,  in  trust  for  the  public.  The  ownership  of  the 
navigable  waters  of  the  harbor,  and  of  the  lands  under  them,  is  a  sub- 
ject of  public  concern  to  the  whole  people  of  the  state.  The  trust  with 
which  they  are  held,  therefore,  is  governmental,  and  cannot  be  alien- 
ated, except  in  those  instances  mentioned,  of  parcels  used  in  the  im- 
provement of  the  interest  thus  held,  or  when  parcels  can  be  disposed 
of  without  detriment  to  the  public  interest  in  the  lands  and  waters 
remaining.     *     *     * 

[In  Newton  v.  Commissioners,  100  U.  S.  548,  25  L.  Ed.  710.  a  stat- 
ute, providing  that  an  Ohio  county  seat  should  be  permanently  estab- 
lished in  Canfield,  Ohio,  upon  the  fulfillment  of  certain  conditions,  was 
held  not  to  bind  subsequent  legislatures,  even  after  the  conditions  had 


Ch.  13)  LAWS    IMPAIRING    OBLIGATIONS    OF    CONTKACT8 

been  fulfilled.  "There  could  be  no  contract  and  no  irrepealable  law 
upon  governmental  subjects."  *  After  referring  to  this  case,  the  court 
continued:]  As  counsel  observe,  if  this  is  true  doctrine  as  to  the 
location  of  a  county  seat,  it  is  apparent  that  it  must  apply  with  greater 
force  to  the  control  of  the  soils  and  beds  of  navigable  waters  in  the 
great  public  harbors  held  by  the  people  in  trust  for  their  common 
use  and  of  common  right,  as  an  incident  to  their  sovereignty.  The 
legislature  could  not  give  away  nor  sell  the  discretion  of  its  successors 
in  respect  to  matters,  the  government  of  which,  from  the  very  nature 
of  things,  must  vary  with  varying  circumstances.  The  legislation  which 
may  be  needed  one  day  for  the  harbor  may  be  different  from  the  legis- 
lation that  may  be  required  at  another  day.  Every  legislature  must, 
at  the  time  of  its  existence,  exercise  the  power  of  the  state  in  the  ex- 
ecution of  the  trust  devolved  upon  it.  *  *  *  There  can  be  no  ir- 
liile  contract  in  a  conveyance  of  property  by  a  grantor  in  dis- 
regard of  a  public  trust,  under  which  he  was  bound  to  hold  and  man- 
age it.     *     *     * 

Decree  affirmed  [with  certain  modifications  as  to  structures  already 
erected  by  the  company  and  not  interfering  with  navigation].2 

[ShiRAS,  J.,  with  whom  concurred  Gray  and  Bkown,  JJ.,  gave  a 
dissenting  opinion.    FULLER,  C.  J.,  and  BlatciiFord,  J.,  did  not  sit.]* 

i  See,  also  Coyle  v.  Smith,  post,  p.  1020. 

2  As  to  these,  see  Illinois  v.  111.  C.  R.  R.,  184  U.  S.  77,  22  Sup.  Ct.  300,  46 
L.  Kd.  440  (1902). 

8  A  charter  power  in  a   railway  company  to  consolidate  with  parallel  and 
competing  lines  may  he  repealed  hy  the  legislature  hefore  it  h 
on  bj  the  company.     "While  there  is  no  general   reservation  Clause  in  the 
charter  of   the   Louisville  &    Nashville   Company,    we    think,   for    the    reasons 
stated  in  the  PearsaJJ  Case  [161   D.  B.  646,   L6  Sup.  Ct  706,  40  L.  Ed    B38], 
that   under   its   police  power  the  people,    in   their   sovereign   capacity,  or   the 
legislature  as  their  representatives,  may  deal  with  the  charter  of  a  railway 
corporation  so  far  as  is  necessary  for  the  protection  of  the  lives,  health,  and 
safety  of  its  passengers  or  the  public,  or  for  the  security  of  property  or  the 
conservation  of  the  public  Interests,  provided  of  course  that  no  rested  rights 
are  thereby  Impaired."— Brown,  J..  In  L.  &  N.  EC  it.  Co.  v.  Kentucky,  161  0 
s.  677,  695,  It;  Sup.  Ct.  714.  721,  40   I..  Kd.  S49  (1896).     So.  also,  gee  B 
Commerce  v.  Tennessee,  163  U.  S.  410,  423  426,  16  Sup.  Ct  1113,  41 
211  (1896). 


878  FUNDAMENTAL    RIGHTS  (Part  2 


SECTION  2.— OTHER  RETROACTIVE  LAWS 


INHABITANTS  OF  GOSHEN  v.  INHABITANTS  OF  STON- 

INGTON. 
(Supreme  Court  of  Errors  of  Connecticut,  1S22.    4  Conn.  209,  10  Am.  Dec.  121.) 

[Motion  for  new  trial.  Joseph  Cooke  was  legally  settled  in  the 
town  of  Stonington,  and  in  1807  was  married  to  Betsey  Cooke  by  an 
ordained  but  itinerant  minister  of  the  Methodist  church.  The  stat- 
ute law  then  in  force  gave  no  validity  to  such  marriages  unless  the 
minister  were  settled  instead  of  itinerant.  In  1820  a  statute  purport- 
ed to  render  valid  to  all  intents  and  purposes  marriages  performed  by 
ordained  ministers  qualified  thereto  by  the  forms  and  usages  of  any 
religious  society.  If  constitutional,  this  statute  validated  Cooke's 
marriage.  From  1818  to  1820  the  town  of  Goshen  had  supported 
Betsey  Cooke  and  five  children  of  herself  and  Joseph,  as  paupers,  and 
in  1821  sued  to  recover  the  expense  thereof  from  Stonington,  which 
was  legally  chargeable  therewith  if  said  marriage  was  valid.  A  ver- 
dict was  found  for  the  plaintiffs  under  a  direction  of  the  court  up- 
holding the  curative  statute  of  1820,  and  defendants  moved  for  a  new 
trial.] 

Hosmer,  C.  J.  *  *  *  First,  it  was  said  that  the  retrospective 
operation  of  the  law  may  and  ought  to  be  obviated  by  construing  it 
to  intend  the  validation  of  marriages  merely,  without  imparting  to  it 
any  retrospection  as  to  the  rights  of  others.  It  must  be  admitted  that 
by  construction,  if  it  can  be  avoided,  no  statute  should  have  a  retro- 
spect, anterior  to  the  time  of  its  commencement.  Helmore  v.  Shuter  et 
al.,  2  Show.  17;  Dash  v.  Van  Kleeck,  7  Johns.  (N.  Y.)  477,  485,  5  Am. 
Dec.  291. *  This  principle  is  founded  on  the  supposition,  that  laws  are 
intended  to  be  prospective  only.  But  when  a  statute,  either  by  ex- 
plicit provision  or  necessary  implication,  is  retroactive,  there  is  no 
room  for  construction;  and  if  the  law  ought  not  to  be  effectuated,  it 
must  be  on  a  different  principle.  The  act  of  May,  1820,  is,  in  its  ex- 
pression, inconvertibly  clear  and  definite.    It  does  not  pause,  after  im- 

i  "The  courts  uniformly  refuse  to  give  to  statutes  a  retrospective  opera- 
tion, whereby  rights  previously  vested  are  injuriously  affected,  unless  com- 
pelled to  do  so  by  language  so  clear  and  positive  as  to  leave  no  room  to 
doubt  that  such  was  the  intention  of  the  legislature.  In  U.  S.  v.  Heth,  :: 
Cranch,  413,  2  L.  I'd.  479,  this  court  said  that  'words  in  a  statute  ought  not 
to  have  a  retrospective  operation  unless  they  are  so  clear,  strong,  and  im- 
perative that  no  other  meaning  can  he  annexed  to  them,  or  unless  the  inten- 
tion of  the  legislature  cannot  be  otherwise  satisfied ;'  and  such  is  the  settled 
doctrine  of  this  court.  Murray  v.  Gibson,  15  How.  423,  14  L.  Ed.  755 ;  Mc- 
Ewen  v.  Den,  24  How.  244,  16  L.  Ed.  672 ;  Harvey  v.  Tyler,  2  Wall.  347,  17 
h.  Ed.  871;  Sohn  v.  Waterson,  17  Wall.  599.  21  L.  Ed.  737;  Twenty  Per  Cent. 
Cases,  20  Wall.  1S7.  22  L.  Ed.  339."— Harlan.  J.,  in  Chew  Heong  v.  U.  S.,  112 
U.  S.  536,  559,  5  Sup.  Ct.  255,  266,  28  L.  Ed.  770  (1884). 


Ch.  J3)  CIVIL    RETROACTIVE    LAWS  879 

parting  validity  to  marriages,  but  confirms  them  "to  all  intents  and 
purposes."  By  this  phraseology,  they  are  declared  to  be  valid  ab  in- 
itio.    *     *     * 

Secondly,  it  has  been  insisted,  that  the  law  in  question  is  uncon- 
stitutional. There  is  no  pretence  that  it  is  opposed  to  the  Constitution 
of  the  United  States ;  that  is,  that  the  confirmatory  act  is  a  law  ex  post 
facto,  or  one  which  impairs  the  obligation  of  contracts.*  By  the 
second  article  of  the  Constitution  of  Connecticut,  it  is  affirmed  that 
"the  powers  of  government  shall  be  divided  into  three  di»tinct  depart- 
ments, and  each  of  them  confided  to  a  separate  magistracy,  to  wit — 
which  are  legislative,  to  one:  those  which  are  executive,  to  an- 
other; and  those  which  are  judicial,  to  another."  The  law  of  May, 
1820,  has  been  considered  as  the  exercise  of  a  judiciary  power,  and  for 
this  reason,  in  contravention  of  the  Constitution  ;  but  the  supposition 
is  wholly  destitute  of  support,  as  the  act  in  question  does  not  affect  to 
give  a  construction  to  the  former  law,  but  most  manifestly  purports  to 
impart  validity  to  certain  proceedings  which  were  erroneously  sup- 
posed to  be  legal  and  which  the  statute  did  not  authorize.  The  ; 
exercised,  in  its  nature,  is  exclusively  legislative,  and  not  opposed  to 
the  recited  articles  of  the  Constitution. 

ly,  the  defendants  have  insisted,  (and  on  this  objection  the  prin- 
cipal stress  has  been  laid),  that  the  law  of  May,  1820,  being  retro- 
spective and  in  violation  of  vested  rights,  it  is  the  duty  of  the  court  to 
pronounce  it  void.  The  retrospection  of  the  act  is  indisputable,  and 
equally  so  is  its  purpose  to  change  the  legal  rights  of  the  litigating 
parties.  Whether  in  doing  this  there  has  been  injustice,  will  be  an 
enquiry  in  a  subsequent  part  of  my  opinion. 

It  is  universally  admitted  and  unsusceptible  of  dispute  that  there 
may  be  retrospective  laws  impairing  vested  rights  which  are  unjust, 
neither  according  with  sound  legislation  nor  the  fundamental  princi- 
ples "of  the  social  compact."  If,  for  example,  the  legislature  should 
enact  a  law,  without  any  assignable  reason,  taking  from  A.  his  estate, 
and  giving  it  to  B.,  the  injustice  would  be  flagrant,  and  the  act  would 
produce  a  sensation  of  universal  insecurity. 

■-  "That   there   exists  a   general   power  In   the  state  governments  to  enact 

retrospective  or  retroactive  Laws,  is  a  point  too  well  settled  to  admit  of  ques- 

11011  ;,i   this  day.     The  only  limit  upon  this  power  in  the  states  ly  till 

Constitution,  and  therefore  the  only  source  of  cognizance  or  control  with  re- 

ped   to  that  power  existing  in  this  court,  is  the  provision   that  these  rotro- 

e  laws  shall  not  be  technically  ex  post  facto,  or  such  ns 

Impair  the  obligation  of  contracts.     Thus,  In  the  case  of  Watson  el  al.  v. 

Mercer.  8  Pet   110,  8   I/.   Ed.  sTi'..   the  court  Bay:    'It   is  clear,  that  this  court 

ounce  an  act  of  the  Btate  legislature  void,  as  contrary  to 

the  Constitution  of  the  United  States,  from  the  mere  fact  that  it  divests  an- 

1   rights  of  property.'" — Dunlel,  J.,  In  Haiti  more,  etc..  By.  r. 

;,  101,  402,  13  i.    Ed    i':i  (1850),     And  so  Peerce  v.  Kit;-.- 

miller.  10  \v.  Va.  564,  r.TL'.  'jT-i  (1882),  by  Johnso  i.  P.:    "The  states  were  not 

inhibited  by  the  Constitution     •     •     •     from  passing  laws  devesting  rested 

>i"  property   unless  those  right!  i   i  by  contract."     This  was 

the  situation  before  nth  amendment. 


SSO  FUNDAMENTAL    RIGHTS  (Part  2 

On  the  other  hand,  laws  of  a  retroactive  nature  affecting  the  rights 
of  individuals,  not  adverse  to  equitable  principle  and  highly  promo- 
tive of  the  general  good,  have  often  been  passed,  and  as  often  ap- 
proved. In  the  case  before  us,  the  defendants  have  expressly  conceded 
that  the  law  in  question  is  valid,  so  far  as  respects  the  persons  de  facto 
married  and  their  issue.  But,  in  that  event,  would  it  not  have  a  re- 
trospective operation  on  vested  rights?  The  man  and  woman  were 
unmarried,  notwithstanding  the  formal  ceremony  which  passed  be- 
t\\  ten  them,  and  free,  in  point  of  law,  to  live  in  celibacy,  or  contract 
matrimony  with  any  person,  at  pleasure.  It  is  a  strong  exercise  of 
power,  to  compel  two  persons  to  marry,  without  their  consent ;  and  a 
palpable  perversion  of  strict  legal  right.  At  the  same  time,  the  retro- 
spective law,  thus  far  directly  operating  on  vested  rights,  is  admitted 
to  be  unquestionably  valid,  because  it  is  manifestly  just. 

I  very  much  question  whether  there  is  an  existing  government  in 
which  laws  of  a  retroactive  nature  and  effect,  impairing  vested  rights 
but  promotive  of  justice  and  the  general  good,,  have  not  been  passed. 
In  England,  such  laws  frequently  have  been  enacted ;  and  the  act  of 
26  Geo.  II,  cap.  33,  giving  validity  to  former  marriages  celebrated  in 
any  parish  church  or  public  chapel,  is  precisely  of  this  description. 
Doug.  661,  note.  In  the  neighbouring  state  of  Massachusetts  there 
have  been  many  such  laws  (Foster  et  al.  v.  Essex  Bank,  16  Mass.  from 
257  to  261,  8  Am.  Dec.  135) ;  and  the  interposition  of  our  own  leg- 
islature, in  similar  cases,  is  familiar  to  gentlemen  of  the  profession. 
The  judgments  of  courts,  when  by  accident  a  term  has  fallen  through, 
have  been  established ;  the  doings  of  a  committee  and  conservator,  not 
strictly  legal,  have  been  confirmed;  and  other  laws  have  been  passed, 
all  affecting  vested  rights;  but,  being  incontrovertibly  just,  no  dis- 
approbation has  ever  been  expressed.     *     *     * 

I  cannot  harmonize  with  those  who  deny  the  power  of  the  legis- 
lature to  make  laws  in  any  case,  which,  with  entire  justice,  operate 
on  antecedent  legal  rights.  A  retrospective  law  may  be  just  and  rea- 
sonable ;  and  the  right  of  the  legislature  to  enact  one  of  this  descrip- 
tion I  am  not  speculatist  enough  to  question.  *  *  *  The  act  of 
May,  1820,  was  intended  to  quiet  controversy  and  promote  the  public 
tranquility.  Many  marriages  had  been  celebrated,  as  was  believed, 
according  to  the  prescriptions  of  the  statute.  On  a  close  investigation 
of  the  subject,  under  the  prompting  scrutiny  of  interest,  it  was  made 
to  appear  that  there  had  been  an  honest  misconstruction  of  the  law ; 
that  many  unions,  which  were  considered  as  matrimonial,  were  really 
meretricious ;  and  that  the  settlement  of  children,  in  great  numbers, 
was  not  in  the  towns  of  which  their  fathers  were  inhabitants,  but  in 
different  places.  To  furnish  a  remedy  coextensive  with  the  mischief 
the  legislature  have  passed  an  act,  confirming  the  matrimonial  engage- 
ments supposed  to  have  been  formed  and  giving  to  them  validity  as 
if  the  existing  law  had  precisely  been  observed.  The  act  intrinsically 
imports  that  the  legislature  considered  the  law  of  May,  1820,  to  be 


Cll.  13)  CIVIL  RETROACTIVE    LAWS  881 

conformable  to  justice,  and  within  the  sphere  of  their  authority.  It 
was  no  violation  of  the  Constitution ;  it  was  not  a  novelty ;  such  ex- 
ercise of  power  having  been  frequent,  and  the  subject  of  universal  ac- 
quiescence;  and  no  injustice  can  arise  from  having  given  legal  effi- 
cacy to  voluntary  engagements,  and  from  accompanying  them  with  the 
consequences,   which  they  always   impart."     *     *     * 

New  trial  denied.4 

[Peters,  J.,  thought  the  act  unconstitutional,  but  concurred  in  the 
result  on  other  grounds.] 

»  See  Lufkln  v.  Lufkin,  182  Mass.  476,  65  N.  E.  S40  (1002). 

•  In  Mech.  Sav.  Bank  v.  Allen,  28  Conn.  97.  102  (1850),  in  upholding  a  stat- 
ute validating  certain  prior  loans  where  usury  had  been  Innocently  commit- 
ted,   McCurdy,  J.,  said:    "This  subject    was  thoroughly  Investigated  in  the 
case  of  Goshen  v.  Stonington,  4  Conn.  209,  10  Am.  Dec.  121,  and  the  qui 
now  raised  were  elaborately  discussed  and  were  supposed  to  be  settled.     The 
retroactive  law  objected  to  in  that  ease  was  far  more  extensive  in  its  effects 
than  the  Statute  of  1S5G.     It  made  husbands  and  wives  of  persons  who,  ex- 
cept for  its  provisions,  were  single.     It   made  children  legitimate  who  were 
Otherwise  bastards.     It  altered  settlements,  and  conferred  new  rights,  and 
Imposed  new  duties  and  restrictions  upon  towns  and  individuals.     Ii 
lines  of  descent  and  deranged  rules  of  property.     The  principle  adopt 
in  substance,  that  when  a  statute  is  expressly  retroactive,  and  the  obji 
effect  of  it- is  to  correct  an  innocent  mistake,  remedy  a  mischief,  execute  the 
intention  of   parties,   and   promote  justice,  then,   both  as  a  matter  of   right 
and  of  public  policy   affecting  the  peace  and  welfare  of  the  com 
law  should   be   sustained." 

See,  also,  Hanford,  J.,  in  Plummer  v.  Northern  Pac.  Ry.,  152  Fed.  206.  210. 
211  (1907):  "I  hold  that  a  retroactive  statute  enacted  by  Congrese  is  nol  un 
constitutional,  unless  its  effect  would  be  a  deprivation  of  life,  liberty,  or 
property,  contrary  to  the  fifth  amendment,  and  that  the  taking  away  of  de- 
fenses to  civil  actions  based  upon  rules  of  law  which  are  purely  arbitrary,  e. 
g.,  the  statute  of  limitations,  would  not  be  such  a  deprivation.  Campbell  v. 
Holt,  118  D.  S.  620-634,  8  Sup.  Ct  209.  29  L.  Ed.  483.  The  plea  of  contribu- 
tory negligence  as  a  defense  to  an  action  to  recover  damages  for  an  alleged 
tortious  injury,  is  an  affirmative  traverse  of  the  plaintiff's  cans,.  ,,(  action, 
similar  to  a  plea  of  want  of  consideration  as  a  defense  to  an  action  upon 
an  alleged  contract,  for  if  it  can  be  established  by  evidence  it  d 
plaintiff's  case.  Such  a  defense  does  not  rest  upon  a  mere  arbitrary  rule 
exempting  a  party  from  legal  process  to  enforce  an  obligation,  but  Its  founda- 
tion is  in  reason  and  natural  Justice." 

Abkooation  of  Fohhiii  his  A\n  PENALTIES. — Rights  to  forfeitures  or  penal- 
ties, under  existing  law,  which  enable  a  party  to  recover  more  than  com 
pensation  for  his  actual  damages,  may  be  abrogated  by  retroactive  statutes 
Potter  v.  Sturdivant,  4  Me.  (4  Green  1.)  154  (1820)  (penalty  for  failure  to  tile 
administrator's  inventory);  Oriental  Bank  v.  Freeze,  18  Me.  109,  36  Am.  Dec. 
Tni  (1841)  (breach  of  debtor's  surety  bond);  Curtis  v.  Leavitt.  16  N.  V.  l.  152 
156  (1857)  (penalty  for  usury— cases) ;  I'armelee  v.  Lawrence,  44  ill.  405, 
•in  i r.  (1867)  (Hunt  to  have  usurious  interest,  already  paid,  apply  on  prln- 
n't  be  abrogated;  otherwise  of  treble  penalty).  So.  also,  of  all  pen- 
alties Imposed  cm  behalf  of  the  public,  even  though  a  private  informer  is  en- 
titled thereto.  His  right  may  be  abrogated.  Confiscation 
19  I*  Kd.  196  (1869);  Dyer  v.  Ellington.  126  N.  C.  941.  36  8.  K.  17T  tl900). 
H  m  i  i  "\    r.f.. — 56 


882  FUNDAMENTAL    RIGHTS  (Fart    2 


DANFORTH  v.  GROTON  WATER  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1901.     178  Mass.  472,  59  N.  E. 
1033,  86  Am.  St.  Rep.  495.) 

[Rehearing  of  exceptions  taken  to  the  dismissal  by  the  Superior 
Court  of  Danforth's  petitions  for  a  jury  to  assess  his  damages  due 
to  a  taking  of  certain  water  rights  in  November,  1897,  by  defendant 
company  under  statutory  authority.  Petitioner's  right  to  compensa- 
tion was  conditioned  upon  his  applying  first  to  certain  county  com- 
missioners for  an  estimate  of  damages,  and  upon  his  applying  for  as- 
sessment of  damages  within  one  year  from  the  taking.  The  petitions, 
filed  in  October,  1898,  were  dismissed  on  motion  for  failure  to  apply 
to  said  commissioners,  and  by  that  time  the  year  had  expired.  On 
May  4,  1900,  the  legislature  passed  the  act  referred  to  in  the  opinion, 
and  on  May  17th  the  above  decision  of  the  Superior  Court  was  af- 
firmed by  the  state  Supreme  Court  in  ignorance  of  the  passage  of 
said  act.  A  rehearing  was  then  granted  on  the  question  of  the  effect 
of  that  act  upon  this  case.] 

Holmes,  C.  J.  *  *  *  The  statute  provides  that  no  such  peti- 
tion as  the  present  "now  or  hereafter  pending  in  the  Superior  Court 
*  *  shall  be  dismissed  for  want  of  jurisdiction  in  said  court 
solely  on  the  ground  that  no  previous  application  for  the  assessment 
of  such  damages  had  been  made  to  a  board  of  county  commissioners." 
These  words  seem  to  us  plainly  to  apply  to  the  present  petitions.  It 
is  true  that  the  petitions  had  been  ordered  to  be  dismissed,  but  the 
orders  were  made  subject  to  a  report  to  this  court,  as  we  have  said, 
and  the  cases  were  still  pending  in  the  Superior  Court.  There  can  be 
no  doubt  of  the  intent  of  the  statute,  and  the  only  question  is  whether 
it  is  constitutional  with  regard  to  those  who,  like  the  respondent,  at 
the  time  of  its  passage  had  a  good  defense.  There  certainly  is  a 
strong  argument  that  as  against  parties  in  the  respondent's  position 
the  act  cannot  be  sustained. 

In  Campbell  v.  Holt,  115  U.  S.  620,  6  Sup.  Ct.  209,  29  L.  Ed.  483, 
in  which  it  was  held  by  a  majority  of  the  court  that  a  repeal  of  the 
statute  of  limitations  as  to  debts  already  barred  violated  no  rights  of 
the  debtor  under  the  fourteenth  amendment,  Mr.  Justice  Miller  speaks 
as  if  the  constitutional  right  relied  on  were  a  right  to  defeat  a  just  debt. 
But  the  constitutional  right  asserted  was  the  same  that  would  be  set  up 
if  the  Legislature  should  order  one  citizen  to  pay  a  sum  of  money  to 
another  with  whom  he  had  been  in  no  previous  relations  of  any  kind. 
Such  a  repeal  requires  the  property  of  one  person  to  be  given  to  an- 
other when  there  was  no  previous  enforceable  legal  obligation  to  give 
it.  Whether  the  freedom  of  the  defendant  from  liability  is  due  to  a 
technicality  or  to  his  having  had  no  dealings  with  the  other  party,  he 
is  equally  free,  and  it  would  seem  logical  to  say  that  if  the  Constitu- 
tion protects  him  in  one  case  it  protects  him  in  all.     With  regard  to 


Cll.  13)  CIVIL  BDTROACTIVB    LAWS  bft3 

cases  like  Campbell  v.  Holt,  under  the  state  Constitution  the  later 
intimations  of  this  court  have  been  that  such  a  repeal  would  have  no 
effect  Bigelow  v.  Bemis,  2  Allen,  496,  497;  Prentice  v.  Dehor.,  10 
Allen,  353,  355;  Ball  v.  Wyeth,  99  Mass.  338,  339.  See,  also,  Kins 
man  v.  Cambridge,  121  Mass.  558;  Rockport  v.  Walden,  54  X.  11. 
167,  20  Am.  Rep.  131 ;  McCracken  Co.  v.  Mercantile  Trust  Co.,  84 
Ky.  344,  1  S.  W.  585;   Cooley,  Const.  Lim.  (6th  Ed.)  448.1 

Nevertheless  in  this  case,  as  in  others,  the  prevailing  judgment  of 
the  profession  has  revolted  at  the  attempt  to  place  immunities  which 
exist  only  by  reason  of  some  slight  technical  defect  on  absolutely  the 
same  footing  as  those  which  stand  on  fundamental  grounds.  Per- 
haps the  reasoning  of  the  cases  has  not  always  been  as  sound  as  the 
instinct  which  directed  the  decisions.  It  may  be  that  sometimes  it 
would  have  been  as  well  not  to  attempt  to  make  out  that  the  judgment 
of  the  court  was  consistent  with  constitutional  rules,  if  such  rules 
were  to  be  taken  to  have  the  exactness  of  mathematics.  It  may  be 
that  it  would  have  been  better  to  say  definitely  that  constitutional 
rules,  like  those  of  the  common  law,  end  in  a  penumbra  vvh- 
Legislature  has  a  certain  freedom  in  fixing  the  line,  as  has  be' 
ognized  with  regard  to  the  police  power.  Camfield  v.  U.  S.,  167  U. 
S.  518,  523,  524,  17  Sup.  Ct.  864,  42  L.  Ed.  260.  But,  however  that 
may  be,  multitudes  of  cases  have  recognized  the  power  of  the  Legis- 
lature to  call  a  liability  into  being  where  there  was  none  bef 
the  circumstances  were  such  as  to  appeal  with  some  strength  to  the 
prevailing  views  of  justice,  and  if  the  obstacle  in  the  way  of  the  crea- 
tion seemed  small. 

In  some  such  cases  there  has  been  at  an  earlier  time  an  enforceable 
obligation,  in  others  there  never  has  been  one,  but  in  both  classes  the 
courts  have  laid  hold  of  a  distinction  between  the  remedy  and  the 
substantive  right,  or  have  said  that  *'a  party  has  no  vested  right  in  a 
defense  based  upon  an  informality  not  affecting  his  substantial  equi- 
ties" (Cooley,  Const.  Lim.  [6th  Ed.]  454),  or  that  "there  is  no  such 
thing  as  a  vested  right  to  do  wror  v.  Bank,  16  Ma 

273.  8  Am.  Dec.  135),  or  have  called  it  curing  an  irregularity  (Thomp- 
son v.  Lee  Co.,  3  Wall.  327.  331,  18  L.  Ed.  177;  Lane  v.  Nelson,  79 
Pa.  407;  Randall  v.  Krieger,  23  Wall.  137.  23  L.  Ed.  124),  or  have 
dwelt  upon  the  equities,  meaning  the  moral  worth  of  the  claim  that 
was  preserved,  or  by  one  device  or  another  have  prevented  a  written 
Constitution  from  interfering  with  the  power  to  make  small  i 
which  a  Legislature  naturally  would  possess. 

In  a  case  which  would  seem  ah  or  than  that  of  a  debt 

barred  by  the  statute  of  limitations  it  was  held  that  services  of  an  un- 
licensed physician  which  could  not  be  recovered   for  when   rei 

i  Contra  to  Campbell  v.  Holt,  see  the  dissenting  opinion  therein,  and 

165  111.   HI.   147,  448,   M)  N.  E.  1028,  31   L.  R.  A    :■■ 
46  Aim.  st.   Rep    348  I  L895)  tnei  v.   UL  s 

Wis.  373,  79  N.  VV.   138,  71   Am    si    Rep.  871  (1899)  'suit  in  foreign  stat 
citations  of  CanjDb»H  v.  Holt  in  Rose's  U.  S.  Notes  and  Supplements. 


884  fundamental  RiGnxs  .  (Part  2 

were  made  a  good  cause  of  action  by  a  repeal  of  the  statute  which 
created  the  bar.  Hewitt  v.  Wilcox,  1  Mete.  154.  So  in  case  of  a  usuri- 
ous contract  after  a  repeal  of  the  usury  law.  Ewell  v.  Daggs,  108  U. 
S.  143,  2  Sup.  Ct.  408,  27  L.  Ed.  682.2 

The  constitutional  difficulties  in  the  way  of  the  present  statute  are 
as  small  as  they  well  can  be.  Its  effect  in  saving  the  petitioners  from 
being  barred  by  the  statute  of  limitations  in  the  respondent's  charter 
is  only  secondary  and  accidental.  All  that  it  does  directly  which  is 
open  to  question  is  to  enact  that  parties  having  a  case  in  court  shall 
not  be  turned  out  for  neglect  of  what  under  the  circumstances  was  a 
naked  and  useless  form.  The  case  is  stronger  for  the  petitioners  than 
Campbell  v.  Holt  or  Hewitt  v.  Wilcox.  The  respondent  had  incurred 
a  legal  obligation  to  them  which,  although  not  contractual,  was  vol- 
untary and  legal,  and  which  was  entitled  to  the  highest  protection  of 
the  law,  as  it  sprang  from  the  exercise  of  eminent  domain.  The  peti- 
tioners were  enforcing  the  obligation  in  good  faith.  There  is  no  es- 
pecially striking  equity  in  favor  of  defeating  them  because  of  a  mis- 
take of  procedure,  and  as  the  Legislature  now  has  said  that  they  shall 
not  be  defeated,  we  have  not  much  hesitation  in  yielding  to  the  cur- 
rent of  decisions  and  in  accepting  its  mandate  as  authoritative  in  this 
case. 

Motions  [to  dismiss]  overruled. 


DUNBAR  v.  BOSTON  &  P.  R.  CORP.  (1902)  181  Mass.  383.  384- 
386,  63  N.  E.  916.  A  special  act  for  a  local  improvement  in  Boston 
allowed  one  year  for  the  filing  of  petitions  for  damages  due  to  a 
change  of  street  grades  by  certain  railroad  companies.  This  time  hav- 
ing expired  in  March,  1899,  a  statute  of  May  23,  1899,  extended  the 
time  until  January  1,  1900.    In  upholding  the  act,  Holmes,  C.  J.,  said: 

"The  statute  assailed  is  of  general  operation,  and  if  valid  applies 
as  well  to  the  petitioner,  who  had  unquestioned  notice  of  the  change 

2  See  .the  cases  cited  in  this  report,  upholding  in  general  the  legislative 
power  to  validate  void  contracts;  Matthews,  J.,  saying  (108  U.  S.  at  p.  151, 
2  Sup.  Ct  413,  27  L.  Ed.  682):  "The  more  general  and  deeper  principle  on 
which  they  are  to  be  supported  is,  that  the  right  of  a  defendant  to  avoid 
his  contract  is  given  to  him  by  statute,  for  purposes  of  its  own,  and  not  be- 
cause it  affects  the  merits  of  his  obligation ;  and  that  whatever  the  statute 
gives,  under  such  circumstances,  as  long  as  it  remains  in  fieri,  and  not  real- 
ized by  having  passed  into  a  completed  transaction,  may,  by  a  subsequent 
statute,  be  taken  away.  It  is  a  privilege  that  belongs  to  the  remedy,  and 
forms  no  element  in  the  rights  that  inhere  in  the  contract.  The  benefit  which 
he  has  received  as  the  consideration  of  the  contract,  which,  contrary  to  law, 
he  actually  made,  is  just  ground  for  imposing  upon  him,  by  subsequent  legis- 
lation, the  liability  which  he  intended  to  incur." 

Accord :  Lewis  v.  McElvain,  16  Ohio,  3-17  (1S47) ;  Gibson  v.  Hibbard,  13 
Mich.  214  (1865) ;  Berry  v.  Clary,  77  Me.  4S2,  1  Atl.  360  (1885) ;  Danville  v. 
Pace,  25  Grat  (66  Va.)  1,  18  Am.  Rep.  663  (1874).  Compare  N.  Y.,  etc.,  Ry. 
v.  Van  Horn,  57  N.  Y.  473  (1874) ;  Lowe  v.  Harris,  112  N.  C.  472,  17  S.  E.  539, 
22  L.  R.  A.  379  (1893)  (attempted  validation  of  land  contract  void  under  stat- 
ute of  frauds). 


Ch.K'.)  CIVIL   RETROACTIVE    LAWS  865 

of  grade  by  the  actual  completion  of  the  work  before  the  year  ex- 
pired, as  to  possible  cases  of  persons  who  might  have  found  their 
remedy  gone  before  they  knew  that  anything  affecting  their  rights 
had  been  done.  In  such  a  case,  apart  from  the  authorities,  it  is  im- 
possible not  to  feel  the  greatest  difficulty  in  sustaining  the  act.  The 
nature  of  the  difficulty  is  indicated  in  Dan  forth  v.  Water  Co.,  178 
Mass.  472,  59  X.  E.  1033,  86  Am.  St.  Rep.  495.  However  much  you 
may  disguise  or  palliate  the  change  by  saying  that  the  statute  deals 
only  with  the  remedy,  or  that  a  party  has  no  vested  right  to  a  merely 
technical  defense,  or  by  adopting  any  other  cloudy  phrase  that  keeps 
the  light  from  the  fact,  such  legislation  does  enact  that  the  property 
of  a  person  previously  free  from  legal  liability  shall  be  given  to  an- 
other who  before  the  statute  had  no  legal  claim.  It  is  not  merely  as 
it  was  put  by  the  counsel  for  the  defendant,  following  the  cases,  that 
the  defense  is  as  valuable  and  as  much  entitled  to  protection  as  the 
claim,  if  that  be  true,  but  the  effect  of  the  statute  by  enabling  the 
barred  claim  to  be  collected  is  to  allow  property  of  the  defendant  to 
be  appropriated  which  before  was  free.  Woodward  v.  Railroad  Co., 
180  Mass.  599,  62  N.  E.  1051.  It  is  true  that  the  property  is  not 
identified  until  it  is  seized  on  execution,  but  when  it  is  identified  by 
seizure  it  is  taken  as  truly  as  land  would  be  if  it  were  allowed  to  be 
recovered  in  a  real  action  notwithstanding  the  lapse  of  twenty  years. 

"In  the  present  case  there  is  not  the  excuse  apparent  that  the  stat- 
ute cured  an  earlier  injustice,  as  might  be  the  case  where  a  petitioner 
had  had  no  actual  notice  of  the  loss  of  any  rights  until  he  was  too 
late.  It  cannot  be  said  in  more  general  terms  that  a  statute  of  limita- 
tions as  such  embodies  an  arbitrary  or  merely  technical  rule.  Pre- 
scription and  limitation  are  based  on  one  of  the  deepest  principles  of 
human  nature,  the  working  of  association  with  what  one  actually  en- 
joys for  a  long  time,  whatever  one's  defects  of  title  may  be,  and  of 
dissociation  from  that  of  which  one  is  deprived,  whatever  may  be 
one's  rights.  The  mind  like  any  other  organism  gradually  shapes  it- 
self to  what  surrounds  it,  and  resents  disturbance  in  the  form  which 
its  life  has  assumed.  In  cases  like  the  present  when  the  period  of  lim- 
itation is  short  no  doubt  other  but  also  important  elements  are  pre- 
dominant,— the  desirableness  for  business  reasons  of  getting  a  quasi 
public  transaction  finished, — but  whatever  the  details,  the  principle 
involved  is  as  worthy  of  respect  as  any  known  to  the  law. 

"Nevertheless  in  Danforth  v.  Water  Co.,  178  Mass.  472.  59  N.  E. 
1033.  86  Am.  St.  Rep.  495,  it  was  held  that  a  statute  was  constitu- 
tional which   removed  the  bar  of  an   earlier   statute  under  circum- 
stances where,  according  to  the  language  of  the  later  act  and  the 
the  lapse  of  time  had  destroyed  the  jurisdiction  of  the  court.     Id.,  176 
Mass.  118,  57  \T.  E.  351;    Riley  v.  City  of  Lowell,   117  Mas 
City  of  Cambridge  v.    Middlesex  Co.  Com'rs,   Id.  79,  83.     So,  what- 
ever may  be  said  of  the  reasoning  by  which  the  decision  was  re 
it  was  held  in  Campbell  v.  Holt,  115  U.  S.  620,  6  Sup.  Ct.  2 


886  FUNDAMENTAL    RIGHTS  (Part  2 

L.  Ed.  483,  that  the  fourteenth  amendment  does  not  prevent  the  re- 
moval of  the  bar  from  a  personal  debt.  Without  repeating  what  we 
have  said  so  recently,  it  is  enough  to  say  that  the  constitutional  pro- 
visions allow  a  certain  limited  degree  of  latitude  in  dealing  with  cases 
where  remedies  have  been  extinguished  by  lapse  of  time  when  the 
seeming  infraction  of  right  is  not  very  great,  and  when  justice  re- 
quires relief.  It  is  unnecessary  to  go  so  far  as  Campbell  v.  Holt. 
But  in  a  case  of  this  kind,  where  the  original  time  allowed  after  ac- 
tual notice  was  very  short  and  may  have  seemed  to  the  legislature  in- 
adequate, where  the  extension  was  granted  within  little  more  than 
two  months  of  the  time  when  it  could  have  been  granted  without  ques- 
tion and  not  improbably  before  the  transaction  as  a  whole  had  been 
finished,  where  the  plaintiff's  claim  is  held  to  be  barred  only  by  a 
somewhat  doubtful  inference  and  where  in  short  we  cannot  say  that 
the  legislature  with  its  larger  view  of  the  facts  may  not  have  been 
satisfied  that  substantial  justice  required  its  action,  we  are  not  pre- 
pared to  pronounce  the  statute  unconstitutional  in  the  face  of  the 
most  authoritative  decisions.  We  regard  this  case  as  distinguishable 
from  a  wholesale  attempt  to  relieve  from  the  effect  of  open  and  ad- 
verse possession  of  land  for  twenty  years,  and  even  as  distinguishable 
from  the  similar  attempt  with  regard  to  debts  upheld  in  Campbell  v. 
Holt.  As  yet  it  is  not  necessary  for  us  to  choose  between  that  deci- 
sion and  the  weighty  intimations  to  the  contrary  in  this  court  and 
elsewhere."  * 

i  "By  the  long  and  undisturbed  possession  of  tangible  property,  real  or  per- 
sonal, one  may  acquire  a  title  to  it,  or  ownership,  superior  in  law  to  that  of 
another,  who  may  be  able  to  prove  an  antecedent  and  at  one  time  paramount 
title.  This  superior  or  antecedent  title  has  been  lost  by  the  laches  of  the  per- 
son holding  it,  in  failing  within  a  reasonable  time  to  assert  it  effectively;  as, 
by  resuming  the  possession  to  which  he  was  entitled,  or  asserting  his  right 
by  suit  in  the  proper  court.  What  the  primary  owner  has  lost  by  his  laches, 
the  other  party  has  gained  by  continued  possession,  without  question  of  his 
right.  This  is  the  foundation  of  the  doctrine  of  prescription,  a  doctrine 
which,  in  the  English  law,  is  mainly  applied  to  incorporeal  hereditaments,  but 
which,  in  the  Roman  law,  and  the  codes  founded  on  it,  is  applied  to  property 
of  all  kinds.  *  *  *  Possession  has  always  been  a  means  of  acquiring  title 
to  property.  It  was  the  earliest  mode  recognized  by  mankind  of  the  appro- 
priation of  anything  tangible  by  one  person  to  his  own  use,  to  the  exclu- 
sion of  others,  and  legislators  and  publicists  have  always  acknowledged  its 
efficacy  in  confirming  or  creating  title.  *  *  *  It  may,  therefore,  very  well 
be  held  that  in  an  action  to  recover  real  or  personal  property,  where  the  ques- 
tion is  as  to  the  removal  of  the  bar  of  the  statute  of  limitations  by  a  legisla- 
tive act  passed  after  the  bar  has  become  perfect,  that  such  act  deprives  the 
party  of  his  property  without  due  process  of  law.  The  reason  is  that,  by  the 
law  in  existence  before  the  repealing  act,  the  property  had  become  the  de- 
fendant's. Both  the  legal  title  and  the  real  ownership  had  become  vested  in 
him,  and  to  give  the  act  the  effect  of  transferring  this  title  to  plaintiff  would 
be  to  deprive  him  of  his  property  without  due  process  of  law.  But  we  are 
of  opinion  that  to  remove  the  bar  which  the  statute  of  limitations  enables  a 
debtor  to  interpose  to  prevent  the  payment  of  his  debt  stands  on  very  dif- 
ferent ground."— Miller,  J.,  in  Campbell  v.  Holt,  115  U.  S.  020,  622-024,  G 
Sup.  Ct.  209,  29  L.  Ed.  4S:J  (1SS5).  The  court's  view  as  to  tangible  property 
is  generally  followed. 

Retroactive  Changes  in  Tenure  of  Property  and  in  Expectant  In- 
terests.— Existing  estates  tail    may  be   turned   into  fees  by  the  legislature.. 


('ll.l.3)  CIVIL    RETROACTIVE    LAWS  .k~. 


STEGER  v.  TRAVELING  MEN'S  BUILDING  &  LOAN  ASS'N. 

(Supreme   Court  of  Illinois,   lOui.     208   ill.  236,  70  N.   E.  SM,    loo  Am. 
St  Rep.  226.) 

[Appeal  from  Superior  Court  of  Cook  County.  On  June  18,  1894, 
Joseph  Strozewski  and  his  wife  gave  a  trust  deed  upon  their  home- 
stead estate  to  secure  $3,300  loaned  to  them  by  the  Traveling  Men's 
Building  &  Loan  Association.  This  trust  deed  was  invalidly  acknowl- 
edged before  a  notary  who  was  an  officer  and  stockholder  in  said  as- 
sociation, and  therefore  created  no  lien  upon  the  homestead  under 
the  law  then  in  force.  On  August  2,  1894,  a  second  validly  executed 
trust  deed  was  given  by  the  Strozewskis  to  one  Gilman,  trustee,  to 
secure  four  notes,  aggregating  $443,  given  to  contractors  in  part  pay- 
ment of  a  building  erected  on  the  premises,  and  two  other  unsecured 
notes  were  also  given  for  work  on  the  building.  The  payees  of  these 
notes  knew  of  the  prior  trust  deed.  On  October  28,  1895,  judgment 
was  recovered  on  the  two  latter  notes  and  execution  levied  upon  the 
homestead.  On  November  20,  1901,  the  Building  Association  began 
suit  to  foreclose  its  trust  deed.  On  July  21,  1902,  Steger  purchased 
the  judgment  and  the  notes  secured  by  the  Gilman  trust  deed.  On 
.May  15,  1903,  the  legislature  enacted  a  statute  curing  the  defective 
acknowledgment  of  the  first  trust  deed.  The  Superior  Court  held 
that  this  made  said  deed  a  first  lien  and  decreed  accordingly  in  the 
foreclosure  suit.     Other  facts  appear  in  the  opinion. J 

Mr.  Justice  CartwrighT.  *  *  *  The  trust  deed  securing  the 
building  association,  when  executed,  was  null  and  void  as  to  the  es- 
tate of  homestead  (Ogden  Building  &  Loan  Ass'n  v.  Mensch  [  196  111. 
554,  63  N.  E.  1049,  89  Am.  St.  Rep.  330]),  and  so  remained  until  the 
curative  act  of  1903  took  effect.  The  Gilman  trust  deed  and  the  judg- 
ment are  prior  liens  on  the  homestead  estate,  unless  that  act  had  a 
retroactive  effect  to  validate  the  lien  of  the  building  association  from 

Carroll  v.  Olmsted,  16  Ohio,  251  (1847):  De  Mill  v.  Loekwood,  3  Blatchf. 
~>(i,  Fed.  Caa.  No.  3,782  (1853);  and  a  grant  in  fee  by  a  tenant  in  tall  may  be 
later  confirmed  by  statute,  Comstock  v.  Gay,  51  Conn.  46  (1883).  Joint  ten- 
ancies may  lie  tinned  into  tenancies  in  common.  Head  v.  Amoskeag  Co.,  ante, 
li.  626,  Bote  1  :    "I   may   lie  sold  and  the  Ivided,  Richardson  v.  fcfon- 

sini,  28  Conn.  94  (1854).  Compare  s,,hior  v.  Mass.  Hospital,  .'5  Cuah.  (Mass.) 
in:;  (184ft);  I'.revoort  v.  Grace,  68  X.  V.  246  (1873);  Linsley  v.  Hubbard,  44 
Conn.    LOft,  26  Am.   Rep.  431  (1S76). 

interests  in  property  acquired  through  the  marital  relation  cannot  be  ab- 
rogated, once  they  have  vested.    As  to  when  such  vesting  takes  pi: In  re- 
spect of  various  interests,  see  Hershlzer  v.  Florence,  38  Ohio  St  516  (1883) 
i. -state  jure  uxoris) ;    Hose  v.  Rose,   104   Ky-    B,   18  S,  \v.  524,   n    i-   B    a. 
:;:.:;.  84  Am.  st.  Rep.  480  (1898)  (same,  and  chattels  of  wife):    Weatervelt  v. 
Gregg,  12  N.  v.  202.  62  Am.  Dec.  160  (1854)  (chosea  in  action  of  wife) 
ander  v.  Alexander,  85  Va.  :•..".:•,.  .",70.  7  S.  E  335,  1  U  R.  a.  12:.  (1888)  (same— 
,-ases:    and  curtesy);    McNeer  v.  McNeer,   142   III.  888,  82  N.   B.  681,    1'.)  I. 
u.  A.  256  (1892)                    Noel  v.  Owing,  :»  Ind.  .".7  >  i^r.7>  (dower);    Randall 
v.  Erleger,  2::  Wall  137,  148,  2::  1..  Ed.  121  iis7."o  (dower);   strong  ^ 
12  Ind.  37,  74  Am.  Per.  200  (1859)  (intervening  purchasers  protected*, 
on  all  points  are  collected  in  19  L.  R.  A    25 


888  FUNDAMENTAL    BIGHTS  (Part  2 

the  time  of  the  original  transaction.  The  validity  of  that  act  is  at- 
tacked by  appellant  on  several  grounds.  It  is  first  contended  that  it 
is  not  a  law,  but  a  mere  legislative  direction  to  the  courts  to  decide 
and  adjudge  in  a  particular  manner,  and  is  therefore  an  invasion  of 
the  province  of  the  judicial  department.  The  act  provides,  *  *  * 
[in  substance,  that  all  written  instruments  affecting  real  estate  in  the 
state,  wherein  a  corporation  was  a  party,  which  have  been  acknowl- 
edged before  a  proper  officer  in  conformity  to  the  statutes  of  the  state, 
"shall  be  adjudged  and  treated  by  all  courts  of  this  state  as  legally 
executed  and  acknowledged,"  notwithstanding  said  officer  was  at  the 
time  an  officer  or  stockholder  of  such  corporation,  and  all  such  prior 
acknowledgments  "are  hereby  legalized."]  There  is  language  in  the  act 
which,  standing  alone,  might  be  interpreted  as  a  mandate  of  the  Leg- 
islature to  decide  cases  arising  prior  to  the  enactment  according  to 
the  legislative  will.  The  Legislature  cannot  exercise  judicial  power, 
either  directly  or  through  a  legislative  command ;  but  the  substance 
of  this  act  is  that  acknowledgments  taken  before  an  officer  or  stock- 
holder of  a  corporation  shall  be  legal  and  valid,  and  that  acknowledg- 
ments so  taken  before  the  passage  of  the  act  are  legalized.  That  is 
not  an  exercise  of  judicial  power,  since  it  does  not  purport  to  settle 
suits  or  controversies,  but  only  gives  effect  to  acknowledgments  in  a 
matter  under  the  legislative  control.1  The  legislature  might  doubtless 
have  provided  by  a  prior  law  that  an  acknowledgment  could  lawfully 
be  taken  before  an  officer  or  stockholder  of  a  corporation,  and  the  act 
goes  no  further  than  to  bind  the  mortgagor  where  the  acknowledg- 
ment is  void  by  reason  of  personal  disability  *of  the  officer  to  take  it. 
The  Legislature  may  ratify  and  confirm  any  act  which  it  might  law- 
fully have  authorized  in  the  first  instance,  where  the  defect  arises  out 
of  the  neglect  of  some  legal  formality  and  the  curative  act  interferes 
with  no  vested  rights.2  United  States  Mortgage  Co.  v.  Gross,  93  111. 
483.     *     *     * 

i  Accord :  Singer  Mfg.  Co.  v.  McCollock  (C.  C.)  24  Fed.  667  (1884).  Con- 
tra :  Commonwealth  v.  Warwick,  172  Pa.  140,  33  Atl.  373  (1S95)  (similar  lan- 
guage held  an  exercise  of  judicial  power). 

2  "All  acts  curing  irregularities  in  legal  proceedings  necessarily  divest  vested 
rights  of  the  parties,  by  closing  the  mouths  of  those  who  could  otherwise 
avail  themselves  of  such  irregularities  to  escape  from  the  fulfillment  of  what 
is  a  moral  obligation;  and,  but  for  the  irregularity,  would  be  a  legal  lia- 
bility. So  wherever  formal  defects  in  the  execution  or  acknowledgment  of 
deeds,  mortgages,  or  other  conveyances,  are  remedied  by  legislation,  those 
who  might  have  pleaded  and  relied  on  such  defects  are  debarred  of  that  which 
would  otherwise  have  been  a  legal  vested  right.  To  deny  the  validity  of  such 
laws  would  be  to  run  the  ploughshare  through  hundreds  of  titles  which  are 
founded  and  repose  in  security  upon  them.  Thus  an  act,  curing  an  irregular- 
ity in  the  entry  of  a  judgment,  was  held  to  be  within  the  legitimate  province 
of  the  legislature  in  Underwood  v.  Lilly,  10  Serg.  &  R.  (Pa.)  97.  The  various 
acts  passed  at  different  times,  rendering  valid  defective  acknowledgments  of 
deeds  by  married  women,  whether  merely  to  bar  the  right  of  dower  or  to  con- 
vey their  own  estate  in  fee  simple,  so  as  to  make  such  deeds,  which  would 
otherwise  be  void,  good  against  them  and  tbeir  heirs,  have  been  solemnly  de- 
cided to  be  constitutional  in  Tate  v.  Stooltzfoos,  16  Serg.  &  R.  (Pa.)  35,  16 
Am.  Dec.  546,  and  Mercer  v.  Watson,  1  Watts  (Pa.)  330.     In  the  case  last  cited 


Ch.  13)  CIVIL   RE'l'ituAfl'IVE    LAWS  889 

The  third  proposition  we  consider  sound,  and  it  is  that  the  act  can- 
not have  the  effect  to  deprive  appellant  of  his  vested  rights,  and  trans- 
fer them  to  the  building  association,  which  would  constitute  a  taking 
of  property  without  due  process  of  law.  Under  the  law  of  the  land 
the  building  association  had  no  lien  on  the  homestead  prior  to  the 
passage  of  the  curative  act  of  1903.  After  the  execution  of  the 
trust  deed  securing  the  building  association,  Strozewski  was  still 
vested  with  a  perfect,  unincumbered  title  to  the  estate  of  homestead; 
and  on  August  2,  1894,  that  estate  was  conveyed  to  Gilman,  in  trust 
to  secure  the  holders  of  the  four  notes.  The  judgment  was  recov- 
ered on  two  notes  given  for  improving  the  homestead,  and  a  levy 
was  made  on  the  homestead  estate  under  an  execution  issued  on  that 
judgment.  Under  the  law  the  judgment  was  a  second  lien  on  the 
homestead.  A  mortgage  lien  and  a  judgment  which  is  a  lien  are  each 
vested  rights  of  property,  and  in  this  case  both  had  become  vested 
before  the  passage  of  this  act.  It  is  not  within  the  power  of  the  Leg- 
islature to  transfer  such  vested  rights  from  one  to  another.  Lane  v. 
Soulard,  15  111.  123;  Russell  v.  Rumsey,  35  111.  362;  Conway  v.  Cable, 
37  111.  82,  87  Am,  Dec.  240;  Rose  v.  Sanderson,  38  111.  247.  To  make 
vested  prior  liens  inferior  and  subsequent  to  a  trust  deed  which  was 
not  a  lien  when  such  rights  vested  would  be  to  transfer  property 
from  one  to  another  by  legislative  enactment.  Appellant  was  pur- 
chaser of  the  securities,  pendente  lite,  and  took  them  subject  to  all 
equities  existing  against  them  in  the  hands  of  his  assignors,  and  sub- 
ject to  any  decree  which  might  have  been  entered  against  such  as- 
signors. Perhaps  this  would  have  been  the  case  whether  he  pur- 
chased during  the  pendency  of  the  suit  or  before.  At  any  rate,  it 
cannot  be  denied  that  he  took  the  liens  subject  to  any  equities  existing 
against  the  original  holders.  The  building  association,  however,  had 
no  equities  which  could  overcome  the  legal  and  equitable  rights  of  ap- 
pellant's assignors.  Much  of  the  argument  on  behalf  of  appellees  re- 
lates to  such  supposed  equities  treated  as  synonymous  with  natural 
justice,  but  it  must  be  remembered  that,  while  equity  is  based  upon 

the  heirs  of  the  wife  had  recovered  the  land  and  remained  In  possi  sslon  of  it 
seventeen  years;  when,  after  the  passage  of  an  acl  curing  1 1  alienee 

brought  ejectment,  and  judgment  was  finally  given  iu  his  favor." — Grim  v. 
Welssenberg  School  Dlst,  57  Pa.  433,  435,  136,  98  Am.  Deo.  237  (1868),  by 
Sharswood,  J. 

Transfers  at  Death. — Wills,  defective  either  in  mode  of  execution  or  In 
legality  of  disposition  of  property,  may  not  be  validated  after  the  testator'a 
death.'  Greenougb  v.  Qreenough,  11  Pa.  isi>.  53  Am.  Dec.  567  (1849)  (di 
execution);  Alter's  Appeal,  1.7  Pa,  841,  0  Am  Rep,  133  (1871)  (execution  of 
wrong  Instrument);  Hillyard  v.  Miller.  10  Pa.  326  (1849)  (creation  of  void 
trust);  Southard  v.  Cent.  R.  R.,  26  N.  J.  Law,  18  (1856)  (property  not  devisa- 
ble); State  v.  Warren.  28  Md.  838  (1867)  (legatee  not  yet  In porated).    Nor 

may  the  rules  of  Inheritance  be  changed  after  descent  '-ast.    Norman  r.  H< 
5  Watts  &  s.  (Pa.)  in.  40  Am.  Dec.  493  (1843);  RocS  Hill  College  v.  Jones,  it 

Mil.    1    (1NTTK      Of   Course,    where   the   trs(:it<>r    is   still    livinu'.    legislation    may 

validly  affect  wills  previously  executed.     Loi  •prey.  22  N,  n    I   I 

(1851)  (although  retroactive  tews  expressly  forblddei 

man,  26  Ala.  :.."..">  (1865)  (construction  of  such  statutes). 


890  FUNDAMENTAL    RIGHTS  (Part  2 

moral  right  and  natural  justice,  it  is  not  coextensive  with  them.  Equi- 
ties are  rights  which  are  established  and  enforced  in  accordance  with 
the  principles  of  equity  jurisprudence  under  some  general  principle  or 
acknowledged  rule  governing  courts  of  equity.  1  Pom.  Eq.  Jur.  46, 
47.  .The  building  association  did  not,  by  virtue  of  its  loan  or  its  trust 
deed,  acquire  any  equitable  estate  in  the  homestead.  No  court  of 
equity  would  think  of  decreeing  an  equitable  estate  in  a  homestead 
under  a  mortgage  which  in  the  law  did  not  create  any  lien.  All  deeds 
or  instruments  of  writing  for  the  alienation  of  a  homestead  are  in- 
valid unless  the  homestead  is  released  in  the  manner  prescribed  by  the 
statute,  and,  if  a  mortgage  contains  no  release  or  waiver  of  the  home- 
stead, a  court  of  equity  cannot  make  the  mortgage  effectual  against 
such  estate.  Stodalka  v.  Novotny,  144  111.  125,  33  N.  E.  534.  The 
lien  of  the  building  association  was  subject  to  the  homestead  estate 
of  Strozewski,  but  in  the  trust  deed  to  Oilman  the  homestead  was  re- 
leased and  waived,  and  in  such  a  case  the  second  mortgage  is  entitled 
to  priority  over  the  first  to  the  extent  of  $1,000.  Shaver  v.  Williams, 
87  111.  469;  Eldridge  v.  Pierce,  90  111.  474.  The  act  can  have  no 
effect  as  against  subsequent  bona  fide  purchasers,  who  cannot  be  de- 
prived of  their  property  by  legislative  enactment.  The  right  of  a  per- 
son having  a  vested  interest  is  secure  against  any  act  of  the  Legisla- 
ture. Cooley's  Const.  Lim.  378;  Fisher  v.  Green,  142  111.  SO,  31  N. 
E.  172.  It  would  not  be  contended  that,  if  Strozewski  had  conveyed 
the  premises  to  a  third  person,  the  Legislature  could  deprive  him  of 
his  title  by  validating  the  acknowledgment,  so  that  the  homestead 
estate  could  be  appropriated  to  the  payment  of  the  debt  to  the  build- 
ing association.  In  the  case  of  United  States  Mortgage  Co.  v.  Gross, 
supra,  it  was  held  competent  for  the  Legislature  to  validate  a  mort- 
gage by  a  curative  act,  on  the  ground  that  the  purchaser  had  no  vested 
right  to  keep  property  released  from  a  debt  which  he  was  paid  for 
assuming.  It  would  have  been  inequitable  and  unjust  to  permit  a 
purchaser  to  hold  valuable  property  discharged  of  a  debt  which  was 
a  large  portion  of  the  purchase  price,  and  which  he  had  agreed  to 
pay.  There  are  no  such  equities  in  this  case.  *  *  * 
Decree  reversed.8 

s  Accord :  Merchants'  Bank  v.  Ballou,  98  Va.  112,  32  S.  E.  481,  44  L.  R. 
A.  306,  81  Am.  St.  Rep.  715  (1899)  (intervening  judgment  lien). 

Contra:  Evans-Snider-Buel  Co.  v.  McFaddin,  105  Fed.  293,  44  C.  C.  A. 
494,  58  L.  R.  A.  900  (1900)  (attachment  lien  and  judgment  thereunder),  affirmed 
in  185  U.  S.  505,  22  Sup.  Ct.  758,  46  L.  Ed.  1012  (1902).  As  to  attachment 
liens,  see  105  Fed.  at  297-299,  44  C.  C.  A.  494,  5S  L.  R.  A.  900,  and  cases  cited ; 
and  as  to  mechanics'  liens,  Wilson  v.  Simon,  91  Md.  1,  45  Atl.  1022,  SO  Am. 
St  Rep.  427  (1900)  (citing  cases). 

In  McFaddin  v.  Evans-Snider-Buel  Co.,  1S5  U.  S.  505,  511,  22  Sup.  Ct  758, 
760,  46  L.  Ed.  1012  (1902),  Shiras,  J.,  said :  "The  condition  of  the  [attachment- 
judgment  creditor]  is  very  different  from  that  of  a  purchaser  for  a  valua- 
ble consideration  without  notice  of  an  alleged  prior  incumbrance.  It  cannot 
be  said  that  they  parted  with  any  money  or  other  valuable  consideration  in 
reliance  upon  the  disclosures  of  the  registry  record.  The  indebtedness  of 
Blocker  to  them  had  accrued  years  before.    If  the  problem  were  made  to  turn 


Ch.  13)  CIVIL   BKTIlOACTIVE    LAW8  891 

SHONK  v.  BROWN  (1869)  61  Pa.  320,  327.  Land  was  devised 
to  a  married  woman  for  her  separate  use,  without  power  to  convey 
during  her  coverture.  Invalidly  purporting  to  act  under  a  married 
women's  property  act,  the  devisee  conveyed  the  land  to  one  Dorrance 
and  died  before  her  husband.  An  act  of  the  legislature  undertook  to 
confirm  her  deed.  Her  heirs  succeeded  in  an  action  of  ejectment 
against  the  transferee  of  Dorrance;    Aonew,  J.,  saying: 

"Many  cases  have  been  cited  to  prove  that  this  legislation  is  merely 
confirmatory  and  valid,  beginning  with  Barnet  v.  Barnet,  15  Serg.  & 
R.  72,  16  Am.  Dec.  516,  and  ending  with  Journcay  v.  Gibson,  6  P.  F. 
Smith  (56  Pa.)  57.  The  most  of  them  are  cases  of  the  defective  ac- 
knowledgments of  deeds  of  married  women.  Hut  there  is  a  marked 
difference  between  them  and  this.  In  all  of  them  there  was  a  power 
to  convey,  and  only  a  defect  in  the  mode  of  its  exercise.  Here  there 
is  absolute  want  of  power  to  convey  in  any  mode.  In  ordinary  cases 
a  married  woman  has  both  the  title  and  the  power  to  convey  or  to 
mortgage  her  estate,  but  is  restricted  merely  in  the  manner  of  its  ex- 
ercise. This  is  a  restriction  it  is  competent  for  the  legislature  to  re- 
move, for  the  defect  arises  merely  in  the  form  of  the  proceeding  and 
not  in  any  want  of  authority.  Those  to  whom  her  estate  descends, 
because  of  the  omission  of  a  prescribed  form,  are  really  not  injured 
by  the  validation.  It  was  in  her  power  to  cut  them  off,  and  in  truth 
and  conscience  she  did  so,  though  she  failed  at  law.  They  cannot 
complain,  therefore,  that  the  legislature  intervenes  to  do  justice.  But 
the  case  before  us  is  different.  Mrs.  Atherton  had  neither  the  right 
nor  the  power  during  coverture  to  cut  oil  her  heirs.  She  was  forbid- 
den by  the  law  of  the  gift  which  the  donor  impressed  upon  it  to  suit 
his  own  purposes.  Her  title  was  qualified  to  this  extent.  Having 
done  an  act  she  had  no  right  to  do  there  was  no  moral  obligation  for 
the  legislature  to  enforce.  Her  heirs  have  a  ri^ht  to  say :  'This  was 
our  grandfather's  will.  The  estate  was  vested  in  us  because  there 
was  no  power  to  prevent  it  in  accordance  with  his  will.     The  legisla- 

upon  the  equities  between  the  two  classes  of  creditors,  the  solution  would  be 
one.     With  the  legal  title  to  the  property  In  the  eommoo  debtor,  no 
court  (if  equity  would  prefer  the  lien  of  B  mere  attachment  to  that  of  a  prior 
e   given   to   secure  the  money   advanced   to  purchase  the   property,    if 
the  atl  litor  had  actual   knowledge  of  the  existence  and  nature 

of  the  mortgage.  And  we  agree  with  the  circuit  court  of  appeals,  that  while 
it  is  not  necessary  to  enter  Into  the  question  of  the  comparative  equities  of 
the  parties,  yet,  when  the  validity  of  the  curative  act  Is  ed  upon, 

that,  in  circumstances  like  those  of  the  present  cas  not  be  Just- 

ly Impugned  as  depriving  the  attaching  creditor  of  property  within  the  mean- 
ing of  t  he  Const  11  ul 

The   rights  of   Intervening  purchasers   for  value  cannot   be  cut   off  by   the 
i  of  prior  transactions.     Bolton  v.  Johns,  S  Pa.  145,  -it 
Am.  Dec.  104  (1847)  (purchaser's  notice  of  prior  invalid  transaction  Immateri- 
al);   Melghen  v.  Strong,  6  Minn.  177  (GIL  111),  80  Am.  Dea  441  (IS 
Brinton  v.  Seevers,  12  lowa,  389  (1861). 


892  FUNDAMENTAL    RIGHTS  (Part  2 

ture  cannot  take  our  estate  and  vest  it  in  another  who  bought  it  with 
notice  on  the  face  of  his  title  that  our  mother  could  not  convey  to 
him.' " 


LANE  v.  NELSON. 

(Supreme  Court  of  Pennsylvania,  1875.     79  Pa.  407.) 

[Error  to  Court  of  Common  Pleas  of  Jefferson  county.  Upon  the 
death  of  John  Nelson,  the  Orphans'  Court  of  that  county  ordered  his 
real  estate  sold  to  pay  his  debts,  all  parties  and  the  court  supposing 
the  land  to  be  in  that  county.  Patton  bought  the  land  at  this  sale 
and  his  title  came  to  Lane.  Some  years  later  it  was  discovered  that 
the  land  was  in  Clearfield  county,  and  Nelson's  heirs  began  an  eject- 
ment suit  to  recover  it.  While  the  suit  was  pending  the  legislature 
validated  the  above  sale.  The  plaintiffs  received  a  verdict,  and  Lane 
took  this  writ  of  error.     Other  facts  appear  in  the  opinion.] 

Paxson,  J.  It  is  settled  by  a  current  of  authority  that  the  legisla- 
ture cannot,  by  an  arbitrary  edict,  take  the  property  of  one  man  and 
give  it  to  another ;  and  that  when  it  has  been  attempted  to  be  taken 
by  a  judicial  proceeding,  as  a  sheriff's  sale,  which  is  void  for  want  of 
jurisdiction,  it  is  not  in  the  power  of  the  legislature  to  infuse  life  into 
that  which  is  dead.  Norman  v.  Heist,  5  Watts  &  S.  171,  40  Am. 
Dec.  498;  Greenough  v.  Greenough,  1  Jones  (11  Pa.)  489,  51  Am. 
Dec.  567;  De  Chastellux  v.  Fairchild,  3  Harris  (15  Pa.)  18,  53  Am. 
Dec.  570;  Menges  v.  Dentler,  9  Casey  (33  Pa.)  495,  75  Am.  Dec.  616; 
Baggs'  Appeal,  7  Wright  (43  Pa.)  512,  82  Am.  Dec.  583;  Schafer  v. 
Eneu,  4  P.  F.  Smith  (54  Pa.)  304;  Shonk  v.  Brown,  11  P.  F.  Smith 
(61  Pa.)  320;  Richards  v.  Rote,  18  P.  F.  Smith  (68  Pa.)  248;  Heg- 
arty's  Appeal,  25  P.  F.  Smith  (75  Pa.)  503.  To  exercise  judicial  pow- 
ers is  not  within  the  legitimate  scope  of  legislative  functions ;  and 
when  vested  rights  are  divested  by  acts  of  that  character  they  will 
and  ought  to  be  judged  inoperative,  null  and  void.  Baggs'  Appeal. 
On  the  other  hand,  if  an  Act  of  Assembly  is  strictly  within  the  scope 
of  legislative  power,  it  is  not  a  valid  objection  that  it  divests  vested 
rights.     *     *     * 

Legislation  of  the  character  referred  to  is  no  novelty  in  this  state. 
We  have  numerous  instances  in  which  it  has  been  invoked  for  a  great 
variety  of  purposes.  In  some  cases  it  has  been  sustained,  and  in  oth- 
ers declared  unconstitutional.  The  boundary  line  between  the  do- 
mains of  authorized  and  prohibited  legislation  is  not  very  clearly 
defined.  Acts  of  Assembly  passed  at  different  times  to  render  valid 
defects  in  acknowledgment  of  deeds  have  been  sustained,  although  the 
effect  of  them  was  to  interfere  with  vested  rights.  Tate  v.  Stooltzfoos, 
16  Serg.  &  R.  35,  16  Am.  Dec.  546;  Mercer  v.  Watson,  1  Watts,  330. 
In  like  manner  Acts  of  Assembly,  to  remedy  defects  in  judicial  pro- 
ceedings, have  been  held  to  be  valid.     Thus  an  act  curing  an  irregu- 


Ch.  13)  CIVIL   BETEOACTIVH    LAWS  893 

larity  in  the  entry  of  a  judgment  was  held  to  be  within  the  legitimate 
province  of  the  legislature.  Underwood  v.  Lilly,  10  Serg.  &  . 
In  iJleakney  v.  Bank  of  Greencastle,  17  Serg.  &  R.  64,  17  Am.  Dec. 
635,  an  act  validating  suits  pending  was  sustained.  In  Estep  v.  Hutch- 
man,  14  Serg.  &  R.  435,  a  private  act,  authorizing  a  guardian  to  con- 
vey land  sold  by  the  father  of  his  ward  and  paid  for  by  the  purchaser, 
was  sustained.  In  the  case  of  Turnpike  Company  v.  Commonwealth, 
2  Watts,  433,  the  broad  principle  is  asserted  that  where  a  right  ex- 
ists, but  no  remedy  to  enforce  it,  it  is  within  the  constitutional  power 
of  the  legislature  to  provide  one.  In  Smith  v.  Merchand's  Executors, 
7  Serg.  &  R.  260,  10  Am.  Dec.  465,  an  act  to  enable  purchasers  of 
defective  tax  titles  to  recover  back  from  the  county  commissioners 
what  they  had  paid  over  and  above  the  taxes,  was  sustained,  though 
the  purchaser  had  no  previous  title  to  recover.  In  Grim  v.  Weissen- 
berg  School  District  [7  P.  F.  Smith  (57  Pa.)  433,  98  Am.  Dec.  2371 
an  illegal  tax  had  been  collected,  under  protest;  after  the  party  had 
brought  suit  to  recover  it  back,  an  act  legalizing  the  tax  was  passed, 
and  it  was  held  that  the  act  defeated  the  cause  of  action,  and  was 
not  unconstitutional  for  the  reason  that  the  legislature  having  the 
power  antecedent  to  authorize  the  tax,  could  cure  any  irregularity  or 
want  of  authority  in  levying  it  by  a  retroactive  law. 

While  the  legislature  may  not  by  a  retroactive  law  render  valid  ju- 
dicial proceedings  which  were  utterly  void  for  want  of  jurisdiction, 
as  in  Richards  v.  Rote,  before  cited,  it  is  equally  clear  that  in  cases 
where  the  jurisdiction  has  attached,  and  there  has  been  a  formal  de- 
fect in  the  proceedings,  where  the  equity  of  the  party  is  complete,  and 
all  that  is  wanted  is  legal  form,  it  is  within  the  recognized  power  of 
the  legislature  to  correct  such  defect  and  to  provide  a  remedy  for  the 
regal  right.  The  Orphans'  Court  of  Jefferson  county  had  jurisdiction 
in  this  matter.  Having  jurisdiction  over  the  accounts  of  the  admin- 
istrator it  had  the  right  to  order  a  conversion  of  the  real  estate  of  the 
decedent  lor  the  payment  of  his  debts.  It  is  true,  that  as  to  land  lying 
in  Clearfield  county,  the  Orphans'  Court  of  Jefferson  county  could 
not  consummate  the  conversion  of  the  real  estate  in  Clearfield  county 
into  money  without  the  aid  of  the  Orphans'  Court  of  the  latter  county. 
Cut  in  this  matter  the  Orphans'  Court  of  Clearfield  county  is  merely 
ancillary  to  the  Orphans'  Court  of  Jefferson;  the  latter  court  is  the 
actor,  but  it  uses  the  hand  of  the  Orphans'  Court  of  Clearfield  to  ex- 
ecute its  decree.     It  is  an  undisputed  fact,  that  at  the  time  of  the  Or- 

i  Judgments  invalid  for  more  Irregularities  may  be  retroactively  cured  by 
Walpole  v.  Elliott,  is  Ind.  258,  81  Am.  Dec  Muncle  Bank 

v.  Miller,  '.)l   ind.   hi  (1883);    Tilton  v.  Swift  .v  Co.,  40  Iowa,  18  (lb74);  but 

it  said  that  iiiis  may  not  be  done  where  the  court  was  without 

noil.  Richards  v.  Bote,  68  Pa.  248  (1871);    Pryor  v.  Downey, 

888,    19  Am.   Rep.   656  (1875)   (cases   .    State  r.   Doherty,  60  Me,   504  (1872) 
-  .     But  see  Mechanics'   Bank  v.  Onion   Bank,  2! 

L'Tii.  298,  22   I..    1.'!.  871  (1875);    Simmons  v.   Hani 

Compare  Meigs  v.  Roberta,  post,  p.  ■'■'-.  note,  and  comment  as  to  the 

meaning  of  ••jurisdictional." 


894  FUNDAMENTAL    RIGHTS  (Part  2 

phans'  Court  sale  it  was  not  known  to  the  counsel,  the  parties,  or  the 
court,  that  the  land  described  in  the  petition  was  situated  wholly  in 
Clearfield  county.  It  was  not  known  until  long  after  the  sale  had 
been  made  and  confirmed  and  the  purchase  money  paid.  The  pur- 
chase money  was  properly  applied  to  the  payment  of  the  decedent's 
debts.  We  have  here  the  case  of  a  defect  in  a  judicial  proceeding  in 
a  case  in  which  the  court  had  jurisdiction,  with  a  complete  equitable 
right  in  the  purchaser  at  the  Orphans'  Court  sale,  but  without  any 
legal  form  or  remedy  by  which  such  right  may  be  asserted  and  sus- 
tained. The  Act  of  Assembly  does  no  more  than  provide  such  legal 
remedy.  It  interferes  with  no  man's  right.  It  does  not  take  the  prop- 
erty of  one  person  and  give  it  to  another.  It  is  true,  it  does  prevent 
the  plaintiffs  below  from  wresting  property  for  which  they  have  paid 
nothing  from  the  hands  of  honest  holders  who  have  paid  full  value. 
The  plaintiffs  are  mere  volunteers.  It  is  true,  that  upon  the  death  of 
John  Nelson,  his  real  estate  descended  to  and  vested  in  his  heirs.  But 
it  vested  in  them  subject  to  the  payment  of  his  debts.  It  was  sold 
under  the  authority  of  a  judicial  decree  for  that  purpose;  that  the 
proceedings  were  technically  defective,  and  have  been  validated  by  a 
legislative  enactment,  works  no  injustice  to  any  of  the  heirs- at-law 
of  John  Nelson.     *     *     * 

Judgment  reversed.2 

[Mercur,  J.,  dissented.] 


UNITED  STATES  v.  HEINSZEN  (1907)  206  U.  S.  370,  382,  386, 
387,  27  Sup.  Ct.  742,  51  L.  Ed.  1098,  11  Ann.  Cas.  688,  Mr  Justice 
White  (upholding  a  federal  statute  of  1906,  ratifying  the  collection 
of  tariff  duties  illegally  imposed  upon  imports  into  the  Philippine  Is- 
lands between  1899  and  1902,  and  passed  while  this  suit  was  pending 
to  recover  them  as  paid  under  protest) : 

"That  where  an  agent,  without  precedent  authority,  has  exercised, 
in  the  name  of  a  principal,  a  power  which  the  principal  had  the  capa- 
city to  bestow,  the  principal  may  ratify  and  affirm  the  unauthorized 
act,  and  thus  retroactively  give  it  validity  when  rights  of  third  per- 
is Accord :  Menges  v.  Wertman.  1  Pa.  218  (1845)  (sheriff's  deed  on  mortgage 
foreclosure  to  land  in  next  county)  [but  see  Dale  v.  Medcalf,  9  Pa.  108  (1S4S) ; 
Menges  v.  Dentler,  33  Pa.  495,  75  Am.  Dec.  616  (1S59)];  Beach  v.  Walker, 
6  Conn.  190  (1S26)  (sheriff's  conveyance  on  execution  sale,  amount  of  just 
but  illeeal  fees  being  added);  Smith  v.  Callaghan,  66  Iowa,  552,  24  N.  W. 
50  (1SS5)  (executor's  conveyance  under  power  of  sale,  without  required  order 
of  court) ;  Kearney  v.  Taylor,  15  How.  494,  14  L.  Ed.  787  (1853)  (irregular 
deed  at  sale  under  order  of  probate  court). 

See  Finlayson  v.  Peterson,  5  N.  D.  587,  592.  67  N.  W.  953,  33  L.  R.  A.  532. 
57  Am.  St.  Rep.  584  (1896)  (mortgage  foreclosure  cannot  be  validated  where 
notice  of  sale  published  shortly  less  than  statutory  period),  Corliss,  J.,  ad- 
mitting, however,  that  even  a  void  proceeding,  except  a  judicial  proceeding 
void  for  want  of  jurisdiction,  could  be  validated,  "if  it  would  be  grossly  un- 
just for  the  person  against  whom  the  healing  law  is  directed  to  insist  upon 
his  purely  technical  rights,  destitute  of  all  equity.  But  the  case  should  be  a 
clear   one." 


Ch.  13)  CIVIL   RETROACTIVE    LAWS  895 

sons  have  not  intervened,  is  so  elementary  as  to  need  hut  statement. 
That  the  power  of  ratification  as  to  matters  within  their  authority 
may  be  exercised  by  Congress,  state  governments,  or  municipal  cor- 
porations, is  also  ejementary.  *  *  *  [Here  are  discussed  Ham- 
ilton v.  Dillin,  21  Wall.  73,  22  L.  Ed.  528,  and  Mattingly  v.  Dist. 
Columbia,  97  U.  S.  687,  24  L.  Ed.  1098.] 

"It  is  urged  that  the  ratifying  statute  cannot  be  given  effect  with- 
out violating  the  fifth  amendment  to  the  Constitution,  since  to  give 
efficacy  to  the  act  would  deprive  the  claimants  of  their  property  with- 
out due  process  of  law,  or  would  appropriate  the  same  for  public  use 
without  just  compensation.  This  rests  upon  these  two  contentions: 
It  is  said  that  the  money  paid  to  discharge  the  illegally  exacted  duties 
after  payment,  as  before,  'justly  and  equitably  belonged'  to  the  claim- 
ants, and  that  the  title  thereto  continued  in  them  as  a  vested  right  of 
property.  It  is  consequently  insisted  that  the  right  to  recover  the  mon- 
ey could  not  be  taken  away  without  violating  the  fifth  amendment,  as 
stated.  But  here,  again,  the  argument  disregards  the  fact  that  when 
the  duties  were  illegally  exacted  in  the  name  of  the  United  States  Con- 
gress possessed  the  power  to  have  authorized  their  imposition  in  the 
mode  in  which  they  were  enforced,  and  hence,  from  the  very  moment 
of  collection,  a  right  in  Congress  to  ratify  the  transaction,  if  it  saw 
fit  to  do  so,  was  engendered.  In  other  words,  as  a  necessary  result  of 
the  power  to  ratify,  it  followed  that  the  right  to  recover  the  duties  in 
question  was  subject  to  the  exercise  by  Congress  of  its  undoubted 
power  to  ratify.     *     *     * 

"But  if  it  be  conceded  that  the  claim  to  a  return  of  the  moneys  paid 
in  discharge  of  the  exacted  duties  was,  in  a  sense,  a  vested  right,  it  in 
principle,  as  we  have  already  observed,  would  be  but  the  character  of 
right  referred  to  by  Kent  in  his  Commentaries,  where,  in  treating  of 
the  validity  of  statutes  retroactively  operating  on  certain  classes  of 
rights,  it  is  said  (vol.  2,  pp.  415,  416):  'The  legal  rights  affected  in 
those  cases  by  the  statutes  were  deemed  to  have  been  vested  subject 
to  the  equity  existing  against  them,  and  which  the  statutes  reo 
and  enforced.  Goshen  v.  Stonington,  4  Conn.  209,  10  Am.  Dec.  121; 
Wilkinson  v.  Leland,  2  Pet.  627,  7  L.  Ed.  542 ;  Langdon  v.  £ 
2  Vt.  234;  Watson  v.  Mercer,  8  Pet.  88,  8  L.  Ed.  876;  3  Story, 
Const.  267.' 

"Nor  does  the  mere  fact  that,  at  the  time  the  ratifying  statute  was 
enacted,  this  action  was  pending  for  the  recovery  of  the  sums  paid. 
cause  the  statute  to  be  repugnant  to  the  Constitution.  The  meri 
mencement  of  the  suit  did  not  change  the  nature  of  the  right.  Hence 
again,  if  it  be  conceded  that  the  capacity  to  prosecute  the  pending  suit 
to  judgment  was,  in  a  sense,  a  vested  right,  certainly  also  the  power 
of  the  United  States  to  ratify  was,  to  say  the  least,  a  right  of  a 
a  character.     *     *     * 

"Considering  how  far  the  bringing  of  actions  would  operate  to  de- 
prive government  of  the  power  to  enact  curative  statutes  which,  it 


896  FUNDAMENTAL    RIGHTS  (Part    2 

the  actions  had  not  been  brought,  would  have  been  unquestionably  val- 
id, Cooley,  in  his  Constitutional  Limitations,  says  (7th  Ed.  p.  543) : 
*  *  *  'The  bringing  of  suit  vests  in  a  party  no  right  to  a  particular 
decision,  and  his  case  must  be  determined  on  the  la#w  as  it  stands,  not 
when  the  suit  was  brought,  but  when  the  judgment  is  rendered.'  " 

[Brewer  and  Peckham,  JJ.,  dissented.  Moody,  J.,  did  not  sit. 
Harlan,  J.,  concurred  solely  on  the  ground  that  the  ratifying  act 
should  be  construed  as  withdrawing  the  consent  of  the  United  States 
to  be  sued  in  the  Court  of  Claims  for  said  duties  paid  under  protest, 
leaving  the  personal  liability  of  the  collector  to  be  determined.]  1 

i  Accord  (abrogation  of  right  of  action  by  ratification  of  unauthorized  act 
of  governmental  agent) :  Prize  Cases,  2  Black,  635,  070,  671,  17  L.  Ed.  459 
(1863) ;  Mitchell  v.  Clark,  110  TJ.  S.  633,  039,  640,  4  Sup.  Ct.  170,  312,  2S  L. 
Ed.  279  (1884)  (acts  of  military  officers  during  Civil  War) ;    Tiaco  v.  Forbes, 

.  228  TJ.  S.  549,  556,  33  Sup.  Ct.  585,  57  L.  Ed.  (1913)  (deportation  of  alien 

from  Philippines — cases).    Compare  McLeod  v.  U.  S.,  229  TJ.  S.  416,  33  Sup.  Ct. 

955,  57  L.  Ed. (1913).    In  Mitchell  v.  Clark,  above,  Miller,  J.,  said  (110  U.  S. 

page  640.  4  Sup.  Ct.  173,  28  L.  Ed.  279) :  "That  an  act  passed  after  the  event, 
which  in  effect  ratifies  what  has  been  done,  and  declares  that  no  suit  shall 
be  sustained  against  the  party  acting  under  color  of  authority,  is  valid,  so 
far  as  Congress  could  have  conferred  such  authority  before,  admits  of  no  rea- 
sonable doubt.  These  are  ordinary  acts  of  indemnity  passed  by  all  govern- 
ments when  the  occasion  requires  it." 

In  Ettor  v.  Tacoma,  228  U.  S.  14S,  33  Sup.  Ct.  428,  57  L.  Ed.  (1913), 

a  city  street  grade  was  changed,  damaging  an  abutting  owner,  while  a  stat- 
ute was  in  force  requiring  the  city  to  pay  such  damage.  But  for  such  stat- 
ute there  would  have  been  no  liability.  It  was  held  that  the  state  could  not 
abrogate  this  liability,  once  accrued,  Lurton,  J.,  saying  (228  TJ.  S.  pages  154, 

156-15S,  33  Sup.  Ct.  430,  431,  57  L.  Ed. ) :    -The  defense  of  the  city.  that. 

it  was  but  the  agent  of  the  state  in  improving  the  highways  of  the  city,  and 
therefore  immune,  because  the  state  was  immune,  vanishes  in  the  face  of  the 
fact  that  the  state  had  absolutely  coupled  authority  in  the  matter  with  an  ob- 
ligation to  make  compensation.  The  city  had  no  authority  save  that  which 
came  from  the  very  act  which  imposed  an  obligation.  *  •  *  The  neces- 
sary effect  of  the  repealing  act,  as  construed  and  applied  by  the  court  be- 
low, was  to  deprive  the  plaintiffs  in  error  of  any  remedy  to  enforce  the  fixed 
liability  of  the  city  to  make  compensation.  This  was  to  deprive  the  plain- 
tiffs in  error  of  a  right  which  had  vested  before  the  repealing  act, — a  right 
which  was  in  every  sense  a  property  right.  Nothing  remained  to  be  done  to 
complete  the  plaintiffs'  right  to  compensation  except  the  ascertainment  of 
the  amount  of  damage  to  their  property.  The  right  of  the  plaintiffs  in  er- 
ror was  fixed  by  the  law  in  force  when  their  property  was  damaged  for  pub- 
lic purposes,  and  the  right  so  vested  cannot  be  defeated  by  subsequent  legis- 
lation. Elgin  v.  Eaton,  S3  111.  535,  25  Am.  Rep.  412;  Healey  v.  New  Haven, 
49  Conn.  394 ;  Harrington  v.  Berkshire,  22  Pick.  (Mass.)  263,  33  Am.  Dec.  741 ; 
People  ex  rel.  Fountain  v.  Westchester  County,  4  Barb.  (N.  Y.)  64,  are  cases 
arising  under  street  or  highway  statutes.  The  principle  has  been  applied  in 
reference  to  rights  accruing  under  a  variety  of  statutes  when  affected  by  a 
subsequent  change  of  the  law.  Pacific  Mail  S.  S.  Co.  v.  Joliffe,  2  Wall.  450, 
17  L.  Ed.  SOS;  Miller  v.  Union  Mill  Co.,  45  Wash.  199,  88  Pac.  130;  Grey  v. 
Mobile  Trade  Co.,  55  Ala.  3S8,  28  Am.  Rep.  729;  Stephens  v.  Marshall.  3 
Pin.  (Wis.)  203 ;  Gorman  v.  McArdle,  67  Hun.  4S4,  22  N.  Y.  Supp.  479 :  West- 
ervelt  v.  Gregg,  12  N.  Y.  202,  62  Am.  Dec.  160;  Creighton  v.  Pragg,  21  Cal. 
115;  State  Trust  Co.  v.  Kansas  City,  P.  &  G.  R.  Co.,  115  Fed.  367.  *  *  • 
In  the  instant  case  the  action  is  neither  for  a  tort,  nor  for  a  penalty,  nor  for 
a  forfeiture,  but  for  injury  to  property,  actually  accomplished  before  the  re- 
peal of  the  law  under  which  the  street  was  graded,  which  required  compensa- 
tion to  be  made.    The  right  to  compensation  was  a  vested  property  right." 

Similarly,  an  exemption  from  land  taxation,  granted  to  Indians  by  Congress 


Cll.  13)  CIVIL   RBTBOACTIVB    LAWS  b'Jl 

tor  111  years  as  part  of  a  contract,  cannot  be  repealed.  Choate  v.  Trapp,  224 
U.  S.  'it;.",,  673,  574,  32  Sup.  Ct.  C  •  U  Ed.  941   (1912);    Laniar,  J., 

saying:  "The  provision  tinit  the  lami  should  be  nontaxable  was  a  property 
right,  which  Congress  undoubtedly  bad  the  power  to  grant.  •  •  •  1  nder 
the  provisions  of  the  tilth  amendment  there  was  no  more  power  to  deprive 
him  of  the  exemption  than  of  any  other  light  in  the  property." 

In  Kay  v.  I'enu.  By.,  b5  Pa.  269j  3  An,'.  Eep.  028  (1870),  it  was  held  that  u 
right  of  action  to  recover  $8,000  actual  damages  suffered  through   ni 
Injury  could  not  be  retroactively  restricted  to  $800 
etc.,  By.,  151   C.  8.  1.  19,  14  Sup.  Ot.  240,  38  L.  Ed.  55,   (1894)  (righl 
tiuu  lor  tort  of  inducing  breach  of  contract  is  property  which  legislature  may 
not  destiny i. 

Betboactivx  Laws  Affecting  Pending  Suits. — The  pendency  of  suit,  or 
even  u  judgment  therein  (a  right  of  appeal  or  rehearing  persisting),  d 
abridge  the  legislative  power  retroactively  to  affect  rights  Involved.     MeFad- 
din  v.  Evans-Snider-Buel  Co.,  185  D.  S.  505,  511   514,  22  Sup.  Ct  758,  46  I. 
Bd.    1012   (1902)   (validating  prior     •  ■     K.-Uler    v.   Harris.   228    0.   B. 

437,  32  Sup.  Ct.  248,  56  I..  Ed.  197  (1912)  (changing  rules  of  evidence!.  The 
eleventh  amendment  operated  retroactively  upon  all  pending  suits.  Ilollings- 
worth  v.  Va.,  3  Dall.  378,  1  L.  Ed.  644  (1798). 

Retroactive  Laws  Avoiding  Final  Jt  i»,mi:nts. — In  Stephens  v.  Cherokee 
174  U.  S.   445,  478,  19   Sup.  Ct.  722,  43  L.  Kd.  1041   (1899)   [affirmed 
in  Wallace  v.   Adams,  204   U.  S.  415.  27  Sup.  Ct.   363,  51    L.   Ed.  517 
Fuller,  C.  J.,  said   (sustaining  the  allowance   by  Congress  of  further   B 
from  judgments  of  federal   territorial   courts   which   had   become  final  upon 
questions  of  citizenship  in  Indian  tribes):      While  it  is  undoubtedly  true  that 
legislatures  cannot  set  aside  the  judgments  of  courts,  compel  them  to 
new   trials,   order  the  discharge  of   offenders,  or  direct   what   steps  shall    be 
taken   In  the  progress   of  a  judicial   Inquiry,  the  grant  of  a  new   remedy   by 
way    of    review    has    been    often   sustained    under    particular    Clrcum 
Caider  v.  Bull.  3  Dall.  380.  1   L.  Ed.  648;    Sampeyreac  v.   0.    S.,  7  !'<t.  222, 
8   I..   1  d.  665;    Freeborn  v.   Smith.  2  Wall.    160,   17   I..   Ed.  922;     Garrison   v 
City  of  New  York.  21   Wall.  196,  22  L.   Ed.  612;    Freeland  v.   Williams,  131 
U.  s.  405,  9  Sup.  Ct  763,  33  I..  Ed.  193;    Board  v.  Sklnkle,    I 
11   Sup.  Ct  790,  35  L.  Ed.  440.     •     *     •     In   its  ei  gress  has  not 

attempted  to  interfere  in  any  way  with  the  judicial  department  of  the  gov- 
ernment, nor  can  the  act  be  properly  regarded  as  destroying  any  vested  right, 
since  the  right  asserted  to  be  vested  is  only  the  exemption  of  these  Judgments 
from  review;  and  the  mere  expectation  of  a  share  in  the  public  Ian 
moneys  of  thes-e  tribes,  if  hereafter  distributed,  if  the  applicants  are  admit- 
ted to  citizenship,  cannot  be  held  to  amount  to  such  an  absolute  right  of 
property  that  the  original  cause  of  action,  which  Is  citizenship  nr  not  Is 
placed  by  the  judgment  of  a  lower  court  beyond  the  power  of  reexamination 
by  a  higher  court,  though  sul  sequently  authorized  by  general  law  to  e: 
Jurisdiction." 

See  all  of  the  eases  abovi  "reebind  v.  Williams,  with  which 

read  Peerce  v.  Kitzmiller.  19  W.  Va.  ''' \  (1882).  The  more  common  view  de- 
nies this  power  to  the  legislature,  after  the  right  of  appeal  from  a  final  judg- 
ment has  been  barred  under  existing  law.  Hill  v.  Sunderland.  .".  Vt.  5o7 
(1831);  At  Inson  v.  Dunlap,  50  Me.  in  (1862);  Griffin's  Eht'r  v.  Cunning- 
bam,  20  Grat  (61  Va.i  31,  lania  Bank  v.  Suspension 
159  X.  V.  362,  54  N.  E.  33  (1899);    Merrill  v.  Sherburne,  ante.  p.  54,  and  notes 

A    fortiori,   rights  fixed  by   final  judgments  may   not  tie  divested  either   by 
legislative  fiat  or  by  providing  new  grounds  of  action  or  defence   which  may 
1  at  a  fresh  review  or  bearing.    Pennsylvania  v.  v. 

i::i.   is  L.  Ed.  435  (1855);    Denny  v.  Matoon,  2  Allen 

361,  376  385,  79  Am.  I 784  (1861);    S  twk  v.  Sparhawk,  Ufl  Ma 

i  is;  ii;  Be  Handley's  Estate.  15  Dtah,  212,  19  Pac.  829,  <:2  Am.  st.  Bep.  926 
(1897);  Merchants'  Bank  v.  Ballou,  98  Va.  112,  82  s.  E.  481,  44  L.  B.  A 
806,  81  Am.  st.  Bep.  715  (1899)  n  v.  Livingston,  173  N    1 

.-.77.  66  X.  i:.  123.  61    I..    K.   A.  BOO    93    \ •■> 

also,  U.  s.  v.  Aakervik,  180  Fed.  137,  14B   17  i  ompare 

Freeland  v.  Williams.  i::i   0.  S.  406,  9  Sup.  Ct  T63,  83  Lv  Ed.  198  (188) 
Hall  Const.L. — 57 


898  FUNDAMENTAL    RIGHTS  (Part  2 

PEOPLE  v.  WISCONSIN  CENT.  R.  CO. 

(Supreme  Court  of  Illinois,   1905.     219  111.  94,  76  N.   E.  80.) 

Mr.  Chief  Justice  Cartwright.  At  the  June  term,  1905,  the  county 
court  of  Lake  county  refused  the  application  of  the  county  collector 
of  said  county  for  a  judgment  against  the  property  of  appellee  for  a 
county  tax  levied  on  said  property,  and  from  that  judgment  this  ap- 
peal was  prosecuted.  At  the  September  session,  1904,  the  county 
board  attempted  to  levy  a  county  tax  of  75  cents  on  each  $100  of  tax- 
able property  according  to  its  assessed  valuation,  and  did  not  specify 
the  particular  purposes  for  which  the  tax  was  levied.  Such  a  levy 
was  not  authorized  by  the  statute,  and  the  tax  was  vitiated  by  the 
failure  to  comply  with  the  law.  Cincinnati,  I.  &  W.  Ry.  Co.  v.  People, 
213  111.  197,  72  N.  E.  774;  Chicago,  B.  &  Q.  R.  Co.  v.  People,  213 
111.  458,  72  N.  E.  1105.  On  February  28,  1905,  the  Legislature  passed 
an  act  for  the  purpose  of  curing  the  defect  in  levies  which  existed  in 
this  and  other  like  cases.  Laws  1905,  p.  359.  That  act  was  in  force 
from  and  after  its  passage,  and  the  only  question  in  this  case  is  wheth- 
er it  cured  the  defect.  If  it  was  within  the  power  of  the  Legislature 
to  pass  the  act,  the  defect  was  thereby  cured,  and  the  tax  validated. 

There  is  no  prohibition  in  our  Constitution  against  the  passage  of 
retroactive  statutes,  and  they  are  not  invalid  if  they  do  not  impair  vest- 
ed rights,  or  come  in  conflict  with  some  provision  of  the  Constitution. 
The  general  rule  is  that,  where  there  is  no  constitutional  prohibition, 
the  Legislature  may  validate,  by  a  curative  act,  any  proceedings  which 
they  might  have  authorized  in  advance.  8  Cyc.  1083 ;  26  Am.  &  Eng. 
Ency.  of  Law  (2d  Ed.)  609.  Cases  where  the  power  to  levy  taxes  has 
failed  of  proper  execution  through  the  carelessness  of  officers  or  oth- 
er cause  come  within  that  rule.  Cooley,  Const.  Lim.  (4th  Ed.)  462 ; 
Cooley  on  Taxation,  229.  But  while  curative  acts  may  heal  irregulari- 
ties, they  cannot  cure  the  want  of  authority  to  act  at  all,  and  the  Leg- 
islature cannot,  by  retrospective  legislation,  confirm  what  it  could  not 
originally  have  authorized.     *     *     * 

The  next  question  is  whether  the  curative  act  interferes  with  or 
destroys  any  constitutional  right  of  the  taxpayer.  It  is  the  right  of 
the  taxpayer  to  have  an  opportunity  to  be  heard  before  a  tax  shall 
be  finally  adjudged  against  him,  and  no  tax  can  be  valid  without  an 

Constitution   may    authorize  a  review    of   prior    final    money   judgment   and 
create  a  new  defence  previously  erroneously  denied  by  state  court). 

As  to  what  is  a  final  judgment,  so  that  rights  under  it  become  vested,  see 
opinions  in  Livingston  v.  Livingston,  173  N.  Y.  377,  (56  N.  E.  123,  61  L.  R 
A.  800.  93  Am.  St.  Rep.  600  (1903)  (alimony) ;  Dunham  v.  Anders,  12S  N.  C. 
207,  38  S.  E.  832,  83  Am.  St.  Rep.  66S  (1901).  The  granting  of  a  certificate 
of  naturalization  in  an  uncontested  proceeding  is  not  such  a  judgment,  and 
a  retroactive  review  of  it  may  he  provided  by  statute.  Johannessen  v.  U. 
S.,  225  TJ.  S.  227,  32  Sup.  Ct.  613,  56  L.  Ed.  1006  (1912).  A  judgment,  in 
ejectment  has  been  thought  not  final,  because  not  conclusive,  Mercer  v.  Wat 
son,  1  Watts  (Pa.)  344,  355,  356  (1833);  but  compare  Menges  v.  Dentler,  33 
Pa.  495.  75  Am.  Dec.  616  (1S59). 


Ch.  13)  CIVIL    RETROACTIVE    I.AW8  893 

opportunity  for  such  a  hearing.  Therefore,  it  was  decided  in  Marsh  v. 
Chesnut,  14  111.  223,  that  the  Legislature  could  not  cure  by  subse- 
quent legislation  the  failure  of  an  assessor  to  complete  the  assessment, 
and  return  it  to  a  particular  place  on  or  before  a  certain  day.  The 
provision  for  such  a  return  was  to  cn.-ible  the  taxpayer  to  inspect  the 
assessment,  and  to  give  him  time  and  opportunity  to  make  application 
to  the  county  commissioners"  court  for  correction  of  the  assc- 
The  curative  act  deprived  him  of  an  opportunity  to  appeal  and  a  bear- 
ing, and  was  void  for  that  reason.  The  same  rule  was  applied  on  the 
same  ground  in  Hillings  v.  Detten,  15  111.  218;  and  in  Conway  v.  Ca- 
ble, 2)7  111.  82,  87  Am.  Dec.  240,  it  was  held  that  the  Legislature  could 
not,  by  retrospective  enactment,  make  an  invalid  tax  proceeding  valid, 
and  thereby  divest  an  individual  of  his  vested  rights.  It  was  there 
held  that  a  citizen  might  allow  his  real  estate  to  pass  to  a  sale,  relying 
upon  the  want  of  compliance  with  the  law  authorizing  the  sale,  and 
that  his  rights  thereby  acquired  could  not  be  affected  by  subsequent 
legislation.1  On  the  other  hand,  in  Cowgill  v.  Long,  15  111.  202,  the 
court  held  that,  although  it  was  essential  to  the  validity  of  a  school 
tax  that  it  should  be  certified  to  the  county  clerk  before  the  1st  <>f 
July,  the  Legislature  had  power  to  pass  a  special  act,  declaring  that 
a  tax  voted  on  the  20th  of  July  and  the  act  of  certifying  the  tax  to 
the  county  clerk  should  be  legal  and  valid  and  effectual  in  the  law.  No 
vested  right  was  interfered  with,  and  it  was  considered  that  the  Leg- 
islature had  the  right  to  remedy  the  defect  while  the  tax  remained  un- 
collected. In  the  case  of  McVeagh  v.  City  of  Chicago,  49  111.  318, 
where  a  tax  on  bank  shares  was  not  properly  assessed  by  reason  of  a 
defective  law  under  which  it  was  attempted,  the  court  decided  that  the 
Legislature  had  power  to  pass  a  special  law  to  cure  the  omission.  It 
is  within  the  power  of  the  Legislature  to  change  the  mode  for  the 
collection  of  taxes  at  any  time  before  they  are  paid,  discharge.!,  or 
otherwise  released.  Hosmer  v.  People,  96  111.  58.  If  the  Legislature 
could  have  provided  for  the  levy  of  county  taxes  in  the  manner  in 
which  this  tax  was  levied,  and  no  constitutional  right  of  the  taxpayer 
was  invaded,  the  curative  act  would  be  effective  to  remedy  the  defect. 
*  *  *  As  we  think  that  the  Legislature  might  have  authorized  a 
levy  in  this  manner,  and  no  vested  right  of  the  taxpayer  was  inter- 
fered with,  the  curative  act  had  the  effect  to  render  the  tax  legal  and 
valid.  *  *  * 
Judgment  reversed.* 

i  The  defect  in  the  proceeding  here  consisted  In  selling  for  taxes  on  credit 
instead  of  for  cash.    37  III.  at  83,  87,  88,  87  Am.  Dee.  2  10. 

2  See,  also,  Involving  statutes  purporting  to  cure  defective  tax  assessments 
before  sale:    Mattingly  v.  Hist,  of  Columbia,  97  V    &  887,  24  I..    Ed.   1098 
(1878);   Northern  l'ac.  It.  R.  v.  Calvin.  80  Fed,  811  (1898);    Martin  i 
loosa,  !>0  N.  W.  557  (Iowa,  1904)  (semble);    Seattle  v.  Kelllher,  ante,  p.  053, 
and  notes. 


900  FUNDAMENTAL   RIGHTS  (Part  2 

CROMWELL  v.  MacLEAN. 

(Court  of  Appeals  of  New  York;,  1890.     123  N.  Y.  474,  25  N.  E.  932.) 

[Appeal  from  judgments  of  lower  courts  of  the  second  judicial  de- 
partment of  New  York.  Certain  lands  in  the  town  of  Greenburgh, 
Westchester  county,  owned  by  Edward  C.  Wilson,  a  trustee  under  the 
will  of  E.  J.  Wilson  and  resident  in  another  town  of  the  county,  were 
for  the  years  1876  to  1885  assessed  for  taxes  to  "Edward  J.  Wilson, 
estate,''  and  leasehold  interests  therein  were  sold  to  satisfy  said  taxes 
under  certain  proceedings  that  passed  no  legal  interest  under  existing 
law  on  account  of  said  defective  assessment.  In  1887,  a  statute  pur- 
ported to  confirm  said  sales  and  to  vest  title  to  said  leaseholds  in  con- 
formity thereto.  In  an  action  to  foreclose  a  mortgage  on  said  land  the 
question  arose  of  the  priority  of  said  leaseholds  as  against  the  mort- 
gagee of  E.  C.  Wilson's  interest.  The  lower  courts  upheld  the  mort- 
gagee.] 

Peckham,  J.  *  *  *  Holding,  as  we  must,  that  no  title  or  in- 
terest in  fact  passed  to  the  purchaser  at  these  tax  sales,  and  that  the 
original  owner  therefore  still  retained  his  title,  the  effect  of  the  act 
in  question,  if  valid,  is  by  legislative  fiat  to  transfer  the  title  of  the 
property  of  Edward  C.  Wilson,  as  trustee,  to  the  lessees  under  these 
invalid  leases  for  a  hundred  or  a  thousand  years  as  the  case  may  be. 
Has  the  legislature  of  this  state  the  right  to  take  the  property  of  A.  and 
transfer  it  to  B.  under  the  guise  of  confirming  sales  made  of  such 
land  in  invitum,  but  by  which  no  title  in  fact  or  in  law  passed  from 
the  owner  to  the  purchaser?  The  statement  of  the  question  should 
be  its  best  answer.  Property  thus  taken  is  not  taken  by  due  process 
of  law.  This  is  not  a  case  within  the  principle  that  persons  who  take 
conveyances  of  land  by  deed  or  under  legal  proceedings,  which  lack 
validity  by  reason  of  some  omission  or  informality,  take  a  title  or 
right  subject  to  the  power  of  the  legislature  to  cure  such  errors  or 
defects  by  acts  of  retrospective  legislation.  Where  the  proceeding 
is  wholly  in  invitum,  and  the  defect  of  such  a  nature  that  no  title  has 
passed,  the  legislature  cannot  validate  or  legalize  the  proceeding  to 
the  extent  of  itself  conveying  the  title  under  the  form  of  confirming 
a  sale  under  which  no  title  passed.  See  remarks  of  Bigelow,  C.  J.,  in 
Denny  v.  Mattocn,  2  Allen  (Mass.)  361,  at  382,  383,  79  Am.  Dec.  784. 
Nor  is  the  legislation  in  question  an  exercise  of  the  power  to  provide 
rules  of  evidence,  and  thus  to  give  a  certain  effect  to  a  deed  or  lease 
as  presumptive  evidence  of  the  validity  of  proceedings  before  its  ex- 
ecution. People  v.  Turner,  117  N.  Y.  227,  22  N.  E.  1022,  15  Am.  St. 
Rep.  498.  Nor  does  it  attempt  to  set  up  a  statute  of  limitation  provid- 
ing that  after  the  expiration  of  a  certain  time  it  should  be  conclusively 
presumed  that  all  proceedings  were  regular.  People  v.  Turner,  supra; 
Ensign  v.  Barse,  107  N.  Y.  329,  14  N.  E.  400,  and  15  N.  E.  401.    It 


Ch.  13)  CIVIL   RETROACTIVE    LAWS  901 

is  none  of  these,  but  a  plain,  naked  transfer  of  title  by  legislation. 
Any  statute  which  should  make  a  tax  deed  or  lease  immediately  upon 
its  execution  conclusive  evidence  of  a  complete  and  perfect  title,  and 
thus  preclude  the  owner  of  the  original  title  from  showing  its  in- 
validity, would  probably  be  void,  because  it  would,  in  substance,  be 
an  unconstitutional  transfer,  or  a  confiscation  of  property,  instead  of 
a  mere  law  regulating  evidence.  I  do  not  refer  to  cases  arising  under 
statutes  of  limitation,  where  the  owner  has  some  appointed  time  in 
which  to  assert  his  rights,  nor  to  cases  resting  on  principles  of  equi- 
table estoppel.    Cooley,  Tax'n  (2d  E  I.)  2()7  et  seq. 

The  defendant  claims  that  the  act  is  valid  as  an  exercise  of  the  pow- 
er to  cure  defects  in  assessments  and  other  proceedings  for  the  im- 
position and  collection  of  taxes.  Such  curative  power  is  a  branch  and 
a  part  of  the  legislative  power  to  tax,  and  must  be  sustained  under  it. 
The  legislature  undoubtedly  has  large  powers  in  the  way  of  curing  cer- 
tain defects  in  proceedings  to  tax  the  citizen.  In  cases  where  the  pro- 
ceedings have  been  such  that  the  citizen  has  had  his  chance  to  be 
heard  before  the  tax  was  finally  imposed,  but  nevertheless  defects  have 
been  discovered  in  such  proceedings,  if  the  thing  omitted  and  which 
constitutes  the  defect  be  of  such  a  nature  that  the  legislature  might  by 
prior  statute  have  dispensed  witli  it,  or  if  something  had  been  done, 
or  done  in  a  particular  way,  which  the  legislature  might  have  made 
immaterial,  the  omission  or  irregular  act  may  be  cured  by  a  subsequent 
statute.  This  was  so  stated,  and  in  substantially  identical  language, 
in  Ensign  v.  Barse,  107  X.  V.  329,  14  X.  E.  400,  and  15  X.  E.  401. 
Such  act  might  take  away  from  the  taxpayer  a  defense  to  the  further 
proceedings  against  him  to  collect  the  tax,  which  he  otherwise  would 
have  had.  Tifft  v.  City  of  Buffalo,  82  X.  Y.  204.  Yet,  even  in  this 
case,  I  think  the  taxpayer  must  be  given  reasonable  time  in  which 
to  pay  a  tax  thus  validated  or  thus  imposed  by  the  legislature.     * 

If  the  proceedings  of  the  taxing  power  have  been  so  fatally  de- 
fective on  account  of  a  failure  to  comply  with  the  requirements  of 
the  statute  that  no  title  to  the  property  of  the  taxpayer  has  pa 
the  purchaser  at  the  tax  sale,  I  do  not  think  there  is  any  correct  prin- 
ciple upon  which  can  be  based  the  claim  that  the  taxpayer  neverthe- 
less holds  his  property  from  that  time  on  at  the  mercy  of  the  legisla- 
ture, and  subject  to  its  power  at  any  time,  so  far  as  he  is  concerned. 
to  validate  and  give  life  and  effect  to  the  otherwise  void  sale, 
sale,  the  taxpayer  has  the  legal  right  to  regard  as  no  sale,  and  he  has 
the  further  right  to  assume  that  no  proceedings  of  a  legislative  char- 
acter could  be  taken  to  transfer  his  property  for  the  nonpayment  of 
a  void  tax,  without  the  legislature  first  legalized  the  tax  where  that 
could  be  done,  or  itself  imposed  the  t;tx,  and  then  in  either  event  gave 
him  an  opportunity  to  pay  it  before  proceeding  to  sell  his  land.    *    »    * 

If  the  legislature  have  designate  1  ..  certain  way  in  which  to  make 
an   assessment,  although  it  could   easily  have  designated  some  other 


!>02  FUNDAMENTAL    RIGHTS  (Part  2 

just  as  legal,  yet  the  manner  designated  must,  in  substance,  be  car- 
ried out,  although  many  of  the  provisions  might  have  been  omitted  by 
the  legislature  and  a  constitutional  assessment  still  levied.  If  any 
of  those  provisions  of  a  material  nature  have  been  omitted,  so  that  no 
valid  assessment  has  been  made,  and  no  title  transferred  to  the  per- 
son assuming  to  purchase  at  the  subsequent  tax  sale,  I  am  fully  per- 
suaded there  is  no  power  in  the  legislature  to  pass  any  act,  the  effect 
of  which  shall  be  to  thereby  transfer  the  title  of  the  original  owner  to 
the  purchaser,  to  the  same  extent  as  if  the  whole  proceedings  from 
assessment  to  sale  had  been  valid.  *  *  * 
Judgment  affirmed.1 

i  Accord  (incurable  defects  In  tax  sales):  Forster  v.  Forster,  129  Mass.  559 
(18S0)  (notice  of  sale  of  undivided  interest  in  land  instead  of  separate  inter- 
est—less attractive  to  bidders) ;  Hall  v.  Perry,  72  Mich.  202,  40  N.  W.  324 
(188S)  (wholly  unauthorized  sale) ;  Conway  v.  Cable,  37  111.  82,  87  Ain.  Dec. 
240  (1S65)  (sale  on  credit  instead  of  for  cash) ;  Dingey  v.  Paxton,  60  Miss. 
103S,  1057,  105S  (1SS3)  (void  sale  cannot  be  cured  at  all,  semble) ;  McCord 
v.  Sullivan,  85  Minn.  344,  347,  34S,  88  N.  W.  9S9,  S9  Am.  St  Rep.  561  (1902) 
(publication  of  notice  of  sale  for  less  than  statutory  period),  Brown,  J.,  say- 
ing: "A  proper  notice  of  sale  in  tax  proceedings  is  jurisdictional,  and  an  in- 
dispensable prerequisite  to  the  right  to  make  the  sale.  This  brings  us  to  the 
question  of  the  validity  of  [the  curative  act].  Statutes  of  this  character 
have  been  before  the  courts  many  times,  and  the  subject,  as  to  their  validity, 
is  fully  discussed  in  Cooley,  Const.  Lim.  458.  It  Is  there  laid  down  as  a  gen- 
eral rule  that  'if-  the  thing  wanting  or  failing  to  be  done,  and  which  con- 
stitutes the  defect  in  the  proceedings,  is  something  the  necessity  for  which  the 
legislature  might  have  dispensed  with  by  a  prior  statute,  then  it  is  not  be- 
yond the  power  of  the  legislature  to  dispense  with  it  by  a  subsequent  stat- 
ute.' This,  however,  does  not  authorize  the  passage  of  healing  statutes  cur- 
ing jurisdictional  defects  whereby  vested  rights  may  be  taken  away.  The  leg- 
islature might,  it  is  true,  have  provided  a  notice  different  from  that  required 
by  section  1591,  supra ;  but  from  that  it  does  not  follow  that  a  failure  of 
compliance  with  such  a  statute  may  be  cured  by  subsequent  legislation.  A  par- 
tial compliance  with  the  statute  as  to  jurisdictional  matters  is  wholly  in- 
effectual for  any  purpose,  and  the  proceedings  in  this  case  as  to  the  sale 
stand  as  though  no  attempt  had  been  made  to  sell  the  property  pursuant  to 
the  tax  judgment  at  all.  As  said  in  the  case  of  Kipp  v.  Dawson  [31  Minn. 
373,  3S2,  17  N.  W.  961,  18  N.  W.  96],  the  taxpayer  is  interested  in  and  enti- 
tled to  have  the  kind  and  length  of  notice  provided  by  law — First,  the  no- 
tice before  judgment;  and  then,  second,  the  notice  before  sale.  He  has 
the  right  to  rely  upon  the  notice  being  given,  to  insist  upon  a  strict  compli- 
ance with  the  statute,  and  may  invoke  a  failure  in  that  respect  to  defeat  a 
title  arising  in  virtue  of  such  proceedings.  It  Is  true  that  the  legislature 
may  cure  irregularities  and  defects  in  tax  proceedings,  but  that  irregularities 
and  defects  which  go  to  the  jurisdiction  of  the  officers  to  act,  and  affect  the 
substantial  rights  of  the  property  owner,  cannot  be  cured  by  subsequent  leg- 
islation, is  thoroughly  settled  by  authorities." 

Compare  Finlayson  v.  Peterson,  ante,  p.  S94,  note. 

In  Meigs  v.  Roberts,  162  N.  Y.  371,  378,  56  N.  E.  838,  76  Am.  St.  Rep.  322 
(1900),  Cullen,  J.,  said:  "A  'curative  act,*  in  the  ordinary  sense  of  that  term, 
is  a  retrospective  law,  acting  on  past  cases  and  existing  rights.  The  power  of 
the  legislature  to  enact  such  laws  is  therefore  confined  within  comparatively 
narrow  limits;  and  they  are  usually  passed  to  validate  irregularities  in  legal 
proceedings,  or  to  give  effect  to  contracts  between  parties  which  might  oth- 
erwise fall  for  failure  to  comply  with  technical  legal  requirements.  Cooley, 
Const.  Lim.  p.  454.  A  very  full  enumeration  of  the  cases  in  which  the  leg- 
islature may  properly  exercise  this  power  is  to  be  found  in  Forster  v.  Forster, 
129  Mass.  GuU.     But  there  may  be  in  legal  proceedings  defects  which  are  not 


Ch.18)  civil  in;  nil  iAt u  vi:  lawb  903 

mere  Informalities  or  Irregnlaritli  rital  in  their  character  as  to  be 

heyond  the  help  of  retrospective  legislation.     Bach  ■■  called  "lurls- 

dictlonal.'  " 

As  to   the  confusing  use  of  the  word  "Jurisdictional"  commonly  q 
courts  In  discussing  the  validation  of  tax  sales,  see  Gray,  Mm.   on    . 
Tower,   tl   125]    L2 

The  enumeration  referred  to  ahove,  of  classes  of  cases  where 
were   proper,  is   as  follows  [In   Forster  v.  Forster,    129 
(1880),  by  Gray,  C.  JJ:    "(1)  Cases  of  statutes  confirming  galea  of  land  un- 
der order  of  court  for  an  adequate  consideration,  where  there  was  a  want 
of  Jurisdiction  in  the  court,  or  the  deed  was  Ifi 

person  than  the  actual   bidder,  or  the  sale  was  after  the  time  limited  in   the 
license,  or  the  confirming  statute  was  passed  upon  the  petition  of 
ties  having  the  legal  title.    Wilkinson  v.  Leland,  2  Pet  627,  861,  7  L.  Ed.  542, 
and  10  I'et.  294,  9  L.  Fd.  430;  Kearney  v.  Taylor,  1",  How.  484,   It  I-  Ed.  7^7; 
Cooper  v.  Robinson,  2  <'ush.  (Mass.;   184,  100;    Bonier  v.  Massachusel 
eral  Hospital,  3  Cush.  (Ms  tatutes  confirming  i 

auces  by  an  executor  or  trustee  under  a  will,  where  the  only  objection  was 
to  the  manner  of  his  previous  appointment  and  giving  bond,  Which  might 
perhaps  not  he  open  to  he  contested  in  a  collateral  proceeding,  even  it  no 
such  statute  bad  • '1.     Weed  v.  Donovan,  L14  W  i;    Bradstreel 

v.  Butteriield,  129  Mass.  339;    Basset!  v.  Crafts.   129  Mass,  518.     Such  stat- 
utes are  somewhat  analogous  to  statutes  confirming  di  eds  acknowledged  be- 
fore a  person  actlni  iglstrate,   whose   commission  as  sue],   i 
pired.  which  could  not  have  been  questioned  collaterally,  lie  being 

facto.     Brown  v.  Lunt,  37  Me.  423;    Denny  v.  Matt i,  -   \   i 

79  Am.  Dec  784;  Sheehan  dass.  445,  147,  23  Am.  Bep   374;    Hus- 

sey  v.  Smith,  0!)  1".  K.  20,  24,  -o  i..  Ed.  31  I  f  statutes  coring  de- 

feats in  the  execution  of  private  deeds  and  instruments,  s.>  as  to  gii 
effect  according  to  the  intention  of  the  parties  and  the  equities  of  the  case. 
Randall  v.   Krieger,  23  Wall.  137,  23  h.  Ed.  121;    Wildes  v.   Vanvoorhis,   15 
Cray  (Mass.)   139;    Denny  v.  Mattoon,  2   Allen   (Mass.)  377,  37s.  :;-:;.   79  Am. 
Dec.  784.     id  Cases  of  statutes  confirming  votes  of  towns  tor  muni 
public  purposes,  which  are  within  the  paramount  control  of  the  Legislature. 
Thompson  v.  Lee  County,  3  Wall.  3H7.   is  i..   Ed.   1 77 :    Beloil   v.  Morgan,  7 
Wall.  619,  19  L.   Fd.  205;    New  Orleans  v.  Clark,  95  D.   B.  tilt,  21  L.  Fd.  521; 
Guilford  v.  Supervisors  of  Chenango,  3  Kernan  (13  N.  Y.)  1-13 ;    Allen  v.  Arch- 
er, 49  Me.  346;   Freeland  v.  Hastings.  10  Allen  (Mai  j.)  570.    (5)  Cases  of  stat 
utes   confirming    Informal    or    irregular    assessments    of   taxes,    so    that    they 
might  he  collected   in  the  future,  hut  not  undertaking  to  give  force  to  ille- 
gal seizures  or  sales  of  property  alread]  made.     Mattlngly  v.  District 
uunbla,  97  C.  S.  687,  21  1..   Ed.  1098;    Grim  v.  Wei-  enberg  School  District 
57  Pa.  433,  '.)-  Am.  Dee.  237;    Hart  v.  Henderson,  17  Mich.  218." 

In  Ford  v.  Delia  Land  Co.,  43  Fed.  181,  192,  193  (1890),  Hill.  .1 
"Owners  of  land  are  vested  with  certain  constitutional  rights  of  which  the} 
cannot  he  deprived  by  either  legislative  enactments  or  Judicial  decisions,  one 
of  which  is  that  they  cannot  be  deprived  of  their  titles  to  their  Ian 
cepl  by  due  process  of  law.  it  was  held  by  this  court  on  the  demurrer  in 
LUS6  that  to  deprive  the  owner  of  land  of  his  title  by  reason  of  the  Don- 
1    of  taxes  thereon  these  things  must  concur:    First  There  must    have 

been  a  lawful  tax  Imposed  by  Bome  body  of  men.  or  some  one  having  author- 
ity  lo  levy  it.     Second.   If  the  tax  was  based   upon  the  value  of  the  land,  it 
iave  been  ascertained  by  some  one  authorized  by  law  to 
Third.  There  musl   have  tull   in  the  payment  of  1 

within  the  time  prescribed  by  law.     Fourthly.  There  must  have  ice:. 
and  conveyance  made  by  some  one  authorized  to  make  the  same.     These  are 
conditions  whl  ■■  with  nor  cure  by  sui- 

legislation,  nor  can  the  want  of  them  he  dispensed  with  or  cured  b\ 
Judicial  decision.  But,  under  well-rei  Agnized  rules,  any  Irregularities  in  these 
proceedings,  which  the  legislature  could  have  authorized  to  he  done  in  the 
first  Instance,  may  he  cured  by  subsequent  legislation,  hut  not  so  as  to  de 
stroy  vested  rights.  This  rule  is  so  generally  acknowledged  that  refer 
authority  Is  unnecessary.  For  Instance,  if  the  sale  was  made  on  a  day  or  at 
a  place  which  the  legislature  might  have  autie  rlzed,  or  for  delinquent  taxes 


904  FUNDAMENTAL    RIGHTS  (Part  2 

MAGUIAR  v.  HENRY. 
(Conrt  of  Appeals  of  Kentucky,  1SS6.    84  Ky.  1,  4  Am.  St.  Rep.  1S2.) 

[Appeal  from  Louisville  Chancery  Court.  Maguiar  brought  suit  to 
recover  land,  alleging  that  after  proper  advertisement  it  was  sold  for 
taxes  and  conveyed  to  him  by  the  state  auditor.  The  statute  under 
which  the  land  was  thus  sold  provided  that,  in  all  suits  involving  title 
to  land  claimed  and  held  under  the  auditor's  tax  deed,  the  person 
claiming  adversely  to  such  deed  most  prove,  to  defeat  the  title  con- 
veyed thereby,  one  of  the  five  things  mentioned  in  the  opinion  below. 
A  demurrer  to  Maguiar's  petition  was  sustained.] 

Holt,  J.  *  *  *  The  act  imposes  upon  the  owner  of  land,  in 
order  to  defeat  a  tax  title,  the  burden  of  proving  one  of  five  things : 
Either  that  the  property  was  not  subject  to  the  tax;  or  that  it  had 
been  paid;  or  that  the  land  had  not  been  assessed;  or  had  been  re- 
deemed ;  or  that  the  officer  has  certified  that  no  taxes  were  due.  It 
cuts  off  all  other  defenses.  Three  serious  questions  are  presented: 
First.  Can  the  Legislature  shift  the  burden  of  proof  from  the  tax 
claimant  to  the  owner  in  possession  of  the  property?  Second.  If  so, 
yet  must  not  the  plaintiff  allege  in  his  petition  the  facts  essential  to 
support  a  tax  title?  Third.  Is  not  the  act  unconstitutional;  at  least 
so  far  as  it  undertakes  to  deprive  the  owner  of  material  existing  de- 
fenses?    *     *     * 

The  legislative  power  to  levy  and  collect  taxes  is  not  arbitrary.  The 
law  can  not  be  so  framed  as  to  prevent  the  citizen  from  inquiring 
through  the  courts  whether  there  has  been  a  forbidden  assumption  of 
legislative  power.  For  instance,  a  statute  denying  to  him  the  right 
Df  defense  of  his  property  to  inquire  whether  a  gross  inequality  of 
burden  has  been  imposed,  or  fraud  practiced  in  the  assessment  or  sale 
of  his  property,  would  be  unconstitutional,  because  it  would  deprive 
him  of  his  property  without  a  hearing  and  without  "due  process  of 
law."  Courts  can  not  thus  be  deprived  of  jurisdiction  by  the  Legisla- 
ture. If  so,  one  co-equal  department  of  the  government  could  at 
once  destroy  the  other. 

Conceding  that  the  burden  of  proof  may  be  shifted  by  a  legislative 
act  from  the  plaintiff  to  the  defendant,  as  we  think  it  may  as  a  mere 
regulation  of  the  remedy,  provided  it  does  not  conflict  with  a  vested 
right,1  yet  it  is  questionable  whether  the  act  now  under  consideration 

for  several  years  made  at  one  time  after  default  in  each  year,  or  other  such 
Irregularities,  these  may  be  cured  by  subsequent  legislation." 

Other  slightly  different  enumerations  of  the  essentials  of  a  valid  tax  sale 
are  made  in  McCready  v.  Sexton,  29  Iowa.  356,  3SS,  3S9,  4  Am.  Rep.  214 
(1870),  and  in  In  re  Douglas,  41  La.  Ann.  705,  767,  6  South.  675  (1889).  See 
Jones  v.  Landis  Tp.,  50  N.  J.  Law,  574,  13  Atl.  251  (1SS8)  (validation  of  tax 
sale  at  illegal  hour  of  day). 

i  "It  is  competent  for  the  legislature  to  declare  that  a  tax  deed  shall  be 
prima  facie  evidence,  not  only  of  the  regularity  of  the  sale,  but  of  all  prior 


Ch.  13)  Civil  ivi;  laws 

does  not  go  farther  than  this,  and  require  a  defendant  to  make  out  a 
cause  of  action  for.  or  a  right  in,  the  plaintiff.  If  so,  it  can  not  be 
sustained,  because  this  would,  in  effect,  compel  the  court  to  hold  that 
ion  sets  out  a  cause  of  action  when  it  does  not.  The  section 
of  the  act  under  consideration,  however,  is  clearly  unconstitutional, 
because  it  limits  the  owner  of  the  property  to  certain  defenses  and 
cuts  off  others,  which  may  exist  and  which  are  material.     *     »     * 

Cooley,  in  his  Constitutional  Limitations,  page  368,  says:  "As  to 
what  shall  be  evidence  and  who  shall  assume  the  burden  of  proof, 
[the  legislature]  is  unrestricted  so  long  as  its  rules  are  impartial  and 
uniform:  but  it  has  no  power  to  establish  rules  which,  under  pretense 
of  regulating  evidence,  altogether  precludes  a  party  from  exhibiting 
his  rights.  A  statute  making  a  tax  deed  conclusive  evidence  of  a  com- 
plete title,  and  precluding  the  original  owner  from  showing  its  in- 
validity, would,  therefore,  be  void,  as  not  a  law  regulating  evidence, 
but  an  unconstitutional  confiscation  of  property."  Vide  Hinman  v. 
Pope,  1  Oilman  (111.)  131 ;  Stoudenmire  v.  Brown,  48  Ala.  699. 

The  Legislature  may,  by  a  subsequent  statute,  cure  a  mere  irregu- 
larity in  a  proceeding,  if  it  could  have  dispensed  with  it  by  a  prior 
statute.  If  it  could  have  been  made  immaterial  at  the  outset,  it  may 
be  made  so  by  a  subsequent  law.  But  the  Legislature  has  no  power, 
by  a  subsequent  curative  statute,  to  remedy  a  jurisdictional  defect,  or 
one  which  goes  to  the  substance  of  a  vested  right,  and  thus  cut  off  a 
vested  defense  by  the  usurpation  of  judicial  power.  To  do  so  would 
be  to  condemn  without  hearing,  and  to  refuse  a  party  an  existing  ma- 
terial right. 

A  tax  deed  can  no  more  be  declared  by  statute  to  be  conclusive  as 
to  matters  essential  to  jurisdiction  than  the  finding  of  an  indictment 
by  a  grand  jury  could  be  by  legislative  act  made  conclusive  of  the  de- 
fendant's guilt.  Suppose  that  the  ministerial  officer,  whose  duty  it  is 
to  collect  the  tax,  fails  to  advertise  the  property  for  sale,  or  to  sell 
it  at  the  courthouse  door,  or  to  sell  it  publicly,  or  was  interested  in 
the  purchase,  or  fraudulently  combines  with  the  purchaser  so  as  to 
sacrifice  the  property,  is  the  owner  to  be  deprived  by  a  curative  stat- 
ute of  his  existing  vested  defense  upon  these  grounds?  If  so,  then 
it  is  "without  due  process  of  law,"  and  in  violation  of  "the  law  of  the 
land."     We  unhesitatingly  conclude  that  the  act  in  question,  so  far 

Ings,  and  of  title  In  the  purchaser."— Marc  v.  llanthorn,  14s  r    s 
!7  L.  Ed.  410  (1893),  bj  Slilras,  J.    So,  Allen  v.  Arm- 
(1864).     As  applicable  to  prior  deeds  such 
ilidlv  be  either  passed  v-  Turuor.   117  N 

233,  22  N.  B.  1022,  15  Am.  St  Rep.  49S  b).    But  see  l: 

50,04  111.447(1872);    Gage  ",  17  N.  E.  7T7  (1SSS 

Chamberlain,  !>T  ill.  6*20,  636,  637  (1881);    disci]  Idlty  of 

retroactive,  changes  in  the  burden  of  proof  regarding  tas  sale  pi 
where  all  records  have  been  destroyed.    See  Rich  v.  1'lauders,  opinion  of  Bell, 
J.,  post,  p.  .  14,  note. 


'.^06  FUNDAMENTAL    RIGHTS  (Part  2 

as  it  attempts  to  deprive  the  owner  of  a  then  existing  and  material 
defense,  is  without  constitutional  warrant.     *     *     * 
Judgment  affirmed.2 


CLARK  v   CLARK. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1839.     10  N.  H.  3S0, 
34   Am.   Dec.    165.) 

[Libel  for  divorce  by  a  husband  against  his  wife  for  desertion, 
grounded  upon  the  terms  of  a  retroactive  statute  stated  in  the  opinion 
below.] 

Parker,  C.  J.  *  *  *  The  twenty-third  article  of  the  Bill  of 
Rights  denounces  retrospective  laws  as  "highly  injurious,  oppres- 
sive, and  unjust,"  and  declares  that  "no  such  laws  should  be  made, 
either  for  the  decision  of  civil  causes,  or  the  punishment  of  offences." 

In  Woart  v.  Winnick,  3  N.  H.  481,  14  Am.  Dec.  384,  this  court 
held,  that  this  clause,  so  far  as  it  applied  to  civil  causes,  "was  in- 
tended to  prohibit  the  making  of  any  law  prescribing  new  rules  for 
the  decision  of  existing  causes,  so  as  to  change  the  ground  of  the 
action,  or  the  nature  of  the  defence."  That  was  sufficient  for  the 
case  then  under  consideration,  which  was  in  fact  pending  when  the 
law  then  in  question  was  passed.  But  the  considerations  there  sug- 
gested evidently  point  to  a  broader  application  of  it  than  one  which 
would  make  it  operative  merely  upon  actions,  or  causes,  pending  in 
court  at  the  time  of  the  passage  of  the  act.  A  law  may  be  retro- 
spective in  its  operation,  if  it  affect  an  existing  cause  of  action,  or 
an  existing  right  of  defence,  by  taking  away  or  abrogating  a  per- 
fect  existing   right,  although   no   suit   or   legal    proceeding    then   ex- 

2  Accord :  Marx  v.  Hanthorn,  148  U.  S.  172,  13  Sup.  Ct.  508,  37  h.  Ed. 
410  (1S93)  (property  assessed  to  wrong  person) ;  Strode  v.  Washer,  17  Or.  50, 
16  Pac.  920  (1S8S)  (assessment  totally  invalid) :  McCready  v.  Sexton,  29  Iowa, 
356,  4  Am.  Rep.  214  (1870)  (general  discussion). 

Contra :  De  Treville  v.  Smalls,  98  U.  S.  517,  25  L.  Ed.  174  (1879)  (deeds  of 
land  sold  for  federal  taxes  conclusive  evidence  of  validity  of  sale  except  as 
to  proof  of  non-liability  of  property  to  taxation,  prior  payment  of  taxes,  or 
redemption  from  sale).  See,  also,  Callanan  v.  Hurley,  93  U.  S.  387,  23  L. 
Ed.  931  (1876)  (similar  Iowa  statute). 

As  regards  prospective  curative  acts  generally :  "Broadly  stated,  the  doc- 
trine is  that  the  legislature  may  make  the  tax  deed  conclusive  evidence  of 
compliance  with  every  requirement  which  the  legislature  might,  originally,  In 
the  exercise  of  its  discretion,  have  dispensed  with." — Fenner,  J.,  in  In  re  Doug- 
las, 41  La.  Ann.  765,  768,  6  South.  675  (1889).  So,  McCready  v.  Sexton,  29 
Iowa,  356,  3S8-390  (1S70) ;   Nevin  v.  Bailey,  62  Miss.  433,  436  (18S4). 

And,  conversely:  "If  any  given  step  or  matter  in  the  exercise  of  the  pow- 
er (as,  for  example,  the  fact  of  a  levy  by  the  proper  authority)  is  so  indis- 
pensable that  without  its  performance  no  tax  can  be  raised,  then  that  step  or 
matter,  whatever  it  may  be,  cannot  be  dispensed  with,  and  with  respect  to 
that  the  owner  cannot  be  concluded  from  showing  the  truth  by  a  mere  leg- 
islative declaration  to  that  effect." — Allen  v.  Armstrong,  16  Iowa,  50S,  513, 
514  (1864),  by  Dillon,  J. 

As  to  barring  incurable  defects  by  short  statutes  of  limitations,  see  Clark 
v.  Clark,  post,  p.  909.  note  4. 


Ch.  13)  CIVIL  BET EO ACTIVE    LAWS  Wi 

ists.1  Of  course  it  is  not  intended  to  deny  the  right  of  the  legisla- 
ture to  vary  the  mode  of  enforcing  a  remedy ;  or  to  provide  for  the 
more  effectual  security  of  existing  rights;  or  to  pass  laws  which 
change  existing  rules,  under  which  rights  would  be  acquired  by  the 
lapse  of  a  certain  period  of  time,  part  of  which  has  already  passed. 
The  statute  of  limitations  may  be  changed  by  an  extension  of  the  time, 
or  by  ail  entire  repeal,  and  affect  existing  causes  of  action,  which  by 
the  existing  law  would  soon  be  barred.  In  such  cases  the  r; 
action  is  perfect,  and  no  right  of  defence  has  accrued  from  the  time 
already  elapsed.  But  if  a  right  has  become  vested,  and  perfect,  a  law 
which  afterwards  annuls  or  takes  it  away,  is  retrospective.  Thus  a 
law  which  should  provide  that  promissory  notes  made  payable  on 
demand  should  be  payable  at  the  expiration  of  a  year,  and  that  no 
suit  should  be  maintained  upon  them  until  the  expiration  of  that  time, 
if  applied  to  existing  contracts  of  that  character,  would  be  a  retrospec- 
tive law  for  the  decision  of  a  civil  cause,  not  only  in  relation  to  actions 
then  pending  upon  such  contracts,  but  also  as  to  all  notes  of  that  de- 
scription then  in  existence.  And  so  of  any  other  law  which  impairs 
vested  rights  acquired  by  existing  laws.  Merrill  v.  Sherburne,  1  N.  H. 
213,  8  Am.  Dec.  52.  To  subject  a  party  to  the  payment  of  damages, 
or  to  other  loss  or  detriment,  upon  considerations  entirely  past,  is 
within  the  principle.  Thus  a  statute  of  this  state,  passed  in  1805. 
made  provision,  that  where  there  had  been  peaceable  possession  and 
actual  improvement  of  land  by  virtue  of  a  supposed  legal  title,  under 
a  bona  fide  purchase,  for  more  than  six  years  before  the  commence- 
ment of  an  action  for  the  recovery  of  it,  the  tenant  should  be  entitled 
to  the  increased  value  of  the  premises  by  virtue*of  buildings  and  im- 
provements, if  the  demandant  recovered.  In  an  action  brought  in 
1807,  it  was  held  that  the  act,  applied  to  a  possession  existing,  and  to 
improvements  made,  prior  to  its  passage,  was  a  retrospective  law, 
within  the  clause  of  the  Constitution  already  cited.2  Society  v. 
Wheeler,  2  Gall.  105,  Fed.  Cas.  No.  13,156. 

i  The  legislature  may  of  coarse  waive  defences  In  suits  against  the  state  or 
its  subdivisions  that  it  could  not  abrogate  between  Individuals,  because  retro- 
active.    New  Orleans  v.  Clark,  95  D.  B.  644,  21  I..  I'M.  521  (1877)  (invalid  mu- 
nicipal bond  issue);    Utter  v.  Franklin,  172  D.  B.  416,  19  Sup.  Ct   183,  43   I 
Ed.  498  (1890)  (invalid  aid  to  railroad);    Worcester  v.  St  Ky..  196  1".  S.  639, 
25  Sup.  Ct.  :527.  49  L.  Ed.  591  (1905)  (impairing  obligation  of  contract 
kins  v.  State.  21  Wis.  601  (1867)  (granting  new  trial  after  tin.il  Judgment). 
Contra:    Count]  Com'rs  v.  Re  che,  5 Mo  St   103   33  N.  E.  408  (1893)  (re- 
funding Qlegal  taxes  paid  without  pri  V  V.  Ins.  Co,  v.  Board 
Of  Com'rs,  100  Fed.   12::.  45  C.  C.  A.  233  (1901)].     See  27   I..    K.  A.   I 
i  cases  i. 

As  tn  the  retroactive  validation  of  Irregular  municipal  elections  ondi 
stitininns  fori  Ldding  special  legislation  or  requiring  such  elections  to  be  held 
"as  provided  bj    aw,"  Bee  Cole  v.  Dorr,  80  Kan.  251,  H'l  Pac  1016,  22  U  i; 
.V.  (N.  S.i  534  (1909);    Swart/,  v.  Carlisle,  237  Pa,   173,  85  Atl.  M7  (1912). 

•  Retrospective  "betterment  laws"  were  held  invalid,  without  ■  specific  pro 
hitiition  of  retroactive  laws.  In  Austin  v.  Stevens,  24  Me.  620  (1846);  Johnsou 
v.  Rowland,  2  Ky.  tKy.  Dec.)  77  (1801);  Wilaon  f.  Bed  Wing,  22  Minn.  48S 
(187C);    Newton  v.  Thornton,  3  N.  M.  (GU&)  287,  5  l'uc.  207  (1885);    Nelson  t. 


908  FUNDAMENTAL    RIGUT3  (Part  2 

A  statute  which  attempts  to  confer  authority  upon  the  court  to 
grant  a  divorce,  for  matters  already  past,  and  which,  at  the  time  when 
they  occurred,  furnished  no  ground  for  a  dissolution  of  the  marriage, 
or  for  other  legal  proceedings,  is,  in  our  view,  clearly  a  retrospective 
law,  and  well  entitled  to  the  epithets  applied  to  such  laws  in  the  Con- 
stitution. On  the  supposition  that  the  past  matter,  which  is  thus 
made  the  ground  of  a  divorce,  was  of  a  character  inconsistent  with 
the  perfect  obligations  of  the  marriage  covenant,  and  such,  therefore, 
as  could  not  be  justified,  or  even  excused,  in  a  court  of  morals;  still,, 
if  it  was  not  such  as  subjected  the  party,  when  it  took  place,  to  any 
penalty  or  punishment;  or  entitled  the  other  party  to  any  remedy; 
and,  especially,  if  it  was  not  such  as  then  furnished  any  ground  upon 
which  a  dissolution  of  those  obligations  could  be  sought  or  predicated; 
it  must,  by  a  law  making  it  a  ground  for  a  divorce,  have  a  different 
character  and  operation  bestowed  upon  it.  Its  legal  character  would 
thereby  be  changed,  and  its  effect  enlarged.  That  which,  if  not  of 
itself  innocent,  was  not,  when  it  occurred,  such  a  breach  of  marital 
obligations  as  to  warrant  an  interference  with  them,  would  be  made 
operative,  not  only  to  release  one  party  from  the  further  obligations 
of  what  is  generally  admitted  to  be  a  contract,  but  would  be  made  the 
means  of  depriving  the  other  party  of  the  benefit  of  those  obligations, 
and  of  rights  of  property  derived  from  them.  It  would  subject  that 
party  to  loss  and  detriment  for  past  acts,  altogether  by  the  retrospec- 
tive operation  of  the  law  which  authorized  and  gave  effect  to  the  di- 
vorce. Such  a  law  cannot  enforce  the  obligations  of  the  marriage, 
nor  is  it  a  provisiop  relating  to  the  remedy  merely ;  for  whatever 
breach  may  have  occurred,  the  obligation  of  the  contract  still  remains, 
and  requires  a  prospective  performance  of  marital  duties.  But  the 
principle  upon  which  the  law  must  be  founded,  would,  if  admitted, 
dissolve  all  marriages  at  the  will  of  the  legislative  power.3 

Desertion  for  three  years,  by  the  husband,  coupled  with  neglect  to 
make  suitable  provision  for  the  support  and  maintenance  of  the  wife, 
where  it  was  in  his  power  so  to  do,  has,  for  a  long  period,  furnished 
a  sufficient  cause  for  a  dissolution  of  the  marriage,  in  this  state.  But, 
under  that  statute,  if  the  husband  had  not  pecuniary  ability,  there  was 
no  cause  for  a  divorce.  The  present  act  makes  desertion  alone,  by 
either  party,  for  the  term  of  three  years,  if  without  sufficient  cause 
and  against  the  consent  of  the  other,  a  substantive  ground  of  divorce. 
It  is,  therefore,  a  new  cause;  and  that  part  of  the  act  which  attempts 

Allen,  1  Yerg.  (Tenn.)  3C0  (1S30)  (semble).  Contra :  Albee  v.  May,  2  Paine,  74, 
Fed.  Cas.  No.  134  (1S34) ;  Mills  v.  deer,  111  Ga.  275,  36  S.  F.  673,  52  L.  R.  A. 
934  (1900)  (retrospective  laws  forbidden).  See  Bright  v.  Boyd.  1  Story,  47S, 
Fed.  Cas.  No.  1,875  (1S41) ;  Id.,  2  Story,  605,  Fed.  Cas.  No.  1,876  (1S43),  com- 
mented on  in  Griswold  v.  Bragg,  4S  Conn.  (TJ.  S.  Circ.)  577,  5S0,  5S1  (1880). 
Compare  Searl  v.  School  Dist.,  i33  U.  S.  553,  10  Sup.  Ct.  374,  33  L.  Ed.  740 
(1890). 

;:  Marriages  cannot  be  retroactively  validated  under  the  New  Hampshire 
Constitution.     Duubarton  v.  Franklin,  19  N.  H.  257  (1S4S). 


Ch.  13)  CIVIL  BBTROACTIVB   LAW8  909 

to  make  such  desertion,  then  past,  sufficient,  must,  if  enforced,  impair 
vested  rights,  provided  there  are  any  vested  rights  in  the  existence 
of  a  marriage.  We  shall  not  add  to  the  length  of  this  opinion,  by  at- 
tempting to  show  that  such  rights  exist.     *     *     * 

That  part  of  the  act  which  provides  for  divorces  on  account  of 
desertion  and  refusal  to  cohabit  for  three  years  after  its  passage,  is 
not  objectionable,  notwithstanding  it  may  operate  upon  existing  mar- 
riages. Regulations  intended  to  enforce  the  obligations  of  the  con- 
tract in  future,  impair  no  vested  rights.  The  contract  of  marriage, 
it  is  well  understood,  is  subject  to  them,  and  all  persons  may  avoid 
their  operation  by  an  adherence  to  the  duties  imposed  by  the  contract 
itself.  And  we  have  no  doubt  that  the  legislature  may  so  amend  the 
Act  that  a  continuance  of  a  prior  desertion,  for  a  period  after  the 
passage  of  the  new  statute  long  enough  to  give  a  reasonable  time  for 
a  return,  and  a  resumption  of  marital  duties,  shall  be  a  good  cause  for 
a  dissolution  of  the  marriage.4 

Libel  dismissed. 

*  The  period   of  limitation   of  actions  may  be  shortened.   If  a   re.i 
time  for  bringing  suit  be  provided  after  the  passage  of  the  act    Turner  v. 
KeW  Yurie.  168  1'.  S.  90,  is  Sup.  Ct  38,   12  I..  Kd.  392  (1897)  (six  mouths  suf- 
ficient as  against  tax  deed  alrei  d;    ra     ded  for  two  years).     Compare  Mo- 

v.    Virginia,    135   0.  S.   662,   705-708,  10  Sup.   Ct   97'J.  34   L.    I 
(1890)  (what  is  reasonable  time  depends  on  circumstances  of  e 
cases).     See  Bllnn  v.  Nelson,  222  i".  s.  i.  7,  32  Sup.  Ct  1,  50  I,.  Ed.  65  (1911) 
(cases);    1  1..  R.  a.  (N.  S.)  528,  529  Defects  in  tax  salea  too  vital  to 

be  remedied  1  \   curative  acts  (see 

statutes  of  limitations.  "Such  a  statute  will  bar  any  right,  however  blgb 
the  source  from  whic'^  tt  may  be  1 

given  a  party  to  euforce  his  right"-  Meigs  v.  Roberts,  162  X.  Y.  371,  378,  56 
\.  B,  838,  76  Am.  St.  Rep.  822  (1900),  by  Cullen,  J.  See,  also,  Wallace  v.  Mr- 
Kclimn,  176  x.  v.  424,  68  X.  EX  663  (1903).  As  to  the  validity  of  such  acts  In 
favor  of  claimants  under  vo  es  who  are  not  in  possession,  see  Ding- 

ey v.  Paxton,  00  Miss.  1088,  1053  1055  (1883)  (citing  cases);  Meigs  v.  Rob- 
erta, above,  at  pages  379,  880.  The  same  principle  applies  where  the  legisla- 
ture shortens  the  time  within  which,  under  existing  law,  other  rights  may 
be  exercised  than  those  of  bringing  suit.  Butler  v.  Palmer,  1  Hill  (N.  Y.) 
324  (1841)  (right  to  redeem  from  ale).    See  Ochoa  v.  Hernandez  y 

Morales.  280  0.  s.  189,  38  Sup.  Gt.  1038,  57  I*  Bd.  —  (1MB)  (wholly  retro- 
active Btatute  of  limitations  by  military  order  is  invalid!. 

EXPRESS  CONSTITTJTIONAI,  PROHIBITIONS  OF  RETROACTIVE  LAWS. — The  I 

tutions  of  Colorado,  Georgia,  Missouri.  Montana,  New  Hanrpshiri 

p  express  prohibitions  of  retroactive  legislation  in 
general;   bur  Ohio  excepts  curative  acts  to  carry  into  effect  the  intent 
parties   and    officers    (article    II,    §   28),   and    some  of   the   other 

le  result  by  construction,  or  even  go  further.  Shields  v.  Clifl 
Co..  94  Term.  123,  28  S.  \Y.  668,  20  L.  It.  A.  509.  45  Am.  St.  Rep.  700 
Mut.  Ben.  Co.  v.  Winne,  20  Monl  Mills  v.  Geer,  ill 

Ga.  275.  .".0  S.  E.  673,  52  I..  R.  A.  934  (1900)  (recovery  for  value  of  better- 
ments atlixed  to  land  by  Innocent  party  wrongfully  possessed). 


910  FUNDAMENTAL    RIGHTS  (Part   2 

KENT  v.  GRAY. 
(Supreme  Court  of  New  Hampshire,  1873.     53  N.  H.  57G.) 

[Action  of  debt  by  Kent,  Cossitt,  and  Rogers  against  Gray  for  a 
statutory  penalty.  On  demurrer  it  was  decided,  that  the  statute  au- 
thorized a  suit  by  one  person  only.  A  statute  of  1872,  subsequent  to 
the  bringing  of  this  action,  authorized  amendments  to  existing  suits 
by  striking  out  the  names  of  improper  plaintiffs.  A  motion  to  strike 
out  the  names  of  two  of  the  plaintiffs  was  reserved  for  the  court.] 

Doe,  J.  Can  the  act  of  1S72  be  constitutionally  applied  to  penal 
suits  existing  at  the  time  of  its  passage  ?  In  Rich  v.  Flanders,  39  N. 
H.  304,  it  was  held  by  a  majority  of  the  court  that  the  legislature 
could,  by  a  general  act,  remove  the  common-law  disability  of  parties  to 
testify  in  pending  as  well  as  future  suits.  The  objection  to  retro- 
spective laws  is  declared,  in  article  23  of  the  Bill  of  Rights,  to  be,  that 
they  "are  highly  injurious,  oppressive,  and  unjust."  The  objection  is 
substantial,  not  formal, — reasonable,  not  technical ;  and  the  reason 
of  the  objection,  like  the  reason  of  all  law,  is  to  be  considered  in  in- 
terpretation and  administration.  The  reason  of  the  constitutional  pro- 
hibition of  retrospective  legislation  is,  the  material  and  substantial  in- 
jury, oppression,  and  injustice  caused  by  its  practical  operation. 

Taking  the  prohibition  in  the  reasonable  and  equitable  sense,  ex- 
plicitly announced  in  the  Bill  of  Rights  as  a  prohibition  of  the  injus- 
tice of  retrospectively  converting  right  into  wrong  or  wrong  into  right, 
and  applying  it  in  that  sense  to  the  case  of  Rich  v.  Flanders,  it  might 
be  argued  that,  in  allowing  both  parties  to  testify,  there  was  no  such 
transmutation,  but  merely  a  grant  of  equal  rights  to  both  parties  by  an 
impartial  enlargement  of  the  bounds  of  competent  evidence  on  each 
side  of  the  issue,  not  changing  the  issue,  or  the  right  to  be  established. 
or  the  wrong  to  be  redressed,  or  the  form  or  substance  of  the  remedy  ; 
that  giving  both  parties  the  additional  means  of  showing  the  truth, 
and  proving  and  disproving  the  right  asserted  or  the  wrong  complained 
of,  and  demonstrating  what  was  right  and  what  was  wrong,  was  nei- 
ther an  injury,  nor  oppression,  nor  injustice,  in  a  moral  or  legal  sense, 
and,  therefore,  not  within  the  constitutional  prohibition ;  that  allowing 
the  parties  to  testify  did  not  alter  the  character  or  effect  of  competent 
evidence,  but  only  increased  its  quantity ;  that  neither  party  had  a 
vested  right  in  the  exclusion  of  evidence  and  the  suppression  of  the 
truth,  on  the  trial  of  an  unaltered  issue,  upon  the  determination  of 
which  depended  the  vindication  of  an  unaltered  right  by  an  unaltered 
remedy,  or  the  discharge  of  the  defendant  from  an  unaltered  claim, 
on  unaltered  grounds,  in  an  unaltered  process ;  *  *  *  that  it 
would  be  a  very  different  thing  if  the  legislature  should  undertake  to 
give  artificial  weight  to  a  certain  class  of  evidence  in  a  pending  suit, 
as  by  declaring  certain  proof  to  be  prima  facie  evidence  (Chappell 


Ch.  13)  CIVIL   &ETR0A.CTIVH    LAWS  U  I  1 

v.  Purday.  12  M  &  W.  303,  306,  where  I/.rd  Abinger  thought  the 
legislature  did  not  intend,  by  an  ex  post  facto  law,  to  give  one  party 
to  a  suit  already  commence- 1  so  great  an  advantage  over  his  adver- 
sary); that  it  would  also  be  a  very  different  thing  if  the  legislature 
should  undertake,  by  a  disabling  act,  to  render  a  competent  witness 
incompetent  in  a  pending  suit;  that  it  might  be  injurious,  oppri 
and  unjust,  by  a  retrospective  statute,  to  deprive  a  party  to  a  pending 
suit  of  the  means  of  showing  the  truth;  [and]  that  to  destroy  the 
competency  of  a  witness  might  unjustly  defeat  the  party  having  the 
burden  of  proof, — might  unjustly  defeat  either  party, — by  depriving 
him  of  evidence  of  the  truth  on  which  he  relied  and  had  a  right  to 
rely.     *     *     * 

An  argument  of  that  kind  might  be  made,  in  support  of  the  doctrine 
of  Rich  v.  Flanders,  on  very  narrow  ground.  We  are  hot  to  be  under- 
stood as  saying  that  it  is  only  on  such  a  ground  that  the  doctrine  of 
that  case  can  be  supported  ;  but  it  is  suggested  that,  if  such  a  ground 
can  be  maintained,  it  would  be  sufficient  for  that  case. 

In  the  present  case,  at  the  time  of  the  passage  of  the  act  of 
there  were  three  plaintiffs,  and  they,  jointly  constituting  the  part} 
plaintiff,  had  no  right  of  action  against  the  defendant,  and  he  was 
under  no  liability  to  them.  This  state  of  things  the  legislature  undcr- 
i  change,  by  allowing  two  of  the  plaintiffs  to  withdraw, — a  pro- 
ceeding which,  if  successfully  followed,  would,  so  far  as  these  parties 
are  concerned,  change  no  cause  of  action  into  a  good  cause  of  action, 
and  operate  as  a  substantial  creation  of  a  new  suit  that  could  be  main- 
tained, in  place  of  an  old  one  that  could  not.  This  is  going  far  ' 
impartially  giving  both  parties  additional  means  of  proof.  We  see- 
nothing  in  the  doctrine  of  Rich  v.  Flanders  that  sustains  legislation  of 
this  character. 

There  is  much  authority  for  holding,  in  general  terms,  that  a  right  to 
have  one's  controversies  determined  by  existing  rules  of  evidence  is 
not  a  vested  right;  that  rules  of  evidence  pertain  to  the  remedies 
which  the  state  provides  for  its  citizens ;  that,  like  other  rules  affect- 
ing the  remedy,  they  must  at  all  times  be  subject  to  modification  by  the 
legislature;  that  changes  affecting  the  remedy  may  lawfully  be  made 
applicable  to  existing  causes  of  action;  that  the  changes  are  not  retro- 
spective, because  they  are  to  be  applied  in  future  trials,  and  are  not 
to  affect  previous  trials.  Cooley,  Const.  Lim.  367.  But  general  state- 
ments of  this  kind  are  to  be  taken  witli  the  broad  qualification  that  the 
changes  must  not  infringe  the  general  principles  of  justice.  Retro- 
spective laws  are  unconstitutional  and  void,  because  they  are  injurious, 
oppressive,  and  unjust.  That  is  the  plain  and  simple  rule  laid  down 
in  the  Hill  of  Rights.  And  any  generalization  founded  on  the  distinc 
tion  between  right  and  remedy,  is  attended  with  some  danger,  because 
of  the  difficulty  of  drawing  that  distinction  so  accurately  as  not  to 
impair  the  force  of  the   constitutional   prohibition.     Undoubtedly,   a 


912  FUNDAMENTAL    IUGIITS  (Part  2 

remedy  may  be  changed,  in  some  sense,  and  to  some  extent,  without 
affecting  a  right, — that  is,  there  may  be  a  change  in  the  remedy  that 
is  not  injurious,  oppressive,  and  unjust:  but  it  is  equally  clear  that  a 
remedy  may  be  so  changed  as  to  affect  a  right  injuriously,  oppressively, 
and  unjustly,  within  the  meaning  of  the  prohibition. 

A  statute  is  not  necessarily  just  and  valid  because  it  affects  the 
remedy.  The  question  is,  not  whether  it  affects  the  remedy,  but 
whether  it  affects  the  remedy  in  a  certain  sense,  and  the  remedy  only. 
This  point  is  forcibly  illustrated  in  the  dissenting  opinion  of  Bell,  C.  J., 
in  Rich  v.  Flanders,  39  N.  H.  347,  348.  If  a  statute,  in  terms  made 
applicable  to  pending  suits,  should  provide  that  no  deed  should  be 
received  in  evidence  unless  the  attesting  witnesses  were  fifty  years  of 
age  at  the  time  of  the  trial,  and  if  the  retrospective  character  of  such 
a  statute  were  the  only  objection  to  its  validity,  it  would  not  be  made 
valid  by  the  fact  that  it  affected  the  remedy.  It  could  not  be  applied 
to  pending  suits,  or  to  deeds  duly  executed  before  its  passage,  because 
it  would  unjustly  affect  rights  as  well  as  remedies.  Legal  evidence  of 
title  could  not  be  justly  destroyed,  however  strongly  the  statute  might 
profess  to  be  exclusively  aimed  at  the  remedy.  The  principles  of  jus- 
tice, declared  by  the  prohibition  of  retrospective  laws,  are  not  evaded 
by  words,  names,  and  pretences.  And  when  we  have  merely  ascer- 
tained that  a  statute  affects  the  remedy  in  some  sense  or  other,  we 
have  made  very  little  progress  in  the  inquiry  whether  it  affects  a  right, 
that  is,  whether  it  is  unjust  on  general  principles.  If  a  certain  change 
can  be  made  in  the  remedy,  it  is  because  it  can  be  justly  made :  if 
a  change  cannot  be  made  in  the  right,  it  is  because  it  cannot  be  justly 
made. 

A  statute  abolishing  the  action  of  assumpsit,  and  substituting  for  it 
the  action  of  debt,  might  be  applied,  without  injustice,  to  existing 
causes  of  action  not  in  suit;  but  it  could  not  be  constitutionally  applied 
to  oppress  a  plaintiff  in  a  pending  suit  in  assumpsit.  Having  incurred 
expense  in  bringing  a  proper  suit,  and  pursuing  a  remedy  provided  by 
law,  it  would  be  unjust  to  turn  him  out  of  court,  render  a  judgment 
against  him  for  the  defendant's  costs,  and  leave  him  to  another  remedy, 
in  the  pursuit  of  which  he  might  again  be  defeated  in  the  same  manner 
by  another  statute.  In  one  sense,  such  legislation  would  affect  the 
remedy  only ;  but,  in  the  constitutional  sense,  it  would  be  retrospec- 
tive, injurious,  oppressive,  and  unjust,  and,  therefore,  unconstitution- 
al ;  and  it  is  not  apparent  how  the  constitutional  sense,  in  such  a  case, 
would  be  elucidated  by  a  distinction  between  a  right  and  a  remedy 
The  injustice  would  be  manifest ;  and  the  test  given  by  the  bill  of 
rights  is,  not  the  distinction  between  right  and  remedy,  but  the  dis- 
tinction between  right  and  Wrong.  On  other  subjects,  the  ground  of 
judicial  decision  is  not  ordinarily  understood  to  be  so  broad  as  the 
general  principles  of  justice;  but,  on  this  subject  of  retrospective  leg- 
islation, those  principles  are  the  constitutional  ground  amply  supported 


Ch.13)  (HVIL  RETROACTIVE    LAWS  913 

by  the  autliorities.  Cooley,  Const.  Lim.  369-383.  It  is  said  that  a 
defendant  has  no  vested  right  in  a  defence  based  upon  an  informality 
not  affecting  his  substantial  equities,  and  that  formal  defects  and  ir- 
regularities may  be  cured  by  retrospective  legislation.  Cooley,  Const. 
Lim.  370,  383.  That  is  merely  saying  that  the  whole  subject  stands 
on  the  ground  of  substantial  equity.  What  are  formal  and  what  are 
substantial  defects,  in  particular  cases,  may  not  be  an  easier  problem 
than  the  application  of  the  general  equitable  principle.  In  whatever 
form  the  question  is  put,  it  is  not  easy  to  lay  down  a  universal  rule 
(any  narrower  than  the  general  principle),  by  which  such  an  answer 
can  be  readily  obtained,  in  every  case,  as  the  principle  requires.  It  is 
natural  that  courts,  pressed  by  the  difficulty  and  inconvenience  of  de- 
ciding causes  on  so  broad  a  principle,  and  accustomed  to  the  guidance 
of  more  limited  rules  and  specific  precedents,  should  seek  some  path 
more  restricted,  sharply  defined,  and  easily  followed,  than  the  un- 
bounded expanse  of  justice.  But  it  may  be  doubted  whether  some  of 
the  attempts  made  to  lay  out  such  a  path  have  not  tended  to  dissemi- 
nate contracted  and  obscure  views  of  the  principle  on  which  the  con- 
stitutional prohibition  is  based,  and  to  embarrass  its  operation. 

Without  undertaking  to  establish  a  rule  for  the  disposition  of  other 
cases  of  a  different  kind,  we  think  the  application  of  the  act  oi 
to  this  case  would  be  an  inroad  upon  the  conservative  constitutional 
ideas  that  have  prevailed  in  this  state.  In  Woart  v.  Winnick,  3  N.  H. 
473,  481,  482,  14  Am.  Dec.  384,  it  was  held  that  the  legislature  cannot 
prescribe  new  rules  for  the  decision  of  existing  causes,  so  as  to  change 
the  ground  of  the  action  or  the  nature  of  the  defence ;  that  it  i 
manifestly  injurious,  oppressive,  and  unjust,  that,  after  an  individual 
has,  upon  the  faith  of  existing  laws,  brought  his  action,  or  prepared 
his  defence,  the  legislature  should  step  in,  and,  without  any  examina- 
tion of  the  circumstances  of  the  cause,  arbitrarily  repeal  the  law  upon 
which  the  action  or  the  defence  had  been  rested.  *  *  *  Suppose 
the  general  statement,  that  the  nature  of  the  defence  cannot  be 
changed,  is  to  be  understood  with  the  qualification  that  the  defence  is 
based  upon  substantial  equity,  and  not  upon  a  mere  informality:  the 
defence  here  is,  that  the  suit  is  brought  by  several  persons  on  a  joint 
cause  of  action  which  does  not  exist ;  that  the  cause  of  action,  creat- 
ed by  the  statute,  is  vested  by  the  statute  in  the  one  person  who  first 
brings  a  suit  for  the  penalty;  that,  as  the  right  of  action  vests  in  that 
one  person,  it  has  not  vested  in  these  three  plaintiffs.  Kent,  Cossitt, 
and  Rogers,  either  jointly  or  severally ;  that  it  has  not  vested  in  Kent 
alone,  nor  in  Cossitt  alone,  nor  in  Rogers  alone,  because  neither  of 
them  alone  brought  the  suit,  and  there  is  no  fact  or  fiction,  recognized 
by  law,  that  can,  in  this  suit,  confer  on  either  one  of  them  a  I 
action  which  is  not  yet  his,  and  which  the  law  confers  only  on  the  one 
person  who  brings  the  suit:  that  the  defendant  is  not  now  liable  to  the 
plaintiffs,  or  either  of  them;  and  that,  to  allow  two  of  them  to  with 
Hall  Const.L. — f>8 


914  FUNDAMENTAL    RIGHTS  (Part    2 

draw,  and  the  other  one  to  prosecute  the  suit,  would  render  the  de- 
fendant liable  to  a  person  to  whom  he  is  not  now  liable,— would  im- 
pose upon  him  a  liability  that  has  no  existence  in  law  or  in  fact.  Is 
this  a  defence  of  substance  and  equity,  or  of  form  and  technicality? 
The  defence  of  the  statute  of  limitations  is,  in  some  cases,  inequitable 
in  point  of  fact ;  but  it  was  held,  in  Woart  v.  Winnick,  that,  as  a  mat- 
ter of  law,  it  is  a  defence  which  it  is  inequitable  to  take  away  by  retro- 
active legislation.  Looking  at  the  origin,  nature,  and  object  of  the 
cause  of  action  in  a  penal  suit  of  this  kind,  and  the  method  in  which 
it  accrues  to  one  person,  we  are  unable  to  say  that  the  defence  in  this 
case  is  not  an  equitable  one  within  the  meaning  and  protection  of  the 
Bill  of  Rights.  And,  giving  effect  to  the  prohibition  in  the  sense  of  it 
as  expounded  by  the  letter  and  spirit  of  our  numerous  decisions,  and 
the  general  understanding  of-  the  legal  profession,  we  are  of  opinion 
that  the  act  of  1872  cannot  be  applied  to  this  suit,  and  that  the  amend- 
ment desired  by  the  plaintiffs  cannot  be  made. 
Motion  denied.1 

i  In  Rich  v.  Flanders,  39  N.  H.  304,  316,  317  (1859)  Sargent  J.,  said,  quoting 
in  part  from  Willard  v.  Harvey,  24  N.  H.  351  (1S52) :  "  'The  broadest  construc- 
tion of  the  constitutional  rules  which  forbid  retrospective  legislation  would 
require  that  all  statutes  affecting  in  any  way  a  civil  cause  must  he  so  en- 
tirely prospective  that  no  new  rule  could  be  applied  in  the  decision  of  a 
cause  which  did  not  exist  when  the  right  of  action  accrued.  But  a  construc- 
tion so  broad  as  this  could  not  be  reasonably  held,  since  the  effect  would  be 
that  no  change  could  be  made  in  the  courts  or  course  of  justice  which  would 
affect  the  actions  or  causes  of  action  then  existing.  The  courts  have, 
therefore,  everywhere  recognized  a  distinction  between  statutes  affecting 
rights  and  those  affecting  remedies  only.  The  rights  of  parties  cannot  be 
changed  by  legislation,  but  no  party  has  a  vested  right  in  any  particular  rem- 
edy.' And  it  was  very  truly  and  appropriately  said  in  that  decision,  that 
(1)  courts  may  be  changed — one  may  be  abolished  and  another  substituted, 
or  the  jurisdiction  transferred;  (2)  the  process  may  be  changed,  as  by  abol- 
ishing arrests  for  debt;  (3)  new  parties  may  be  authorized  to  maintain  suits, 
as  executors,  heirs,  assignees,  etc. ;  (4)  the  action  may  be  changed,  as  by  sub- 
stituting case  for  debt  or  trespass,  or  proceedings  in  law  for  those  in  equity, 
or  vice  versa ;  (5)  new  rules  of  evidence  and  of  practice  may  be  estab- 
lished ;  and,  (6)  new  final  process  may  be  established  or  substituted,  and  new 
modes  of  executing  such  process,  or  of  preserving  their  lien;  new  exemp- 
tions of  property,  and  new  modes  of  relief  from  imprisonment  may  be  pro- 
vided ;  and  that  a  party  has  no  right  to  complain  of  any  of  these  things,  as 
violations  of  the  Constitution,  so  long  as  the  laws  leave  to  him  a  competent 
court  bound  to  administer  justice  to  him  according  to  the  rights  the  law 
gave  him,  when  his  right  of  action  or  defence  became  vested,  with  means  and 
powers  to  accomplish  its  duties,  and  suitable  process  of  which  the  party  may 
avail  himself." 

In  the  same  case,  Bell,  C.  J.,  dissenting,  said  (pages  347,  34S):  "But  there  are 
many  other  cases  where  the  rules  of  evidence  cannot  be  changed  without  af- 
fecting the  rights  of  the  parties,  and  entirely  changing  the  grounds  upon 
which  those  rights  must  be  decided.  Some  cases  may  be  stated  merely  as 
examples,  in  illustration  of  this  position,  which  must  -be  'assented  to  by 
everybody.  One  has  a  promissory  note  which  is  outlawed;  that  is,  more 
than  six  years  have  elapsed  since  it  was  payable;  but  the  holder  has  two 
reliable  witnesses  to  prove  that  the  signer  within  six  years  promised  to  pay 
it.  He  has  to-day  a  perfect  right  of  action  on  the  note,  and  the  evidence  to 
sustain  it.  To-morrow  the  legislature  pass  an  act  that  no  evidence  of  a  new 
promise  shall  take  a  case  out  of  the  statute  of  limitations,  unless  it  is  in 


Ch.  13)  CIVIL  EtBTBOACTIVB   LAWS  916 

writing  and  signed  by  the  party.     To-morrow,  then,  his  right  of  action  will 
be  gone,  because  the  Legislature  has  deprived  him  of  his  proof  to  support  ills 
claim.    And  jet,  in  terms,  the  law  affects  the  evidence  merely. 
valid,  when  made,  by  the  existing  law,  but  attested  by  only  one  subscribing 
witness.     A  law  Is  passed  that  no  deed  shall  be  admissible  In  evidence  unless 
it  is  attested  by  two  subscribing  witnesses.    Here  his  right  to  his  farm  is  not 
d;    nothing  Is  affected,  so  far  us  the  turn:   is  concerned,  but  the  evi- 
dence of  his  title.     And  yet  the  owner  must  lose  his  farm  by   tl 
the  rule  of  evidence,  it  such  a  law  Is  sustained.    An  action  la  bri 
B,  founded  on  his  parol  agreement  to  pay  the  debt  of  a  third   i  e 
has  a  perfect  defence,  because  by  the  statute  n<>  action  can   '•■■ 
on  such  a  contract     If  the  statute  should  be  repealed,  parol  evli 
general    principles    must    be   admitted,   and   his    dl 

can  be  held  con  Latent  with  the  Constitution.    Wills  are  now  required  to  be 
attesied  by  three  witnesses.     A  statute  requiring  the  testimony  of  four  wit- 
nesses tu  establish  a  will  would  put  it  out  of  the  power  of  devi 
eases  to  prove   their  titles.     A  statute   which  should   make  written  •■■ 
Indispensable  to  the  proof  of  every  contract,  would  defeat  all 
ments.     An  act  which  should  make  five  year 

evidence  of  a  conveyance  of  It  from  the  owner,  would  at  once  change  the 
ownership  of  a  great  amount  of  property,  If  It  could  be  held  to  apply  to 
cases  where  thai  term  had  already  expired.  Such  a  statute  would  not,  In 
terms,  affect  any  vested  right,  nor  does  it  in  form  apply  to  anything  hut  the 
evidence.  Instances  111  ■■■  these,  showing  that  a  change  of  the  rules  of  evi- 
dence does  not  necessarily  operate  on  the  remedy  alone,  but  may  go  much  fur 
ther,  and  may,  and  very  often  must,  operate  to  give  a  right  or  defence  which 
did  not  exist  before,  or  to  take  away  and  destroy  defem  es  t"  which  the  par 
ty  was  clearly  entitled  under  the  previous  law,  might  be  multiplied  Indefi- 
nitely." 

See  Brearlev  School  v.  Ward,  201  X.  Y.  359.  04  N.  K.  1001,  40  I..  I: 
S.l  1215,  Ann.  ('as.  1912B,  251  (1911)  (law  ma;  I  to  give  creditors  a 

right  to  income  of  trust  fund  exempt  from  execution  at  time  of  Its  creation- 
see  casesi ;  Kennebec  Prop'rs  v.  Laboree,  2  Me.  (2  Greenl.)  275,  291,  292.  11 
Am.  Dec.  79  (1823) ;   Tabor  v.  Ward,  83  N.  O.  291  (1880). 


PART  III 

THE  FEDERAL  GOVERNMENT 


CHAPTER  XIV 
GENERAL  SCOPE  OF  FEDERAL  POWERS 


UNITED  STATES  v.  CRUIKSHANK  (1876)  92  U.  S.  542,  549- 
551,  23  L.  Ed.  5S8,  Air.  Chief  Justice  Waits: 

"We  have  in  our  political  system  a  government  of  the  United 
States  and  a  government  of  each  of  the  several  states.  Each  one  of 
these  governments  is  distinct  from  the  others,  and  each  has  citizens 
of  its  own  who  owe  it  allegiance,  and  whose  rights,  within  its  juris- 
diction, it  must  protect.  The  same  person  may  be  at  the  same  time 
a  citizen  of  the  United  States  and  a  citizen  of  a  state,  but  his  rights 
of  citizenship  under  one  of  these  governments  will  be  different  from 
those  he  has  under  the  other.  Slaughter-House  Cases,  16  Wall.  74, 
21  L.  Ed.  394.     *     *    * 

"Experience  made  the  fact  known  to  the  people  of  the  United 
States  that  they  required  a  national  government  for  national  pur- 
poses. *  *  *  For  this  reason,  the  people  of  the  United  States 
*  *  *  ordained  and  established  the  government  of  the  United 
States,  and  denned  its  powers  by  a  Constitution,  which  they  adopted 
as  its  fundamental  law,  and  made  its  rules  of  action. 

"The  government  thus  established  and  defined  is  to  some  extent  a 
government  of  the  states  in  their  political  capacity.  It  is  also,  for 
certain  purposes,  a  government  of  the  people.  Its  powers  are  limited 
in  number,  but  not  in  degree.  Within  the  scope  of  its  powers,  as 
enumerated  and  defined,  it  is  supreme  and  above  the  states ;  but  be- 
yond, it  has  no  existence.  It  was  erected  for  special  purposes  and 
endowed  with  all  the  powers  necessary  for  its  own  preservation  and 
the  accomplishment  of  the  ends  its  people  had  in  view.  It  can  nei- 
ther grant  nor  secure  to  its  citizens  any  right  or  privilege  not  ex- 
pressly or  by  implication  placed  under  its  jurisdiction. 

"The  people  of  the  United  States  resident  within  any  state  are 
subject  to  two  governments,  one  state,  and  the  other  national ;  but 
there  need  be  no  conflict  between  the  two.  The  powers  which  one 
possesses,  the  other  does  not.    They  are  established  for  different  pur- 

(916) 


Ch.  14)  GENERAL  SCOPE  OF   Kl.IH.UAI.    POWBB8  'JIT 

poses,  and  have  separate  jurisdictions.  Together  they  make  one 
whole,  and  furnish  the  people  of  the  United  States  with  a  complete 
government,  ample  for  the  protection  of  all  their  rights  at  home  and 
abroad.  True,  it  may  sometimes  happen  that  a  person  is  amenable  to 
both  jurisdictions  for  one  and  the  same  act.  Thus,  if  a  marshal  of 
the  United  States  is  unlawfully  resisted  while  executing  the  process 
of  the  courts  within  a  state,  and  the  resistance  is  accompanied  by  an 
assault  on  the  officer,  the  sovereignty  of  the  United  States  is  violated 
by  the  resistance,  and  that  of  the  state  by  the  breach  of  peace,  in  the 
assault.  So,  too,  if  one  passes  counterfeited  coin  of  the  United 
within  a  state,  it  may  be  an  offence  against  the  United  States  and  the 
state:  the  United  States,  because  it  discredits  the  coin;  and  the 
state,  because  of  the  fraud  upon  him  to  whom  it  is  passed.  This  does 
not,  however,  necessarily  imply  that  the  two  governments  possess 
powers  in  common,  or  bring  them  into  conflict  with  each  other.  It 
is  the  natural  consequence  of  a  citizenship  which  owes  allegiance  to 
two  sovereignties,  and  claims  protection  from  both.  The  citizen  can- 
not complain,  because  he  has  voluntarily  submitted  himself  to  such  a 
form  of  government.  He  owes  allegiance  to  the  two  departments,  so 
to  speak,  and  within  their  respective  spheres  must  pay  the  penalties 
which  each  exacts  for  disobedience  to  its  laws.1  In  return,  he  can 
demand  protection  from  each  within  its  own  jurisdiction. 

"The  government  of  the  United  States  is  one  of  delegated  powers 
alone.  Its  authority  is  defined  and  limited  by  the  Constitution.  All 
powers  not  granted  to  it  by  that  instrument  are  reserved  to  the  states 
or  the  people.  No  rights  can  be  acquired  under  the  Constitution  or 
laws  of  the  United  States,  except  such  as  the  government  of  the 
United  States  has  the  authority  to  grant  or  secure.  All  that  cannot 
be  so  granted  or  secured  are  left  under  the  protection  of  the  states."  J 

»  Accord:  See  eases  cited  in  Re  Loney,  134  U.  S.  .{72,  10  Sup.  Ct.  384,  33 
L.  Ed.  949  (1890). 

s  See,  also,  Martin  v.  Hunter's  Lessee.  1  Wheat  304,  324-326,  I  L.  Ed.  97 
(1816);  Cohens  v,  Virginia,  6 Wheat.  264,  US,  in.  5  L.  Ed.  i>.ri7  (1821);  Opin- 
ion of  Justices,  14  Gray  (Muss.)  014,  616,  617 

"There  are  within  the  territorial  limits  of  each  state  two  governments, 
restricted  in  their  spheres  of  action,  but  Independent  of  each  other  and  su- 
preme within  their  respective  spheres.  Each  has  its  separate  departments; 
each  has  its  distinct  laws,  and  each  has  Its  own  tribunals  for  their  ei 
uient.  Neither  government  can  Intrude  within  the  jurisdiction,  or  authorize 
any  Intra  rein  by  its  judicial  officers  with  the  action  of  the  other. 

The  two  gi  vernments  in  each  state  stand   I  ttve  sphere* 

Hon  in  the  same  independent  relation  to  t   in  one  particular, 

that  they  would  if  their  authority  eml  >  tori   -.     That  partic- 

ular con-::  ts  ia  the  supra  Itates  when 

any  conflict  arises  between  the  two  governments.  The  Constitution  b 
laws  passed  in  pursuance  of  It,  are  declared  by  the  Constitution  itaeli 
the  supreme  law  uf  the  land,  and  the  judges  ol  everj  State  are  bound  there- 
by, 'anything  bo  the  Con  til  aws  of  any  state  to  the  conn.' 
withstanding.'  whenever,  therefore,  !i  -  between  the 
meiiis  of  tin-  two  sovereignties,  or  In  the  enforcement  of  their  asserted  au- 
thorities, those  of  the  national  government  must   Q  ae.v    umll    the 


918  THE  FEDERAL  GOVERNMENT  (Part  3 

STURGES  v.  CROWN1NSHIELD  (1819)  4  Wheat.  122,  192,  193, 
195,  196,  4  L.  Ed.  529,  Mr.  Chief  Justice  Marshall  (sustaining  the 
power  of  the  states  to  pass  bankruptcy  laws  in  the  absence  of  con- 
flicting congressional  legislation): 

"It  must  be  recollected  that,  previous  to  the  formation  of  the  new 
Constitution,  we  were  divided  into  independent  states,  united  for  some 
purposes,  but,  in  most  respects,  sovereign.  These  states  could  exer- 
cise almost  every  legislative  power,  and,  among  others,  that  of  pass- 
ing bankrupt  laws.  When  the  American  people  created  a  national 
legislature,  with  certain  enumerated  powers,  it  was  neither  neces- 
sary nor  proper  to  define  the  powers  retained  by  the  states.  These 
powers  proceed,  not  from  the  people  of  America,  but  from  the  people 
of  the  several  states;  and  remain,  after  the  adoption  of  the  Consti- 
tution, what  they  were  before,  except  so  far  as  they  may  be  abridged 
by  that  instrument.  In  some  instances,  as  in  making  treaties,  we  find 
an  express  prohibition ;  and  this  shows  the  sense  of  the  convention  to 
have  been,  that  the  mere  grant  of  a  power  to  Congress  did  not  imply 
a  prohibition  on  the  states  to  exercise  the  same  power.  But  it  has 
never  been  supposed,  that  this  concurrent  power  of  legislation  ex- 
tended to  every  possible  case  in  which  its  exercise  by  the  states  has 
not  been  expressly  prohibited.  The  confusion  resulting  from  such  a 
practice  would  be  endless.  The  principle  laid  down  by  the  counsel 
for  the  plaintiff,  in  this  respect,  is  undoubtedly  correct.  Whenever 
the  terms  in  which  a  power  is  granted  to  Congress,  or  the  nature  of 
the  power,  require  that  it  should  be  exercised  exclusively  by  Con- 
gress the  subject  is  as  completely  taken  from  the  state  legislatures,  as 
if  they  had  been  expressly  forbidden  to  act  on  it. 

"Is  the  power  to  establish  uniform  laws  on  the  subject  of  bankrupt- 
cies, throughout  the  United  States,  of  this  description?  *  *  *  It 
is  obvious  that  much  inconvenience  would  result  from  that  construc- 
tion of  the  Constitution,  which  should  deny  to  the  state  legislatures 
the  power  of  acting  on  this  subject,  in  consequence  of  the  grant  of 
Congress.  It  may  be  thought  more  convenient  that  much  of  it  should 
be  regulated  by  state  legislation,  and  Congress  may  purposely  omit  to 
provide  for  many  cases  to  which  their  power  extends.  It  does  not  ap- 
pear to  be  a  violent  construction  of  the  Constitution,  and  is  certainly 
a  convenient  one,  to  consider  the  power  of  the  states  as  existing  over 
such  cases  as  the  laws  of  the  Union  may  not  reach.  But  be  this  as 
it  may,  the  power  granted  to  Congress  may  be  exercised  or  declined  as 
the  wisdom  of  that  body  shall  decide.    If,  in  the  opinion  of  Congress, 

validity  of  the  different  enactments  and  authorities  can  be  finally  determined 
by  the  tribunals  of  the  United  States.  This  temporary  supremacy  until  ju- 
dicial decision  by  the  national  tribunals,  and  the  ultimate  determination  of 
the  conflict  by  such  decision,  are  essential  to  the  preservation  of  order  and 
peace,  and  the  avoidance  of  forcible  collision  between  the  two  governments." 
—Field,  J.,  in  Tarble's  Case,  13  Wall,  397,  406,  407,  20  L.  Ed.  597  (1872). 


Ch.  U)  GESKKAL  SCOPE  OF  FEDERAL    POWERS  919 

uniform  laws  concerning  bankruptcies  ought  not  to  be  established,  it 
does  not  follow  that  partial  laws  may  not  exist,  or  that  state  legisla- 
tion on  the  subject  must  cease.  It  is  not  the  mere  existence  of  the 
power,  but  its  exercise,  which  is  incompatible  with  the  exercise  of  the 
same  power  by  the  states.  It  is  not  the  right  to  establish  these  uni- 
form laws,  but  their  actual  establishment,  which  is  inconsistent  with 
the  partial  acts  of  the  states."  l 


GIBBONS  v.  OGDEN  (1824)  9  Wheat.  1,  187-189,  6  L.  Ed.  23. 
Mr.  Chief  Justice  Marshall: 

"As  preliminary  to  the  very  able  discussions  of  the  Constitution 
which  we  have  heard  from  the  bar,  and  as  having  some  influence  on 
its  construction,  reference  has  been  made  to  the  political  situation  of 
these  states,  anterior  to  its  formation.  It  has  been  said  that  they  were 
sovereign,  were  completely  independent,  and  were  connected  with  each 
other  only  by  a  league.  This  is  true.  But,  when  tliese  allied  sov- 
ereigns converted  their  league  into  a  government,  when  they  converted 
their  congress  of  ambassadors,  deputed  to  deliberate  on  their  common 
concerns,  and  to  recommend  measures  of  general  utility,  into  a  legis- 
lature, empowered  to  enact  laws  on  the  most  interesting  subjects,  the 
whole  character  in  which  the  states  appear  underwent  a  change,  the 

»  "The  Constitution  containing  a  grant  of  powers  In  many  Instances  similar 
to  those  already  existing  in  the  state  governments,  and  some  of  these  being 
of  vital  Importance  also  to  state  authority  and  state  legislation,  It  is  not  to 
be  admitted  that  a  mere  grant  of  such  powers  In  affirmative  terms  to  Con- 
gress, dues,  per  se,  transfer  an  exclusive  sovereignty  on  such  subjects  to  the 
latter,  On  the  contrary,  a  reasonable  Interpretation  of  that  instrument  nec- 
essarily leads  to  the  conclusion,  that  the  powers  so  granted  are  never  ex 
elusive  of  similar  powers  existing  tn  the  states,  unless  where  the  Constitution 
lias  expressly  in  terms  given  an  exclusive  power  to  Congress,  or  the  exercise 
of  a  like  power  Is  prohibited  to  the  states,  or  there  Is  a  direct  repugnancy  or 
tn< iiatibility  In  the  exercise  of  it  by  tbe  states.  •  •  •  [n  cases  of  concur- 
rent authority,  where  the  laws  of  the  states  and  of  the  Union  are  in  direct 
and  manifest  collision  on  the  same  subject,  those  of  the  Union,  being  'the 
supreme  law  of  the  land.'  are  of  paramount  authority,  and  the  state  laws,  so 

far.  1  so  far  only,  as  such  Incompatibility  exists,  must  necessarily  yield."— 

Story,  J.,  concurring.  In  Houston  r.  Moore,  5  Wheat.  1,  48-50,  5  Lv  Ed.  19 
(1820). 

"The  states  may  exercise  concurrent  or  Independent  power  In  all  cases  but 
three:  1.  Where  the  power  Is  lodged  exclusively  in  the  Federal  (".institution. 
■2.  Where  it  Is  given  to  the  United  States  and  prohibited  to  the  states.  ",. 
Where,  from  the  nature  and  subjects  of  the  power,  It  must  necessarily  be 
exercised  bv  tbe  national  government  exclusively." — Swayne,  J.,  tn  Gllman  v. 
Philadelphia,  3  Wall.  718,  780,  18  L.  Ed.  96  (1808). 

An  Illustration  of  class  3,  above,  is  the  power  to  establish  a  uniform  rule  of 
naturalization  (article  I,  §  8,  par.  4).  which  has  been  held  to  be  exclusively 
to*  Congress,  owing  to  the  effect  of  article  iv.  |  2,  par.  1.  Chirac  r.  Chirac, 
2  Wheat  259,  4  L.  Ed.  284  (1817);  Scott  v.  Sandford,  ii>  Bow.  898,  417.  10  L 
Ed.  G91  (1857).  See  the  discussion  of  concurrent  and  exclusive  powers  tn  the 
argument  of  Oakley,  of  counsel  In  Gibbons  v.  Ogden,  9. Wheat,  l.  S3  it.  8  L 
Ed.  23  (1824);  and  in  Prlgg  v.  Pennsylvania,  16  Pet.  539,  10  Lv.  Ed.  101S0 
(1842). 


'.120  IHE-FEDEB&L  GOVERNMENT  (Part .°» 

extent  of  which  must  be  determined  by  a  fair  consideration  of  the 
instrument  by  which  that  change  was  effected.1 

"This  instrument  contains  an  enumeration  of  powers  expressly 
granted  by  the  people  to  their  government.  It  has  been  said  that  these 
powers  ought  to  be  construed  strictly.  But  why  ought  they  to  be  so 
construed?  Is  there  one  sentence  in  the  Constitution  which  gives  coun- 
tenance to  this  rule  ?  In  the  last  of  the  enumerated  powers,  that  which 
grants,  expressly,  the  means  for  carrying  all  others  into  execution, 
Congress  is  authorized  'to  make  all  laws  which  shall  be  necessary  and 
proper'  for  the  purpose.  But  this  limitation  on  the  means  which  may 
be  used,  is  not  extended  to  the  powers  which  are  conferred;  nor  is 
there  one  sentence  in  the  Constitution,  which  has  been  pointed  out  by 
the  gentlemen  of  the  bar,  or  which  we  have  been  able  to  discern,  that 
prescribes  this  rule.  We  do  not,  therefore,  think  ourselves  justified  in 
adopting  it.  What  do  gentlemen  mean  by  a  strict  construction?  If 
they  contend  only  against  that  enlarged  construction  which  would 
extend  words  beyond  their  natural  and  obvious  import,  we  might 
question  the  application  of  the  term,  but  should  not  controvert  the 
principle.  If  they  contend  for  that  narrow  construction  which,  in  sup- 
port of  some  theory  not  to  be  found  in  the  Constitution,  would  deny 
to  the  government  those  powers  which  the  words  of  the  grant,  as 
usually  understood,  import,  and  which  are  consistent  with  the  general 
views  and  objects  of  the  instrument;    for  that  narrow  construction, 

i  As  to  the  legal  status  of  the  colonies  (later  the  states)  and  of  the  Conti- 
nental Congress  between  1774  and  July  4,  1776,  and  between  the  latter  date 
and  the  completion  of  the  Confederation  In  1781,  see  Ware  v.  Hylton,  3  Dall. 
!'.»;).  'Ji;ii-U25.  231-233,  1  L.  Ed.  508  (1790).  As  to  right  of  secession,  see  Texas 
v.  White,  7  Wall.  700,  724-72G,  10  L.  Ed.  227  (1869) ;  and  as  to  the  legal  effect 
of  attempted  secession,  see  White  v.  Hart,  13  Wall.  646,  20  L.  Ed.  685  (1S72) ; 
Gunn  v.  Barry,  15  Wall.  610,  623,  21  L.  Ed.  212  (1873);  Keith  v.  Clark,  97  U. 
S.  454,  24  L.  Ed.  1071  (1878). 

"The  people  of  the  United  States  constitute  one  nation,  under  one  govern- 
ment. *  *  *  The  states  disunited  might  continue  to  exist.  Without  the 
states  in  union,  there  could  be  no  such  political  body  as  the  United  States. 
Hoth    the   states    and    the    United    States    existed    before    the    Constitution. 

*  *  *  The  federal  and  state  governments  are  in  fact  but  different  agents 
and  trustees  of  the  people,  constituted  with  different  powers  and  designated 
tor  different  purposes." — Chase,  C.  J.,  In  Lane  County  v.  Oregon,  7  Wall.  71, 
76,  19  L.   Ed.  101   (1869). 

"The  Union  of  the  states  never  was  a  purely  artificial  and  arbitrary  rela- 
tion. It  began  among  the  colonies,  and  grew  out  of  common  origin,  mutual 
sympathies,  kindred  principles,  similar  interests  and   geographical  relations. 

*  *  *  The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
Union,  composed  of  indestructible  states.  When,  therefore,  Texas  became 
one  of  the  United  States,  she  entered  into  an  indissoluble  relation.  All  the 
obligations  of  perpetual  union  and  all  the  guarantees  of  republican  govern- 
ment in  the  Union,  attached  at  once  to  the  state.  The  act  which  consum- 
mated her  admission  into  the  Union  was  something  more  than  a  compact  : 
it  was  the  incorporation  of  a  new  member  into  the  political  body.  And  it 
was  final.  *  *  *  There  was  no  place  for  reconsideration,  or  revocation,  ex- 
cept through  revolution,  or  through  consent  of  the  states.  *  *  *  Texas 
continued  to  be  a  state,  and  a  state  of  the  Union,  notwithstanding  the  trans- 
actions [secession  and  civil  war]  to  which  we  have  referred." — Chase,  C.  J., 
in  Texas  v.  White,  7  Wall,  at  pages  724,  725,  19  L.  Ed.  227  (1S69). 


Ch.  1-1)  GENERAL  SCOPE  OF  Ki;i>i:kal   POWERS  021 

which  would  cripple  the  government,  and  render  it  unequal  to  the  ob- 
jects for  which  it  is  declared  to  be  instituted,  and  to  which  the  powers 
given,  as  fairly  understood,  render  it  competent ;  then  we  cannot  per- 
ceive the  propriety  of  this  strict  construction,  nor  adopt  it  as  the  rule 
by  which  the  Constitution  is  to  be  expounded.  As  men  whose  inten- 
tions require  no  concealment,  generally  employ  the  words  whi  ' 
directly  and  aptly  express  the  ideas  they  intend  to  convey,  the  enlight- 
ened patriots  who  framed  our  Constitution,  and  the  people  who 
ed  it,  must  be  understood  to  have  employed  words  in  their  natural 
sense,  and  to  have  intended  what  they  have  said.  If,  from  the  im- 
perfection of  human  language,  there  should  be  serious  doubts  respect- 
ing the  extent  of  any  given  power,  it  is  a  well-settled  rule  that  the 
objects  for  which  it  was  given,  especially  when  those  objects  are  ex- 
pressed in  the  instrument  itself,  should  have  great  influence  in  the  con- 
struction. We  know  of  no  reason  for  excluding  this  rule  from  the 
present  case.  The  grant  does  not  convey  power  which  might  be  : 
cial  to  the  grantor,  if  retained  by  himself,  or  which  can  enure  solely  to 
the  benefit  of  the  grantee ;  but  is  an  investment  of  power  for  the  general 
advantage,  in  the  hands  of  a'gents  selected  for  that  purpose;  which 
power  can  never  be  exercised  by  the  people  themselves,  but  must  be 
placed  in  the  hands  of  agents,  or  lie  dormant.  We  know  of  no  rule 
for  construing  the  extent  of  such  powers,  other  than  is  given  by  the 
language  of  the  instrument  which  confers  them,  taken  in  connection 
with  the  purposes  for  which  they  were  conferred." 


McCUIXOCII  v.  MARYLAND. 
(Snpreme  Court  of  the  United  States,  lt>19.     4  Wheat  316,  4  L.   Ed.  579.) 

[Error  to  the  Court  of  Appeals  of  Maryland.  In  1816  Congress 
incorporated  the  Bank  of  the  United  States,  and  one  of  its  branches 
was  in  1817  established  at  Baltimore.  In  ISIS  a  Maryland  statute  sub- 
jected all  banks  in  the  state  not  chartered  by  the  legislature  to  a  stamp 
tax  upon  their  note  issues.  McCulloch,  cashier  of  the  said  branch 
bank,  was  held  by  the  state  courts  liable  to  penalties  for  violating  this 
act,  and  this  writ  was  taken.] 

Mr.  Chief  Justice  Marshall.  *  *  *  The  first  question  made 
in  the  cause  is,  has  Congress  power  to  incorporate  a  bank? 
In  discussing  this  question,  the  counsel  for  the  state  of  Maryland 
have  deemed  it  of  some  importance,  in  the  construction  of  the  Con- 
stitution, to  consider  that  instrument  not  as  emanating  from  the  peo- 
ple, but  as  the  act  of  sovereign  and  independent  states.  The  powers 
of  the  general  government,  it  has  been  said,  are  delegated  by  the 
states,  who  alone  are  truly  sovereign ;  and  must  be  exercised  in  sub- 
ordination to  the  states,  who  alone  possess  supreme  dominion. 

It  would  be  difficult  to  sustain  this  proposition.     The  convention 


922  THK  FEDERAL  GOVERNMENT  (Part  3 

which  framed  the  Constitution  was,  indeed,  elected  by  the  state  leg- 
islatures. But  the  instrument,  when  it  came  from  their  hands,  was 
a  mere  proposal,  without  obligation,  or  pretensions  to  it.  It  was  re- 
ported to  the  then  existing  Congress  of  the  United  States,  with  a  re- 
quest that  it  might  "be  submitted  to  a  convention  of  delegates,  chosen 
in  each  state,  by  the  people  thereof,  under  the  recommendation  of  its 
legislature,  for  their  assent  and  ratification."  This  mode  of  proceed- 
ing was  adopted;  and  by  the  convention,  by  Congress,  and  by  the 
state  legislatures,  the  instrument  was  submitted  to  the  people.  They 
acted  upon  it,  in  the  only  manner  in  which  they  can  act  safely,  ef- 
fectively, and  wisely,  on  such  a  subject,  by  assembling  in  conven- 
tion. It  is  true,  they  assembled  in  their  several  states;  and  where 
else  should  they  have  assembled?  No  political  dreamer  was  ever 
wild  enough  to  think  of  breaking  down  the  lines  which  separate  the 
states,  and  of  compounding  the  American  people  into  one  common 
mass.  Of  consequence,  when  they  act,  they  act  in  their  states.  But 
the  measures  they  adopt  do  not,  on  that  account,  cease  to  be  the 
measures  of  the  people  themselves,  or  become  the  measures  of  the 
state  governments. 

From  these  conventions  the  Constitution  derives  its  whole  author- 
ity. The  government  proceeds  directly  from  the  people;  is  "ordained 
and  established"  in  the  name  of  the  people;  and  is  declared  to  be 
ordained,  "in  order  to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquility,  and  secure  the  blessings  of  liberty  to 
themselves  and  to  their  posterity."  The  assent  of  the  states,  in  their 
sovereign  capacity,  is  implied  in  calling  a  convention,  and  thus  sub- 
mitting that  instrument  to  the  people.  But  the  people  were  at  perfect 
liberty  to  accept  or  reject  it ;  and  their  act  was  final.  It  required  not 
the  affirmance,  and  could  not  be  negatived,  by  the  state  governments. 
The  Constitution,  when  thus  adopted,  was  of  complete  obligation, 
and  bound  the  state  sovereignties.1 

It  has  been  said,  that  the  people  had  already  surrendered  all  their 
powers  to  the  state  sovereignties,  and  had  nothing  more  to  give.  But, 
surely,  the  question  whether  they  may  resume  and  modify  the  powers 
granted  to  government,  does  not  remain  to  be  settled  in  this  country. 
Much  more  might  the  legitimacy  of  the  general  government  be 
doubted,  had  it  been  created  by  the  states.  The  powers  delegated  to 
the  state  sovereignties  were  to  be  exercised  by  themselves,  not  by  a 
distinct  and  independent  sovereignty,  created  by  themselves.  To  the 
formation  of  a  league,  such  as  was  the  Confederation,  the  state  sov- 
ereignties were  certainly  competent.  But  when,  "in  order  to  form  a 
more  perfect  union,"  it  was  deemed  necessary  to  change  this  alliance 
into  an  effective  government,  possessing  great  and  sovereign  powers, 
and  acting  directly  on  the  people,  the  necessity  of  referring  it  to  the 

i  Compare  Webster's  speech  In  reply  to  Hayne,  in  the  Senate,  January  26, 
11,  1830. 


CI).  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  028 

people,  and  of  deriving  its  powers  directly  from  them,  was  felt  and 
acknowledged  by  all. 

The  government  of  the  Union,  then  (whatever  may  be  the  influence 

of  this  fact  on  the  case),  is  emphatically  and  truly  a  government  of 

the  people.     In    form   and   in  substance   it   emanates   from   them,   its 

are  granted  by  them,  and  are  to  be  exercised  directly  on  them, 

and  for  their  benefit. 

This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  The  principle,  that  it  can  exercise  only  the  powers  granted 
to  it,  would  seem  too  apparent  to  have  required  to  be  enforced  by  all 
those  arguments  which  its  enlightened  friends,  while  it  was  depending 
before  the  people,  found  it  necessary  to  urge.  That  principle  is  now 
universally  admitted.  But  the  question  respecting  the  extent  of  the 
powers  actually  granted,  is  perpetually  arising,  and  will  probably  con- 
tinue to  arise,  as  long  as  our  system  >hall  exist.     *     *     * 

If  any  one  proposition  could  command  the  universal  assent  of  man- 
kind, we  might  expect  it  would  be  this:  that  the  government  of  the 
Union,  though  limited  in  its  powers,  is  supreme  within  its  sphere  of 
action.  This  would  seem  to  result  necessarily  from  its  nature.  It 
is  the  government  of  all ;  its  powers  are  delegated  by  all ;  it  repre- 
sents all,  and  acts  for  all:  Though  any  one  state  may  be  willing  to 
control  its  operations,  no  state  is  willing  to  allow  others  to  control 
them.  The  nation,  on  those  subjects  on  which  it  can  act,  must  nec- 
essarily bind  its  component  parts.  But  this  question  is  not  left  to 
mere  reason :  the  people  have,  in  express  terms,  decided  it,  by  saying, 
"this  Constitution,  and  the  laws  of  the  United  States,  which  shall  be 
made  in  pursuance  thereof,"  "shall  be  the  supreme  law  of  the  land," 
and  by  requiring  that  the  members  of  the  state  legislatures,  and  the 
officers  of  the  executive  and  judicial  departments  of  the  states,  shall 
take  the  oath  of  fidelity  to  it.     *     *     * 

Among  the  enumerated  powers,  we  do  not  find  that  of  establishing 
a  bank  or  creating  a  corporation.  But  there  is  no  phrase  in  the  in- 
strument which,  like  the  Articles  of  Confederation,2  excludes  in- 
cidental or  implied  powers;  and  which  requires  that  everything 
granted  shall  be  expressly  and  minutely  described.  Even  the  tenth 
amendment,  which  was  framed  for  the  purpose  of  quieting  the  ex- 
cessive jealousies  which  had  been  excited,  omits  the  word  "expressly," 
and  declares  only  that  the  powers  "not  delegated  to  the  United  States, 
nor  prohibited  to  the  states,  are  reserved  to  the  states  or  to  the  peo- 
ple";  thus  leaving  the  question,  whether  the  particular  power  which 
may  become  the  subject  of  contest,  has  been  delegated  to  the  one  gov- 
ernment, or  prohibited  to  the  other,  to  depend  on  a  fair  construction 
of  the  whole  instrument  The  men  who  drew  and  adopted  this  amend- 
ment, had  ex|  the  embarrassments  resulting  from  the  inser- 

2  Article  II:  "Each  state  retains  •  •  •  every  power  •  •  •  not 
•    *    •    expressly  delegated." 


924  THE  FEDERAL   GOVERNMENT  (Part  ?> 

tion  of  this  word  in  the  Articles  of  Confederation,  and  probably  omit- 
ted it  to  avoid  those  embarrassments.  A  constitution,  to  contain  an 
accurate  detail  of  all  the  subdivisions  of  which  its  great  powers  will 
admit,  and  of  all  the  means  by  which  they  may  be  carried  into  execu- 
tion, would  partake  of  the  prolixity  of  a  legal  code,  and  could  scarcely 
be  embraced  by  the  human  mind.  It  would  probably  never  be  under- 
stood by  the  public.  Its  nature,  therefore,  requires,  that  only  its 
great  outlines  should  be  marked,  its  important  objects  designated,  and 
the  minor  ingredients  which  compose  those  objects  be  deduced  from 
the  nature  of  the  objects  themselves.  That  this  idea  was  entertained 
by  the  framers  of  the  American  Constitution,  is  not  only  to  be  infer- 
red from  the  nature  of  the  instrument,  but  from  the  language.  Why 
else  were  some  of  the  limitations,  found  in  the  ninth  section  of  the 
first  article,  introduced?  It  is  also,  in  some  degree,  warranted  by 
their  having  omitted  to  use  any  restrictive  term  which  might  prevent 
its  receiving  a  fair  and  just  interpretation.  In  considering  this  ques- 
tion, then,  we  must  never  forget,  that  it  is  a  constitution  we  are  ex- 
pounding.3 

Although,  among  the  enumerated  powers  of  government,  we  do  not 
find  the  word  "bank,"  or  "incorporation,"  we  find  the  great  powers 
to  lay  and  collect  taxes ;  to  borrow  money ;  to  regulate  commerce ; 
to  declare  and  conduct  a  war;  and  to  raise  and  support  armies  and 
navies.  The  sword  and  the  purse,  all  the  external  relations,  and  no 
inconsiderable  portion  of  the  industry  of  the  nation,  are  intrusted  to 
its  government.  It  can  never  be  pretended  that  these  vast  powers 
draw  after  them  others  of  inferior  importance,  merely  because  they 
are  inferior.  Such  an  idea  can  never  be  advanced.  But  it  may,  with 
great  reason,  be  contended,  that  a  government,  intrusted  with  such 
ample  powers,  on  the  due  execution  of  which  the  happiness  and  pros- 
perity of  the  nation  so  vitally  depends,  must  also  be  intrusted  with 
ample  means  for  their  execution..  The  power  being  given,  it  is  the 
interest  of  the  nation  to  facilitate  its  execution.  It  can  never  be  their 
interest,  and  cannot  be  presumed  to  have  been  their  intention,  to  clog 
and  embarrass  its  execution  by  withholding  the  most  appropriate 
means.  Throughout  this  vast  republic,  from  the  St.  Croix  to  the  Gulf 
of  Mexico,  from  the  Atlantic  to  the  Pacific,  revenue  is  to  be  collected 
and  expended,  armies  are  to  be  marched  and  supported.  The  ex- 
igencies of  the  nation  may  require,  that  the  treasure  raised  in  the 
North  should  be  transported  to  the  South,  that  raised  in  the  East  con- 
veyed to  the  West,  or  that  this  order  should  be  reversed.  Is  that 
construction  of  the  Constitution  to  be  preferred  which  would  render 
these  operations  difficult,  hazardous,  and  expensive?     Can  we  adopt 

» "A  Constitution,  establishing  a  frame  of  government,  declaring  funda- 
mental principles,  and  creating  a  national  sovereignty,  and  intended  to  en- 
dure for  ages  and  to  be  adapted  to  the  various  crises  of  human  affairs,  is 
not  to  be  interpreted  with  the  strictness  of  a  private  contract." — Gray,  J.,  in 
Juilliard  v.  Greenman,  110  TJ.  S.  421.  4:;0.  4  Sun    <'t.  122.  2S  L.  Ed.  204  (1SS4). 


Cll.  1  I)  GENERAL  SCOPE  OF   FEDERAL    BOWBBfl  'J-'t 

that  construction  (unless  the  words  imperiously  require  it)  which 
would  impute  to  the  framcrs  of  that  instrument,  when  granting  these 
powers  for  the  public  good,  the  intention  of  impeding  their  exercise  by 
withholding  a  choice  of  means?  If,  indeed,  such  be  the  mandate  of 
the  Constitution,  we  have  only  to  obey;  but  that  instrument  does  not 
profess  to  enumerate  the  means  by  which  the  powers  it  confers  may 
be  executed;  nor  does  it  prohibit  the  creation  of  a  corporation,  if 
the  existence  of  such  a  being  be  essential  to  the  beneficial  exercise  of 
those  powers.  It  is,  then,  the  subject  of  fair  inquiry,  how  far  such 
means  may  be  employed.     *     *     * 

The  government  which  has  a  right  to  do  an  act,  and  has  imposed  on 
it  the  duty  of  performing  that  act,  must,  according  to  the  dictates  of 
reason,  be  allowed  to  select  the  means;  and  those  who  contend  that 
it  may  not  select  any  appropriate  means,  that  one  particular  mode  of 
effecting  the  object  is  excepted,  take  upon  themselves  the  burden  of  es- 
tablishing that  exception. 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sovereignty. 
This  is  admitted.  But  to  what  portion  of  sovereignty  does  it  apper- 
tain? Does  it  belong  to  one  more  than  to  another?  In  America,  the 
powers  of  sovereignty  are  divided  between  the  government  of  the 
Union,  and  those  of  the  states.  They  are  each  sovereign,  with  respect 
to  the  objects  committed  to  it,  and  neither  sovereign  with  respect  to 
the  objects  committed  to  the  other.  *  *  *  We  cannot  well  com- 
prehend the  process  of  reasoning  which  maintains,  that  a  power  ap- 
pertaining to  sovereignty  cannot  be  connected  with  that  vast  portion 
of  it  which  is  granted  to  the  general  government,  so  far  as  it  is  cal- 
culated to  subserve  the  legitimate  objects  of  that  government.  The 
power  of  creating  a. corporation,  though  appertaining  to  sovereignty, 
is  not,  like  the  power  of  making  war,  or  levying  taxes,  or  of  regulat- 
ing commerce,  a  great  substantive  and  independent  power,  which 
cannot  be  implied  as  incidental  to  other  powers,  o&  used  as  a  means 
of  executing  them.  It  is  never  the  end  for  which  other  powers  are 
exercised,  but  a  means  by  which  other  objects  are  accomplished.  No 
contributions  are  made  to  charity  for  the  sake  of  an  incorporation, 
but  a  corporation  is  created  to  administer  the  charity;  no  seminary 
of  learning  is  instituted  in  order  to  be  incorporated,  but  the  cu; 
character  is  conferred  to  subserve  the  purposes  of  education.  No 
city  was  ever  built  with  the  sole  object  of  being  incorporated,  but  is 
incorporated  as  affording  the  best  means  of  being  well  governed.  The 
power  of  creating  a  corporation  is  never  used  for  its  own  sake,  but 
for  the  purpose  of  effecting  something  else.  No  sufficient  reason  is. 
therefore,  perceived,  why  it  may  not  pass  as  incidental  to  those  pow- 
ers which  arc  expressly  given,  if  it  be  a  direct  mode  of  executing 
them. 

But  the  Constitution  of  the  United  States  has  not  left  the  right  of 
Congress  to  employ  the  necessary  means,  for  the  execution  of  the 
powers  conferred  on   the  government,  to  general   reasoning.     To   its 


f)2fi  THE   FEDERAL  GOVERNMENT  (Part  3 

enumeration  of  powers  is  added  that  of  making  "all  laws  which  shall 
be  necessary  and  proper,  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution,  in  the  gov- 
ernment of  the  United  States,  or  in  any  department  thereof." 

The  counsel  for  the  state  of  Maryland  have  urged  various  arguments, 
to  prove  that  this  clause,  though  in  terms  a  grant  of  power,  is  not 
so  in  effect;  but  is  really  restrictive  of  the  general  right,  which  might 
otherwise  be  implied,  of  selecting  means  for  executing  the  enumer- 
ated powers.  *  *  *  The  argument  on  which  most  reliance  is 
placed,  is  drawn  from  the  peculiar  language  of  this  clause.  Congress 
is  not  empowered  by  it  to  make  all  laws,  which  may  have  relation  to 
the  powers  conferred  on  the  government,  but  such  only  as  may  be 
"necessary  and  proper"  for  carrying  them  into  execution.  The  word 
"necessary"  is  considered  as  controlling  the  whole  sentence,  and  as 
limiting  the  right  to  pass  laws  for  the  execution  of  the  granted  pow- 
ers, to  such  as  are  indispensable,  and  without  which  the  power  would 
be  nugatory.  That  it  excludes  the  choice  of  means,  and  leaves  to 
Congress,  in  each  case,  that  only  which  is  most  direct  and  simple.4 

Is  it  true,  that  this  is  the  sense  in  which  the  word  "necessary"  is 
always  used?  Does  it  always  import  an  absolute  physical  necessity, 
so  strong,  that  one  thing,  to  which  another  may  be  termed  necessary, 
cannot  exist  without  that  other?  We  think  it  does  not.  If  reference 
be  had  to  its  use,  in  the  common  affairs  of  the  world,  or  in  approved 
authors,  we  find  that  it  frequently  imports  no  more  than  that  one  thing 
is  convenient,  or  useful,  or  essential  to  another.  To  employ  the  means 
necessary  to  an  end,  is  generally  understood  as  employing  any  means 
calculated  to  produce  the  end,  and  not  as  being  confined  to  those  single 
means,  without  which  the  end  would  be  entirely  unattainable.  Such  is 
the  character  of  human  language,  that  no  word  conveys  to  the  mind, 
in  all  situations,  one  single  definite  idea;  and  nothing  is  more  com- 
mon than  to  use  words  in  a  figurative  sense.  Almost  all  compositions 
contain  words,  which,  taken  in  their  rigorous  sense,  would  convey  a 
meaning  different  from  that  which  is  obviously  intended.  It  is  es- 
sential to  just  construction,  that  many  words  which  import  something 
excessive,  should  be  understood  in  a  more  mitigated  sense — in  that 
sense  which  common  usage  justifies.  The  word  "necessary"  is  of  this 
description.  It  has  not  a  fixed  character  peculiar  to  itself.  It  admits 
of  all  degrees  of  comparison ;  and  is  often  connected  with  other 
words,  which  increase  or  diminish  the  impression  the  mind  receives 
of  the  urgency  it  imports.  A  thing  may  be  necessary,  very  necessary, 
absolutely  or  indispensably  necessary.  To  no  mind  would  the  same 
idea  be  conveyed,  by  these  several  phrases.  This  comment  on  the 
word  is  well  illustrated,  by  the  passage  cited  at  the  bar,  from  the 
tenth  section  of  the  first  article  of  the  Constitution.    It  is,  we  think, 

*  Compare  the  ingenious  argument  to  this  effect  in  Commonwealth  v.  Mor- 
rison, 2  A.  K.  Marsh.  (Ky.)  75,  80-86  (1819). 


Ch.  14)  <;j:m:i:al  scon;  OF  FEDERAL  powlus  927 

impossible  to  compare  the  sentence  which  prohibits  a  state  from  lay- 
ing "imposts,  or  duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspection  laws,"  with  that 
which  authorizes  Congress  "to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution"  the  powers  of  the  general 
government,  without  feeling  a  conviction  that  the  convention  under- 
stood itself  to  change  materially  the  meaning  of  the  word  "necessary" 
by  prefixing  the  word  "absolutely."  This  word,  then,  like  others,  is 
used  in  various  senses;  and,  in  its  construction,  the  subject,  the  con- 
text, the  intention  of  the  person  using  them,  are  all  to  be  taken  into 
view. 

Let  this  be  done  in  the  case  under  consideration.  The  subject  is 
the  execution  of  those  great  powers  on  which  the  welfare  of  a  nation 
essentially  depends.  It  must  have  been  the  intention  of  those  who 
gave  these  powers,  to  insure,  as  far  as  human  prudence  could  insure, 
their  beneficial  execution.  This  could  not  be  done  by  confining  the 
choice  of  means  to  such  narrow  limits  as  not  to  leave  it  in  the  power 
of  Congress  to  adopt  any  which  might  be  appropriate,  and  which  were 
conducive  to  the  end.  This  provision  is  made  in  a  constitution  in- 
tended to  endure  for  ages  to  come,  and.  consequently,  to  be  adapted 
to  the  various  crises  of  human  affairs.  To  have  prescribed  the  means 
by  which  government  should,  in  all  future  time,  execute  its  powers, 
would  have  been  to  change,  entirely,  the  character  of  the  instrument, 
and  give  it  the  properties  of  a  legal  code.  It  would  have  been  an  un- 
wise attempt  to  provide,  by  immutable  rules,  for  exigencies  which,  if 
foreseen  at  all,  must  have  been  seen  dimly,  and  which  can  be  best 
provided  for  as  they  occur.  To  have  declared  that  the  best  means 
shall  not  be  used,  but  those  alone  without  which  the  power  given 
would  be  nugatory,  would  have  been  to  deprive  the  legislature  of  the 
capacity  to  avail  itself  of  experience,  to  exercise  its  reason,  and  to 
accommodate  its  legislation  to  circumstances.  If  we  apply  this  prin- 
ciple of  construction  to  any  of  the  powers  of  the  government,  we  shall 
find  it  so  pernicious  in  its  operation  that  we  shall  be  compelled  to  dis- 
card it.     *     *     * 

So,  with  respect  to  the  whole  penal  code  of  the  United  States. 
Whence  arises  the  power  to  punish  in  cases  not  prescribed  by  the  Con- 
stitution? All  admit  that  the  government  may,  legitimately,  punish 
any  violation  of  its  laws;  and  yet,  this  is  not  among  the  enumerated 
powers  of  Congress.  The  right  to  enforce  the  observance  of  law,  by 
punishing  its  infraction,  might  be  denied  with  the  more  plausibility. 
because  it  is  expressly  given  in  some  cases.  Congress  is  empowered 
"to  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States,"  and  "to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offences  against  the  law 
of  nations."  The  several  powers  of  Congress  may  exist,  in  a  very  im- 
perfect state  to  be  sure,  but  they  may  exist  and  be  carried  into  i 


028  THE   FEDERAL   GOVERNMENT  (Part  3 

tion,  although  no  punishment  should  be  inflicted  in  cases  where  the 
right  to  punish  is  not  expressly  given. 

Take,  for  example,  the  power  "to  establish  post-offices  and  post- 
roads."  This  power  is  executed  by  the  single  act  of  making  the  es- 
tablishment. But  from  this  has  been  inferred  the  power  and  duty  of 
carrying  the  mail  along  the  post-road,  from  one  post-office  to  another. 
And,  from  this  implied  power,  has  again  been  inferred  the  right  to 
punish  those  who  steal  letters  from  the  post-office,  or  rob  the  mail.  It 
may  be  said,  with  some  plausibility,  that  the  right  to  carry  the  mail, 
and  to  punish  those  who  rob  it,  is  not  indispensably  necessary  to  the 
establishment  of  a  post-office  and  post-road.  This  right  is,  indeed,  es- 
sential to  the  beneficial  exercise  of  the  power,  but  not  indispensably 
necessary  to  its  existence.  So,  of  the  punishment  of  the  crimes  of 
stealing  or  falsifying  a  record  or  process  of  a  court  of  the  United 
States,  or  of  perjury  in  such  court.  To  punish  these  offences  is  cer- 
tainly conducive  to  the  due  administration  of  justice.  But  courts  may 
exist,  and  may  decide  the  causes  brought  before  them,  though  such 
crimes  escape  punishment. 

The  baneful  influence  of  this  narrow  construction  on  all  the  opera- 
tions of  the  government,  and  the  absolute  impracticability  of  main- 
taining it  without  rendering  the  government  incompetent  to  its  great 
objects,  might  be  illustrated  by  numerous  examples  drawn  from  the 
Constitution,  and  from  our  laws.  The  good  sense  of  the  public  has 
pronounced,  without  hesitation,  that  the  power  of  punishment  apper- 
tains to  sovereignty,  and  may  be  exercised  whenever  the  sovereign  has 
a  right  to  act,  as  incidental  to  his  constitutional  powers.  It  is  a  means 
for  carrying  into  execution  all  sovereign  powers,  and  may  be  used, 
although  not  indispensably  necessary.  It  is  a  right  incidental  to  the 
power,  and  conducive  to  its  beneficial  exercise. 

If  this  limited  construction  of  the  word  "necessary"  must  be  aban- 
doned in  order  to  punish,  whence  is  derived  the  rule  which  would 
reinstate  it,  when  the  government  would  carry  its  powers  into  ex- 
ecution by  means  not  vindictive  in  their  nature?-  If  the  word  "neces- 
sary" means  "needful,"  "requisite,"  "essential,"  "conducive  to"'  in 
order  to  let  in  the  power  of  punishment  for  the  infraction  of  law,  why 
is  it  not  equally  comprehensive  when  required  to  authorize  the  use  of 
means  which  facilitate  the  execution  of  the  powers  of  government 
without  the  infliction  of  punishment? 

In  ascertaining  the  sense  in  which  the  word  "necessary"  is  used  in 
this  clause  of  the  Constitution,  we  may  derive  some  aid  from  that 
with  which  it  is  associated.  Congress  shall  have  power  "to  make  all 
laws  which  shall  be  necessary  and  proper  to  carry  into  execution"  the 
powers  of  the  government.  If  the  word  "necessary"  was  used  in  that 
strict  and  rigorous  sense  for  which  the  counsel  for  the  state  of  Mary- 
land contend,  it  would  be  an  extraordinary  departure  from  the  usual 
course  of  the  human  mind,  as  exhibited  in  composition,  to  add  a  word, 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  !)-"•' 

the  only  possible  effect  of  which  is  to  qualify  that  strict  and  rigorou? 
meaning;  to  present  to  the  mind  the  idea  of  some  choice  of  means  of 
legislation  not  straitened  and  compressed  within  the  narrow  limits  for 
which  gentlemen  contend. 

But  the  argument  which  most  conclusively  demonstrates  the  erroi 
of  the  construction  contended  for  by  the  counsel  for  the  state  of  Mary- 
land, is  founded  on  the  intention  of  .the  convention,  as  manifested  in 
the  whole  clause:  *  *  *  1.  The  clause  is  placed  among  the  pow- 
ers of  Congress,  not  among  the  limitations  on  those  powers.  2.  Its 
terms  purport  to  enlarge,  not  to  diminish  the  powers  vested  in  the 
government.  It  purports  to  be  an  additional  power,  not  a  restriction 
on  those  already  granted.  No  reason  has  been  or  can  be  assigned, 
for  thus  concealing  an  intention  to  narrow  the  discretion  of  the  na- 
tional legislature,  under  words  which  purport  to  enlarge  it.     *     * 

The  result  of  the  most  careful  and  attentive  consideration  bestowed 
upon  this  clause  is,  that  if  it  does  not  enlarge,  it  cannot  be  construed 
to  restrain  the  powers  of  Congress,  or  to  impair  the  right  of  the  leg- 
islature to  exercise  its  best  judgment  in  the  selection  of  meast 
carry  into  execution  the  constitutional  powers  of  the  government. 
If  no  other  motive  for  its  insertion  can  be  suggested,  a  sufficient  one 
is  found  in  the  desire  to  remove  all  doubts  respecting  the  right  t<> 
legislate  on  that  vast  mass  of  incidental  powers  which  must  be  in- 
volved in  the  Constitution,  if  that  instrument  be  not  a  splendid  bauble. 

We  admit,  as  all  must  admit,  that  the  powers  of  the  government 
are  limited,  and  that  its  limits  are  not  to  be  transcended.  But  we 
think  the  sound  construction  of  the  Constitution  must  allow  to  the 
national  legislature  that  discretion,  with  respect  to  the  means  by  which 
the  powers  it  confers  are  to  be  carried  into  execution,  which  will  en- 
able that  body  to  perform  the  high  duties  assigned  to  it,  in  the  man- 
ner most  beneficial  to  the  people.  Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Constitution,  and  all  means  which  are  appro- 
priate, which  are  plainly  adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Constitution,  are  constitu- 
tional. 

That  a  corporation  must  be  considered  as  a  means  not  less  usual,  not 
of  higher  dignity,  not  more  requiring  a  particular  specification  than 
other  means,  has  been  sufficiently  proved.     *     *     *     If  a  corp 
may  be   employed   indiscriminately    with   other   means    to  carry    into 
execution  the  powers  of  the  government,  no  particular  reason  can  be 
:d  for  excluding  the  use  of  a  bank,  if  required  for  its  fiscal  op- 
erations.    To  use  one,  must  be  within  the  discretion  of  Con": 
it  be  an  appropriate  mode  of  executing  the  powers  of  government. 
That  it  is  a  convenient,  a  useful,  and  essential  instrument  in  the 
ecution  of  its  fiscal  operations,  is  not  now  a  subject  of  controversy, 
*     *     *     But   were    its   necessity    less    apparent,   none   can    deny    its 
being  an  appropriate  measure;   and  if  it  is,  the  degree  of  its  nee 

Hai  :   CONST.L. — 59 


930  THE   FEDERAL   GOVERNMENT  (Part  3 

as  has  been  very  justly  observed,  is  to  be  discussed  in  another 
place.     *     *     * 

After  this  declaration,  it  can  scarcely  be  necessary  to  say,  that  the 
existence  of  state  banks  can  have  no  possible  influence  on  the  ques- 
tion. No  trace  is  to  be  found  in  the  Constitution  of  an  intention  to 
create  a  dependence  of  the  government  of  the  Union  on  those  of  the 
states,  for  the  execution  of  the  great  powers  assigned  to  it.  *  *  * 
The  choice  of  means  implies  a  right  to  choose  a  national  bank  in 
preference  to  state  banks,  and  Congress  alone  can  make  the  election. 

After  the  most  deliberate  consideration,  it  is  the  unanimous  and  de- 
cided opinion  of  this  court,  that  the  act  to  incorporate  the  Bank  of 
the  United  States  is  a  law  made  in  pursuance  of  the  Constitution,  and 
is  a  part  of  the  supreme  law  of  the  land.     *     *     * 

[The  law  of  Maryland  was  then  held  void.  This  part  of  the  case 
is  printed  post,  p.  1279.] 

Judgment  reversed.0 


LEGAL  TENDER  CASES  (1871)  12  Wall.  457,  532-544,  20  L. 
Ed.  287,  Mr.  Justice  Strong  (upholding  the  issue  of  federal  legal  ten- 
der paper  money  during  the  Civil  War) : 

"The  powers  conferred  upon  Congress  must  be  regarded  as  related 
to  each  other,  and  all  means  for  a  common  end.  Each  is  but  part  of 
a  system,  a  constituent  of  one  whole.  No  single  power  is  the  ultimate 
end  for  which  the  Constitution  was  adopted.  It  may,  in  a  very  prop- 
er sense,  be  treated  as  a  means  for  the  accomplishment  of  a  subor- 
dinate object,  but  that  object  is  itself  a  means  designed  for  an  ulterior 
purpose.  Thus  the  power  to  levy  and  collect  taxes,  to  coin  money  and 
regulate  its  value,  to  raise  and  support  armies,  or  to  provide  for  and 
maintain  a  navy,  are  instruments  for  the  paramount  object,  which 
was  to  establish  a  government,  sovereign  within  its  sphere,  with  capa- 
bility of  self-preservation,  thereby  forming  a  union  more  perfect  than 
that  which  existed  under  the  old  Confederacy. 

"The  same  may  be  asserted  also  of  all  the  non-enumerated  powers 
included  in  the  authority  expressly  given  'to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the  specified  pow- 
ers vested  in  Congress,  and  all  other  powers  vested  by  the  Constitu- 
tion in  the  government  of  the  United  States,  or  in  any  department  or 
officer  thereof.'     It  is  impossible  to  know  what  those  non-enumerated 

<s  During  the  proceedings  of  the  Philadelphia  Convention  of  1787  various 
proposals  to  give  Congress  expressly  some  power  to  charter  corporations  were 
disregarded  or  negatived.  See  5  Ell.  Deb.  440,  462,  543,  544  (published  1S45) ; 
and  1  Ell.  Deb.  247,  256,  310  (first  published  1S30).  See,  also,  the  comment  of 
Bradley,  J.,  in  Legal  Tender  Cases,  12  Wall.  457,  459,  460,  20  L.  Ed.  287  (1871). 

The  conducting  of  all  usual  banking  operations  is  of  course  incidental  to 
the  exercise  of  the  powers  for  which  a  bank  may  be  chartered.  Fleckner  v. 
U.  S.  Bank,  8  Wheat  338,  5  L.  Ed.  631  (1823) ;  Osborn  v.  Bank,  9  Wheat  738, 
760-765,  6  L.  Ed.  204  (1824). 


Ch.  14)  GENERAL   SCOPE  OF   FEDERAL    POWEitS  981 

powers  are,  and  what  is  their  nature  and  extent,  without  considering 
the  purposes  they  were  intended  to  subserve.  Those  purposes,  it  must 
be  noted,  reach  beyond  the  mere  execution  of  all  powers  definitely  in- 
trusted to  Congress  and  mentioned  in  detail.  They  embrace  the  exe- 
cution of  all  other  powers  vested  by  the  Constitution  in  the  govern- 
ment of  the  United  States,  or  in  any  department  or  officer  thereof. 
It  certainly  was  intended  to  confer  upon  the  government  the  power 
of  self-preservation.  *  *  *  That  would  appear,  then,  to  be  a 
most  unreasonable  construction  of  the  Constitution  which  denies  to 
the  government  created  by  it,  the  right  to  employ  freely  every  means, 
not  prohibited,  necessary  for  its  preservation,  and  for  the  fulfillment 
of  its  acknowledged  duties.  Such  a  right,  we  hold,  was  given  by  the 
last  clause  of  the  eighth  section  of  its  first  article.  The  means  or  in- 
strumentalities referred  to  in  that  clause,  and  authorized,  are  not 
enumerated  or  defined.  In  the  nature  of  things  enumeration  and  spec- 
ification were  impossible.  But  they  were  left  to  the  discretion  of 
Congress,  subject  only  to  the  restrictions  that  they  be  not  prohibited, 
and  be  necessary  and  proper  for  carrying  into  execution  the  enu- 
merated powers  given  to  Congress,  and  all  other  powers  vested  in  the 
government  of  the  United  States,  or  in  any  department  or  officer 
thereof. 

"And  here  it  is  to  be  observed  it  is  not  indispensable  to  the  existence 
of  any  power  claimed  for  the  federal  government  that  it  can  be  found 
specified  in  the  words  of  the  Constitution,  or  clearly  and  directly  trace- 
able to  some  one  of  the  specified  powers.  Its  existence  may  be  de- 
duced fairly  from  more  than  one  of  the  substantive  powers  expressly 
defined,  or  from  them  all  combined.  It  is  allowable  to  group  together 
any  number  of  them  and  infer  from  them  all  that  the  power  claimed 
has  been  conferred.  Such  a  treatment  of  the  Constitution  is  recog- 
nized by  its  own  provisions.  This  is  well  illustrated  in  its  language  re- 
specting the  writ  of  habeas  corpus.  The  power  to  suspend  the  privi- 
lege of  that  writ  is  not  expressly  given,  nor  can  it  be  deduced  from  any 
one  of  the  particularized  grants  of  power.  Yet  it  is  provided  that  the 
privileges  of  the  writ  shall  not  be  suspended  except  in  certain  defined 
contingencies.  This  is  no  express  grant  of  power.  It  is  a  restriction. 
But  it  shows  irresistibly  that  somewhere  in  the  Constitution  power  to 
suspend  the  privilege  of  the  writ  was  granted,  either  by  some  one  or 
more  of  the  specifications  of  power,  or  by  them  all  combined.  And, 
that  important  powers  were  understood  by  the  people  who  a 
the  Constitution  to  have  been  created  by  it,  powers  not  enumerated, 
and  not  included  incidentally  in  any  one  of  those  enumerated,  is  shown 
by  the  amendments.  The  first  ten  of  these  were  suggested  in  the  con- 
ventions of  the  states,  and  proposed  at  the  first  session  of  the  first 
Congress,  before  any  complaint  was  made  of  a  disposition  to  assume 
doubtful  powers.  The  preamble  to  the  resolution  submitting  them  for 
adoption  recited  that  the  'conventions  of  a  number  of  the  states  had 
at  the  time  of  their  adopting  the  Constitution,  expressed  a  desire,  ir 


932  THE   FEDERAL  GOVERNMENT  (Part  3 

order  to  prevent  misconstruction  or  abuse  of  its  powers,  that  further 
declaratory  and  restrictive  clauses  should  be  added.'  This  was  the  or- 
igin of  the  amendments,  and  they  are  significant.  They  tend  plainly 
to  show  that,  in  the  judgment  of  those  who  adopted  the  Constitution, 
there  were  powers  created  by  it,  neither  expressly  specified  nor  deduci- 
ble  from  any  one  specified  power,  or  ancillary  to  it  alone,  but  which 
grew  out  of  the  aggregate  of  powers  conferred  upon  the  government, 
or  out  of  the  sovereignty  instituted.  Most  of  these  amendments  are 
denials  of  power  which  had  not  been  expressly  granted,  and  which 
cannot  be  said  to  have  been  necessary  and  proper  for  carrying  into 
execution  any  other  powers.  Such,  for  example,  is  the  prohibition  of 
any  laws  respecting  the  establishment  of  religion,  prohibiting  the  free 
exercise  thereof,  or  abridging  the  freedom  of  speech  or  of  the  press. 

"And  it  is  of  importance  to  observe  that  Congress  has  often  exer- 
cised, without  question,  powers  that  are  not  expressly  given  nor  ancil- 
lary to  any  single  enumerated  power.  Powers  thus  exercised  are  what 
are  called  by  Judge  Story,  in  his  Commentaries  on  the  Constitution, 
resulting  powers,  arising  from  the  aggregate  powers  of  the  govern- 
ment. He  instances  the  right  to  sue  and  make  contracts.  Many  others 
might  be  given.  The  oath  required  by  law  from  officers  of  the  gov- 
ernment is  one.  So  is  building  a  capitol  or  a  presidential  mansion,  and 
so  also  is  the  penal  code.  *  *  *  Another  illustration  of  this  may 
be  found  in  connection  with  the  provisions  respecting  a  census.  The 
Constitution  orders  an  enumeration  of  free  persons  in  the  different 
states  every  ten  years.  The  direction  extends  no  further.  Yet  Con- 
gress has  repeatedly  directed  an  enumeration  not  only  of  free  persons 
in  the  states,  but  of  free  persons  in  the  territories,  and  not  only  an 
enumeration  of  persons  but  the  collection  of  statistics  respecting  age, 
sex,  and  production.    Who  questions  the  power  to  do  this? 

"Indeed,  the  whole  history  of  the  government  and  of  congressional 
legislation  has  exhibited  the  use  of  a  very  wide  discretion,  even  in 
times  of  peace  and  in  the  absence  of  any  trying  emergency,  in  the  se- 
lection of  the  necessary  and  proper  means  to  carry  into  effect  the  great 
objects  for  which  the  government  was  framed,  and  this  discretion  has 
generally  been  unquestioned,  or,  if  questioned,  sanctioned  by  this 
court.  This  is  true  not  only  when  an  attempt  has  been  made  to  execute 
a  single  power  specifically  given,  but  equally  true  when  the  means 
adopted  have  been  appropriate  to  the  execution,  not  of  a  single  au- 
thority, but  of  all  the  powers  created  by  the  Constitution.  Under  the 
power  to  establish  post-offices  and  post-roads  Congress  has  provided 
for  carrying  the  mails,  punishing  theft  of  letters  and  mail  robberies, 
and  even  for  transporting  the  mails  to  foreign  countries.  Under  the 
power  to  regulate  commerce,  provision  has  been  made  by  law  for  the 
improvement  of  harbors,  the  establishment  of  observatories,  the  erec- 
tion of  lighthouses,  break-waters,  and  buoys,  the  registry,  enrolment, 
and  construction  of  ships,  and  a  code  has  been  enacted  for  the  govern- 
ment of  seamen.    Under  the  same  power  and  other  powers  over  the 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  933 

revenue  and  the  currency  of  the  country,  for  the  convenience  of  the 
treasury  and  internal  commerce,  a  corporation  known  as  the  United 
States  Rank  was  early  created.  To  its  capital  the  government  sub- 
scribed one-fifth  of  its  stock.  But  the  corporation  was  a  private  one, 
doing  business  for  its  own  profit.     *     *     * 

"In  Fisher  v.  Blight,  2  Cranch,  358,  2  L.  Ed.  304,  *  *  *  a  law 
giving  priority  to  debts  due  to  the  United  States  was  ruled  to  be  con- 
stitutional for  the  reason  that  it  appeared  to  Congress  to  be  an  eligible 
means  to  enable  the  government  to  pay  the  debts  of  the  Union.    * 

"Before  we  can  hold  the  Legal  Tender  Acts  unconstitutional,  we 
must  be  convinced  they  were  not  appropriate  means,  or  means  con- 
ducive to  the  execution  of  any  or  all  of  the  powers  of  Congress,  or  of 
the  government,  not  appropriate  in  any  plain  degree  (for  we  are  not 
judges  of  the  degree  of  appropriateness),  or  we  must  hold  that  they 
were  prohibited.  This  brings  us  to  the  inquiry  whether  they  were, 
when  enacted,  appropriate  instrumentalities  for  carrying  into  effect, 
or  executing  any  of  the  known  powers  of  Congress,  or  of  any  de- 
partment of  the  government.  Plainly,  to  this  inquiry,  a  consideration 
of  the  time  when  they  were  enacted,  and  of  the  circumstances  in  which 
the  government  then  stood,  is  important.  It  is  not  to  be  denied  that 
acts  may  be  adapted  to  the  exercise  of  lawful  power,  and  appropriate 
to  it,  in  seasons  of  exigency,  which  would  be  inappropriate  at  other 
times. 

"We  do  not  propose  to  dilate  at  length  upon  the  circumstances  in 
which  the  country  was  placed,  when  Congress  attempted  to  make  treas- 
ury notes  a  legal  tender.  They  are  of  too  recent  occurrence  to  justify 
enlarged  description.  Suffice  it  to  say  that  a  civil  war  was  then. raging 
which  seriously  threatened  the  overthrow  of  the  government  and  the 
destruction  of  the  Constitution  itself.  .  It  demanded  the  equipment  an  ! 
support  of  large  armies  and  navies,  and  the  employment  of  money  to 
an  extent  beyond  the  capacity  of  all  ordinary  sources  of  supply.  Mean- 
while the  public  treasury  was  nearly  empty,  and  the  credit  of  the  gov- 
ernment, if  not  stretched  to  its  utmost  tension,  had  become  nearly 
exhausted.  *  *  *  It  was  at  such  a  time  and  in  such  circumstances 
that  Congress  was  called  upon  to  devise  means  for  maintaining  the 
army  and  navy,  for  securing  the  large  supplies  of  money  needed,  and, 
indeed,  for  the  preservation  of  the  government  created  by  the  Con- 
stitution. It  was  at  such  a  time  and  in  such  an  emergency  that  the 
Legal  Tender  Acts  were  passed.  Xow,  if  it  were  certain  that  nothing 
else  would  have  supplied  the  absolute  necessities  of  the  treasury,  that 
nothing  else  would  have  enabled  the  government  to  maintain  its  armies 
and  navy,  that  nothing  else  would  have  saved  the  government  and  the 
Constitution  from  destruction,  while  the  Legal  Tender  Acts  would, 
could  any  one  be  bold  enough  to  assert  that  Congress  transgressed  its 
powers?     *     *     * 

"  i  '.m  if  it  be  conceded  that  some  other  means  might  have  been  chosen 
for  the  accomplishment  of  these  legitimate  and  necessary  ends,  the 


934  THE   FEDERAL  GOVERNMENT  (Part  3 

concession  does  not  weaken  the  argument.  It  is  urged  now,  after  the 
lapse  of  nine  years,  and  when  the  emergency  has  passed,  that  treasury 
notes  without  the  legal  tender  clause  might  have  been  issued,  and  that 
the  necessities  of  the  government  might  thus  have  been  supplied. 
Hence  it  is  inferred  there  was  no  necessity  for  giving  to  the  notes  is- 
sued the  capability  of  paying  private  debts.  At  best  this  is  mere  con- 
jecture. But  admitting  it  to  be  true,  what  does  it  prove?  Nothing 
more  than  that  Congress  had  the  choice  of  means  for  a  legitimate  end, 
each  appropriate,  and  adapted  to  that  end,  though,  perhaps,  in  dif- 
ferent degrees.  What  then?  Can  this  court  say  that  it  ought  to  have 
adopted  one  rather  than  the  other?     *     *     * 

"The  rules  of  construction  heretofore  adopted,  do  not  demand  that 
the  relationship  between  the  means  and  the  end  shall  be  direct  and 
immediate.  *  *  *  The  case  of  Veazie  Bank  v.  Fenno,  8  Wall. 
533,  19  L.  Ed.  482,  presents  a  suggestive  illustration.  There  a  tax  of 
ten  per  cent,  on  state  bank  notes  in  circulation  was  held  constitutional, 
not  merely  because  it  was  a  means  of  raising  revenue,  but  as  an  in- 
strument to  put  out  of  existence  such  a  circulation  in  competition  with 
notes  issued  by  the  government.  There,  this  court,  speaking  through 
the  Chief  Justice,  avowed  that  it  is  the  constitutional  right  of  Con- 
gress to  provide  a  currency  for  the  whole  country;  that  this  might 
be  done  by  coin,  or  United  States  notes,  or  notes  of  national  banks ; 
and  that  it  cannot  be  questioned  Congress  may  constitutionally  secure 
the  benefit  of  such  a  currency  to  the  people  by  appropriate  legislation. 
It  was  said  there  can  be  no  question  of  the  power  of  this  government 
to  emit  bills  of  credit ;  to  make  them  receivable  in  payment  of  debts  to 
itself ;  .to  fit  them  for  use  by  those  who  see  fit  to  use  them  in  all  the 
transactions  of  commerce ;  to  make  them  a  currency  uniform  in  value 
and  description,  and  convenient  and  useful  for  circulation.  Here  the 
substantive  power  to  tax  was  allowed  to  be  employed  for  improving 
the  currency.  It  is  not  easy  to  see  why,  if  state  bank  notes  can  be 
taxed  out  of  existence  for  the  purposes  of  indirectly  making  United 
States  notes  more  convenient  and  useful  for  commercial  purposes,  the 
same  end  may  not  be  secured  directly  by  making  them  a  legal  ten- 
der." * 

[Bradley,  J.,  gave  a  concurring  opinion,  and  Chase,  C.  J.,  and  Clif- 
ford and  Field,  JJ.,  gave  dissenting  opinions.  Nelson,  J.,  also  dis- 
sented.] 

i  The  principal  case  overruled  Hepburn  v.  Grlswold,  8  Wall.  603,  19  L.  Ed. 
513  (1870),  which  had  held  the  Legal  Tender  Acts  Invalid  as  to  debts  contracted 
prior  to  their  passage,  upon  reasoning  which  equally  invalidated  them  as 
to  subsequent  debts.  The  decision  was  by  a  vote  of  5  to  3 ;  Grier,  J.,  one  of 
the  majority,  resigning  immediately  thereafter.  The  two  new  judges  who 
were  appointed,  Strong  and  Bradley,  JJ.,  made  part  of  the  majority  in  the 
principal  case. 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  B86 


JUILLIARD  v.  GREENMAX  (1884)  110  U.  S.  421,  444,  447-450. 
4  Sup.  Ct.  122,  28  L.  Ed.  204,  Mr.  Justice  Gray  (upholding  the  issue 
of  legal  tender  currency  in  time  of  peace) : 

"The  power  'to  borrow  money  on  the  credit  of  the  United  States'  is 
the  power  to  raise  money  for  the  public  use  on  a  pledge  of  the  public 
credit,  and  may  be  exercised  to  meet  either  present  or  anticipated  ex- 
penses and  liabilities  of  the  government.  It  includes  the  power  to  issue, 
in  return  for  the  money  borrowed,  the  obligations  of  the  United  States 
in  any  appropriate  form,  of  stock,  bonds,  bills,  or  notes.  *  *  * 
The  states  are  forbidden,  but  Congress  is  expressly  authorized,  to  coin 
money.  The  states  are  prohibited  from  emitting  bills  of  credit ;  but 
Congress,  which  is  neither  expressly  authorized  nor  expressly  forbid- 
den to  do  so,  has,  as  we  have  already  seen,  been  held  to  have  the  power 
of  emitting  bills  of  credit,  and  of  making  every  provision  for  their 
circulation  as  currency,  short  of  giving  them  the  quality  of  legal  ten- 
der for  private  debts — even  by  those  who  have  denied  its  authority  to 
give  them  this  quality. 

"It  appears  to  us  to  follow,  as  a  logical  and  necessary  consequence, 
that  Congress  has  the  power  to  issue  the  obligations  of  the  United 
States  in  such  form,  and  to  impress  upon  them  such  qualities  as  cur- 
rency for  the  purchase  of  merchandise  and  the  payment  of  debts,  as 
accord  with  the  usage  of  sovereign  governments.  The  power,  as  inci- 
dent to  the  power  of  borrowing  money  and  issuing  bills  or  notes  of 
the  government  for  money  borrowed,  of  impressing  upon  those  bills 
or  notes  the  quality  of  being  a  legal  tender  for  the  payment  of  private 
debts,  was  a  power  universally  understood  to  belong  to  sovereignty,  in 
Europe  and  America,  at  the  time  of  the  framing  and  adoption  of  the 
Constitution  of  the  United  States.  The  governments  of  Europe,  acting 
through  the  monarch  or  the  legislature,  according  to  the  distribution  of 
powers  under  their  respective  Constitutions,  had  and  have  as  sovereign 
a  power  of  issuing  paper  money  as  of  stamping  coin.  *  *  *  The 
power  of  issuing  bills  of  credit,  and  making  them,  at  the  discretion 
of  the  legislature,  a  tender  in  payment  of  private  debts,  had  long  been 
exercised  in  this  country  by  the  several  colonies  and  states ;  and  dur- 
ing the  Revolutionary  War  the  states,  upon  the  recommendation  of 
the  Congress  of  the  Confederation,  had  made  the  bills  issued  by  Con- 
gress a  legal  tender.  See  Craig  v.  Missouri,  4  Pet.  435,  453,  7  L.  Ed. 
903;  Briscoe  v.  Bank  of  Kentucky,  11  Pet  257,  313,  334-336,  9  L. 
Ed.  709;  Legal  Tender  Cases,  12  Wall.  ~^7,  558,  622,  20  I..  1 
Phillips  on  American  Paper  Currency,  passim.  The  exercise  of  this 
power  not  being  prohibited  to  Congress  by  the  Constitution,  it  is  in- 
cluded in  the  power  expressly  granted  to  borrow  money  on  the  credit 
of  the  United  States. 

"This  position  is  fortified  by  the  fact  that  Congress  is  vested  with 


t)36  THE  FEDERAL  GOVERNMENT  (Part  3 

the  exclusive  exercise  of  the  analogous  power  of  coining  money  ■  and 
regulating  the  value  of  domestic  and  foreign  coin,  and  also  with  the 
paramount  power  of  regulating  foreign  and  interstate  commerce.  Un- 
der the  power  to  borrow  money  on  the  credit  of  the  United  States,  and 
to  issue  circulating  notes  for  the  money  borrowed,  its  power  to  define 
the  quality  and  force  of  those  notes  as  currency  is  as  broad  as  the  like 
power  over  a  metallic  currency  under  the  power  to  coin  money  and  to 
regulate  the  value  thereof.  Under  the  two  powers,  taken  together, 
Congress  is  authorized  to  establish  a  national  currency,  either  in  coin 
or  in  paper,  and  to  make  that  currency  lawful  money  for  all  purposes, 
as  regards  the  national  government  or  private  individuals.2 

"The  power  of  making  the  notes  of  the  United  States  a  legal  tender 
in  payment  of  private  debts,  being  included  in  the  power  to  borrow 
money  and  to  provide  a  national  currency,  is  not  defeated  or  restricted 
by  the  fact  that  its  exercise  may  affect  the  value  of  private  contracts. 
If,  upon  a  just  and  fair  interpretation  of  the  whole  Constitution,  a 
particular  power  or  authority  appears  to  be  vested  in  Congress,  it  is 
no  constitutional  objection  to  its  existence,  or  to  its  exercise,  that  the 
property  or  the  contracts  of  individuals  may  be  incidentally  affected. 
*  *  *  So,  under  the  power  to  coin  money  and  to  regulate  its  val- 
ue,* Congress  may  (as  it  did  with  regard  to  gold  by  the  Act  of  June 

i  "It  is  not  doubted  that  the  power  to  establish  a  standard  of  value  by 
which  all  other  values  may  be  measured,  or,  in  other  words,  to  determine 
what  shall  be  lawful  money  and  a  legal  tender,  is  in  its  nature,  and  of  neces- 
sity, a  governmental  power.  It  is  in  all  countries  exercised  by  the  govern- 
ment. In  the  United  States,  so  far  as  it  relates  to  the  precious  metals,  it  is 
vested  in  Congress  by  the  grant  of  the  power  to  coin  monev.'* — Chase,  C.  J., 
in  Hepburn  v.  Griswold,  S  Wall.  603,  615,  19  L.  Ed.  513  (1S70).  So,  Baldwin 
v.  Baker,  121  Mich.  259,  80  N.  W.  36  (1S99)  (silver  dollars  legal  tender). 

-  The  legal  tender  acts  did  not  and  perhaps  could  not  make  United  States 
notes  compulsorily  receivable  by  states  for  taxes.  Lane  County  v.  Oregon,  7 
Wall.  71,  19  L.  Ed.  101  (18C9).  Nor  did  they  affect  specific  contracts  for  the 
payment  of  gold  and  silver  coin.  Bronson  v.  Kodes,  7  Wall.  229,  19  L.  Ed. 
141  (1SG9). 

«  As  to  the  power  of  Congress  "to  regulate  the  value  "  •  *  of  foreign 
coin."  see  Madden  v.  Merritt,  115  U.  S.  25,  5  Sup.  Ct.  1169,  29  L.  Ed.  333 
(1885) ;  and  of  domestic  money,  see  Ling  Su  Fan,  218  U.  S.  302,  31  Sup.  Ct. 
21,  54  L.  Ed.  1049,  30  L.  R.  A.  (N.  S.)  1176  (1910). 

Prohibition  Against  State  Bills  of  Credit. — Closely  connected  with  the 
topic  of  the  principal  case  is  the  constitutional  prohibition  against  the  issue 
of  bills  of  credit  by  a^  state  (Const,  art.  I,  §  10,  par.  1).  This  has  been  liber- 
ally construed  in  favor  of  the  power  of  the  states  to  issue  written  promises 
for  their  debts  payable  to  bearer  on  demand  and  receivable  for  all  public 
dues,  provided  they  are  not  actually  intended  to  circulate  as  money,  Craig 
v.  Missouri,  4  Pet.  410,  7  L.  Ed.  903  (1S30):  Poindexter  v.  Greenhow,  114  U. 
S.  270,  5  Sup.  Ct.  903,  962,  29  L.  Ed.  1S5  (1SS5) ;  Houston,  etc.,  By.  v.  Texas, 
177  U.  S.  66,  20  Sup.  Ct.  545,  44  L.  Ed.  673  (1900) ;  and  it  does  not  forbid 
the  issue  of  circulating  banknotes  by  a  state  chartered  corporation,  even 
though  the  state  owns  all  of  the  stock  therein,  Briscoe  v.  Bank  of  Ken- 
tucky, 11  Pet.  257,  9  L.  Ed.  709  (1837) ;  Darrington  v.  Bank  of  Alabama,  13 
How.  12,  14  L.  Ed.  30  (1S51). 

Power  to  Fix  Standards  of  Weights  and  Measures. — This  is  given  to 
Congress  in  the  same  clause  of  the  Constitution  with  the  power  to  coin  mon- 
ey and  regulate  its  value.     The  opinion  in  Weaver  v.  Fegely,  29  Pa.  27,  70 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  937 

2Sth,  1S34,  c.  95,  and  with  regard  to  silver  by  the  Act  of  February 
2Sth,  1878,  c.  20),  issue  coins  of  the  same  denominations  as  those  al- 
ready current  by  law,  but  of  less  intrinsic  value  than  those,  by  reason 
of  containing  a  less  weight  of  the  precious  metals,  and  thereby  enable 
debtors  to  discharge  their  debts  by  the  payment  of  coins  of  the  less 
real  value.  A  contract  to  pay  a  certain  sum  in  money,  without  any 
stipulation  as  to  the  kind  of  money  in  which  it  shall  be  paid,  may 
always  be  satisfied  by  payment  of  that  sum  in  any  currency  which  is 
lawful  money  at  the  place  and  time  at  which  payment  is  to  be  made. 
»     *     * 

"Congress,  as  the  legislature  of  a  sovereign  nation,  being  expressly 
empowered  by  the  Constitution,  'to  lay  and  collect  taxes,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of  the 
United  States,'  and  'to  borrow  money  on  the  credit  of  the  United 
States,'  and  'to  coin  money  and  regulate  the  value  thereof  and  of  for- 
eign coin' ;  and  being  clearly  authorized,  as  incidental  to  the  exercise 
of  those  great  powers,  to  emit  bills  of  credit,  to  charter  national  banks, 
and  to  provide  a  national  currency  for  the  whole  people,  in  the  form  of 
coin,  treasury  notes,  and  national  bank  bills ;  and  the  power  to  make 
the  notes  of  the  government  a  legal  tender  in  payment  of  private  debts 
being  one  of  the  powers  belonging  to  sovereignty  in  other  civilized  na- 
tions, and  not  expressly  withheld  from  Congress  by  the  Constitution ; 
we  are  irresistibly  impelled  to  the  conclusion  that  the  impressing  upon 
the  treasury  notes  of  the  United  States  the  quality  of  being  a  legal  ten- 
der in  payment  of  private  debts  is  an  appropriate  means,  conducive 
and  plainly  adapted  to  the  execution  of  the  undoubted  powers  of  Con- 
gress, consistent  with  the  letter  and  spirit  of  the  Constitution,  and 
therefore,  within  the  meaning  of  that  instrument,  'necessary  and 
proper  for  carrying  intc  execution  the  powers  vested  by  this  Consti- 
tution in  the  government  of  the  United  States.' 

"Such  being  our  conclusion  in  matter  of  law,  the  question  whether 
at  any  particular  time,  in  war  or  in  peace,  the  exigency  is  such,  by  rea- 
son of  unusual  and  pressing  demands  on  the  resources  of  the  govern- 
ment, or  of  the  inadequacy  of  the  supply  of  gold  and  silver  coin  to 
furnish  the  currency  needed  for  the  uses  of  the  government  and  of  the 
people,  that  it  is,  as  matter  of  fact,  wise  and  expedient  to  resort  to  this 
means,  is  a  political  question,  to  be  determined  by  Congress  when  the 
question  of  exigency  arises,  and  not  a  judicial  question,  to  be  after- 
wards passed  upon  by  the  courts." 

[Field,  J.,  gave  a  dissenting  opinion.] 

Am.  Dec.   151  (1857),  that  this  power  ma;  be  exercised  concurrently  by  the 
stares  until  Congress  acts,  lias  been  commonly  accepted,    Caldwell  r.  Dawaoo 
4  Mete.  (Ky.)  121  (1862);    Harris  v.  Rutledge,  19  Iowa,  388,  ^7  am   D 
(1866);    Higglna   v.  Cal   Petroleum   Co.,    109   cni.  :i04,    n    I'ae.   iost    <ixr. 
Contra:  The  Miantlnoml,  3  Wall.  Jr.  46,  17  Fed  Caa,  L'54  (1S55)  (aemble). 


938  THE   FEDERAL  GOVERNMENT  (Part  3 

KANSAS  v.  COLORADO  (1907)  206  U.  S.  46,  89-92,  27  Sup.  Ct. 
655,  51  L.  Ed.  956,  Mr.  Justice  Brewer  (dismissing  a  petition  of  in- 
tervention filed  by  the  United  States  in  a  suit  between  Kansas  and 
Colorado  to  determine  their  respective  rights  to  the  use  of  the  Arkan- 
sas river  for  irrigation  purposes,  said  petition  being  based  upon  an  al- 
leged superior  right  of  the  national  government  to  control  the  whole 
system  of  reclaiming  arid  lands  in  a  state,  whether  owned  by  the 
United  States  or  not) : 

"That  involves  the  question  whether  the  reclamation  of  arid  lands 
is  one  of  the  powers  granted  to  the  general  government.  As  hereto- 
fore stated,  the  constant  declaration  of  this  court  from  the  beginning 
is  that  this  government  is  one  of  enumerated  powers.  *  *  *  Turn- 
ing to  the  enumeration  of  the  powers  granted  to  Congress  by  the  eighth 
section  of  the  first  article  of  the  Constitution,  it  is  enough  to  say  that 
no  one  of  them,  by  any  implication,  refers  to  the  reclamation  of  arid 
lands.  The  last  paragraph  of  the  section,  which  authorizes  Congress 
to  make  all  laws  which  shall  be  necessary  or  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof,  is  not  the  delegation  of  a  new  and  independent 
power,  but  simply  provision  for  making  effective  the  powers  thereto- 
fore mentioned.1     *     *     * 

"[The]  argument  [for  the  petition]  runs  substantially  along  this 
line:  All  legislative  power  must  be  vested  in  either  the  state  or  the 
national  government ;  no  legislative  powers  belong  to  a  state  govern- 
ment other  than  those  which  affect  solely  the  internal  affairs  of  that 
state;  consequently  all  powers  which  are  national  in  their  scope  must 
be  found  vested  in  the  Congress  of  the  United  States.  But  the  prop- 
osition that  there  are  legislative  powers  affecting  the  nation  as  a  whole 
which  belong  to,  although  not  expressed  in  the  grant  of  powers,  is  in 
direct  conflict  with  the  doctrine  that  this  is  a  government  of  enumerat- 
ed powers.  That  this  is  such  a  government  clearly  appears  from  the 
Constitution,  independently  of  the  amendments,  for  otherwise  there 
would  be  an  instrument  gran  ing  certain  specified  things  made  opera- 
tive to  grant  other  and  distinct  things.  This  natural  construction  of 
the  original  body  of  the  Constitution  is  made  absolutely  certain  by  the 

i  Referring  to  the  preamble  of  the  Constitution,  Harlan,  J.,  said,  in  Jacob- 
son  v.  Massachusetts.  197  U.  S.  11,  22,  25  Sup.  Ct.  358,  359,  49  L.  Ed.  643, 
3  Ann.  Cas.  7G5  (1905) :  "Although  that  preamble  indicates  the  general  pur- 
poses for  which  the  people  ordained  and  established  the  Constitution,  it  has 
never  been  regarded  as  the  source  of  any  substantive  power  conferred  on  the 
government  of  the  United  States,  or  on  any  of  its  departments.  Such  powers 
embrace  only  those  expressly  granted  in  the  body  of  the  Constitution,  and 
such  as  may  be  implied  from  those  so  granted.  Although,  therefore,  one  of 
the  declared  objects  of  the  Constitution  was  to  secure  the  blessings  of  liber- 
ty to  all  under  the  sovereign  jurisdiction  and  authority  of  the  United  States, 
no  power  can  he  exerted  to  that  end  by  the  United  States,  unless,  apart  from 
the  preamble,  it  be  found  in  some  express  delegatiou  of  power,  or  in  some 
power  to  be  properly  implied  therefrom.     1  Story,  Const  §  462." 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWBB8  03!) 

tenth  amendment.  This  amendment,  which  was  seemingly  adopted 
with  prescience  of  just  such  contention  as  the  present,  disclosed  the 
widespread  fear  that  the  national  government  might,  under  the  pres- 
sure of  a  supposed  general  welfare,  attempt  to  exercise  powers  which 
had  not  been  granted.  With  equal  determination  the  framers  intended 
that  no  such  assumption  should  ever  find  justification  in  the  organic 
act,  and  that  if,  in  the  future,  further  powers  seemed  necessary,  they 
should  be  granted  by  the  people  in  the  manner  they  had  provided  for 
amending  that  act.  It  reads:  'The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  states,  are  re- 
served to  the  states  respectively,  or  to  the  people.'  The  argument  of 
counsel  ignores  the  principal  factor  in  this  article,  to  wit,  'the  people.' 
Its  principal  purpose  was  not  the  distribution  of  power  between  the 
United  States  and  the  states,  but  a  reservation  to  the  people  of  all 
powers  not  granted.  The  preamble  of  the  Constitution  declares  who 
framed  it, — 'We,  the  people  of  the  United  States.'  not  the  people  of  one 
state,  but  the  people  of  all  the  states;  and  article  10  reserves  to  the 
people  of  all  the  states  the  powers  not  delegated  to  the  United  States. 
The  powers  affecting  the  internal  affairs  of  the  states  not  granted  to 
the  United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
states,  are  reserved  to  the  states  respectively,  and  all  powers  of  a  na- 
tional character  which  are  not  delegated  to  the  national  government  by 
the  Constitution  are  reserved  to  the  people  of  the  United  States.  The 
people  who  adopted  the  Constitution  knew  that  in  the  nature  of  things 
they  could  not  foresee  all  the  questions  which  might  arise  in  the  future, 
all  the  circumstances  which  might  call  for  the  exercise  of  further 
national  powers  than  those  granted  to  the  United  States,  and,  after 
making  provision  for  an  amendment  to  the  Constitution  by  which  any 
needed  additional  powers  would  be  granted,  they  reserved  to  them- 
selves all  powers  not  so  delegated.  This  article  10  is  not  to  be  shorn 
of  its  meaning  by  any  narrow  or  technical  construction,  but  is  to  be 
considered  fairly  and  liberally  so  as  to  give  effect  to  its  scope  and 
meaning.  As  we  said,  construing  an  express  limitation  on  the  powers 
of  Congress,  in  Fairbank  v.  United  States,  181  U.  S.  283,  288,  45  L. 
Ed.  862,  865,  21  Sup.  Ct.  648,  650: 

"  'We  are  not  here  confronted  with  a  question  of  the  extent  of  the 
powers  of  Congress,  but  one  of  the  limitations  imposed  by  the  Con- 
stitution on  its  action,  and  it  seems  to  us  clear  that  the  same  rule  and 
spirit  of  construction  must  also  be  recognized.  If  powers  granted  are 
to  be  taken  as  broadly  granted  and  as  carrying  with  them  authority 
to  pass  those  acts  which  may  be  reasonably  necessary  to  carry  them 
into  full  execution;  in  other  words,  if  the  Constitution  in  its  grant 
of  powers  is  to  be  so  construed  that  Congress  shall  be  able  to  carry  into 
full  effect  the  powers  granted,  it  is  equally  imperative  that,  where 
prohibition  or  limitation  is  placed  upon  the  power  of  Congress,  that 
prohibition  or  limitation  should  be  enforced  in  its  spirit  and  to  its  en- 
tirety.   It  would  be  a  strange  rule  of  construction  that  language  grant- 


940  THE  FEDERAL  GOVERNMENT  (Part  3 

ing  powers  is  to  be  liberally  construed,  and  that  language  of  restric- 
tion is  to  be  narrowly  and  technically  construed.  Especially  is  this 
true  when,  in  respect  to  grants  of  powers,  there  is,  as  heretofore  no- 
ticed, the  help  found  in  the  last  clause  of  the  8th  section,  and  no  such 
helping  clause  in  respect  to  prohibitions  and  limitations.  The  true 
spirit  of  constitutional  interpretation  in  both  directions  is  to  give  full, 
liberal  construction  to  the  language,  aiming  ever  to  show  fidelity  to 
the  spirit  and  purpose.' 

"This  very  matter  of  the  reclamation  of  arid  lands  illustrates  this : 
At  the  time  of  the  adoption  of  the  Constitution,  within  the  known  and 
conceded  limits  of  the  United  States  there  were  no  large  tracts  of  arid 
land,  and  nothing  which  called  for  any  further  action  than  that  which 
might  be  taken  by  the  legislature  of  the  state  in  which  any  particular 
tract  of  such  land  was  to  be  found ;  and  the  Constitution,  therefore, 
makes  no  provision  for  a  national  control  of  the  arid  regions  or  their 
reclamation.  But,  as  our  national  territory  has  been  enlarged,  we  have 
within  our  borders  extensive  tracts  of  arid  lands  which  ought  to  be 
reclaimed,  and  it  may  well  be  that  no  power  is  adequate  for  their  rec- 
lamation other  than  that  of  the  national  government.  But,  if  no  such 
power  has  been  granted,  none  can  be  exercised."  2 


UNITED  STATES  v.  GETTYSBURG  ELECTRIC  RY.  CO 
(1896)  160  U.  S.  668,  681-683,  16  Sup.  Ct.  427,  40  L.  Ed.  576,  Mr. 
Justice  Peckham  (upholding  an  act  of  Congress  authorizing  the  tak- 
ing by  eminent  domain  of  the  battlefield  of  Gettysburg  in  the  state  of 
Pennsylvania) : 

"In  our  judgment,  the  government  has  the  constitutional  power  to 
condemn  the  land  for  the  proposed  use.  It  is,  of  course,  not  neces- 
sary that  the  power  of  condemnation  for  such  purpose  be  expressly 
given  by  the  Constitution.  The  right  to  condemn  at  all  is  not  so  given. 
It  results  from  the  powers  that  are  given,  and  it  is  implied  because  of 
its  necessity,  or  because  it  is  appropriate  in  exercising  those  powers. 
Congress  has  power  to  declare  war,  and  to  create  and  equip  armies 
and  navies.  It  has  the  great  power  of  taxation,  to  be  exercised  for 
the  common  defense  and  general  welfare.  Having  such  powers,  it  has 
such  other  and  implied  ones  as  are  necessary  and  appropriate  for  the 
purpose  of  carrying  the  powers  expressly  given  into  effect.  Any  act 
of  Congress  which  plainly  and  directly  tends  to  enhance  the  respect 
and  love  of  the  citizen  for  the  institutions  of  his  country,  and  to 
quicken  and  strengthen  his  motives  to  defend  them,  and  which  is 
germane  to,  and  intimately  connected  with,  and  appropriate  to,  the 
exercise  of  some  one  or  all  of  the  powers  granted  by  Congress,  must 

2  As  to  the  power  of  the  United  States  to  secure  and  control  the  irrigation 
of  national  public  lands  in  a  state,  see  Van  Brocklin  v.  Tennessee,  post,  p. 
1303,  note  1. 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  'J4L 

be  valid.  This  proposed  use  comes  within  such  description.  The  pro- 
vision conies  within  the  rule  laid  down  by  Chief  Justice  Marshall  in 
McCulloch  v,  .Maryland,  4  Wheat.  421,  4  L.  Ed.  579,  in  these  words: 
'Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitu- 
tion, and  all  means  which  are  appropriate,  which  are  plainly  adequate 
to  that  end,  which  are  not  prohibited  but  consistent  with  the  letter  and 
spirit  of  the  Constitution,  are  constitutional." 

"The  end  to  be  attained,  by  this  proposed  use,  as  provided  for  by 
the  act  of  Congress,  is  legitimate,  and  lies  within  the  scope  of  the  Con- 
stitution. The  battle  of  Gettysburg  was  one  of  the  great  battles  of  the 
world.  The  numbers  contained  in  the  opposing  armies  were  great ; 
the  sacrifice  of  life  was  dreadful;  while  the  bravery,  and,  indeed, 
heroism,  displayed  by  both  the  contending  forces,  rank  with  the  high- 
est exhibition  of  those  qualities  ever  made  by  man.  The  importance 
of  the  issue  involved  in  the  contest  of  which  this  great  battle  was  a 
part  cannot  be  overestimated.  The  existence  of  the  government  it- 
self, and  the  perpetuity  of  our  institutions,  depended  upon  the  result. 
Valuable  lessons  in  the  art  of  war  can  now  be  learned  from  an  ex- 
amination of  this  great  battlefield,  in  connection  with  the  history  of 
the  events  which  there  took  place.  Can  it  be  that  the  government  is 
without  power  to  preserve  the  land,  and  properly  mark  out  the  various 
sites  upon  which  this  struggle  took  place?  Can  it  not  erect  the  monu- 
ments provided  for  by  these  acts  of  Congress,  or  even  take  posses- 
sion of  the  field  of  battle,  in  the  name  and  for  the  benefit  of  all  the 
citizens  of  the  country,  for  the  present  and  for  the  future?  Such  a 
use  seems  necessarily  not  only  a  public  use,  but  one  so  closely  con- 
nected with  the  welfare  of  the  republic  itself  as  to  be  within  the  pow- 
ers granted  Congress  by  the  Constitution  for  the  purpose  of  protect- 
ing and  preserving  the  whole  country.  It  would  be  a  great  object 
lesson  to  all  who  looked  upon  the  land  thus  cared  for,  and  it  would 
show  a  proper  recognition  of  the  great  things  that  were  done  there 
on  those  momentous  days.  By  this  use  the  government  manifests  for 
the  benefit  of  all  its  citizens  the  value  put  upon  the  services  and  exer- 
tions of  the  citizen  soldiers  of  that  period.  Their  successful  effort 
to  preserve  the  integrity  and  solidarity  of  the  great  republic  of  mod- 
ern times  is  forcibly  impressed  upon  every  one  who  looks  over  the 
field.  The  value  of  the  sacrifices  then  freely  made  is  rendered  plainer 
and  more  durable  by  the  fact  that  the  government  of  the  United 
States,  through  its  representatives  in  Congress  assembled,  appreciates 
and  endeavors  to  perpetuate  it  by  this  most  suitable  recognition.  Such 
action  on  the  part  of  Congress  touches  the  heart,  and  comes  home 
to  the  imagination  of  every  citizen,  and  greatly  tends  to  enhance  his 
love  and  respect  for  those  institutions  for  which  these  heroic  sacrifices 
were  made.  The  greater  the  love  of  the  citizen  for  the  institutions 
of  his  country,  the  greater  is  the  dependence  properly  to  be  placed 
upon  him  for  their  defense  in  time  of  necessity,  and  it  is  to  such 
men  that  the  country  must  look  for  its  safety.    The  institutions  of  our 


942  THE  FEDERAL  GOVERNMENT  (Part  3 

country,  which  were  saved  at  this  enormous  expenditure  of  life  and 
property,  ought  to  and  will  be  regarded  with  proportionate  affection. 
Here  upon  this  battlefield  is  one  of  the  proofs  of  that  expenditure, 
and  the  sacrifices  are  rendered  more  obvious  and  more  easily  appre- 
ciated when  such  a  battlefield  is  preserved  by  the  government  at  the 
public  expense.  The  right  to  take  land  for  cemeteries  for  the  burial 
of  the  deceased  soldiers  of  the  country  rests  on  the  same  footing, 
and  is  connected  with,  and  springs  from,  the  same  powers  of  the 
Constitution.  It  seems  very  clear  that  the  government  has  the  right 
to  bury  its  own  soldiers,  and  to  see  to  it  that  their  graves  shall  not 
remain  unknown  or  unhonored. 

"No  narrow  view  of  the  character  of  this  proposed  use  should  be 
taken.  Its  national  character  and  importance,  we  think,  are  plain. 
The  power  to  condemn  for  this  purpose  need  not  be  plainly  and  un- 
mistakably deduced  from  any  one  of  the  particularly  specified  powers. 
Any  number  of  those  powers  may  be  grouped  together,  and  an  in- 
ference from  them  all  may  be  drawn  that  the  power  claimed  has 
been  conferred."  * 


Ex  parte  SIEBOLD. 

(Supreme  Court  of  the  United  States,  18S0.     100  U.  S.  371,  25  L.  Ed.  717.) 

[Petition  for  habeas  corpus.  An  act  of  Congress,  passed  in  1871 
(Act  Feb.  28,  c.  99,  16  Stat.  433)  and  re-enacted  in  1873  as  section 
5515  of  the  federal  Revised  Statutes,  provided  a  criminal  punish- 
ment for  officers  of  elections  at  which  representatives  in  Congress 
were  voted  for,  who  should  violate  any  duty  imposed  upon  them  in 
regard  to  such  election  by  any  state  or  federal  law.  Under  a  law 
of  Maryland  passed  in  1876  Siebold  and  others  were  appointed  judges 

i  As  to  the  rule  of  compensation  to  be  observed  when  the  United  States 
takes  for  federal  purposes  land  formerly  devoted  to  state  public  purposes, 
see  Nahant  v.  U.  S.,  136  Fed.  273,  70  C.  C.  A.  641,  CO  L.  R.  A.  72.3  (1905). 
Compare  Stockton  v.  Baltimore,  etc.,  Ry.,  32  Fed.  0.  10,  20  (1SS7).  See,  also, 
Van  Brocklin  v.  Tennessee,  post,  p.  1303,  note  1,  and  p.  1305,  note  2. 

Military  Powers  of  the  United  States. — See  Const,  art.  I,  S  S,  pars.  11- 
16.  These  provisions  give  the  federal  government  all  of  the  belligerent  pow- 
ers ordinarily  exercised  by  sovereign  nations  in  carrying  on  war,  foreign  or 
domestic,  in  suppressing  public  disorder,  and  in  governing  military  forces. 
See,  in  general,  as  to  belligerent  rights:  Prize  Cases,  2  Black.  635,  17  L.  Ed. 
459  (1S63)  (mode  of  commencing  war);  Miller  v.  U.  S.,  11  Wall.  208,  20  L. 
Ed.  135  (1871)  (confiscation  of  enemy's  property);  Ex  parte  Milligan,  4  Wall. 
2,  IS  L.  Ed.  281  (1S6G)  (power  to  declare  martial  law);  as  to  modes  of  raising 
and  organizing  troops:  Houston  v.  Moore,  5  Wheat.  1,  5  L.  Ed.  19  (1S20) 
(state  militia);  Martin  v.  Mott,  12  Wheat.  19,  6  L.  Ed..  537  (1827)  (same); 
Opinion  of  Justices.  14  Gray  (Mass.)  614  (1S59)  (same) ;  Tyler  v.  Pomeroy,  8 
Allen  (Mass.)  480  (1804)  (federal  enlistment) ;  Kneedler  t.  Lane,  45  Pa.  238 
(1864)  (federal  draft);  and  as  to  the  government  of  military  forces:  Dynes  v. 
Hoover,  20  How.  65,  15  L.  Ed.  S3S  (1S5S) ;  Reaves  v.  Ainsworth,  219  U.  S. 
296,  31  Sup.  Ct.  230.  55  L.  Ed.  225  (1911) ;  Grafton  v.  U.  S.,  206  U.  S.  333,  27 
Sup.  Ct.  749,  51  L.  Ed.  10S4,  11  Ann.  Cas.  640  (1907). 

See,  also,  Luther  v.  Borden,  ante.  p.  101,  and  notes  1—4. 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  'J  1" 

of  election,  and  were  later  convicted  in  the  federal  Circuit  Court  for 
Maryland  under  the  above  federal  statute  of  having  stuffed  the  bal- 
lot box  at  a  congressional  election  in  1878,  in  violation  of  their  offi- 
cial duties  under  the  law  of  Maryland.  They  then  petitioned  for  this 
writ  to  secure  their  discharge  from  imprisonment  therefor.] 

.Mr.  Justice  Bradley.  *  *  *  The  clause  of  the  Constitution 
under  which  the  power  of  Congress,  as  well  as  that  of  the  state  legis- 
latures, to  regulate  the  election  of  senators  and  representatives  arises, 
is  as  follows :  "The  times,  places,  and  manner  of  holding  elections 
for  senators  and  representatives  shall  be  prescribed  in  each  state  by 
the  legislature  thereof;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  place  of  choosing 
senators."  [Article  I,  §  4,  par.  1.]  *  *  *  The  state  may  make 
regulations  on  the  subject;  Congress  may  make  regulations  on  the 
same  subject,  or  may  alter  or  add  to  those  already  made.  The  para- 
mount character  of  those  made  by  Congress  has  the  effect  to  super- 
sede those  made  by  the  state,  so  far  as  the  two  are  inconsistent,  and 
no  farther.  There  is  no  such  conflict  between  them  as  to  prevent 
their  forming  a  harmonious  system  perfectly  capable  of  being  admin- 
istered and  carried  out  as  such. 

As  to  the  supposed  conflict  that  may  arise  between  the  officers 
appointed  by  the  state  and  national  governments  for  superintending 
the  election,  no  more  insuperable  difficulty  need  arise  than  in  the  appli- 
cation of  the  regulations  adopted  by  each  respectively.  The  regula- 
tions of  Congress  being  constitutionally  paramount,  the  duties  im- 
posed thereby  upon  the  officers  of  the  United  States,  so  far  as  they 
have  respect  to  the  same  matters,  must  necessarily  be  paramount  to 
those  to  be  performed  by  the  officers  of  the  state.  If  both  cannot  be 
performed,  the  latter  are  pro  tanto  superseded  and  cease  to  be  du- 
ties.    *     *     * 

As  to  the  supposed  incompatibility  of  independent  sanctions  and 
punishments  imposed  by  the  two  governments,  for  the  enforcement  of 
the  duties  required  of  the  officers  of  election,  and  for  their  protection 
in  the  performance  of  those  duties,  the  same  considerations  apply. 
While  the  state  will  retain  the  power  of  enforcing  such  of  its  own 
regulations  as  are  not  superseded  by  those  adopted  by  Congress,  it 
cannot  be  disputed  that  if  Congress  has  power  to  make  regulations  it 
must  have  the  power  to  enforce  them,  not  only  by  punishing  the  de- 
linquency of  officers  appointed  by  the  United  States,  but  by  restrain- 
ing and  punishing  those  who  attempt  to  interfere  with  them  in  the 
performance  of  their  duties;  and  if.  as  we  have  shown,  Congress  may 
revise  existing  regulations,  and  add  to  or  alter  the  same  as  far  as  it 
deems  expedient,  there  can  be  as  little  question  that  it  may  impose 
additional  penalties  for  the  prevention  of  frauds  committed  by  the 
state  officers  in  the  elections,  or  for  their  violation  of  any  duty  relating 
thereto,  whether  arising  from  the  common  law  or  from  any  other  law, 
state  or  national.     Why   not'     Penalties    for   fraud   and  delinquency 


944  THE   FEDERAL   GOVERNMENT  (Part  3 

are  part  of  the  regulations  belonging  to  the  subject.  If  Congress,  by 
its  power  to  make  or  alter  the  regulations,  has  a  general  supervisory 
power  over  the  whole  subject,  what  is  there  to  preclude  it  from  impos- 
ing additional  sanctions  and  penalties  to  prevent  such  fraud  and  de- 
linquency? 

It  is  objected  that  Congress  has  no  power  to  enforce  state  laws  or 
to  punish  state  officers,  and  especially  has  no  power  to  punish  them 
for  violating  the  laws  of  their  own  state.  As  a  general  proposition, 
this  is  undoubtedly  true;  but  when,  in  the  performance  of  their  func- 
tions, state  officers  are  called  upon  to  fulfil  duties  which  they  owe  to 
the  United  States  as  well  as  to  the  state,  has  the  former  no  means  of 
compelling  such  fulfilment?  Yet  that  is  the  case  here.  It  is  the  duty 
of  the  states  to  elect  representatives  to  Congress.  The  due  and  fair 
election  of  these  representatives  is  of  vital  importance  to  the  United 
States.  The  government  of  the  United  States  is  no  less  concerned  in 
the  transaction  than  the  state  government  is.  It  certainly  is  not 
bound  to  stand  by  as  a  passive  spectator,  when  duties  are  violated  and 
outrageous  frauds  are  committed.  It  is  directly  interested  in  the 
faithful  performance,  by  the  officers  of  election,  of  their  respective 
duties.  Those  duties  are  owed  as  well  to  the  United  States  as  to  the 
state.  This  necessarily  follows  from  the  mixed  character  of  the 
transaction,  state  and  national.  A  violation  of  duty  is  an  offence 
against  the  United  States,  for  which  the  offender  is  justly  amenable  to 
that  government.  No  official  position  can  shelter  him  from  this  re- 
sponsibility. In  view  of  the  fact  that  Congress  has  plenary  and  para- 
mount jurisdiction  over  the  whole  subject,  it  seems  almost  absurd  to 
say  that  an  officer  who  receives  or  has  custody  of  the  ballots  given 
for  a  representative  owes  no  duty  to  the  national  government  which 
Congress  can  enforce ;  or  that  an  officer  who  stuffs  the  ballot-box 
cannot  be  made  amenable  to  the  United  States.1     *     *     * 

The  objection  that  the  laws  and  regulations,  the  violation  of  which 
is  made  punishable  by  the  acts  of  Congress,  are  state  laws,  and  have 
not  been  adopted  by  Congress,  is  no  sufficient  answer  to  the  power  of 
Congress  to  impose  punishment.  It  is  true  that  Congress  has  not 
deemed  it  necessary  to  interfere  with  the  duties  of  the  ordinary  officers 
of  election,  but  has  been  content  to  leave  them  as  prescribed  by  state 
laws.  It  has  only  created  additional  sanctions  for  their  performance, 
and  provided  means  of  supervision  in  order  more  effectually  to  secure 
such  performance.  The  imposition  of  punishment  implies  a  prohibition 
of  the  act  punished.  The  state  laws  which  Congress  sees  no  occasion 
to  alter,  but  which  it  allows  to  stand,  are  in  effect  adopted  by  Con- 
gress. It  simply  demands  their  fulfilment.  Content  to  leave  the  laws 
as  they  are,  it  is  not  content  with  the  means  provided  for  their  en- 
forcement.    It  provides  additional  means  for  that  purpose;    and  we 

*  For  the  power  of  the  United  States  directly  to  forbid  any  interference 
with  the  right  to  vote  for  members  of  Congress  established  by  state  law  un- 
der Const,  art.  I,  §  2,  par.  1,  see  Ex  parte  Yarbrough,  ante,  p.  145. 


Ch.  14)         GENERAL  SCOPE  OF  FEDERAL  POWERS  D46 

think  it  is  entirely  within  its  constitutional  power  to  do  so.  It  is  sim- 
ply the  exercise  of  the  power  to  make  additional  regulations.     *     *     * 

Another  objection  made  is,  that,  if  Congress  can  impose  penalties 
for  violation  of  state  laws,  the  officer  will  be  made  liable  to  double 
punishment  for  delinquency, — at  the  suit  of  the  state,  and  at  the  suit 
of  the  United  States.  But  the  answer  to  this  is,  that  each  govern- 
ment punishes  for  violation  of  duty  to  itself  only.  Where  a  person 
owes  a  duty  to  two  sovereigns,  he  is  amenable  to  both  for  its  per- 
formance; and  either  may  call  him  to  account.  Whether  punish- 
ment inflicted  by  one  can  be  pleaded  in  bar  to  a  charge  by  the  other 
for  the  same  identical  act,  need  not  now  be  decided ;  although  consid- 
erable discussion  bearing  upon  the  subject  has  taken  place  in  this 
court,  tending  to  the  conclusion  that  such  a  plea  cannot  be  sustain- 
ed.    *     *     * 

The  more  general  reason  assigned,  to  wit,  that  the  nature  of  sov- 
ereignty in  such  as  to  preclude  the  joint  co-operation  of  two  sovereigns, 
even  in  a  matter  in  which  they  are  mutually  concerned,  is  not,  in  our 
judgment,  of  sufficient  force  to  prevent  concurrent  and  harmonious 
action  on  the  part  of  the  national  and  state  governments  in  the  elec- 
tion of  representatives.  It  is  at  most  an  argument  ab  inconveniente. 
There  is  nothing  in  the  Constitution  to  forbid  such  co-operation  in 
this  Case.  On  the  contrary,  as  already  said,  we  think  it  clear  that  the 
clause  of  the  Constitution  relating  to  the  regulation  of  such  elections 
contemplates  such  co-operation  whenever  Congress  deems  it  expedient 
to  interfere  merely  to  alter  or  add  to  existing  regulations  of  the  state. 
*  *  *  There  are  very  few  subjects,  it  is  true,  in  which  our  system 
of  government,  complicated  as  it  is,  requires  or  gives  room  for  con- 
joint action  between  the  state  and  national  sovereignties.  Generally. 
the  powers  given  by  the  Constitution  to  the  government  of  the  United 
States  are  given  over  distinct  branches  of  sovereignty  from  which  the 
state  governments,  either  expressly  or  by  necessary  implication,  are 
excluded.  But  in  this  case,  expressly,  and  in  some  others,  by  impli- 
cation, as  we  have  seen  in  the  case  of  pilotage,  a  concurrent  jurisdic- 
tion is  contemplated,  that  of  the  state,  however,  being  subordinate  to 
that  of  the  United  States,  whereby  all  question  of  precedency  is  elim- 
inated. 

In  what  we  have  said,  it  must  be  remembered  that  we  are  dealing 
only  with  the  subject  of  elections  of  representatives  to  Congress.  If 
for  its  own  convenience  a  state  sees  fit  to  elect  state  and  county  of- 
ficers at  the  same  time  and  in  conjunction  with  the  election  of  repre- 
sentatives, Congress  will  not  be  thereby  deprived  of  the  right  to  make 
regulations  in  reference  to  the  latter.     *     *     * 

The  greatest  difficulty  in  coming  to  a   just  conclusion  arises   from 

mistaken  notions  with  regard  to  the  relations  which   subsist  between 

the  state  and  national  governments.     It  seems  to  be  often  overlooked 

that  a  national  Constitution  has  been  adopted  in  this  country,  estab- 

IIall  Const.L. — (50 


946  THE   FEDERAL  GOVERNMENT  (Part  3 

lishing  a  real  government  therein,  operating  upon  persons  and  territory 
and  things ;  and  which,  moreover,  is,  or  should  be,  as  dear  to  every 
American  citizen  as  his  state  government  is.  Whenever  the  true  con- 
ception of  the  nature  of  this  government  is  once  conceded,  no  real  diffi- 
culty will  arise  in  the  just  interpretation  of  its  powers.  But  if  we  al- 
low ourselves  to  regard  it  as  a  hostile  organization,  opposed  to  the 
proper  sovereignty  and  dignity  of  the  state  governments,  we  shall  con- 
tinue to  be  vexed  with  difficulties  as  to  its  jurisdiction  and  authority. 
No  greater  jealousy  is  required  to  be  exercised  towards  this  govern- 
ment in  reference  to  the  preservation  of  our  liberties,  than  is  proper 
to  be  exercised  towards  the  state  governments.  Its  powers  are  limited 
in  number,  and  clearly  defined  ;  and  its  action  within  the  scope  of  those 
powers  is  restrained  by  a  sufficiently  rigid  bill  of  rights  for  the  pro- 
tection of  its  citizens  from  oppression.  The  true  interest  of  the  people 
of  this  country  requires  that  both  the  national  and  state  governments 
should  be  allowed,  without  jealous  interference  on  either  side,  to  exer- 
cise all  the  powers  which  respectively  belong  to  them  according  to  a 
fair  and  practical  construction  of  the  Constitution.  State  rights,  and 
the  rights  of  the  United  States  should  be  equally  respected.     *     *     * 

It  is  argued  that  the  preservation  of  peace  and  good  order  in  so- 
ciety is  not  within  the  powers  confided  to  the  government  of  the  Unit- 
ed States,  but  belongs  exclusively  to  the  states.  Here  again  we  are  met 
with  the  theory  that  the  government  of  the  United  States  does  not 
rest  upon  the  soil  and  territory  of  the  country.  We  think  that  this 
theory  is  founded  on  an  entire  misconception  of  the  nature  and  powers 
of  that  government.  We  hold  it  to  be  an  incontrovertible  principle, 
that  the  government  of  the  United  States  may,  by  means  of  physical 
force,  exercised  through  its  official  agents,  execute  on  every  foot  of 
American  soil  the  powers  and  functions  that  belong  to  it.  This  nec- 
essarily involves  the  power  to  command  obedience  to  its  laws,  and 
hence  the  power  to  keep  the  peace  to  that  extent.     *     *     * 

This  concurrent  jurisdiction  which  the  national  government  neces- 
sarily possesses  to  exercise  its  powers  of  sovereignty  in  all  parts  of 
the  United  States  is  distinct  from  that  exclusive  power  which,  by  the 
first  article  of  the  Constitution,  it  is  authorized  to  exercise  over  the 
District  of  Columbia,  and  over  those  places  within  a  state  which  are 
purchased  by  consent  of  the  legislature  thereof,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings.2 

2  Jurisdiction  over  Land  in  a  State  Owned  bt  the  United  States. — 
"[It]  follows  naturally  from  the  language  of  the  Constitution  [article  I,  §  8, 
par.  17,  referred  to  in  the  last  paragraph  of  Ex  parte  Siebold,  above]  that  no 
other  legislative  power  than  that  of  Congress  can  be  exercised  over  lands, 
within  a  state,  purchased  by  the  United  States,  with  her  consent,  for  one  of 
the  purposes  designated,  and  that  such  consent,  under  the  Constitution,  op- 
erates to  exclude  all  other  legislative  authority.  But  with  reference  to  lands 
owned  by  the  United  States,  acquired  by  purchase  without  the  consent  of  the 
state,  or  by  cessions  from  other  governments,  the  case  is  different.  *  »  • 
Where  •  •  *  lands  are  acquired  in  any  other  way  by  the  United  States 
within  the  limits  of  a  state  than  by  purchase  with  her  consent,   they  will 


Ch.  14)  GENEKAL  SCOPE  OF    FEDERAL    POVVEK8  947 

There  its  jurisdiction  is  absolutely  exclusive  of  that  of  the  state,  un- 
less, as  is  sometimes  stipulated,  power  is  given  to  the  latter  to  serve 
the  ordinary  process  of  its  courts  in  the  precinct  acquired.     *     *     » 

Petition  denied. 

[CLIFFORD  and  Field,  JJ.,  dissented,  the  opinion  of  the  latter  ap- 
pearing in  Ex  parte  Clarke,  100  U.  S.  399,  404-^22,  25  L.  Ed.  715 
(1880).  It  proceeded  in  part  upon  a  denial  that  Congress  could  dele- 
gate to  a  state  any  part  of  its  legislative  power.  As  to  this,  see  United 
States  v.  Grimaud,  ante,  at  p.  124,  and  note  2.] 

hold  the  land  subject  to  this  qualification:  That  If  upon  them  forts,  arse- 
nals, or  other  public  buildings  are  erected  for  Hie  uses  of  the  genet 
eminent,  such  buildings,  with  their  appurtenances,  as  tnstrumentalll 
the  execution  of  Its  powers,  will  be  free  from  any  such  Interference  and  Ju- 
risdiction of  the  state  as  would  destroy  or  impair  their  i  i  for  the 
designed.  •  •  •  But,  when  not  used  as  Buch  Instrumentalities, 
lathe  power  of  the  state  over  I  cqulred  will  be  us  full  and 
complete  as  over  any  other  places  Within  her  limits.     •     •     • 

laud  constituting  the  Ft.   Leavenworth  military  reservation   was  not 

purchased,   but   was  owned  by   the  United   States  by"  cession   from  I'm • 

many  years  before  Kansas  became  a  state;  and  whatever  political  sov- 
ereignty and  dominion  the  United  States  had  over  the  place  comes  from 
the  cession  of  (he  sta<e  since  her  admission  Into  the  I  oion.  it  not  being  a 
ease  where  exclusive  legislative  authority  is  rested  by  tie  .  of  the 

United  states,  that  cession  could  be  accompanied  with  such  conditions  as  the 
state  might  see  tit  to  annex,  not  Inconsistent  with  the  free  and  effective  use 
of  the  ion  ws  a  military  post.     •     »     • 

"We  are  here  met  with  the  objection  that  the  legislature  of  a  state  has  no 
power  to  cede  away  her  jurisdiction  and   legislative  power  over  any   ; 
of  her  territory,  except  as  such  cession  follows  under  the  Constitution  from 
her  consent  to  a  purchase  by  the  United  states  for  some  one  ot  the  purposes 
mentioned.     •     *     •     [Here  reference  is  made  to  the  inability  of   a  Btatfl  to 

erritory   to  a   foreign  government    without   t lie   consent   of   the 
states.l    Iu  their  relation  to  the  genera  at,  the  states  of  the 

stand   in  a  very  different  position   from    that   which    they   hold   to   I 
governments.     Though  the  jurisdiction  and  authority  of  t lie  general    : 
ment  are  essentially  different  from  those  of  the  state,  they  are  not   t 
a  different  country;    and  the  two,  the  state  ami  general  government,  maj 

deal   with   each  other  in   any   way  they   may  deem   I  out    the   pur 

poses  of  the  Constitution.     It  Is  for  the  protection  and  In: 
their   people  and  property,  as   well   as  for  the  protection   and  in 

generally  of  the  United  states.  arsenals,  and  other  build 

ings  for  public  u<es  are  constructed  within  the  states;  •  •  •  and  i  .  to 
their  more  effective  use,  a  cession  ot  1'  -lative  authority  and  political  Ju- 
'ti  by  the  state  would  be  desirable,  we  do  U"t  perceive  any  objection  to 
its  grant  by  the  legislature  of  the  state."— Ft  Leavenworth  R.  R.  Co.  v 
Lowe,  114  C.  s.  525,  637  542,  r>  Sup.  Ct  995,  -'.>  L.  Ed.  264  (1885)  by  I 
See  the  cases  discussed  in  the  0] 

For  various  details  of  the  powi  government  over  its  public 

lands  in  a  state,  where  no  exclusive  jurisdiction  has  been  ceded  to  il,  see 
Van  Brocklin  v.  Tennessee,  post, D.    1303, 

EXTBATEBRITOBIAl  :icr    OF   COL- 

dvbia  and  Territories. — As  to  how  far  legislation  of  C 
matters  in  the  District  of  Columbia  or  the  territories  i 

the  states,    see   Lyons   v.    Bank   of   DisCOUnl    (C    '   .     154    Fed.  oDl   U'JUT)    ■ 

See,  also,  Buckner  v.  Finley,  post,  at  p.  12T8, 


948  THE   FEDERAL   GOVERNMENT  (Part  3 

LOGAN  v.  UNITED  STATES  (1891)  144  U.  S.  263,  282-285, 
293-295,  12  Sup.  Ct.  617,  36  L.  Ed.  429,  Mr.  Justice  Gray  (upholding 
the  conviction  of  Logan  and  others  for  violating  a  federal  statute  for- 
bidding conspiracies  to  injure  and  oppress  citizens  in  the  exercise  of 
rights  secured  to  them  by  the  federal  Constitution  and  laws) : 

"The  principal  question  in  this  case  is  whether  the  right  of  a  cit- 
izen of  the  United  States,  in  the  custody  of  a  United  States  marshal 
under  a  lawful  commitment  to  answer  for  an  offense  against  the 
United  States,  to  be  protected  against  lawless  violence,  is  a  right  se- 
cured to  him  by  the  Constitution  or  laws  of  the  United  States,  or 
whether  it  is  a  right  which  can  be  vindicated  only  under  the  laws  of 
the  several  states.     *     *     * 

*  "Although  the  Constitution  contains  no  grant,  general  or  specific,  to 
Congress  of  the  power  to  provide  for  the  punishment  of  crimes,  ex- 
cept piracies  and  felonies  on  the  high  seas,  offenses  against  the  law 
of  nations,  treason,  and  counterfeiting  the  securities  and  current  coin 
of  the  United  States,  no  one  doubts  the  power  of  Congress  to  provide 
for  the  punishment  of  all  crimes  and  offenses  against  the  United 
States,  whether  committed  within  one  of  the  states  of  the  Union  or 
within  territory  over  which  Congress  has  plenary  and  exclusive  juris- 
diction. 

"To  accomplish  this  end,  Congress  has  the  right  to  enact  laws  for 
the  arrest  and  commitment  of  those  accused  of  any  such  crime  or  of- 
fense, and  for  holding  them  in  safe  custody  until  indictment  and 
trial ;  and  persons  arrested  and  held  pursuant  to  such  laws  are  in  the 
exclusive  custody  of  the  United  States,  and  are  not  subject  to  the 
judicial  process  or  executive  warrant  of  any  state.  Ableman  v.  Booth, 
21  How.  506,  16  L.  Ed.  169;  Tarble's  Case,  13  Wall.  397,  20  L.  Ed. 
597;  Robb  v.  Connolly,  111  U.  S.  624,  4  Sup.  Ct.  544,  28  L.  Ed.  542. 
The  United  States,  having  the  absolute  right  to  hold  such  prisoners, 
have  an  equal  duty  to  protect  them,  while  so  held,  against  assault  or 
injury  from  any  quarter.  The  existence  of  that  duty  on  the  part  of 
the  government  necessarily  implies  a  corresponding  right  of  the  pris- 
oners to  be  so  protected;  and  this  right  of  the  prisoners  is  a  right 
secured  to  them  by  the  Constitution  and  laws  of  the  United 
States.     *     *     * 

"In  the  case  at  bar,  *  *  *  while  Charles  Marlow  and  five  oth- 
ers, citizens  of  the  United  States,  were  in  the  custody  and  control  of 
a  deputy  marshal  of  the  United  States  *  *  *  to  answer  to  in- 
dictments for  an  offense  against  the  laws  of  the  United  States,  the 
plaintiffs  in  error  conspired  to  injure  and  oppress  them  in  the  free 
exercise  and  enjoyment  of  the  right  secured  to  them  by  the  Constitu- 
tion and  laws  of  the  United  States,  to  be  protected,  while  in  such 
custody  and  control  of  the  deputy  marshal,  against  assault  and  bodily 
harm,  until  they  had  been  discharged  by  due  process  of  the  laws  of 
the  United  States.     *     *     *     If  the  officers  of  the  United   States, 


Cll.  14)  GENERAL  8C0PB  (  ...    POWEES  949 

charged  with  the  performance  of  the  duty,  in  behalf  of  the  United 
States,  of  affording  that  protection  and  securing  that  right,  neglected 
or  violated  their  duty,  the  prisoners  were  not  the  less  under  the  shield 
and  panoply  of  the  United  States. 

.  "The  cases  heretofore  decided  by  this  court,  and  cited  in  behalf  of 
the  plaintiffs  in  error,  are  in  no  way  inconsistent  with  these  views. 
*  *  *  [After  discussing  a  number  of  cases:]  The  whole  scope 
and  effect  of  this  series  of  decisions  is  that,  while  certain  funda- 
mental rights,  recognized  and  declared,  but  not  granted  or  created, 
in  some  of  the  amendments  to  the  Constitution,  are  thereby  guar- 
anteed only  against  violation  or  abridgment  by  the  United  States  or 
by  the  states,  as  the  case  may  be,  and  cannot  therefore  be  affirmatively 
enforced  by  Congress  against  unlawful  acts  of  individuals,  yet  that 
every  right  created  by,  arising  under,  or  dependent  upon  the  Con- 
stitution of  the  United  States,  may  be  protected  and  enforced  by 
Congress  by  such  means  and  in  such  manner  as  Congress,  in  the  ex- 
ercise of  the  correlative  duty  of  protection,  or  of  the  legislative  pow- 
ers conferred  upon  it  by  the  Constitution,  may,  in  its  discretion,  deem 
most  eligible  and  best  adapted  to  attain  the  object.     *    *    * 

"In  the  case  at  bar  the  right  in  question  does  not  depend  upon  any 
of  the  amendments  to  the  Constitution,  but  arises  out  of  the  creation 
and  establishment  by  the  Constitution  itself  of  a  national  government, 
paramount  and  supreme  within  its  sphere  of  action.  Any  government 
which  has  power  to  indict,  try,  and  punish  for  crime,  and  to  arrest 
the  accused,  and  hold  them  in  safe-keeping  until  trial,  must  have  the 
power  and  the  duty  to  protect  against  unlawful  interference  its  pris- 
oners so  held,  as  well  as  its  executive  and  judicial  officers  charged 
with  keeping  and  trying  them. 

"In  the  very  recent  Case  of  Neagle,  135  U.  S.  1,  10  Sup.  Ct.  658,  34 
L.  Ed.  55  (at  October  Term.  1889),  it  was  held  that,  although  there 
was  no  express  act  of  Congress  authorizing  the  appointment  of  a 
deputy  marshal  or  other  officer  to  attend  a  justice  of  this  court  while 
traveling  in  his  circuit,  and  to  protect  him  against  assault  or  injury, 
it  was  within  the  power  and  the  duty  of  the  executive  department  to 
protect  a  judge  of  any  of  the  courts  of  the  United  States,  when  there 
was  just  reason  to  believe  that  he  would  be  in  personal  danger  while 
executing  the  duties  of  his  office:  that  an  assault  upon  such  a  judge 
while  in  discharge  of  his  official  duties  was  a  breach  of  the  peace  of 
the  United  States,  as  distinguished  from  the  peace  of  the  state  in 
which  the  assault  took  place ;  and  that  a  deputy  marshal  of  the  United 
States,  specially  charged  with  the  duty  of  protecting  and  guarding  a 
judge  of  a  court  of  the  United  States,  had  imposed  upon  him  the  duty 
of  doing  whatever  might  be  necessary  for  that  purpose,  even  to  the 
taking  of  human  life. 

"In  delivering  judgment  Mr.  Justice  Miller  *  *  *  said:  *  *  * 
'That  there  is  a  peace  of  the  United  States;  that  a  man  assaulting  a 


950  THE  FEDERAL  GOVERNMENT  (Part  3 

judge  of  the  United  States  while  in  the  discharge  of  his  duties  violates 
that  peace ;  that  in  such  case  the  marshal  of  the  United  States  stands  in 
the  same  relation  to  the  peace  of  the  United  States  which  the  sheriff 
of  the  county  does  to  the  peace  of  the  state  of  California — are  ques- 
tions too  clear  to  need  argument  to  prove  them.'  135  U.  S.  69,  ID 
Sup.  Ct.  670,  34  L.  Ed.  55,1 

"The  United  States  are  bound  to  protect  against  lawless  violence 
all  persons  in  their  service  or  custody  in  the  course  of  the  adminis- 
tration of  justice.  This  duty  and  the  correlative  right  of  protection 
are  not  limited  to  the  magistrates  and  officers  charged  with  expound- 
ing and  executing  the  laws,  but  apply,  with  at  least  equal  force,  to 
those  held  in  custody  on  accusation  of  crime,  and  deprived  of  all  means 
of  self-defense."  * 


SECOND  EMPLOYERS'  LIABILITY  CASES  (1912)  223  U.  S. 
1,  55-58,  32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44,  Mr. 
Justice  Van  Devanter  (upholding  a  federal  statute  imposing  certain 
liabilities  upon  interstate  railroads  for  injuries  to  their  employes. 
The  first  part  of  the  case  appears  post,  p. 1250) : 

"We  come  next  to  consider  whether  rights  arising  under  the  con- 
gressional act  may  be  enforced,  as  of  right,  in  the  courts  of  the  states 
when  their  jurisdiction,  as  prescribed  by  local  laws,  is  adequate  to  the 
occasion.    The  first  of  the  cases  now  before  us  was  begun  in  one  of 

i  In  this  case  Miller,  J.,  also  said  (at  pages  63,  64) :  "The  Constitution,  sec- 
tion 3,  article  2,  declares  that  the  President  'shall  take  care  that  the  laws  be 
faithfully  executed,'  and  he  is  provided  with  the  means  of  fulfilling  this  obli- 
gation by  his  authority  to  commission  all  the  officers  of  the  United  States, 
and,  by  and  with  the  advice  and  consent  of  the  Senate,  to  appoint  the  most 
important  of  them  and  to  fill  vacancies.  He  is  declared  to  be  commander-in- 
chief  of  the  army  and  navy  of  the  United  States.  The  duties  which  are  thus 
imposed  upon  him  he  is  further  enabled  to  perform  by  the  recognition  in  the 
Constitution,  and  the  creation  by  acts  of  Congress,  of  executive  departments, 
which  have  varied  in  number  from  four  or  five  to  seven  or  eight,  the  heads  of 
which  are  familiarly  called  cabinet  ministers.  These  aid  him  in  the  per- 
formance of  the  great  duties  of  his  office,  and  represent  him  in  a  thousand 
acts  to  which  it  can  hardly  be  supposed  his  personal  attention  is  called,  and 
thus  he  is  enabled  to  fulfil  the  duty  of  his  great  department,  expressed  in  the 
phrase  that  'he  shall  take  care  that  the  laws  be  faithfully  executed.'  Is  this 
duty  limited  to  the  enforcement  of  acts  of  Congress  or  of  treaties  of  the 
United  States  according  to  their  express  terms,  or  does  it  include  the  rights, 
duties  and  obligations  growing  out  of  the  Constitution  itself,  our  interna- 
tional relations,  and  all  the  protection  implied  by  the  nature  of  the  govern- 
ment under  the  Constitution?"  [The  latter  was  held  to  be  the  correct  view.] 
See,  also,  Wells  v.  Nickles,  104  U.  S.  444,  26  L.  Ed.  S25  (1SS2)  (executive  power 
to  protect  public  lands). 

2  Accord :  In  re  Quarles,  158  U.  S.  532,  15  Sup.  Ct.  959,  39  L.  Ed.  10S0 
(1S93)  (right  of  citizen  to  inform  federal  official  of  violation  of  federal  laws). 
See  In  re  Loney,  134  U.  S.  372,  10  Sup.  Ct.  384,  33  L.  Ed.  949  (1S90)  (state 
cannot  punish  witness  for  perjury  in  federal  proceeding).  Compare  Sexton 
v.  Calif.,  189  U.  S.  319,  23  Sup.  Ct.  543,  47  L.  Ed.  833  (1903)  (state  may  punish 
extortion  under  threat  of  accusation  of  federal  crime) ;  Matter  of  Lamb,  105 
App.  Div.  462,  94  N.  Y.  Supp.  331  (1905)  (state  may  disbar  attorney  for  perjury 
in  federal  court  of  another  state). 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  951 

the  superior  courts  of  the  state  of  Connecticut,  and,  in  that  case,  the 
supreme  court  of  errors  of  the  state  answered  the  question  in  the 
negative.  That,  however,  was  not  because  the  ordinary  jurisdiction  of 
the  superior  courts,  as  defined  by  the  Constitution  and  laws  of  the 
state,  was  deemed  inadequate  or  not  adapted  to  the  adjudication  of 
such  a  case,  but  because  the  supreme  court  of  errors  was  of  opinion 
(1)  that  the  congressional  act  impliedly  restricts  the  enforcement  of 
the  rights  which  it  creates  to  the  federal  courts,  and  (2)  that,  if  this 
be  not  so,  the  superior  courts  are  at  liberty  to  decline  cognizance  of 
actions  to  enforce  rights  arising  under  that  act,  because  (a)  the  policy 
manifested  by  it  is  not  in  accord  with  the  policy  of  the  state  respect- 
ing the  liability  of  employers  to  employes  for  injuries  received  by 
the  latter  while  in  the  service  of  the  former,  and  (b)  it  would  be  in- 
convenient and  confusing  for  the  same  court,  in  dealing  with  cases  of 
the  same  general  class,  to  apply  in  some  the  standards  of  right  es- 
tablished by  the  congressional  act,  and  in  others  the  different  standards 
recognized  by  the  laws  of  the  state. 

"We  are  quite  unable  to  assent  to  the  view  that  the  enforcement  of 
the  rights  which  the  congressional  act  creates  was  originally  intended 
to  be  restricted  to  the  federal  courts.  *  *  *  Because  of  some  gen- 
eral observations  in  the  opinion  of  the  supreme  court  of  errors,  and  to 
the  end  that  the  remaining  ground  of  decision  advanced  therein  may 
be  more  accurately  understood,  we  deem  it  well  to  observe  that  there 
is  not  here  involved  any  attempt  by  Congress  to  enlarge  or  regulate  the 
jurisdiction  of  state  courts,  or  to  control  or  affect  their  modes  of  pro- 
cedure, but  only  a  question  of  the  duty  of  such  a  court,  when  its  or- 
dinary jurisdiction,  as  prescribed  by  local  laws,  is  appropriate  to  the 
occasion,  and  is  invoked  in  conformity  with  those  laws,  to  take  cog- 
nizance of  an  action  to  enforce  a  right  of  civil  recovery  arising  un- 
der the  act  of  Congress,  and  susceptible  of  adjudication  according  to 
the  prevailing  rules  of  procedure.  We  say  'when  its  ordinary  juris- 
diction, as  prescribed  by  local  laws,  is  appropriate  to  the  occasion,' 
because  we  are  advised  by  the  decisions  of  the  supreme  court  of  er- 
rors that  the  superior  courts  of  the  state  are  courts  of  general  juris- 
diction, are  empowered  to  take  cognizance  of  actions  to  recover  for 
personal  injuries  and  for  death,  and  are  accustomed  to  exercise  that 
jurisdiction,  not  only  in  cases  where  the  right  of  action  arose  under  the 
laws  of  that  state,  but  also  in  cases  where  it  arose  in  another  state, 
under  its  laws,  and  in  circumstances  in  which  the  laws  of  Connecticut 
give  no  right  of  recovery,  as  where  the  causal  negligence  was  that  of 
a  fellow  servant. 

"The  suggestion  that  the  act  of  Congress  is  not  in  harmony  with 
the  policy  of  the  state,  and  therefore  that  the  courts  of  the  state  are 
free  to  decline  jurisdiction,  is  quite  inadmissible,  because  it  presup- 
poses what  in  legal  contemplation  does  not  exist.  When  Congress,  in 
the  exertion  of  the  power  confided  to  it  by  the  Constitution,  adopted 


952  THE   FEDERAL  GOVERNMENT  (Part  3 

that  act,  it  spoke  for  all  the  people  and  all  the  states,  and  thereby  estab- 
lished a  policy  for  all.  That  policy  is  as  much  the  policy  of  Connecti- 
cut as  if  the  act  had  emanated  from  its  own  legislature,  and  should  be 
respected  accordingly  in  the  courts  of  the  state.  As  was  said  by  this 
court  in  Claflin  v.  Houseman,  93  U.  S.  130,  136,  137,  23  L.  Ed.  833, 
838,  839 : 

"  'The  laws  of  the  United  States  are  laws  in  the  several  states,  and 
just  as  much  binding  on  the  citizens  and  courts  thereof  as  the  state 
laws  are.  The  United  States  is  not  a  foreign  sovereignty  as  regards 
the  several  states,  but  is  a  concurrent,  and,  within  its  jurisdiction,  par- 
amount, sovereignty.  *  *  *  If  an  act  of  Congress  gives  a  penalty 
[meaning  civil  and  remedial]  to  a  party  aggrieved,  without  specifying 
a  remedy  for  its  enforcement,  there  is  no  reason  why  it  should 
not  be  enforced,  if  not  provided  otherwise  by  some  act  of  Con- 
gress, by  a  proper  action  in  a  state  court.  The  fact  that  a  state 
court  derives  its  existence  and  functions  from  the  state  laws  is 
no  reason  why  it  should  not  afford  relief;  because  it  is  subject  also 
to  the  laws  of  the  United  States,  and  is  just  as  much  bound  to  rec- 
ognize these  as  operative  within  the  state  as  it  is  to  recognize  the  state 
laws.  The  two  together  form  one  system  of  jurisprudence,  which  con- 
stitutes the  law  of  the  land  for  the  state;  and  the  courts  of  the  two 
jurisdictions  are  not  foreign  to  each  other,  nor  to  be  treated  by  each 
other  as  such,  but  as  courts  of  the  same  country,  having  jurisdiction 
partly  different  and  partly  concurrent.  *  *  *  It  is  true,  the  sov- 
ereignties are  distinct,  and  neither  can  interfere  with  the  proper  ju- 
risdiction of  the  other,  as  was  so  clearly  shown  by  the  Chief  Justice 
Taney,  in  the  case  of  Ableman  v.  Booth,  21  How.  506,1  16  L.  Ed.  169; 
and  hence  the  state  courts  have  no  power  to  revise  the  action  of  the 
federal  courts,  nor  the  federal  the  state,  except  where  the  federal  Con- 
stitution or  laws  are  involved.  But  this  is  no  reason  why  the  state 
courts  should  not  be  open  for  the  prosecution  of  rights  growing  out 

i  In  this  case  (1S59),  at  page  516  (denying  that  a  state  court  could  by  writ 
of  habeas  corpus  authorize  interference  with  a  person  shown  to  be  held  in 
custody  by  a  federal  officer  under  color  of  federal  authority)  Taney,  C.  J., 
said :  "The  powers  of  the  general  government,  and  of  the  state,  although  both 
exist  and  are  exercised  within  the  same  territorial  limits,  are  yet  separate 
and  distinct  sovereignties,  acting  separately  and  independently  of  each  oth- 
er within  their  respective  spheres.  And  the  sphere  of  action  appropriated  to 
the  United  States  is  as  far  beyond  the  reach  of  the  judicial  process  issued  by 
a  state  judge  or  a  state  court,  as  if  the  line  of  division  was  traced  by  land- 
marks and  monuments  visible  to  the  eye.  And  the  state  of  Wisconsin  had  no 
more  power  to  authorize  these  proceedings  of  its  judges  and  courts,  than  it 
would  have  had  if  the  prisoner  had  been  confined  in  Michigan,  or  in  any 
other  state  of  the  Union,  for  an  offence  against  the  laws  of  the  state  in 
which  he  was  imprisoned." 

So  Tarble's  Case,  13  Wall.  397,  20  L.  Ed.  597  (1S72).  But  the  United 
States  courts  may  release  ou  habeas  corpus,  from  the  custody  of  state  officers, 
persons  whose  alleged  offences  were  committed  under  federal  authority.  Ex 
parte  Royall,  117  U.  S.  241,  6  Sup.  Ct  734,  29  L.  Ed.  S68  (1SS6).  Compare 
Robb  v.  Connolly,  111  U.  S.  624,  4  Sup.  Ct.  544,  28  L.  Ed.  542  (1SS4);  Whitten 
v.  Tomlinson,  160  U.  S.  231,  16  Sup.  Ct  297,  40  L.  Ed.  406  (1895). 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  Oij'.i 

of  the  laws  of  the  United  States,  to  which  their  jurisdiction  is  compe- 
tent, and  not  denied.' 

"We  are  not  disposed  to  believe  that  the  exercise  of  jurisdiction 
by  the  state  courts  will  be  attended  by  any  appreciable  inconvenience 
or  confusion;  but,  be  this  as  it  may,  it  affords  no  reason  for  declining 
a  jurisdiction  conferred  by  law.  The  existence  of  the  jurisdiction 
creates  an  implication  of  duty  to  exercise  it,  and  that  its  exercise  may 
be  onerous  does  not  militate  against  that  implication."  a 


UNITED  STATES  v.  De  WITT  (1870)  9  Wall.  41,  43^5,  19  L. 
Ed.  593,  Mr.  Chief  Justice  Chase  (holding  invalid  a  federal  statute 
forbidding  any  one  to  offer  for  sale  petroleum  illuminating  oil  below  a 
certain  fire  test) : 

"That  Congress  has  power  to  regulate  commerce  with  foreign  na- 
tions and  among  the  several  states,  and  with  the  Indian  tribes,  the 
Constitution  expressly  declares.  But  this  express  grant  of  power  to 
regulate  commerce  among  the  states  has  always  been  understood  as 
limited  by  its  terms ;  and  as  a  virtual  denial  of  any  power  to  interfere 

i  Contra:  Martin  v.  Hunter's  Lessee,  1  Wheat.  304.  330  336,  I  I..  Ed  97 
(1816)  (semble):  Robertson  v.  Baldwin.  165  V.  S.  275,  279,  17  Sup.  Ct  326, 
41  Ll  Ed.  715  (1897)  (semblei.  See  Levin  v.  U.  S.,  128  Fed.  828,  63  C.  C.  A. 
470  (1904);  Galveston,  etc..  By.  v.  Wallace,  223  U.  S.  4S1,  490-491,  32  Sup. 
Ct.  205,  50  L.   Ed.  516  (1012). 

Where  not  prohiMted  by  a  state,  the  United  States  has  always  made  use  of 
state  courts,  judges,  and  other  officials  in  various  federal  administrative  pro- 
ceedings. See  Prigg  v.  Penn.,  16  Pet.  539,  10  L.  Ed.  1060  (1842)  (return  of 
fugitive  slaves);  U.  S.  v.  Jones,  109  U.  S.  513,  3  Sup.  Ct  346,  27  I.,  Ed  L015 
(lv^:;i  (eminent  domain  proceedings! :  Robertson  v.  Baldwin,  165  I".  S.  275, 
17  Sup.  Ct  326,  41  L.  Ed.  715  (1S97)  (arrest  for  federal  offences);  Holmgren 
v.  D.  S.,  217  U.  S.  509.  30  Sup.  Ct  58S,  54  L.  Ed.  861,  19  Ann.  Cas.  778  (1910) 
(naturalization  of  aliens). 

Sometimes  the  states  have  themselves  condemned  land  for  federal  pur- 
poses. Kohl  v.  U.  S.,  91  U.  S.  367,  373,  23  L.  Ed.  449  (1876)  Bee  the  lan- 
guage of  the  latter  part  of  the  extract  from  Ft  Leavenworth  R.  It.  Co.  v. 
Lowe,  printed  ante.  p.  947,  note.  In  executing  the  federal  draft  acts  during 
the  Civil  War  the  state  governors  were  required  to  do  various  acts  and  to  ap- 
point various  federal  officers.  See  in  re  Griner,  16  Wis.  428  (1863  :  Matter 
of  Spangler,  11  Mich.  298  (1863);  Druecker  v.  Salomon,  21  Wis.  621,  94  Am. 
Dec.  571  (1807).  See  also  Van  Brocklin  v.  Tetin..  post.  p.  1305,  la 
of  note  2. 

In  Kentucky  v.  Dennison.  24  How.  60,  10S,  16  L.  Ed.  717  (1861),  it  was  de- 
nied, semble,  thai  Congress  could  Impose  any  duty  upon  a  state  officer,  as 
such,  and  compel  its  performance. 

It    was  an   earlv   practice,  generally   acquiesced   in   by    I  for  the 

United  States  to  give  to  the  suite  courts  Jurisdiction  of  suits  for  the  enforce- 

i    the  federal   revenue  laws.     See  Kentucky  v.  Dennison.  Jl   l 
L08  109    16  U  Ed,  717  (1861);    Claflln  v.  Houseman,  93  U.  8.  130,  140,  23  I.. 
Ed.  833  (1876);    0.  S.   v.  Junes,  109  D.  S.  513,  519  520,  3  Sup.  Ct  346 
Ed.   1015  (1883).    Some  of  the  state  courts  refused  to  exercise  this  Jurisdic- 
tion, i  .  s.  v.  Lathrop,  17  Johns.  (N.  Y.)    i  (1819  ;    My  v.   Peck,  7  Conn.  239 
(1828);    and  this  refusal   was  approved  in   Huntington   v.  -M trill.    146   O.    S, 
657,  672,    L3   Sup.   Ct  224,  86   L.    Ed.   1123   (1892),   upon  the  ground   t 
sovereign  could  polled  to  ei  in  of  another 

pare   Houston    V.   Moor...  r,    Wheat.    1.   5  L.    Ed.    19   (1820),  where   B   Stat 

ontary  enforcement  of  a  federal  penalty,  L\  express  statute,  was  upheld. 


954  THE  FEDERAL  GOVERNMENT  (Part  3 

with  the  internal  trade  and  business  of  the  separate  states;  except, 
indeed,  as  a  necessary  and  proper  means  for  carrying  into  execution 
some  other  power  expressly  granted  or  vested. 

"It  has  been  urged  in  argument  that  the  provision  under  which  this 
indictment  was  framed  is  within  this  exception;  that  the  prohibition 
of  the  sale  of  the  illuminating  oil  described  in  the  indictment  was  in 
aid  and  support  of  the  internal  revenue  tax  imposed  on  other  illumi- 
nating oils.  And  we  have  been  referred  to  provisions,  supposed  to  be 
analogous,  regulating  the  business  of  distilling  liquors,  and  the  mode 
of  packing  various  manufactured  articles;  but  the  analogy  appears  to 
fail  at  the  essential  point,  for  the  regulations  referred  to  are  restricted 
to  the  very  articles  which  are  the  subject  of  taxation,  and  are  plainly 
adapted  to  secure  the  collection  of  the  tax  imposed ;  while,  in  the  case 
before  us,  no  tax  is  imposed  on  the  oils  the  sale  of  which  is  prohibited. 
If  the  prohibition,  therefore,  has  any  relation  to  taxation  at  all,  it  is 
merely  that  of  increasing  the  production  and  sale  of  other  oils,  and, 
consequently,  the  revenue  derived  from  them,  by  excluding  from  the 
market  the  particular  kind  described. 

"This  consequence  is  too  remote  and  too  uncertain  to  warrant  us  in 
saying  that  the  prohibition  is  an  appropriate  and  plainly  adapted 
means  for  carrying  into  execution  the  power  of  laying  and  collecting 
taxes.1  There  is,  indeed,  no  reason  for  saying  that  it  was  regarded  by 
Congress  as  such  a  means,  except  that  it  is  found  in  an  act  imposing 
internal  duties.  Standing  by  itself,  it  is  plainly  a  regulation  of  police  ; 
and  that  it  was  so  considered,  if  not  by  the  Congress  which  enacted  it. 
certainly  by  the  succeeding  Congress,  may  be  inferred  from  the  cir- 
cumstance, that  while  all  special  taxes  on  illuminating  oils  were  re- 
pealed by  the  Act  of  July  20th,  1868,  which  subjected  distillers  and 
refiners  to  the  tax  on  sales  as  manufacturers,  this  prohibition  was  left 
unrepealed.  As  a  police  regulation,  relating  exclusively  to  the  internal 
trade  of  the  states,  it  can  only  have  effect  where  the  legislative  au- 
thority of  Congress  excludes,  territorially,  all  state  legislation,  as  for 
example,  in  the  District  of  Columbia.  Within  state  limits,  it  can  have 
no  constitutional  operation."  " 

i  And  so  the  License  Tax  Cases,  post,  p.  1025:  "Congress  cannot  authorize 
a  trade  or  business  within  a  state  in  order  to  tax  it." 

-  Accord  (federal  legislation  not  within  the  scope  of  any  granted  power) : 
U.  S.  v.  Reese,  92  U.  S.  214,  23  L.  Ed.  563  (1876) ;  U.  S.  v.  Harris,  106  U.  S. 
629,  1  Sup.  Ct.  601,  27  L.  Ed.  290  (1883);  Civil  Rights  Cases,  ante,  p.  240; 
Keller  v.  U.  S.,  post,  p.  982. 

Regulation  Incidental  to  Poweb  of  Taxation. — As  Incidental  to  its  con- 
ceded powers  of  taxation,  the  United  States  has  considerable  power  to  reg- 
ulate the  character,  size,  and  appearance  of  the  articles  taxed.  See  In  re  Kol- 
lock,  165  U.  S.  526,  17  Sup.  Ct,  444,  41  L.  Ed.  813  (1S97)  (oleomargarine  sub- 
ject to  federal  excise  tax  required  to  be  branded  in  particular  maimer) ;  Fel- 
senheld  v.  United  States,  1S6  U.  S.  126,  132,  133,  22  Sup.  Ct.  740,  40  L.  Ed. 
1085  (1902)  (prohibition  against  packing  in  taxed  tobacco  package  any  other 
article,  held  to  forbid  inclusion  of  even  a  thin  paper  coupon  offering  premiums 
to  buyers),  Brewer,  J.,  saying: 

"It  seems  to  us  that,  in  the  rules  and  regulations  for  the  manufacture  and 
handling  of  goods  which  are  subjected  to  an  internal  revenue  tax,  Congress 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  955 


MONONGAHELA  NAVIGATION  COMPANY  v.  UNITED 
STATES  (1893)  148  U.  S.  312,  324,  335-337,  341,  343,  13  Si 
622,  37  L.  Ed.  463,  Mr.  Justice  Beewek  (holding  invalid  a  federal  stat- 
ute authorizing  condemnation  proceedings  to  acquire  a  lock  and  dam 
constructed  by  the  Monongahela  Company  under  a  franchise  from 
Pennsylvania  to  collect  tolls  for  the  use  thereof,  the  statute  expressly 
forbidding  the  payment  of  anything  for  said  franchise) : 

"The  question  presented  is  not  whether  the  United  States  has  the 
power  to  condemn  and  appropriate  this  property  of  the  Monongahela 
Company,  for  that  is  conceded,  but  how  much  it  must  pay  as  com- 
pensation therefor.  Obviously  this  question,  as  all  others  which  run 
along  the  line  of  the  extent  of  the  protection  the  individual  has  un- 
der the  Constitution  against  the  demands  of  the  government,  is  of 
importance,  for  in  any  society  the  fullness  and  sufficiency  of  the  se- 
curities which  surround  the  individual  in  the  use  and  enjoyment  of 
his  property  constitute  one  of  the  most  certain  tests  of  the  character 
and  value  of  the  government.  The  first  10  amendments  to  the  Con- 
stitution, adopted  as  they  were  soon  after  the  adoption  of  the  Consti- 
tution, are  in  the  nature  of  a  bill  of  rights,  and  were  adopted  in  order 
to  quiet  the  apprehension  of  many  that  without  some  such  declara- 
tion of  rights  the  government  would  assume,  and  might  be  held  to 
possess,  the  power  to  trespass  upon  those  rights  of  persons  and  prop- 
erty which  by  the  Declaration  of  Independence  were  affirmed  to  be 
inalienable  rights.     *     *     * 

"Upon  what  does  the  right  of  Congress  to  interfere  in  the  matter 
•-est?  Simply  upon  the  power  to  regulate  commerce.  This  is  one  of 
the  great  powers  of  the  national  government,  one  whose  existence 
and  far-reaching  extent  have  been  affirmed  again  and  again  by  this 
court.     *     *     * 

may  prescribe  any  rale  or  regulation  which  Is  not  In  Itself  unreasonable ;  that 
it  is  a  perfectly  reasonable  requirement  that  every  package  of  such  goods 
should  contain  nothing  but  the  article  which  Is  taxed:  that  In  order  to  make 
such  a  regulation  constitutional  it  is  not  necessary  that  there  be.  either  ex- 
pressly  or  by  implication,  an  exception  of  those  articles  or  things  which  by  vir- 
tue of  their  minute  size  or  weight  do  not  apparently  affect  the  collection  of  the 
tax.  Congress  may  rightfully  make  the  prohibition  absolute,  and  the  courts 
may  not  draw  a  line  between  the  foreign  substance,  which  Is  trilling  in  size 
or  weight,  and  that  which  is  of  appreciable  size  and  weight,  and  hold  In 
reference  to  a  particular  package  the  act  valid  if  the  size  or  weight  is  ap- 
preciable, and  invalid  if  it  is  not. 

ng  the  regulations  proscribed  by  Congress  in  Its  Internal  revenue  leg- 
islation are  many  which  are  purely  arbitrary,  or  at  least  the  necessity  Of 
which  for  the  collection  of  taxes  is  not  apparent  For  Instance,  Congress  has 
directed  (Rev.  Stat.  3392)  that  cigars  shall  be  put  up  in  boxes  containing  25. 
50,  100,  250,  or  500  each.  There  is  no  special  efficacy  in  either  Of  those  num- 
bers. B  ixes  containing  15,  80,  or  00  cigars  would  apparently  afford  just  the 
same  facilities  for  taxation,  and  yet.  can  there  be  a  doubt  thai  I 
make  such  a  rule  and  compel  each  manufacturer  to  abide  thereby?  It  has  a 
right  to  select,  and  when  it  has  made  a  selection,  although  there  ma 
special  reasons  for  the  specific  numbers,  and  they  are  In  fact  arbitrarily  se- 
lected, it  may.  for  purposes  of  uniformity,  compel  compliance  with  the  rule." 


956  THE   FEDERAL  GOVERNMENT  (Part  3 

"But,  like  the  other  powers  granted  to  Congress  by  the  Constitution, 
the  power  to  regulate  commerce  is  subject  to  all  the  limitations  im- 
posed by  such  instrument,  and  among  them  is  that  of  the  fifth  amend- 
ment, we  have  heretofore  quoted.  Congress  has  supreme  control  over 
the  regulation  of  commerce,  but  if,  in  exercising  that  supreme  con- 
trol, it  deems  it  necessary  to  take  private  property,  then  it  must  pro- 
ceed subject  to  the  limitations  imposed  by  this  fifth  amendment,  and 
can  take  only  on  payment  of  just  compensation.  The  power  to  reg- 
ulate commerce  is  not  given  in  any  broader  terms  than  that  to  estab- 
lish post  offices  and  post  roads ;  but,  if  Congress  wishes  to  take  pri- 
vate property  upon  which  to  build  a  post  office,  it  must  either  agree 
upon  the  price  with  the  owner,  or  in  condemnation  pay  just  com- 
pensation therefor.  And  if  that  property  be  improved  under  author- 
ity of  a  charter  granted  by  the  state,  with  a  franchise  to  take  tolls  for 
the  use  of  the  improvement,  in  order  to  determine  the  just  compensa- 
tion such  franchise  must  be  taken  into  account.  *  *  *  If  a  man's 
house  must  be  taken,  that  must  be  paid  for ;  and,  if  the  property  is 
held  and  improved  under  a  franchise  from  the  state,  with  power  to 
take  tolls,  that  franchise  must  be  paid  for,  because  it  is  a  substantial 
element  in  the  value  of  the  property  taken.  So,  coming  to  the  case 
before  us,  while  the  power  of  Congress  to  take  this  property  is  un- 
questionable, yet  the  power  to  take  is  subject  to  the  constitutional  lim- 
itation of  just  compensation.  It  should  be  noticed  that  here  there  is 
unquestionably  a  taking  of  the  property,  and  not  a  mere  destruction, 
*  *  *  and  *  *  *  that,  after  taking  this  property,  the  govern- 
ment will  have  the  right  to  exact  the  same  tolls  the  navigation  com- 
pany has  been  receiving.  It  would  seem  strange  that  if,  by  asserting 
its  right  to  take  the  property,  the  government  could  strip  it  largely 
of  its  value,  destroying  all  that  value  which  comes  from  the  receipt  of 
tolls,  and  having  taken  the  property  at  this  reduced  valuation,  im- 
mediately possess  and  enjoy  all  the  profits  from  the  collection  of  the 
same  tolls.     *     *     * 

"The  theory  of  the  government  seems  to  be  that  the  right  of  the 
navigation  company  to  have  its  property  in  the  river,  and  the  fran- 
chises given  by  the  state  to  take  tolls  for  the  use  thereof,  are  condi- 
tional only,  and  that  whenever  the  government,  in  the  exercise  of  its 
supreme  power,  assumes  control  of  the  river,  it  destroys  both  the  right 
of  the  company  to  have  its  property  there  and  the  franchise  to  take 
tolls.  But  this  is  a  misconception.  The  franchise  is  a  vested  right. 
The  state  has  power  to  grant  it.  It  may  retake  it,  as  it  may  take  other 
private  property,  for  public  uses,  upon  the  payment  of  just  compensa- 
tion. A  like,  though  a  superior,  power  exists  in  the  national  gov- 
ernment. It  may  take  it  for  public  purposes,  and  take  it  even  against 
the  will  of  the  state ;  but  it  can  no  more  take  the  franchise  which  the 
state  has  given  than  it  can  any  private  property  belonging  to  an  indi- 
vidual.    *     *     * 


Ch.  14)  OENBRaX  scon:  OF  PEDBBAL  powehs  'Jo7 

"It  is  also  suggested  that  the  government  does  not  take  this  fran- 
chise ;  that  it  does  not  need  any  authority  from  the  state  for  the  ex- 
action pf  tolls,  if  it  desires  to  exact  them ;  that  it  only  appropriates 
the  tangible  property,  and  then  either  makes  the  use  of  it  free  to  all, 
or  exacts  such  tolls  as  it  sees  fit,  or  transfers  the  property  to  a  new 
corporation  of  its  own  creation,  with  such  a  franchise  to  take  tolls  as 
it  chooses  to  give.  But  this  franchise  goes  with  the  property ;  and 
the  navigation  company,  which  owned  it,  is  deprived  of  it.  The  gov- 
ernment takes  it  away  from  the  company,  whatever  use  it  may  make 
of  it ;  and  the  question  of  just  compensation  is  not  determined  by  the 
value  to  the  government  which  takes,  but  the  value  to  the  individual 
from  whom  the  property  is  taken  ;  and  when  by  the  taking  of  the 
tangible  property  the  owner  is  actually  deprived  of  the  franchise  to 
collect  tolls,  just  compensation  requires  payment,  not  merely  of  the 
value  of  the  tangible  property  itself,  but  also  of  that  of  the  franchise 
of  which  he  is  deprived."  * 


In  re  RAPIER. 

(Supreme  Court  of  the  United  States,  1892.     143  U.  S.  110,  12  Sup.  Ct.  374, 
.'it;  I*  Ed.  93.) 

[Petitions  for  habeas  corpus  for  discharge  from  arrest  under  indict- 
ments charging  the  mailing  of  a  newspaper  and  a  letter  in  violation  of 
the  federal  Anti-Lottery  Act  (Act  Cong.  Sept.  19,  1890,  c.  908,  26 
Stat.  465  [U.  S.  Comp.  St.  1901,  p.  2659J),  which  forbade  the  mailing, 
carriage,  or  delivery  by  mail  of  any  matter  concerning  lotteries.] 

Mr.  Chief  Justice  Fuller.  *  *  *  The  question  for  determina- 
tion relates  to  the  constitutionality  of  section  3894  of  the  Revised 
Statutes  as  amended  by  [26  Stat.  465,  c.  908].  In  Ex  parte  Jackson, 
96  U.  S.  727,  24  L.  Ed.  877,  it  was  held  that  the  power  vested  in 
Congress  to  establish  post-offices  and  post-roads  embraced  the  regu- 
lation of  the  entire  postal  system  of  the  country,  and  that  under  it 
Congress  may  designate  what  may  be  carried  in  the  mail  and  what 
excluded ;  that  in  excluding  various  articles  from  the  mails  the  object 
of  Congress  is  not  to  interfere  with  the  freedom  of  the  press  or  with 
any  other  rights  of  the  people,  but  to  refuse  the  facilities  for  the  dis- 
tribution of  matter  deemed  injurious  by  Congress  to  the  public  morals; 
and  that  the  transportation  in  any  other  way  of  matters  excluded  from 
the  mails  would  not  be  forbidden.  Unless  we  are  prepared  to  over- 
rule that  decision,  it  is  decisive  of  the  question  before  us. 

»  Accord  (federal  legislation  exercising  granted  powers  in  a  forbidden  man- 
ner!:   IN  pan,'  Garland,  4  Wall.  333,   18  L.  Ed.  366  (1867);    Boyd  v.   D    S., 
116  0.  S.  616,  6  sup.  Ct  524,  29  I*  Ed.  746  (1886);    Pollock  v.  l 
Trust  Co.,   138  (".  s.  601,  15  Sup.  Ct  912,  39   L.  Bd.   1108  (1895);    Etassmus- 
m  ii  v.  D.  S.,  197  1*.  S,  516,  25  Sup.  Ct  514,  16  I..  Ed.  862  (1£05), 

As  to  tlie  necessity  of  making  compensation  for  franchisee  destroyed  when 
property  is  taken  by  eminent  domain,  see,  also,  U.  S.  v.  C'handler-Punl>ar  Co., 
anle,  p.  7U1,  note. 


958  THE   FEDERAL   GOVERNMENT  (Part  3 

It  is  argued  that  in  Jackson's  Case  it  was  not  urged  that  Congress 
had  no  power  to  exclude  lottery  matter  from  the  mails ;  but  it  is  con- 
ceded that  the  point  of  want  of  power  was  passed  upon  in  the  opinion. 
This  was  necessarily  so,  for  the  real  question  was  the  existence  of  the 
power,  and  not  the  defective  exercise  of  it.  And  it  is  a  mistake  to 
suppose  that  the  conclusion  there  expressed  was  arrived  at  without 
deliberate  consideration.  It  is  insisted  that  the  express  powers  of 
Congress  are  limited  in  their  exercise  to  the  objects  for  which  they 
were  intrusted,  and  that,  in  order  to  justify  Congress  in  exercising 
any  incidental  or  implied  powers  to  carry  into  effect  its  express  au- 
thority, it  must  appear  that  there  is  some  relation  between  the  means 
employed  and  the  legitimate  end.  This  is  true ;  but,  while  the  legiti- 
mate end  of  the  exercise  of  the  power  in  question  is  to  furnish  mail 
facilities  for  the  people  of  the  United  States,  it  is  also  true  that  mail 
facilities  are  not  required  to  be  furnished  for  every  purpose. 

The  states,  before  the  Union  was  formed,  could  establish  post-offices 
and  post-roads,  and  in  doing  so  could  bring  into  play  the  police  power 
in  the  protection  of  their  citizens  from  the  use  of  the  means  so  pro- 
vided for  purposes  supposed  to  exert  a  demoralizing  influence  upon  the 
people.  When  the  power  to  establish  post-offices  and  post-roads  was 
surrendered  to  the  Congress,  it  was  as  a  complete  power ;  and  the 
grant  carried  with  it  the  right  to  exercise  all  the  powers  which  made 
that  power  effective.1  It  is  not  necessary  that  Congress  should  have 
the  power  to  deal  with  crime  or  immorality  within  the  states  in  order 
to  maintain  that  it  possesses  the  power  to  forbid  the  use  of  the  mails 
in  aid  of  the  perpetration  of  crime  or  immorality. 

The  argument  that  there  is  a  distinction  between  mala  prohibita  and 
mala  in  se,  and  that  Congress  might  forbid  the  use  of  the  mails  in 
promotion  of  such  acts  as  are  universally  regarded  as  mala  in  se, 
including  all  such  crimes  as  murder,  arson,  burglary,  etc.,  and  the  of- 
fense of  circulating  obscene  books  and  papers,  but  cannot  do  so  in  re- 
spect of  other  matters  which  it  might  regard  as  criminal  or  immoral, 
but  which  it  has  no  power  itself  to  prohibit,  involves  a  concession 
which  is  fatal  to  the  contention  of  petitioners,  since  it  would  be  for 

i  "If,  as  has  always  been  understood,  the  sovereignty  of  Congress,  thougn 
limited  to  specified  objects,  is  plenary  as  to  those  objects,  the  power  over 
commerce  with  foreign  nations,  and  among  the  several  states,  is  vested  in 
Congress  as  absolutely  as  it  would  be  In  a  single  government,  having  in  its 
Constitution  the  same  restrictions  on  the  exercise  of  the  power  as  are  found 
in  the  Constitution  of  the  United  States." — Marshall,  C.  J.,  in  Gibbons  v. 
Ogden,  9  Wheat.  1,  197,  6  L.  Ed.  23  (1824). 

"The  power  of  Congress  to  regulate  commerce  among  the  states,  though 
plenary,  cannot  be  deemed  arbitrary,  since  it  is  subject  to  such  limitations  or 
restrictions  as  are  prescribed  by  the  Constitution." — Harlan,  J.,  in  Lottery 
Case,  188  U.  S.  321,  3G2-3G3,  23  Sup.  Ct,  321,  329,  47  L.  Ed.  492  (1903). 

Federal  Police  Powers. — As  to  the  "police  power"  of  the  United  States 
(incidental  to  or  included  within  its  commercial  and  other  powers)  to  forbid 
conduct  prejudicial  to  the  public  welfare,  see  Second  Employers'  Liability 
Cases,  ante.  p.  32S,  and  note,  and  post,  p.  1250:  Lottery  Case,  post,  p.  1230; 
and  Hoke  v.  U.  S.,  post,  p.  1234,  note. 


Ch.  14)  GENHBAL  SCOPE  OF   FEDERAL   POWBB8  359 

Congress  to  determine  what  are  within  and  what  without  the  rule ;  but 
we  think  there  is  no  room  for  such  a  distinction  here,  and  that  it  must 
be  left  to  Congress,  in  the  exercise  of  a  sound  discretion,  to  deter- 
mine in  what  manner  it  will  exercise  the  power  it  undoubtedly  pos- 
sesses. 

We  cannot  regard  the  right  to  operate  a  lottery  as  a  fundamental 
right  infringed  by  the  legislation  in  question ;  nor  are  we  able  to  see 
that  Congress  can  be  held,  in  its  enactment,  to  have  abridged  the 
freedom  of  the  press.  The  circulation  of  newspapers  is  not  proli 
but  the  government  declines  itself  to  become  an  agent  in  the  circu- 
lation of  printed  matter  which  it  regards  as  injurious  to  the  people. 
The  freedom  of  communication  is  not  abridged,  within  the  intent  and 
meaning  of  the  constitutional  provision,  unless  Congress  is  absolutely 
destitute  of  any  discretion  as  to  what  shall  or  shall  not  be  carried  in 
the  mails,  and  compelled  arbitrarily  to  assist  in  the  dissemination  of 
matters  condemned  by  its  judgment  through  the  governmental  agencies 
which  it  controls.  That  power  may  be  abused  furnishes  no  ground 
for  a  denial  of  its  existence,  if  government  is  to  be  maintained  at 
all.     *     *     * 

Writs  denied.1 


McCRAY  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1004.     105  U.  S.  27,  24  Sup.  Ct  760. 
49  L.  Ed.  78,  1  Ann.  Cas.  56JL.) 

[Error  to  the  United  States  District  Court  for  the  Southern  District 
of  Ohio.  A  federal  statute  (Act  Way  9,  1902,  c.  784,  32  Stat.  193  [U. 
S.  Comp.  St.  Supp.  1911,  p.  1339]  amending  Act  Aug.  2,  1SS6,  c.  840, 
24  Stat.  209  [U.  S.  Comp.  St.  1901,  p.  222S])  imposed  a  tax  of  10 
cents  a  pound  upon  all  oleomargarine  artificially  colored  to  resemble 
butter.  The  United  States  sued  AlcCray  for  statutory  penalties  for 
his  failure  to  pay  this  tax  on  certain  oleomargarine,  and  he  a 
that  said  coloration  was  not  unhealthful,  that  said  tax  was  so  high  as 
to  make  it  impossible  to  sell  such  oleomargarine  in  competition  with 
butter,  that  there  was  no  demand  for  uncolored  oleomargarine,  and 
that  the  result  of  said  tax  would  be  to  destroy  the  oleomargarine  in- 
dustry. The  government's  demurrer  to  this  answer  was  sustained 
and  judgment  rendered  thereon.] 

2  As  to  the  possible  extent  of  federal   legislation   under  the  postal  power. 
sco  Dickey  v.  Maysvllle,  etc.,  Road,  7  Dana  (Ky.)  113  (1838);   V.  s.  v.  Bromley, 
12  How.  88,  13  i..  Ed.  905  ns.-.i)  (cf.  U.  s.  R.  B.  K  3981  8093  [D.  s.  Oomp. 
.St.  1001,  pp.  2712-2716]);    Pensacola  Co.  v.  W.  U.  Teleg.  Co.,  96  0.  3,  l.  10 
11,  24  L.  Ed.  708  (187S);   Ex  parte  Jackson,  96  D.  8.  727,  '-'I  L.  Ed.  >77  (1878) 
Congress  may  make  it  a  condition  of  any  periodical  publication  being  admit- 
ted  to   the    mails   under  the   low  Becond-dass   rates   that   it   make  public   tile 
minus  of  its  owners  and  secured  creditors,  and  that   It  marl;  all  pal 
ing  matter  "advertisement"     Lewis  Tub.  Co.  v.  Morgan,  229  U.  S.   i 
Sup.  Ct  807,  57  L.  Ed.  (1913). 


960  THE   FEDERAL  GOVERNMENT  (Part  3 

Mr.  Justice  White.  *  *  *  The  summary  which  follows  em- 
bodies the  propositions  contained  in  the  assignments  of  error,  and  the 
substance  of  the  elaborate  argument  by  which  those  assignments  are 
deemed  to  be  sustained.  Not  denying  the  general  power  of  Congress 
to  impose  excise  taxes,  and  conceding  that  the  acts  in  question,  on 
their  face,  purport  to  levy  taxes  of  that  character,  the  propositions  are 
these: 

(a)  That  the  power  of  internal  taxation  which  the  Constitution  con- 
fers on  Congress  is  given  to  that  body  for  the  purpose  of  raising  rev- 
enue, and  that  the  tax  on  artificially  colored  oleomargarine  is  void  be- 
cause it  is  of  such  an  onerous  character  as  to  make  it  manifest  that  the 
purpose  of  Congress  in  levying  it  was  not  to  raise  revenue,  but  to 
suppress  the  manufacture  of  the  taxed  article. 

(b)  The  power  to  regulate  the  manufacture  and  sale  of  oleomarga- 
rine being  solely  reserved  to  the  several  states,  it  follows  that  the  acts 
in  question,  enacted  by  Congress  for  the  purpose  of  suppressing  the 
manufacture  and  sale  of  oleomargarine,  when  artificially  colored,  are 
void,  because  usurping  the  reserved  power  of  the  states,  and  therefore 
exerting  an  authority  not  delegated  to  Congress  by  the  Constitution. 

(c)  Whilst  it  is  true — so  the  argument  proceeds — that  Congress,  in 
exerting  the  taxing  power  conferred  upon  it,  may  use  all  means  ap- 
propriate to  the  exercise  of  such  power,  a  tax  which  is  fixed  at  such 
a  high  rate  as  to  suppress  the  production  of  the  article  taxed  is  not 
a  legitimate  means  to  the  lawful  end,  and  is  therefore  beyond  the  scope 
of  the  taxing  power.     *     *     * 

(f)  *  *  *  As  the  burdens  which  the  acts  impose  are  so  onerous 
and  so  unjust  as  to  be  confiscatory,  the  acts  are  void,  because  they 
amount  to  a  violation  of  those  fundamental  rights  which  it  is  the  duty 
of  every  free  government  to  protect.     *     *     * 

We  *  *  *  come,  first,  to  ascertain  how  far,  if  at  all,  the  mo- 
tives or  purposes  of  Congress  are  open  to  judicial  inquiry  in  consid- 
ering the  power  of  that  body  to  enact  the  laws  in  question.  Having 
determined  the  question  of  our  right  to  consider  motive  or  purpose, 
we  shall  then  approach  the  propositions  relied  on  by  the  light  of  the 
correct  rule  on  the  subject  of  purpose  or  motive.     *     *     * 

No  instance  is  afforded  from  the  foundation  of  the  government 
where  an  act  which  was  within  a  power  conferred,  was  declared  to  be 
repugnant  to  the  Constitution,  because  it  appeared  to  the  judicial. mind 
that  the  particular  exertion  of  constitutional  power  was  either  unwise 
or  unjust.     *     *     * 

It  is,  however,  argued,  if  a  lawful  power  may  be  exerted  for  an 
unlawful  purpose,  and  thus,  by  abusing  the  power,  it  may  be  made 
to  accomplish  a  result  not  intended  by  the  Constitution,  all  limitations 
of  power  must  disappear,  and  the  grave  function  lodged  in  the  ju- 
diciary, to  confine  all  the  departments  within  the  authority  conferred 
by  the  Constitution,  will  be  of  no  avail.  This,  when  reduced  to  its 
last  analysis,  comes  to  this:    that,  because  a  particular  department  of 


Ch.  14)  GENERAL  SCOPE  OF  FEDERAL  POWERS  961 

the  government  may  exert  its  lawful  powers  with  the  object  or  mo- 
tive of  reaching  an  end  not  justified,  therefore  it  becomes  the  duty 
of  the  judiciary  to  restrain  the  exercise  of  a  lawful  power  wherever 
it  seems  to  the  judicial  mind  that  such  lawful  power  has  been  abused. 
But  this  reduces  itself  to  the  contention  that,  under  our  constitutional 
system,  the  abuse  by  one  department  of  the  government  of  its  lawful 
powers  is  to  be  corrected  by  the  abuse  of  its  powers  by  another  de- 
partment. 

The  proposition,  if  sustained,  would  destroy  all  distinction  between 
the  powers  of  the  respective  departments  of  the  government.  *  * 
It  is,  of  course,  true,  as  suggested,  that  if  there  be  no  authority  in  the 
judiciary  to  restrain  a  lawful  exercise  of  power  by  another  depart- 
ment of  the  government,  where  a  wrong  motive  or  purpose  has  im- 
pelled to  the  exertion  of  the  power,  that  abuses  of  a  power  conferred 
may  be  temporarily  effectual.  The  remedy  for  this,  however,  lies, 
not  in  the  abuse  by  the  judicial  authority  of  its  functions,  but  in  the 
people,  upon  whom,  after  all,  under  our  institutions,  reliance  must 
be  placed  for  the  correction  of  abuses  committed  in  the  exercise  of  a 
lawful  power.  *  *  *  The  decisions  of  this  court  from  the  begin- 
ning lend  no  support  whatever  to  the  assumption  that  the  judiciary 
may  restrain  the  exercise  of  lawful  power  on  the  assumption  that  a 
wrongful  purpose  or  motive  has  caused  the  power  to  be  exerted.  As 
we  have  previously  said :  from  the  beginning  no  case  can  be  found 
announcing  such  a  doctrine,  and,  on  the  contrary,  the  doctrine  of  a 
number  of  cases  is  inconsistent  with  its  existence.     *     *     * 

In  Veazie  I'.ank  v.  Fenno,  8  Wall.  533,  19  L.  Ed.  482,  where  a  tax 
levied  by  Congress  on  the  circulating  notes  of  state  banks  was  assailed 
on  the  ground  that  the  tax  was  intended  to  destroy  the  circulation  of 
such  notes,  and  was,  besides,  the  exercise  of  a  power  to  tax  a  subject 
not  conferred  upon  Congress,  it  was  said,  as  to  the  first  contention  (p. 
548,  L.  Ed.  p.  487):  "It  is  insisted,  however,  that  the  tax  in  tl 
before  us  is  excessive,  and  so  excessive  as  to  indicate  a  purpose  on  the 
part  of  Congress  to  destroy  the  franchise  of  the  bank,  and  is,  there- 
fore, beyond  the  constitutional  power  of  Congress.  The  first  answer 
to  this  is  that  the  judicial  cannot  prescribe  to  the  legislative  depart- 
ment of  the  government  limitations  upon  the  exercise  of  its  acknowl- 
edged powers.  The  power  to  tax  may  be  exercised  oppressively  upon 
persons,  but  the  responsibility  of  the  legislature  is  not  to  the  courts, 
but  to  the  people  by  whom  its  members  are  elected.  So,  if  a  particular 
tax  bears  heavily  upon  a  corporation,  or  a  class  of  corporations,  it 
cannot,  for  that  reason  only,  be  pronounced  contrary  to  the  Constitu- 
tion."    *     *     * 

In  Treat  v.  White,  181  U.  S.  264,  45  L.  Ed.  853,  21  Sup.  Ct.  - 
ferring  to  a  stamp  duty  levied  by  Congress,  it  was  obsen 
L.  Ed.  p.  S55.  Sup.  Ct.  p.  613) :   "The  power  of  Congress  in  this 
tion  is  unlimited.     It  does  not  come  within  the  province  of  this  court 
Hall  Co.nst.L. — 01 


962  THE   FEDERAL   GOVERNMENT  (Part  3 

to  consider  why  agreements  to  sell  shall  be  subject  to  the  stamp  duty, 
and  agreements  to  buy  not.  It  is  enough  that  Congress,  in  this  leg- 
islation, has  imposed  a  stamp  duty  upon  the  one,  and  not  upon  the 
other." 

In  Patton  v.  Brady,  184  U.  S.  608,  46  L.  Ed.  713,  22  Sup.  Ct.  493. 
considering  another  stamp  duty  levied  by  Congress,  it  was  again  said 
(p.  623,  L.  Ed.  p.  720,  Sup.  Ct.  p.  499) :  "That  it  is  no  part  of  the  func- 
tion of  a  court  to  inquire  into  the  reasonableness  of  the  excise,  either 
as  respects  the  amount,  or  the  property  upon  which  it  is  imposed." 

It  being  thus  demonstrated  that  the  motive  or  purpose  of  Congress 
in  adopting  the  acts  in  question  may  not  be  inquired  into,  we  are 
brought  to  consider  the  contentions  relied  upon  to  show  that  the  acts 
assailed  were  beyond  the  power  of  Congress,  putting  entirely  out  of 
view  all  considerations  based  upon  purpose  or  motive. 

1.  Undoubtedly,  in  determining  whether  a  particular  act  is  within 
a  granted  power,  its  scope  and  effect  is  to  be  considered.  Applying 
this  rule  to  the  acts  assailed,  it  is  self-evident  that  on  their  face  the}' 
levy  an  excise  tax.  That  being  their  necessary  scope  and  operation, 
it  follows  that  the  acts  are  within  the  grant  of  power.  The  argument 
to  the  contrary  rests  on  the  proposition  that,  although  the  tax  be  within 
the  power,  as  enforcing  it  will  destroy  or  restrict  the  manufacture  of 
artificially  colored  oleomargarine,  therefore  the  power  to  levy  the  tax 
did  not  obtain.  This,  however,  is  but  to  say  that  the  question  of  power 
depends,  not  upon  the  authority  conferred  by  the  Constitution,  but 
upon  what  may  be  the  consequence  arising  from  the  exercise  of  the 
lawful  authority.  *  *  *  The  proposition  now  relied  upon  was 
urged  in  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup. 
Ct.  747,  and  was  overruled.  *  *  *  [Here  is  quoted  part  of  the 
extract  from  this  case  printed  post,  p.  1309,  note,  under  Snyder  v. 
Bettman.]     *     *     * 

2.  The  proposition  that  where  a  tax  is  imposed  which  is  within  the 
grant  of  powers,  and  which  does  not  conflict  with  any  express  consti- 
tutional limitation,  the  courts  may  hold  the  tax  to  be  void  because  it 
is  deemed  that  the  tax  is  too  high,  is  absolutely  disposed  of  by  the 
opinions  in  the  cases  hitherto  cited.     *     *     * 

4.  Lastly  we  come  to  consider  the  argument  that,  even  though  as 
a  general  rule  a  tax  of  the  nature  of  the  one  in  question  would  be 
within  the  power  of  Congress,  in  this  case  the  tax  should  be  held  not 
to  be  within  such  power,  because  of  its  effect.  This  is  based  on  the 
contention  that,  as  the  tax  is  so  large  as  to  destroy  the  business  of  man- 
ufacturing oleomargarine  artificially  colored  to  look  like  butter,  it  thus 
deprives  the  manufacturers  of  that  article  of  their  freedom  to  engage 
in  a  lawful  pursuit,  and  hence,  irrespective  of  the  distribution  of  pow- 
ers made  by  the  Constitution,  the  taxing  laws  are  void,  because  they 
violate  those  fundamental  rights  which  it  is  the  duty  of  every  free  gov- 
ernment to  safeguard,  and  which,  therefore,  should  be  held  to  be  em- 
braced by  implied,  though  none  the  less  potential,  guaranties,  or,  in 


CIl.  14)  OBNBBAX  SCOPE  OF  FEDERAL    POWERS 

,  any  event,  to  be  within  the  protection  of  the  due  process  clause  of  the 
fifth  amendment. 

Let  us  concede,  for  the  sake  of  argument  only,  the  premise  of  fact 
upon  which  the  proposition  is  based.  Moreover,  concede,  for  the  sake 
of  argument  only,  that  even  although  a  particular  exertion  of  power 
by  Congress  was  not  restrained  by  any  express  limitation  of  the  Con- 
stitution, if,  by  the  perverted  exercise  of  such  power,  so  great  an  abuse 
was  manifested  as  to  destroy  fundamental  rights  which  no  free  gov- 
ernment could  consistently  violate,  that  it  would  be  the  duty  of  the 
judiciary  to  hold  such  acts  to  be  void  upon  the  assumption  that  the 
Constitution,  by  necessary  implication,  forbade  them. 

Such  concession,  however,  is  not  controlling  in  this  case.  This  fol- 
lows when  the  nature  of  oleomargarine,  artificially  colored  to  look 
like  butter,  is  recalled.  As  we  have  said,  it  has  been  conclusively  set- 
tled by  this  court  that  the  tendency  of  that  article  to  deceive  the  pub- 
lic into  buying  it  for  butter  is  such  that  the  states  may,  in  the  exer- 
tion of  their  police  powers,  without  violating  the  due  process  clause 
of  the  fourteenth  amendment,  absolutely  prohibit  the  manufacture  of 
the  article.  It  hence  results,  that  even  although  it  be  true  that  the 
effect  of  the  tax  in  question  is  to  repress  the  manufacture  of  artificially 
colored  oleomargarine,  it  cannot  be  said  that  such  repression  destrovs 
rights  which  no  free  government  could  destroy,  and,  therefore,  no 
ground  exists  to  sustain  the  proposition  that  the  judiciary  may  in- 
voke an  implied  prohibition,  upon  the  theory  that  to  do  so  is  essential 
to  save  such  rights  from  destruction.  And  the  same  considerations 
dispose  of  the  contention  based  upon  the  due  process  clause  of  the 
fifth  amendment.  That  provision,  as  we  have  previously  said,  does 
not  withdraw  or  expressly  limit  the  grant  of  power  to  tax  conferred 
upon  Congress  by  the  Constitution.  From  this  it  follows,  as  we  have 
also  previously  declared,  that  the  judiciary  is  without  authority  to 
avoid  an  act  of  Congress  exerting  the  taxing  power,  even  in  a  case 
where,  to  the  judicial  mind,  it  seems  that  Congress  had.  in  putting 
such  power  in  motion,  abused  its  lawful  authority  by  levying  a  tax 
which  was  unwise  or  oppressive,  or  the  result  of  the  enforcement  of 
which  might  be  to  indirectly  affect  subjects  not  within  the  powers 
delegated  to  Congress.     *     *     * 

Judgment  affirmed.1 

[Fuller,  C.  J.,  and  Brown  and  Pf.ckham,  JJ.,  dissented.] 

ipare  Marshall,  C.  J.,  in  Gibbons  v.  Ocrden.  9  Wheat.  1.  100.  0  L.  Bd  28 
(1824)  (semble):  "Congress  is  not  empowered  to  tax  for  those  purposes  which 
are  within  the  exclusive  province  of  the  states;"  and  the  references  under 
in  v.  Moore,  post,  p.  1088,  note.  Son  Kine  v.  Bnrcer.  6  Com.  I>.  K.  11 
(Australia,  1908)  (federal  tax  on  articles  manufactured  in  states,  dependent  on 
rate  of  wages  paid  therefor,  held  invalid  where  federal  government  without 
power  to  regulate  wages).    But  sec  diss  Ins,  J.,  pp.  LU-127. 

In  Ellis  v.  rutted  States.  208  D.  S  246,  255,  268,  27  Sup.  Ct  600,  51  L, 
Ed.  1017.  11  Ann.  ('as.  689  (1907),  Holmes,  J.,  said  (upholding  a  statute 
forbidding  contractors  to  employ  laborers  upon  federal  public  works  more 
than  eight  hours  a  day) :  "We  see  no  reason  to  deny  to  the  United  starts  the 


964  THE  FEDERAL  GOVERNMENT  (Part  3 

CHAPTER  XV 
FOREIGN  RELATIONS,  INDIANS,  AND  ALIENS 


HAUENSTEIN  v.  LYNHAM  (1880)  100  U.  S.  483,  4S8-*90,  25 
L.  Ed.  628,  Mr.  Justice  Swayne  (upholding  as  against  the  law  of 
Virginia  a  federal  treaty  securing  to  Swiss  citizens,  heirs  of  owners 
of  land  in  the  United  States,  certain  rights  to  the  proceeds  of  a  sale 
thereof) : 

"  'The  sixth  article  of  the  Constitution  *  *  *  provides  that  "all 
treaties  made  or  which  shall  be  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land."  *  *  *  A 
treaty  cannot  be  the  supreme  law  of  the  land,  that  is,  of  all  the  United 
States,  if  any  act  of  a  state  legislature  can  stand  in  its  way.'  *  *  ■* 
Ware  v.  Hylton,  3  Dall.  199  [236].  1  L.  Ed.  568. 

"In  Chirac  v.  Chirac,  2  Wheat.  259,  4  L.  Ed.  234,  it  was  held  by 
this  court  that  a  treaty  with  France  gave  to  her  citizens  the  right  to 
purchase  and  hold  land  in  the  United  States,  removed  the  incapacity 
of  alienage,  and  placed  them  in  precisely  the  same  situation  as  if  they 
had  been  citizens  of  this  country.  The  state  law  was  hardly  adverted 
to,  and  seems  not  to  have  been  considered  a  factor  of  any  importance 
in  this  view  of  the  case.  The  same  doctrine  was  reaffirmed  touching 
this  treaty  in  Carneal  v.  Banks,  10  Wheat.  181,  6  L.  Ed.  297,  and 
with  respect  to  the  British  treaty  of  1794  in  Hughes  v.  Edwards,  9 

power  thus  established  for  the  states.  Like  the  states,  it  may  sanction  the  re- 
quirements made  of  contractors  employed  upon  its  public  works  by  penalties 
in  ease  those  requirements  are  not  fulfilled.  It  would  be  a  strong  thing  to 
say  that  a  legislature  that  had  power  to  forbid  or  to  authorize  and  enforce 
a  contract  had  not  also  the  power  to  make  a  breach  of  it  criminal;  but,  how- 
ever that  may  be,  Congress,  as  incident  to  its  power  to  authorize  and  enforce 
contracts  for  public  works,  may  require  that  they  shall  be  carried  out  only  in 
a  way  consistent  with  its  views  of  public  policy,  and  may  punish  a  depart- 
ure from  that  way.  It  is  true  that  it  has  not  the  general  power  of  legislation 
possessed  by  the  legislatures  of  the  states,  and  it  may  he  true  that  the  ob- 
ject of  this  law  is  of  a  kind  not  subject  to  its  general  control.  But  the  power 
that  it  has  over  the  mode  in  which  contracts  with  the  United  States  shall 
be  performed  cannot  be  limited  by  a  speculation  as  to  motives.  If  the  motive 
be  conceded,  however,  the  fact  that  Congress  has  not  general  control  over  the 
conditions  of  labor  does  not  make  unconstitutional  a  law  otherwise  valid,  be- 
cause the  purpose  of  the  law  is  to  secure  to  it  certain  advantages,  so  far 
as  the  law  goes." 

Accord:  Sharpless  v.  Mavor,  ante,  at  p.  36,  and  note  2;  Fredericton  v. 
Queen,  ::  Can.  S.  C.  r,05.  532-534  (Canada.  1880). 

ilso,  Lottery  Case,  post,  p.  1230,  and  Hoke  v.  U.  S.,  post,  p.  1234,  note. 
The  constitutional  arguments  for  and  against  the  exercise  of  the  federal  com- 
mercial powers  to  promote  domestic  manufactures  are  briefly  presented  in  2 
Story,  Coinni.  on  Const.  §§  1077-1095.  See  also  United  States  v.  Realty  Co., 
ante,  pp.  604,  605,  note  (federal  power  to  tax  to  discharge  moral  obligation 
based  on  law  assumed  to  be  unconstitutional.). 


Ch.  15)  FOKBiCN   BELATIONS,  INDIANS,  AND    ALIENS  905 

Wheat.  4S9,  6  L.  Ed.  142.  A  treaty  stipulation  may  be  effectual  to 
protect  the  land  of  an  alien  from  forfeiture  by  escheat  under  the 
la\\>  of  a  state.  Orr  v.  Hodgeson,  4  Wheat.  453,  4  L.  Ed.  013.  By 
the  British  treaty  of  1794,  'all  impediment  of  alienage  was  absolutely 
levelled  with  the  ground  despite  the  laws  of  the  states.  It  is  the  di- 
rect constitutional  question  in  its  fullest  conditions.  Yet  the  Supreme 
Court  held  that  the  stipulation  was  within  the  constitutional  powers 
of  the  Union.  Fairfax's  Devisees  v.  Hunter's  Lessee,  7  Cranch,  627, 
3  L.  Ed.  453.  See  Ware  v.  Hylton,  3  Dall.  242,  1  L.  Ed.  568.*  8  Op. 
Attys.  Gen.  417.  Mr.  Calhoun,  after  laying  down  certain  exceptions 
and  qualifications  which  do  not  affect  this  case,  says:  'Within  these 
limits  all  questions  which  may  arise  between  us  and  other  powers,  be 
the  subject-matter  what  it  may,  fall  within  the  treaty-making  power 
and  may  be  adjusted  by  it.'  Treatise  on  the  Const,  and  Gov.  of  the 
U.  S.  204. 

"If  the  national  government  has  not  the  power  to  do  what  is  done 
by  such  treaties,  it  cannot  be  done  at  all,  for  the  states  are  expressly 
forbidden  to  'enter  into  any  treaty,  alliance,  or  confederation.'  Const, 
art.  1,  §  10.  *  *  *  We  have  no  doubt  that  this  treaty  is  within 
the  treaty-making  power  conferred  by  the  Constitution.  And  it  is  our 
duty  to  give  it  full  effect."  * 

i  In  Geofroy  v.  Rises.  13.3  U.  S.  2e  26  267,  10  Sup.  Ct.  295 
L.  Ed.  642  (1890),  Field.  J.,  said:  'That  the  treaty  power  of  the  United 
States  extends  to  all  proper  subjects  of  negotiation  between  our  government 
and  the  governments  of  otber  nations  Is  clear.  It  is  also  clear  that  the  pro- 
tection which  should  be  afforded  to  the  one  country  owning  pro]  er- 
ty  In  another,  and  the  manner  in. which  that  property  may  be  transferred,  de- 
vise,1.  or  inherited,  are  fitting  subjects  for  such  negotiation,  and  of  regulation 
by  mutual  stipulations  between  the  two  countries.    «     •     •    The  treaty  power, 

ressed  in  the  Constitution,  is  in   terms  unlimited,  except  by  0 
straiuts  which  are  found  in  that  instrument   against  the  action   of   the   gov- 
ernment, or  of  its  departments,  and  those  arising  from  the  nature  of  I 
eminent  itself,  and  of  that  of  the  states.     It  would  not  be  contended   that  it 
so  far  as  to  authorize  what  the  Constitution  fori. ids,  or  fl  change  in 
the  character  of  the  government,  or  in  that  of  one  of  the  states,  o 
sion  of  any  portion  of  the  territory  of  the  latter,  without  its  consent 
road  Co.  v.  Lowe,  114  U.  S.  525,  541.  5  Sup.  Ct  995,  29  L.  Ed.  264  (18S5).     But, 
with   these  exceptions,  it   if  .1   thai    there  is   any  limit  to  t    i 

tlons   which   can  be   adjusted   touching  any    matter   which    is 

of  negotiation  with  a  foreign  i  Ware  v.  H 

L.  Ed.  568  (1796);  Chirac  v.  Chirac,  2  Wheat.  259,  -1  L,  Ed.  234  (1817);  Hauen- 
stein  v.  Lynham,  100  D.  S.  483,  25  L.  Ed.  62  Ops.  Any.  Gen.  417; 

People  v.  Gerke,  5  Cal.  3S1  (1855)." 

d:     Wyman,  Petitioner,  191  Mass.  276,  77  N.  E  379,  114  Am.  - 
601  (190C)  (eases).    Compare  Kocca  v.  Thompson,  228  !'.  8.  ::17.  32  Sup.  Ct 
207,  56  I..  Ed  453  (1912).    Contra  :    See  W.'  E.  Mikell  in  57  Am.  Law  Bi 
528  H909). 

D  account  of  the  procedure  by  which  a  portion  of  Maine  was  ,  i 
Great   Britain  in  settlement  of  the  loug  pending  northeastern  boundary  dis- 
pute between  the  United  States  and  Great  Bl  nworth  It.  K 
Co.  t.  Lowe,  114  U.  S.  525,  540-541.  5  Sup.  CI 

pare  the  opinion  of  White,  J.,  In  1004,  as 

to  the  power. of  thi  rated"   territory. 

As  to  when  trcatii 

and  private  rights  affected  thereby,  see  Haver  v.  Taker,  9  Wall.  32,  19  U  Ed. 
571  (1870). 


0G6  THE  FEDERAL  GOVERNMENT  (Part  3 

HEAD  MONEY  CASES  (1884)  112  U.  S.  580.  597-599,  5  Sup. 
Ct.  247,  28  L.  Ed.  798,  Mr.  Justice  Miller  (discussing  the  validity  of 
an  act  of  Congress  imposing  upon  vessel  owners  a  tax  of  50  cents 
for  each  alien  passenger  brought  into  the  United  States  from  foreign 
ports,  which  act  was  assumed  to  violate  provisions  of  various  treaties 
with  foreign  nations) : 

"We  are  of  opinion  that,  so  far  as  the  provisions  in  that  act  may 
be  found  to  be  in  conflict  with  any  treaty  with  a  foreign  nation,  they 
must  prevail  in  all  the  judicial  courts  of  this  country.  *  *  *  It 
is  very  difficult  to  understand  how  any  different  doctrine  can  be  sus- 
tained. A  treaty  is  primarily  a  compact  between  independent  nations. 
It  depends  for  the  enforcement  of  its  provisions  on  the  interest  and 
the  honor  of  the  governments  which  are  parties  to  it.  If  these  fail, 
its  infraction  becomes  the  subject  of  international  negotiations  and 
reclamations,  so  far  as  the  injured  party  chooses  to  seek  redress, 
which  may  in  the  end  be  enforced  by  actual  war.  It  is  obvious  that 
with  all  this  the  judicial  courts  have  nothing  to  do  and  can  give  no 
redress.1  But  a  treaty  may  also  contain  provisions  which  confer  cer- 
tain rights  upon  the  citizens  or  subjects  of  one  of  the  nations  residing 
in  the  territorial  limits  of  the  other,  which  partake  of  the  nature  of 
municipal  law,  and  which  are  capable  of  enforcement  as  between  pri- 
vate parties  in  the  courts  of  the  country.  An  illustration  of  this  char- 
acter is  found  in  treaties,  which  regulate  the  mutual  rights  of  citizens 
and  subjects  of  the  contracting  nations  in  regard  to  rights  of  property 
by  descent  or  inheritance,  when  the  individuals  concerned  are  aliens. - 
The  Constitution  of  the  United  States  places  such  provisions  as  these 
in  the  same  category  as  other  laws  of  Congress  by  its  declaration  that 
'this  Constitution  and  the  laws  made  in  pursuance  thereof,  and  all 
treaties  made  or  which  shall  be  made  under  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land.'  A  treaty,  then,  is  a 
law  of  the  land  as  an  act  of  Congress  is,  whenever  its  provisions  pre- 
scribe a  rule  by  which  the  rights  of  the  private  citizen  or  subject  may 
be  determined.  And  when  such  rights  are  of  a  nature  to  be  enforced 
in  a  court  of  justice,  that  court  resorts  to  the  treaty  for  a  rule  of  de- 
cision for  the  case  before  it  as  it  would  to  a  statute.  But  even  in 
this  aspect  of  the  case  there  is  nothing  in  this  law  which  makes  it  ir- 
repealable  or  unchangeable.  The  Constitution  gives  it  no  superiority 
over  an  act  of  Congress  in  this  respect,  which  may  be  repealed  or 

i  [Whenever  a  treaty  is  violated  by  a  subsequent  act  of  Congress]  "the  con- 
sequences in  all  such  cases  give  rise  to  questions  which  must  be  met  by  the 
political  department  of  the  government.  They  are  beyond  the  sphere  of  ju- 
dicial cognizance." — Swayne,  J.,  in  The  Cherokee  Tobacco,  11  Wall.  616,  62], 
20  L.  Ed.  227  (1871).  So,  also,  Whitney  v.  Robertson,  124  U.  S.  190,  194,  195, 
8  Sup.  Ct.  456,  11  L.  Ed.  386  (1S88). 

-  For  other  cases  where  a  treaty  may  operate  directly  without  further  leg- 
islation, see  Baldwin  v.  Franks,  120  U.  S.  678,  703-705,  7  Sup.  Ct.  656,  763, 
30  L.  Ed.  766  (1S87),  in  opinion  of  Field,  J.,  dissenting. 


CI).  15)  FOEEIGN    RELATIONS,  INDIANS,   AND    ALIENS  'J'm 

fnodified  by  an  act  of  a  later  date.*  Nor  is  there  anything  in  its  es- 
sential character,  or  in  the  branches  of  the  government  by  which  the 
treaty  is  made,  which  gives  it  this  superior  sanctity.  A  treaty  is  made 
by  the  President  and  the  Senate.  Statutes  are  made  by  the  President, 
the  Senate,  and  the  House  of  Representatives.  The  addition  of  the  lat- 
ter body  to  the  other  two  in  making  a  law  certainly  does  not  render 
it  less  entitled  to  respect  in  the  matter  of  its  repeal  or  modification 
than  a  treaty  made  by  the  other  two.  If  there  be  any  difference  in 
this  regard,  it  would  seem  to  be  in  favor  of  an  act  in  which  all  three 
of  the  bodies  participate.  And  such  is,  in  fact,  the  case  in  a  declara- 
tion of  war,  which  must  be  made  by  Congress,  and  which,  when  made. 
usually  suspends  or  destroys  existing  treaties  between  the  nations  thus 
at  war.  In  short,  we  are  of  opinion  that,  so  far  as  a  treaty  made  by 
the  United  States  with  any  foreign  nation  can  become  the  subject  of 
judicial  cognizance  in  the  courts  of  this  country,  it  is  subject  to  such 
acts  as  Congress  may  pass  for  its  enforcement,  modification,  or  re- 
peal."* 

»  "It  Is  well  settled  that  In  caro  of  a  conflict  between  an  act  of  Congress 
and  a  treaty — each  being  equally  the  supreme  law  of  the  land — the  one  last 
iu  date  must  prevail  in  the  Courts."-  Harlan.  .1..  in  Hi io  v.  U.  S.,  194  D.  S. 
315,  324,  24  Sup.  Ct  727,  720,  48  L,  Ed.  994  (1904). 

•  "A  treaty  is  in  its  nature  a  contract  between  two  nations,  not  a  legislative 
act  It  dues  not  generally  effect,  of  itself,  the  object  to  be  accomplished,  es- 
pecially so  far  as  its  operation  is  Inf raterrltorial ;  lut  is  carried  into  execu- 
tion by  the  sovereign  power  of  the  respective  parties  to  the  instrument  In 
the  United  States  a  different  principle  la  established.  Our  Constitution  de- 
clares a  treaty  to  be  the  law  of  the  laud.  It  is  consequently  to  be  regarded  In 
courts  of  justice  as  equivalent  to  an  act  of  the  legislature  whenever  it  op- 
erates of  itself,  without  the  aid  of  any  legislative  provision;  hut  when  the 
terms  of  the  stipulation  import  a  contract,  when  either  of  the  parties  engages 
to  perform  a  particular  act,  the  treaty  addresses  Itself  to  the  political,  not  the 
Judicial,  department;  and  the  legislature  must  execute  the  contract  before  it 
can  become  a  rule  for  the  court" — Marshall,  C.  J-,  In  Foster  v.  Neilson.  - 
ret.  253,  314,  7  L.  Ed.  415  (1829).  And  so  Baldwin  v.  Franks,  120  O.  S.  678, 
702-703,  7  Sup.  Ct  05C,  7G:;,  80  L.  Ed.  7G0  (1S87),  in  dissenting  opinion  of 
Field,  J. 

The  question  of  precisely  what  treaty  stipulations  require  federal 
tlon  to  give  them  domestic  enforceability  has  been  much  debated  between 
the  House  of  Representatives  and  the  treaty-making  branches  Of  the  gov- 
ernment. See  1  Butler,  Treaty-Mating  Tower  of  United  state--.  $5  285-811,  for 
a  brief  historical  sketch  of  the  matter.  It  Is  apparently  the  preponderant 
opinion  that  treaty  stipulations  requiring  the  appropriation  of  money,  or  the 
cession  of  territory,  or  affecting  the  exercise  of  the  power  of  federal  taxa- 
tlon,  or  perhaps  requiring  the  exercise  of  any  governmental  power  other  than 
that  Of  enforcing  and  protecting  private  rights,  do  not  become  effective  with- 
out federal  legislation.  See  2  Butler.  Id.  g$  365  -".7 1  (cases).  Nor  may  the 
treaty  power  alone  "Incorporate"  ceiled  territory  into  the  United  States. 
Downes  v.  B  pp.  1003-5. 

The  existence  of  a  treaty  requiring  certain  legislation  for  its  fulfillment 
may,  however,  enable  Congress  to  pass  legislation  otherwise  Incompetent  p. 
it.  See  Harlan.  ,i„  in  Neely  v.  Henkel,  180  1.  s.  109,  121,  21  Sup,  Ct  • 
45  L.  Ed.  448  (1901) :  "The  power  of  Congress  to  make  all  laws  necessary  and 
proper  for  carrying  Into  execution  as  well  the  powers  enumerated  in  - 
8  of  article  I  of  the  Constitution  as  all  others  vested  in  the  government  of  the 
United  states,  or  in  any  department  or  the  officers  thereof,  Includes  the  pow- 
er to  enact  such  legislation  as  is  appropriate  t"  give  efficaey  to  any  stipula- 
tions which  it  Is  competent  for  the  President  by  and  with  the  advice  and  con- 


968  THE   FEDERAL   GOVERNMENT  (Part  3 


UNITED  STATES  v.  ARJONA. 

(Supreme  Court  of  the  United  States,  1S87.    1:20  U.  S.  479,  7  Sup.  Ct.  628, 
30  L.  Ed.  728.) 

[Certificate  of  division  from  the  federal  Circuit  Court  for  the 
Southern  District  of  New  York.  The  defendant  was  indicted  under 
an  appropriate  federal  statute  for  counterfeiting  in  the  United  States 
bank  notes  of  one  of  the  states  of  the  United  States  of  Columbia. 
Upon  a  demurrer  thereto,  the  judges  certified  a  division  of  opinion 
as  to  the  constitutionality  of  said  statute.] 

Mr.  Chief  Justice  Waits.  *  *  *  Congress  has  power  to  make 
all  laws  which  shall  be  necessary  and  proper  to  carry  into  execution 
the  powers  vested  by  the  Constitution  in  the  government  of  the  United 
States  (article  1,  §  8,  cl.  18) ;  and  the  government  of  the  United 
States  has  been  vested  exclusively  with  the  power  of  representing  the 
nation  in  all  its  intercourse  with  foreign  countries.  It  alone  can  "reg- 
ulate commerce  with  foreign  nations"  (article  1,  §  8,  cl.  3);  make 
treaties  and  appoint  ambassadors  and  other  public  ministers  and  con- 
suls (article  2,  §  2,  cl.  2).  A  state  is  expressly  prohibited  from  en- 
tering into  any  "treaty,  alliance,  or  confederation."  Article  1,  §  10, 
cl.  1.  Thus  all  official  intercourse  between  a  state  and  foreign  na- 
tions is  prevented,  and  exclusive  authority  for  that  purpose  given  to 
the  United  States.  The  national  government  is  in  this  way  made  re- 
sponsible to  foreign  nations  for  all  violations  by  the  United  States 
of  their  international  obligations,  and  because  of  this  Congress  is  ex- 
sent  of  the  Senate  to  Insert  In  a  treaty  with  a  foreign  power."  So,  Prigg  v. 
Pennsylvania,  16  Pet.  539,  619,  10  L.  Ed.  1060  (1S42) ;  Baldwin  v.  Franks,  120 
U.  S.  678,  683,  7  Sup.  Ct.  656,  763,  30  L.  Ed.  766  (1SS7). 

Abbogation  of  Treaties. — As  said  in  the  principal  case,  any  treaty  may  be 
abrogated  by  act  of  Congress.  Taylor  v.  Morton,  2  Curt.  454,  45S,  159.  Fed. 
Cas.  No.  13.799  (1855^;  Cbae  Cliiin  Ping  v.  U.  S.,  130  TJ.  S.  5S1,  600-602,  9 
Sun.  Ct.  623,  32  L.   Ed.  106,8  (1SS9). 

"To  refuse  to  execute  a  treaty,  for  reasons  which  approve  themselves  to 
the  conscientious  judgment  of  the  nation,  is  a  matter  of  the  utmost  gravity 
and  delicacy;  but  the  power  to  do  so  is  prerogative,  of  which  no  nation  can 
be  deprived  without  deeply  affecting  its  independence.  That  the  people  of 
the  United  States  have  deprived  their  government  of  this  power  in  any  case.  I 
do  not  believe.  That  it  must  reside  somewhere  and  be  applicable  to  all  cases, 
I  am  convinced.  I  feel  no  doubt  that  it  belongs  to  Congress.  That,  inasmuch 
as  treaties  must  continue  to  operate  as  part  of  our  municipal  law,  and  be 
obeyed  by  the  people,  applied  by  the  judiciary,  and  executed  by  the  Presi- 
dent, while  they  continue  unrepealed:  and  inasmuch  as  the  power  of  repeal- 
ing these  municipal  laws  must  reside  somewhere,  and  no  body  other  than 
Congress  possesses  it ;  then  legislative  power  is  applicable  to  such  laws  when- 
ever they  relate  to  subjects  which  the  Constitution  has  placed  under  that  leg- 
islative power." — Curtis,  J.,  in  Taylor  v.  Morton,  above  cited,  at  page  459. 

A  treaty  with  an  Indian  tribe  may  be  repealed  by  implication  from  the  act 
admitting  as  a  state  the  territory  in  which  the  treaty  privileges  were  to  be 
exercised.  Ward  v.  Race  Horse,  163  U.  S.  504,  16  Sup.  Ct  1076,  41  L.  Ed.  244 
(1896)  (right  to  hunt  on  vacant  public  lands). 

Treaties  are  not  abrogated  merely  by  a  violation  of  them  by  either  party, 
unless  the  political  authorities  of  the  other  party  elect  so  to  treat  them. 
Charlton  v.  Kelly,  229  U.  S.  449,  33  Sup.  Ct.  945,  57  L.  Ed. (1913).. 


Ch.  15)  FOREIGN    RELATIONS,  INDIANS,  AND    ALIENS  9(59 

pressly  authorized  "to  define  and  punish  *  *  *  offenses  against 
the  law  of  nations."  Article  1,  §  8,  cl.  10.  The  law  of  nations  re- 
quires every  national  government  to  use  "due  diligence"  to  prevent  a 
wrong  being  done  within  its  own  dominion  to  another  nation  with 
which  it  is  at  peace,  or  to  the  people  thereof;  and  because  of  this, 
the  obligation  of  one  nation  to  punish  those  who,  within  its  own  ju- 
risdiction, counterfeit  the  money  of  another  nation  has  long  been 
recognized.     *     *     * 

This  rule  was  established  for  the  protection  of  nations  in  their  in- 
tercourse with  each  other.  If  there  were  no  such  intercourse,  it  would 
be  a  matter  of  no  special  moment  to  one  nation  that  its  money  was 
counterfeited  in  another.  Its  own  people  could  not  be  defrauded  if 
the  false  coin  did  not  come  among  them,  and  its  own  sovereignty 
would  not  be  violated  if  the  counterfeit  could  not,  under  any  circum- 
stances, be  made  to  take  the  place  of  true  money.  But  national  inter- 
course includes  commercial  intercourse  between  the  people  of  dif- 
ferent nations.  It  is  as  much  the  duty  of  a  nation  to  protect  such  an 
intercourse  as  it  is  any  other,  and  that  is  what  Vattel  meant  when  he 
said:  "For  the  same  reason  that  sovereigns  are  obliged  to  protect 
commerce,  they  are  obliged  to  support  this  custom,"  "namely,  ex- 
change, or  the  traffic  of  bankers,  by  means  of  which  a  merchant  re- 
mits immense  sums  from  one  end  of  the  world  to  the  other,"  "by  good 
laws,  in  which  every  merchant,  whether  citizen  or  foreigner,  may  find 
security."  *  *  *  Such  being  the  case,  it  is  easy  to  see  that  the 
same  principles  that  developed,  when  it  became  necessary,  the  rule  of 
national  conduct  which  was  intended  to  prevent,  as  far  as  might  be. 
the  counterfeiting  of  the  money  of  one  nation  within  the  dominion  of 
another,  and  which,  in  the  opinion  of  so  eminent  a  publicist  as  Vattel, 
could  be  applied  to  the  foreign  exchange  of  bankers,  may.  with  just 
propriety,  be  extended  to  the  protection  of  this  more  recent  custom 
among  bankers  dealing  in  foreign  securities,  whether  national  or 
corporate,  which  have  been  put  out  under  the  sanction  of  public  au- 
thority at  home,  and  sent  abroad  as  the  subjects  of  trade  and  com- 
merce.    *     *     * 

No  nation  can  be  more  interested  in  this  question  than  the  United 
States.  Their  money  is  practically  composed  of  treasury  notes  or 
certificates  issued  by  themselves,  or  of  bank  bills  issued  by  banks 
created  under  their  authority  and  subject  to  their  control.  Their  own 
securities,  and  those  of  the  si  ities,  and  the  public  corpora- 

tions, whose  interests  abroad  they  alone  have  the  power  to  guard 
against  foreign  national  neglect,  are  found  on  sale  in  the  principal 
money  markets  of  Europe.  If  these  securities,  whether  national, 
municipal,  or  corporate,  are  forged  and  counterfeited  with  impunit) 
at  the  places  where  they  are  sold,  it  is  easy  to  see  that  a  great  wrong 
will  be  done  to  the  United  States  and  their  people.  Any  uncertainty 
about  the  genuineness  of  the  security  necessarily  depreciates  its  value 


970  THE   FEDERAL   GOVERNMENT  (Part  ?> 

as  a  merchantable  commodity,  and  against  this  international  comity 
requires  that  national  protection  shall,  as  far  as  possible,  be  afforded. 
If  there  is  neglect  in  that,  the  United  States  may,  with  propriety,  call 
on  the  proper  government  to  provide  for  the  punishment  of  such  an 
offense,  and  thus  secure  the  restraining  influences  of  a  fear  of  the 
consequences  of  wrong-doing.     *     *     * 

But  if  the  United  States  can  require  this  of  another,  that  other  may 
require  it  of  them,  because  international  obligations  are  of  necessity 
reciprocal  in  their  nature.  The  right,  if  it  exists  at  all,  is  given  by 
the  law  of  nations,  and  what  is  law  for  one  is,  under  the  same  cir- 
cumstances, law  for  the  other.  A  right  secured  by  the  law  of  nations 
to  a  nation,  or  its  people,  is  one  the  United  States,  as  the  representa- 
tives of  this  nation,  are  bound  to  protect.  Consequently,  a  law  which 
is  necessary  and  proper  to  afford  this  protection  is  one  that  Congress 
may  enact,  because  it  is  one  that  is  needed  to  carry  into  execution  a 
power  conferred  by  the  Constitution  on  the  government  of  the  United 
States  exclusively.  There  is  no  authority  in  the  United  States  to  re- 
quire the  passage  and  enforcement  of  such  a  law  by  the  states.  There- 
fore, the  United  States  must  have  the  power  to  pass  it  and  enforce  it 
themselves,  or  be  unable  to  perform  a  duty  which  they  may  owe  to 
another  nation,  and  which  the  law  of  nations  has  imposed  on  them 
as  part  of  their  international  obligations.  This,  however,  does  not 
prevent  a  state  from  providing  for  the  punishment  of  the  same  thing, 
for  here,  as  'in  the  case  of  counterfeiting  the  coin  of  the  United 
States,  the  act  may  be  an  offense  against  the  authority  of  a  state  as 
well  as  that  of  the  United  States.  *  *  *  [It  was  held  unneces- 
sary for  Congress  to  declare  an  act  to  be  an  offence  against  the  law 
of  nations,  if  it  was  so.] 

Questions  so  certified.1 

i  Compare  Tennessee  v.  Davis,  100  U.  S.  257,  2S0,  25  L.  Ed.  648  (1SS0). 
by  Clifford,  J.,  dissenting. 

Extradition  of  Criminals. — The  foreign  extradition  of  criminals  is  dealt 
with  in  Criminal  Procedure  (see  Mikell,  Cas.  on  Crim.  Proced.  60-71).  Re- 
garding the  exercise  of  this  power  under  our  federal  system,  Miller,  J.,  said, 
in  United  States  v.  Rauscher,  119  U.  S.  407,  411,  412,  414,  7  Sup.  CL  234,  236, 
:;0  L.  Ed.  425  (1S86)  : 

"It  is  only  in  modern  times  that  the  nations  of  the  earth  have  imposed  up- 
on themselves  the  obligation  of  delivering  up  these  fugitives  from  justice  to 
the  states  where  their  crimes  were  committed,  for  trial  and  punishment.  This 
has  been  done  generally  by  treaties  made  by  one  independent  government 
with  another.  Prior  to  these  treaties,  and  apart  from  them,  it  may  be  stat- 
ed, as  the  general  result  of  the  writers  upon  international  law,  that  there 
was  no  well-defined  obligation  on  one  country  to  deliver  up  such  fugitives  to 
another ;  and,  though  such  delivery  was  often  made,  it  was  upon  the  princi- 
ple of  comity,  and  within  the  discretion  of  the  government  whose  action  was 
invoked ;  and  it  has  never  been  recognized  as  among  those  obligations  of  one 
government  towards  another  which  rest  upon  established  principles  of  inter- 
national law. 

"Whether,  in  the  United  States,  in  the  absence  of  any  treaty  on  the  sub- 
ject with  a  foreign  nation  from  whose  justice  a  fugitive  may  be  found  in  one 
of  the  states,  and  in  the  absence  of  any  act  of  Congress  upon  the  subject,  a 
state  can,  through  its  own  judiciary  or  executive,   surrender  him  for  trial  to 


Cll    15)  FOREIGN    EELATIONS,  INDIANS,  AND   ALIENS  971 

W<  IRCESTER  v.  GEORGIA  (1832)  6  Pet.  515,  157  561,  8  L.  Ed 
483,  Mr.  Chief  Justice  Marshall  (holding  invalid  an  act  of  Georgia 
forbidding  any  white  person  to  reside  within  the  limits  of  the  Cherokee 
Indian  nation  in  the  state,  without  a  license  from  Georgia): 

"The  treaties  and  laws  of  the  United  States  contemplate  the  Indian 
territory  as  completely  separated  from  that  of  the  states ;  and  provide 
that  all  intercourse  with  them  shall  be  carried  on  exclusively  by  the 
government  of  the  Union.  Is  this  the  rightful  exercise  of  power,  or 
is  it  usurpation? 

"While  these  states  were  colonies,  this  power,  in  its  utmost  extent, 
was  admitted  to  reside  in  the  crown.  When  our  Revolutionary  strug- 
gle commenced,  Congress  was  composed  of  an  assemblage  of  deputies 
acting  under  specific  powers  granted  by  the  legislatures,  or  conven- 
tions of  the  several  colonies.  It  was  a  great  popular  movement,  not 
perfectly  organized;  nor  were  the  respective  powers  of  those  who 
were  intrusted  with  the  management  of  affairs  accurately  defined. 
The  necessities  of  our  situation  produced  a  general  conviction  that 
those  measures  which  concerned  all.  must  be  transacted  by  a  body 
in  which  the  representatives  of  all  were  assembled,  and  which  could 
command  the  confidence  of  all:  Congress,  therefore,  was  con 
as  invested  with  all  the  powers  of  war  and  peace,  and  Congress  dis 
solved  our  connection  with  the  mother  country,  and  declared  these 
United  Colonies  to  be  independent  states.  Without  any  written  def- 
inition of  powers,  they  employed  diplomatic  agents  to  represent  the 

such  foreign  nation,  is  a  question  which  lias  been  under  consideration  by  the 
courts  of  this  country  without  any  very  conclusive  result.  •  •  •  [Here 
follow  references  to  Case  of  Daniel  Washburn,  4  Johns.  Ch.  (N.  Y  - 
Am.  Per.  548  (1819);  Short  v.  Deacon,  10  Serg  S  R,  (Pa  |  126  (1823);  Holmes 
v.  Jennlson,  14  Pet.  540,  014.  10  L.  Ed.  579  (1840);  Kx  parte  Holmes.  11'  Vt 
)0>;  and  Teople  v.  Curtis,  CO  N.  Y.  821,  10  Am.  Hep.  4X1.  the  last  In 
LS72-] 

"The  question  has  not  since  arisen  so  as  to  he  decided  hy  this  court,  hut 
there  can  lie  little  donbt  of  the  sound  e  opinion  of  Chief  Justice 

Taney  [in  Holmes  v.  Jennlson,  cited  above],  that  the  power  exercised  by  the 
I-  of  Vermont  is  a  part  of  the  foreign  Intercourse  of  this  country, 
which  has  undoubtedly  teen  conferred  upon  the  federal  government;  and  thai 
i  in  the  treaty-making  power,  and  the  correal  onding  power 
of  appointing  and  receiving  ambassadors  and  other  public  ministers.  There 
is  no  necessity  for  the  states  to  enter  upon  the  relations  with  foreign  na 
linns,  which  are  necessarily  implied  In  the  extradition  of  fugitives  from  jus- 
tice found  within  the  limits  of  the  stale,  as  there  is  none  why  they  should 
in  their  own  name  make  demand  upon  foreign  nations  for  the  surrender  of 
BUCh  fugitives.  At  this  time  of  day.  and  after  the  repeated  examinations 
which  have  been  made  hy  this  court  Into  the  powers  of  the  federal 
inent  to  deal  with  all  such  International  questli  os  exclusively,  it  ran  bardlj 
be  admitted  that,  even  in  the  absence  of  treaties  or  acts  of  Congress  on  the 
subject,  the  extradition  of  a  fugitive  from  Justice  can  become  the  subject  ol 
negotiation  between  a  state  of  this  Union  and  a  foreign  government." 

Cession  of  Tebbitoby. — Ol  course  a  state  has  do  power  to  cede  the  poe 
session  of  or  jurisdiction  over  any  part  of  its  territory  to  a  foreign  country, 
without  the  concurrence  of  the  United  States.  Ft.  Leavenworth  R.  Co.  v. 
Lowe,  114  U.  S.  525,  540.  5  Sup.  Ct.  995,  29  L.  Ed.  264  (1885).  See  Geofroy  v. 
Riggs,  ante,  :    965,  note. 


972  THE  FEDERAL  GOVERNMENT  (Part  3 

United  States  at  the  several  courts  of  Europe;  offered  to  negotiate 
treaties  with  them,  and  did  actually  negotiate  treaties  with  France. 
From  the  same  necessity,  and  on  the  same  principles,  Congress  as- 
sumed the  management  of  Indian  affairs;  first  in  the  name  of  these 
United  Colonies;  and,  afterwards,  in  the  name  of  the  United  States. 
Farly  attempts  were  made  at  negotiation,  and  to  regulate  trade  with 
them.  These  not  proving  successful,  war  was  carried  on  under  the 
direction,  and  with  the  forces  of  the  United  States,  and  the  efforts 
to  make  peace,  by  treaty,  were  earnest  and  incessant.  The  Confedera- 
tion found  Congress  in  the  exercise  of  the  same  powers  of  peace  and 
war,  in  our  relations  with  Indian  nations,  as  with  those  of  Europe. 

"Such  was  the  state  of  things  when  the  Confederation  was  adopted. 
*  *  *  This  instrument  also  gave  the  United  States  in  Congress 
assembled  the  sole  and  exclusive  right  of  'regulating  the  trade  and 
managing  all  the  affairs  with  the  Indians,  not  members  of  any  of  the 
states:  provided,  that  the  legislative  power  of  any  state  within  its 
own  limits  be  not  infringed  or  violated.'  *  *  *  The  correct  ex- 
position of  this  article  is  rendered  unnecessary  by  the  adoption  of  our 
existing  Constitution.  That  instrument  confers  on  Congress  the  pow- 
ers of  war  and  peace,  of  making  treaties,  and  of  regulating  commerce 
with  foreign  nations,  and  among  the  several  states,  and  with  the  In- 
dian tribes.  These  powers  comprehend  all  that  is  required  for  the 
regulation  of  our  intercourse  with  the  Indians.  They  are  not  limited 
by  any  restrictions  on  their  free  actions.  The  shackles  imposed  on 
this  power,  in  the  Confederation,  are  discarded. 

"The  Indian  nations  had  always  been  considered  as  distinct,  inde- 
pendent political  communities,  retaining  their  original  natural  rights, 
as  the  undisputed  possessors  of  the  soil,  from  time  immemorial,  with 
the  single  exception  of  that  imposed  by  irresistible  power,  which  ex- 
cluded them  from  intercourse  with  any  other  European  potentate  than 
the  first  discoverer  of  the  coast  of  the  particular  region  claimed :  and 
this  was  a  restriction  which  those  European  potentates  imposed  on 
themselves,  as  well  as  on  the  Indians.  The  very  term  'nation,'  so 
generally  applied  to  them,  means  'a  people  distinct  from  others.'  The 
Constitution,  by  declaring  treaties  already  made,  as  well  as  those  to  be 
made,  to  be  the  supreme  law  of  the  land,  has  adopted  and  sanctioned 
the  previous  treaties  with  the  Indian  nations,  and  consequently  admits 
their  rank  among  those  powers  who  are  capable  of  making  treaties. 
The  words  'treaty'  and  'nation'  are  words  of  our  own  language,  se- 
lected in  our  diplomatic  and  legislative  proceedings,  by  ourselves,  hav- 
ing each  a  definite  and  well-understood  meaning.  We  have  applied 
them  to  Indians,  as  we  have  applied  them  to  the  other  nations  of  the 
earth.     They  are  applied  to  all  in  the  same  sense.     *     *     * 

"The  Cherokee  nation,  then,  is  a  distinct  community,  occupying  its 
own  territory,  with  boundaries  accurately  described,  in  which  the 
laws  of  Georgia  can  have  no  force,  and  which  the  citizens  of  Georgia 
have  no  right  to  enter,  but  with  the  assent  of  the  Cherokees  them- 


Ch.  15)  FOREIGN    RELATIONS,   INDIANS,  AND    ALIENS  973 

selves,  or  in  conformity  with  treaties,  and  with  the  acts  of  Congress. 
The  whole  intercourse  between  the  United  States  and  this  na' 
by  our  Constitution  and  laws,  vested  in  the  government  of  the  United 
States."  " 

[McLean,  J.,  gave  a  concurring  opinion.    Baldwin,  J.,  dissented.] 


UNITED  STATES  v.  KAGAMA. 

(Supreme  Court  of  the  United  States.   1886.     118  U.  S.  375,  6  Sup.  Ct  1109, 
30  L.   Ed.  228.) 

[Certificate  of  division  from  the  federal  Circuit  Court  for  Cali- 
fornia. A  federal  statute  of  1885  punished  certain  serious  crimes  by 
Indians  when  committed  in  a  territory  or  against  Indians  on  a  n 
tion  in  a  state.  Defendant,  an  Indian,  was  indicted  thereunder  for 
murdering  another  Indian  upon  an  Indian  reservation  in  California. 
Upon  a  demurrer  thereto,  the  judges  certified  a  division  of  opinion 
as  to  the  validity  of  said  statute.] 

Mr,  Justice  Miller.  *  *  *  The  above  enactment  is  clearly  sep- 
arable into  two  distinct  definitions  of  the  conditions  under  which  In- 
dians may  be  punished  for  the  same  crimes  as  denned  by  the  CO 
law.  The  first  of  these  is  where  the  offence  is  committed  within  the 
limits  of  a  territorial  government,  whether  on  or  off  an  Indian  reserva- 
tion. In  this  class  of  cases  the  Indian  charged  with  the  crime  shall  be 
judged  by  the  laws  of  the  territory  on  that  subject,  and  tried  by  its 
courts.  This  proposition  itself  is  new  in  legislation  of  Congress,  which 
has  heretofore  only  undertaken  to  punish  an  Indian  who  sustains  the 
usual  relation  to  his  tribe,  and  who  commits  the  offence  in  the  Indian 
country,  or  on  an  Indian  reservation,  in  exceptional  cases ;  as  where 
the  offence  was  against  the  person  or  property  of  a  white  man,  or  was 
some  violation  of  the  trade  and  intercourse  regulations  imposed  by 
Congress  on  the  Indian  tribes.  Tt  is  new,  because  it  now  proposes 
to  punish  these  offences  when  they  are  committed  by  one  Indian  on 
the  person  or  property  of  another. 

The  second  is  where  the  offence  is  committed  by  one  Indian  against 
the  person  or  property  of  another,  within  the  limits  of  a  state  of  the 
Union,  but  on  an  Indian  reservation.  In  this  case,  of  which  the  state 
and  its  tribunals  would  have  jurisdiction  if  the  offence  was  com 
by  a  white  man  outside  an  Indian  reservation,  the  courts  of  the  United 
States  are  to  exercise  jurisdiction  as  if  the  offence  hail  been  commit- 

>  No  act  of  ii  state,  as  by  making  an  Indian  one  of  its  clti  «na  and  a  voter, 
can  afli  r  tribal   Indiana     U.  S.  v.  Bollldny,  :: 

Wall.    IUT.   118    120,  1^  I..  Bd.  182  (1866).     Hat  Congress  may  at  any  tiaie  termi- 
nate   its    Special     guardianship    of    Indians    and    leave    them    suli.ieet 
slate  and   federal  laws  like  ether  persons,     lu  re  Ilea',  107  U.  S.  4:>5,  20  Sup. 
Ct.  500,  -19  L.  Ed.  848  (1900). 


974  THE  FEDERAL  GOVERNMENT  (Part  3 

ted  at  some  place  within  the  exclusive  jurisdiction  of  the  United  States. 
*  *  *  This  is  a  still  further  advance,  as  asserting  this  jurisdiction 
over  the  Indians  within  the  limits  of  the  states  of  the  Union. 

Although  the  offence  charged  in  this  indictment  was  committed 
within  a  state  and  not  within  a  territory,  the  considerations  which 
are  necessary  to  a  solution  of  the  problem  in  regard  to  the  one  must 
in  a  large  degree  affect  the  other. 

The  Constitution  of  the  United  States  is  almost  silent  in  regard  to 
the  relations  of  the  government  which  was  established  by  it  to  the 
numerous  tribes  of  Indians  within  its  borders.  *  *  *  [After  re- 
ferring to  the  phrase  "excluding  Indians  not  taxed,"  in  article  I,  §  2. 
par.  3,  and  in  Amendment  XIV,  apportioning  representatives  among 
the  states :]  The  mention  of  Indians  in  the  Constitution  which  has  re- 
ceived most  attention  is  that  found  in  the  clause  which  gives  Congress 
"power  to  regulate  commerce  with  foreign  nations  and  among  the 
several  states,  and  with  the  Indian  tribes."     *     *     * 

While  we  are  not  able  to  see,  in  either  of  these  clauses  of  the  Con- 
stitution and  its  amendments,  any  delegation  of  power  to  enact  a 
code  of  criminal  law  for  the  punishment  of  the  worst  class  of  crimes 
known  to  civilized  life  when  committed  by  Indians,  there  is  a  sugges- 
tion in  the  manner  in  which  the  Indian  tribes  are  introduced  into 
that  clause,  which  may  have  a  bearing  on  the  subject  before  us.  The 
commerce  with  foreign  nations  is  distinctly  stated  as  submitted  to  the 
control  of  Congress.  Were  the  Indian  tribes  foreign  nations?  If  so, 
they  came  within  the  first  of  the  three  classes  of  commerce  mentioned, 
and  did  not  need  to  be  repeated  as  Indian  tribes.  Were  they  nations. 
in  the  minds  of  the  framers  of  the  Constitution?  If  so,  the  natural 
phrase  would  have  been  "foreign  nations  and  Indian  nations,"  or,  in 
the  terseness  of  language  uniformly  used  by  the  framers  of  the  in- 
strument, it  would  naturally  have  been  "foreign  and  Indian  nations." 
And  so  in  the  case  of  Cherokee  Nation  v.  State  of  Georgia,  5  Pet.  1, 
20,  8  L.  Ed.  25,  brought  in  the  Supreme  Court  of  the  United  States. 
under  the  declaration  that  the  judicial  power  extends  to  suits  between 
a  state  and  foreign  states,  and  giving  to  the  Supreme  Court  original 
jurisdiction  where  a  state  is  a  party,  it  was  conceded  that  Georgia  as  a 
state  came  within  the  clause,  but  held  that  the  Cherokees  were  not  a 
state  or  nation  within  the  meaning  of  the  Constitution,  so  as  to  be 
able  to  maintain  the  suit.1 

But  these  Indians  are  within  the  geographical  limits  of  the  United 
States.  The  soil  and  the  people  within  these  limits  are  under  the 
political  control  of  the  government  of  the  United  States,  or  of  the 
states  of  the  Union.  There  exist  within  the  broad  domain  of  sover- 
eignty but  these  two.  There  may  be  cities,  counties,  and  other  organ- 
ized bodies  with  limited  legislative  functions,  but  they  are  all  derived 

i  "They  may,  more  correctly,  perhaps,  be  denominated  domestic  dependent 
nations." — Id.  17. 


Ch.  15)  FOREIGN    RELATIONS,  INDIANS,  AND    ALIENS  D75 

from,  or  exist  in,  subordination  to  one  or  the  other  of  these.  The 
territorial  governments  owe  all  their  powers  to  the  statutes  of  the 
l'nited  States  conferring  on  them  the  powers  which  they  exercise, 
and  which  are  liable  to  be  withdrawn,  modified,  or  repealed  at  any 
lime  by  Congress.  What  authority  the  state  governments  may  have- 
to  enact  criminal  laws  for  the  Indians  will  be  presently  considered. 
But  this  power  of  Congress  to  organize  territorial  governments,  and 
make  laws  for  their  inhabitants,  arises  not  so  much  from  the  clause  in 
the  Constitution  in  regard  to  disposing  of  and  making  rules  and  reg- 
ulations concerning  the  territory  and  other  property  of  the  United 
States,  as  from  the  ownership  of  the  country  in  which  the  territories 
are,  and  the  right  of  exclusive  sovereignty  which  must  exist  in  the 
national  government,  and  can  be  found  nowhere  else.  Murphy  v. 
Ramsey,  114  U.  S.  15,  44,  5  Sup.  Ct.  747,  29  L.  Ed.  47.  *  *  * 
The  Indian  reservation  in  the  case  before  us  is  land  bought  by  the 
l'nited  States  from  Mexico  by  the  treaty  of  Guadaloupe  Hidalg". 
and  the  whole  of  California,  with  the  allegiance  of  its  inhabitants 
many  of  whom  were  Indians,  was  transferred  by  that  treaty  to  the 
L'nited  States. 

The  relation  of  the  Indian  tribes  living  within  the  borders  of  the 
United  States,  both  before  and  since  the  Revolution,  to  the  people  of 
the  United  States  has  always  been  an  anomalous  one  and  of  a  com 
plex  character.  Following  the  policy  of  the  European  government 
in  the  discovery  of  America  towards  the  Indians  who  were  found 
here,  the  colonies  before  the  Revolution  and  the  states  and  the  United 
States  since,  have  recognized  in  the  Indians  a  possessory  right  to  the 
soil  over  which  they  roamed  and  hunted  and  established  occasional 
villages.  But  they  asserted  an  ultimate  title  in  the  land  itself,  by 
which  the  Indian  tribes  were  forbidden  to  sell  or  transfer  it  to  other 
nations  or  peoples  without  the  consent  of  this  paramount  authority. 
When  a  tribe  wished  to  dispose  of  its  land,  or  any  part  of  it,  or  the 
state  or  the  United  States  wished  to  purchase  it,  a  treaty  with  the 
tribe  was  the  only  mode  in  which  this  could  be  done.  The  United 
States  recognized  no  right  in  private  persons,  or  in  other  nations,  to 
make  such  a  purchase  by  treaty  or  otherwise.  With  the  Indians  them- 
selves these  relations  are  equally  difficult  to  define.  They  were,  and 
always  have  been,  regarded  as  having  a  semi-independent  position 
when  they  preserved  their  tribal  relations;  not  as  states,  not  as  na- 
tions, not  as  possessed  of  the  full  attributes  of  sovereignty,  but  as  a 
separate  people,  with  the  power  of  regulating  their  internal  and  social 
relations,  and  thus  far  not  brought  under  the  laws  of  the  Union  or  of 
the  state  within  whose  limits  they  resided.2     *     *     * 

=  A  white  i"i  v,  I,  ,,r  negro  adopted  into  an  Indian  tribe  is  not  entitled  to  this 
i>rivi!e?e  of  tribal  extraterritoriality  as  a_*;iinst   laws  of  the  United 
D.  S.  v.  Rogers,  4  How.  567,  n  L.  Ed.  1106  0846);    Albert*  r.  U.  S.,  lft!  U. 
s.  489,  16  Sup.  Cfc  864,  40  I,.  Ed.  1061  (1886). 

The  private  property  rights  uf  tribal   Indians  are  proteeted  by  the  guar- 


076  THE   FEDERAL  GOVERNMENT  (Part  3 

[After  referring  to  Cherokee  Nation  v.  Georgia,  5  Pet.  1,  8  L.  Ed. 
25,  and  Worcester  v.  Georgia,  ante,  p.  971 :]  In  the  opinion  in  these 
cases  they  are  spoken  of  as  "wards  of  the  nation,"  "pupils,"  as  local 
dependent  communities.  In  this  spirit  the  United  States  has  con- 
ducted its  relations  to  them  from  its  organization  to  this  time.  But, 
after  an  experience  of  a  hundred  years  of  the  treaty-making  system  of 
government,  Congress  has  determined  upon  a  new  departure — to  gov- 
ern them  by  acts  of  Congress.  This  is  seen  in  the  Act  of  March  3, 
1871,  embodied  in  section  2079  of  the  Revised  Statutes:  "No  Indian 
nation  or  tribe,  within  the  territory  of  the  United  States,  shall  be  ac- 
knowledged or  recognized  as  an  independent  nation,  tribe,  or  power, 
with  whom  the  United  States  may  contract  by  treaty;  but  no  obliga- 
tion of  any  treaty  lawfully  made  and  ratified  with  any  such  Indian 
nation  or  tribe  prior  to  March  third,  eighteen  hundred  and  seventy- 
one,  shall  be  hereby  invalidated  or  impaired."     *     *     * 

[In]  the  act  now  under  consideration  *  *  *  Congress  has  de- 
fined a  crime  committed  within  the  state,  and  made  it  punishable  in 
the  courts  of  the  United  States.  But  Congress  has  done  this,  and  can 
do  it,  with  regard  to  all  offences  relating  to  matters  to  which  the  fed- 
eral authority  extends.    Does  that  authority  extend  to  this  case? 

It  will  be  seen  at  once  that  the  nature  of  the  offence  (murder)  is 
one  which  in  almost  all  cases  of  its  commission  is  punishable  by  the 
laws  of  the  states,  and  within  the  jurisdiction  of  their  courts.  The 
distinction  is  claimed  to  be  that  the  offence  under  the  statute  is  com- 
mitted by  an  Indian,  that  it  is  committed  on  a  reservation  set  apart 
within  the  state  for  residence  of  the  tribe  of  Indians  by  the  United 
States,  and  the  fair  inference  is  that  the  offending  Indian  shall  be- 
long to  that  or  some  other  tribe.  It  does  not  interfere  with  the  process 
of  the  state  courts  within  the  reservation,  nor  with  the  operation  of 
state  laws  upon  white  people  found  there.  Its  effect  is  confined  to  the 
acts  of  an  Indian  of  some  tribe,  of  a  criminal  character,  committed 
within  the  limits  of  the  reservation. 

It  seems  to  us  that  this  is  within  the  competency  of  Congress. 
These  Indian  tribes  are  the  wards  of  the  nation.  They  are  com- 
munities dependent  on  the  United  States.  Dependent  largely  for  their 
daily  food.  Dependent  for  their  political  rights.  They  owe  no  alle- 
giance to  the  states,  and  receive  from  them  no  protection.  Because  of 
the  local  ill  feeling,  the  people  of  the  states  where  they  are  found  are 
often  their  deadliest  enemies.    From  their  very  weakness  and  helpless- 

anties  of  the  Constitution  against  state  or  federal  infringement  to  the  same 
extent  as  those  of  other  residents  of  the  United  States.  Choate  v.  Trapp,  224 
U.  S.  665,  32  Sup.  Ct.  565,  56  L.  Ed.  941  (1912)  (cases).  But  the  prohibitions  of 
the  Constitution  designed  to  control  the  powers  of  the  national  government 
(like  the  fifth  amendment)  have  no  application  to  the  powers  of  local  self- 
government  exercised  by  Indian  tribes,  even  though  the  latter  are  subject  to 
federal  regulation.  Talton  v.  Mayes,  163  U.  S.  376,  16  Sup.  Ct  9s6,  41  L. 
Ed.  196  (1S96)  (no  grand  jury  for  Cherokee  nation  in  Indian  Territory). 


Ch.  15)  FOKEIGN    RELATIONS,  INDIANS,  AND   ALIENS  977 

ness,  so  largely  clue  to  the  course  of  dealing  of  the  federal  government 
with  them  and  the  treaties  in  which  it  has  been  promised,  there  arises 
the  duty  of  protection,  and  with  it  the  power.  This  has  always  been 
recognized  by  the  Executive  and  by  Congress,  and  by  this  court. 
whenever  the  question  has  arisen. 

In  the  case  of  Worcester  v.  State  of  Georgia,  above  cited,  it  was 
held  that,  though  the  Indians  had  by  treaty  sold  their  land  within  that 
state,  and  agreed  to  remove  away,  which  they  had  failed  to  do,  the 
state  could  not,  while  they  remained  on  those  lands,  extend  its  laws, 
criminal  and  civil,  over  the  tribes ;  that  the  duty  and  power  to  com- 
pel their  removal  was  in  the  United  States,  and  the  tribe  was  under 
their  protection,  and  could  not  be  subjected  to  the  laws  of  the  state 
and  the  process  of  its  courts.  The  same  thing  was  decided  in  the  case 
of  Fellows  v.  Blacksmith  &  Others,  19  How.  366,  15  L.  Ed. 
684.     *     *     * 

The  power  of  the  general  government  over  these  remnants  of  a 
race  once  powerful,  now  weak  and  diminished  in  numbers,  is  neces- 
sary to  their  protection,  as  well  as  to  the  safety  of  those  among  whom 
they  dwell.  It  must  exist  in  that  government,  because  it  never  has 
existed  anywhere  else,  because  the  theater  of  its  exercise  is  within  the 
geographical  limits  of  the  United  States,  because  it  has  never  been 
denied,  and  because  it  alone  can  enforce  its  laws  on  all  the  tribes. 

Questions  so  certified.3 

»  In  Donnelly  v.  United  States,  228  U.  S.  24.%  271.  272.  83  Sup.  Ct.  449,  459, 

57  L.  Ed. (1913),  It  was  held  that  the  United  States  could  punish  the  imir 

der  of  an  Indian  by  a  white  man  upon  an  Indian  reservation  in  a  state, 
although  the  United  States  had  reserved  no  exclusive  jurisdiction  over  the 
reservation  and  therefore  could  not  have  punished  crimes  between  whites 
thereon  [citing  U.  S.  v.  McBratney,  101  r.  S.  621,  20  L.  Ed.  869  (1881),  and 
Draper  v.  IT.  S.,  164  U.  s.  240,  17  Sup.  Ct  107,  41  L.  Ed.  419  (1896),  for  the 
latter  proposition].  Pitney,  J.  said:  "Upon  full  consideration,  we  are  satisfied 
that,  offenses  committed  by  or  against  Indiana  are  not  within  the  principle 
of  the  McBratney  and  Draper  Cases.  This  was  In  effect  held,  as  to 
committed  by  the  Indians,  in  the  Kagama  Case,  lis  r.  s.  875,  888,  30 
L"J\  231,  •;  Sup.  ci.  l  inn,  where  the  constitutionality  of  the  second  branch  of 
section  9  of  the  Act  of  March  3,  L885  (23  Stat  at  L.  385,  e.  841),  was  sun 
talned  upon  the  ground  that,  the  Indian  tribes  are  the  wards  of  the  nation. 
This  same  reason  applies — perhaps  a  fortiori — with  respect  to  crime 
mitted  by  white  men  against  the  persons  or  property  of  the  Indian  tribes 
while  occupying  reservations  set  apart  for  the  very  purpose  of  segregating 
them  from  the  whiles  and  others  Dot  of  Indian  blood." 

The  tribal  Indians,  with  whom  the  United  States  has  historically  dealt  as 
tribes  or  nations,  are  not  citizens  of  the  United  States  by  birth.  See  Wong 
Kim  Ark,  ante,  at  p.  134 

Conferring  state  and  federal  citizenship  upon  tribal  Indians  by  act 
giess  docs  not  release  them  from  federal  tutelage  so  long  as  Congress  i 

to    retain    SUCh    control.      Tiger    v.    UY-,1  in    (',,.    221     I  .    S. 

Bop.  Ct  578,  55  i„  Ed.  738  (1911)  (restriction  on  alienation  of  Indian 
U.  S.  r.  Celestiue,  215  U.  S.  27S,  30  Sup.  Ct  93,  54  I..  Ed.  195  (1909) 
between  Indians  on  reservation);    Hallowell  i    IT,  S.,  221   D.  S.  .".it.  31 
Ct  587,  55  i..  Ed.  750  (1911)  liquor  into  Indian  allotment) 

pare  Be  Heft,  197  I  .  s.  488,  it,  Sup,  Ct,  506,  19  L.  Ed,  MS  (1905).     As  to  the 
Hall  Const.L. — G2 


978  THE  FEDERAL  GOVERNMENT  (Part  o 


FONG  YUE  TING  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1S93.    149  U.  S.  69S,  13  Sup.  Ct.  1016, 
37  L.  Ed.  905.) 

[Appeals  from  the  federal  Circuit  Court  for  the  Southern  District 
of  New  York.  A  federal  statute  of  1892  required  all  Chinese  labor- 
ers, then  lawfully  in  the  United  States  and  entitled  to  remain,  to  se- 
cure within  one  year  from  certain  federal  officers  certificates  of  resi- 
dence, and  in  default  thereof  enacted  that  they  should  be  deemed  to 
be  unlawfully  within  the  country  and  should  be  deported  to  China  or 
to  the  country  to  which  they  owed  allegiance,  after  certain  proceedings 
before  executive  officers.  Petitioner  and  others,  arrested  for  deporta- 
tion for  failing  to  comply  with  this  act,  secured  writs  of  habeas  corpus, 
which,  upon  hearing,  were  dismissed  by  said  court.] 

Mr.  Justice  Gray.  The  general  principles  of  public  law  which  lie 
at  the  foundation  of  these  cases  are  clearly  established  by  previous 
judgments  of  this  court,  and  by  the  authorities  therein  referred  to. 

In  the  recent  case  of  Nishimura  Ekiu  v.  U.  S.,  142  U.  S.  651,  659, 
12  Sup.  Ct.  336,  35  L.  Ed.  1146,  the  court,  in  sustaining  the  action  of 
the  executive  department,  putting  in  force  an  act  of  Congress  for  the 
exclusion  of  aliens,  said :  "It  is  an  accepted  maxim  of  international 
law  that  every  sovereign  nation  has  the  power,  as  inherent  in  sov- 
ereignty, and  essential  to  self-preservation,  to  forbid  the  entrance 
of  foreigners  within  its  dominions,  or  to  admit  them  only  in  such 
cases  and  upon  such  conditions  as  it  may  see  fit  to  prescribe.  In  the 
United  States  this  power  is  vested  in  the  national  government,  to 
which  the  Constitution  has  committed  the  entire  control  of  interna- 
tional relations,  in  peace  as  well  as  in  war.  It  belongs  to  the  political 
department  of  the  government,  and  may  be  exercised  either  through 
treaties  made  by  the  President  and  Senate  or  through  statutes  enacted 
by  Congress." 

The  same  views  were  more  fully  expounded  in  the  earlier  case  of 
Chae  Chan  Ping  v.  U.  S.,  130  U.  S.  581.  9  Sup.  Ct.  623,  32  L.  Ed. 
1068,  in  which  the  validity  of  a  former  act  of  Congress,  excluding 
Chinese  laborers  from  the  United  States,  under  the  circumstances 
therein  stated,  was  affirmed.  In  the  elaborate  opinion  delivered  by 
Mr.  Justice  Field  in  behalf  of  the  court  it  was  said :  "Those  laborers 
are  not  citizens  of  the  United  States ;  they  are  aliens.  That  the  gov- 
ernment of  the  United  States,  through  the  action  of  the  legislative  de- 
partment, can  exclude  aliens  from  its  territory,  is  a  proposition  which 
we  do  not  think  open  to  controversy.  Jurisdiction  over  its  own  ter- 
ritory to  that  extent  is  an  incident  of  every  independent  nation.     It 

situation  of  the  civilized  Pueblo  Indians  in  territory  ceded  from  Mexico,  see 
D.  S.  v.  Sandoval  (D.  C.)  19S  Fed.  539  (1912). 

For  an  excellent  discussion  of  the  anomalous  situation  of  the  tribal  In- 
dians in  our  legal  system,  see  "A  People  without  Law,"  in  Thayer,  Legal  Es- 
says, 91. 


Cll.  15)  FOREIGN    RELATIONS,  INDIANS,  AND    ALIENS  979 

is  a  part  of  its  independence.  If  it  could  not  exclude  aliens,  it  would 
be  to  that  extent  subject  to  the  control  of  another  power."  "The 
United  States,  in  their  relation  to  foreign  countries  and  their  subjects 
or  citizens,  are  one  nation,  invested  with  powers  which  belong  to  in- 
dependent nations,  the  exercise  of  which  can  be  invoked  for  the  main- 
tenance of  its  absolute  independence  and  security  throughout  its  en- 
tire territory."    130  U.  S.  603,  604,  9  Sup.  Ct.  629. 

It  was  also  said,  repeating  the  language  of  Mr.  Justice  Bradley  in 
Knox  v.  Lee,  12  Wall.  457,  555,  20  L.  Ed.  287:  "The  United  States 
is  not  only  a  government,  but  it  is  a  national  government,  and  the 
only  government  in  this  country  that  has  the  character  of  nationality. 
It  is  invested  with  power  over  all  the  foreign  relations  of  the  country. 
war,  peace,  and  negotiations  and  intercourse  with  other  nations ;  all 
of  which  are  forbidden  to  the  state  governments."  130  U.  S.  605,  9 
Sup.  Ct.  629.  And  it  was  added :  "For  local  interests,  the  several 
states  of  the  Union  exist;  but  for  international  purposes,  embracing 
our  relations  with  foreign  nations,  we  are  but  one  people,  one  nation. 
one  power."     130  U.  S.  606,  9  Sup.  Ct.  630. 

The  court  then  went  on  to  say :  "To  preserve  its  independence,  and 
give  security  against  foreign  aggression  and  encroachment,  is  the 
highest  duty  of  every  nation ;  and  to  attain  these  ends  nearly  all  other 
considerations  are  to  be  subordinated.  It  matters  not  in  what  form 
such  aggression  and  encroachment  come,  whether  from  the  fi 
nation  acting  in  its  national  character,  or  from  vast  hordes  of  its  peo- 
ple crowding  in  upon  us.  The  government,  possessing  the  powers 
which  are  to  be  exercised  for  protection  and  security,  is  clothed  with 
authority  to  determine  the  occasion  on  which  the  powers  shrill  be 
called  forth;  and  its  determination,  so  far  as  the  subjects  affected  arc 
concerned,  is  necessarily  conclusive  upon  all  its  departments  and  of- 
ficers. If,  therefore,  the  government  of  the  United  States,  through 
its  legislative  department,  considers  the  presence  of  foreigners  of  a 
different  race  in  this  country,  who  will  not  assimilate  with  us,  to  be 
dangerous  to  its  peace  and  security,  their  exclusion  is  not  to  be  stayed 
e  at  the  time  there  are  no  actual  hostilities  with  the  nation  of 
which  the  foreigners  are  subjects.  The  existence  of  war  would  ren- 
der the  necessity  of  the  proceeding  only  more  obvious  and  pressing. 
The  same  necessity,  in  a  less  pressing  degree,  may  arise  when  war 
does  not  exist,  and  the  same  authority  which  adjudges  the  necessity 
in  one  case  must  also  determine  it  in  the  other.  In  both  cases  its 
determination  is  conclusive  upon  the  judiciary.  If  the  government  oi 
the  country  of  which  the  foreigners  excluded  are  subjects  is  dissatis- 
fied with  this  action,  it  can  make  complaint  to  the  executive  head  of 
our  government,  or  resort  to  any  other  measure  which,  in  its  judg- 
ment, its  interests  or  dignity  may  demand;  and  there  lies  its  only 
remedy.  The  power  of  the  government  to  exclude  foreigners  from 
the  country,  whenever,  in  its  judgment,  the  public  interests  require 


•ISO  THE  FEDERAL  GOVERNMENT  (Part  3 

such  exclusion,  has  been  asserted  in  repeated  instances,  and  never 
denied  by  the  executive  or  legislative  departments."  130  U.  S.  606, 
607,  9  Sup.  Ct.  631.  This  statement  was  supported  by  many  citations 
from  the  diplomatic  correspondence  of  successive  Secretaries  of  State, 
collected  in  Whart.  Int.  Law  Dig.  §  206. 

The  right  of  a  nation  to  expel  or  deport  foreigners  who  have  not 
been  naturalized,  or  taken  any  steps  towards  becoming  citizens  of 
the  country,  rests  upon  the  same  grounds,  and  is  as  absolute  and  un- 
qualined,  as  the  right  to  prohibit  and  prevent  their  entrance  into  the 
country.  *  *  *  [Here  follow  quotations  to  this  effect  from  vari- 
ous American  diplomatic  dispatches,  from  writers  on  the  law  of  na- 
tions, and  from  British  decisions.] 

The  right  to  exclude  or  to  expel  all  aliens,  or  any  class  of  aliens, 
absolutely  or  upon  certain  conditions,  in  war  or  in  peace,  being  an  in- 
herent and  inalienable  right  of  every  sovereign  and  independent  na- 
tion, essential  to  its  safety,  its  independence,  and  its  welfare,  the  ques- 
tion now  before  the  court  is  whether  the  manner  in  which  Congress 
has  exercised  this  right  in  sections  6  and  7  of  the  act  of  1892  is  con- 
sistent with  the  Constitution. 

The  United  States  are  a  sovereign  and  independent  nation,  and  are 
vested  by  the  Constitution  with  the  entire  control  of  international  re- 
lations, and  with  all  the  powers  of  government  necessary  to  maintain 
that  control,  and  to  make  it  effective.  The  only  government  of  this 
country  which  other  nations  recognize  or  treat  with  is  the  government 
of  the  Union,  and  the  only  American  flag  known  throughout  the 
world  is  the  flag  of  the  United  States. 

The  Constitution  of  the  United  States  speaks  with  no  uncertain 
sound  upon  this  subject.  That  instrument,  established  by  the  people 
of  the  United  States  as  the  fundamental  law  of  the  land,  has  con- 
ferred upon  the  President  the  executive  power;  has  made  him  the 
commander  in  chief  of  the  army  and  navy ;  has  authorized  him,  by 
and  with  the  consent  of  the  Senate,  to  make  treaties,  and  to  appoint 
ambassadors,  public  ministers,  and  consuls;  and  has  made  it  his  duty 
to  take  care  that  the  laws  be  faithfully  executed.  The  Constitution 
has  granted  to  Congress  the  power  to  regulate  commerce  with  foreign 
nations,  including  the  entrance  of  ships,  the  importation  of  goods, 
and  the  bringing  of  persons  into  the  ports  of  the  United  States;  to 
establish  a  uniform  rule  of  naturalization ;  to  define  and  punish  pi- 
racies and  felonies  committed  on  the  high  seas,  and  offenses  against 
the  law  of  nations ;  to  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  make  rules  concerning  captures  on  land  and  water ;  to  raise 
and  support  armies,  to  provide  and  maintain  a  navy,  and  to  make  rules 
for  the  government  and  regulation  of  the  land  and  naval  forces ;  and 
to  make  all  laws  necessary  and  proper  for  carrying  into  execution 
these  powers,  and  all  other  powers  vested  by  the  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or  officer 


Ch.  15)  FOREIGN    RELATIONS.    INDIANS,   AND    ALIENS  981 

thereof.  And  the  several  states  are  expressly  forbidden  to  enter  into 
any  treaty,  alliance,  or  confederation;  to  grant  letters  of  marque  and 
reprisal;  to  enter  into  any  agreement  or  compact  with  another  state, 
or  with  a  foreign  power;  or  to  engage  in  war,  unless  actually  in- 
vaded, or  in  such  imminent  danger  as  will  not  admit  of  delay. 

In  exercising  the  great  power  which  the  people  of  the  United  States, 
by  establishing  a  written  Constitution  as  the  supreme  and  paramount 
law,  have  vested  in  this  court,  of  determining,  whenever  the  question 
is  properly  brought  before  it,  whether  the  acts  of  the  legislature  or  of 
the  executive  are  consistent  with  the  Constitution,  it  behooves  the 
court  to  be  careful  that  it  does  not  undertake  to  pass  upon  political 
questions,  the  final  decision  of  which  has  been  committed  by  the  Con- 
stitution to  the  other  departments  of  the  government.     *     *     * 

The  power  to  exclude  or  to  expel  aliens,  being  a  power  affecting 
international  relations,  is  vested  in  the  political  departments  of  the 
government,  and  is  to  be  regulated  by  treaty  or  by  act  of  Congress, 
and  to  be  executed  by  the  executive  authority  according  to  the  regu- 
lations so  established,  except  so  far  as  the  judicial  department  has 
been  authorized  by  treaty  or  by  statute,  or  is  required  by  the  para- 
mount law  of  the  Constitution,  to  intervene.1  *  *  *  The  power 
to  exclude  aliens,  and  the  power  to  expel  them,  rest  upon  one  founda- 
tion, are  derived  from  one  source,  are  supported  by  the  same  reasons, 
and  are  in  truth  but  parts  of  one  and  the  same  power.     *     *     * 

By  the  law  of  nations,  doubtless,  aliens  residing  in  a  country,  with 
the  intention  of  making  it  a  permanent  place  of  abode,  acquire,  in 
one  sense,  a  domicile  there;  and,  while  they  are  permitted  by  the  na- 
tion to  retain  such  a  residence  and  domicile,  are  subject  to  its  laws, 

i  The  validity  of  such  proceedings  when  conducted  by  executive  officers  is 
treated  in  chapter  IX.  section  1,  ante.  pp.  28 

For  constitutional  purposes,  an  alien  seeking  admission,  "although  physi- 
cally within  our  boundaries.  Is  to  be  regarded  as  if  he  had  bei 
the  limit  of  our  jurisdiction,  and  kept  there  while  his  right  to  eater  vu 
under  debate."  D.  S.  v.  Ju  Toy,  188  0.  S.  253,  263,  25  Sup.  Ct  644,  646,  49 
L.  Kd.  1040  (1906).  But  the  right  to  exclude  or  expel  aliens  by  purely  admin- 
istrative proceedings  does  not  include  the  right  to  Inflict  punishment  without 
recourse  to  the  courts,  under  Const..  Amends.  V  and  VI. 

"It  is  urged  that  the  offense  of  being  and  remaining  unlawfully  within  the 
limits  of  the  United  States  by  an  alien  is  a  political  offense,  and  Is  not  with- 
in the  common-law  cases  triable  only  by  a  jury,  and  that  the  Constitution 
does  not  apply  to  such  a  case.  •  •  •  \ve  think  it  clear  that  detention  or 
temporary  confinement,  as  part  of  the  means  necessary  to  give  effect  to  the 
provisions  for  the  exclusion  or  expulsion  of  aliens,  would  be  valid.  1 
ings  to  exclude  or  expel  would  be  vain  if  those  accused  could  not  be 
custody  pending  the   inquiry  into   their   tru, 

ments  were  being  made  for  their  deportation.  Detention  is  a  usual  feature 
in  every  case  of  arrest  on  a  criminal  When  an  innocent  person 

is  wrongfully  accused;    but  it  is  not  Imprisonment  in  a  ]■■  ... 

But  when  Congress  sees  fit  to  further  i  I  I  bag  the 

persons  of  such  aliens  to  infamous  pn 

eating  their  property,  we  think  such  '  be  valid,  must 

a  judicial  trial  to  establish  the  guilt  of  the  accused." — Wong  Wing  v.  r.  6  . 
103  U.  S.  228,  234,  235,  ~u7,  1U  Sup.  Ct.  077,  41  U  Kd.  140  t,lb'M),  by  Shims,  J 


982  THE   FEDERAL   GOVERNMENT  (Part  3 

and  may  invoke  its  protection  against  other  nations.  *  *  * 
Chinese  laborers,  therefore,  like  all  other  aliens  residing  in  the  United 
States  for  a  shorter  or  longer  time,  are  entitled,  so  long  as  they  are 
permitted  by  the  government  of  the  United  States  to  remain  in  the 
country,  to  the  safeguards  of  the  Constitution,  and  to  the  protection 
of  the  laws,  in  regard  to  their  rights  of  person  and  of  property,  and 
to  their  civil  and  criminal  responsibility.  But  they  continue  to  be 
aliens,  having  taken  no  steps  towards  becoming  citizens,  and  incapable 
of  becoming  such  under  the  naturalization  laws;  and  therefore  re- 
main subject  to  the  power  of  Congress  to  expel  them,  or  to  order 
them  to  be  removed  and  deported  from  the  country,  whenever,  in  its 
judgment,  their  removal  is  necessary  or  expedient  for  the  public  in- 
terest.    *     *     * 

Judgments  affirmed.2 

[Brewer  and  Field,  JJ.,  and  Fuller,  C.  J.,  each  gave  a  dissenting 
opinion.] 


KELLER  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1909.    213  U.  S.  13S,  29  Sup.  Ct.  470.  53 
L.  Ed.  737,  16  Ann.  Cas.  1066.) 

[Error  to  the  federal  District  Court  for  the  Northern  District  of 
Illinois.  A  federal  statute  (Act  Feb.  20,  1907,  c.  1134,  34  Stat.  898, 
899  [U.  S.  Comp.  St.  Supp.  1911,  p.  499])  made  it  a  felony  for  any 
person  to  harbor  for  any  immoral  purpose  any  alien  female  within 
three  years  after  her  entry  into  the  United  States,  and  provided  for 
the  deportation  of  any  alien  female  found  practicing  prostitution 
within  this  period.  Defendant  had  purchased  a  house  of  prostitution 
in  Chicago  in  which  there  was  at  the  time  an  alien  Hungarian  woman 
within  the  terms  of  this  statute,  and  defendant  was  convicted  of  know- 
ingly harboring  said  woman  there  thereafter.] 

Mr.  Justice  Brewer.  *  *  *  It  is  unnecessary  to  determine  how 
far  Congress  may  go  in  legislating  with  respect  to  the  conduct  of  an 
alien  while  residing  here,  for  there  is  no  charge  against  one ;  nor  to 
prescribe  the  extent  of  its  power  in  punishing  wrongs  done  to  an  alien, 
for  there  is  neither  charge  nor  proof  of  any  such  wrong.  So  far  as 
the  statute  or  the  indictment  requires,  or  the  testimony  shows,  she 
was  voluntarily  living  the  life  of  a  prostitute,  and  was  only  furnished 
a  place  by  the  defendants  to  follow  her  degraded  life.  While  the 
keeping  of  a  house  of  ill-fame  is  offensive  to  the  moral  sense,  yet 
that  fact  must  not  close  the  eye  to  the  question  whether  the  power 
to  punish  therefor  is  delegated  to  Congress  or  is  reserved  to  the  state. 

2  Accord :  TJ.  S.  v.  Williams,  194  U.  S.  279,  24  Sup.  Ct  719,  4S  L.  Ed.  979 
(1904)  (exclusion  of  aliens  for  anarchistic  views). 


Ch.  15)  FOREIGN    RELATIONS,   INDIANS,   AND    ALIENS  983 

Jurisdiction  over  such  an  offense  comes  within  the  accepted  definition 
of  the  police  power.  Speaking  generally,  that  power  is  reserved  to 
the  states,  for  there  is  in  the  Constitution  no  grant  thereof  to  Con- 
gress.    *     *     *     [Here  follow  quotations  from  various  cases.] 

The  question  is,  therefore,  whether  there  is  any  authority  conferred 
upon  Congress  by  which  this  particular  portion  of  the  statute  can  be 
sustained.  By  section  2  of  article  2  of  the  Constitution,  power  is  given 
to  the  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  but  there  is  no  suggestion  in  the  record  or  in  the 
briefs  of  a  treaty  with  the  king  of  Hungary  under  which  this  legisla- 
tion can  be  supported. 

The  general  power  which  exists  in  the  nation  to  control  the  coming 
in  or  removal  of  aliens  is  relied  upon,  the  government  stating  in  its 
brief  these  two  propositions :  "The  clause  in  question  should  be  held 
valid  because  it  relates  to  and  materially  affects  the  conditions  upon 
which  an  alien  female  may  be  permitted  to  remain  in  this  country, 
and  the  grounds  which  warrant  her  exclusion.  *  *  *  The  valid- 
ity of  the  provision  in  question  should  be  determined  from  its  general 
effect  upon  the  importation  and  exclusion  of  aliens." 

But  it  is  sufficient  to  say  that  the  act  charged  has  no  significance  in 
either  direction.  *  *  *  The  act  charged  is  only  one  included  in 
the  great  mass  of  personal  dealings  with  aliens.  It  is  her  own  char- 
acter and  conduct  which  determine  the  question  of  exclusion  or  re- 
moval. The  acts  of  others  may  be  evidence  of  her  business  and  char- 
acter. But  it  does  not  follow  that  Congress  has  the  power  to  punish 
those  whose  acts  furnish  evidence  from  which  the  government  may 
determine  the  question  of  her  expulsion.  Every  possible  dealing  of 
any  citizen  with  the  alien  may  have  more  or  less  induced  her  coming. 
But  can  it  be  within  the  power  of  Congress  to  control  all  the  dealings 
of  our  citizens  with  resident  aliens?  If  that  be  possible,  the  door  is 
open  to  the  assumption  by  the  national  government  of  an  almost  un- 
limited body  of  legislation.  By  the  census  of  1900  the  population  of 
the  United  States  between  the  oceans  was,  in  round  numbers.  76,000.- 
000.  Of  these,  10,000,000  were  of  foreign  birth,  and  16.000.000  more 
were  of  foreign  parentage.  Doubtk-;'-  some  have  become  citizens  by 
naturalization,  but  certainly  scattered  through  the  country  there  are 
millions  of  aliens.  If  the  contention  of  the  government  be  sound, 
whatever  may  have  been  done  in  the  past,  however  little  this  field  of 
legislation  may  have  been  entered  upon,  the  power  of  Congress  is 
broad  enough  to  take  cognizance  of  all  dealings  of  citizens  with  aliens. 
*  *  *  Although  Congress  has  not  largely  entered  into  this  field 
of  legislation,  it  may  do  so,  if  it  has  the  power.  Then  we  should  be 
brought  face  tr  face  with  such  a  change  in  the  internal  conditions  of 
this  country  as  was  never  dreamed  of  by  the  framers  of  the  Constitu- 
tion. While  the  acts  of  Congress  are  to  be  liberally  construed  in  or- 
der to  enable  it  to  carry  into  effect  the  powers  conferred,  it  is  equally 


984  THE  FEDERAL  GOVERNMENT  (Part  3 

true  that  prohibitions  and  limitations  upon  those  powers  should  also 
be  fairly  and  reasonably  enforced.     *     *     * 
Judgment  reversed. 

Mr.  Justice  Holmes  [with  whom  concurred  Harlan  and  Moody, 
JJ.],  dissenting:  For  the  purpose  of  excluding  those  who  unlawfully 
enter  this  country  Congress  has  power  to  retain  control  over  aliens 
long  enough  to  make  sure  of  the  facts.  Japanese  Immigrant  Case 
(Yamataya  v.  Fisher)  189  U.  S.  86,  47  L.  Ed.  721,  23  Sup.  Ct.  611. 
To  this  end  it  may  make  their  admission  conditional  for  three  years. 
Pearson  v.  Williams,  202  U.  S.  281,  50  L.  Ed.  1029,  26  Sup.  Ct.  608. 
If  the  ground  of  exclusion  is  their  calling,  practice  of  it  within  a  short 
time  after  arrival  is  or  may  be  made  evidence  of  what  it  was  when 
they  came  in.  *  *  *  And,  while  a  period  of  three  years  seems  to 
be  long,  I  am  not  prepared  to  say,  against  the  judgment  of  Congress, 
that  it  is  too  long.  *  *  *  I  think  that  Congress  may  require,  as 
a  condition  of  the  right  to  remain,  good  behavior  for  a  certain  time, 
in  matters  deemed  by  it  important  to  the  public  welfare,  and  of  a 
kind  that  indicates  a  pre-existing  habit  that  would  have  excluded  the 
party  if  it  had  been  known.  Therefore  I  am  of  opinion  that  it  is 
within  the  power  of  Congress  to  order  the  deportation  of  a  woman 
found  practicing  prostitution  within  three  years.1 

If  Congress  can  forbid  the  entry  and  order  the  subsequent  deporta- 
tion of  professional  prostitutes,  it  can  punish  those  who  co-operate 
in  their  fraudulent  entry.  "If  Congress  has  power  to  exclude  such 
laborers  *  *  *  it  has  the  power  to  punish  any  who  assist  in  their 
introduction."  That  was  a  point  decided  in  Lees  v.  United  States, 
150  U.  S.  476,  480,  37  L.  Ed.  1150,  1151,  14  Sup.  Ct.  163,  164.  The 
same  power  must  exist  as  to  co-operation  in  an  equally  unlawful  stay. 
The  indictment  sets  forth  the  facts  that  constitute  such  co-operation, 
and  need  not  allege  the  conclusion  of  law.  On  the  principle  of  the 
cases  last  cited,  in  order  to  make  its  prohibition  effective,  the  law  can 
throw  the  burden  of  finding  out  the  fact  and  date  of  a  prostitute's  ar- 
rival from  another  country  upon  those  who  harbor  her  for  a  purpose 
that  presumably  they  know,  in  any  event,  to  be  contrary  to  law. 
Therefore,  while  I  have  admitted  that  the  time  fixed  seems  to  me  to 
be  long,  I  can  see  no  other  constitutional  objection  to  the  act,  and, 
as  I  have  said,  I  think  that  that  one  ought  not  to  prevail.2 

i  Accord :  Zakonaite  v.  Wolf,  226  U.  S.  272,  33  Sup.  Ct.  31,  57  L.  Ed.  

'1912)  (under  three-year  statute) ;  Low  Wan  Suey  v.  Backus.  225  TJ.  S.  460, 
32  Sup.  Ct.  734,  56  h.  Ed.  1165  (1912)  (even  when  alien  is  wife  of  an  Ameri- 
can citizen) ;  Bugajewitz  v.  Adams,  228  U.  S.  5S5,  33  Sup.  Ct.  607,  57  L.  Ed. 
—  (1913)  (same,  after  repeal  of  three-year  limitation). 

2  See  TJ.  S.  v.  Davin  (D.  C.)  189  Fed.  244  (1911)  (operation  of  statute  of  1910 
as  to  harboring  alien  prostitutes). 


Cll.16)  TEHKITOHIE8,  DBPBNDJCNCUBS,  AND    NEW    STATES  985 

CHAPTER  XVI 
TERRITORIES,  DEPENDENCIES,  AND  NEW  STATES 


In  re  ROSS. 


(Supreme  Court  of  the  United  States,   1MX).     140  0.  S.  4.".'!.  11   Sup.  Ct  S97, 
35  L.  Ed.  581.) 

[Appeal  from  United  States  Circuit  Court  for  the  Northern  Dis- 
trict of  New  York.  Petitioner,  a  seaman,  committed  a  murder  on 
board  an  American  ship  in  the  harbor  of  Yokohama,  Japan,  of  which 
he  was  convicted  in  1880  in  a  trial  before  the  American  consular 
tribunal  there,  conducted  in  accordance  with  federal  legislation  under 
a  treaty  with  Japan,  but  without  either  a  grand  or  petit  jury.  In 
1890,  while  serving  a  life  sentence  for  this  crime  at  Albany,  New 
York,  he  applied  to  said  court  for  a  writ  of  habeas  corpus  for  his 
discharge,  alleging  the  illegality  of  said  conviction.  Writ  denied  and 
appeal  taken.] 

.Mr.  Justice  Field.  *  *  *  The  circuit  court  did  not  refuse  to 
discharge  the  petitioner  upon  any  independent  conclusion  as  to  the 
validity  of  the  legislation  of  Congress  establishing  the  consular 
tribunal  in  Japan,  and  the  trial  of  Americans  for  offenses  committed 
within  the  territory  of  that  country,  without  the  indictment  of  a  grand 
jury,  and  without  a  trial  by  a  petit  jury,  but  placed  its  decision  upon 
the  long  and  uniform  acquiescence  by  the  executive,  administrative. 
and  legislative  departments  of  the  government  in  the  validity  of  the 
legislation.  *  *  *  The  circuit  court  might  have  found  an  ad- 
ditional ground  for  not  calling  in  question  the  legislation  of  Congress 
in  the  uniform  practice  of  civilized  governments  for  centuries  to  pro- 
vide consular  tribunals  in  other  than  Christian  countries,  or  to  invest 
their  consuls  with  judicial  authority,  which  is  the  same  thing,  for  the 
trial  of  their  own  subjects  or  citizens  for  offenses  committed  in  those 
countries,  as  well  as  for  the  settlement  of  civil  disputes  between  them ; 
and  in  the  uniform  recognition,  down  to  the  time  of  the  formation  of 
our  government,  of  the  fact  that  the  establishment  of  such  tribunals 
was  among  the  most  important  subjects  for  treaty  stipulations.  This 
recognition  of  their  importance  has  continued  ever  since,  though  the 
powers  of  those  tribunals  are  now  more  carefully  defined  than  for- 
merly.   Dainese  v.  Hale,  91  U.  S.  13,  23  L.  F.d.  190.     *     *     * 

The  treaty-making  power  vested  in  our  government  extends  to  all 
proper  subjects  of  negotiation  with  foreign  governments.  It  can, 
equally  with  any  of  the  former  or  present  governments  of  Europe, 
make  treaties  providing  for  the  exercise  of  judicial  authority  in  other 


986  THE   FEDERAL   GOVERNMENT  (Part  o 

countries  by  its  officers  appointed  to  reside  therein.  We  do  not  un- 
derstand that  any  question  is  made  by  counsel  as  to  its  power  in  this 
respect.  His  objection  is  to  the  legislation  by  which  such  treaties  are 
carried  out,  contending  that,  so  far  as  crimes  of  a  felonious  character 
are  concerned,  the  same  protection  and  guaranty  against  an  undue 
accusation  or  an  unfair  trial  secured  by  the  Constitution  to  citizens 
of  the  United  States  at  home  should  be  enjoyed  by  them  abroad.  Ini 
none  of  the  laws  which  have  been  passed  by  Congress  to  give  effect  to 
treaties  of  the  kind  has  there  been  any  attempt  to  require  indictment 
by  a  grand  jury  before  one  can  be  called  upon  to  answer  for  a  public 
offense  of  that  grade  committed  in  those  countries,  or  to  secure  a  jury 
on  the  trial  of  the  offense.  Yet  the  laws  on  that  subject  have  been 
passed  without  objection  to  their  constitutionality.  Indeed,  objec- 
tion on  that  ground  was  never  raised  in  any  quarter,  so  far  as  we  are 
informed,  until  a  recent  period.  It  is  now,  however,  earnestly  pressed, 
by  counsel  for  the  petitioner,  but  we  do  not  think  it  tenable.  By  the 
Constitution  a  government  is  ordained  and  established  "for  the  United 
States  of  America,"  and  not  for  countries  outside  of  their  limits.  The 
guaranties  it  affords  against  accusation  of  capital  or  infamous  crimes, 
except  by  indictment  or  presentment  by  a  grand  jury,  and  for  an  im- 
partial trial  by  a  jury  when  thus  accused,  apply  only  to  citizens  and 
others  within  the  United  States,  or  who  are  brought  there  for  trial 
for  alleged  offenses  committed  elsewhere,  and  not  to  residents  or  tem- 
porary sojourners  abroad.  Cook  v.  U.  S.,  138  U.  S.  157,  181,  11  Sup. 
Ct.  268,  34  L.  Ed.  906. 

The  Constitution  can  have  no  operation  in  another  country.  When, 
therefore,  the  representatives  or  officers  of  our  government  are  per- 
mitted to  exercise  authority  of  any  kind  in  another  country,  it  must 
be  on  such  conditions  as  the  two  countries  may  agree ;  the  laws  of 
neither  one  being  obligatory  upon  the  other.  The  deck  of  a  private 
American  vessel,  it  is  true,  is  considered,  for  many  purposes,  con- 
structively as  territory  of  the  United  States;  yet  persons  on  board  of 
such  vessels,  whether  officers,  sailors,  or  passengers,  cannot  invoke 
the  protection  of  the  provisions  referred  to  until  brought  within  the 
actual  territorial  boundaries  of  the  United  States.1  And,  besides, 
their  enforcement  abroad  in  numerous  places,  where  it  would  be  high- 
ly important  to  have  consuls  invested  with  judicial  authority,  would 
be  impracticable  from  the  impossibility  of  obtaining  a  competent  grand 
or  petit  jury.  The  requirement  of  such  a  body  to  accuse  and  to  try  an 
offender  would,  in  a  majority  of  cases,  cause  an  abandonment  of  all 
prosecution.  The  framers  of  the  Constitution,  who  were  fully  aware 
of  the  necessity  of  having  judicial  authority  exercised  by  our  consuls 
in  non-Christian  countries,  if  commercial  intercourse  was  to  be  had 
with  their  people,  never  could  have  supposed  that  all  the  guaranties 

i  See  the  quotation  from  United  States  t.  Ju  Toy,  in  note  1  under  Fong  Tue 
Ting  v.  United  States,  ante,  p.  gsi. 


Ch.  16)  TERRITORIES,  DEPENDENCIES,  AND    NEW   STATES  987 

in  the  administration  of  the  law  upon  criminals  at  home  were  to  be 
transferred  to  such  consular  establishments,  and  applied  before  an 
American  who  had  committed  a  felony  there  could  be  accused  and 
tried.  They  must  have  known  that  such  a  requirement  would  defeat 
the  main  purpose  of  investing  the  consul  with  judicial  authority. 
While,  therefore,  in  one  aspect  the  American  accused  of  crime  com- 
mitted in  those  countries  is  deprived  of  the  guaranties  of  the  Con- 
stitution against  unjust  accusation  and  a  partial  trial,  yet  in  another 
aspect  he  is  the  gainer,  in  being  withdrawn  from  the  procedure  of 
their  tribunals,  often  arbitrary  and  oppressive,  and  some  times  ac- 
companied with  extreme  cruelty  and  torture.     *     *     * 

The  jurisdiction  of  the  consular  tribunal  *  *  *  is  to  be  ex- 
ercised and  enforced  in  accordance  with  the  laws  of  the  United  States ; 
and  of  course,  in  pursuance  of  them,  the  accused  will  have  *  *  * 
the  benefit  of  all  the  provisions  necessary  to  secure  a  fair  trial  be- 
fore the  consul  and  his  associates.  The  only  complaint  of  this  legisla- 
tion made  by  counsel  is  that  *  *  *  it  does  not  require  a  previous 
presentment  or  indictment  by  a  grand  jury,  and  does  not  give  to  the 
accused  a  petit  jury.  The  want  of  such  clauses,  as  affecting  the 
validity  of  the  legislation,  we  have  already  considered.     *     *     « 

Order  affirmed.2 

=  By  the  Spanish  treaty  of  1S98,  Spain  relinquished  all  sovereignty  over 
Cuba,  and  the  Island  was  temporarily  occupied  and  its  civil  government  ad- 
ministered Under  American  military  control,  in  pursuance  of  a  prior  devlara- 
tion  by  Congress  disclaiming  any  intention  to  exercise  sovereignty  over  Cuba 
except  for  the  pacification  thereof.  During  this  period  the  extradition  of 
American  citizens  to  Cuba  for  trial  there  was  upheld,  Harlan,  J.,  saying  in 
Xeely  v.  Henkel,  ISO  U.  S.  109,  122,  21  Sup.  Ct.  302,  307,  45  h.  Ed.  44*  (1901): 
"It  is  contended  that  the  act  of  June  6,  1900.  is  unconstitutional  and  void  in 
that  it  does  not  secure  to  the  accused,  when  surrendered  to  a  foreign  country 
for  trial  in  its  tribunals,  all  of  the  rights,  privileges,  and  immunities  tl 
guaranteed  by  the  Constitution  to  persons  charged  with  the  commission  In  this 
eountry  of  crime  against  the  United  States.  Allusion  Is  here  made  to  the 
provisions  of  the  federal  Constitution  relating  to  the  writ  of  habeas  corpus, 
hills  of  attainder,  ex  post  facto  laws,  trial  by  jury  for  crimes,  and  generally 
to  the  fundamental  guaranties  of  life,  liberty,  ami  property  embodied  in  that 
instrument.  The  answer  to  this  suggestion  is  that  those  provisions  have  QO 
relation  to  crimes  committed  without  the  Jurisdiction  of  the  United  States 
against  the  laws  of  a  foreign  country."  See  the  discussion  of  this  case  in 
I  >ownes  v.  Bidwell,  post,  at  p.  101L 

Compare  Talton  v.  Mayes,  163  U.  S.  376,  16  Sup.  Ct  9S6,  41  L.  Ed.  196 
US9G)  (prohibitions  of  fifth  amendment  not  applicable  to  Indian  tribal  gov- 
ernment in  Indian  Territory). 


988  THE  FEDERAL   GOVERNMENT  (Fart  it 


DOWNES  v.  BIDWELL. 

(Supreme  Court  of  the  United  States,  1901.    182  U.  S.  244,  21  Sup.  Ct.  770, 
45  L.  Ed.  10S8.) 

[Error  to  the  United  States  Circuit  Court  for  the  Southern  Dis- 
trict of  New  York.  In  July,  1898,  during  the  Spanish-American  war, 
Porto  Rico  was  invaded  by  the  United  States  army  and  was  held  there- 
after under  military  government  until  the  passage  by  Congress  on 
April  12,  1900,  of  the  Foraker  act  for  its  civil  government,  which 
took  effect  May  1,  1900.  On  April  11,  1899,  the  treaty  of  peace  be- 
came effective  by  which  Porto  Rico  was  ceded  to  the  United  States  by 
Spain.  Under  the  Foraker  act  duties  upon  goods  from  Porto  Rico 
were  collected  from  Downes  in  New  York,  and  he  brought  suit  to 
recover  them  from  the  collector  of  the  port.  A  demurrer  to  his  com- 
plaint being  sustained,  he  took  this  writ.] 

Mr.  Justice  Brown.  *  *  *  In  the  case  of  De  Lima  v.  Bidwell 
just  decided,  181  U.  S.  1,  21  Sup.  Ct.  743,  45  L.  Ed.  1041,  we  held 
that,  upon  the  ratification  of  the  treaty  of  peace  with  Spain,  Porto- 
Rico  ceased  to  be  a  foreign  country,  and  became  a  territory  of  the 
United  States,  and  that  duties  were  no  longer  collectible  upon  mer- 
chandise brought  from  that  island.  We  are  now  asked  to  hold  that 
it  became  a  part  of  the  United  States  within  that  provision  of  the 
Constitution  which  declares  that  "all  duties,  imposts,  and  excises  shall 
be  uniform  throughout  the  United  States."  Article  1,  §  8.  If  Porto 
Rico  be  a  part  of  the  United  States,  the  Foraker  act  imposing  duties 
upon  its  products  is  unconstitutional,  not  only  by  reason  of  a  violation 
of  the  uniformity  clause,  but  because  by  section  9  "vessels  bound  to 
or  from  one  state"  cannot  "be  obliged  to  enter,  clear,  or  pay  duties  in 
another." 

The  case  also  involves  the  broader  question  whether  the  revenue 
clauses  of  the  Constitution  extend  of  their  own  force  to  our  newly 
acquired  territories.  The  Constitution  itself  does  not  answer  the  ques- 
tion. Its  solution  must  be  found  in  the  nature  of  the  government  cre- 
ated by  that  instrument,  in  the  opinion  of  its  contemporaries,  in  the 
practical  construction  put  upon  it  by  Congress,  and  in  the  decisions  of 
this  court.     *     *     * 

[After  referring  to  the  Articles  of  Confederation,  the  Ordinance  of 
1787,  and  the  Constitution :]  It  is  sufficient  to  observe  in  relation  to 
these  three  fundamental  instruments,  that  it  can  nowhere  be  inferred 
that  the  territories  were  considered  a  part  of  the  United  States.  The 
Constitution  was  created  by  the  people  of  the  United  States,  as  a  un- 
ion of  states,  to  be  governed  solely  by  representatives  of  the  states; 
and  even  the  provision  relied  upon  here,  that  all  duties,  imposts,  and 
excises  shall  be  uniform  "throughout  the  United  States,"  is  explained 
by  subsequent  provisions  of  the  Constitution,  that  "no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  state"  and  "no  preference 


Ch.  16)  TERRITORIES,  DEPENDENCIES,  AND   NEW    STATES  98& 

shall  be  given  by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  state  over  those  of  another ;  nor  shall  vessels  bound  to  or 
from  one  state  be  obliged  to  enter,  clear,  or  pay  duties  in  another." 
In  short,  the  Constitution  deals  with  states,  their  people,  and  their  rep- 
resentatives. 

The  thirteenth  amendment  to  the  Constitution,  prohibiting  slavery 
and  involuntary  servitude  "within  the  United  States,  or  in  any  place 
subject  to  their  jurisdiction,"  is  also  significant  as  showing  that  there 
may  be  places  within  the  jurisdiction  of  the  United  States  that  are  no 
part  of  the  Union.  To  say  that  the  phraseology  of  this  amendment 
was  due  to  the  fact  that  it  was  intended  to  prohibit  slavery  in  the 
seceded  states,  under  a  possible  interpretation,  that  those  states  were 
no  longer  a  part  of  the  Union,  is  to  confess  the  very  point  in  issue,  since 
it  involves  an  admission  that,  if  these  states  were  not  a  part  of  the  Un- 
ion, they  were  still  subject  to  the  jurisdiction  of  the  United  States. 

Upon  the  other  hand,  the  fourteenth  amendment,  upon  the  subject 
of  citizenship,  declares  only  that  "all  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  cit- 
izens of  the  United  States,  and  of  the  state  wherein  they  reside." 
Here  there  is  a  limitation  to  persons  born  or  naturalized  in  the  United 
States,  which  is  not  extended  to  persons  born  in  any  place  "subject 
to  their  jurisdiction."     *     *     * 

[After  referring  to  the  treaty  acquiring  Louisiana  (the  pertinent 
ins  of  which  are  given  in  the  opinion  of  White,  ].,  following, 
p.  1006),  and  to  federal  statutes  in  pursuance  thereof  (Act  Oct.  31, 
1803,  c.  1,  2  Stat.  245,  and  Act  March  26,  1804,  c.  38,  2  Stat.  2 
These  statutes  may  be  taken  as  expressing  the  views  of  Congress, 
first,  that  territory  may  be  lawfully  acquired  by  treaty,  with  a  provi- 
sion for  its  ultimate  incorporation  into  the  Union  ;  and,  second,  that 
a  discrimination  in  favor  of  certain  foreign  vessels  trading  with  the 
ports  of  a  newly  acquired  territory  is  no  violation  of  that  clause  of 
the  Constitution  (article  1,  §  9)  that  declares  that  no  preference  shall 
be  given  to  the  ports  of  one  state  over  those  of  another.  It  is  evident 
that  the  constitutionality  of  this  discrimination  can  only  be  supported 
upon  the  theory  that  ports  of  territories  arc  not  ports  of  state  within 
the  meaning  of  the  Constitution.     *     *     * 

Notwithstanding  these  provisions  for  the  incorporation  of  territories 
into  the  Union,  Congress,  not  only  in  organizing  the  territory  of  Lou- 
isiana by  Act  of  March  26,  1804,  but  all  other  territories  carved  out 
of  this  vast  inheritance,  has  assumed  that  the  Constitution  did  not 
extend  to  them  of  its  own  force,  and  has  in  each  case  made  special 
provision,  cither  that  their  legislatures  shall  pa<s  no  law  incon 
with  the  Constitution  of  the  United  States,  or  that  the  Constitution  or 
laws  of  the  United  States  shall  be  the  supreme  law  of  such  territories. 
Finally,  in  Rev.  Stat.  §  1891,  a  general  provision  was  enacted  that 
"the  Constitution  and  all  laws  of  the  United  States  which  are  not 
locally  inapplicable  shall  have  the  same  force  and  effect  within  all  the 


090  THE  FEDERAL  GOVERNMENT  (Part  3 

organized  territories,  and  in  every  territory  hereafter  organized,  as 
elsewhere  within  the  United  States."     *     *     * 

The  decisions  of  this  court  upon  this  subject  have  not  been  alto- 
gether harmonious.  Some  of  them  are  based  upon  the  theory  that 
the  Constitution  does  not  apply  to  the  territories  without  legislation. 
Other  cases,  arising  from  territories  where  such  legislation  has  been 
had,  contain  language  which  would  justify  the  inference  that  such 
legislation  was  unnecessary,  and  that  the  Constitution  took  effect 
immediately  upon  the  cession  of  the  territory  to  the  United 
States.     *     *     * 

The  earliest  case  is  that  of  Hepburn  v.  Ellzey,  2  Cranch,  445,  2  L. 
Ed.  332,  in  which  this  court  held  that,  under  that  clause  of  the  Con- 
stitution limiting  the  jurisdiction  of  the  courts  of  the  United  States  to 
controversies  between  citizens  of  different  states,  a  citizen  of  the  Dis- 
trict of  Columbia  could  not  maintain  an  action  in  the  circuit  court  of 
the  United  States.     *     *     * 

Loughborough  v.  Blake,  5  Wheat.  317,  5  L.  Ed.  98,  was  an  action  of 
trespass  or,  as  appears  by  the  original  record,  replevin,  brought  in 
the  circuit  court  for  the  District  of  Columbia  to  try  the  right  of  Con- 
gress to  impose  a  direct  tax  for  general  purposes  on  that  District.  3 
Stat,  at  L.  216,  chap.  60.  It  was  insisted  that  Congress  could  act  in 
a  double  capacity :  in  one  as  legislating  for  the  states ;  in  the  other 
as  a  local  legislature  for  the  District  of  Columbia.  In  the  latter  char- 
acter, it  was  admitted  that  the  power  of  levying  direct  taxes  might 
be  exercised,  but  for  District  purposes  only,  as  a  state  legislature  might 
tax  for  state  purposes ;  but  that  it  could  not  legislate  for  the  District 
under  art.  1,  §  8,  giving  to  Congress  the  power  "to  lay  and  collect 
taxes,  imposts,  and  excises,"  which  "shall  be  uniform  throughout  the 
United  States,"  inasmuch  as  the  District  was  no  part  of  the  United 
States.  It  was  held  that  the  grant  of  this  power  was  a  general  one 
without  limitation  as  to  place,  and  consequently  extended  to  all  places 
over  which  the  government  extends ;  and  that  it  extended  to  the  Dis- 
trict  of  Columbia  as  a  constituent  part  of  the  United  States.     *     *    * 

There  could  be  no  doubt  as  to  the  correctness  of  this  conclusion,  so 
far,  at  least,  as  it  applied  to  the  District  of  Columbia.  This  District 
had  been  a  part  of  the  states  of  Maryland  and  Virginia.  It  had  been 
subject  to  the  Constitution,  and  was  a  part  of  the  United  States.  The 
Constitution  had  attached  to  it  irrevocably.  There  are  steps  which 
can  never  be  taken  backward.  *  *  *  Indeed,  it  would  have  been 
a  fanciful  construction  to  hold  that  territory  which  had  been  once  a 
part  of  the  United  States  ceased  to  be  such  by  being  ceded  directly 
to  the  federal  government. 

In  delivering  the  opinion,  however,  the  Chief  Justice  made  certain 
observations  which  have  occasioned  some  embarrassment  in  other 
cases.  "The  power,"  said  he,  "to  lay  and  collect  duties,  imposts,  and 
excises  may  be  exercised,  and  must  be  exercised,  throughout  the 
United  States.    Does  this  term  designate  the  whole,  or  any  particular 


Cll.  1G)  TERRITORIES,   DEPENDENCIES,  AND    NEW    STATES  991 

portion  of  the  American  empire?  Certainly  this  question  can  admit 
but  of  one  answer.  It  is  the  name  given  to  our  great  Republic  which 
is  composed  of  states  and  territories.  The  District  of  Columbia,  or 
the  territory  west  of  the  Missouri,  is  not  less  within  the  United  State-- 
than  Maryland  or  Pennsylvania;  and  it  is  not  less  necessary,  on  the 
principles  of  our  Constitution,  that  uniformity  in  the  imposition  of 
imposts,  duties,  and  excises  should  be  observed  in  the  one  than  in  the 
other."  *  *  *  So  far  as  applicable  to  the  District  of  Columbia, 
these  observations  are  entirely  sound.  So  far  as  they  apply  to  the 
territories,  they  were  not  called  for  by  the  exigencies  of  the  case. 

In  line  with  Loughborough  v.  Blake  is  the  case  of  Callan  v.  Wilson, 
127  U.  S.  540,  32  L.  Ed.  223,  8  Sup.  Ct.  1301,  in  which  the  provisions 
of  the  Constitution  relating  to  trial  by  jury  were  held  to  be  in  force 
in  the  District  of  Columbia.  Upon  the  other  hand,  in  Geofroy  v. 
Riggs,  133  U.  S.  258,  33  L.  Ed.  642,  10  Sup.  Ct.  295,  the  District  of 
Columbia,  as  a  political  community,  was  held  to  be  one  of  "the  states 
of  the  Union"  within  the  meaning  of  that  term  as  used  in  a  consular 
convention  of  February  23,  1853,  with  France.  *  *  *  This  case- 
may  be  considered  as  establishing  the  principle  that,  in  dealing  with 
foreign  sovereignties,  the  term  "United  States"  has  a  broader  meaning 
than  when  used  in  the  Constitution,  and  includes  all  territories  sub- 
ject to  the  jurisdiction  of  the  federal  government,  wherever  located. 
In  its  treaties  and  conventions  with  foreign  nations  this  government 
is  a  unit.     *     *     * 

It  may  be  added  in  this  connection,  that  to  put  at  rest  all  doubts 
regarding  the  applicability  of  the  Constitution  to  the  District  of  Col- 
umbia, Congress  by  the  act  of  February  21,  1871  (16  Stat,  at  L.  419. 
426,  c.  62,  §  34),  specifically  extended  the  Constitution  and  laws  of 
the  United  States  to  this  District.     *     *     * 

[After  referring  to  the  case  of  American  Ins.  Co.  v.  Canter,  1  Pet. 
511,  7  L.  Ed.  242,  holding  that  admiralty  jurisdiction  in  the  territory 
of  Florida  might  be  lawfully  exercised  by  courts  whose  judges  were 
appointed  for  terms  of  four  years:]  The  opinion  of  Mr.  Chief  Jus- 
tice Marshall  in  this  case  should  be  read  in  connection  with  article 
3,  §§  1  and  2,  of  the  Constitution,  vesting  "the  judicial  power  of  the 
United  States"  in  "one  Supreme  Court  and  in  such  inferior  courts  as 
the  Congress  may  from  time  to  time  ordain  and  establish.  The  judges 
both  of  the  Supreme  and  inferior  courts  shall  hold  their  offices  during 
good  behavior,"  etc.  *  *  *  He  held  that  the  judicial  clause  of  the 
Constitution,  above  quoted,  did  not  apply  to  Florida ;  that  the  judges 
of  the  superior  courts  of  Florida  held  their  office  for  four  years ;  that 
"these  courts  are  not,  then,  constitutional  courts  in  which  the  judicial 
power  conferred  by  the  Constitution  on  the  general  government  can 
be  deposited ;"  that  "they  are  legislative  courts,  created  in  virtue  of 
the  general  right  of  sovereignty  which  exists  in  the  government."  or 
in  virtue  of  the  territorial  clause  of  the  Constitution  ;  that  the  juris- 
diction with  which  they  are  invested  is  not  a  part  of  judicial  power 


<)92  THE   FEDERAL   GOVERNMENT  (Part  3 

of  the  Constitution,  but  is  conferred  by  Congress  in  the  exercise  of 
those  general  powers  which  that  body  possesses  over  the  territories 
of  the  United  States;  and  that  in  legislating  for  them  Congress  ex- 
ercises the  combined  powers  of  the  general  and  of  a  state  govern- 
ment. The  act  of  the  territorial  legislature  creating  the  court  in 
question  was  held  not  to  be  "inconsistent  with  the  laws  and  Constitu- 
tion of  the  United  States,"  and  the  decree  of  the  circuit  court  was  af- 
firmed. 

As  the  only  judicial  power  vested  in  Congress  is  to  create  courts 
whose  judges  shall  hold  their  offices  during  good  behavior,  it  neces- 
sarily follows  that,  if  Congress  authorizes  the  creation  of  courts  and 
the  appointment  of  judges  for  a  limited  time,  it  must  act  independ- 
ently of  the  Constitution  and  upon  territory  which  is  not  part  of  the 
United  States  within  the  meaning  of  the  Constitution.  In  delivering 
his  opinion  in  this  case  Mr.  Chief  Justice  Marshall  made  no  reference 
whatever  to  the  prior  case  of  Loughborough  v.  Blake,  5  Wheat.  317, 
5  L.  Ed.  98,  in  which  he  had  intimated  that  the  territories  were  part 
of  the  United  States.  But  if  they  be  a  part  of  the  United  States,  it 
is  difficult  to  see  how  Congress  could  create  courts  in  such  territories, 
except  under  the  judicial  clause  of  the  Constitution.  The  power  to 
make  needful  rules  and  regulations  would  certainly  not  authorize 
anything  inconsistent  with  the  Constitution  if  it  applied  to  the  terri- 
tories. Certainly  no  such  court  could  be  created  within  a  state,  except 
under  the  restrictions  of  the  judicial  clause.  It  is  sufficient  to  say  that 
this  case  has  ever  since  been  accepted  as  authority  for  the  proposition 
that  the  judicial  clause  of  the  Constitution  has  no  application  to  courts 
created  in  the  territories,  and  that  with  respect  to  them  Congress  has 
a  power  wholly  unrestricted  by  it.  We  must  assume  as  a  logical  in- 
ference from  this  case  that  the  other  powers  vested  in  Congress  by 
the  Constitution  have  no  application  to  these  territories,  or  that  the 
judicial  clause  is  exceptional  in  that  particular.  *  *  *  [Here  are 
discussed  various  cases  dealing  with  the  application  in  the  territories 
of  certain  of  the  first  eight  amendments  to  the  Constitution — Mormon 
Church  v.  U.  S.,  136  U.  S.  1,  10  Sup.  Ct.  792,  34  L.  Ed.  478;  Webster 
v.  Reid,  11  How.  437,  13  L.  Ed.  761 ;  Reynolds  v.  U.  S.,  98  U.  S.  145, 
25  L.  Ed.  244;  Springville  v.  Thomas,  166  U.  S.  707,  17  Sup.  Ct.  717, 
41  L.  Ed.  1172;  Am.  Pub.  Co.  v.  Fisher,  166  U.  S.  464,  17  Sup.  Ct. 
618,  41  L.  Ed.  1079;  Thompson  v.  Utah,  170  U.  S.  343,  18  Sup.  Ct. 
620,  42  L.  Ed.  1061 ;  and  Dred  Scott  v.  Sandford,  19  How.  393,  15 
L.  Ed.  691 — in  all  but  the  last  of  which  the  constitutional  provisions 
in  question  had  been  extended  to  the  territory  by  act  of  Congress.  In 
re  Ross,  ante,  p.  9S5,  was  also  referred  to.] 

To  sustain  the  judgment  in  the  case  under  consideration,  it  by  no 
means  becomes  necessary  to  show  that  none  of  the  articles  of  the 
Constitution  apply  to  the  island  of  Porto  Rico.  There  is  a  clear  dis- 
tinction between  such  prohibitions  as  go  to  the  very  root  of  the  power 
of  Congress  to  act  at  all,  irrespective  of  time  or  place,  and  such  as  are 


Ch.  16)  T.:RKITOKIES,  DEPENDENCIES,   AND   NEW    STATES  993 

Operative  only  "throughout  the  United  States"  or  among  the  several 
states. 

Thus,  when  the  Constitution  declares  that  "no  bill  of  attainder  or 
ex  post  facto  law  shall  be  passed,"  and  that  "no  title  of  nobility  shall 
be  granted  by  the  United  States,"  it  goes  to  the  competency  of  Con- 
gress to  pass  a  bill  of  that  description.  Perhaps  the  same  remark 
may  apply  to  the  first  amendment,  that  "Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting  the  free  ex- 
ercise thereof,  or  abridging  the  freedom  of  speech,  or  of  the  press, 
or  the  right  of  the  people  to  peacefully  assemble  and  to  petition  the 
government  for  a  redress  of  grievances."  We  do  not  wish,  however, 
to  be  understood  as  expressing  an  opinion  how  far  the  Bill  of  Rights 
contained  in  the  first  eight  amendments  is  of  general  and  how  far 
of  local  applicati-  n. 

Upon  the  other  hand,  when  the  Constitution  declares  that  all  duties 
shall  be  uniform  "throughout  the  United  States,"  it  becomes  necessary 
to  inquire  whether  there  be  any  territory  over  which  Congress  has 
jurisdiction  which  is  not  a  part  of  the  "United  States,"  by  which  term 
we  understand  the  states  whose  people  united  to  form  the  Constitution, 
and  such  as  have  since  been  admitted  to  the  Union  upon  an  equality 
with  them.  Not  only  did  the  people  in  adopting  the  thirteenth  amend- 
ment thus  recognize  a  distinction  between  the  United  States  and  "any 
place  subject  to  their  jurisdiction,"  but  Congress  itself,  in  the  Act  of 
March  27,  1804  (2  Stat,  at  L.  298,  c.  56),  providing  for  the  proof  of 
public  records,  applied  the  provisions  of  the  act,  not  only  to  "every 
court  and  office  within  the  United  States,"  but  to  the  "courts  and  of- 
fices of  the  respective  territories  of  the  United  States  and  countries  sub- 
ject to  the  jurisdiction  of  the  United  States."  *  *  *  Unless  these 
words  are  to  be  rejected  as  meaningless,  we  must  treat  them  as  a  rec- 
ognition by  Congress  of  the  fact  that  there  may  be  territories  subject 
to  the  jurisdiction  of  the  United  States,  which  are  not  of  the  United 
States.     *     *     * 

We  are  also  of  opinion  that  the  power  to  acquire  territory  by  treaty 
implies,  not  only  the  power  to  govern  such  territory,  but  to  prescribe 
upon  what  terms  the  United  States  will  receive  its  inhabitants,  and 
what  their  status  shall  be  in  what  Chief  Justice  Marshall  termed  the 
"American  empire."  There  seems  to  be  no  middle  ground  between 
this  position  and  the  doctrine  that  if  their  inhabitants  do  not  become, 
liately  upon  annexation,  citizens  of  the  United  States,  their  chil- 
dren thereafter  born,  whether  savages  or  civilized,  are  such,  and  en- 
titled to  all  the  rights,  privileges  and  immunities  of  citizens.  If  such 
be  their  status,  the  consequences  will  be  extremely  serious.  1 
it  is  doubtful  if  Congress  would  ever  assent  to  the  annexation  of  terri- 
tory upon  the  condition  that  its  inhabitants,  however  foreign  they  may 
be  to  our  habits,  traditions,  and  modes  of  life,  shall  become  at  once 
citizens  of  the  United  States.  In  all  its  treaties  hitherto  the  treaty- 
Haix  Const.!.. — 63 


1)94:  THE  FEDERAL  GOVERNMENT  (Part  o 

making  power  has  made  special  provision  for  this  subject;  in  the 
cases  of  Louisiana  and  Florida,  by  stipulating  that  "the  inhabitants 
shall  be  incorporated  into  the  Union  of  the  United  States  and  admitted 
as  soon  as  possible  *  *  *  to  the  enjoyment  of  all  the  rights,  ad- 
vantages, and  immunities  of  citizens  of  the  United  States;"  in  the 
case  of  Mexico,  that  they  should  "be  incorporated  into  the  Union,  and 
be  admitted  at  the  proper  time  (to  be  judged  of  by  the  Congress  of  the 
United  States)  to  the  enjoyment  of  all  the  rights  of  citizens  of  the 
United  States";  in  the  case  of  Alaska,  that  the  inhabitants  who  re- 
mained three  years,  "with  the  exception  of  uncivilized  native  tribes, 
shall  be  admitted  to  the  enjoyment  of  all  the  rights,"  etc. ;  and  in  the 
case  of  Porto  Rico  and  the  Philippines,  "that  the  civil  rights  and  po- 
litical status  of  the  native  inhabitants  *  *  *  shall  be  determined 
by  Congress."  In  all  these  cases  there  is  an  implied  denial  of  the  right 
of  the  inhabitants  to  American  citizenship  until  Congress  by  further 
action  shall  signify  its  assent  thereto.     *     *     * 

It  is  obvious  that  in  the  annexation  of  out-lying  and  distant  posses- 
sions grave  questions  will  arise  from  differences  of  race,  habits,  laws, 
and  customs  of  the  people,  and  from  differences  of  soil,  climate,  and 
production,  which  may  require  action  on  the  part  of  Congress  that 
would  be  quite  unnecessary  in  the  annexation  of  contiguous  territory 
inhabited  only  by  people  of  the  same  race,  or  by  scattered  bodies  of 
native  Indians. 

We  suggest,  without  intending  to  decide,  that  there  may  be  a  dis- 
tinction between  certain  natural  rights  enforced  in  the  Constitution  by 
prohibitions  against  interference  with  them,  and  what  may  be  termed 
artificial  or  remedial  rights  which  are  peculiar  to  our  own  system  of 
jurisprudence.  Of  the  former  class  are  the  rights  to  one's  own  reli- 
gious opinions  and  to  a  public  expression  of  them,  or,  as  sometimes 
said,  to  worship  God  according  to  the  dictates  of  one's  own  conscience  ; 
the  right  to  personal  liberty  and  individual  property ;  to  freedom  of 
speech  and  of  the  press;  to  free  access  to  courts  of  justice,  to  due 
process  of  law,  and  to  an  equal  protection  of  the  laws ;  to  immunities 
from  unreasonable  searches  and  seizures,  as  well  as  cruel  and  unusual 
punishments ;  and  to  such  other  immunities  as  are  indispensable  to  a 
free  government.  Of  the  latter  class  are  the  rights  to  citizenship,  to 
suffrage  (Minor  v.  Happersett,  21  Wall.  162,  22  L.  Ed.  627),  and  to 
the  particular  methods  of  procedure  pointed  out  in  the  Constitution, 
which  are  peculiar  to  Anglo-Saxon  jurisprudence,  and  some  of  which 
have  already  been  held  by  the  states  to  be  unnecessary  to  the  proper 
protection  of  individuals.  *  *  *  We  do  not  desire,  however,  to 
anticipate  the  difficulties  which  would  naturally  arise  in  this  connection, 
but  merely  to  disclaim  any  intention  to  hold  that  the  inhabitants  of 
these  territories  are  subject  to  an  unrestrained  power  on  the  part  of 
Congress  to  deal  with  them  upon  the  theory  that  they  have  no  rights 
which  it  is  bound  to  respect.     *     *     * 


Ch.  16)  TEEBITOEIES,  DEPENDENCIES,  AND   NEW   STATES  995 

In  passing  upon  the  questions  involved  in  this  and  kindred  cases,  we 
ought  not  to  overlook  the  fact  that,  while  the  Constitution  was  intended 
to  establish  a  permanent  form  of  government  for  the  states  which 
should  elect  to  take  advantage  of  its  conditions,  and  continue  for  an 
indefinite  future,  the  vast  possibilities  of  that  future  could  never  have 
entered  the  minds  of  its  framers.  *  *  *  The  difficulties  of  bring- 
ing about  a  union  of  the  states  were  so  great,  the  objections  to  it 
seemed  so  formidable,  that  the  whole  thought  of  the  convention  cen- 
tered upon  surmounting  these  obstacles.  The  question  of  territories 
was  dismissed  with  a  single  clause,  apparently  applicable  only  to  the 
territories  then  existing,  giving  Congress  the  power  to  govern  and  dis- 
pose of  them.     *     *     * 

If  it  be  once  conceded  that  we  are  at  liberty  to  acquire  foreign  ter- 
ritory, a  presumption  arises  that  our  power  with  respect  to  such  terri- 
tories is  the  same  power  which  other  nations  have  been  accustomed  to 
exercise  with  respect  to  territories  acquired  by  them.  If,  in  limiting 
the  power  which  Congress  was  to  exercise  within  the  United  States, 
it  was  also  intended  to  limit  it  with  regard  to  such  territories  as  the 
people  of  the  United  States  should  thereafter  acquire,  such  limitations 
should  have  been  expressed.  Instead  of  that,  we  find  the  Constitution 
speaking  only  to  states,  except  in  the  territorial  clause,  which  is  ab- 
solute in  its  terms,  and  suggestive  of  no  limitations  upon  the  power  of 
Congress  in  dealing  with  them.     *     *     * 

Patriotic  and  intelligent  men  may  differ  widely  as  to  the  desirable- 
ness of  this  or  that  acquisition,  but  this  is  solely  a  political  question. 
We  can  only  consider  this  aspect  of  the  case  so  far  as  to  say  that  no 
construction  of  the  Constitution  should  be  adopted  which  would  pre- 
vent Congress  from  considering  each  case  upon  its  merits,  unless  the 
language  of  the  instrument  imperatively  demand  it.  A  false  step  at 
this  time  might  be  fatal  to  the  development  of  what  Chief  Justice  Mar- 
shall called  the  American  empire.  Choice  in  some  cases,  the  natural 
gravitation  of  small  bodies  towards  large  ones  in  others,  the  result  of 
a  successful  war  in  still  others,  may  bring  about  conditions  which 
would  render  the  annexation  of  distant  possessions  desirable.  If  those 
possessions  are  inhabited  by  alien  races,  differing  from  us  in  religion, 
customs,  laws,  methods  of  taxation,  and  modes  of  thought,  the  admin- 
istration of  government  and  justice,  according  to  Anglo-Saxon  prin- 
ciples, may  for  a  time  be  impossible ;  and  the  question  at  once  arises 
whether  large  concessions  ought  not  to  be  made  for  a  time,  that  ulti- 
mately our  own  theories  may  be  carried  out,  and  the  blessings  of  a 
free  government  under  the  Constitution  extended  to  them.  We  decline 
to  hold  that  there  is  anything  in  the  Constitution  to  forbid  such  action. 

We  are  therefore  of  opinion  that  the  island  of  Porto  Rico  is  a  terri- 
tory appurtenant  and  belonging  to  the  United  States,  but  not  a  part  of 
the  United  States  within  the  revenue  clauses  of  the  Constitution ;  that 
the  Foraker  act  is  constitutional,  so  far  as  it  imposes  duties  upon  im- 


996  THE   FEDERAL   GOVERNMENT  (Part  3 

ports  from  such  island ;  and  that  the  plaintiff  cannot  recover  back  the 
duties  exacted  in  this  case.     *     *     * 
Judgment  affirmed. 

Mr.  Justice  White  [with  whom  concurred  Shiras  and  McKenna, 
JJ.,  and,  "in  substance,"  Gray,  J.].  Mr.  Justice  Brown,  in  announc- 
ing the  judgment  of  affirmance,  has  in  his  opinion  stated  his  reasons 
for  his  concurrence  in  such  judgment.  In  the  result  I  likewise  con- 
cur. As,  however,  the  reasons  which  cause  me  to  do  so  are  different 
from,  if  not  in  conflict  with,  those  expressed  in  that  opinion,  if  its 
meaning  is  by  me  not  misconceived,  it  becomes  my  duty  to  state  the 
convictions  which  control  me.  *  *  *  To  come  to  the  pivotal  con- 
tentions which  the  case  involves,  let  me  state  and  concede  the  sound- 
ness of  some  principles.  [The  citation  of  authorities  for  each  of  the 
eight  propositions  that  follow  is  omitted.]      *     *     * 

First.  The  government  of  the  United  States  was  born  of  the  Con- 
stitution, and  all  powers  which  it  enjoys  or  may  exercise  must  be  ei- 
ther derived  expressly  or  by  implication  from  that  instrument.     *     * 

Second.  Every  function  of  the  government  being  thus  derived  from 
the  Constitution,  it  follows  that  that  instrument  is  everywhere  and  at 
all  times  potential  in  so  far  as  its  provisions  are  applicable. 

Third.  Hence  it  is  that  wherever  a  power  is  given  by  the  Constitu- 
tion, and  there  is  a  limitation  imposed  on  the  authority,  such  restric- 
tion operates  upon  and  confines  every  action  on  the  subject  within  its 
constitutional  limits. 

Fourth.  Consequently  it  is  impossible  to  conceive  that,  where  condi- 
tions are  brought  about  to  which  any  particular  provision  of  the  Con- 
stitution applies,  its  controlling  influence  may  be  frustrated  by  the  ac- 
tion of  any  or  all  of  the  departments  of  the  government.     *     *     * 

Fifth.  The  Constitution  has  undoubtedly  conferred  on  Congress  the 
right  to  create  such  municipal  organizations  as  it  may  deem  best  for 
all  the  territories  of  the  United  States,  whether  they  have  been  incor- 
porated or  not,  to  give  to  the  inhabitants  as  respects  the  local  govern- 
ments such  degree  of  representation  as  may  be  conducive  to  the  public 
well-being,  to  deprive  such  territory  of  representative  government  if  it 
is  considered  just  to  do  so,  and  to  change  such  local  governments  at 
discretion.1  *  *  *  In  some  adjudged  cases  the  power  to  locally 
govern  at  discretion  has  been  declared  to  arise  as  an  incident  to  the 
right  to  acquire  territory.  In  others  it  has  been  rested  upon  the  clause 
of  section  3,  article  4,  of  the  Constitution,  which  vests  Congress  with 
the  p.ower  to  dispose  of  and  make  all  needful  rules  and  regulations  re- 

i  For  the  early  forms  of  territorial  government,  see  Clinton  v.  Englebrecht, 
13  Wall.  434,  20  L.  Ed.  659  (1S72).  See,  also,  the  federal  references  under  Opin- 
ion of  Justices,  ante,  at  pp.  122,  123,  note,  and  United  States  v.  Grimaud,  ante, 
p.  124,  note  1.  Note  the  distinction  between  federal  governmental  powers  over 
territory  where  the  United  States  is  sole  sovereign,  and  those  over  land  in  a 
state  owned  by  the  United  States,  but  not  ceded  by  the  state.  Ft.  Leaven- 
worth It.  E.  Co.  v.  Lowe,  ante,  p.  946#  note. 


Ch.  16)  TEKKITORIES,   DEPENDENT  IKS,   AND    NEW    STATES  997 

specting  the  territory  or  other  property  of  the  United  States.  But 
this  divergence,  if  not  conflict  of  opinion,  does  not  imply  that  the  au- 
thority of  Congress  to  govern  the  territories  is  outside  of  the  Constitu- 
tion, since  in  either  case  the  right  is  founded  on  die  Constitution,  al- 
though referred  to  different  provisions  of  that  instrument.     * 

Sixth.  As  Congress  in  governing  the  territories  is  subject  to  the 
Constitution,  it  results  that  all  the  limitations  of  the  Constitution  which 
are  applicable  to  Congress  in  exercising  this  authority  necessarily  limit 
its  power  on  this  subject.     *     *     * 

Seventh.  In  the  case  of  the  territories,  as  in  every  other  instance, 
when  a  provision  of  the  Constitution  is  invoked,  the  question  which 
arises  is,  not  whether  the  Constitution  is  operative,  for  that  is  sell-evi- 
dent, but  whether  the  provision  relied  on  is  applicable. 

Eighth.  As  Congress  derives  its  authority  to  levy  local  taxes  for 
local  purposes  within  the  territories,  not  from  the  general  grant  of 
power  to  tax  as  expressed  in  the  Constitution,  it  follows  that  its  right 
to  locally  tax  is  not  to  be  measured  by  the  provision  empowering  Con- 
gress "to  lay  and  collect  taxes,  duties,  imposts,  and  excises,"  and  is  not 
restrained  by  the  requirement  of  uniformity  throughout  the  United 
States.  But  the  power  just  referred  to,  as  well  as  the  qualification  of 
uniformity,  restrains  Congress  from  imposing  an  impost  duty  on  goods 
coming  into  the  United  States  from  a  territory  which  has  been  incor- 
porated into  and  forms  a  part  of  the  United  States.  This  results 
because  the  clause  of  the  Constitution  in  question  does  not  confer  upon 
Congress  power  to  impose  such  an  impost  duty  on  goods  coming  from 
one  part  of  the  United  States  to  another  part  thereof,  and  such  duty, 
besides,  would  be  repugnant  to  the  requirement  of  uniformity  through- 
out the  United  States. 

To  question  the  principle  above  stated  on  the  assumption  that  the 
rulings  on  this  subject  of  Mr.  Chief  Justice  Marshall  in  Loughbor- 
ough v.  Blake  were  mere  dicta  seems  to  me  to  be  entirely  inadmissi- 
ble.    *     *     * 

From  these  conceded  propositions  it  follows  that  Congress  in  legis- 
lating for  Porto  Rico  was  only  empowered  to  act  within  the  Constitu- 
tion and  subject  to  its  applicable  limitations,  and  that  every  provision 
of  the  Constitution  which  applied  to  a  country  situated  as  was  that 
island  was  potential  in  Porto  Rico.  And  the  determination  of  what 
particular  provision  of  the  Constitution  is  applicable,  generally  speak- 
ing, in  all  cases,  involves  an  inquiry  into  the  situation  of  the  territory 
and  its  relations  to  the  United  States.  This  is  well  illustrated  1  \ 
of  the  decisions  of  this  court.2  Some  of  these  decisions  hold  on  the 
one  hand  that,  growing  out  of  the  presumably  ephemeral  nature  of  a 
territorial  government,  the  provisions  of  the  Constitution  relating  to 
the  life  tenure  of  judges  is  inapplicable  to  courts  created  by  Congress, 

2  Citing  tbe  cases  discussed  In  the  opinion  of  Brown,  J.,  preceding,  and 
some  others  of  like  purport. 


008  THE  FEDERAL  GOVERNMENT  (Part  3 

even  in  territories  which  are  incorporated  into  the  United  States,  and 
some,  on  the  other  hand,  decide  that  the  provisions  as  to  common-law 
juries  found  in  the  Constitution  are  applicable  under  like  conditions ; 
that  is  to  say,  although  the  judge  presiding  over  a  jury  need  not  have 
the  constitutional  tenure,  yet  the  jury  must  be  in  accordance  with 
the  Constitution.  And  the  application  of  the  provision  of  the  Constitu- 
tion relating  to  juries  has  been  also  considered  in  a  different  aspect. 
In  re  Ross,  140  U.  S.  453,  461,  462,  463,  sub  nom.  Ross  v.  Mclntyre, 
35  L.  Ed.  581,  585,  11  Sup.  Ct.  897.     *     *     * 

Albeit,  as  a  general  rule,  the  status  of  a  particular  territory  has  to 
be  taken  in  view  when  the  applicability  of  any  provision  of  the  Con- 
stitution is  questioned,  it  does  not  follow,  when  the  Constitution  has 
absolutely  withheld  from  the  government  all  power  on  a  given  subject, 
that  such  an  inquiry  is  necessary.  Undoubtedly  there  are  general  pro- 
hibitions in  the  Constitution  in  favor  of  the  liberty  and  property  of  the 
citizen,  which  are  not  mere  regulations  as  to  the  form  and  manner  in 
which  a  conceded  power  may  be  exercised,  but  which  are  an  absolute 
denial  of  all  authority  under  any  circumstances  or  conditions  to  do  par- 
ticular acts.  In  the  nature  of  things,  limitations  of  this  character  can- 
not be  under  any  circumstances  transcended,  because  of  the  complete 
absence  of  power.     *     *     * 

There  is  in  reason,  then,  no  room  in  this  case  to  contend  that  Con- 
gress can  destroy  the  liberties  of  the  people  of  Porto  Rico  by  exer- 
cising in  their  regard  powers  against  freedom  and  justice  which  the 
Constitution  has  absolutely  denied.  *  *  *  But  as  the  duty  in  ques- 
tion was  not  a  local  tax,  since  it  was  levied  in  the  United  States  on 
goods  coming  from  Porto  Rico,  it  follows  that,  if  that  island  was  a 
part  of  the  United  States,  the  duty  was  repugnant  to  the  Constitution, 
since  the  authority  to  levy  an  impost  duty  conferred  by  the  Constitu- 
tion on  Congress  does  not,  as  I  have  conceded,  include  the  right  to  lay 
such  a  burden  on  goods  coming  from  one  to  another  part  of  the  United 
States.  And,  besides,  if  Porto  Rico  was  a  part  of  the  United  States 
the  exaction  was  repugnant  to  the  uniformity  clause. 

The  sole  and  only  issue,  then,  is  not  whether  Congress  has  taxed 
Porto  Rico  without  representation, — for,  whether  the  tax  was  local 
pr  national,  it  could  have  been  imposed  although  Porto  Rico  had  no 
representative  local  government  and  was  not  represented  in  Congress. 
— but  is  whether  the  particular  tax  in  question  was  levied  in  such  form 
as  to  cause  it  to  be  repugnant  to  the  Constitution.  This  is  to  be  re- 
solved by  answering  the  inquiry,  Had  Porto  Rico,  at  the  time  of  the 
passage  of  the  act  in  question,  been  incorporated  into  and  become  an 
integral  part  of  the  United  States  ? 

On  the  one  hand,  it  is  affirmed  that,  although  Porto  Rico  had  been 
ceded  by  the  treaty  with  Spain  to  the  United  States,  the  cession  was 
accompanied  by  such  conditions  as  prevented  that  island  from  becom- 
ing an  integral  part  of  the  United  States,  at  least  temporarily  and  until 


Ch.  16)  TEKEITORIE8,  DEPENDENCIES,  AND   NEW    8TATE8  999 

Congress  had  so  determined.  On  the  other  hand,  it  is  insisted  that  by 
the  fact  of  cession  to  the  United  States  alone,  irrespective  of  any  con- 
ditions found  in  the  treaty,  Porto  Rico  became  a  part  of  the  United 
States  and  was  incorporated  into  it.  It  is  incompatible  with  the  Con- 
stitution, it  is  argued,  for  the  government  of  the  United  States  to  ac- 
cept a  cession  of  territory  from  a  foreign  country  without  complete  in- 
corporation following  as  an  immediate  result,  and  therefore  it  is  con- 
tended that  it  is  immaterial  to  inquire  what  were  the  conditions  of  the 
cession,  since  if  there  were  any  which  were  intended  to  prevent  incor- 
poration they  were  repugnant  to  the  Constitution  and  void.  The  result 
of  the  argument  is  that  the  government  of  the  United  States  is  ab- 
solutely without  power  to  acquire  and  hold  territory  as  property  or  as 
appurtenant  to  the  United  States.      *     *     * 

It  may  not  be  doubted  that  by  the  general  principles  of  the  law  of 
nations  every  government  which  is  sovereign  within  its  sphere  of  ac- 
tion possesses  as  an  inherent  attribute  the  power  to  acquire  territory 
by  discovery,  by  agreement  or  treaty,  and  by  conquest.  It  cannot  also 
be  gainsaid  that,  as  a  general  rule,  wherever  a  government  acquires  ter- 
ritory as  a  result  of  any  of  the  modes  above  stated,  the  relation  of 
the  territory  to  the  new  government  is  to  be  determined  by  the  acquir- 
ing power  in  the  absence  of  stipulations  upon  the  subject.  *  * 
[Here  follow  quotations  from  Halleck's  International  Law,  pp.  126. 
76,  814.] 

When  our  forefathers  threw  off  their  allegiance  to  Great  Britain 
and  established  a  republican  government,  assuredly  they  deemed  that 
the  nation  which  they  called  into  being  was  endowed  with  those  gen- 
eral powers  to  acquire  territory  which  all  independent  governments  in 
virtue  of  their  sovereignty  enjoyed.  This  is  demonstrated  by  the  con- 
cluding paragraph  of  the  Declaration  of  Independence,  which  reads  as 
follows : 

"As  free  and  independent  states,  they  [the  United  States  of  Amer- 
ica] have  full  power  to  levy  war,  conclude  peace,  contract  alliances, 
establish  commerce,  and  to  do  all  other  acts  and  things  which  inde- 
pendent states  may  of  right  do." 

That  under  the  Confederation  it  was  considered  that  the  government 
of  the  United  States  had  authority  to  acquire  territory  like  any  other 
sovereignty  is  clearly  established  by  the  eleventh  of  the  Articles  of 
Confederation.* 

The  decisions  of  this  court  leave  no  room  for  question  that,  under 
the  Constitution,  the  government  of  the  United  States,  in  virtue  of  its 
sovereignty,  supreme  within  the  sphere  of  its  delegated  power,  has  the 
full  right  to  acquire  territory  enjoyed  by  every  other  sovereign  na- 
tion.    *     *     * 

a  This  article  provided  for  the  admission  of  Canada  to  the  Confederation 
(should  it  consent),  but  forbade  the  admission  of  any  other  colony  save  with 
the  assent  of  nine  states 


1000  THE   FEDERAL  GOVERNMENT  (Part  3 

[After  quoting  from  Am.  Ins.  Co.  v.  Canter,  1  Pet.'  511,  7  L.  Ed. 
242,  U.  S.  v.  Huckabee,  16  Wall.  414,  21  L.  Ed.  457,  and'  Mormon 
Church  v.  U.  S.,  136  U.  S.  1,  10  Sup.  Ct.  792,  34  L.  Ed.  478:]  In- 
deed, it  is  superfluous  to  cite  authorities  establishing  the  right  of  the 
government  of  the  United  States  to  acquire  territory,  in  view  of  the 
possession  of  the  Northwest  Territory  when  the  Constitution  was 
framed  and  the  cessions  to  the  general  government  by  various  states 
subsequent  to  the  adoption  of  the  Constitution,  and  in  view  also  of 
the  vast  extension  of  the  territory  of  the  United  States  brought  about 
since  the  existence  of  the  Constitution  by  substantially  every  form  of 
acquisition  known  to  the  law  of  nations.  Thus,  in  part  at  least,  "the 
title  of  the  United  States  to  Oregon  was  founded  upon  original  discov- 
ery and  actual  settlement  by  citizens  of  the  United  States,  authorized 
or  approved  by  the  government  of  the  United  States."  Shively  v. 
Bowlby,  152  U.  S.  50,  38  L.  Ed.  349,  14  Sup.  Ct.  566.  The  province 
of  Louisiana  was  ceded  by  France  in  1803 ;  the  Floridas  were  trans- 
ferred by  Spain  in  1819;  Texas  was  admitted  into  the  Union  by  com- 
pact with  Congress  in  1845 ;  California  and  New  Mexico  were  ac- 
quired by  the  treaty  with  Mexico  of  1848,  and  other  western  territory 
from  Mexico  by  the  treaty  of  1S53 ;  numerous  islands  have  been 
brought  within  the  dominion  of  the  United  States  under  the  authority 
of  the  Act  of  August  18,  1856,  c.  164,  usually  designated  as  the  Guano 
islands  act,  re-enacted  in  Revised  Statutes,  §§  5570-5578;  Alaska  was 
ceded  by  Russia  in  1867;  Medway  island,  the  western  end  of  the 
Hawaiian  group,  1,200  miles  from  Honolulu,  was  acquired  in  1867, 
and  $50,000  was  expended  in  efforts  to  make  it  a  naval  station ;  on 
the  renewal  of  a  treaty  with  Hawaii  November  9,  1887,  Pearl  harbor 
was  leased  for  a  permanent  naval  station ;  by  joint  resolution  of  Con- 
gress the  Hawaiian  islands  came  under  the  sovereignty  of  the  United 
States  in  1898;  and  on  April  30,  1900,  an  act  for  the  government  of 
Hawaii  was  approved,  by  which  the  Hawaiian  islands  were  given  the 
status  of  an  incorporated  territory;  on  May  21,  1890,  there  was  pro- 
claimed by  the  President  an  agreement,  concluded  and  signed  with  Ger- 
many and  Great  Britain,  for  the  joint  administration  of  the  Samoan 
islands  (26  Stat,  at  L.  1497);  and  on  February  16,  1900  (31  Stat,  at 
L.  1878),  there  was  proclaimed  a  convention  between  the  United 
States,  Germany,  and  Great  Britain,  by  which  Germany  and  Great 
Britain  renounced  in  favor  of  the  United  States  all  their  rights  and 
claims  over  and  in  respect  to  the  island  of  Tutuilla  and  all  other  islands 
of  the  Samoan  group  east  of  longitude  171°  west  of  Greenwich.  And 
finally  the  treaty  with  Spain  which  terminated  the  recent  war  was  rati- 
fied.    *     *     * 

It  is  insisted,  however,  conceding  the  right  of  the  government  of  the 
United  States  to  acquire  territory,  as  all  such  territory  when  acquired 
becomes  absolutely  incorporated  into  the  United  States,  every  provi- 
sion of  the  Constitution  which  would  apply  under  that  situation  is  con- 


Ch.  16)  TERRITORIES,  DEPENDENCIES,  AND   NEW    STATES  1«J(>1 

trolling  in  such  acquired  territory.     This,  however,  is  but  to  admit  the 
power  to  acquire,  and  immediately  to  deny  its  beneficial  existence. 

The  general  principle  of  the  law  of  nations,  already  stated,  is  that 
acquired  territory,  in  the  absence  of  agreement  to  the  contrary,  will 
Lear  such  relation  to  the  acquiring  government  as  may  be  by  it  deter- 
mined. To  concede  to  the  government  of  the  United  States  the  right 
to  acquire,  and  to  strip  it  of  all  power  to  protect  the  birthright  of  its 
own  citizens  and  to  provide  for  the  well-being  of  the  acquired  terri- 
tory by  such  enactments  as  may  in  view  of  its  condition  be  essential, 
is,  in  effect,  to  say  that  the  United  States  is  helpless  in  the  family  of 
nations,  and  does  not  possess  that  authority  which  has  at  all  times 
been  treated  as  an  incident  of  the  right  to  acquire.  Let  me  illustrate 
the  accuracy  of  this  statement.  Take  a  case  of  discovery.  Citizens 
of  the  United  States  discover  an  unknown  island,  peopled  with  an  un- 
civilized race,  yet  rich  in  soil,  and  valuable  to  the  United  States  for 
commercial  and  strategic  reasons.  Clearly,  by  the  law  of  nations,  the 
right  to  ratify  such  acquisition  and  thus  to  acquire  the  territory  would 
pertain  to  the  government  of  the  United  States.  Johnson  v.  Mcintosh, 
8  Wheat.  543,  595,  5  L.  Ed.  681,  694 ;  Martin  v.  Waddell,  16  Pet.  367, 
409,  10  L.  Ed.  997,  1012;  Jones  v.  United  States,  137  U.  S.  202,  212, 
34  L.  Ed.  691,  695,  11  Sup.  Ct.  80;  Shively  v.  Bowlby,  152  U.  S.  1. 
50,  38  L.  Ed.  331,  349,  14  Sup.  Ct.  548.  Can  it  be  denied  that  such 
right  could  not  be  practically  exercised  if  the  result  would  be  to  endow 
the  inhabitants  with  citizenship  of  the  United  States  and  to  subject 
them,  not  only  to  local,  but  also  to  an  equal  proportion  of  national, 
taxes,  even  although  the  consequence  would  be  to  entail  ruin  on  the 
discovered  territory,  and  to  inflict  grave  detriment  on  the  United 
States,  to  arise  both  from  the  dislocation  of  its  fiscal  system  and  the 
immediate  bestowal  of  citizenship  on  those  absolutely  unlit  to  re- 
ceive it? 

The  practice  of  the  government  has  been  otherwise.  As  early  as 
1856  Congress  enacted  the  Guano  islands  act,  heretofore  referred  to. 
which  by  section  1  provided  that  when  any  citizen  of  the  United 
States  shall  "discover  a  deposit  of  guano  on  any  island,  rock,  or  key 
not  within  the  lawful  jurisdiction  of  any  other  government,  and  not 
occupied  by  the  citizens  of  any  other  government,  and  shall  take 
able  possession  thereof,  and  occupy  the  same,  said  island,  rock,  or  key 
may,  at  the  discretion  of  the  President  of  the  United  States,  be  con- 
sidered as  appertaining  to  the  United  States."  11  Stat,  at  L.  119.  c. 
164;  Rev.  Stat.  §  5570.  Under  the  act  referred  to,  it  was  stated  in 
argument,  that  the  government  now  holds  and  protects  American  citi- 
zens in  the  occupation  of  some  seventy  islands.  The  statute  came  un- 
der consideration  in  Jones  v.  United  States.  137  U.  S.  202.  34  L.  Ed. 
691,  11  Sup.  Ct.  80.  where  the  question  was  whether  or  not  the  acl 
was  valid,  and  it  was  decided  that  the  act  was  a  lawful  exer* 
power,  and  that  islands  thus  acquired  were  "appurtenant"  to  the 
United    States.     The   court,  in   the   course  of   the  opinion,   speaking 


1002  THE  FEDERAL  GOVERNMENT  (Part  3 

through  Mr.  Justice  Gray,  said  (p.  212,  L.  Ed.  p.  695,  Sup.  Ct.  p. 
S3) :  "By  the  law  of  nations,  recognized  by  all  civilized  states,  domin- 
ion of  new  territory  may  be  acquired  by  discovery  and  occupation,  as 
well  as  by  cession  or  conquest;  and  when  citizens  or  subjects  of  one 
nation,  in  its  name  and  by  its  authority  or  with  its  assent,  take  and  hold 
actual,  continuous,  and  useful  possession  (although  only  for  the  pur- 
pose of  carrying  on  a  particular  business,  such  as  catching  and  curing 
hsh  or  working  mines)  of  territory  unoccupied  by  any  other  govern- 
ment or  its  citizens,  the  nation  to  which  they  belong  may  exercise  such 
jurisdiction  and  for  such  period  as  it  sees  fit  over  territory  so  ac- 
quired."    *     *     * 

And  these  considerations  concerning  discovery  are  equally  applicable 
to  ownership  resulting  from  conquest.  A  just  war  is  declared,  and  in 
its  prosecution  the  teiritory  of  the  enemy  is  invaded  and  occupied. 
Would  not  the  war,  even  if  waged  successfully,  be  fraught  with  dan- 
ger if  the  effect  of  occupation  was  to  necessarily  incorporate  an  alien 
and  hostile  people  into  the  United  States?  *  *  *  Yet  again.  Sup- 
pose the  United  States,  in  consequence  of  outrages  perpetrated  upon 
its  citizens,  was  obliged  to  move  its  armies  or  send  its  fleets  to  obtain 
redress,  and  it  came  to  pass  that  an  expensive  war  resulted  and  cul- 
minated in  the  occupation  of  a  portion  of  the  territory  of  the  enemy, 
and  that  the  retention  of  such  territory- — an  event  illustrated  by  ex- 
amples in  history — could  alone  enable  the  United  States  to  recover  the 
pecuniary  loss  it  had  suffered.  And  suppose,  further,  that  to  do  so 
would  require  occupation  for  an  indefinite  period,  dependent  upon 
whether  or  not  payment  was  made  of  the  required  indemnity.  It  being 
true  that  incorporation  must  necessarily  follow  the  retention  of  the 
territory,  it  would  result  that  the  United  States  must  abandon  all  hope 
of  recouping  itself  for  the  loss  suffered  by  the  unjust  war,  and  hence 
the  whole  burden  would  be  entailed  upon  the  people  of  the  United 
States.  This  would  be  a  necessary  consequence,  because  if  the  United 
States  did  not  hold  the  territory  as  security  for  the  needed  indemnity 
it  could  not  collect  such  indemnity,  and,  on  the  other  hand,  if  incorpo- 
ration must  follow  from  holding  the  territory  the  uniformity  provision 
of  the  Constitution  would  prevent  the  assessment  of  the  cost  of  the 
war  solely  upon  the  newly  acquired  country.  In  this,  as  in  the  case 
of  discovery,  the  traditions  and  practices  of  the  government  demon- 
strate the  unsoundness  of  the  contention.  *  *  *  [Here  follow 
references  to  federal  tariff  practices  during  the  Mexican  war,  Fleming 
v.  Page,  9  How.  603,  13  L.  Ed.  276,  and  Cross  v.  Harrison,  16  How. 
164,  14  L.  Ed.  889.] 

This  further  argument,  however,  is  advanced.  Granting  that  Con- 
gress may  regulate  without  incorporating,  where  the  military  arm  has 
taken  possession  of  foreign  territory,  and  where  there  has  been  or  can 
be  no  treaty,  this  does  not  concern  the  decision  of  this  case,  since  there 
is  here  involved  no  regulation,  but  an  actual  cession  to  the  United 
States  of  territory  by  treaty.    The  general  rule  of  the  law  of  nations, 


Ch.  16)  TERRITORIES,  DEPENDENCIES,  AND   NEW   STATES  1003 

by  which  the  acquiring  government  fixes  the  status  of  acquired  terri- 
tory, it  is  urged,  does  not  apply  to  the  government  of  the  United  States, 
because  it  is  incompatible  with  the  Constitution  that  that  government 
should  hold  territory  under  a  cession  and  administer  it  as  a  dependency 
without  its  becoming  incorporated.     *     *     * 

If  the  authority  by  treaty  is  limited  as  is  suggested,  then  it  will  be 
impossible  to  terminate  a  successful  war  by  acquiring  territory  tli 
a  treaty,  without  immediately  incorporating  such  territory  into  the 
United  States.  Let  me,  however,  eliminate  the  case  of  war,  and  con- 
sider the  treaty-making  power  as  subserving  the  purposes  of  the  peace- 
ful evolution  of  national  life.  Suppose  the  necessity  of  acquiring  a 
naval  station  or  a  coaling  station  on  an  island  inhabited  with  people 
utterly  unfit  for  American  citizenship  and  totally  incapable  of  bearing 
their  proportionate  burden  of  the  national  expense.  Could  such  island, 
under  the  rule  which  is  now  insisted  upon,  be  taken?  Suppose,  again, 
the  acquisition  of  territory  for  an  interoceanic  canal,  where  an  inhab- 
ited strip  of  land  on  either  side  is  essential  to  the  United  States  for 
the  preservation  of  the  work.  Can  it  be  denied  that,  if  the  require- 
ments of  the  Constitution  as  to  taxation  are  to  immediately  control,  it 
might  be  impossible  by  treaty  to  accomplish  the  desired  result?    *    *    * 

It  is  said  that  the  spirit  of  the  Constitution  excludes  the  conception 
of  property  or  dependencies  possessed  by  the  United  States  and  which 
are  not  so  completely  incorporated  as  to  be  in  all  respects  a  part  of 
the  United  States.  *  *  *  But  this  reasoning  is  based  on  political, 
and  not  judicial,  considerations.     *     *     * 

Let  me  come,  however,  to  a  consideration  of  the  express  powers 
which  are  conferred  by  the  Constitution,  to  show  how  unwarranted  is 
the  principle  of  immediate  incorporation.  *  *  *  If  the  treaty- 
making  power  can  absolutely,  without  the  consent  of  Congress,  incor- 
porate territory,  and  if  that  power  may  not  insert  conditions  against 
incorporation,  it  must  follow  that  the  treaty-making  power  is  endowed 
by  the  Constitution  with  the  most  unlimited  right,  susceptible  of  de- 
stroying every  other  provision,  of  the  Constitution  ;  that  is.  it  may 
wreck  our  institutions.  If  the  proposition  be  true,  then  millions  of  in- 
habitants of  alien  territory,  if  acquired  by  treaty,  can,  without  the 
desire  or  consent  of  the  people  of  the  United  States  speaking  through 
Congress,  be  immediately  and  irrevocably  incorporated  into  the  United 
States,  and  the  whole  structure  of  the  government  be  overthrown. 
*  *  *  For,  although  the  Mouse  of  Representatives  might  be  un- 
willing to  agree  to  the  incorporation  of  alien  races,  it  would  be  im- 
potent to  prevent  its  accomplishment,  and  the  express  provisions  con- 
ferring upon  Congress  the  power  to  regulate  commerce,  the  right  to 
raise  revenue, — bills  for  which,  by  the  Constitution,  must  originate  in 
the  House  of  Representatives, — and  the  authority  to  prescribe  uniform' 
naturalization  laws,  would  be  in  effect  set  at  naught  by  the  treaty- 
making  power.  And  the  consequent  result — incorporation — would  be 
beyond  all  future  control  of  or  remedy  by  the  American  people,  since. 


1004  THE  FEDERAL  GOVERNMENT  (Part  3 

at  once  and  without  hope  of  redress  or  power  of  change,  incorporation 
by  the  treaty  would  have  been  brought  about.     *     *     * 

All  the  confusion  and  dangers  above  indicated,  however,  it  is  argued, 
are  more  imaginary  than  real,  since,  although  it  be  conceded  that  the 
treaty-making  power  has  the  right  by  cession  to  incorporate  without 
the  consent  of  Congress,  that  body  may  correct  the  evil  by  availing 
itself  of  the  provision  of  the  Constitution  giving  to  Congress  the  right 
to  dispose  of  the  territory  and  other  property  of  the  United  States. 
*  *  *  In  view,  however,  of  the  relations  of  the  territories  to  the 
government  of  the  United  States  at  the  time  of  the  adoption  of  the 
Constitution,  and  the  solemn  pledge  then  existing  that  they  should 
forever  "remain  a  part  of  the  Confederacy  of  the  United  States  of 
America,"  I  cannot  resist  the  belief  that  the  theory  that  the  disposing 
clause  relates  as  well  to  a  relinquishment  or  cession  of  sovereignty 
as  to  a  mere  transfer  of  rights  of  property  is  altogether  errone- 
ous.    *     *     * 

The  reasoning  which  has  sometimes  been  indulged  in  by  those  who 
asserted  that  the  Constitution  was  not  at  all  operative  in  the  territories 
is  that,  as  they  were  acquired  by  purchase,  the  right  to  buy  included 
the  right  to  sell.  This  has  been  met  by  the  proposition  that  if  the 
country  purchased  and  its  inhabitants  became  incorporated  into  the 
United  States,  it  came  under  the  shelter  of  the  Constitution,  and  no 
power  existed  to  sell  American  citizens.  In  conformity  to  the  prin- 
ciples which  I  have  admitted  it  is  impossible  for  me  to  say  at  one  and 
the  same  time  that  territory  is  an  integral  part  of  the  United  States 
protected  by  the  Constitution,  and  yet  the  safeguards,  privileges,  rights, 
and  immunities  which  arise  from  this  situation  are  so  ephemeral  in 
their  character  that  by  a  mere  act  of  sale  they  may  be  destroyed.  And 
applying  this  reasoning  to  the  provisions  of  the  treaty  under  considera- 
tion, to  me  it  seems  indubitable  that  if  the  treaty  with  Spain  incor- 
porated all  the  territory  ceded  into  the  United  States,  it  resulted  that 
the  millions  of  people  to  whom  that  treaty  related  were  without  the 
consent  of  the  American  people  as  expressed  by  Congress,  and  with- 
out any  hope  of  relief,  indissolubly  made  a  part  of  our  common  coun- 
try.    *     *     * 

True,  from  the  exigency  of  a  calamitous  war  or  the  necessity  of  a 
settlement  of  boundaries,  it  may  be  that  citizens  of  the  United  States 
may  be  expatriated  by  the  action  of  the  treaty-making  power,  impliedly 
or  expressly  ratified  by  Congress.  But  the  arising  of  these  particular 
conditions  cannot  justify  the  general  proposition  that  territory  which 
is  an  integral  part  of  the  United  States  may,  as  a  mere  act  of  sale,  be 
disposed  of.     *     *     * 

The  theory  as  to  the  treaty-making  power  upon  which  the  argument 
which  has  just  been  commented  upon  rests,  it  is  now  proposed  to  be 
shown,  is  refuted  by  the  history  of  the  government  from  the  beginning. 
There  has  not  been  a  single  cession  made  from  the  time  of  the  Con- 
federation up  to  the  present  day,  excluding  the  recent  treaty  with 


Ch.  16)         TEEKIT0BIE3,   DBPEND1  SCIE8,  AND   NEW  STATES  1005 

Spain,  which  has  not  contained  stipulations  to  the  effect  that  the  United 
States  through  Congress  would  either  not  disincorporate  or  would  in- 
corporate the  ceded  territory  into  the  United  States.     *     * 

When  the  various  treaties  by  which  foreign  territory  has  been  ac- 
quired are  considered  in  the  light  of  the  circumstances  which  sur- 
rounded them,  it  becomes  to  my  mind  clearly  established  that  the 
treaty-making  power  was  always  deemed  to  be  devoid  of  authority  to 
incorporate  territory  into  the  United  States  without  the  assent,  express 
or  implied,  of  Congress,  and  that  no  question  to  the  contrary  has  ever 
been  even  mooted.  To  appreciate  this  it  is  essential  to  bear  in  mind 
what  the  words  "United  States"  signified  at  the  time  of  the  adoption  of 
the  Constitution.  When  by  the  treaty  of  peace  with  Great  Britain  the  in- 
dependence of  the  United  States  was  acknowledged,  it  is  unquestioned 
that  all  the  territory  within  the  boundaries  defined  in  that  treaty,  what- 
ever may  have  been  the  disputes  as  to  title,  substantially  belo;. 
particular  states.  The  entire  territory  was  part  of  the  United  States, 
and  all  the  native  white  inhabitants  were  citizens  of  the  United  States 
and  endowed  with  the  rights  and  privileges  arising  from  that  relation. 
When,  as  has  already  been  said,  the  Northwest  Territory  was  ceded  by 
Virginia,  it  was  expressly  stipulated  that  the  rights  of  the  inhabitants 
in  this  regard  should  be  respected.  The  ordinance  of  1787,  providing 
for  the  government  of  the  Northwest  Territory,  fulfilled  this  promise 
on  behalf  of  the  Confederation.  Without  undertaking  to  reproduce 
the  text  of  the  ordinance,  it  suffices  to  say  that  it  contained  a  bill  of 
rights,  a  promise  of  ultimate  statehood,  and  it  provided  (italics  mine) 
that  "the  said  territory  and  the  states  which  may  be  formed  therein 
shall  ever  >\-)>wi>i  a  part  of  this  C  of  the  United  States  of 

America,  subject  to  the  Articles  of  Confederation,  and  to  such  altera- 
tions therein  as  shall  be  constitutionally  made,  and  to  all  the  acts  and 
ordinances  of  the  United  States  in  Congress  assembled,  conformably 
thereto."  It  submitted  the  inhabitants  to  a  liability  for  a  tax  to  pay 
their  proportional  part  of  the  public  debt  and  the  expenses  "i"  the 
government,  to  be  assessed  by  the  rule  of  apportionment  which  gov- 
erned the  states  of  the  Confederation.  It  forbade  slavery  within  the 
territory,  and  contained  a  stipulation  that  the  provisions  of  the  ordi- 
nance should  ever  remain  unalterable  unless  by  common  consent. 

Thus  it  was  that,  at  the  adoption  of  the  Constitution,  the  United 
.  as  a  geographical  unit  and  as  a  governn  ption  both  in 

the  international  and  domestic  sense,  consisted  not  only  of  states,  but 
also  of  territories,  all  the  native  white  inhabitants  being  endowed  with 
citizenship,  protected  by  pledges  of  a  common  union.  :  as  to 

political  advantages,  all  enjoying  equal  rights  and  freedom,  and 
guarded  by  substantially  similar  guaranties,  all  being  under  the  i 
tion  to  contribute  their  proportionate  share  for  the  liquidation  of  the 
debt  and  future  expenses  of  the  general  government.     *     *     * 

[After   referring  to  article  VI,  par.   1,  of  the  Constitution:]    My 
mind  refuses  to  assent  to  the  conclusion  that  under  the  Constitution 


1006  THE  FEDERAL   GOVERNMENT  (Part  3 

the  provision  of  the  Northwest  Territory  ordinance  making  such  terri- 
tory forever  a  part  of  the  Confederation  was  not  binding  on  the  gov- 
ernment of  the  United  States  when  the  Constitution  was  formed. 
*  *  *  It  cannot,  it  seems  to  me,  be  doubted  that  the  United  States 
continued  to  be  composed  of  states  and  territories,  all  forming  an 
integral  part  thereof  and  incorporated  therein,  as  was  the  case  prior 
to  the  adoption  of  the  Constitution.  *  *  *  [Here  follow  refer- 
ences to  the  cessions  of  territory  to  the  United  States  by  North  Caro- 
lina and  Georgia,  under  provisions  assuring  to  the  inhabitants  thereof 
all  of  the  rights  and  privileges  granted  by  the  Ordinance  of  1787,  ex- 
cept the  prohibition  of  slavery.] 

Thus  clearly  defined  by  boundaries,  by  common  citizenship,  by  like 
guaranties,  stood  the  United  States  when  the  plan  of  acquiring  by  pur- 
chase from  France  the  province  of  Louisiana  was  conceived  by  Presi- 
dent Jefferson.  Naturally,  the  suggestion  which  arose  was  the  power 
on  the  part  of  the  government  of  the  United  States,  under  the  Con- 
stitution, to  incorporate  into  the  United  States — a  Union  then  com- 
posed, as  1  have  stated,  of  states  and  territories — a  foreign  province 
inhabited  by  an  alien  people,  and  thus  make  them  partakers  in  the 
American  commonwealth.  *  *  *  [After  referring  to  the  instruc- 
tions given  to  the  American  commissioners  who  negotiated  the  cession 
of  Louisiana :]  Without  going  into  details,  it  suffices  to  say  that  a  com- 
pliance with  the  instructions  given  them  would  have  prevented  the  ne- 
gotiators on  behalf  of  the  United  States  from  inserting  in  the  treaty 
any  provision  looking  even  to  the  ultimate  incorporation  of  the  ac- 
quired territory  into  the  United  States.  In  view  of  the  emergency  and 
exigencies  of  the  negotiations,  however,  the  commissioners  were  con- 
strained to  make  such  a  stipulation,  and  the  treaty  provided  as  follows : 
"Art.  3.  The  inhabitants  of  the  ceded  territory  shall  be  incorporated  in 
the  Union  of  the  United  States,  and  admitted  as  soon  as  possible, 
according  to  the  principles  of  the  federal  Constitution,  to  the  enjoy- 
ment of  all  the  rights,  advantages,  and  immunities  of  citizens  of  the 
United  States ;  and  in  the  meantime  they  shall  be  maintained  and  pro- 
tected in  the  free  enjoyment  of  their  liberty,  property,  and  the  religion 
which  they  profess."    8  Stat,  at  L.  202. 

Weighing  the  provisions  just  quoted,  it  is  evident  they  refute  the 
theory  of  incorporation  arising  at  once  from  the  mere  force  of  a  treaty, 
even  although  such  result  be  directly  contrary  to  any  provisions  which 
a  treaty  may  contain.  Mark  the  language.  It  expresses  a  promise : 
"The  inhabitants  of  the  ceded  territory  shall  be  incorporated  in  the 
Union  of  the  United  States.  *  *  *  "  Observe  how  guardedly  the 
fulfilment  of  this  pledge  is  postponed  until  its  accomplishment  is  made 
possible  by  the  will  of  the  American  people,  since  it  is  to  be  executed 
only  "as  soon  as  possible  according  to  the  principles  of  the  federal  Con- 
stitution." If  the  view  now  urged  be  true,  this  wise  circumspection 
was  unnecessary,  and.  indeed,  as  I  have  previously  said,  the  entire 


Ch.  16)  TERRITORIES,  DEPENDENCIES,  AND   NEW    8TATK8  1007 

proviso  was  superfluous,  since  everything  which  it  assured  for  the  fu- 
ture was  immediately  and  unalterably  to  arise. 

It  is  said,  however,  that  the  treaty  for  the  purchase  of  Louisiana 
took  for  granted  that  the  territory  ceded  would  be  immediately  incor- 
porated into  the  United  States,  and  hence  the  guaranties  contained  in 
the  treaty  related,  not  to  such  incorporation,  but  was  a  pledge  that  the 
ceded  territory  was  to  be  made  a  part  of  the  Union  as  a  state.  The 
minutest  analysis,  however,  of  the  clauses  of  the  treaty,  fails  to  dis- 
close any  reference  to  a  promise  of  statehood,  and  hence  it  can  only 
be  that  the  pledges  made  referred  to  incorporation  into  the  United 
States.  *  *  *  The  argument  proceeds  upon  the  theory  that  the 
words  of  the  treaty,  "shall  be  incorporated  into  the  Union  of  the 
United  States,"  could  only  have  referred  to  a  promise  of  statehood, 
since  the  then  existing  and  incorporated  territories  were  not  a  part  of 
the  Union  of  the  United  States,  as  that  Union  consisted  only  of  the 
states.  But  this  has  been  shown  to  be  unfounded,  since  the  "Union  of 
the  United  States"  was  composed  of  states  and  territories,  both  having 
been  embraced  within  the  boundaries  fixed  by  the  treaty  of  peace  be- 
tween Great  Britain  and  the  United  States  which  terminated  the  Revo- 
lutionary War,  the  latter,  the  territories,  embracing  districts  of  coun- 
try which  were  ceded  by  the  states  to  the  United  States  under  the 
express  pledge  that  they  should  forever  remain  a  part  thereof.    *    *    * 

To  fulfil  the  stipulations  of  the  treaty  so  as  to  cause  the  ceded  terri- 
tory to  become  a  part  of  the  United  States,  Mr.  Jefferson  deemed  an 
amendment  to  the  Constitution  to  be  essential.  For  this  reason  the 
amendment  which  he  formulated  declared  that  the  territory  ceded  was 
to  be  "a  part  of  the  United  States,  and  its  white  inhabitants  shall  be 
citizens,  and  stand,  as  to  their  rights  and  obligations,  on  the  same 
footing  with  other  citizens  of  the  United  States  in  analogous  situa- 
ti-ons."  *  *  *  This  provision  of  the  amendment  applied  to  all  of 
the  territory  ceded,  and  therefore  brought  it  all  into  the  United  States, 
and  hence  placed  it  in  a  position  where  the  power  of  Congress  to  ad- 
mit new  states  would  have  attached  to  it.  As  Mr.  Jefferson  deemed 
that  every  requirement  of  the  treaty  would  be  fulfilled  by  incorpora- 
tion, and  that  it  would  be  unwise  to  form  a  new  state  out  of  the  upper 
part  of  the  new  territory,  after  thus  providing  for  the  complete  execu- 
tion of  the  treaty  by  incorporation  of  all  the  territory  into  the  United 
States,  he  inserted  a  provision  forbidding  Congress  from  admitting  a 
new  state  out  of  a  part  of  the  territory. 

With  the  debates  which  took  place  on  the  subject  of  the  treaty  I 
need  not  particularly  concern  myself.  Some  shared  Mr.  Jefferson's 
doubts  as  to  the  right  of  the  treaty-making  power  to  incorporate  the 
territory  into  the  United  States  without  an  amendment  of  the  Constitu- 
tion ;  others  deemed  that  the  provision  of  the  treaty  was  but  a  promise 
that  Congress  would  ultimately  incorporate  as  a  territory,  and,  until 
by  the  action  of  Congress  this  latter  result  was  brought  about,  full 
power  of  legislation  to  govern  as  deemed  best  was  vested  in  Congress. 


1008  THE   FEDERAL   GOVERNMENT  (Part  3 

This  latter  view  prevailed.  Mr.  Jefferson's  proposed  amendment  to 
the  Constitution,  therefore,  was  never  adopted  by  Congress,  and  hence 
was  never  submitted  to  the  people. 

An  act  was  approved  on  October  31,  1803  (2  Stat,  at  L.  245,  c.  1) 
"to  enable  the  President  of  the  United  States  to  take  possession  of  the 
territories  ceded  by  France  to  the  United  States  by  the  treaty  con- 
cluded at  Paris  on  the  30th  of  April  last,  and  for  the  temporary  gov- 
ernment thereof."  The  provisions  of  this  act  were  absolutely  incom- 
patible with  the  conception  that  the  territory  had  been  incorporated 
into  the  United  States  by  virtue  of  the  cession.  *  *  *  On  March 
26,  1804  (2  Stat,  at  L.  283,  c.  38),  an  act  was  passed  dividing  the 
"province  of  Louisiana"  into  Orleans  territory  on  the  south  and  the 
district  of  Louisiana  to  the  north.  *  *  *  On  March  2,  1805  (2 
Stat,  at  L.  322,  c.  23),  an  act  was  approved,  which,  *  *  *  in  the 
first  section,  provided  that  the  inhabitants  of  the  territqry  of  Orleans 
"shall  be  entitled  to  and  enjoy  all  the  rights,  privileges,  and  advantages 
secured  by  the  said  ordinance"  (that  is,  the  Ordinance  of  17S7)  "and 
now  enjoyed  by  the  people  of  the  Mississippi  territory."  As  will  be  re- 
membered, the  ordinance  of  1787  had  been  extended  to  that  territory. 
1  Stat,  at  L.  550,  c.  28.  Thus,  strictly  in  accord  with  the  thought  em- 
bodied in  the  amendments  contemplated  by  Mr.  Jefferson,  citizenship 
was  conferred,  and  the  territory  of  Orleans  was  incorporated  into  the 
United  States  to  fulfil  the  requirements  of  the  treaty,  by  placing  it  ex- 
actly in  the  position  which  it  would  have  occupied  had  it  been  within 
the  boundaries  of  the  United  States  as  a  territory  at  the  time  the 
Constitution  was  framed.  It  is  pertinent  to  recall  that  the  treaty  con- 
tained stipulations  giving  certain  preferences  and  commercial  privileges 
for  a  stated  period  to  the  vessels  of  French  and  Spanish  subjects," 
and  that,  even  after  the  action  of  Congress  above  stated,  this  condition 
of  the  treaty  continued  to  be  enforced,  thus  demonstrating  that  even 
after  the  incorporation  of  the  territory  the  express  provisions  confer- 
ring a  temporary  right  which  the  treaty  had  stipulated  for  and  which 
Congress  had  recognized  were  not  destroyed,  the  effect  being  that  in- 
corporation as  to  such  matter  was  for  the  time  being  in  abeyance. 

The  upper  part  of  the  province  of  Louisiana  *  *  *  was  created 
the  territory  of  Missouri  on  June  4,  1812.  2  Stat,  at  L.  743,  c.  95. 
By  this  latter  act,  though  the  Ordinance  of  1787  was  not  in  express 
terms  extended  over  the  territory, — probably  owing  to  the  slavery 
agitation, — the  inhabitants  of  the  territory  were  accorded  substantially 
all  the  rights  of  the  inhabitants  of  the  Northwest  Territory.     Citizen- 

*  Article  7  of  the  treaty  gave  preferential  commercial  privileges  in  the  ports 
of  the  territory  for  twelve  years  to  French  and  Spanish  ships  over  those  of 
other  foreign  nations.  There  were  similar  provisions  in  the  treaties  ceding 
Florida  and  the  Philippines,  and  in  the  Hawaiian  treaty  a  discrimination 
against  those  islands.  Louisiana  was  admitted  as  a  state  in  1S12,  three  years: 
before  the  expiration  of  article  7,  above.  See  the  discussion  of  these  provi- 
sions in  the  principal  case,  1S2  U.  S.  at  253-257,  21  Sup.  Ct  770,  45  L,.  Ed. 
108S. 


Ch.  16)         TEKKITOKIES,  DEPENDENCIES,  AND   NEW   STATES  lOU'J 

ship  was  in  effect  recognized  in  the  ninth  section,  while  the  fourteenth 
section  contained  an  elaborate  declaration  of  the  rights  secured  to  the 
people  of  the  territory.  *  *  *  [Similar  provisions  and  procedure 
thereunder  in  the  case  of  the  treaty  of  1819  ceding  Florida  are  here 
mentioned.] 

The  treaty  of  peace  with  Mexico  departed  from  the  form  adopted  in 
the  previous  treaties  concerning  Florida  and  Louisiana,  *  *  *  and 
accomplished  the  cession  by  changing  the  boundaries  of  the  two  coun- 
tries; in  other  words,  by  bringing  the  acquired  territory  within  the  de- 
scribed boundaries  of  the  United  States.  The  treaty,  besides,  con- 
tained a  stipulation  for  rights  of  citizenship ■ ;  in  other  words,  a 
sion  equivalent  in  terms  to  those  used  in  the  previous  treaties  to  which 
I  have  referred.  *  *  *  After  the  ratification  of  the  treaty  various 
laws  were  enacted  by  Congress,  which  in  effect  treated  the  territory 
as  acquired  by  the  United  States;  and  the  executive  officers  of  the 
government,  conceiving  that  these  acts  were  an  implied  or  express 
ratification  of  the  provisions  of  the  treaty  by  Congress,  acted  upon  the 
assumption  that  the  provisions  of  the  treaty  were  thus  made  operative, 
and  hence  incorporation  had  thus  become  efficacious.  *  *  *  Eut 
this  did  not  conflict  with  the  general  principles  of  the  law  of  nations 
which  I  have  at  the  outset  stated,  but  enforced  it,  since  the  action 
taken  assumed,  not  that  incorporation  was  brought  about  by  the  treaty- 
making  power  wholly  without  the  consent  of  Congress,  but  only  that. 
as  the  treaty  provided  for  incorporation  in  express  terms,  and  Con- 
gress had  acted  without  repudiating  it,  its  provisions  should  be  at  once 
enforced. 

Without  referring  in  detail  to  the  acquisition  from  Russia  of  Alaska, 
it  suffices  to  say  that  that  treaty  also  contained  provisions  for  incor- 
poration, and  was  acted  upon  exactly  in  accord  with  the  practical  con- 
struction applied  in  the  case  of  the  acquisitions  from  Mexico,  as  just 
stated.  However,  the  treaty  ceding  Alaska  contained  an  express  pro- 
vision excluding  from  citizenship  the  uncivilized  native  tribes,  and  it 
has  been  nowhere  contended  that  this  condition  of  exclusion  was  in- 
operative because  of  the  want  of  power  under  the  Constitution  in  the 
treaty-making  authority  to  so  provide,  which  must  be  the  case  if  the 
limitation  on  the  treaty-making  power,  which  is  here  asserted,  be  well 
founded.  The  treaty  concerning  Alaska,  therefore,  adds  cogency  to 
the  conception  established  by  every  act  of  the  government  from  the 
foundation, — that  the  condition  of  a  treaty,  when  expressly  or  im- 
pliedly ratified  by  Congress,  becomes  the  measure  by  which  the  rights 
arising  from  the  treaty  are  to  be  adjusted.     *     *     * 

In  concluding  my  appreciation  of  the  history  of  the  government, 
attention  is  called  to  the  thirteenth  amendment  to  the  Constitution. 

b  For  the  rfTcct  of  this  stipulation   Dpo  Uized  Indian-; 

of  New  Mexico,  Bee  t\  s.  v.  Sai  doval  (D   C  I  198  i  ed   539  (1912);  with  which 
compare  Eli  v.  Wilkins.  stated  ante,  at  p.  134. 
Hall  Const.L. — 64 


1010  THE  FEDERAL  GOVERNMENT       ■  (Part  3 

which  to  my  mind  seems  to  be  conclusive.  The  first  section  of  the 
amendment,  the  italics  being  mine,  reads  as  follows :  "Sec.  1.  Neither 
slavery  nor  involuntary  servitude,  except  as  a  punishment  for  crime, 
whereof  the  party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States,  or  any  place  subject  to  their  jurisdiction."  Obvi- 
ously this  provision  recognized  that  there  may  be  places  subject  to  the 
jurisdiction  of  the  United  States,  but  which  are  not  ir.corporated  into  it, 
and  hence  are  not  within  the  United  States  in  the  completest  sense  of 
those  words.     *     *     * 

[After  quoting  from  Amer.  Ins.  Co.  v.  Canter,  1  Pet.  511,  7  I_.  Ed. 
242,  and  Fleming  v.  Page,  9  How.  at  614,  13  L.  Ed.  276,  and  dis- 
cussing Cross  v.  Harrison,  16  How.  164,  14  L.  Ed.  S89:]  It  is,  then, 
as  I  think,  indubitably  settled  *  *  *  that  the  treaty-making  power 
cannot  incorporate  territory  into  the  United  States  without  the  express 
or  implied  assent  of  Congress,  that  it  may  insert  in  a  treaty  conditions 
against  immediate  incorporation,  and  that  on  the  other  hand,  when  it 
has  expressed  in  the  treaty  the  conditions  favorable  to  incorporation 
they  will,  if  the  treaty  be  not  repudiated  by  Congress,  have  the  force 
of  the  law  of  the  land,  and  therefore  by  the  fulfilment  of  such  condi- 
tions cause  incorporation  to  result.     *     *     * 

The  provisions  of  the  treaty  with  respect  to  the  status  of  Porto  Rico 
and  its  inhabitants  are  as  follows: 

"Article  II.  Spain  cedes  to  the  United  States  the  Island  of  Porto 
Rico.     *     *     * 

"Article  IX.  *  *  *  The  civil  rights  and  political  status  of  the 
native  inhabitants  of  the  territories  hereby  ceded  to  the  United  States 
shall  be  determined  by  the  Congress."     *     *     * 

It  is  to  me  obvious  that  the  above-quoted  provisions  of  the  treaty 
do  not  stipulate  for  incorporation,  but,  on  the  contrary,  expressly  pro- 
vide that  the  "civil  rights  and  political  status  of  the  native  inhabitants 
of  the  territories  hereby  ceded"  shall  be  determined  by  Congress- 
When  the  rights  to  which  this  careful  provision  refers  are  put  in  juxta- 
position with  those  which  have  been  deemed  essential  from  the  founda- 
tion of  the  government  to  bring  about  incorporation,  all  of  which  have 
been  previously  referred  to,  I  cannot  doubt  that  the  express  purpose 
of  the  treaty  was  not  only  to  leave  the  status  of  the  territory  to  be 
determined  by  Congress,  but  to  prevent  the  treaty  from  operating  to  the 
contrary.  Of  course,  it  is  evident  that  the  express  or  implied  acqui- 
escence by  Congress  in  a  treaty  so  framed  cannot  import  that  a  result 
was  brought  about  which  the  treaty  itself — giving  effect  to  its  provi- 
sions— could  not  produce.  And,  in  addition,  the  provisions  of  the  act 
by  which  the  duty  here  in  question  was  imposed,  taken  as  a  whole, 
seem  to  me  plainly  to  manifest  the  intention  of  Congress  that,  for  the 
present  at  least,  Porto  Rico  is  not  to  be  incorporated  into  the  United 
States.     *     *     * 

The  result  of  what  has  been  said  is  that  while  in  an  international 
sense  Porto  Rico  was  not  a  foreign  country,  since  it  was  subject  to 


Ch.  16)        TERRITORIES,  DEPENDENCIES,  AND  NEW     STATES  1011 

the  sovereignly  of  and  was  owned  by  the  United  States,  it  was  foreign 
to  the  United  States  is  a  domestic  sense,  because  the  island  had  not 
been  incorporated  into  the  United  Stales,  but  was  merely  appuii 
thereto  as  a  possession.  As  a  necessary  consequence,  the  impost  in 
question  assessed  on  merchandise  coming  from  Porto  Rico  into  the 
United  States  after  the  cession  was  within  the  power  of  Congress,  and 
that  body  was  not,  moreover,  as  to  such  impost,  controlled  by  the 
clause  requiring  that  imposts  should  be  uniform  throughout  the  United 
States;  in  other  words,  the  provision  of  the  Constitution  just  referred 
to  was  not  applicable  to  Congress  in  legislating  for  Porto  Rico.    *    *    * 

It  seems  to  me  it  is  not  open  to  serious  dispute  that  the  military  arm 
of  the  government  of  the  United  States  may  hold  and  occupy  con- 
quered territory  without  incorporation  for  such  length  of  time  as  may 
seem  appropriate  to  Congress  in  the  exercise  of  its  discretion.  The 
denial  of  the  right  of  the  civil  power  to  do  so  would  not,  therefore, 
prevent  the  holding  of  territory  by  the  United  States  if  it  was  d 
best  by  the  political  department  of  the  government,  but  would  simply 
necessitate  that  it  should  be  exercised  by  the  military  instead  of  by  the 
civil  power.  *  *  *  Quite  recently  one  of  the  stipulations  con- 
tained in  the  treaty  with  Spain  which  is  now  under  consideration  came 
under  review  by  this  court.  By  the  provision  in  question  Spain  relin- 
quished "all  claim  of  sovereignty  over  and  title  to  Cuba."  It  was  fur- 
ther provided  in  the  treaty  as  follows:  "And  as  the  island  is  upon  the 
evacuation  by  Spain  to  be  occupied  by  the  United  States,  the  United 
States  will,  so  long  as  such  occupation  shall  last,  assume  and  discharge 
the  obligations  that  may  under  international  law  result  from  the  fact 
of  its  occupation,  and  for  the  protection  of  life  and  property." 

It  cannot,  it  is  submitted,  be  questioned  that,  under  this  provision  of 
the  treaty,  as  long  as  the  occupation  of  the  United  States  lasts,  the  be- 
nign sovereignty  of  the  United  States  extends  over  and  dominates  the 
island  of  Cuba.  Likewise,  it  is  not,  it  seems  to  me,  questionable  that 
the  period  when  that  sovereignty  is  to  cease  is  to  be  determined  by  the 
legislative  department  of  the  government  of  the  United  States, 
*  *  *  Considering  the  provisions  of  this  treaty,  and  reviewing  tin- 
pledges  of  this  government  extraneous  to  that  instrument,  by  which 
the  sovereignty  of  Cuba  is  to  be  held  by  the  United  States  for  the 
benefit  of  the  people  of  Cuba  and  for  their  account  to  be  relin- 
quished to  them  when  the  conditions  justify  its  accomplishment, 
this  court  unanimously  held  in  Neely  v.  Henkel,  180  U.  S.  109,  21 
Sup.  Ct.  302,  45  L.  Ed.  448,  that  Cuba  was  not  incorporated  into 
the  United  States,  and  was  a  foreign  country.  It  follows  from 
this  decision  that  it  is  lawful  for  the  United  States  to  take  pos- 
session of  and  hold  in  the  exercise  of  its  sovereign  power  a  parti  u 
lar  territory,  without  incorporating  it  into  the  United  States,  if  there 
he  obligations  of  honor  and  good  faith  which,  although  not  expi 
in  the  treaty,  nevertheless  sacredly  bind  tin-  United  States  to  terminate 
the  dominion  and  control  when,  in  its  political  discretion,  the  situation 


1012  TnF,   FEDERAL   GOVERNMENT  (Part  3 

is  ripe  to  enable  it  to  do  so.  *  *  *  This  method,  then,  of  dealing 
with  foreign  territory,  would  in  any  event  be  available.  Thus,  the 
enthralling  of  the  treaty-making  power,  which  would  result  from 
holding  that  no  territory  could  be  acquired  by  treaty  of  cession  with- 
out immediate  incorporation,  would  only  result  in  compelling  a  resort 
to  the  subterfuge  of  relinquishment  of  sovereignty,  and  thus  indirection 
would  take  the  place  of  directness  of  action, — a  course  which  would 
be  incompatible  with  the  dignity  and  honor  of  the  government. 

[Gray,  J.,  gave  a  short  concurring  opinion ;  and  Fuller,  C.  J.,  a 
dissenting  opinion,  concurred  in  by  Harlan,  Brewer,  and  Peckham, 
JJ.,  proceeding  upon  the  ground  that  the  effect  of  the  treaty  and  of 
the  Foraker  act  was  to  make  Porto  Rico  an  organized  territory  of  the 
United  States,  in  the  national  taxation  of  which  the  rule  of  uniformity 
applied.    Harlan,  J.,  gave  also  a  separate  opinion.] " 

s  Other  cases  dealing  with  the  applicability  or  validity  of  the  federal 
revenue  laws  in  various  situations  are :  U.  S.  v.  Rice,  4  Wheat.  2-16,  4  L.  Ed. 
562  (1M9)  (imports  into  Castine,  Maine,  during  hostile  British  occupation); 
Fleming  v.  Page,  9  How.  603,  13  L.  Ed.  276  (1S50)  (imports  into  United  States 
from  Tampico,  Mexico,  during  hostile  American  occupation) ;  Cross  v.  Har- 
rison, 16  How.  164,  14  L.  Ed.  SS9  (1S53)  (imports  into  California  after  its  ces- 
sion and  before  congressional  legislation);  De  Lima  v.  Bidwell,  182  TJ.  S.  1, 
21  Sup.  Ct.  743,  45  L.  Ed.  1041  (1901)  (imports  into  United  States  from  Porto 
Rico  after  its  cession  and  before  legislation) ;  Dooley  v.  U.  S.,  1S2  U.  S.  222, 
21  Sup.  Ct.  762,  45  L.  Ed.  1074  (1901)  (imports  from  United  States  into  Porto 
Rico  during  American  military  occupation  before  and  after  cession,  but  be- 
fore legislation) ;  Dooley  v.  U.  S.,  1S3  U.  S.  151,  22  Sup.  Ct.  62,  43  L.  Ed.  128 
(1901)  (same,  after  the  Foraker  act) ;  Pearcy  v.  Stranahan,  205  U.  S.  257,  27 
Sup.  Ct.  545,  51  L.  Ed.  793  (1907)  (imports  from  Cuba) ;  MacLeod  v.  United 
States,  229  U.  S.  416,  33  Sup.  Ct.  955,  57  L.  Ed. (1913)  (imports  into  Philip- 
pine ports  in  possession  of  insurgents  after  cession  from  Spain). 

See,  also,  Lincoln  v.  U.  S.,  197  U.  S.  419,  25  Sup.  Ct.  455,  49  L.  Ed.  816  (1905), 
Id.,  202  U.  S.  484,  26  Sup.  Ct.  728,  50  L.  Ed.  1117  (1906)  (effect  of  Philippine 
insurrection). 

Sovereignty  a  Political  Question. — "Who  is  the  sovereign,  de  jure  or 
de  facto,  of  a  territory  is  not  a  judicial,  but  a  political  question,  the  determina- 
tion of  which  by  the  legislative  and  executive  departments  of  any  government 
conclusively  binds  the  judges,  as  well  as  all  other  officers,  citizens,  and  sub- 
jects of  that  government.  This  principle  has  always  been  upheld  by  this 
court,  and  has  been  affirmed  under  a  great  variety  of  circumstances." — Gray, 
J.,  in  Jones  v.  U.  S.,  137  U.  S.  202,  212,  11  Sup.  Ct.  80,  S3,  34  L.  Ed.  091  (1890) 
(citing  cases).  See,  also,  Williams  v.  Suffolk  Ins.  Co.,  13  Pet.  415,  10  L.  Ed. 
226  (1839)  (question  of  foreign  sovereignty);  Pearcy  v.  Stranahan,  205  U.  S. 
257,  27  Sup.  Ct.  545,  51  L.  Ed.  793  (1907)  (question  of  domestic  sovereignty) ; 
Phillips  v.  Payne,  92  U.  S.  130,  23  L.  Ed.  6-19  (1S76)  (same,  between  state  and 
United  States);  In  re  Cooper,  143  U.  S.  472,  49S-503,  12  Sup.  Ct.  453,  36  L. 
Ed.  232  (1892)  (question  of  federal  jurisdiction  over  Behring  sea  60  miles  from 
shore) ;  U.  S.  v.  Holliday,  3  Wall.  407,  419,  18  L.  Ed.  182^  (1866)  (question  of 
existence  of  Indian  tribe).  Compare  Terlinden  v.  Ames,  184  U.  S.  270,  22  Sup. 
Ct.  4S4,  46  L.  Ed.  534  (1902)  (effect  of  formation  of  German  Empire). 


Ch.  16)  TERRITORIES,  DEPENDE.M  I  B8,   AND    RJBW    STATES  1013 

DORR  v.  UNITED  STATE?  (1904)  195  U.  S.  138,  142-14?.  14S, 
149,  24  Sup.  Ct.  808,  49  L.  Ed.  128.  1  Ann.  Cas.  697,  Mr.  Justice 
Day  (upholding  the  federal  trial  of  crimes  in  the  Philippines  without  a 
jury) : 

"In  every  case  where  Congress  undertakes  to  legislate  in  the  exercise 
of  the  power  conferred  by  the  Constitution,  the  question  may  arise  as 
to  how  far  the  exercise  of  the  power  is  limited  by  the  'prohibitions' 
of  that  instrument.  The  limitations  which  arc  to  be  applied  in  any 
given  case  involving  territorial  government  must  depend  upon  the  re- 
lation of  the  particular  territory  to  the  United  States,  concerning  which 
Congress  is  exercising  the  power  conferred  by  the  Constitution.  That 
the  United  States  may  have  territory  which  is  not  incorporated  into  the 
United  States  as  a  body  politic,  we  think  was  recognized  by  the  fram- 
ers  of  the  Constitution  in  enacting  the  article  already  considered,  giving 
power  over  the  territories,  and  is  sanctioned  by  the  opinions  of  the 
justices  concurring  in  the  judgment  in  Downes  v.  Eidwell,  1S2  U.  S. 
244  2S8,  45  L.  Ed.  1088-1106,  21  Sup.  Ct.  770. 

"Until  Congress  shall  see  fit  to  incorporate  territory  ceded  by  treaty 
into  the  United  States,  we  regard  it  as  settled  by  that  decision  that  the 
territory  is  to  be  governed  under  the  power  existing  in  Congress  to 
make  laws  for  such  territories,  and  subject  to  such  constitutional  re- 
strictions upon  the  powers  of  that  body  as  are  applicable  to  the  situa- 
tion. 

"For  this  case  the  practical  question  is:  Must  Congress,  in  establish- 
ing a  system  for  trial  of  crimes  and  offenses  committed  in  the  Philip- 
pine Islands,  carry  to  their  people  by  proper  affirmative  legislation  a 
system  of  trial  by  jury?     *     *     * 

"[After  holding  that  the  Spanish  treaty  of  cession  and  congressional 
legislation  thereunder  had  not  incorporated  the  Philippines  into  the 
United  States  (see  Downes  v.  Bidwell,  ante,  p.  1010),  and  after  refer- 
ring to  Const,  art.  I,  §  2  and  to  Amend.  VI,  requiring  trials  bv  jury:] 
"It  was  said  in  the  Mankichi  Case.1  190  U.  S.  197,  47  L.  Ed.  1016.  23 
Sup.  Ct.  787,  that  when  the  territory  had  not  been  incorporated  into 
the  United  States  these  requirements  were  not  limitations  upon  the 
power  of  Congress  in  providing  a  government  for  territory  in  execu- 
tion of  the  powers  conferred  upon  Congress.  Opinion  of  Mr.  Justice 
White,  p.  220.  *  *  *  In  the  same  case  Mr.  Justice  Brown,  in  the 
course  of  his  opinion,  said:  'We  would  even  go  farther,  and  say  that 
most,  if  not  all,  the  privileges  and  immunities  contained  in  the  Bill  of 
Rights  of  the  Constitution  were  intended  to  apply  from  the  moment 
of  annexation ;  but  we  place  our  decision  of  this  case  upon  the  ground 
that  the  two  rights  alleged  to  be  violated  in  this  case  [right  to  trial  by 

i  riawall  v.  Mnnkirhl,  a  case  that  arose  in  the  Hawaiian  Islands  under  the 
annexation  act  of  July  7,  1898,  30  Stat.  750. 


1014  THE  FEDERAL  GOVERNMENT  _    (Part" 

jury  and  presentment  by  grand  jury]  are  not  fundamental  in  their 
nature,  but. concern  merely  a  method  of  procedure  which  sixty  years 
of  practice  had  shown  to  be  suited  to  the  conditions  of  the  islands,  and 
well  calculated  to  conserve  the  rights  of  their  citizens  to  their  lives, 
their  property,  and  their  well  being.'     *     *     * 

"If  the  right  to  trial  by  jury  were  a  fundamental  right  which  goes 
wherever  the  jurisdiction  of  the  United  States  extends,  or  if  Congress, 
in  framing  laws  for  outlying  territory  belonging  to  the  United  States, 
was  obliged  to  establish  that  system  by  affirmative  legislation,  it  would 
follow  that,  no  matter  what  the  needs  or  capacities  of  the  people,  trial 
by  jury,  and  in  no  other  way,  must  be  forthwith  established,  although 
the  result  may  be  to  work  injustice  and  provoke  disturbance  rather 
than  to  aid  the  orderly  administration  of  justice.  If  the  United  States, 
impelled  by  its  duty  or  advantage,  shall  acquire  territory  peopled  by 
savages,  and  of  which  it  may  dispose  or  not  hold  for  ultimate  admis- 
sion to  statehood,  if  this  doctrine  is  sound,  it  must  establish  there  the 
trial  by  jury.  To  state  such  a  proposition  demonstrates  the  impossi- 
bility of  carrying  it  into  practice.  Again,  if  the  United  States  shall  ac- 
quire by  treaty  the  cession  of  territory  having  an  established  system  of 
jurisprudence,  where  jury  trials  are  unknown,  but  a  method  of  fair 
and  orderly  trial  prevails  under  an  acceptable  and  long-established  code, 
the  preference  of  the  people  must  be  disregarded,  their  established  cus- 
toms ignored,  and  they  themselves  coerced  to  accept,  in  advance  of  in- 
corporation into  the  United  States,  a  system  of  trial  unknown  to  them 
and  unsuited  to  their  needs.  We  do  not  think  it  was  intended,  in  giv- 
ing power  to  Congress  to  make  regulations  for  the  territories,  to  ham- 
per its  exercise  with  this  condition. 

"We  conclude  that  the  power  to  govern  territory,  implied  in  the 
right  to  acquire  it,  and  given  to  Congress  in  the  Constitution  in  article 
4,  §  3,  to  whatever  other  limitations  it  may  be  subject,  the  extent  of 
which  must  be  decided  as  questions  arise,  does  not  require  that  body 
to  enact  for  ceded  territory  not  made  a  part  of  the  United  States  by 
congressional  action,  a  system  of  laws  which  shall  include  the  right 
of  trial  by  jury,  and  that  the  Constitution  does  not,  without  legislation. 
and  of  its  own  force,  carry  such  right  to  territory  so  situated." 

[Fuller,  C.  J.,  and  Peckham  and  Brewer,  JJ.,  concurred,  upon 
the  authority  of  Hawaii  v.  Mankichi,  190  U.  S.  197,  23  Sup.  Ct.  787, 
47  L.  Ed.  1016.    Harlan,  J.,  gave  a  dissenting  opinion.] 


Ch.  16)  TERRITORIES,   DEPENDENCIES,   AND    NEW    STATES  1015 


RASSMUSSEN  v.  UNITED  STATES. 

(Supreme  Court  of  tlie  United  States,   1905.     l'JT  U.   8.  516,  25  Sup.  CL  514, 
49  L.  Ed.  862.) 

[Error  to  the  United  States  District  Court  for  Alaska.  Section  171 
of  the  Congressional  Code  for  Alaska  (31  Stat.  358)  provided  that 
misdemeanors  might  be  tried  by  juries  of  six  persons.  The  defendant 
was  tried  and  convicted  by  such  a. jury  in  spite  of  his  demand  for  a 
common-law  jury  of  twelve,  and  this  writ  was  taken.] 

Mr.  Justice  White.  *  *  *  The  validity  of  the  provision  in- 
question  is  *  *  *  sought  to  be  sustained  upon  the  proposition 
that  the  sixth  amendment  to  the  Constitution  did  not  apply  to  Congress 
in  legislating  for  Alaska.  And  this  rests  upon  two  contentions,  which 
we  proceed  separately  to  consider. 

1.  Alaska  ivas  not  incorporated  into  the  United  States,  and  there- 
fore the  sixth  amendment  did  not  control  Congress  in  legislating  for 
Alaska. 

If  the  premise,  that  is,  the  status  of  Alaska,  be  conceded,  the  con- 
clusion deduced  from  it  is  established  by  the  previous  rulings  of  this 
court.  *  *  *  [Reference  is  here  made  to  Downes  v.  Bidwell,  ante, 
p.  988,  and  to  Dorr  v.  U.  S.,  ante.  p.  1013.1  We  are  brought,  then,  to 
determine  whether  Alaska  has  been  incorporated  into  the  United  States 
as  a  part  thereof,  or  is  simply  held,  as  the  Philippine  Islands  are  held, 
under  the  sovereignty  of  the  United  States  as  a  possession  or  depend- 
ency.    *     *     * 

This  brings  us  to  consider  the  treaty  by  which  Alaska  was  acquired, 
and  the  action  of  Congress  concerning  that  acquisition,  for  the  purpose 
of  ascertaining  whether,  within  the  criteria  referred  to  in  Downes  v. 
Bidwell  and  adopted  and  applied  in  Dorr  v.  United  States,  Alaska  was 
incorporated  into  the  United  States. 

The  treaty  concerning  Alaska,  instead  of  exhibiting,  as  did  the  treaty 
respecting  the  Philippine  Islands,  the  determination  to  reserve  the 
question  of  the  status  of  the  acquired  territory  for  ulterior  action  by 
Congress,  manifested  a  contrary  intention,  since  it  is  therein  expressly 
declared,  in  article  3,  that:  "The  inhabitants  of  the  ceded  territory 
*  *  *  shall  be  admitted  to  the  enjoyment  of  all  the  rights,  advan- 
tages, and  immunities  of  citizens  of  the  United  States;  and  shall  be 
maintained  and  protected  in  the  free  enjoyment  of  their  liberty,  prop- 
erty and  religion."     [15  Stat,  at  L.  542.] 

This  declaration,  although  somewhat  changed  in  phraseology,  is  the 
equivalent,  as  pointed  out  in  Downes  v.  Bidwell,  of  the  formula,  em- 
ployed from  the  beginning  to  express  the  purpose  to  incorporate  ac- 
quired territory  into  the  United  States, — especially  in  the  absence  of 
other  provisions  showing  an  intention  to  the  contrary.  And  it  w.i^ 
doubtless  this  fact  conjoined  with  the  subsequent  legislation  of  Con- 
gress which  led  to  the  following  statement  concerning  Alaska  made  in 


1016  THL-:   FEDERAL   GOVERNMENT  (Part  ?> 

the  opinion  of  three,  if  not  four,  of  the  judges  who  concurred  in  the 
judgment  of  affirmance  in  Downes  v.  Bidwell  (p.  335,  L.  Ed.  p.  1125. 
Sup.  Ct.  p.  805) :  "Without  referring  in  detail  to  the  acquisition  from 
Russia  of  Alaska,  it  suffices  to  say  that  that  treaty  also  contained  pro- 
visions for  incorporation,  and  was  acted  upon  exactly  in  accord  with 
the  practical  construction  applied  in  the  case  of  the  acquisition  from 
Mexico,  as  just  stated."     *     *     * 

That  Congress,  shortly  following  the  adoption  of  the  treaty  with 
Russia,  clearly  contemplated  the 'incorporation  of  Alaska  into  the 
United  States  as  a  part  thereof,  we  think  plainly  results  from  the  Act 
of  July  20,  1868,  concerning  internal  revenue  taxation,  c.  186,  §  107 
(15  Stat,  at  L.  167,  U.  S.  Comp.  Stat.  1901,  p.  2277),  and  the  Act  of 
July  27,  1868,  c.  273,  extending  the  laws  of  the  United  States  relating 
to  customs,  commerce,  and  navigation  over  Alaska,  and  establishing  a 
collection  district  therein.  15  Stat,  at  L.  240.  And  this  is  fortified 
by  subsequent  action  of  Congress,  which  it  is  unnecessary  to  refer  to. 

Indeed,  both  before  and  since  the  decision  in  Downes  v.  Bidwell 
the  status  of  Alaska  as  an  incorporated  territory  was  and  has  been  rec- 
ognized by  the  action  and  decisions  of  this  court.  By  the  sixth  section 
of  the  Judiciary  Act  of  March  3,  1891  (26  Stat,  at  L.  826,  c.  517,  U. 
S.  Comp.  Stat.  1901,  pp.  549,  550),  it  was  made  the  duty  of  this  court 
to  assign  the  several  territories  of  the  United  States  to  particular  cir- 
cuits; and  in  execution  of  this  law  this  court,  by  an  order  promulgated 
May  11,  1891,  assigned  the  territory  of  Alaska  to  the  Ninth  judicial 
circuit.  *  *  *  [Here  follow  references  to  the  Coquitlam  v.  U.  S., 
163  U.  S.  346,  16  Sup.  Ct.  1117,  41  L.  Ed.  184,  and  to  Binns  v.  U. 
S.,  194  U.  S.  486,  24  Sup.  Ct.  816,  48  L.  Ed.  1087.] 

It  follows,  then,  from  the  text  of  the  treaty  by  which  Alaska  was 
acquired,  from  the  action  of  Congress  thereunder,  and  the  reiterated 
decisions  of  this  court,  that  the  proposition  that  Alaska  is  not  incorpo- 
rated into  and  a  part  of  the  United  States  is  devoid  of  merit.    *    *    * 

This  brings  us  to  the  second  proposition,  which  is — 

2.  That  even  if  Alaska  was  incorporated  into  the  United  States,  as 
it  was  not  an  organized  territory,  therefore  the  provisions  of  the  sixth 
amendment  were  not  controlling  on  Congress  when  legislating  for 
Alaska.     *     *■     * 

In  our  opinion,  the  unsoundness  of  the  proposition  is  conclusively 
established  by  a  long  line  of  decisions.1     *     *     * 

The  argument  by  which  the  decisive  force  of  the  cases  just  cited  is 
sought  to  be  escaped  is  that,  as  when  the  cases  were  decided  there  was 
legislation  of  Congress  extending  the  Constitution  to  the  District  of 
Columbia  or  to  the  particular  territory  to  which  a  case  may  have  re- 
lated, therefore  the  decisions  must  be  taken  to  have  proceeded  alone 
upon  the  statutes,  and  not  upon  the  inherent  application  of  the  provi- 
sions of  the  fifth,  sixth,  and  seventh  amendments  to  the  District  of 

i  See  Downes  v.  Bidwell,  ante,  at  p.  097,  note  2. 


Ch.  1G)  TERRITORIES,  DEPENDENCIES,   AND    NKW    STATES  1017 

Columbia  or  to  an  incorporated  territory.  And,  upon  the  assumption 
that  the  cases  are  distinguishable  from  the  present  one  upon  the  basis 
just  stated,  the  argument  proceeds  to  insist  that  the  sixth  amendment 
does  not  apply  to  the  territory  of  Alaska,  because  section  1891  of  the 
Revised  Statutes  only  extends  the  Constitution  to  the  organized  terri- 
tories, in  which,  it  is  urged,  Alaska  is  not  embraced. 

Whilst  the  premise  as  to  the  existence  of  legislation  declaring  the 
extension  of  the  Constitution  to  the  territories  with  which  the  cases 
were  respectively  concerned  is  well  founded,  the  conclusion  drawn 
from  that  fact  is  not  justified.  *  *  *  It  is  true  that,  in  some  of 
the  opinions,  both  the  application  of  the  Constitution  and  the  statutory 
provisions  declaring  such  application  were  referred  to,  but  in  others  no 
reference  to  such  statutes  was  made,  and  the  cases  proceeded  upon 
a  line  of  reasoning  leaving  room  for  no  other  view  than  that  the  con- 
clusion of  the  court  was  rested  upon  the  self-operative  application  of 
the  Constitution.  Springville  v.  Thomas,  166  U.  S.  707.  41  L.  Ed. 
1172,  17  Sup.  Ct.  717;  Thompson  v.  Utah,  170  U.  S.  343,  42  L.  Ed. 
1061,  18  Sup.  Ct.  620;  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1,  43  I.. 
Ed.  ^73,  19  Sup.  Ct.  580;  Black  v.  lackson,  177  U.  S.  349.  44  I 
801,  20  Sup.  Ct.  648.  *  *  *  It 'follows  that  the  provision  of  the 
act  of  Congress  under  consideration,  depriving  persons  accused  of  a 
misdemeanor  in  Alaska  of  a  right  to  trial  by  a  common-law  jury,  was 
repugnant  to  the  Constitution  and  void. 
,mcnt  reversed. 

[Harlan,  J.,  gave  a  concurring  opinion.] 

Mr.  Justice  Brown,  concurring.  *  *  *  [After  concurring  in 
the  result.]  The  tenor  of  the  opinion,  however,  is  such  that  I  should 
be  doing  an  injustice  to  myself  if  I  failed  to  express  my  views  upon 
the  doctrine  of  incorporation.  My  position  regarding  the  applicability 
of  the  Constitution  to  newly  acquired  territory  is  contained  in  the  opin- 
ion delivered  by  me  in  Downes  v.  Bidwell,  1S2  U.  S.  244,  45  L.  Ed. 
1088,  21  Sup.  Ct.  770.  It  is  simply  that  the  Constitution  does  not 
apply  to  territories  acquired  by  treaty  until  Congress  has  so  declared, 
and  that  in  the  meantime,  under  its  power  to  regulate  the  territories,  it 
may  deal  with  them  regardless  of  the  Constitution,  except  so  far  as 
concerns  the  natural  rights  of  their  inhabitants  to  life,  liberty,  and 
property.     *     *     * 

Congress  did  undoubtedly  provide  a  permanent  civil  government  for 
Alaska  by  the  Act  of  June  6,  1900  (31  Stat,  at  L.  321,  c.  7S6),  but  it 
evidently  did  not  regard  the  Constitution  as  extended  to  it  by  any  pre- 
vious act,  since  it  provided  in  section  171  for  trials  of  misdemeanors 
by  a  jury  of  six. 

There  are  so  many  difficulties  connected  with  the  applicability  of  the 
Constitution  that  it  has  seemed  to  me  that  the  only  true  test  was 
whether  Congress  intended  to  apply  it  or  not  in  the  particular  case. 
When  is  a  territory  incorporated  so  as  to  make  the  Constitution  ap- 


1018  THE   FEDEHAL  GOVERNMENT  (Part  .3 

plicable  in  all  its  provisions?  That  some  action  on  the  part  of  Con- 
gress is  necessary  to  extend  the  Constitution  to  the  territories  was 
settled  in  Downes  v.  Bidwell,  but  shall  such  action  be  direct,  or  may 
it  be  indirect  by  way  of  incorporation?  May  Congress,  in  organizing 
or  incorporating  a  territory,  restrict  the  application  of  the  Constitu- 
tion to  it,  or  must  it  give  it  all?  What  is  an  organized  as  distinguished 
from  an  incorporated  territory?  Does  not  the  acceptance  of  a  cession 
of  territory  and  the  appointment  of  a  civil  governor  work  an  incor- 
poration of  the  territory  as  territory  of  the  United  States?  If  the  ac- 
ceptance of  territory  as  territory  of  the  United  States  be  not  an  in- 
corporation, what  language  is  necessary  to  effect  that  result? 

Apparently,  acceptance  of  the  territory  is  insufficient  in  the  opinion 
of  the  court  in  this  case,  since  the  result  that  Alaska  is  incorporated 
into  the  United  States  is  reached,  not  through  the  treaty  with  Russia, 
or  through  the  establishment  of  a  civil  government  there,  but  from 
the  Act  of  July  20,  186S,  concerning  internal  revenue  taxation,  and 
the  Act  of  July  27,  1868,  extending  the  laws  of  the  United  States  re- 
lating to  the  customs,  commerce,  and  navigation  over  Alaska,  and  es- 
tablishing a  collection  district  there.  Certain  other  acts  are  cited, 
notably  the  Judiciary  Act  of  March  3,  1891,  making  it  the  duty  of  this 
court  to  assign  the  several  territories  of  the  United  States  to  particular 
circuits.  But  no  mention  is  made  either  of  the  Act  of  May  17,  1884, 
providing  a  civil  government  for  Alaska,  or  the  Act  of  June  6,  1900. 
making  further  provision  for  a  civil  government  and  establishing  a 
complete  code  of  laws.  These  seem  to  me  the  vital  acts  upon  the 
status  of  Alaska;  yet  they  are  completely  ignored  in  the  opinion  of 
the  court,  and  the  fact  of  incorporation  is  sought  to  be  established  by 
what  seem  to  me  remote  inferences  from  immaterial  statutes.  In- 
deed, I  regard  the  whole  theory  of  the  extension  of  the  Constitution 
by  the  incorporation  of  territory  as  a  new  departure  in  federal  juris- 
prudence, and  that  the  true  answer  to  the  question  whether  the  Consti- 
tution applies  to  a  territory  is  to  be  found  in  the  fact  whether  Congress 
has  extended  the  Constitution  to  it  or  not. 

That  the  mere  act  of  incorporating  territory  into  the  United  States 
does  not  of  its  own  force  carry  the  Constitution  there,  regardless  of 
the  wishes  of  Congress,  is  evident  from  the  case  of  Hawaii  v.  Man- 
kichi,  190  U.  S.  197,  47  L.  Ed.  1016,  23  Sup.  Ct.  787.     *     *     * 

[After  referring  to  the  Newlands  resolution  of  July  7,  1898  (30 
Stat.  750),  annexing  the  Hawaiian  Islands:]  While  the  government 
provided  by  this  resolution  was  temporary  in  its  character,  and  a  mere 
continuance  of  existing  laws,  the  act  itself  was  as  complete  an  incor- 
poration of  the  islands  as  it  was  possible  for  language  to  make  it.  The 
resolution  declared  that  "said  cession"  of  the  Republic  of  Hawaii  "is 
accepted,  ratified,  and  confirmed,  and  that  the  said  Hawaiian  Islands 
and  their  dependencies  be,  and  they  are  hereby,  annexed  as  a  part  of 
the  territory  of  the  United  States,  and  are  subject  to  the  sovereign 


Ch.  16)  TERRITORIES,  DEPENDENCIES,  AND    NEW    STATES  1019 

dominion  thereof."  In  view  of  this  language  I  do  not  see  how  it  is 
possible  to  escape  the  conclusion  that  there  was  a  plain  incorporation 
by  Congress  of  these  islands,  and  an  extension  of  sovereignty  over 
them.  Notwithstanding  this,  however,  we  held  that  the  conviction 
of  one  who,  between  the  date  of  the  Newlands  resolution  and  the  date 
of  establishing  a  civil  government,  had  been  tried  on  information  and 
convicted  by  a  non-unanimous  jury,  was  legal,  though  not  in  compli- 
ance with  the  fifth  and  sixth  amendments  to  the  Constitution,  upon 
the  ground  that  the  Constitution  was  not  formally  extended  to  them 
until  the  territory  was  organized,  June  14,  1900  (31  Stat,  at  L.  141, 
c.  339,  §  5).  This  case  shows  the  impossibility  of  applying  the  doc- 
trine of  incorporation  without  an  accurate  definition  of  the  term. 
Hitherto  we  have  been  content  to  divide  our  territories  into  the  or- 
ganized and  unorganized ;  but  now  we  are  asked  to  introduce  a  new 
classification  of  "incorporated"  territories,  without  attempting  to  define 
what  shall  be  deemed  an  incorporation.  The  word  appears  to  me  sim- 
ply to  introduce  a  new  element  of  confusion,  and  to  be  of  no  practical 
value.  Rev.  Stat.  §  1891,  declaring  that  the  Constitution  shall  have 
force  and  effect  within  all  the  organized  territories  and  in  every  terri- 
tory hereafter  organized,  seems  to  meet  the  requirements  of  every 
case,  and  to  be  operative  wherever  Congress  does  not  in  the  organ- 
ization restrict  the  application  of  the  Constitution  in  some  particu- 
lar.    *     *     * 

1  do  not  dissent  from  the  conclusion  of  the  court  in  this  case.. but  I 
do  dissent  from  the  proposition  that  Congress  may  not  deal  with  terri- 
tories as  it  pleases,  until  it  has  seen  fit  to  extend  the  provisions  of 
the  Constitution  to  them,  which,  once  done,  in  my  view,  is  irrevoca- 
ble.'    *     *     * 

2  The  present  (1913)  status  of  territory,  not  a  part  of  any  state,  over  which 
the  United  States  is  sovereign,  is  apparently  as  follows:  The  Hawaiian  is- 
lands bave  been  Incorporated  into  the  rnitrd  states  by  Act  April  .'JO,  1000, 
C.  339,  31  Stat.  141.     See  Downea  v.  Bldwell,  ante,  at  p.  100U;    Hawaii  v.  Man 

kichi,  190  U.  S.  197,  211,  220,  23  Sup.  Ct  787,  -17  L.  Ed.  loifi  (1003).     Not t 

the  Spanish  cessions  have  become  incorporated,  tbougb  Porto  ttico  lias  been 
judicially  recognized  as  possessing  the  essential  characteristics  of  a  complete- 
ly organized  territory.  See  New  York  v.  Blngbam,  211  U.  S.  ins.  17, ;,  20 
Sup.  Ct.  190.  53  L.  Ed.  286  (1909)  (right  to  require  rendition  of  fugitives  from 
Justice);    Porto  Rico  v.  Rosaly,  227  O.   S.  270.  273,  274.  33  Sup.  Ct.  352,  57 

L.   Ed.  (1913)  (exemption   from  private  suit) :    American  Ry.  v.   DIdrick- 

sen.  227  U.  S.  145,  33  Sup.  Ct.  224,  57  L.  Ed.  (1013)  (included  In  term  'ter- 
ritory" in  federal  safety  appliance  law).  As  to  the  Canal  Zone,  see  the  treaty 
with  Panama  of  February  20,  1904,  33  Stat  2234,  ff. 


1020  THE   FEDERAL  GOVERNMENT  (Part  3 


COYLE  v.  SMITH. 

(Supreme  Court    of  the  United  States,  1911.    221  D.  S.  559,  31  Sup.  Ct  OSS, 
55  L.  Ed.  853.) 

[Error  to  the  Supreme  Court  of  Oklahoma.  The  act  of  Congress  of 
June  16,  1906  (34  Stat.  267,  c.  3335),  under  which  Oklahoma  was  ad- 
mitted to  the  Union,  provided  (section  2)  that  the  state  capital  should 
be  temporarily  located  at  Guthrie  and'  should  not  be  changed  prior  to 
1913,  and  that  meanwhile,  except  so  far  as  necessary,  no  public  money 
should  be  appropriated  for  the  erection  of  capital  buildings.  Section 
22  provided  for  the  irrevocable  acceptance  of  the  conditions  of  the 
act,  by  ordinance  of  the  constitutional  convention  authorized  by  said 
act.  Such  an  ordinance  was  adopted  by  the  convention  and  ratified 
separately,  along  with  the  new  state  Constitution,  by  vote  of  the  people. 
In  1910  Oklahoma  passed  an  act  removing  the  capital  to  Oklahoma 
City  and  appropriating  money  for  capital  buildings.  This  was  upheld 
by  the  state  supreme  court,  in  a  proceeding  specially  authorized  to  test 
its  legality.] 

Mr.  Justice  Lurton.  *  *  *  The  power  to  locate  its  own  seat 
of  government,  and  to  determine  when  and  how  it  shall  be  changed 
from  one  place  to  another,  and  to  appropriate  its  own  public  funds  for 
that  purpose,  are  essentially  and  peculiarly  state  powers.  That  one  of 
the  original  thirteen  states  could  now  be  shorn  of  such  powers  by  an 
act  of  Congress  would  not  be  for  a  moment  entertained.  The  question, 
then,  comes  to  this :  Can  a  state  be  placed  upon  a  plane  of  inequality 
with  its  sister  states  in  the  Union  if  the  Congress  chooses  to  impose 
conditions  which  so  operate,  at  the  time  of  its  admission?  The  argu- 
ment is,  that  while  Congress  may  not  deprive  a  state  of  any  power 
which  it  possesses,  it  may,  as  a  condition  to  the  admission  of  a  new 
state,  constitutionally  restrict  its  authority,  to  the  extent,  at  least,  of 
suspending  its  powers  for  a  definite  time  in  respect  to  the  location  of 
its  seat  of  government.  This  contention  is  predicated  upon  the  con- 
stitutional power  of  admitting  new  states  to  this  Union,  and  the  consti- 
tutional duty  of  guaranteeing  to  "every  state  in  this  Union  a  republican 
form  of  government."  The  position  of  counsel  for  the  plaintiff  in  er- 
ror is  substantially  this :  That  the  power  of  Congress  to  admit  new 
states,  and  to  determine  whether  or  not  its  fundamental  law  is  repub- 
lican in  form,  are  political  powers,  and  as  such,  uncontrollable  by  the 
courts.  That  Congress  may,  in  the  exercise  of  such  power,  impose 
terms  and  conditions  upon  the  admission  of  the  proposed  new  state, 
which,  if  accepted,  will  be  obligatory,  although  they  operate  to  deprive 
the  state  of  powers  which  it  would  otherwise  possess,  and,  therefore, 
not  admitted  upon  "an  equal  footing  with  the  original  states." 

The  power  of  Congress  in  respect  to  the  admission  of  new  states 
is  found  in  the  third  section  of  the  fourth  article  of  the  Constitution. 
That  provision  is  that  "new  states  may  be  admitted  by  the  Congress 


Cll.  10)  TERRITORIES,  DEPENDKM  II,-.    AND    M.U'    STATES  102J 

into  this  Union."  The  only  expressed  restriction  upon  this  power  is 
that  no  new  state  shall  be  formed  within  the  jurisdiction  of  any  other 
state,  nor  by  the  junction  of  two  or  more  states,  or  parts  of  states, 
without  the  consent  of  such  states,  as  well  as  of  the  Congress. 

Bui  what  is  this  power?  It  is  not  to  admit  political  organizations 
which  are  less  or  greater,  or  different  in  dignity  or  power,  from  those 
political  entities  which  constitute  the  Union.  It  is,  as  strongly  put  by 
counsel,  a  "power  to  admit  states."  The  definition  of  "a  state"  is 
found  in  the  powers  possessed  by  the  original  states  which  adopted  the 
Constitution, — a  definition  emphasized  by  the  terms  employed  in  all 
subsequent  acts  of  Congress  admitting  new  states  into  the  Union 
*  *  *  [viz.:  That  they  shall  be  admitted  "on  an  equal  footing  with 
the  original  states."] 

The  power  is  to  admit  "new  states  into  this  Union."  "This  Union" 
was  and  is  a  union  of  states,  equal  in  power,  dignity,  and  authority, 
each  competent  to  exert  that  residuum  of  sovereignty  not  delegated  to 
the  United  States  by  the  Constitution  itself.  To  maintain  otherwise 
would  be  to  say  that  the  Union,  through  the  power  of  Congress  to  ad- 
mit new  states,  might  come  to  be  a  union  of  states  unequal  in  power,  as 
including  states  whose  powers  were  restricted  only  by  the  Constitution, 
with  others  whose  powers  had  been  further  restricted  by  an  act  of 
j  ss  accepted  as  a  condition  of  admission.     Thus  it  would  result, 

first,  that  the  powers  of  Congress  would  not  be  defined  by  the  Con- 
stitution alone,  but  in  respect  to  new  states,  enlarged  or  restricted  by 
the  conditions  imposed  upon  new  states  by  its  own  legislation  admitting 
them  into  the  Union ;  and,  second,  that  such  new  states  might  not  ex- 
ercise all  of  the  powers  which  had  not  been  delegated  by  the  Constitu- 
tion, but  only  such  as  had  not  been  further  bargained  away  as  condi- 
tions of  admission. 

The  argument  that  Congress  derives  from  the  duty  of  "guaranteeing 
to  each  state  in  this  Union  a  republican  form  of  government, "  power 
to  impose  restrictions  upon  a  new  state  which  deprive  it  of  equality 
with  other  members  of  the  Union,  has  no  merit.  It  may  imply  the  duty 
of  such  new  state  to  provide  itself  with  such  state  government,  and 
impose  upon  Congress  the  duty  of  seeing  that  such  form  is  not  < 
to  one  anti-republican, — Minor  v.  Happersett,  21  Wall.  162,  174,  22 
L.  Ed.  627,  630, — but  it  obviously  docs  not  confer  power  to  admit  a 
new  state  which  shall  be  any  less  a  state  than  those  which  compose 
nion. 

\\"c  come  now  to  the  question  as  to  whether  there  is  anything  in  the 
decisions  of  this  court  which  sanctions  the  claim  that  Congress  may. 
by  the  imposition  of  conditions  in  an  enabling  act,  deprive  a  new  state 
of  any  of  those  attributes  essential  to  its  equality  in  dignity  and 
with  other  states.  In  considering  the  decisions  of  this  court  bearing 
upon  the  question,  we  must  distinguish,  first,  between  provisions  which 
are  fulfilled  by  the  admission  of  the  state;    second,  between  compact- 


1022  THE   FEDERAL  GOVERNMENT  (Part  3 

or  affirmative  legislation  intended  to  operate  in  futuro,  Which  are  with- 
in the  scope  of  the  conceded  powers  of  Congress  over  the  subject;  and 
third,  compacts  or  affirmative  legislation  which  operate  to  restrict  the 
powers  of  such  new  state  in  respect  of  matters  which  would  otherwise 
be  exclusively  within  the  sphere  of  state  power. 

As  to  requirements  in  such  enabling  acts  as  relate  only  to  the  con- 
tents of  the  Constitution  for  the  proposed  new  state,  little  need  to  be 
said.  The  constitutional  provision  concerning  the  admission  of  new 
states  is  not  a  mandate,  but  a  power  to  be  exercised  with  discretion. 
From  this  alone  it  would  follow  that  Congress  may  require,  under 
penalty  of  denying  admission,  that  the  organic  law  of  a  new  state  at 
the  time  of  admission  shall  be  such  as  to  meet  its  approval.  A  Con- 
stitution thus  supervised  by  Congress  would,  after  all,  be  a  Constitution 
of  a  state,  and  as  such  subject  to  alteration  and  amendment  by  the 
state  after  admission.  Its  force  would  be  that  of  a  state  Constitution 
and  not  that  of  an  act  of  Congress.     *     *     * 

It  may  well  happen  that  Congress  should  embrace  in  an  enactment 
introducing  a  new  state  into  the  Union  legislation  intended  as  a  regu- 
lation of  commerce  among  the  states,  or  with  Indian  tribes  situated 
within  the  limits  of  such  new  state,  or  regulations  touching  the  sole 
care  and  disposition  of  the  public  lands  or  reservations  therein,  which 
might  be  upheld  as  legislation  within  the  sphere  of  the  plain  power 
of  Congress.  But  in  every  such  case  such  legislation  would  derive  its 
force  not  from  any  agreement  or  compact  with  the  proposed  new  state, 
nor  by  reason  of  its  acceptance  of  such  enactment  as  a  term  of  admis- 
sion, but  solely  because  the  power  of  Congress  extended  to  the  subject, 
and  therefore  would  not  operate  to  restrict  the  state's  legislative  power 
in  respect  of  any  matter  which  was  not  plainly  within  the  regulating 
power  of  Congress.1  Willamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S. 
1,  9,  31  L.  Ed.  629,  632,  8  Sup.  Ct.  811;  Pollard  v.  Hagan,  supra  [3 
How.  212,  11  L.  Ed.  565.] 

No  such  question  is  presented  here.  The  legislation  in  the  Okla- 
homa enabling  act  relating  to  the  location  of  the  capital  of  the  state,  if 
construed  as  forbidding  a  removal  by  the  state  after  its  admission  as 
a  state,  is  referable  to  no  power  granted  to  Congress  over  the  subject, 
and  if  it  is  to  be  upheld  at  all,  it  must  be  implied  from  the  power  to 
admit  new  states.  If  power  to  impose  such  a  restriction  upon  the  gen- 
eral and  undelegated  power  of  a  state  be  conceded  as  implied  from 
the  power  to  admit  a  new  state,  where  is  the  line  to  be  drawn  against 
restrictions  imposed  upon  new  states?  The  insistence  finds  no  support 
in  the  decisions  of  this  court.  *  *  *  [Here  follow  quotations  from 
or  references  to  Withers  v.  Buckley,  20  How.  84,  92,  15  L.  Ed.  816; 
Escanaba  Co.  v.  Chicago,  107  U.  S.  678,  688,  2  Sup.  Ct.  185,  27  L.  Ed. 

i  Accord :  Ex  parte  Webb,  225  U.  S.  663,  690,  691,  32  Sup.  Ct  769.  56  L.  Ed. 
1248  (1912)  (reservation  by  Congress  of  power  to  prohibit  interstate  liquor 
traffic  with  Indian  country  In  Oklahoma). 


Ch.  16)         TERBITORIES,  DEPENDENCIES,  AND   NEW   STATES  102.°, 

442  ;•  Ward  v.  Race  Horse,  163  U.  S.  504,  16  Sup.  Ct.  1076,  41 
L.  Ed.  244;  Bolln  v.  Nebraska,  176  U.  S.  S3,  87,  20  Sup.  Ct.  287,  44  L. 
Ed.  3S2;   Beecher  v.  Witherby,  95  U.  S.  517,  24  L.  Ed.  440.] 

The  case  of  the  Kansas  Indians  (Blue  Jacket  v.  Johnson  County)  5 
Wall.  737,  18  L.  Ed.  667,  involved  the  power  of  the  state  of  Kansas 
to  tax  lands  held  by  the  individual  Indians  in  that  state  under  patents 
from  the  United  States.  The  act  providing  for  the  admission  of  Kan- 
sas into  the  Union  provided  that  nothing  contained  in  the  Constitution 
of  the  state  should  be  construed  to  "impair  the  rights  of  person  or 
property  now  pertaining  to  the  Indians  in  said  territory,  so  long  as 
such  rights  shall  remain  unextinguished  by  treaty  between  the  United 
States  and  such  Indians."  [12  Stat,  at  L.  127,  c.  20.]  It  was  held 
that  so  long  as  the  tribal  organization  of  such  Indians  was  recognized 
as  still  existing,  such  lands  were  not  subject  to  taxation  by  the  state. 
The  result  might  be  well  upheld  either  as  an  exertion  of  the  power  of 
Congress  over  Indian  tribes,  with  whom  the  United  States  had  treaty 
relations,  or  as  a  contract  by  which  the  state  had  agreed  to  forego 
taxation  of  Indian  lands, — a  contract  quite  within  the  power  of  a  state 
to  make,  whether  made  with  the  United  Stales  for  the  benefit  of  its 
Indian  wards,  or  with  a  private  corporation  for  the  supposed  advan- 
tages resulting.8  Certainly  the  case  has  no  bearing  upon  a  compact  by 
which  the  general  legislative  power  of  the  state  is  to  be  impaired  with 
reference  to  a  matter  pertaining  purely  to  the  internal  policy  of  the 
state.  See  Stearns  v.  Minnesota,  179  U.  S.  223,  [244,  245],  45  L.  Ed. 
162,  21  Sup.  Ct.  73.     *     *     * 

Has  Oklahoma  been  admitted  upon  an  equal  footing  with  the  orig- 
inal states?  If  she  has,  she,  by  virtue  of  her  jurisdictional  sovereignty 
as  such  a  state,  may  determine  for  her  own  people  the  proper  location 
of  the  local  seat  of  government.  She  is  not  equal  in  power  to  them  if 
she  cannot.  *  *  *  [Here  follow  quotations  from  Texas  v.  White. 
7  Wall.  700,  725,  19  L.  Ed.  227,  and  from  Lane  County  v.  Oregon,  7 
Wall.  76,  19  L.  Ed.  101.  See  the  extract  from  these  cases  printed  in 
note  1  to  Gibbons  v.  Ogden,  ante,  at  p.  920.]  The  constitutional  equal- 
ity of  the  states  is  essential  to  the  harmonious  operation  of  the  scheme 
upon  which  the  Republic  was  organized.  When  that  equality  disap- 
pears we  may  remain  a  free  people,  but  the  Union  will  not  be  the 
Union  of  the  Constitution. 

Judgment  affirmed.4 

[McKf.nna  and  Holmes,  JJ.,  dissented.] 

2  This  case  denied  that  the  Ordinance  of  17S7,  as  a  limitation  npon  the 
powers  of  government  of  the  Northwest  Territory,  continued  to  have  any  op- 
erative force  in  the  states  carved  out  of  that  territory,  alter  their  admission 
to  the  Union.  So,  also.  Cincinnati  v.  L.  &  N.  Ky.,  --S  U.  S.  390,  401,  32  Sup. 
Ct  207,  50  L.  Ed.  481  (1812)  teases). 

»  See  the  cases  In  chapter  XIII,  section  1,  ante,  pp.  820  ^23. 

«  Accord:  Sproule  v.  Fredericks,  on  Miss.  898,  n  South.  472  (1892)  (con- 
ditional "readiuisslon"  of  Mississippi  alter  Civil  War);    U.  S.  v.  Sandoval  (C, 


1024  THE  FEDERAL  GOVERNMENT  (Part  9 

CHAPTER  XVII 

FEDERAL  TAXATION 


LICENSE  TAX  CASES  (1867)  5  Wall.  462,  470,  471,  18  L.  Ed. 
497,  Mr.  Chief  Justice  Chase  (upholding  certain  convictions  for  vio- 
lations of  federal  statutes  forbidding  persons  to  sell  liquor  or  lottery 
tickets  without  federal  "licenses,"  defendants  having  done  these  acts 
where  by  state  law  they  were  wholly  prohibited) : 

"It  was  argued  for  the  defendants  in  error  that  a  license  to  carry  on 
a  particular  business  gives  an  authority  to  carry  it  on ;  that  the  dealings 
in  controversy  were  parcel  of  the  internal  trade  of  the  state  in  which 
the  defendants  resided ;  that  the  internal  trade  of  a  state  is  not  subject, 
in  any  respect,  to  legislation  by  Congress,  and  can  neither  be  licensed 
nor  prohibited  by  its  authority ;  that  licenses  for  such  trade,  granted  un- 
der acts  of  Congress,  must  therefore  be  absolutely  null  and  void ;  and, 
consequently,  that  penalties  for  carrying  on  such  trade  without  such  li- 
cense could  not  be  constitutionally  imposed.  This  series  of  propositions, 
and  the  conclusion  in  which  it  terminates,  depends  on  the  postulate  that 
a  license  necessarily  confers  an  authority  to  carry  on  the  licensed  busi- 
ness. But  do  the  licenses  required  by  the  acts  of  Congress  for  selling 
liquor  and  lottery  tickets  confer  any  authority  whatever? 

"It  is  not  doubted  that  where  Congress  possseses  constitutional  pow- 
er to  regulate  trade  or  intercourse,  it  may  regulate  by  means  of  li- 
censes as  well  as  in  other  modes ;  and,  in  case  of  such  regulation,  a 
license  will  give  to  the  licensee  authority  to  do  whatever  is  authorized 

C.)  198  Fed.  5.19  (1912)  (power  to  regulate  sale  of  liquor  to  civilized  Pueblo  In- 
dians of  New  Mexico  after  admission  of  state). 

In  Stearns  v.  Minnesota,  179  U.  S.  223,  244,  245,  21  Sup.  Ct.  73,  SI,  45  L.  Ed. 
162  (1900)  a  provision  in  the  act  admitting  Minnesota  to  the  Union  was  up- 
held which  restricted  its  legislative  power  over  the  federal  public  lands, 
Brewer,  J.,  saying:  "There  may  be  agreements  or  compacts  attempted  to  be 
entered  into  between  two  states,  or  between  a  state  and  the  nation,  in  refer- 
ence to  political  rights  and  obligations,  and  there  may  he  those  solely  in  ref- 
erence to  property  belonging  to  one  or  the  other.  That  different  considera- 
tions may  underlie  the  question  as  to  the  validity  of  these  two  kinds  of  com- 
pacts or  agreements  is  obvious.  It  has  often  been  said  that  a  state  admitted 
into  the  Union  enters  therein  in  full  equality  with  all  the  others,  and  such 
equality  may  forbid  any  agreement  or  compact  limiting  or  qualifying  politi- 
cal rights  and  obligations;  whereas,  on  the  other  hand,  a  mere  agreement  in 
reference  to  property  involves  no  question  of  equality  of  status,  but  only  of 
the  power  of  a  state  to  deal  with  the  nation  or  with  any  other  state  jn  refer- 
ence to  such  property.  The  case  before  us  is  one  involving  simply  an  agree- 
ment as  to  property  between  a  state  and  the  nation." 

Ohio  (1S02i,  Louisiana  (1812),  Indiana  (1816),  and  Illinois  (1818)  were  admit- 
ted on  condition  that  lands  therein  sold  by  the  United  States  should  be  ex- 
empt from  all  taxes  for  five  years  after  their  sale.  See  Van  Brocklin  v.  Ten- 
nessee, 117  U.  S.  151,  100-103,  6  Sup.  Ct.  670,  29  L.  Ed.  S45  (1SS0),  post,  p.  1303. 


Ch.  17)  FEDERAL    TAXATION  1035 

by  its  terms.  Thus,  Congress  having  power  to  regulate  commerce  with 
n  nations,  and  among  the  several  states,  and  with  the  Indian 
tribes,  may,  without  doubt,  provide  for  granting  coasting  licenses,  li- 
censes to  pilots,  licenses  to  trade  with  the  Indians,  and  any  other 
licenses  necessary  or  proper  for  the  exercise  of  that  great  and  extensive 
power;  and  the  same  observation  is  applicable  to  every  other  power 
of  Congress,  to  the  exercise  of  which  the  granting  of  licenses  may  be 
incident.  All  such  licenses  confer  authority,  and  give  rights  to  the 
licensee. 

"But  very  different  considerations  apply  to  the  internal  commerce 
or  domestic  trade  of  the  states.  Over  this  commerce  and  trade  Con- 
gress has  no  power  of  regulation  nor  any  direct  control.  This  power 
belongs  exclusively  to  the  states.  Xo  interference  by  Congress  with  the 
business  of  citizens  transacted  within  a  state  is  warranted  by  the  Con- 
stitution, except  such  as  is  strictly  incidental  to  the  exercise  of  powers 
clearly  granted  to  the  legislature.  The  power  to  authorize  a  business 
within  a  state  is  plainly  repugnant  to  the  exclusive  power  of  the  state 
over  the  same  subject.  It  is  true  that  the  power  of  Congress  to  tax  is 
a  very  extensive  power.  It  is  given  in  the  Constitution,  with  only  one 
exception  and  only  two  qualifications.1  Congress  cannot  tax  exports, 
and  it  must  impose  direct  taxes  by  the  rule  of  apportionment,  and  in- 
direct taxes  by  the  rule  of  uniformity.  Thus  limited,  and  thus  only. 
it  reaches  every  subject,  and  may  be  exercised  at  discretion.  But 
it  reaches  only  existing  subjects.  Congress  cannot  authorize  a  trade  or 
business  within  a  state  in  order  to  tax  it. 

"If,  therefore,  the  licenses  under  consideration  must  be  regarded  as 
giving  authority  to  carry  on  the  branches  of  business  which  they  li- 
cense, it  might  be  difficult,  if  not  impossible,  to  reconcile  the  granting 
of  them  with  the  Constitution.  But  it  is  not  necessary  to  regard  these 
laws  as  giving  such  authority.  So  far  as  they  relate  to  trade  within 
state  limits,  they  give  none,  and  can  give  none.  They  simply  express 
the  purpose  of  the  government  not  to  interfere  by  penal  proceedings 
with  the  trade  nominally  licensed,  if  the  required  taxes  are  paid.  The 
power  to  tax  is  not  questioned,  nor  the  power  to  impose  penalties  for 
non-payment  of  taxes.  The  granting  of  a  license,  therefore,  must  be 
regarded  as  nothing  more  than  a  mere  form  of  imposing  a  tax,  and  of 
implying  nothing  except  that  the  licensee  shall  be  subject  to  no  ; 
ties  under  national  law,  if  he  pays  it." 

i  iiui  see  Collector  v.  Day,  i>i'st,  p.  t-'.io,  ami  notes,  fox  Lmplli  . 

nature  of  our  dual 
government. 

Hall  Const.L. — C5 


1026  THE   FEDERAL   GOVERNMENT  (Part  3 

POLLOCK  v.  FARMERS'  LOAN  &  TRUST  CO. 

(Supreme  Court  of  the  United  States,  1895.     157  U.  S.  429,  158  U.  S.  601. 
15  Sup.  Ct.  673.  912,  39  L.  Ed.  759,  110S.) 

[Appeal  from  the  federal  Circuit  Court  for  the  Southern  District 
of  New  York.  A  federal  statute  (Act  Aug.  27,  1894,  c.  349,  28  Stat. 
509)  imposed  a  tax  of  2  per  cent,  upon  incomes  in  excess  of  $4,000 
received  by  all  persons,  corporations,  or  associations  (with  certain  ex- 
ceptions) in  the  United  States.  One  Pollock,  a  stockholder  in  defend- 
ant corporation,  filed  a  bill  to  enjoin  the  defendant  from  paying  said 
tax  on  the  ground  of  its  unconstitutionality,  the  income  of  said  corpo- 
ration being  derived  chiefly  from  real  estate,  from  municipal  bonds, 
and  from  corporate  bonds  and  stocks.  The  bill  was  dismissed  on  de- 
murrer and  this  appeal  taken.] 

Mr.  Chief  Justice  Fuller.  *  *  *  The  Constitution  provide? 
that  representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  states  according  to  numbers,  and  that  no  direct  tax  shall  be  laid 
except  according  to  the  enumeration  provided  for;  and  also  that  all 
duties,  imposts,  and  excises  shall  be  uniform  throughout  the  United 
States. 

The  men  who  framed  and  adopted  that  instrument  had  just  emerged 
from  the  struggle  for  independence  whose  rallying  cry  had  been  that 
"taxation  and  representation  go  together."  *  *  *  The  principle, 
was  that  the  consent  of  those  who  were  expected  to  pay  it  was  essen- 
tial to  the  validity  of  any  tax. 

The  states  were  about,  for  all  national  purposes  embraced  in  the 
Constitution,  to  become  one,  united  under  the  same  sovereign  author- 
ity, and  governed  by  the  same  laws.  But  as  they  still  retained  their 
jurisdiction  over  all  persons  and  things  within  their  territorial  limits, 
except  where  surrendered  to  the  general  government  or  restrained  by 
the  Constitution,  they  were  careful  to  see  to  it  that  taxation  and  repre- 
sentation should  go  together,  so  that  the  sovereignty  reserved  should 
not  be  impaired,  and  that  when  Congress,  and  especially  the  House  of 
Representatives,  where  it  was  specifically  provided  that  all .  revenue 
bills  must  originate,  voted  a  tax  upon  property,  it  should  be  with  the 
consciousness,  and  under  the  responsibility,  that  in  so  doing  the  tax 
so  voted  would  proportionately  fall  upon  the  immediate  constituents 
of  those  who  imposed  it. 

More  than  this,  by  the  Constitution  the  states  not  only  gave  to  the 
nation  the  concurrent  power  to  tax  persons  and  property  directly,  but 
they  surrendered  their  own  power  to  levy  taxes  on  imports  and  to  reg- 
ulate commerce.  All  the  thirteen  were  seaboard  states,  but  they  varied 
in  maritime  importance,  and  differences  existed  between  them  in  popu- 
lation, in  wealth,  in  the  character  of  property  and  of  business  interests. 
Moreover,  they  looked  forward  to  the  coming  of  new  states  from  the 
great  West  into  the  vast  empire  of  their  anticipations.     So  when  the 


Ch.  17)  FEDEKAL  TAXATION  1037 

wealthier  states  as  between  themselves  and  their  less  favored  asso- 
ciates, and  all  as  between  themselves  and  those  who  were  to  come, 
gave  up  for  the  common  good  the  great  sources  of  revenue  derived 
through  commerce,  they  did  so  in  reliance  on  the  protection  afforded 
by  restrictions  on  the  grant  of  power. 

Thus,  in  the  matter  of  taxation,  the  Constitution  recognizes  the  two 
great  classes  of  direct  and  indirect  taxes,  and  lays  down  two  rules  by 
which  their  imposition  must  be  governed,  namely,  the  rule  of  appor- 
tionment as  to  direct  taxes,  and  the  rule  of  uniformity  as  to  duties, 
imposts,  and  excises.  The  rule  of  uniformity  was  not  prescribed  to 
the  exercise  of  the  power  granted  by  the  first  paragraph  of  section  8 
to  lay  and  collect  taxes,  because  the  rule  of  apportionment  as  to  taxes 
had  already  been  laid  down  in  the  third  paragraph  of  the  second  sec- 
tion. *  *  *  And  although  there  have  been,  from  time  to  time,  in- 
timations that  there  might  be  some  tax  which  was  not  a  direct  tax, 
nor  included  under  the  words  "duties,  imports,  and  excises,"  such  a 
tax,  for  more  than  100  years  of  national  existence,  has  as  yet  remained 
undiscovered,  notwithstanding  the  stress  of  particular  circumstances 
has  invited  thorough  investigation  into  sources  of  revenue. 

The  first  question  to  be  considered  is  whether  a  tax  on  the  rents  or 
income  of  real  estate  is  a  direct  tax  within  the  meaning  of  the  Con- 
stitution. Ordinarily,  all  taSes  paid  primarily  by  persons  who  can 
shift  the  burden  upon  some  one  else,  or  who  are  under  no  legal  com- 
pulsion to  pay  them,  are  considered  indirect  taxes;  but  a  tax  upon 
property  holders  in  respect  of  their  estates,  whether  real  or  personal, 
or  of  the  income  yielded  by  such  estates,  and  the  payment  of  which 
cannot  be  avoided,  are  direct  taxes.  Nevertheless,  it  may  be  admitted 
that,  although  this  definition  of  direct  taxes  is  prima  facie  correct,  and 
to  be  applied  in  the  consideration  of  the  question  before  us,  yet  the 
Constitution  may  bear  a  different  meaning,  and  that  such  different 
meaning  must  be  recognized.  But  in  arriving  at  any  conclusion  upon 
this  point  we  are  at  liberty  to  refer  to  the  historical  circumstances  at- 
tending the  framing  and  adoption  of  the  Constitution,  as  well  as  the 
entire  frame  and  scheme  of  the  instrument,  and  the  consequences 
naturally  attendant  upon  the  one  construction  or  the  other. 

We  inquire,  therefore,  what,  at  the  time  the  Constitution  was  framed 
and  adopted,  were  recognized  as  direct  taxes?  What  did  those  who 
framed  and  adopted  it  understand  the  terms  to  designate  and  include? 
*  *  *  [Here  follow  references  to  the  then  existing  state  tax  laws, 
to  the  proceedings  in  the  Philadelphia  convention  leading  up  to  the 
compromise  by  which  three-fifths  of  the  slaves  were  counted  in  deter- 
mining representation  in  Congress  and  direct  taxation  was  made  pro- 
portionate to  representation,  to  the  debates  over  the  Constitution  after 
it  was  submitted  to  the  states  for  ratification,  and  to  the  debate  in  Con- 
gress over  the  carriage  tax  of  1794 — all  designed  to  show  the  meaning 
then  attributed  to  "direct  taxes."] 

In  Hvlton  v.  U.  S.  (decided  in  March.   1796)  3  Dall.  171,   1  L.  Ed. 


1028  THE  FEDERAL  GOVERNMENT  (Part  3 

556,  this  court  held  the  act  [taxing  carriages]  to  be  constitutional,  be- 
cause not  laying  a  direct  tax.  *  *  *  Mr.  Justice  Chase  said  that 
he  was  inclined  to  think  (but  of  this  he  did  not  "give  a  judicial  opin- 
ion") that  "the  direct  taxes  contemplated  by  the  Constitution  are  only 
two,  to  wit,  a  capitation  or  poll  tax,  simply,  without  regard  to  property, 
profession,  or  any  other  circumstance,  and  a  tax  on  land,"  and  that 
he  doubted  "whether  a  tax,  by  a  general  assessment  of  personal  prop- 
erty, within  the  United  States,  is  included  within  the  term  'direct  tax.' 

*  *  *  It  seems  to  me  that  a  tax  on  expense  is  an  indirect  tax ;  and 
I  think  an  annual  tax  on  a  carriage  for  the  conveyance  of  persons  is  of 
that  kind,  because  a  carriage  is  a  consumable  commodity,  and  such 
annual  tax  on  it  is  on  the  expense  of  the  owner."     *     *     * 

Each  of  the  justices,  while  suggesting  doubt  whether  anything  but 
a  capitation  or  a  land  tax  was  a  direct  tax  within  the  meaning  of  the 
Constitution,  distinctly  avoided  expressing  an  opinion  upon  that  ques- 
tion or  laying  down  a  comprehensive  definition,  but  confined  his  opin- 
ion to  the  case  before  the  court.  The  general  line  of  observation  was 
obviously  influenced  by  Mr.  Hamilton's  brief  for  the  government,  in 
which  he  said :  "The  following  are  presumed  to  be  the  only  direct 
taxes:  Capitation  or  poll  taxes,  taxes  on  lands  and  buildings,  general 
assessments,  whether  on  the  whole  property  of  individuals,  or  on  their 
whole  real  or  personal  estate.  All  else  gftist,  of  necessity,  be  consid- 
ered  as  indirect   taxes."      7   Hamilton's   Works    (Lodge's   Ed.)    332. 

*  *  *  [Here  follow  references  to  the  various  federal  land  and  in- 
come taxes  of  1798,  1813-15,  and  1862-70.] 

From  the  foregoing  it  is  apparent  (1)  that  the  distinction  between 
direct  and  indirect  taxation  was  well  understood  by  the  framers  of 
the  Constitution  and  those  who  adopted  it ;  (2)  that,  under  the  state 
systems  of  taxation,  all  taxes  on  real  estate  or  personal  property  or 
the  rents  or  income  thereof  were  regarded  as  direct  taxes;  (3)  that 
the  rules  of  apportionment  and  of  uniformity  were  adopted  in  view 
of  that  distinction  and  those  systems;  (4)  that  whether  the  tax  on  car- 
riages was  direct  or  indirect  was  disputed,  but  the  tax  was  sustained  as 
a  tax  on  the  use  and  an  excise;  (5)  that  the  original  expectation  was 
that  the  power  of  direct  taxation  would  be  exercised  only  in  extraordi- 
nary exigencies;  and  down  to  August  15,  1894,  this  expectation  has 
been  realized.     *     *     * 

[After  a  review  of  various  cases  upon  federal  taxation  during  the 

Civil  War  period:]    All  these  cases  are  distinguishable  from  that   in 

hand,  and  this  brings  us  to  consider  that  of  Springer  v.  U.  S.,  102  U. 

i,  26  L.  Ed.  253,  chiefly  relied  on  and  urged  upon  us  as  decisive. 

*  *  *  The  original  record  discloses  that  the  income  was  not  de- 
rived in  any  degree  from  real  estate,  but  was  in  part  professional  as 
attorney  at  law,  and  the  rest  interest  on  United  States  bonds.  It  would 
seem  probable  that  the  court  did  not  feel  called  upon  to  advert  to  the 
distinction  between  the  latter  and  the  former  source  of  income,  as  the 
validity  of  the  tax  as  to  either  would  sustain  the  action. 


Ch.  17)  FEDERAL   TAXATION  101il» 

The  opinion  thus  concludes:  "Our  conclusions  are  that  direct  taxes, 
within  the  meaning  of  the  Constitution,  are  only  capitation  taxes,  as 
expressed  in  that  instrument,  and  taxes  on  real  estate;  and  that  the 
tax  of  which  the  plaintiff  in  error  complains  is  within  the  category  of 
an  excise  or  duty."  While  this  language  is  broad  enough  to  cover  the 
interest  as  well  as  the  professional  earnings,  the  case  would  have  been 
more  significant  as  a  precedent  if  the  distinction  had  been  brought  out 
in  the  report  and  commented  on  in  arriving  at  judgment,  for  a  tax  on 
professional  receipts  might  be  treated  as  an  excise  or  duty,  and  there- 
fore indirect,  when  a  tax  on  the  income  of  personalty  might  be  held  to 
be  direct.  Be  this  as  it  may,  it  is  conceded  in  all  these  cases,  from 
that  of  Hylton  to  that  of  Springer,  that  taxes  on  land  are  direct  taxes, 
and  in  none  of  them  is  it  determined  that  taxes  on  rents  or  income 
derived  from  land  are  not  taxes  on  land.     *     *     * 

As  no  capitation  or  other  direct  tax  was  to  be  laid  otherwise  than  in 
proportion  to  the  population,  some  other  direct  tax  than  a  capitation 
tax  (and,  it  might  well  enough  be  argued,  some  other  tax  of  the  same 
kind  as  a  capitation  tax)  must  be  referred  to,  and  it  has  always  been 
considered  that  a  tax  upon  real  estate  eo  nomine,  or  upon  its  owners 
in  respect  thereof,  is  a  direct  tax,  within  the  meaning  of  the  Constitu- 
tion. But  is  there  any  distinction  between  the  real  estate  itself  or  its 
owners  in  respect  of  it  and  the  rents  or  income  of  the  real  estate  com- 
ing to  the  owners  as  the  natural  and  ordinary  incident  of  their  owner- 
ship?    *     *     * 

As,  according  to  the  feudal  law.  the  whole  beneficial  interest  in  the 
land  consisted  in  the  right  to  take  the  rents  and  profits,  the  general  rule 
has  always  been,  in  the  language  of  Coke,  that  "if  a  man  seised  of  land 
in  fee  by  his  deed  granteth  to  another  the  profits  of  those  lands,  to  have 
and  to  hold  to  him  and  his  heirs,  and  maketh  livery  secundum  formam 
charts,  the  whole  land  itself  doth  pass.  For  what  is  the  land  but  the 
thereof?"  Co.  Litt.  45.  And  that  a  devise  of  the  rents  and 
profits  or  of  the  income  of  lands  passes  the  land  itself  both  at  law  and 
in  equity.    1  Jarm.  Wills  (5th  Ed.)  *798.  and  cases  cited. 

The  requirement  of  the  Constitution  is  that  no  direct  tax  shall  be 
ipportionment.  The  prohibition  is  not  against 
direct  taxes  on  land,  from  which  the  implication  is  sought  to  be  drawn 
that  indirect  taxes  on  land  would  be  constitutional,  but  it  is  against  all 
direct  taxes ;  and  it  is  admitted  that  a  tax  on  real  estate  is  a  direct 
tax.  Unless,  therefore,  a  tax  upon  rents  or  income  issuing  out  of  lands 
is  intrinsically  so  different  from  a  tax  on  the  land  itself  that  it  belongs 
to  a  wholly  different  class  of  taxes,  such  taxes  must  be  regarded  as 
falling  within  the  same  category  as  a  tax  on  real  estate  eo  nomine. 
The  name  of  the  tax  is  unimportant.  The  real  question  is,  is  there  any 
basis  upon  which  to  rest  the  contention  that  real  estate  belongs  to  one 
of  the  two  great  classes  of  taxes,  and  the  rent  or  income  which  is  the 
incident  of  its  ownership  belongs  to  the  other?  We  are  unable  to  per- 
ceive any  ground  for  the  alleged  distinction.     An  annual  tax  upon  the 


1030  THE  FEDERAL  GOVERNMENT  (Part  i! 

annual  value  or  annual  user  of  real  estate  appears  to  us  the  same  in 
substance  as  an  annual  tax  on  the  real  estate,  which  would  be  paid 
out  of  the  rent  or  income.  This  law  taxes  the  income  received  from 
land  and  the  growth  or  produce  of  the  land,  Mr.  Justice  Paterson  ob- 
served in  Hylton's  Case,  "land,  independently  of  its  produce,  is  of  no 
value,"  and  certainly  had  no  thought  that  direct  taxes  were  confined 
to  unproductive  land. 

If  it  be  true  that  by  varying  the  form  the  substance  may  be  changed, 
it  is  not  easy  to  see  that  anything  would  remain  of  the  limitations  of 
the  Constitution,  or  of  the  rule  of  taxation  and  representation,  so  care- 
fully recognized  and  guarded  in  favor  of  the  citizens  of  each  state. 
But  constitutional  provisions  cannot  be  thus  evaded.  It  is  the  sub- 
stance, and  not  the  form,  which  controls,  as  has  indeed  been  established 
by  repeated  decisions  of  this  court.  Thus  in  Brown  v.  Maryland,  12 
Wheat.  419,  444,  6  L.  Ed.  678,  it  was  held  that  the  tax  on  the  occupa- 
tion of  an  importer  was  the  same  as  a  tax  on  imports,  and  therefore 
void.  *  *  *  In  Weston  v.  City  Council,  2  Pet.  449,  7  L.  Ed.  481, 
it  was  held  that  a  tax  on  the  income  of  United  States  securities  was 
a  tax  on  the  securities  themselves,  and  equally  inadmissible.  *  *  * 
So'in  Dobbins  v.  Commissioners,  16  Pet.  435,  10  L.  Ed.  1022,  it  was 
decided  that  the  income  from  an  official  position  could  not  be  taxed  if 
the  office  itself  was  exempt.  In  Almy  v.  California,  24  How.  169,  16 
L.  Ed.  644,  it  was  held  that  a  duty  on  a  bill  of  lading  was  the  same 
thing  as  a  duty  on  the  article  which  it  represented.  *  *  *  In  Phil- 
adelphia &  S.  S.  S.  Co.  v.  Pennsylvania,  122  U.  S.  326,  7  Sup.  Ct.  1118, 
30  L.  Ed.  1200,  and  Leloup  v.  Port  of  Mobile,  127  U.  S.  640,  8  Sup.  Ct. 
1383,  32  L.  Ed.  311,  it  was  held  that  a  tax  on  income  received  from 
interstate  commerce  was  a  tax  upon  the  commerce  itself.     *     *     * 

Nothing  can  be  clearer  than  that  what  the  Constitution  intended  to 
guard  against  was  the  exercise  by  the  general  government  of  the  power 
of  directly  taxing  persons  and  property  within  any  state  through  a 
majority  made  up  from  the  other  states.  It  is  true  that  the  effect  of 
requiring  direct  taxes  to  be  apportioned  among  the  states  in  propor- 
tion to  their  population  is  necessarily  that  the  amount  of  taxes  on  the 
individual  taxpayer  in  a  state  having  the  taxable  subject-matter  to  a 
larger  extent  in  proportion  to  its  population  than  another  state  has, 
would  be  less  than  in  such  other  state ;  but  this  inequality  must  be  held 
to  have  been  contemplated,  and  was  manifestly  designed  to  operate  to 
restrain  the  exercise  of  the  power  of  direct  taxation  to  extraordinary 
emergencies,  and  to  prevent  an  attack  upon  accumulated  property  by 
mere  force  of  numbers.     *     *     * 

The  acceptance  of  the  rule  of  apportionment  was  one  of  the  com- 
promises which  made  the  adoption  of  the  Constitution  possible. 
*  *  *  If,  by  calling  a  tax  indirect  when  it  is  essentially  direct, 
the  rule  of  protection  could  be  frittered  away,  one  of  the  great  land- 
marks defining  the  boundary  between  the  nation  and  the  states  of 
which  it  is  composed,  would  have  disappeared,  and  with  it  one  of  the 


Cll.  17)  FEDERAL   TAXATION  lO^.l 

bulwarks  of  private  rights  and  private  property.  We  are  of  opinion 
that  the  law  in  question,  so  far  as  it  levies  a  tax  on  the  rents  or  income 
of  real  estate,  is  in  violation  of  the  Constitution,  and  is  invalid.     *     * 

[The  tax  upon  the  income  from  state  and  municipal  bonds  was  also 
held  invalid.  See  Weston  v.  Charleston,  and  note,  post,  p.  1284,  for 
the  grounds  of  this.  Upon  the  other  points  involved  the  justices  were 
equally  divided  in  opinion,  Jackson,  J.,  1  nt.] 

Decree  reversed  in  part. 

[Field,  J.,  gave  a  concurring  opinion,  in  which  he  also  held  that 
the  provisions  of  Const,  art.  II,  §  1,  par.  6,  and  article  III,  §  1, 
against  diminishing  the  salaries  of  the  President  and  federal  judges, 
forbade  a  federal  income  tax  upon  such  salaries.  He  referred  to  a 
letter  of  Taney,  C.  J.,  to  this  effect,  written  in  1863  to  the  Secretary  of 
the  Treasury  (printed  in  39  L.  Ed.  1155,  1156),  and  to  13  Op.  Atty. 
Gen.  161  (1869).  See  the  principal  case,  157  U.  S.  at  604-607. 
White  and  Harlan,  JJ.,  gave  dissenting  opinions.] 

[Upon  a  rehearing  of  the  case.  Jackson,  J.,  being  present,  the  fol- 
lowing decision  was  rendered  upon  the  remaining  points:] 

Mr.  Chief  Justice  Fuller.  *  *  *  Our  previous  decision  was 
confined  to  the  consideration  of  the  validity  of  the  tax  on  the  income 
from  real  estate,  and  on  the  income  from  municipal  bonds.  *  *  * 
We  are  now  permitted  to  broaden  the  field  of  inquiry,  and  to  determine 
to  which  of  the  two  great  classes  a  tax  upon  a  person's  entire  income — 
whether  derived  from  rents  or  products,  or  otherwise,  of  real  estate, 
or  from  bonds,  stocks,  or  other  forms  of  personal  property — belongs ; 
and  we  are  unable  to  conclude  that  the  enforced  subtraction  from 
the  yield  of  all  the  owner's  real  or  personal  property,  in  the  manner 
prescribed,  is  so  different  from  a  tax  upon  the  property  itself  that 
it  is  not  a  direct,  but  an  indirect  tax,  in  the  meaning  of  the  Consti- 
tution.    *     *     * 

If,  in  the  changes  of  wealth  and  population  in  particular  states,  ap- 
portionment produced  inequality,  it  was  an  inequality  stipulated  for. 
just  as  the  equal  representation  of  the  states,  however  small,  in  the 
Senate,  was  stipulated  for.  *  *  *  The  founders  anticipated  that 
the  expenditures  of  the  states,  their  counties,  cities,  and  towns,  would 
chiefly  he  met  by  direct  taxation  on  accumulated  property,  while  they 
expected  that  those  of  the  federal  government  would  be  for  the  most 
part  met  by  indirect  taxes.  And  in  order  that  the  power  of  direct 
taxation  by  the  general  government  should  not  be  exercised  except 
on  necessity,  and,  when  the  necessity  arose,  should  be  so  exercised  as 
to  leave  the  states  at  liberty  to  discharge  their  respective  obligations, 
and  should  not  be  so  exercised  unfairly  and  discriminatingly,  as  to  par 
ticular  states  or  otherwise,  by  a  mere  majority  vote,  possibly  of  those 
whose  constituents  were  intentionally  not  subjected  to  any  part  of  the 
burden,  the  qualified  grant  was  made.     *     *     * 

It  is  said  that  a  tax  on  the  whole  income  of  property  is  not  a  direct 


1032  THE  FEDERAL  GOVERNMENT  (Part  I! 

tax  in  the  meaning  of  the  Constitution,  but  a  duty,  and.  as  a  duty,  levi- 
able without  apportionment,  whether  direct  or  indirect.  We  do  not 
think  so.  Direct  taxation  was  not  restricted  in  one  breath,  and  the 
restriction  blown  to  the  winds  in  another.  *  *  *  [After  referring 
to  the  views  of  Hamilton  and  Madison,  and  to  the  case  of  Hylton  v. 
U.  S.,  3  Dall.  171,  1  L.  Ed.  556:]  The  Constitution  prohibits  any  di- 
rect tax,  unless  in  proportion  to  numbers  as  ascertained  by  the  census, 
and,  in  the  light  of  the  circumstances  to  which  we  have  referred,  is 
it  not  an  evasion  of  that  prohibition  to  hold  that  a  general  unappor- 
tioned  tax,  imposed  upon  all  property  owners  as  a  body  for  or  in  re- 
spect of  their  property,  is  not  direct,  in  the  meaning  of  the  Constitu- 
tion, because  confined  to  the  income  therefrom? 

Whatever  the  speculative  views  of  political  economists  or  revenue 
reformers  may  be,  can  it  be  properly  held  that  the  Constitution,  taken 
in  its  plain  and  obvious  sense,  and  with  due  regard  to  the  circum- 
stances attending  the  formation  of  the  government,  authorizes  a  gen- 
eral unapportioned  tax  on  the  products  of  the  farm  and  the  rents  of 
real  estate,  although  imposed  merely  because  of  ownership,  and  with 
no  possible  means  of  escape  from  payment,  as  belonging  to  a  totally 
different  class  from  that  which  includes  the  property  from  whence  the 
income  proceeds? 

There  can  be  but  one  answer,  unless  the  constitutional  restriction  is 
to  be  treated  as  utterly  illusory  and  futile,  and  the  object  of  its 
framers  defeated.  We  find  it  impossible  to  hold  that  a  fundamental 
requisition  deemed  so  important  as  to  be  enforced  by  two  provisions, 
one  affirmative  and  one  negative,  can  be  refined  away  by  forced  dis- 
tinctions between  that  which  gives  value  to  property  and  the  property 
itself. 

Nor  can  we  perceive  any  ground  why  the  same  reasoning  does  not 
apply  to  capital  in  personalty  held  for  the  purpose  of  income,  or  ordi- 
narily yielding  income,  and  to  the  income  therefrom.  *  *  *  Per- 
sonal property  of  some  kind  is  of  general  distribution,  and  so  are  in- 
comes, though  the  taxable  range  thereof  might  be  narrowed  through 
large  exemptions.     *     *     * 

The  stress  of  the  argument  is  thrown,  however,  on  the  assertion 
that  an  income  tax  is  not  a  property  tax  at  all ;  that  it  is  not  a  real- 
estate  tax,  or  a  crop  tax.  or  a  bond  tax ;  that  it  is  an  assessment  upon 
the  taxpayer  on  account  of  his  money-spending  power,  as  shown  by  his 
revenue  for  the  year  preceding  the  assessment;  that  rents  received, 
crops  harvested,  interest  collected,  have  lost  all  connection  with  their 
origin,  and,  although  once  not  taxable,  have  become  transmuted,  in 
their  new  form,  into  taxable  subject-matter, — in  other  words,  that  in- 
come is  taxable,  irrespective  of  the  source  from  whence  it  is  derived. 
*  *  *  The  dissenting  justices  proceeded,  in  effect,  upon  this  ground 
in  Weston  v.  City  of  Charleston,  2  Pet.  449,  7  L.  Ed.  481,  but  the  court 
rejected  it.    That  was  a  state  tax,  it  is  true;  but  the  states  have  power 


Ch.  17)  FEDEKAL   TAXATION  1 

to  lay  income  taxes,  and,  if  the  source  is  not  open  to  inquiry,  constitu- 
tional safeguards  might  be  easily  eluded. 

have  unanimously  held  in  this  case  that,  so  far  as  this  law  op- 
erates on  the  receipts  from  muni  .  it  cannot  be  susl 
because  it  is  a  tax  on  the  power  of  the  states  and  on  their  instru- 
mentalities to  borrow  money,  and  consequently  repugnant  to  the  Con- 
stitution. But  if,  as  contended,  the  interest,  when  received,  has  be- 
come merely  money  in  the  recipient's  pocket,  and  taxable,  as  such, 
without  reference  to  the  source  from  which  it  came,  the  question  is  im- 
material whether  it  could  have  been  originally  taxed  at  all  or  not.  This 
Imitted  by  the  attorney  general,  with  characteristic  candor;  and 
it  follows  that  if  the  revenue  derived  from  municipal  bonds  cannot 
be  taxed,  because  the  source  cannot  be,  the  same  rule  applies  to  reve- 
nue from  any  other  source  not  subject  to  the  tax,  and  the  lack  of 
power  to  levy  any  but  an  apportioned  tax  on  real  and  personal  prop- 
erty equally  exists  as  to  the  revenue  therefrom.  Admitting  that  this 
act  taxes  the  income  of  property,  irrespective  of  its  source,  still  we 
cannot  doubt  that  such  a  tax  is  necessarily  a  direct  tax,  in  the  meaning 
of  the  Constitution.     *     *     * 

We  have  considered  the  act  only  in  respect  of  the  tax  on  income 
derived  from  real  estate,  and  from  invested  personal  property,  and 
have  not  commented  on  so  much  of  it  as  bears  on  gains  or  profits 
from  business,  privileges,  or  employments,  in  view-  of  the  instances  in 
which  taxation  on  business,  privileges,  or  employments  has  assumed 
the  guise  of  an  excise  tax  and  been  sustained  as  such. 

Being  of  opinion  that  so  much  of  the  sections  of  this  law  as  lays 
a  tax  on  income  from  real  and  personal  property  is  invalid,  we  are 
brought  to  the  question  of  the  effect  of  that  conclusion  upon  these 
sections  as  a  whole.  *  *  *  [It  was  decided  that  as  by  far  the 
largest  part  of  the  tax,  that  on  capital,  had  failed.  Congress  could  not 
have  intended  to  tax  alone  the  income  from  occupations  and  labor,  and 
therefore  the  whole  tax  failed.  This  part  of  the  case  appears  ante, 
p.  52.] 

Entire  decree  reversed.1 

[Harlan,  Brown,  Jackson  and  White,  JJ.,  gave  dissenting  opin- 
ions. 1 

i  In  Nicol  v.  Amps.  173  D.  S.  500.  518-621,  10  Sup.  Ot  522,  528,  52T,  4.1  L. 
Bd.  788  (1899),  Peckham,  J.,  sulci  (holding  a  tax  upon  sale-  at  basin 

to  be  an  excise) :   "it  is  asserted  to  be  a  direct  tax,  because  it  is  :i 
tax  upon  the  sale  of  property  a»  the  thing  sold,  and 

such  a  tux  is  a  direct   tax  upon  the  pn  Itself,  and  therefore  subject  p> 

the  rale  of  apportionment    Varioo  cited,  from  Rrown  v.  Maryland, 

il'  Wheat  uii  [6  L.  Bd.  878],  down  to  those  Involving  the  validity  of  tie  in- 
come tax  (Pollock  v.  Trust  Co.,  UW  D.  S.  429,  15  Sop.  Ct  678  [89  I..  Ed.  759J; 
Id..  L58  U.  S.  G01,  15  Sup.  Ct  912  [39  L.  Ed.  1108]),  for  the  purpose  of  prov- 
ing the  correctness  of  this  proposition,  ah  the  cases  involve. l  the  question 
whether  the  taxes  to  which  objection  was  taken  amounted  practically  to  a  tax 
on  the  property,  it  this  t.-ix  is  not  on  the  property,  or  on  the  sale  thereof, 
then  these  eases  do  not  apply.    We  think  the  tax  is.  in  effect,  a  duty  or  ex- 


1034  THE  FEDERAL   GOVERNMENT  (Part  8 

.  ise  laid  upon  the  privilege,  opportunity,  or  facility  offered  at  boards  of  trade 
nanges  for  the  transaction  of  the  business  mentioned  in  the  act.  It  is 
oot  a  tax  upon  the  business  itself  which  is  so  transacted,  but  it  is  a  duty 
upon  Ibe  facilities  made  use  of,  and  actually  employed,  in  the  transaction  of 
the  business,  and  separate  and  apart  from  the  business  itself.  *  *  *  It 
is  also  said  that  the  tax  is  direct  because  it  cannot  be  added  to  the  price  of 
the  thing  sold,  and  therefore  ultimately  paid  by  the  consumer.  In  other 
words,  that  it  is  direct  because  the  owner  cannot  shift  the  payment  of  the 
amount  of  the  tax  to  some  one  else.  This,  however,  assumes  that  the  tax  is 
not  in  the  nature  of  a  duty  or  an  excise,  but  that  it  is  laid  directly  upon  the 
property  sold,  which  we  hold  is  not  the  case.  It  is  not  laid  upon  the  proper- 
ty at  all,  nor  upon  the  profits  of  the  sale  thereof,  nor  upon  the  sale  itself, 
considered  separate  and  apart  from  the  place  and  the  circumstances  of  the 
sale.  *  *  *  A  tax  upon  the  privilege  of  selling  property  at  the  exchange, 
and  of  thus  using  the  facilities  there  offered  in  accomplishing  the  sale,  differs 
radically  from  a  tax  upon  every  sale  made  in  any  place.  The  latter  tax  is 
really  and  practically  upon  property.  It  takes  no  notice  of  any  kind  of 
privilege  or  facility,  and  the  fact  of  a  sale  is  alone  regarded." 

In  Fairbank  v.  U.  S.,  181  U.  S.  283,  293,  294,  21  Sup.  Ct.  648,  652,  45  L. 
Ed.  862  (1901),  a  federal  stamp  tax  upon  export  bills  of  lading  was  held  a 
tax  on  exports.  After  quoting  the  latter  part  of  the  extract  from  Nicol  v. 
Ames  given  above,  Brewer,  J.,  said:  "If  it  be  true  that  a  stamp  tax  required 
upon  every  instrument  evidencing  a  sale  is  really  and  practically  a  tax  upon 
the  property  sold,  it  is  equally  clear  that  a  stamp  duty  upon  foreign  bills  of 
lading  is  a  tax  upon  the  articles  exported.  *  *  *  A  bill  of  lading,  *  *  * 
or  some  equivalent  instrument  of  writing,  is  invariably  associated  with 
every  cargo  of  merchandise  exported  to  a  foreign  country,  and  consequently  a 
duty  upon  that  is,  in  substance  and  effect,  a  duty  on  the  article  exported." 
Rut  compare  the  remarks  of  Holmes,  J.,  in  New  York  ex  rel.  Hatch  v.  Rear- 
don,  204  U.  S.  152,  158,  159,  27  Sup.  Ct.  188,  51  L.  Ed.  415,  9  Ann.  Cas.  736 
(1907),  quoted  ante,  pp.  570,  571,  note. 

In  Patton  v.  Brady,  1S4  U,  S.  60S,  618,  619,  22  Sup.  Ct.  493.  496.  497,  46 
U  Ed.  713  (1902),  a  tax  upon  manufactured  tobacco  in  the  hands  of  a  dealer, 
not  the  manufacturer,  was  held  an  excise,  and  indirect:  Brewer,  J.,  saying: 
"The  tax  on  manufactured  tobacco  is  a  tax  on  an  article  manufactured  for 
consumption,  and  imposed  at  a  period  intermediate  the  commencement  of  man- 
ufacture and  the  final  consumption  of  the  article.  *  *  *  Counsel  in  their 
brief  have  advanced  a  very  elaborate  and  ingenious  argument  to  show  that 
this  is  a  direct  tax  upon  property  which  must  be  apportioned  according  to 
population  within  the  rule  laid  down  in  the  Income  Tax  Cases,  but,  as  we 
have  seen,  it  is  not  a  tax  upon  property  as  such,  but  upon  certain  kinds  of 
property,  having  reference  to  their  origin  and  their  intended  use." 

In  Thomas  v.  U.  S.,  192  U.  S.  363.  370,  371,  24  Sup.  Ct.  305,  306,  48  L.  Ed. 
481  (1904),  a  stamp  tax  on  sales  of  certificates  of  stock  was  held  indirect : 
Fuller,  C.  J.  saying: 

"These  two  classes,  taxes  so  called,  and  'duties,  imposts,  and  excises,'  ap- 
parently embrace  all  forms  of  taxation  contemplated  by  the  Constitution. 
*  *  *  There  is  no  occasion  to  attempt  to  confine  the  words  duties,  imposts, 
and  excises  to  the  limits  of  precise  definition.  We  think  that  they  were  used 
comprehensively  to  cover  customs  and  excise  duties  imposed  on  importation, 
consumption,  manufacture,  and  sale  of  certain  commodities,  privileges,  par- 
ticular business  transactions,  vocations,  occupations,  and  the  like.  Taxes  of 
this  sort  have  been  repeatedly  sustained  by  this  court,  and  distinguished 
from  direct  taxes  under  the  Constitution.  *  *  *  Brown  t.  Maryland,  12 
Wheat.  419,  6  L.  Ed.  678,  and  Fairbank  v.  United  States,  181  U.  S.  283,  45 
L.  Ed.  862,  21  Sup.  Ct.  648,  are  not  in  point.  In  the  one  the  clause  of  the 
Constitution  was  considered  which  forbids  any  state,  without  the  consent  of 
Congress,  to  'lay  any  imposts  or  duties  on  imports  or  exports,'  and  in  the  oth- 
er, that  'no  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state.' 
The  distinction  between  direct  and  indirect  taxes  was  not  involved  in  either 
case.  The  sale  of  stocks  is  a  particular  business  transaction  in  the  exercise 
of  the  privilege  afforded  by  the  laws  in  respect  to  corporations  of  disposing  of 
property  in  the  form  of  certificates.  The  stamp  duty  is  contingent  on  the 
happening  of  the  event  of  sale,  and  the  element  of  absolute  and  unavoidable 


Ch.  17)  FEDEKAL  TAXATION  1035 

demand  is  lacking.     As  such  It  Calls,  as  stump  taxes  ordinarily  do.  within  the 
second  claa    of  the  tonne  of  tazal  I  o. ' 

in  Flint  \.  Stone  Tracy  Co.,  220  i  .  s.  107,  15o-i:.j,  162,  Jo",,  81  Bnp.  Ot 
342,  848,  349,  853,  354,  55  L.  Ed.  3  9,  .  L912B,  1312  (1911),  an  In- 
come tax  upon  the  doing  of  business  under  corporate  organization  was  held 
indirect;    Day,  J.,  saying: 

"Within  the  category  of  indirect  taxation     •     •     •     Is  embraced  a  tax  upon 
business  done  In  a  corporate  capacity,  which  is  the  subjeel  matl 
Imposed  In  the  act  under  consideration.     The  l'oll<" 
there   levied  as  direct,   because  it  was   Imposed   upon   property  simply   because 

of  Its  owner  Up.    in  the  present  case  the  lax  is  not  payable  unless  the 
carrying  on  or  doing  of  business  in  the  designated  capacity,  and  this 
the  occasion  for  the  tax,  measured  by  the  standard 

en..-  between  the  acts  is  not  merely  nominal,  hut  rests  upon  substantia]  dif- 
ferences between  the  mere  ownership  ot  property  and  the  actual  doing  of 
business  In  a  certain  way.  •  *  *  The  tax  under  consideration,  as  we  have 
construed  the  statute,  may  be  described  as  an  excise  upon  the  particular  privi- 
lege of  doing  business  In  a  corporate  capacity,  i.  e.,  with  the  advantages  which 
arise  from  corporate  or  quasi  corporate  organization;  or,  when  applied  to  In- 
surance companies,  for  doing  the  business  Of  such  companies.  As  was  said  in 
mas  Case,  192  1  .  S.  [;571J,  the  requirement  to  pay  such  taxes  involves 
the  exercise  of  privileges,  and  the  element  of  absolute  and  unavoidable  de- 
mand Is  lacking.  If  business  is  not  done  in  the  manner  described  in  the  stat 
Ote,  no  tax  is  payable.     »     *     » 

"It  is  further  contended  that  some  of  the  corporations,  notably  Insurance 
companies,  have  large  Investments  In  municipal  bonds  and  other  nontaxable 
securities,  and  in  real  estate  and  personal  property  not  used  in  the  business; 
that  therefore  the  selection  of  the  measure  of  the  income  from  all  sources  is 
void,  because  it  reaches  property  which  is  not  the  subject  of  taxation, — upon 
the  authority  of  the  Pollock  Case,  supra.  But  this  argument  confuses  the 
measure  of  the  tax  upon  the  privilege  with  direct  taxation  of  the 
Hung  taxed.  In  the  Pollock  ('use,  us  we  have  seen,  the  tax  was  held  unconsti 
tutional  because  it  was  in  effect  a  direct  tax  on  the  property  solely  I 
of  its  ownership.  *  *  *  It  is  *  •  *  well  settled  by  the  decisions  ol  this 
court  that  when  the  sovereign  authority  has  exercised  the  right  to  tax  a  le- 
gitimate subject  of  taxation  as  an  exercise  of  a  .franchise  or  privilege,  it  Is 
DO  objection  that  the  measure  of  taxation  is  found  in  the  income  produced  in 
part  from  property  which  of  itself  considered  is  nontaxable.  Applying  that 
doctrine  to  this  ease,  the  measure  of  taxation  being  the  income  of  the  CO 
lion  from  all  sources,  as  that  is  but  the  measure  of  a  privilege  tax  within  the 
Lawful  authority  of  Congress  to  impose,  it  is  no  valid  objection  that  this 
measure  includes,  in  part,  at  least,  property  which,  as  such,  could  not  be  di- 
rectly taxed." 

For  i  be  aning  of  "doing  business,"   within  the  federal  corporation  tax, 

see  McCoach  v.  Mlnehill,  etc.,  By.,  228  D.  S.  295,  •"".  Sup.  Ct  419,  57  L.  Ed. 
—  (1913). 

Sim  uNi  it  Amendment. — On  July  12.  lftno.  Congress  proposed  the  sixteenth 
amendment  to  the  Constitution,  authorizing  a  federal  tax  upon  Incomes  from 
whatever  source  derived,  and  on  February  25,  1913,  it  was  proclaimed  to  be  In 
force.  It  will  he  observed  that  this  amendment  does  not  quality  the  reason- 
ing of  the  Pollock  Cnse  as  to  direct  taxes,  save  as  regards  taxes  on  incomes. 


1036  THE   FEDERAL   GOVERNMENT  (Part  3 

KNOWLTON  v.  MOORE. 

(Supreme  Court  of  the  United  States,  1900.    178  U.  S.  41,  20  Sup.  Ct.  747.  44 
L.  Ed.  969.) 

[Error  to  the  federal  Circuit  Court  for  the  Eastern  District  of  New 
York.  The  federal  War  Revenue  Act  of  June  13,  1898,  c.  448  (30  Stat. 
448,  §§  29,  30  [U.  S.  Comp.  St.  1901,  pp.  2307,  2308]),  imposed  a 
succession  tax  upon  legacies  or  distributive  shares  of  personalty  pass- 
ing at  death.  Upon  the  death  of  one  Knowlton  in  Brooklyn,  N.  Y.,  this 
tax  thereon  was  paid  under  protest  and  suit  was  brought  against  the 
federal  collector  to  recover  the  amount  paid.  This  writ  was  taken 
from  a  decision  dismissing  the  suit  on  demurrer.] 

Mr.  Justice  White.  *  *  *  Although  different  modes  of  assess- 
ing such  duties  prevail,  and  although  they  have  different  accidental 
names,  such  as  probate  duties,  stamp  duties,  taxes  on  the  transaction, 
or  the  act  of  passing  of  an  estate  or  a  succession,  legacy  taxes,  estate 
taxes,  or  privilege  taxes,  nevertheless  tax  laws  of  this  nature  in  all 
countries  rest  in  their  essence  upon  the  principle  that  death  is  the  gen- 
erating source  from  which  the  particular  taxing  power  takes  its  being, 
and  that  it  is  the  power  to  transmit,  or  the  transmission  from  the  dead 
to  the  living,  on  which  such  taxes  are  more  immediately  rested.     *     *     * 

[After  interpreting  the  statute  differently  from  the  lower  court:] 
The  precise  meaning  of  the  law  being  thus  determined,  the  question 
whether  the  tax  which  it  imposes  is  direct,  and  hence  subject  to  the 
requirement  of  apportionment,  arises  for  consideration.  *  *  * 
[Reference  is  here  made  to  Scholey  v.  Rew,  23  Wall.  349,  23  L.  Ed 
99,  in  which  a  federal  succession  duty  on  real  estate  was  upheld.] 

The  argument  is  that  the  decision  in  Scholey  v.  Rew  was  overruled 
in  Pollock  v.  Farmers'  Loan  &  T.  Co.,  157  U.  S.  429,  158  U.  S.  601, 
39  L.  Ed.  759,  1108,  15  Sup.  Ct.  673,  912,  *  *  *  but  there  was 
no  intimation  in  the  Pollock  Case  that  inheritance  taxes — which  had 
been  held  in  Scholey  v.  Rew  not  to  be  direct,  which  had  from  all  time 
been  considered  as  being  imposed,  not  on  property,  real  or  personal,  as 
ordinarily  understood,  but  as  being  levied  on  the  transmission  or  re- 
ceipt of  property  occasioned  by  death,  and  which  had  from  the  founda- 
tion of  the  government  been  treated  as  a  duty  or  excise — were  direct 
taxes,  within  the  meaning  of  the  Constitution.  *  *  *  Here  we 
are  asked  to  decide  that  a  tax  is  a  direct  tax  on  property  which  has 
at  all  times  been  considered  as  the  antithesis  of  such  a  tax;  that  is, 
has  ever  been  treated  as  a  duty  or  excise,  because  of  the  particular 
occasion  which  gives  rise  to  its  levy.     *     *     * 

It  is  argued  that  death  duties  cannot  be  shifted  from  the  one  on 
whom  they  are  first  cast  by  law,  and  therefore  they  are  direct  taxes 
requiring  apportionment.  *  *  *  It  is  true  that  in  the  Income  Tax 
Cases  the  theory  of  certain  economists  by  which  direct  and  indirect 


Cll.  17)  FEDERAL   TAXATION  1037 

taxes  are  classified  with  reference  to  the  ability  to  shift  the  same  was 

■I  to.  But  this  disputable  theory  was  not  the  basis  of  the  con- 
i  of  the  court.  The  constitutional  meaning  of  the  won'. 
was  the  matter  decided.  Considering  that  the  constitutional  rule  of 
apportionmi  nt  had  its  origin  in  the  purpose  to  prevent  taxes  on  per- 
sons, sol  e  of  their  general  ownership  of  property,  from  being 
levied  1>            .      ■  r  rule  than  that  of  apportionment,  two  things  were 

d  by  the  court:   First,  that  no  sound  distinction  existed  i 
a  tax  levied  on  a  person  solely  because  of  his  general  ownership  of  real 

. ,  and  the  same  tax  imposed  solely  because  of  his  general  own- 
ership  of  personal  property.  Secondly,  that  the  tax  on  the  income  de- 
rived from  such  property,  real  or  personal,  was  the  legal  equivalent  of 
a  direct  lax  on  the  property  from  which  said  income  was  derived,  and 
hence  must  be  apportioned.  These  conclusions,  however,  lend  no  sup- 
port to  the  contention  that  it  was  decided  that  duties,  imposts  and 
excises  which  are  not  the  essential  equivalent  of  a  tax  on  property  gen- 
erally, real  or  personal,  solely  because  of  its  ownership,  must  be  con- 
verted into  direct  taxes,  because  it  is  conceived  that  it  would  be  demon- 
strated by  a  close  analysis  that  they  could  not  be  shifted  from  the  per- 
son upon  whom  they  first  fall.  The  proposition  now  relied  upon  was 
considered  and  refuted  in  X'icol  v.  Ames,  173  U,  S.  509,  43  L.  Ed. 
786,  19  Sup.  Ct.  522,  where  the  court  said  (p.  515,  E.  Ed.  p.  791,  Sup. 
Ct.  Rep.  p.  525) :  *  *  *  "As  a  mere  abstract,  scientific,  or  eco- 
nomical problem,  a  particular  tax  might  possibly  be  regarded  as  a  di- 
rect tax,  when  as  a  practical  matter  pertaining  to  the  actual  Oj" 
of  the  tax  it  might  quite  plainly  appear  to  be  indirect.     *     *  For 

the  purpose  of  deciding  upon  its  validity  a  tax  should  be  regarded  in 
:al.  practical  results,  rather  than  with  reference  to  those  theo- 
retical or  abstract  ideas  whose  correctness  is  the  subject  of  dispute  and 
contradiction  among  those  who  are  experts  in  the  science  of  political 
econo 

luding,  then  that  the  tax  under  consideration  is  not  direct  with- 
in the  meaning  of  the  Constitution,  but.  on  the  contrary,  is  a  duty  or 
excise,  we  are  brought  to  consider  the  question  of  uniformity. 

The  contention  is  that  because  the  statute  exempts  legacies  and  dis- 

e  shan  s  in  personal  pn  ■  i,l  00,  because  it  classifies 

x  according  to  the  rela  absence  of  the  relation- 

the  laker  to  the  deceased,  and  provides  for  a  rate  pro;,r 
by  the  amount  of  the  legacy  or  share,  therefore  the  tax  is  repugnant 
to  that  portion  of  f  section  S  of  article  1  of  ti 

Stitution,  which  provides  that  imposts,  and  excises   shall  be 

uniform  throughout  the  Unit  *     *     *     The  two  conten- 

n  may  be  summarized  by  saying  that  the  one  asserts  that  the 
Constitution  prohibits  the  levy  of  a;r  duty,  impost,  or  excise  which  is 
not  intrinsically  equal  and  uniform  in  its  operations  upon  individuals, 
anil  the  other  that  the  power  of  Congress  in  levying  the  taxes  in  ques- 


1038  THE   FEDERAL   GOVERNMENT  (Part  3 

tion  is  by  the  terms  of  the  Constitution  restrained  only  by  the  require- 
ment that  such  taxes  be  geographically  uniform.  *  *  *  [After  an 
elaborate  textual  and  historical  argument  upon  the  question:]  By  the 
result,  then,  of  an  analysis  of  the  history  of  the  adoption  of  the  Con- 
stitution it  becomes  plain  that  the  words  "uniform  throughout  the 
United  States"  do  not  signify  an  intrinsic  but  simply  a  geographical 
uniformity.     *     *     * 

It  is  yet  further  asserted  that  the  tax  does  not  fulfil  the  requirements 
of  geographical  uniformity,  for  the  following  reason:  As  the  primary 
rate  of  taxation  depends  upon  the  degree  of  relationship  or  want  of  re- 
lationship to  a  deceased  person,  it  is  argued  that  it  cannot  operate  with 
geographical  uniformity,  inasmuch  as  testamentary  and  intestacy  laws 
may  differ  in  every  state.  It  is  certain  that  the  same  degree  of  rela- 
tionship or  want  of  relationship  to  the  deceased,  wherever  existing,  is 
levied  on  at  the  same  rate  throughout  the  United  States.  The  tax  is 
hence  uniform  throughout  the  United  States,  despite  the  fact  that 
different  conditions  among  the  states  may  obtain  as  to  the  objects  upon 
which  the  tax  is  levied.  The  proposition  in  substance  assumes  that 
the  objects  taxed  by  duties,  imposts,  and  excises  must  be  found  in 
uniform  quantities  and  conditions  in  the  respective  states,  otherwise 
the  tax  levied  on  them  will  not  be  uniform  throughout  the  United 
States.  But  what  the  Constitution  commands  is  the  imposition  of  a 
tax  by  the  rule  of  geographical  uniformity,  not  that  in  order  to  levy 
such  a  tax  objects  must  be  selected  which  exist  uniformly  in  the  sev- 
eral states.     *     *     * 

Judgment  reversed  fon  interpretation  of  law  only].1 
[Brewer,  J.,   dissented  as  to  the  validity   of   a  progressive  tax. 
Harlan  and  McKexna,  ]].,  dissented  from  the  interpretation  of  the 
statute.    Peckham,  J.,  took  no  part  in  the  decision.] 

i  For  the  relation  of  the  •'uniformity"  clause  to  Const,  art.  1,  §  9.  par.  6. 
forbidding  preferences  between  state  ports,  see  the  principal  case,  ITS  U.  S. 

at  pp.  103-106.  For  its  possible  effect  upon  the  taxation  of  interstate  com- 
merce, see  Doolev  v.  U.  S.,  1S3  U.  S.  151,  157,  165,  16G,  22  Sup.  Ct.  62,  43  L. 
Ed.  128  (1901). 

Purposes  fob  Which  Federal  Powers  of  Taxation  may  be  Used. — See 
McCray  v.  United  Stati  s,  ante,  p.  959,  and  notes.  For  the  older  arguments  as 
to  the  meaning  of  the  "general  welfare"  clause,  as  expressing  the  objects  that 
may  be  furthered  by  federal  taxation  or  by  the  appropriation  of  federal  mon- 
ey  raised  bv  taxation,  see  President  Monroe,  2  Mess,  and  Papers  of  Presi- 
dents, 162-173  (May  -1.  1822);  1  Story,  Comm.  on  Const.  §§  905-930,  95S-991; 
2  G.  T.  Curtis.  Const.  Hist,  of  U.  S.  592-591  (1S96).  Compare  the  present 
expenditures  of  the  national  government  on  behalf  of  agriculture,  the  public 
health,  the  geological  survey,  and  various  other  objects. 


Ch.  18)  BEGULATION   OF  OOMMBBOH  1039 

CHAPTER  XVIII 
REGULATION  OF  COMMERCE  * 


SECTION  1.— DUTIES  ON  IMPORTS,  EXPORTS,  AND 
TONNAGE 


BROWN  v.  MARYLAND. 
(Supreme  Court  of  United  States,  1827.    12  Wheat  -410,  6  L.  Ed    678.) 

[Error  to  the  Court  of  Appeals  of  Maryland.  A  statute  imposed 
penalties  upon  all  persons  selling  foreign  articles  by  wholesale  who  did 
not  take  out  a  $50  license  therefor.  Brown  was  convicted  in  the  Bal- 
timore city  court  of  selling  a  package  of  foreign  dry  goods  without  a 
and  from  an  aftirmance  of  this  conviction  this  writ  was  taken.] 

Mr.  Chief  Justice  Marshall.  *  *  *  The  plaintiffs  in  error 
*  *  *  insist  that  the  act  under  consideration  is  repugnant  to  two 
provisions  in  the  Constitution  of  the  United  States. 

1.  To  that  which  declares  that  "no  state  shall,  without  the  consent 
of  Congress,  lay  any  imposts,  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection  laws." 

2.  To  that  which  declares  that  Congress  shall  have  power  "to  regu- 
late commerce  with  foreign  nations,  and 'among  the  several  states,  and 
with  the  Indian  tribes." 

1.  The  first  inquiry  is  into  the  extent  of  the  prohibition  upon  states 
"to  lay  any  imposts  or  duties  on  imports  or  exports."  The  counsel  for 
the  state  of  Maryland  would  confine  this  prohibition  to  laws  impos- 
ing duties  on  the  act  of  importation  or  exportation.  The  counsel  for 
the  plaintiffs  in  error  ^ive  them  a  much  wider  scope. 

In  performing  the  delicate  and  important  duty  of  construing  clauses 
in  the  Constitution  of  our  country,  which  involve  conflicting  powers  of 
the  government  of  the  Union,  and  of  the  respective  states,  it  is  proper 
to  take  a  view  of  the  literal  meaning  of  the  words  to  be  expounded,  of 
their  connection  with  other  words,  and  of  the  general  objects  to  be 
accomplished  by  the  prohibitory  clause,  or  by  the  grant  of  power. 
What,  then,  is  the  meaning  of  the  words,  "imposts,  or  duties  on  im- 
ports or  exports'*  ? 

An  impost,  or  duly  on  imports,  is  a  custom  or  a  tax  levied  on  arti- 
cles brought  into  a  country,  and  is  most  usually  secured  before  the 

•All  of  the  commercial  clauses  of  the  Constitution  are  treated  together  In 
iliis  chapter.  See  Const,  urt.  I.  g  8,  par.  3;  Id.  |  9,  pars.  ."•.  »!;  Id.  $  10,  \>-.\r>. 
2,  3;   art.  Til.  §  2,  par.  1  f grant  of  maritime  lurlsd 


1010  THE   FEDERAL  GOVERNMENT  (Part  3 

importer  is  allowed  to  exercise  his  rights  of  ownership  over  them,  be- 
cause  evasions  of  the  law  can  be  prevented  more  certainly  by  execut- 
ing it  while  the  articles  are, in  its  custody.  It  would  not,  however,  be 
less  an  impost  or  duty  on  the  articles,  if  it  were  to  be  levied  on  them 
after  they  were  landed.  The  policy  and  consequent  practice  of  levy- 
ing or  securing  the  duty  before,  or  on  entering  the  port,  does  not  limit 
the  power  to  that  state  of  things,  nor,  consequently,  the  prohibition, 
unless  the  true  meaning  of  the  clause  so  confines  it.  What,  then,  are 
"imports"?  The  lexicons  inform  us,  they  are  "things  imported."  If 
we  appeal  to  usage  for  the  meaning  of  the  word,  we  shall  receive  the 
same  answer.  They  are  the  articles  themselves  which  are  brought  into 
the  country.  "A  duty  on  imports,"  then,  is  not  merely  a  duty  on  the 
act  of  importation,  but  is  a  duty  on  the  thing  imported.  It  is  not, 
taken  in  its  literal  sense,  confined  to  a  duty  levied  while  the  article  is 
entering  the  country,  but  extends  to  a  duty  levied  after  it  has  entered 
the  country.  The  succeeding  words  of  the  sentence  which  limit  the 
prohibition,  show  the  extent  in  which  it  was  understood.  The  limita- 
tion is,  "except  what  may  be  absolutely  necessary  for  executing  its  in- 
spection laws."  Now,  the  inspection  laws,  so  far  as  they  act  upon 
articles  for  exportation,  are  generally  executed  on  land,  before  the 
article  is  put  on  board  the  vessel;  so  far  as  they  act  upon  importa- 
tions, they  are  generally  executed  upon  articles  which  are  landed.  The 
tax  or  duty  of  inspection,  then,  is  a  tax  which  is  frequently,  if  not  al- 
ways paid  for  service  performed  on  land,  while  the  article  is  in  the 
bosom  of  the  country.  Yet  this  tax  is  an  exception  to  the  prohibition 
on  the  states  to  lay  duties  on  imports  or  exports.  The  exception  was 
made  because  the  tax  would  otherwise  have  been  within  the  prohibi- 
tion.    *     *     * 

If  we  quit  this  narrow  view  of  the  subject,  and  passing  from  the 
literal  interpretation  of  the  words,  look  to  the  objects  of  the  prohibi- 
tion, we  find  no  reason  for  withdrawing  the  act  under  consideration 
from  its  operation.  From  the  vast  inequality  between  the  different 
states  of  the  Confederacy,  as  to  commercial  advantages,  few  subjects 
were  viewed  with  deeper  interest,  or  excited  more  irritation,  than  the 
manner  in  which  the  several  states  exercised,  or  seemed  disposed  to 
exercise,  the  power  of  laying  duties  on  imports.  From  motives  which 
were  deemed  sufficient  by  the  statesmen  of  that  day,  the  general  pow- 
er of  taxation,  indispensably  necessary  as  it  was,  and  jealous  as  the 
states  were  of  any  encroachment  upon  it,  was  so  far  abridged  as  to 
forbid  them  to  touch  imports  or  exports,  with  the  single  exception 
which  has  been  noticed.  Why  are  they  restrained  from  imposing  these 
duties?  Plainly,  because,  in  the  general  opinion,  the  interest  of  all 
would  be  best  promoted  by  placing  that  whole  subject  under  the  con- 
trol of  Congress.  Whether  the  prohibition  to  "lay  imposts,  or  duties 
on  imports  or  exports,"  proceeded  from  an  apprehension  that  the  pow- 
er might  be  so  exercised  as  to  disturb  that  equality  among  the  states 
which    was  generally  advantageous,   or   that  harmony   between   them 


Ch.  18)  REGULATION    OF    COMMERCE  10-41 

which  it  was  desirable  to  preserve,  or  to  maintain  unimpaired  our  com- 
mercial connections  with  foreign  nations,  or  to  confer  this  source  of 
revenue  on  the  government  of  the  Union,  or  whatever  other  motive 
might  have  induced  the  prohibition,  it  is  plain  that  the  object  would  be 
as  completely  defeated  by  a  power  to  tax  the  article  in  the  hands  of 
the  importer  the  instant  it  was  landed,  as  by  a  power  to  tax  it  while 
entering  the  port.  There  is  no  difference,  in  effect,  between  a 
to  prohibit  the  sale  of  an  article  and  a  power  to  prohibit  its  introduc- 
tion into  the  country.  The  one  would  be  a  necessary  consequence  of 
the  other.  No  goods  would  be  imported  if  none  could  be  sold.  Xo 
object  of  any  description  can  be  accomplished  by  laying  a  duty  on  im- 
portation, which  may  not  be  accomplished  with  equal  certainty  by  lay- 
ing a  duty  on  the  thing  imported  in  the  hands  of  the  importer.  It  is 
obvious,  that  the  same  power  which  imposes  a  light  duty,  can  impose 
a  very  heavy  one,  one  which  amounts  to  a  prohibition.  Questions  of 
power  do  not  depend  on  the  degree  to  which  it  may  be  exercised.  If 
it  may  be  exercised  at  all,  it  must  be  exercised  at  the  will  of  those  in 
whose  hands  it  is  placed.  If  the  tax  may  be  levied  in  this  form  by  a 
stale,  it  may  be  levied  to  an  extent  which  will  defeat  the  revenue  by 
impost,  so  far  as  it  is  drawn  from  importations  into  the  particular 
state.  We  are  told  that  such  wild  and  irrational  abuse  of  power 
to  be  apprehended,  and  is  not  to  be  taken  into  view  when  dis 
its  existence.  All  power  may  be  abused;  and  if  the  fear  of  its  abuse 
is  to  constitute  an  argument  against  its  existence,  it  might  be  urged 
against  the  existence  of  that  which  is  universally  acknov 
which  is  indispensable  to  the  general  safety.  The  states  will  never  be 
so  mad  as  to  destroy  their  own  commerce,  or  even  to  lessen  it. 

We  do  not  dissent  from  these  general  propositions.  *  *  *  Con- 
ceding, to  the  full  extent  which  is  required,  that  every  state  would,  in 
its  legislation  on  this  subject,  provide  judiciously  for  its  own  interests, 
it  cannot  be  conceded  that  each  would  respect  the  interests  of  others. 
A  duty  on  imports  is  a  tax  on  the  article  which  is  paid  by  the  consum- 
er. The  great  importing  states  would  thus  levy  a  tax  on  the  non-im- 
porting stales,  which  would  not  be  less  a  tax  because  their  interest 
would  afford  ample  security  against  its  ever  being  so  heavy  as  to  expel 
commerce  from  their  ports.1  This  would  necessarily  produce  coun- 
tervailing measures  on  the  part  of  those  states  whose  situation  was 
less  favorable  to  importation.     For  this,   among  other  reasons,  the 

i  "The  Immense  amount  <>f  foreign  products  used  and  consumed  In  this  coun- 
try arc  imported,  landed,  and  offered  Coi  sale  in  a  few  commercial  dries,  and 
a  verj  small  portion  "f  them  are  Intended  or  expected  to  in-  used  in  the  state 
in  which  they  arc  Imported.  *  *  *  A  tax  in  any  shape  upon  imports  is 
a  i.i  .  on  iii,-  consumer,  by  enhancing  the  price  of  the  commodity.    And  if  a 

slate   is   permitted   to    levy   il    in    any    form,    it    will   put    11    in   the   power  of  a 
maritime  Importing  slate   to  raise   a   revenue   for   the  support   of   its  own   go\ 

erniiiini   from  citizens  of  other  states,  as  certainly  and  effectually  a 

tax-  was  laid  openly  ami  without  i  —Taney,  C.  J  . 

in  License  Cases,  5  How.  604,  575,  576,  12  L  Ed.  256  (1847). 

ll.M  I.  C0N8T.L,       66 


}()42  THE  FEDERAL  GOVERNMENT  (Part  3 

whole  power  of  laying  duties  on  imports  was,  with  a  single  and  slight 
exception,  taken  from  the  states.     *     *     * 

The  counsel  for  the  state  of  Maryland  insists,  with  great  reason, 
that  if  the  words  of  the  prohibition  be  taken  in  their  utmost  latitude, 
they  will  abridge  the  power  of  taxation,  which  all  admit  to  be  essen- 
tial to  the  states,  to  an  extent  which  has  never  yet  been  suspected,  and 
will  deprive  them  of  resources  which  are  necessary  to  supply  revenue, 
and  which  they  have  heretofore  been  admitted  to  possess.  These 
words  must,  therefore,  be  construed  with  some  limitation ;  and,  if  this 
be  admitted,  they  insist  that  entering  the  country  is  the  point  of  time 
when  the  prohibition  ceases,  and  the  power  of  the  state  to  tax  com- 
mences. 

It  may  be  conceded,  that  the  words  of  the  prohibition  ought  not  to 
be  pressed  to  their  utmost  extent;  that  in  our  complex  system,  the 
object  of  the  powers  conferred  on  the  government  of  the  Union,  and 
the  nature  of  the  often  conflicting  powers  which  remain  in  the  states. 
must  always  be  taken  into  view,  and  may  aid  in  expounding  the  words 
of  any  particular  clause.  But,  while  we  admit  that  sound  principles  of 
construction  ought  to  restrain  all  courts  from  carrying  the  words  of 
the  prohibition  beyond  the  object  the  Constitution  is  intended  to  se- 
cure; that  there  must  be  a  point  of  time  when  the  prohibition  ceases, 
and  the  power  of  the  state  to  tax  commences ;  we  cannot  admit  that 
this  point  of  time  is  the  instant  that  the  articles  enter  the  country.  It  is 
we  think,  obvious  that  this  construction  would  defeat  the  prohibition. 
*  *  It  is  sufficient  for  the  present  to  say,  generally,  that  when 
the  importer  has  so  acted  upon  the  thing  imported,  that  it  has  become 
incorporated  and  mixed  up  with  the  mass  of  property  in  the  country, 
it  has,  perhaps,  lost  its  distinctive  character  as  an  import,  and  has  be- 
come subject  to  the  taxing  power  of  the  state;  but  while  remaining  the 
property  of  the  importer,  in  his  warehouse,  in  the  original  form  or 
package2  in  which  it  was  imported,  a  tax  upon  it  is  too  plainly  a  duty 
on  imports  to  escape  the  prohibition  in  the  Constitution. 

The  counsel  for  the  plaintiffs  in  error  contend  that  the  importer  pur- 
chases, by  payment  of  the  duty  to  the  United  States,  a  right  to  dispose 
of  his  merchandise,  as  well  as  to  bring  it  into  the  country;  and  cer- 
tainly the  argument  is  supported  by  strong  reason,  as  well  as  by  the 
practice  of  nations,  including  our  own.  The  object  of  importation  is 
sale ;  it  constitutes  the  motive  for  paying  the  duties ;  and  if  the  United 
States  possess  the  power  of  conferring  the  right  to  sell,  as  the  con- 
sideration for  which  the  duty  is  paid,  every  principle  of  fair  dealing 
requires  that  they  should  be  understood  to  confer  it.  The  practice  of 
the  most  commercial  nations  conforms  to  this  idea.  Duties,  according 
to  that  practice,  are  charged  on  those  articles  only  which  are  intended 

2  For  early  occurrences  of  the  phrase  "original  package"  in  New  York,  Mary- 
laud,  and  Pennsylvania  statutes,  see  Prentice,  Federal  Powers  over  Carriers 
and  Corporations,  101;  N.  Y.  Laws,  17S7,  c.  81.  In  1784  the  phrase  was 
•same  package."     N.  Y.  Laws  1784,  c.  10. 


Ch.  18)  REGULATION    OF    COMMERCE)  104^ 

for  sale  or  consumption  in  the  country.  Thus,  sea  stores,  goods  im- 
ported and  re-exported  in  the  same  vessel,  goods  landed  and  carried 
over  land  for  the  purpose  of  being  re-exported  from  some  other  port, 
goods  forced  in  by  stress  of  weather,  and  landed,  but  not  for  sale,  are 
exempted  from  the  payment  of  duties.  The  whole  course  of  legisla- 
tion on  the  subject  shows  that,  in  the  opinion  of  the  legislature,  the 
right  to  sell  is  connected  with  the  payment  of  duties. 

The  counsel  for  the  defendant  in  error  have  endeavored  to  illustrate 
their  proposition,  that  the  constitutional  prohibition  ceases  the  instant 
the  goods  enter  the  country,  by  an  array  of  the  consequences  which 
they  suppose  must  follow  the  denial  of  it.  If  the  importer  acquires  the 
right  to  sell  by  the  payment  of  duties,  he  may,  they  say,  exert  that 
right  when,  where,  and  as  he  pleases,  and  the  state  cannot  regulate  it. 
He  may  sell  by  retail,  at  auction,  or  as  an  itinerant  pedler.  He  may 
introduce  articles,  as  gunpowder,  which  endanger  a  city,  into  the  midst 
of  its  population;  he  may  introduce  articles  which  endanger  the  pub- 
lic health,  and  the  power  of  self-preservation  is  denied.  An  importer 
may  bring  in  goods,  as  plate,  for  his  own  use,  and  thus  retain  much 
valuable  property  exempt  from  taxation. 

These  objections  to  the  principle,  if  well  founded,  would  certainly 
be  entitled  to  serious  consideration.  But  we  think  they  will  be  found, 
on  examination,  not  to  belong  necessarily  to  the  principle,  and,  conse- 
quently, not  to  prove  that  it  may  not  be  resorted  to  with  safety  as  a 
criterion  by  which  to  measure  the  extent  of  the  prohibition.  This  indict- 
ment is  against  the  importer,  for  selling  a  package  of  dry  goods  in  the 
form  in  which  it  was  imported,  without  a  license.  This  state  of  things 
is  changed  if  he  sells  them,  or  otherwise  mixc-;  them  with  the  general 
property  of  the  state,  by  breaking  up  his  packages,  and  travelling  with 
them  as  an  itinerant  pedler.  In  the  first  case,  the  tax  intercepts  the 
import,  as  an  import,  in  its  way  to  become  incorporated  with  the  gen- 
eral mass  of  property,  and  denies  it  the  privilege  of  becoming  so  in- 
corporated until  it  shall  have  contributed  to  the  revenue  of  the  state. 
It  denies  to  the  importer  the  right  of  using  the  privilege  which  he  has 
purchased  from  the  United  States,  until  he  shall  have  also  purchased 
it  from  the  stale.  In  the  last  cases,  the  tax  finds  the  article  already 
incorporated  with  the  mass  of  property  by  the  act  of  the  importer.  He 
has  used  the  privilege  he  had  purchased,  and  has  himself  mixed  them 
Up  with  the  common  mass,  and  the  law  may  treat  them  as  it  finds 
them.  The  same  observations  apply  to  plate,  or  other  furniture  used 
by  the  importer. 

So,  if  he  sells  by  auction.  Auctioneers  are  persons  licensed  by  the 
state,  and  if  the  in  oses  to  employ  them,  he  can  as  little  ob- 

ject to  paying  for  this  service,  as  for  any  other  for  which  he  may  ap- 
ply to  an  officer  of  the  state.  The  right  of  sale  may  very  well  be  an- 
nexed to  importation,  without  annexing  to  it,  also,  the  privilege  of 
using  the  officers  licensed  by  the  state  to  make  sales  in  a  peculiar  way. 
The  power  to  direct  the  removal  of  gunpowder  i>  a  branch  of  the  po- 


104-1  THE    FEDERAL   GOVERNMENT  (Part  3 

lice  power,  which  unquestionably  remains,  and  ought  to  remain,  with 
the  states.  If  the  possessor  stores  it  himself  out  of  town,  the  removal 
cannot  be  a  duty  on  imports,  because  it  contributes  nothing  to  the  rev- 
enue. If  he  prefers  placing  it  in  a  public  magazine,  it  is  because  he 
it  there,  in  his  own  opinion,  more  advantageously  than  else- 
where. We  are  not  sure  that  this  may  not  be  classed  among  inspection 
laws.  The  removal  or  destruction  of  infectious  or  unsound  articles  is, 
undoubtedly,  an  exercise  of  that  power,  and  forms  an  express  excep- 
tion to  the  prohibition  we  are  considering.  Indeed,  the  laws  of  the 
United  States  expressly  sanction  the  health  laws  of  a  state. 

The  principle,  then,  for  which  the  plaintiffs  in  error  contend,  that 
the  importer  acquires  a  right,  not  only  to  bring  the  articles  into  the 
country,  but  to  mix  them  with  the  common  mass  of  property,  does  not 
interfere  with  the  necessary  power  of  taxation  which  is  acknowledged 
to  reside  in  the  states,  to  that  dangerous  extent  which  the  counsel  for 
the  defendants  in  error  seem  to  apprehend.  It  carries  the  prohibition 
in  the  Constitution  no  farther  than  to  prevent  the  states  from  doing 
that  which  it  was  the  great  object  of  the  Constitution  to  prevent. 

But  if  it  should  be  proved,  that  a  duty  on  the  article  itself  would 
be  repugnant  to  the  Constitution,  it  is  still  argued  that  this  is  not  a 
tax  upon  the  article,  but  on  the  person.  The  state,  it  is  said,  may  tax 
occupations,  and  this  is  nothing  more.  It  is  impossible  to  conceal  from 
ourselves  that  this  is  varying  the  form  without  varying  the  substance. 
It  is  treating  a  prohibition  which  is  general,  as  if  it  were  confined  to 
a  particular  mode  of  doing  the  forbidden  thing.  All  must  perceive 
that  a  tax  on  the  sale  of  an  article,  imported  only  for  sale,  is  a  tax  on 
the  article  itself.  It  is  true  the  state  may  tax  occupations  generally, 
but  this  tax  must  be  paid  by  those  who  employ  the  individual,  or  is  a 
tax  on  his  business.  The  lawyer,  the  physician,  or  the  mechanic,  must 
either  charge  more  on  the  article  in  which  he  deals,  or  the  thing  itself 
is  taxed  through  his  person.  This  the  state  has  a  right  to  do,  because 
no  constitutional  prohibition  extends  to  it.  So,  a  tax  on  the  occupation 
of  an  importer  is,  in  like  manner,  a  tax  on  importation.  It  must  add 
to  the  price  of  the  article,  and  be  paid  by  the  consumer,  or  by  the  im- 
porter himself,  in  like  manner  as  a  direct  duty  on  the  article  itself 
would  be  made.  This  the  state  has  not  a  right  to  do,  because  it  is  pro- 
hibited by  the  Constitution. 

In  support  of  the  argument  that  the  prohibition  ceases  the  instant 
the  goods  are  brought  into  the  country,  a  comparison  has  been  drawn 
between  the  opposite  words  export  and  import.  As,  to  export,  it  is 
said,  means  only  to  carry  goods  out  of  the  country;  so,  to  import, 
means  only  to  bring  them  into  it.  But,  suppose  we  extend  this  com- 
parison to  the  two  prohibitions.  The  states  are  forbidden  to  lay  a 
duty  on  exports,  and  the  United  States  are  forbidden  to  lay  a  tax  or 
duty  on  articles  exported  from  any  state.  There  is  some  diversity  in 
language,  but  none  is  perceivable  in  the  act  which  is  prohibited.  The 
United  States  have  the  same  right  to  tax  occupations  which  is  pos- 


Ch.  13)  REGULATION    OF    COMW  1045 

sessed  by  the  states.  Now,  suppose  the  United  States  should  require 
every  exporter  to  take  out  a  license,  for  which  he  should  pay  si: 
as  Congress  might  think  proper  to  impose  ;  would  government  be  per- 
mitted to  shield  itself  from  the  just  censure  to  which  this  attempt  to 
evade  the  prohibitions  of  the  Constitution  would  expose  it.  by  saying 
that  this  was  a  tax  on  the  person,  not  on  the  article,  and  that  the  leg- 
islature had  a  right  to  tax  occupations?  Or,  suppose  revenue  cutters 
were  to  be  stationed  off  the  coast  for  the  purpose  of  levying  a  duty 
on  all  merchandise  found  in  vessels  which  were  leaving  the  United 
States  for  foreign  countries;  would  it  be  received  as  an  excuse  for 
this  outrage,  were  the  government  to  say  that  exportation  meant  no 
more  than  carrying  goods  out  of  the  country,  and  as  the  prohibition  to 
lay  a  tax  on  imports,  or  things  imported,  ceased  the  instant  they  were 
brought  into  the  country,  so  the  prohibition  to  tax  articles  exported 
ceased  when  they  were  carried  out  of  the  country?. 

We  think,  then,  that  the  act  under  which  the  plaintiffs  in  error  were 
indicted,  is  repugnant  to  that  article  of  the  Constitution  which  de- 
clares that  "no  state  shall  lay  any  impost  or  duties  on  imports  or  ex- 
ports."    *     *     * 

[The  part  of  the  case  dealing  with  the  commerce  clause  is  printed 
post,  p.  1062.] 

Judgment  reversed.3 

[Thompson,  J.,  gave  a  dissenting  opinion.] 

>  The  constitutional  exemption  protects  imports  from  state  general  property 
taxes  bb  well  as  special  taxes  it  excises.     Low  v.  Austin.  13  Wall.  :jc.>.  20  i.. 
Ed.  517  (1872).     Rut  it  does  Dot  exempt  cash  receipts  from  exports  to 
eral  taxes  upon  capital  Invested  in  business  in  the  state.     New  York   v. 
208  I".   S.   II.  28  Sup.  Ct.  193,  52  T..   Ed.  370  (100S).     As  to   when  the  ad    of 
Importation  is  complete,  see  Waring  v.  Mayor,  8  Wall.  110,   ID  L.   Ed.  342 

What  are  Imports  and  Exports. — "Imports."  within  the  Constitution,  re- 
ly to  goods  brought  from  a  foreign  country,  not  to  goods  from  another 

Stair. 

'Whether  we  look  to  the  terms  of  the  clause  of  the  Constitution  in  m 
or  to  its  relation  to  the  other  parts  of  that  Instrument,  or  to  the  history  of 
its  formation  and  adoption,  or  to  the  comments  of  the  eminent  men  who  took 
part  In  those  transactions,  we  are  forced  to  ti"'  conclusion  that  no  Intention 
existed  to  prohibit  by  this  clause,  the  right  of  one  state  to  tax  articles  brought 
into  It  from  another.  If  we  examine  for  a  moment  the  results  of  an  • 
doctrine,  we  shall  be  well  satisfied  with  the  wisdom  of  the  Constitution  as 
thus  construed. 

"The  merchant  of  Chicago  who  buys  his  goods  in  New  York  and  - 
wholesale  In  the  original  packages,  may  have  his  millions  employed  In  trade 
for  half  a  lifetime  and  escape  all  state,  county,  and  city  taxes;  for  all  that 
he  is  worth  is  Invested  in  goods  which  he  claims  to  be  protected  as  imports 
from  New  York.  Neither  the  state  nor  the  city  which  protects  his  life  and 
property  can  make  him  contribute  a  dollar  to  support  its  government,  Improve 
its  thoroughfares,  or  educate  its  children.  The  merchant  In  a  town  in  Massa- 
chusetts, only  in  Wholesale,  if  he  purchase  his  goods  in  New  York, 
■  taxation,     if  bis  neighbor  purchase  In  Boston,  he  must   pay 

all   the    taxes  which  Massachusetts   levies   with   equal   justice  on   the   property 

of  all  its  cit >  are  merely  i  .  as  Illustrations 

it  Is  obvious  that  if  articles  brought  from  one  state  Into   uaothei 

from    taxation,   even  under    the   limited   circumstances   laid   down   in   the   case 
of   Brown   v.   Maryland,   tl.     -  Justice   most  prevail,  and  equality   uf 


1046  THE   FEDERAL  GOVERNMENT  (Part  3 


AUSTIN  v.  TENNESSEE. 

(Supreme  Court  of  United  States.  1900.     179  U.  S.  343,  21  Sup.  Ct.  132,  45 
L.  Ed.  224.) 

[Error  to  the  Supreme  Court  of  Tennessee.  A  state  statute  for- 
bade the  selling  of  cigarettes.  Austin  purchased  from  a  factory  in 
North  Carolina  a  lot  of  cigarettes  in  pasteboard  boxes  containing  10 
each,  each  box  separately  stamped  and  labeled  as  prescribed  by  the 
federal  revenue  laws.  The  vendor  piled  the  boxes  sold  upon  the  floor 
of  its  warehouse,  and  an  express  company  by  its  agent  took  them  from 
the  floor,  put  them  in  an  open  basket  already  in  its  possession,  shipped 
them  to  Austin's  town  in  Tennessee,  and  delivered  from  the  basket, 
upon  the  counter  in  Austin's  place  of  business,  the  whole  lot  of  de- 
tached boxes.  Austin  sold  one  of  these  boxes,  unbroken,  and  was  con- 
victed of  violating  the  statute.] 

Mr.  Justice  Brown,  *  *  *  [After  deciding  that  cigarettes 
were  a  legitimate  article  of  commerce:]  There  is  no  reason  to  doubt 
the  good  faith  of  the  legislature  of  Tennessee  in  prohibiting  the  sale 
of  cigarettes  as  a  sanitary  measure,  and  if  it  be  inoperative  as  applied 
to  sales  by  the  owner  in  the  original  packages,  of  cigarettes  manufac- 
tured in  and  brought  from  another  state,  we  are  remitted  to  the  in- 
quiry whether  a  paper  package  of  3  inches  in  length  and  iy2  inches 
in  width,  containing  ten  cigarettes,  is  an  original  package  protected  by 
the  Constitution  of  the  United  States  against  any  interference  by  the 
state  while  in  the  hands  of  the  importer?  This  we  regard  as  the  vital 
question  in  the  case. 

The  whole  law  upon  the  subject  of  original  packages  is  based  upon 
a  decision  of  this  court,  in  Brown  v.  Maryland,  12  Wheat.  419,  6  L. 
Ed.  678,  in  which  a  statute  of  Maryland,  requiring  all  importers  of 
foreign  articles,  "by  bale  or  package,"  or  of  intoxicating  liquors,  and 
other  persons  selling  the  same,  "by  wholesale,  bale  or  package,  hogs- 
head, barrel  or  tierce,"  to  take  out  a  license,  was  held  to  be  repugnant 
to  that  provision  of  the  Constitution  forbidding  states  from  laying  a 

public  burdens  in  all  our  large  cities  is  impossible." — Woodruff  v.  Parham.  S 
Wall.  12.",  136,  137,  19  L.  Ed.  382  (1.869).  by  Miller,  J.  So,  Brown  v.  Houston, 
114  U.  S.  622,  5  Sup.  Ct.  1091,  29  L.  Ed.  257  (18S5). 

Similarly,  "exports"  refers  only  to  goods  going  to  a  foreign  country,  and 
not,  e.  g.,  to  our  dependency,  Porto  Rico.  Dooley  v.  U.  S.,  1S3  TJ.  S.  151,  22 
Sup.  Ct.  62,  43  L.  Ed.  128  (1901).  Of  course  "exports"  and  "imports"  refer 
jnly  to  property;  not  to  the  migration  of  free  persons.  New  York  v.  Coin]'. 
Gen.  Trans.,  107  U.  S.  59,  2  Sup.  Ct.  87,  27  L.  Ed.  3S3  (1883). 

Taxes  ok  Exports. — A  federal  tax  upon  bills  of  lading  customarily  used 
in  exporting  goods  is  a  tax  on  exports.  Fairbank  v.  U.  S.,  181  U.  S.  2S3,  21 
Sup.  Ct.  64S,  45  L.  Ed.  S62  (1901).  A  federal  excise  is  not  a  tax  on  exports 
as  to  those  articles  subject  to  it  which  are  manufactured  for  export  and  later 
actually  exported.  Cornell  v.  Coyne,  192  TJ.  S.  418,  24  Sup.  Ct.  3S3,  48  L. 
Ed.  504  (1904).  Federal  burdens  upon  the  export  trade,  other  than  by-  taxes, 
are  not  forbidden.  Armour  Packing  Co.  v.  U.  S.,  209  U.  S.  56,  79,  2S  Sup. 
Ct  428,  52  L.  Ed.  681  (1908). 


Ch.  18)  REGULATION    OF    COMMKKCB  l"1" 

duty  upon  imports,  as  well  as  to  that  declaring  that  Congress  should 
have  power  to  regulate  commerce  with  foreign  nations.  There  was 
thought  to  be  no  difference  between  a  power  to  prohibit  the  sale  of  an 
article  while  it  was  an  import  and  the  power  to  prohibit  its  introduc- 
tion into  the  country.  The  one  would  be  the  necessary  consequence 
of  the  other.  No  goods  would  be  imported  if  .none  could  be  sold. 
But,  in  delivering  the  opinion  of  the  court,  Mr.  Chief  Justice  Marshall 
observed:  "It  is  sufficient  for  the  present  to  say,  generally,  that  when 
the  importer  has  so  acted  upon  the  thing  imported  that  it  has  become 
incorporated  and  mixed  up  with  the  mass  of  property  in  the  country, 
it  has,  perhaps,  lost  its  distinctive  character  as  an  import,  and  has  be- 
come subject  to  the  taxing  power  of  the  state;  but  while  remaining 
the  property  of  the  importer,  in  his  warehouse,  in  the  original  form  or 
package  in  which  it  was  imported,  a  tax  upon  it  is  too  plainly  a  duty 
on  imports  to  escape  the  prohibition  in  the  Constitution."  This  sen- 
tence contains  in  a  nutshell  the  whole  doctrine  upon  the  subject  of 
original  packages,  upon  which  so  formidable  a  structure  has  been  at- 
tempted to  be  erected  in  subsequent  cases.  Whether  the  decision 
would  have  been  the  same  if  the  original  packages  in  that  case,  instead 
of  being  bales  of  dry  goods  or  hogsheads,  barrels  or  tierces  of  liquors, 
had  been  so  minute  in  size  as  to  permit  of  their  sale  directly  to  con- 
sumers, may  admit  of  considerable  doubt.  Obviously  the  doctrine  of 
the  case  is  directly  applicable  only  to  those  large  packages  in  which 
from  time  immemorial  it  has  been  customary  to  import  goods  from 
foreign  countries.  It  is  safe  to  assume  that  it  did  not  occur  to  the 
Chief  Justice  that,  by  a  skilful  alteration  of  the  size  of  the  packages, 
the  decision  might  be  used  to  force  upon  a  reluctant  people  the  use 
of  articles  denounced  as  noxious  by  the  legislatures  of  the  several 
states.     *     *     * 

Most  pertinent  to  this  case,  and,  as  we  think,  covering  its  principle 
completely,  is  the  opinion  of  this  court  in  May  v.  New  Orleans,  178  U. 
S.  496,  44  L.  Ed.  1165,  20  Sup.  Ct.  976,  decided  at  the  last  term. 
This  involved  the  validity  of  certain  tax  assessments  made  by  the  city 
of  New  Orleans  upon  the  merchandise  and  stock  in  trade  of  the  plain- 
tiff, which  consisted  of  dry  goods  imported  from  foreign  countries. 
upon  which  duties  had  been  levied  by  and  paid  to  the  general  govern- 
ment. The  goods  were  put  up  and  sold  in  packages,  a  large  number  of 
such  package-  being  inclosed  in  wooden  cases  or  boxes  for  the  pur- 
es  of  importation.  Upon  arrival  at  Xew  Orleans  the  boxes  were 
opened,  the  packages  taken  out  and  sold  unbroken.  The  question  was 
whether  the  box  or  case  containing  these  packages,  or  the  packages 
themselves  were  the  original  packages  within  the  case  of  Brown  v. 
Maryland,  12  Wheat.  419,  6  L.  Ed.  678.  It  was  conceded  that,  so  long 
as  the  packages  remained  in  their  original  cases,  they  were  not  subject 
to  taxation,  but  the  court  held  that  this  immunity  ceased  as  soon  as  the 
boxes  were  opened.  As  stated  by  Mr.  Justice  Harlan  in  delivering  the 
opinion  of  the  ci  nil  (p.  508,  L-  Ed.  p.  11 


1048  THE  FEDERAL   GOVERNMENT  (Part  3 

"In  our  judgment,  the  'original  package'  in  the  present  case  was  the 
box  or  case  in  which  the  goods  imported  were  shipped,  and  when  the 
box  or  case  was  opened  for  the  sale  or  delivery  of  the  separate  parcels 
contained  in  it,  each  parcel  of  the  goods  lost  its  distinctive  character  as 
an  import,  and  became  property  subject  to  taxation  by  the  state  as 
other  like  property  situated  within  its  limits.  The  tax  here  in  question 
was  not  in  any  sense  a  tax  on  imports  nor  a  tax  for  the  privilege  of 
bringing  the  things  imported  into  the  state.  It  was  not  a  tax  on  the 
plaintiff's  goods  because  they  were  imported  from  another  country, 
but  because  at  the  time  of  the  assessment  they  were  in  the  market  for 
sale  in  separate  parcels  and  therefore  subject  to  be  taxed  as  like  prop- 
erty, in  the  same  condition,  that  had  its  origin  in  this  country.  We 
cannot  impute  to  the  framers  of  the  Constitution  a  purpose  to  make 
such  a  discrimination  in  favor  of  property  imported  from  other  coun- 
tries as  would  result  if  we  approved  the  views  pressed  upon  us  by  the 
plaintiffs.  When  their  goods  had  been  so  acted  upon  as  to  become  a 
part  of  the  general  mass  of  property  in  the  state  the  plaintiffs  stood, 
with  respect  to  liability  to  state  taxation,  upon  the  same  basis  of  equal- 
ity as  the  owners  of  like  property,  the  product  of  this  country;  the 
only  difference  being  that  the  importers  paid  a  duty  to  the  United 
States  for  the  privilege  of  importing  their  goods  into  this  country,  and 
of  selling  them  in  the  original  packages — a  duty  imposed  for  the  pur- 
pose of  raising  money  to  carry  on  the  operations  of  the  government, 
and,  in  many  instances,  with  the  intent  to  protect  the  industries  of  this 
country  against  foreign  competition." 

The  case  under  consideration  is  really  the  first  one  presenting  to  this 
court  distinctly  the  question  whether,  in  holding  that  the  state  cannot 
prohibit  the  sale  in  its  original  package  of  an  article  brought  from  an- 
other state,  the  size  of  the  package  is  material,  although  some  of  the 
expressions  in  the  License  Cases  seem  to  foreshadow  the  consequences 
likely  to  result  from  the  argument  of  the  defendant.  *  *  *  [Here 
follow  quotations  from  the  opinion  of  Catron,  J.,  5  How.  at  608,  12 
L.  Ed.  303,  and  from  Woodbury,  J.,  Id.  at  625,  12  L.  Ed.  311,  and 
also  a  discussion  of  various  state  cases  dealing  with  the  matter.] 

The  real  question  in  this  case  is  whether  the  size  of  the  package  in 
which  the  importation  is  actually  made  is  to  govern ;  or,  the  size  of 
the  package  in  which  bona  fide  transactions  are  carried  on  between  the 
manufacturer  and  the  wholesale  dealer  residing  in  different  states. 
We  hold  to  the  latter  view.  The  whole  theory  of  the  exemption  of  the 
original  package  from  the  operation  of  state  laws  is  based  upon  the 
idea  that  the  property  is  imported  in  the  ordinary  form  in  which,  from 
time  immemorial,  foreign  goods  have  been  brought  into  the  country. 
These  have  gone  at  once  into  the  hands  of  the  wholesale  dealers,  who 
have  been  in  the  habit  of  breaking  the  packages  and  distributing  their 
contents  among  the  several  retail  dealers  throughout  the  state.  It  was 
with  reference  to  this  method  of  doing  business  that  the  doctrine  of 
the  exemption  of  the  original  package  grew  up.     But  taking  the  words 


Ch.  18)  REGULATION    OF    COMMKKCE  1049 

"original  package"  in  their  literal  sense,  a  number  of  so-called  original 
package  manufactories  have  been  started  through  the  country,  whose 
business  it  is  to  manufacture  goods  fur  the  express  purpose  of  send- 
ing their  products  into  other  states  in  minute  packages,  that  may  at 
once  go  into  the  hands  of  the  retail  dealers  and  consumers,  and  thus 
bid  defiance  to  the  laws  of  the  state  against  their  importation  and  sale. 
In  all  the  cases  which  have  heretofore  arisen  in  this  court  the  packages 
were  of  such  size  as  to  exclude  the  idea  that  they  were  to  go  directly 
into  the  hands  of  the  consumer,  or  be  used  to  evade  the  police  regula- 
tions of  the  state  with  regard  to  the  particular  article.  No  doubt  the 
fact  that  cigarettes  are  actually  imported  in  a  certain  package  is  strong 
evidence  that  they  are  original  packages  within  the  meaning  of  the 
law ;  but  this  presumption  attaches  only  when  the  importation  is  made 
in  the  usual  manner  prevalent  among  honest  dealers,  and  in  a  bona  fide 
e  of  a  particular  size.  Without  undertaking  to  determine  what 
is  the  proper  size  of  an  original  package  in  each  case,  evidently  the 
doctrine  has  no  application  where  the  manufacturer  puts  up  the  pack- 
age with  the  express  intent  of  evading  the  laws  of  another  state,  and 
is  enabled  to  carry  out  his  purpose  by  the  facile  agency  of  an  express 
company  and  the  connivance  of  his  consignee.  This  court  has  repeat- 
edly held  that,  so  far  from  lending  its  authority  to  frauds  upon  the 
sanitary  laws  of  the  several  states,  we  are  bound  to  respect  such  laws 
and  to  aid  in  their  enforcement,  so  far  as  can  be  done  without  infring- 
ing upon  the  constitutional  rights  of  the  parties.  The  consequences  of 
our  adoption  of  defendant's  contention  would  be  far  reaching  and  dis- 
astrous. For  the  purpose  of  aiding  a  manufacturer  in  evading  the 
laws  of  a  sister  state,  we  should  be  compelled  to  recognize  anything 
as  an  original  package  of  beer  from  a  hogshead  to  a  vial ;  anything  as 
a  package  of  cigarettes  from  an  importer's  case  to  a  single  paper  box 
of  ten,  or  even  a  single  cigarette,  if  imported  separately  and  loosely; 
anything  from  a  bale  of  merchandise  to  a  single  ribbon,  provided  only 
the  dealer  sees  fit  to  purchase  his  stock  outside  the  state  and  import  it 
in  minute  quantities. 

There  could  hardly  be  stronger  evidence  of  fraud  than  is  shown  by 
the  facts  of  this  case.  *  *  *  And  yet  we  arc  told  that  each  one 
of  these  packages  is  an  original  package,  and  entitled  to  the  protection 
of  the  Constitution  of  the  United  States  as  a  separate  and  distinct  im- 
portation. We  can  only  look  upon  it  as  a  discreditable  subterfuge,  to 
which  this  court  ought  not  to  lend  its  countenance.1  If  there  be  any 
original  package  at  all  in  this  case  we  think  it  is  the  basket,  and  not 
the  paper  box.     *     *     * 

i  As  to  the  validity  of  attempts  to  evade  one  law  by  the  exercise  i>f  rights 
under  another,  see  Steamboat  Co.  V.  Livingston,  BTopk.  Ch.  (N.  Y.l  17i).  211, 
212  (1824);  Bhotwell  v.  Moore,  129  V.  8.  B90,  9  Sup.  Ot  882,  82  I..  Bd.  827 
(1880);  Williams  v.  Mississippi,  170  D.  S.  213,  222,  18  Sup.  CI  588,  a  I.  Ed 
1012  (1898);  Scottish  Insar.  Co.  v.  Bon-land,  196  D.  S.  611,  632,  26  Snp.  Ct 
345,  !:>  1..  Ed.  619  (1805);  and  the  dissenting  opinion  in  principal  ease,  179 
1     S    11  1  age  388,  -'l  Sup.  Ct  1 10.  45  1..  Ed.  224. 


1050  THE   FEDERAL   GOVERNMENT  (Parti'. 

Practically  the  only  argument  relied  upon  in  support  of  the  theory 
that  these  packages  of  ten  cigarettes  are  original  packages  is  derivable 
from  the  Revised  Statutes,  §  3392,  which  requires  that  manufacturers 
shall  put  up  all  cigarettes  made  by  or  for  them,  and  sold  or  removed 
for  consumption  or  use,  in  packages  containing  ten,  twenty,  fifty,  or 
one  hundred  cigarettes  each.  This,  however,  is  solely  for  the  purpose 
of  taxation — a  precaution  taken  for  the  better  enforcement  of  the  in- 
ternal revenue  law,  and  to  be  read  in  connection  with  section  3243. 
which  provides  that  "the  payment  of  any  tax  imposed  by  the  internal 
revenue  laws  for  carrying  on  any  trade  or  business  shall  not  be  held 
to  exempt  any  person  from  any  penalty  or  punishment  provided  by  the 
laws  of  any  state  for  carrying  on  the  same  within  such  state,  or  in  any 
manner  to  authorize  the  commencement  or  continuance  of  such  trade 
or  business  contrary  to  the  laws  of  such  state."     *     *     * 

Judgment  affirmed.2 

[White,  J.,  gave  a  brief  concurring  opinion.  Brewer,  J.,  with 
whom  concurred  Fuller,  C.  J.,  and  Shiras  and  Peckham,  JJ.,  gave 
a  dissenting  opinion.] 


INMAN  S.  S.  CO.  v.  TINKER  (1877)  94  U.  S.  238,  243-245,  24 
L.  Ed.  118,  Mr.  Justice  Swayne  (holding  invalid  a  New  York  statute 
imposing  a  fee  of  iy2  to  3  cents  a  ton,  according  to  their  registered 
tonnage,  upon  vessels  using  the  port  of  New  York): 

"  'No  state  shall,  without  the  consent  of  Congress,  lay  any  duty  of 
tonnage.' 1     *     *     * 

"Tonnage,  in  our  law,  is  a  vessel's  'internal  cubical  capacity  in  tons 
of  one  hundred  cubic  feet  each,  to  be  ascertained'  in  the  manner  pre- 
scribed by  Congress.  Act  of  May  6,  1864,  c.  83,  13  Stat.  pp.  70.  72 : 
Rev.  St.  U.  S.  p.  804,  §  4153  [U.  S.  Comp.  St.  1901,  p.  2812].  'Ton- 
nage duties  are  duties  upon  vessels  in  proportion  to  their  capacity.' 
Bouv.  Law  Diet.  'Tonnage.'  The  term  was  formerly  applied  to  mer- 
chandise. Cowel,  in  his  Law  Dictionary,  published. in  1708,  thus  de- 
fines it :  'Tonnage  (tonnagium)  is  a  custom  or  impost  paid  to  the  king 
for  merchandise  carried  out  or  brought  in. ships,  or  such  like  vessels, 
according  to  a  certain  rate  upon  every  ton,  and  of  this  you  may  read 
in  the  statutes  of  12  Edw.  IV,  c.  3;  6  Hen.  VIII,  c.  14,*  etc.  The 
vital  principle  of  such  a  tax  or  duty  is  that  it  is  imposed,  whatever  the 
subject,  solely  according  to  the  rule. of  weight,  either  as  to  the  capacity 
to  carry,  or  the  actual  weight  of  the  thing  itself. 

2  Accord:  Cook  v.  Marshall  do.,  196  U.  S.  261,  25  Sup.Ct.  233,  49  L.  Ed. 
471  (1905)  (cigarettes  shipped  loose  without  basket).     See  Purity  Extract  Co. 

v.  Lynch,  226  U.  S.  192,  200.  201,  33  Sup.  Ct.  44,  57  L.  Ed.  (1912)  (bottles 

in  a  case),  and  compare  MeDerniott  v.  Wisconsin,  post,  p.  1244  (scope  of  fed- 
eral regulation  not  limited  by  "original  package"  test). 

State  Inspection  of  Imports  and  Exports. — As  to  the  validity  of  state  in- 
spection laws  under  Const,  art.  I,  §  10,  par.  2,  see  Patapsco  Guano  Co.  v. 
Board  of  Agric,  post,  p.  1157,  and  notes. 

i  Const,  art.  I,  §  10,  par.  3. 


Ch.  18)  REGULATION    OF    COUMBIICB  1051 

"In  this  law  of  the  state  there  are  several  important  points  that 
must  not  be  overlooked.  The  charge  is  not  exacted  for  any  services 
rendered  or  offered  to  be  rendered.  If  the  vessel  enter  the  port  and 
immediately  lake  her  departure,  or  load  or  unload,  or  make  fast  to  any 
wharf,  either  of  these  things  disjunctively  brings. her  within  the  act, 
and  makes  her  liable  to  the  burden  prescribed. - 

"The  charge  is  applied  wholly  irrespective  of  the  ad  valorem  prin- 
ciple. If  cither  of  the  three  vessels  of  the  appellant  was  new  and 
making  her  first  voyage, .and  another  of  the  same  tonnage  was  making 
her  last  trip  before  being  broken  up,  and  the  former  were  of  many 
times  the  value  of  the  latter,  the  act  would  apply  the  same  procrus- 
ti ■an  rule  of  both.  The  rate  of  payment,  and  the  amount  to  be  paid, 
would,  in  both. cases,  be  the  same.     *     *     * 

"The  state,  in  passing  this  law  imposing  a  tonnage  duty,  has  exer- 
cised a  power  expressly  prohibited  to  it  by  the  Constitution.  In  that 
particular  the  law  is,  therefore,  void.  This  view  is  sustained  by  the 
rulings  of  this  court  in  the  State  Tonnage  Tax  Cases,  12  Wall.  204. 
20  L.  Ed.  370,  and  Cannon  v.  New  Orleans,  20  Wall.  577,  22. L.  Ed. 
417.  See  also  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31.  18  L.  Ed. 
749,  and  Peete  v.  Morgan,  19  Wall.  581,  22  L.  Ed.  201.  The  tax  im- 
posed is  not  merely  a  mode  of  measuring  the  compensation  to  be  paid. 
The  .answer  to  this  suggestion  is,  that  it  is  exacted  where  there  is 
nothing  to  be  paid  for,  and  has  no  reference  to  any  circumstance  in 
this  connection  but  the  tonnage  of  the  vessel  and  the  class  to  which  it 
belongs."8 

2  "A  duty  of  tonnage  within  the  meaning  of  the  Constitution  Is  a  charge 
upon  a  vessel,  according  to  Its  tonnage,  as  an  instrument  of  commerce,  for 
entering  or  leaving  a  port,  or  navigating  t)u>  public  waters  of  the  country: 
and  the  prohibition  was  designed  to  prevent  the  states  from  Imposing  hin- 
drances of  this  kind  to  commerce  carried  on  by  vessels."  — Field.  J.,  in  II use 
v.  Glover,  119  U.  S.  643,  549,  550,  7  Sup.  Ct  318,  316,  .SO  I..  Ed.  -)n7  0886). 
And  so  Miller,  J.,  In  Cannon  v.  New  Orleans,  20  Wall.  r>77,  581,  22  I,.  Ed.  117 
<|s7|i  :  "A  duty  or  tax  •  *  *  to  be  measured  by  the  capacity  of  the  ves- 
sel, and  *  *  *  in  its  essence  a  contribution  claimed  for  the  privilege  of 
arriving  and  departing  from  a  port  of  the  United  8 

'■>  Compensation  for  a  vessel's  use  of  various  beneficial  facilities  or  services 
may  be  measured  by  tonnage.  Transp.  Co.  v.  Parkersburg,  107  D.  8.  691,  - 
sup.  Ct  7:;u,  27  L.  Ed.  584  dss:;)  (wharfage);  Morgan's  S.  S.  Co.  v.  Louisiana 
Board  of  Health.  118  U.  s.  455,  (i  Sup.  Ct  mi,  30  !..  Ed.  2.".7  (1886)  (quaran- 
tine); Huse  v.  Glover,  119  U.  S.  543,  7  Sup.  Ct.  313,  30  L.  Ed.  487  <l-Mi)  (river 
lock  and  dam). 

In  State  Tonnage  Tax  Cases.  12  Wall.  204.  213,  214,  216  218,  225,  226,  20 

L.    Ed.  370  (1N71).  Cli d,  .1..   said   (holding   invalid   all   Alabama    tax  of  M    a 

ton    assessed    upon    certain   steamboats   owned    by    Alabama   citizens  and   em- 
pin> i'<i  exclusively  in  river  commerce  within  that  si 

.   levied   by  a  stale  upon   ships  and  vessels  owned  by  the  citizens  of 
..  based  on  a  valuation  of  the  perty,  are  not 

within  die  prohibition  of  the  Constitution,  but  it  is  equally  clear  and  unde- 
niable  that   taxes   levied  by  a   stale  upon  ships  and  vessels  as  Instruments 
of  commerce  and  navigation  are  within  that  clause  of  the  instrument   which 
Its  the  states   from   levying  any   duty   of  tonnage,   without   the   i 
'■ess;    and   it    makes   no  difference  Whether   the   ships  or   vessels   taxed 

belong  to  Hie  citizens  of  the  state  whli  I  tax  or  the  citizens  of  an- 

other  stale,   as   Hie   prohibition   Is  general,   withdrawing   altogether    from   the 


1052  THE   FEDERAL   GOVERNMENT  (Part  3 

states  the  power  to  lay  any  duty  of  tonnage  under  any  circumstances,  with- 
out tbe  consent  of  Congress.     *     *     * 

•The  attempt  is  made  to  show  that  the  legislature,  in  enacting  the  law  im- 
posing the  tax,  merely  referred  to  the  registered  tonnage  of  the  steamboats 
'as  a  way  or  mode  to  determine  and  ascertain  the  tax  to  be  assessed  on 
the  steamboats,  and  to  furnish  a  rule  or  rate  to  govern  the  assessors  in  the 
performance  of  their  duties.'  Suppose  that  could  be  admitted,  it  would  not 
have  much  tendency  to  strengthen  the  argument  for  the  defendant,  as  the 
suggestion  concedes  what  is  obvious  from  the  schedule,  that  the  taxes  are 
levied  without  any  regard  to  the  value  of  the  steamboats.  »  *  *  Taxes 
levied  under  an  enactment  which  directs  that  a  tax  shall  be  imposed  on  steam- 
boats  at  the  rate  of  one  dollar  per  ton  of  the  registered  tonnage  thereof,  and 
that  the  same  shall  be  assessed  and  collected  at  the  port  where  such  steam- 
boats are  registered,  cannot,  in  the  judgment  of  this  court,  be  held  to  be  a 
tax  on  the  steamboat  as  property.  On  the  contrary,  the  tax  is  just  what  the 
language  imports,  a  duty  of  tonnage,  which  is  made  even  plainer  when  it  comes 
to  be  considered  that  the  steamboats  are  not  to  be  taxed  at  all  unless  they 
are  'plying  in  the  navigable  waters  of  the  state,'  showing  to  a  demonstration 
that  it  is  as  instruments  of  commerce  and  not  as  property  that  they  are  re- 
quired to  contribute  to  the  revenues  of  the  state. 

"Such  a  provision  is  much  more  clearly  within  the  prohibition  in  question 
than  the  one  involved  in  a  recent  case  decided  by  this  court,  in  which  it  was 
held  that  a  statute  of  a  state  enacting  that  the  wardens  of  a  port  were  en- 
titled to  demand  and  receive,  in  addition  to  other  fees,  the  sum  of  five  dollars 
for  every  vessel  arriving  at  the  port,  whether  called  on  to  perform  any  serv- 
ice or  not,  was  both  a  regulation  of  commerce  and  a  duty  of  tonnage,  and  that 
as  such  it  was  unconstitutional  and  void.  Steamship  Co.  v.  Port  Wardens, 
6  Wall.  34,  IS  L.  Ed.  749  (1S67). 

"Speaking  of  the  same  prohibition,  the  Chief  Justice  said  in  that  case  that 
*  *  *  the  prohibition  upon  the  states  against  levying  duties  on  imports  or 
exports  would  be  ineffectual  if  it  did  not  also  extend  to  duties  on  the  ships 
which  serve  as  the  vehicles  of  conveyance,  which  was  doubtless  intended  by 
tbe  prohibition  of  any  duty  of  tonnage.  'It  was  not  only  a  pro  rata  tax  which 
was  prohibited,  but  any  duty  on  the  ship,  whether  a  fixed  sum  upon  its  whole 
tonnage,  or  a  sum  to  be  ascertained  by  comparing  the  amount  of  tonnage 
with  the  rate  of  duty.'     *     *     * 

"State  authority  *:o  tax  ships  and  vessels,  it  is  supposed  by  the  respondent, 
extends  to  all  cases  where  the  ship  or  vessel  is  not  employed  in  foreign  com- 
merce or  in  commerce  between  ports  or  places  in  different  states.  *  *  * 
Such  a  rule  as  that  assumed  by  the  respondent  would  incorporate  into  the 
Constitution  an  exception  which  it  does  not  contain.  Had  the  prohibition  in 
terms  applied  only  to  ships  and  vessels  employed  in  foreign  commerce  or  in 
commerce  among  the  states,  his  construction  would  be  right,  but  courts  of 
justice  cannot  add  any  new  provision  to  the  fundamental  law." 

are  Wiggins  Ferry  Co.  v.  East  St  Louis,  107  U.  S.  365,  370,  2  Sup.  Ct. 
257,  266.  27  L.  Ed.  419  (1SS3),  by  Woods,  J.  (upholding  a  license  fee  upon  a 
ferry  keeper  of  $100  a  year  for  each  ferry  boat  in  use):  "The  amount  of  the 
license  fee  is  not  graduated  by  the  tonnage  of  the  ferry  boats.  *  *  *  This, 
although  not  a  conclusive  circumstance,  is  one  of  the  tests  applied  to  deter- 
mine whether  a  tax  is  a  tax  on  tonnage  or  not." 

State  Imfort  Duties  Levied  with  Consent  of  Congress. — See  Const,  art 
I,  §  10,  par.  2.  Between  1790  and  1S23  small  import  duties  were  frequently 
permitted  by  Congress  to  be  levied  at  particular  ports  and  the  proceeds  ap- 
plied by  the  states  to  various  local  port  and  quarantine  purposes.  See,  e.  g., 
1  Stat.  184,  ISO,  243,  393,  425,  402,  403,  546;  2  Stat.  IS,  103,  152,  316,  357,  4S4, 
125,  0S3.  The  federal  Wilson  act  (see  In  re  Kahrer.  post, 
p.  1197)  now  permits  the  states  to  levy  regulative  taxes  upon  imported  liquor 
in  the  unsold  original  packages.  State  v.  De  Bary  &  Co.,  130  La.  1090,  I0t>5, 
3  affirmed  in  De  Bary  &  Co.  v.  Louisiana,  227  U.  S.  10S,. 
33  Sup.  Ct  239,  57  L.  Ed.  (1913). 


Ch.  18)  l:i.<.l  LATloN    uF   COIfMBBCI  1068 


SECTION    2.— INTERSTATE    AND    FOREIGN   COMMERCE: 
fERAL  CONCEPTIONS 


GIBBONS  v.  OGDEN. 
(Supreme  Court  of  Unlt<      3  1824.    9  Wheat  1,  6  h.  Ed.  28.) 

[Appeal1  from  Court  for  Trial  of  Impeachments  and  Correction  of 
Errors  of  New  York.  A  New  York  statute  granted  to  Livingston  and 
Fulton  the  exclusive  right  to  navigate  the  waters  of  the  state  by  steam- 
boats for  a  period  of  years,  and  by  assignment  Ogden  secured  the 
right  to  navigate  between  New  York  City  and  places  in  New  Jersey. 
Ogden  secured  an  injunction  in  the  state  court  against  the  violation  of 
this  right  by  Gibbons,  who  was  using,  in  navigation  between  New 
York  and  New  Jersey,  two  steamboats  enrolled  and  licensed  in  the 
coasting  trade  under  the  act  of  Congress  of  1793  (1  Stat.  305,  c.  8). 
From  an  affirmance  of  this  decree  the  case  was  brought  here.] 

Mr.  Chief  Justice  Marshall.  The  appellant  contends  that  this 
decree  is  erroneous,  because  the  laws  which  purport  to  give  the  exclu- 
sive privilege.it  sustains  are  repugnant  to  the  Constitution  and  laws  of 
the  United  States.  *  *  *  The  words  are:  "Congress  shall  have 
power  to  regulate  commerce  with  foreign  nations,  and  among  the  sev- 
eral states,  and  with  the  Indian  tribes."  The  subject  to  be  regulated 
is  commerce ;  and  our  Constitution  being,  as  was  aptly  said  at  the  bar, 
one  of  enumeration,  and  not  of  definition, ,  to  ascertain  the  extent  of 
the  power,  it  becomes  necessary  to  settle  the  meaning  of  the  word. 
The  counsel  for  the  appellee  would  limit  it  to  traffic,  to  buy;-. 
selling,  or  the  interchange  of  commodities,  and  do  not  admit  that  it 
comprehends  navigation.  This  would  restrict  a  general  term,  appli- 
cable to  many  objects,  to  one  of  its  significations.  Commerce,  un- 
doubtedly, is  traffic,  but  it  is  something  more, — it  is  intercourse.  It 
describes  the  commercial  intercourse-  between  nations,  and  parts  of 

i  This  statement  in  the  oUicial  report.  9  Wheat.  1.  6   I  eems  er- 

:  The  statute  then  in  force  authorized  onlj  mi  state 

courts.     1  Stat  86,  c.  20,  S  26;    Verden  i    Coleman,  22 
8SG  (I860),     in  8  <  urt is.  Decls.  U.  s.  Sup.  Ct  l.  the  procedure  is  sia; 
writ  of  i 

-  Must  Interstate  Intercourse  be  conducted  for  a  commercial  purpi.se  In  or- 
der to  be  "commerce"  within  the  ■  Ion? 

meres    •    •    •    comprehi  w  urse  for  the  purposes  of  trade 

in  any  and  all  its  forms,  including  th<   :  and  ex 

change  of  commodities." — Wclton  v.   Missouri,  \n    D.  S.  :  ■  L.  Ed 

317  (1875),  by  Field,  3. 

"Transportation  for  others,  as  an  Indepi  odent  business,  Is  commerce,  Irrc- 
of  the  purpose  to  -  which  the  owi 

ttTt.iin   with    regard  to  them  after   thej   shall  have  been  delivered."-- 


1054  THE  FEDERAL   GOVERNMENT  (Part  3 

nations,  in  all  its  brandies,  and  is  regulated  by  prescribing  rules  for 
carrying  on  that  intercouse.  The  mind  can  scarcely  conceive  a  sys- 
tem for  regulating  commerce  between  nations  which  shall  exclude  all 
laws  concerning  navigation,  which  shall  be  silent  on  the  admission  of 
the  vessels  of  the  one  nation  into  the  ports  of  the  other,  and  be  con- 
fined to  prescribing  rules  for  the  conduct  of  individuals,  in  the  actual 
employment  of  buying  and  selling,  ,or  of  barter. 

If  commerce  does  not  include  navigation,  the  government  of  the 
Union  has  no  direct  power  over  that  subject,  and  can  make  no  law 
prescribing  what  shall  .constitute  American  vessels,  or  requiring  that 
they  shall  be  navigated  by  American  seamen.  Yet  this  power  has  been 
exercised  from  the  commencement  of  the  government,  has  been  exer- 
cised with  the  consent  of  all,  and  has  been  understood  by  all  to  be  a 
commercial  regulation.  All  America  understands,  and  has  uniformly 
understood,  the  word  "commerce"  to  comprehend  navigation.  It  was 
so  understood,  and  must  have  been  so  understood,  when  the  Consti- 
tution was  framed.  The  power  over  commerce,  including  navigation, 
was  one  of  the  primary  objects  for  which  the  people  of  America 
adopted, their  government,  and  must  have  been  contemplated  in  form- 
ing it.  The  convention  must  have  used  the  word  in  that  sense,  because 
all  have  understood  it  in  that  sense;  and  the  attempt  to  restrict  it 
comes  too  late. 

If  the  opinion  that  "commerce,"  as  the  word  is  used  in  the  Constitu- 
tion, comprehends  navigation  also,  requires  any  additional  confirma- 
tion, that  additional  confirmation  is,  we  think,  furnished  by  the  words 
of  the  instrument  itself.  It  is  a  rule  of  construction  acknowledged  by 
all,  that  the  exceptions  from  a  power  mark  its  extent;  for  it  would  be 
absurd,  as  well  as  useless,  to  except  from  a  granted  power  that  which 
was  not  granted, — that  which  the  words  of  the  grant  could  not  com- 
prehend. If,  then,  there  are  in  the  Constitution  plain  exceptions  from 
the  power  over  navigation,  plain  inhibitions  to  the  exercise  of  that 

v.  K.  C.  Ry.,  187  U.  S.  617,  610.  23  Sup.  Ct  214,  215  (47  L.  Ed.  333)  (1003),  by 
Holmes,  J. 

Referring  to  travel,  largely  on  foot,  over  an  interstate  bridge,  it  was  said 
ington  Bdg.  Co.  v.  Kentucky,  154  U.  S.  204,  218,  210,  14  Sup.  Ct  10S7, 

12,  38  L-  Ed.  062  (1S94),  by  Brown,  J.:  "If  it  be  commerce  to  send  goods 
from  *  «  *  Ohio  to  *  *  *  Kentucky,  it  Is  equally  such  *  *  *  to 
travel  in  person  from  Cincinnati  to  Covington.  *  »  *  The  thousands  of 
people  who  daily  pass  and  repass  over  this  bridge  may  be  as  truly  said  to  be 
engaged  in  commerce  as  if  they  were  shipping  cargoes  of  merchandise  from 
New  York  to  Liverpool." 

In  Francis  v.  U.  S.,  188  U.  S.  375,  377,  23  Sup.  Ct.  334,  335,  47  L.  Ed.  508 
(1003),  Holmes,  J.,  said:  "The  question  is  suggested  whether  the  carriage  of 
a  paper  of  any  sort  by  its  owner  or  the  owner's  servant,  properly  so  called, 
with  no  view  of  a  later  change  of  possession,  can  be  commerce,  even  when 
the  carriage  is  in  aid  of  some  business  or  traffic."  See  Hipolite  Egg  Co.  v. 
United  States,  220  U.  S.  45,  31  Sup.  Ct.  364,  55  L.  Ed.  364  (1911). 

See,  also,  Adair  v.  U.  S.,  20S  U.  S.  161,  176,  177,  28  Sup.  Ct.  277,  52  L.  Ed. 
436.  13  Ann.  Cas.  704  (1908) :  TJ.  S.  v.  Westman.  1S2  Fed.  1017  (1910) ;  and 
Hoke  v.  United  States,  post,  p.  1234,  note  2;  the  two  latter  upholding  the  fed- 
oral  White  Slave  Act  forbidding  the  transportation  of  women  across  a  state 
line  for  immoral  purposes. 


Ch.  18)  REGULATION    f>F    COMHBBCB  1055 

power  in  a  particular  way,  it  is  a  proof  that  those  who  made  these  ex- 
ceptions, and  prescribed  these  inhibitions,  understood  the  power  to 
which  they  applied  as  being  granted. 

The  9th  section  of  the  1st  article  declares  that  "no  preference  >liall 
be  given,  by  any  regulation  of  commerce  or  revenue,  to  the  ports  of 
one  state  over  those  of  another."  This  clause  cannot  be  understood 
as  applicable  to  those  laws  only  which  are  passed  for  the  purposes  of 
revenue,  because  it  is  expressly  applied  to  commercial. regulations ;  and 
the  most  obvious  preference  which  can  be  given  to  one  port  over  an- 
other, in  regulating  commerce,  relates  to  navigation.  But  the. subse- 
quent part  of  the  sentence  is  still  more  explicit.  It  is,  "nor  shall  ves- 
sels bound  to  or  from  one  state, .be  obliged  to  enter,  clear,  or  pay  du- 
ties in  another."    These  words  have  a  direct  reference  to  navigation. 

The  universally  acknowledged  power  of  the  government  to  impose 
embargoes3  must  also  be  considered  as  showing  that  all  America  is 
united  in  that  construction  which  comprehends  navigation  in  the  word 
"commerce."  Gentlemen  have  said,  in. argument,  that  this  is  a  branch 
of  the  war-making  power,  and  that  an  embargo  is  an  instrument  of 
war,  not  a  regulation  of  trade.  That  it  may  be,  and  often  is,  used  as 
an  instrument  of  war,  cannot  be  denied.  An  embargo  may  be  imposed 
for  the  purpose  of  facilitating  the  equipment  or  manning  of  a  fleet,  or 
for  the  purpose  of  concealing  the  progress  of  an  expedition  preparing 
to  sail  from  a  particular  port.  In  these,  and  in  similar  cases,  it  is  a 
military  instrument,  and  partakes  of  the  nature  of  war.  But  all  em- 
bargoes are  not  of  .this  description.  They  are  sometimes  resorted  to 
without  a  view  to  war,  and  with  a  single  view  to  commerce.  In  such 
case  an  embargo  is  no  more  a  war  measure  than  a  merchantman  is  a 
ship  of  war,  because  both  are  vessels  which  navigate  the  ocean  with 
sails  and  seamen.     *     *     * 

The  word  used  in  the  Constitution,  then,  comprehends,  and  ha.s 
been  always  understood  to  comprehend,  navigation  within  its  meaning; 
and  a  power  to  regulate  navigation  is  as  expressly  granted  as  if  that 
term  had  been  added  to  the  word  "commerce." 

To  what  commerce  does  this  power  extend?  The  Constitution  in- 
forms us,  to  commerce  "with  foreign  nations,  and  among  the  several 
states,  and  with  the  Indian  tribes."  It  has,  we  believe,  been  univer 
sally  admitted  that  these  words  comprehend  every  species  of  commer- 
cial intercourse  between  the  United  States  and  foreign  nations.  No 
sort  of  trade  can  be  carried  on  between  this  country  and  any  other  to 
which  this  power  does  not  extend.  It  has  been  truly  said. that  com- 
merce, as  the  word  is  used  in  the  Constitution,  is  a  unit,  every  part  of 
which  is  indicated  by. the  term.     If  this  be  the  admitted  meaning  of  the 

•  An  embargo  la  constitutional    u.  S.  v.  r.ris  William,  2  Hall,  L. 
Fed.  Cas.  No.  16,700  (1808);   U.  S.  v.  Marigold,  0  How.  600,  506,  18  L  Ed.  257 
Q£50)  (semble).     So  Ling  So   Fan  v.  D.  S.,  218  r.  S.  302,  33   Sop.  O 
L.   Ed.   1049,  30  T..    R.  A.  (N.  S.)  117G  U'JIO)  (prohibiting  export  Of  Bill 
from  Philippines). 


1056  THE  FEDERAL  GOVERNMENT  (Part  3 

word,  in  its  application  to  foreign  nations,  it  must  carry  the  same 
meaning  throughout  the  sentence,  and  remain  a  unit,  unless  there  be 
some  plain  intelligible  cause  which  alters  it. 

The  subject  to  which  the  power  is  next  applied  is  to  commerce 
"among  the  several  States."  The  word  "among"  means  intermingled 
with.  A  thing  which  is  among  .others  is  intermingled  with  them. 
Commerce  among  the  states  cannot  stop  at  the  external  boundary-line 
of  each  state,  but  may  be  introduced  into  the  interior.  It  is  not  in- 
tended, to  say  that  these  words  comprehend  that  commerce  which  is 
completely  internal,  which  is  carried  on  between  man  and  man  in  a 
state,  or  between  different  parts  of  the  same  state,  and  which  does  not 
extend  to  or  affect  other  states.  Such  a  power  would  be  inconvenient 
and  is  certainly  unnecessary. 

Comprehensive  as  the  word  "among"  is,  it  may  very  properly  be  re- 
stricted to  that  commerce  which  concerns  more  states  than  one.  The 
phrase  is  not  one  which  would  probably  have  been  selected  to  indicate 
the  completely  interior  traffic  of  a  state,  because  it  is  not  an  apt  phrase 
for  that .  purpose ;  and  the  enumeration  of  the  particular  classes  of 
commerce  to  which  the  power  was  to  be  extended  would  not  have 
been  made  had  the  intention  been  to  extend  the  power  to  every  de- 
scription. The  enumeration  presupposes  something  not  enumerated; 
and  that  something,  if  we  regard  the  language  or  the  subject  of  the 
sentence,  must  be  the  exclusively  internal  commerce  of  a  state.  The 
genius  and  character. of  the  whole  government  seem  to  be,  that  its  ac- 
tion is  to  be  applied  to  all  the  external  concerns  of  the  nation,  and  to 
those  internal  concerns  which  affect  the  states  generally ;  but  not  to 
those  which  are  completely  within  a  particular  state,  which  do  not  af- 
fect other  states,  and. with  which  it  is  not  necessary  to  interfere  for 
the  purpose  of  executing  some  of  the  general  powers  of  the  govern- 
ment. The  completely  internal  commerce  of  a  state,  then,  may  be 
considered  as  reserved  for  the  state  itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power  of 
Congress  does  not  stop  at  the  jurisdictional  lines  of  the  several  states. 
It  would  be  a  very  useless  power  if  it  could  not  pass  those  lines.  The 
commerce  of  the  United  States  with  foreign  nations  is  that  of  the 
whole  United  States.  Every  district  has  a  right  to  participate  in  it. 
The  deep  streams  which  penetrate  our  country  in  every  direction  pass 
through  the  interior  of  almost  every  state  in  the  Union,  and  furnish 
the  means  of  exercising. this  right.  If  Congress  has  the  power  to  reg- 
ulate it,  that  power  must  be  exercised  whenever  the  subject  exists.  If 
it  exists  within  the  states,  if  a  foreign  voyage  may  commence  or  ter- 
minate at  .a  port  within  a  state,  then  the  power  of  Congress  may  be 
exercised  within  a  state. 

This  principle  is,  if  possible,  still  more  clear  when  applied  to  com- 
merce "among  the  several  states."  They  either  join  each  other,  in 
which  case  they  are  separated  by  a  mathematical  line,  or  they  are  re- 
mote from  each  other,  in  which  case  other  states  lie  between  them. 


Ch.  18)  Ki;<;n.ATio.\  of  COMHBBCB  1067 

What  is  commerce  "among"  them ;  and  how  is  it  to  be  conducted  ? 
Can  a  trading  expedition  between  two  adjoining  states  commence  and 
terminate  outside  of  each?  And  if  the  trading  intercourse  be  between 
two  states  remote  from  each  other,  must  it  not  commence  in  one,  ter- 
minate in  the  other,  and  probably  pass  through  a  third?  Commerce 
among  the  states  must,  of  necessity,  be  commerce  with  the  states.  In 
the  regulation  of  trade  with  the  Indian  tiibes,  the  action  of  the  law, 
especially  when  the  Constitution  was  made,  was  chiefly  within  a  state. 
The  power  of  Congress,  then,  whatever  it  may  be,  must  be  exercised 
within  the  territorial  juisdiction  of  the  several  states.  The  sense  of 
the  nation  on  this  subject  is  unequivocally  manifested  by  the  provi- 
sions made  in  the  laws  for  transporting  goods  by  land  between  Balti- 
more and  Providence,  between  New  York  and  Philadelphia,  and  be- 
tween Philadelphia  and  Baltimore.4 

We  are  now  arrived  at  the  inquiry.  What  is  this  power?  It  is  the 
power  to  regulate;  that  is,  to  prescribe  the  rule  by  which  commerce  is 
to  be  governed.  This  power,  like  all  others  vested  in  Congress,  is 
complete  in  itself,  may  be  exercised  to  its  utmost  extent,  and  acknowl- 
edges no  limitations  other  than  are  prescribed  in  the  Constitution. 
These  are  expressed  in  plain  terms,  and  do  not  affect  the  questions 
which  arise  in  this  case,  or  which  have  been  discussed  at  the  bar.  If. 
as. has  always  been  understood,  the  sovereignty  of  Congress,  though 
limited  to  specified  objects,  is  plenary  as  to  those  objects,  the  power 
over  commerce  with  foreign  nations,  and  among  the  several  states,  is 
vested  in  Congress  as  absolutely  as  it  would  be  in  a  single  government. 
having  in  its  constitution  the  same  restrictions  on  the  exercise  of  the 
power  as  are  found  in  the  Constitution  of  the  United  States.  *  *  * 
The  power  of  Congress,  then,  comprehends  navigation  within  the  lim- 
its of  every  state  in  the  Union,  so  far  as  that  navigation  may  be,  in 
any  manner,  connected  with  "commerce .  with  foreign  nations,  or 
among  the  several  states,  or  with  the  Indian  tribes."  It  may,  of  con- 
sequence, pass  the  jurisdictional  line  of  New  York,  and  act  upon  the 
very. waters  to  which  the  prohibition  now  under  consideration  applies. 

But  it  has  been  urged  with  great  earnestness  that,  although  the 
power  of  Congress  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  states,  be  coextensive  with  the  subject  itself,  and 
have  no  other  limits  than  are  prescribed  in  the  Constitution,  yet  the 
states  may  severally  exercise  the  same  power  within  their  respective 
jurisdictions.  In  support  of  this  argument,  it  is  said  that  thi 
sessed  it  as  an  inseparable  attribute  of  sovereignty  before  the  forma- 
tion of  the  Constitution,  and  still  retain  it,  except  so  far  as  they  have 
surrendered  it  by  that  instrument ;    that  this   principle  results   from 

•  This  probably  refers  to  early  federal  Btatutee  authorising  n  drawback  ol 
duties  "ii  goods  Imported  al  one  i  .  carried  overland,  and  ea 

Ht  the  otber.    See,  e.  g.,  1  Stat  886,  c.  22,  S  TO.    "Baltimore  and  Proi 
in  Marshall's  opinion  should  read  "Boston  and  Provides 
Hall  Const.l. — (W 


1058  THE   FEDERAL   GOVERNMENT  (Part  3 

the  nature  of  the  government,  and  is  secured  by  the  tenth  amend- 
ment; that  an  affirmative  grant  of  power  is  not  exclusive,  unless  in  its 
own  nature  it  be  such  that  the  continued  exercise  of  it  by  the  former 
possessor  is  inconsistent  with  the  grant,  and  that  this  is  not  of  that 
description.  The  appellant,  conceding  these  postulates,  except  the  last, 
contends  that  full  power  to  regulate  a  particular  subject  implies  the 
whole  power,  and  leaves  no  residuum ;  that  a  grant  of  the  whole  is 
incompatible  with  the  existence  of  a  right  in  another  to  any  part  of  it. 
Both  parties  have  appealed  to  the  Constitution,  to  legislative  acts,  and 
judicial  decisions;  and  have  drawn  arguments  from  all  these  sources 
to  support  and  illustrate  the  propositions  they  respectively  maintain. 

The  grant  of  the  power  to  lay  and  collect  taxes  is,  like  the  power  to 
regulate  commerce,  made  in  general  terms,  and  has  never  been  under- 
stood to  interfere  with  the  exercise  of  the  same  power  by  the  states ; 
and  hence  has  been  drawn. an  argument  which  has  been  applied  to  the 
question  under  consideration.  But  the  two  grants  are  not,  it  is  con- 
ceived, similar  in  their  terms  or  their  nature.  Although  many  of  the 
powers  formerly  exercised  by  the  states  are  transferred  to  the  gov- 
ernment of  the  Union,  yet  the  state  governments  remain,  and  consti- 
tute a  most  important  part  of  our  system.  The  power  of  taxation  is 
indispensable  to  their  existence,  and  is  a  power  which,  in  its  own  na- 
ture, is  capable  of  residing  in,  and  being  exercised  by,  different  au- 
thorities at  the  same  time.  We  are  accustomed  to  see  it  placed,  for 
different  purposes  in  different  hands.  Taxation  is  the  simple  opera- 
tion of  taking  small  portions  from  a  perpetually  accumulating  mass, 
susceptible  of  almost  infinite  division ;  and  a  power  in  one  to  take 
what  is  necessary  for  certain  purposes,  is  not  in  its  nature  incompati- 
ble with  a  power  in  another  to  take  what  is  necessary  for  other  pur- 
poses. Congress  is  authorized  to  lay  and  collect  taxes,  etc.,  to  pay  the 
debts,  and  provide  for  the  common  defence  and  general  welfare  of  the 
United  States.  This  does  not  interfere  with  the  power  of  the  states 
to  tax  for  the  support  of  their  own  governments ;  nor  is  the  exercise 
of  that  power  by  the  states  an  exercise  of  any  portion  of  the  power 
that  is  granted  to  the  United  States.  In  imposing  taxes  for  state  pur- 
poses, they  are  not  doing  what  Congress  is  empowered  to  do.  Con- 
gress is  not  empowered  to  tax  for  those  purposes  which  are  within  the 
exclusive  province  of  the  states.  When,  then,  each  government  exer- 
cises the  power  of  taxation,  neither  is  exercising  the  power  of  the 
other.  But  when  a  state  proceeds  to  regulate  commerce  with  foreign 
nations,  or  among  the  several  states,  it  is  exercising  the  very  power 
that  is  granted  to  Congress,  and  is  doing  the  very  thing  which  Con- 
gress is  authorized  to  do.  There  is  no  analogy,  then,  between  the  pow- 
er of  taxation  and  the  power  of  regulating  commerce. 

In  discussing  the  question  whether  this  power  is  still  in  the  states, 
m  the  case  under  consideration,  we  may  dismiss  from  it  the  inquiry, 
whether  it  is  surrendered  by  the  mere  grant  to  Congress,  or  is  retained 
jntil  Congress  shall  exercise  the  power.    We  may  dismiss  that  inquiry 


CI).  IS)  REGULATION    OF    COMMBEC1  L069 

because  it  has  been  exercised,  and  the  regulations  which  Congress 
deemed  it  proper  to  make  are  now  in  full  operation.  The  sole  ques- 
tion is,  can  a  state  regulate  commerce  with  foreign  nations  and  among 
the  states  while  Congress  is  regulating  it?     *     *     * 

But  the  inspection  laws  are  said  to  be  regulations  of  commerce,  and 
are  certainly  recognized  in  the  Constitution  as  being  passed  in  the 
exercise  of  a  power  remaining  with  the  states.  That  inspection  laws 
may  have  a  remote  and  considerable  influence  on  commerce,  will  not  be 
denied ;  but  that  a  power  to  regulate  commerce  is  the  source  from 
which  the  right  to  pass  them  is  derived,  cannot  be  admitted.  The  ob- 
ject of  inspection  laws  is  to  improve  the  quality  of  articles  produced 
by  the  labor  of  a  country,  to  fit  them  for  exportation,  or  it  may  be  for 
domestic  use.  They  act  upon  the  subject  before  it  becomes  an  article 
of  foreign  commerce,  or  of  commerce  among  the  slates,'  and  prepare  it 
for  that  purpose.  They  form  a  portion  of  that  immense  mass  of  legis- 
lation which  embraces  everything  within  the  territory  of  a  state  not 
surrendered  to  a  general  government ;  all  which  can  be  most  advanta- 
geously exercised  by  the  states  themselves.  Inspection  laws,  quaran- 
tine laws,  health  laws  of  every  description,  as  well  as  laws  for  regu- 
lating the  internal  commerce  of  a  state,  and  those  which  respect  turn- 
pike roads,  ferries,  etc.,  are  component  parts  of  this  mass. 

No  direct  general  power  over  these  objects  is  granted  to  Congress, 
and  consequently  they  remain  subject  to  state  legislation.  If  the  legis- 
lative power  of  the  Union  can  reach  them  it  must  be  for  national  pur- 
poses ;  it  must  be  where  the  power  is  expressly  given  for  a  special 
purpose,  or  is  clearly  incidental  to  some  power  which  is  expressly 
given.  It  is  obvious  that  the  government  of  the  Union,  in  the  exer- 
cise of  its  express  powers, — that,  for  example,  of  regulating  commerce 
with  foreign  nations  and  among  the  states, — may  use  means  that  may 
also  be  employed  by  a  state  in  the  exercise  of  its  acknowledged  pow- 
ers;  that,  for  example,  of  regulating  commerce  within  the  state.  If 
Congress  license  vessels  to  sail  from  one  port  to  another  in  the  same 
state,  the  act  is  supposed  to  be  necessarily  incidental  to  the  power  ex- 
pressly granted  to  Congress,  and  implies  no  claim  of  a  direct  power 
to  regulate  the  purely  internal  commerce  of  a  state,  or  to  act  directly 
on  its  system  of  police.  So  if  a  state,  in  passing  laws  on  subjects  ac- 
knowledged to  be  within  its  control,  and  with  a  view  to  those  subjects, 
shall  adopt  a  measure  of  the  same  character  with  one  which  Congress 
may  adopt,  it  does  not  derive  its  authority  from  the  particular  power 
which  has  been  granted,  but  from  some  other  which  remains  with  the 
state,  and  may  be  executed  by  the  same  means.  All  experience  shows 
that  the  same  measures,  or  measures  scarcely  distinguishable  from 
each  other,  may  flow  from  distinct  powers;  hut  this  does  not  prove 
that  the  powers  themselves  are  identical.  Although  the  means  used  in 
their  execution  may  sometimes  approach  each  other  so  nearly  as  to  be 
confounded,  there  are  other  situations  in  which  they  are  sufficiently 
distinct   to  establish  their  individuality. 


1060  THE   FEDERAL   GOVERNMENT  (Part  3 

In  our  complex  system,  presenting  the  rare  and  difficult  scheme  of 
one  general  government  whose  action  extends  over  the  whole,  but 
which  possesses  only  certain  enumerated  powers ;  and  of  numerous 
state  governments,  which  retain  and  exercise  all  powers  not  delegated 
to  the  Union,  contests  respecting  power  must  arise.  Were  it  even 
otherwise,  the  measures  taken  by  the  respective  governments  to  exe- 
cute their  acknowledged  powers  would  often  be  of  the  same  descrip- 
tion, and  might  sometimes  interfere.  This,  however,  does  not  prove 
that  the  one  is  exercising,  or  has  a  right  to  exercise,  the  powers  of  the 
other.     *     *     * 

It  has  been  contended  by  the  counsel  for  the  appellant  that,  as  the 
word  to  "regulate"  implies  in  its  nature  full  power  over  the  thing  to 
be  regulated,  it  excludes,  necessarily,  the  action  of  all  others  that  would 
perform  the  same  operation  on  the  same  thing.  That  regulation  is 
designed  for  the  entire  result,  applying  to  those  parts  which  remain 
as  they  were,  as  well  as  to  those  which  are  altered.  It  produces  a  uni- 
form whole,  which  is  as  much  disturbed  and  deranged  by  changing 
what  the  regulating  power  designs  to  leave  untouched,  as  that  on 
which  it  has  operated.  There  is  great  force  in  this  argument,  and  the 
court  is  not  satisfied  that  it  has  been  refuted.     *     *     * 

It  has  been  said  that  the  Constitution  does  not  confer  the  right  of 
intercourse  between  state  and  state.  That  right  derives  its  source 
from  those  laws  whose  authority  is  acknowledged  by  civilized  man 
throughout  the  world.  This  is  true.  The  Constitution  found  it  an 
existing  right,  and  gave  to  Congress  the  power  to  regulate  it.  In  the 
exercise  of  this  power,  Congress  has  passed  "An  act  for  enrolling  or 
licensing  ships  or  vessels  to  be  employed  in  the  coasting  trade  and  fish- 
eries, and  for  regulating  the  same."  The  counsel  for  the  respondent 
contend  that  this  act  does  not  give  the  right  to  sail  from  port  to  port, 
but  confines  itself  to  regulating  a  pre-existing  right,  so  far  only  as  to 
confer  certain  privileges  on  enrolled  and  licensed  vessels  in  its  exer- 
cise. It  will  at  once  occur  that  when  a  legislature  attaches  certain 
privileges  and  exemptions  to  the  exercise  of  a  right  over  which  its  con- 
trol is  absolute,  the  law  must  imply  a  power  to  exercise  the  right.  The 
privileges  are  gone  if  the  right  itself  be  annihilated.     *     *     * 

The  fourth  section  directs  the  proper  officer  to  grant  to  a  vessel 
qualified  to  receive  it,  "a  license  for  carrying  on  the  coasting  trade ;" 
and  prescribes  its  form.  *  *  *  The  word  "license"  means  permis- 
sion, or  authority;  and  a  license  to  do  any  particular  thing  is  a  per- 
mission or  authority  to  do  that  thing;  and  if  granted  by  a  person  hav- 
ing power  to  grant  it,  transfers  to  the  grantee  the  right  to  do  what- 
ever it  purports  to  authorize.  It  certainly  transfers  to  him  all  the 
right  which  the  grantor  can  transfer  to  do  what  is  within  the  terms  of 
the  license.5     *     *     * 

»  As  to  the  effect  of  so-called  federal  "licenses'*  where  Congress  Is  without 
power  to  regulate  the  subject  matter,  see  License  Tax  Cases,  ante,  p.  1024. 


Ch.  18)  REGULATION    OF   COMMERCE  1061 

Llut  if  the  license  be  a  permit  to  carry  on  the  coasting  trade,  the  re- 
spondent denies  that  these  boats  were  engaged  in  that  trade,  or  that 
the  decree  under  consideration  has  restrained  them  from  prosecuting  it. 
The  boats  of  the  appellant  were,  we  are  told,  employed  in  the  trans- 
portation of  passengers,  and  this  is  no  part  of  that  commerce  which 
Congress  may  regulate.  If,  as  our  whole  course  of  legislation  on  this 
subject  shows,  the  power  of  Congress  has  been  universally  understood 
in  America  to  comprehend  navigation,  it  is  a  very  persuasive,  if  ii"t 
a  conclusive,  argument  to  prove  that  the  construction  is  correct ;  and 
if  it  be  correct,  no  clear  distinction  is  perceived  between  the  power  to 
regulate  vessels  employed  in  transporting  men  for  hire,  and  property 
for  hire.  The  subject  is  transferred  to  Congress,  and  no  exception  to 
the  grant  can  be  admitted  which  is  not  proved  by  the  words  or  the  na- 
ture of  the  thing.  *  *  *  [The  law  of  New  York  was  held  to 
be  inconsistent  with  the  license  granted  by  act  of  Congress.] 

Judgment  reversed.6 

[Johnson,  J.,  concurred  upon  the  ground  that  the  power  of  Con- 
gress to  regulate  commerce  was  exclusive,  and  that  the  licensing  act 
did  not  affect  the  case.] 

o  Accord:  Pensacola  Telegraph  Co.  v.  W.  U.  Telegraph  Co.,  96  U.  S.  1.  21 
L.  Ed  708  (187S)  (state  telegraph  monopoly  ine 

Commerce   wiih   Indian-  Tbibes.     S  .     is.  v.    Holllday,  .".  Wall.  407,  1JB 
I..  Ed.  1S2  (I860);    Dick  v.  U.  S.,  208  U.  S.  340,  28  Sup.  Ct.  899,  52  1-  I 
(1908). 

"If  commerce,  or  traffic,  or  intercourse,  is  carried  on  with  an  Indian  tribe. 
or  with  a  member  of  such  tribe,  it  is  subject  to  be  regulated  by  Congress,  al- 
though within  the  limits  of  a  state.  The  locality  of  the  traffiV  can  have  noth 
Ing  to  do  with  the  power.  The  ri^ln  t"  exercise  it  in  reference  to  any 
tribe,  or  any  person  who  is  a  member  of  such  tribe,  Is  absolute,  without 
reference  to  the  locality  of  the  traffic,  or  the  locality  of  the  tribe,  or  ol  the 
member  of  the  tribe  with  whom  it  is  carried  on.  It  is  not  however.  Intended 
by  these  remarks  to  imply  that  this  clause  of  the  Constitution  authorizes 
Congress  to  regulate  any  other  commerce,  originated  and  ended  within  the 
limits  of  a  single  state,  than  commerce  with  the  Indian  tribes." — U.  S.  v.  Hol- 
llday,  3  Wall,  at  page  41S.  by  Miller.  J. 

As   to   how  long  this  federal   personal    jurisdiction   over  Indians   mav  con- 
tinue, see  Re  Heff,  197  U.  S.    iss,  25  Sup.  Ct.  506,  -10  I..   Ed.  B48  (1905),  and 
D.  S.  v.  Celestine.  215  U.  S.  27S,  30  gup.  Ct  93,  54  I..  Ed.  195  (1909).     As  to 
the  status  of  the  Pueblo  Indians  in  New  Mexico  under  the  Mexican  tJ 
cession,  see  U.  S.  v.  Sandoval,  19!  (1912). 

Commerce  between  Stai  Territory. — See  Stouten- 

burgh  v.  Etexmick,  129  U.  S.  141,  0  Sup.  Ct  256,  32  L.  Ed.  637  (1889)  'iHsiriet 
ul  Columbia);  Dooley  v.  U.  S.,  1S3  U.  S.  151,  22  Sup.  Ct  62,  43  I..  I'd.  128 
(1901)  (Porto  Rico);  Hanley  v.  K.  C.  Ry.,  187  r.  s.  G17,  619.  23  Sup.  Ct  21  1 
47  L.  Ed.  333  (1903)  (Indian  Territory),  where  it  was  said  by  Holmes.  J.: 
"it  may  be  assumed  that  this  power  ol  ■  er  commerce  between  Ar- 

kansas  and  the   Indian   territory  is  not  less   than  its  power  over   O 
among  the  slates."    gee,  also,  Interstate  Commerce  a  v.  Humboldt 

S.  S.  Co.,  221  r.  S.  -174.  32  Sup.  Ct.  556,  56  L.  Ed.  849  (19 

n  Termini  in  the  Same  State  but  Passing  Ot  tside  en 
'  See  Lord  v.  Steamship  Co..  102  V.  8.  oil.  26  I..  Ed  221  d^n:    Le 

high  Valley  Ry.  v.  Pennsylvania,  145  O.  s.  192,  12  sup.  ct.  so.;.  ;v,  i..  Ed.  672 
(1892);  Hanley  v.  Kansas  City.  etc..  Ry.,  1^7  rj.  S  t'.lT.  28  Sup.  Ct.  211.  17 
I..  Ed,  333  (1903);  Ewlng  v.  Leavenworth.  226  I".  S.  I'M.  .",;;  Sup.  Ct.  157,  57 
L.  Ed.  —  (1913) ;  D.  S.  v.  Del.,  etc.,  Ry.,  152  Fed.  269  (1907). 


1062  THE  FEDERAL  GOVERNMENT  (Part  3 

BROWN  v.  MARYLAND  (1827)  12  Wheat.  419,  445^49,  6  L. 
Ed.  678,  Mr.  Chief  Justice  Marshall  (for  facts  and  first  part  of 
opinion,  see  ante,  p.  1039) : 

"2.  Is  [the  Maryland  act]  also  repugnant  to  that  clause  in  the  Con- 
stitution which  empowers  'Congress  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  states,  and  with  the  Indian  tribes'  ? 

"The  oppressed  and  degraded  state  of  commerce  previous  to  the 
adoption  of  the  Constitution  can  scarcely  be  forgotten.  It  was  regu- 
lated by  foreign  nations  with  a  single  view  to  their  own  interests ;  and 
our  disunited  efforts  to  counteract  their  restrictions  were  rendered  im- 
potent by  want  of  combination.  Congress,  indeed,  possessed  the  pow- 
er of  making  treaties ;  but  the  inability  of  the  federal  government  to 
enforce  them  had  become  so  apparent  as  to  render  that  power  in  a 
great  degree  useless.  Those  who  felt  the  injury  arising  from  this 
state  of  things,  and  those  who  were  capable  of  estimating  the  influence 
of  commerce  on  the  prosperity  of  nations,  perceived  the  necessity  of 
giving  the  control  over  this  important  subject  to  a  single  government. 
It  may  be  doubted  whether  any  of  the  evils  proceeding  from  the  fee- 
bleness of  the  federal  government,  contributed  more  to  that  great  rev- 
olution which  introduced  the  present  system,  than  the  deep  and  gen- 
eral conviction  that  commerce  ought  to  be  regulated  by  Congress.  It 
is  not,  therefore,  matter  of  surprise  that  the  grant  should  be  as  exten- 
sive as  the  mischief,  and  should  comprehend  all  foreign  commerce, 
and  all  commerce  among  the  states.  To  construe  the  power  so  as  to 
impair  its  efficacy,  would  tend  to  defeat  an  object,  in  the  attainment 
of  which  the  American  public  took,  and  justly  took,  that  strong  inter- 
est which  arose  from  a  full  conviction  of  its  necessity. 

"What,  then,  is  the  just  extent  of  a  power  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states?  This  question 
was  considered  in  the  case  of  Gibbons  v.  Ogden,  9  Wheat.  1,  6  L.  Ed. 
23,  in  which  it  was  declared  to  be  complete  in  itself,  and  to  acknowl- 
edge no  limitations  other  than  are  prescribed  by  the  Constitution.  The 
power  is  coextensive  with  the  subject  on  which  it  acts,  and  cannot  be 
stopped  at  the  external  boundary  of  a  state,  but  must  enter  its  inte- 
rior. We  deem  it  unnecessary  now  to  reason  in  support  of  these  prop- 
ositions. Their  truth  is  proved  by  facts  continually  before  our  eyes, 
and  was,  we  think,  demonstrated,  if  they  could  require  demonstration, 
in  the  case  already  mentioned. 

"If  this  power  reaches  the  interior  of  a  state,  and  may  be  there  ex- 
ercised, it  must  be  capable  of  authorizing  the  sale  of  those  articles 
which  it  introduces.  Commerce  is  intercourse:  one  of  its  most  ordi- 
nary ingredients  is  traffic.  It  is  inconceivable,  that  the  power  to  au- 
thorize this  traffic,  when  given  in  the  most  comprehensive  terms,  with 
the  intent  that  its  efficacy  should  be  complete,  should  cease  at  the  point 
when  its  continuance  is  indispensable  to  its  value.  To  what  purpose 
should  the  power  to  allow  importation  be  given,  unaccompanied  with 


Ch.  18)  REGULATION    0»    C.'OJIJ!  10(53 

the  power  to  authorize  a  sale  of  the  thing  imported?  Sale  is  the  ob- 
ject of  importation,  and  is  an  essential  ingredient  of  that  intercourse, 
of  which  importation  constitutes  a  part.  It  is  as  essential  an  ingredi- 
ent ;  as  indispensable  to  the  existence  of  the  entire  thing,  then,  as  im- 
portation itself.  It  must  be  considered  as  a  component  part  of  the 
power  to  regulate  commerce.  Congress  has  a  right,  not  only  to  au- 
thorize importation,  but  to  authorize  the  importer  to  sell. 

"If  this  be  admitted,  and  we  think  it  cannot  be  denied,  what  can  be 
the  meaning  of  an  act  of  Congress  which  authorizes  importation,  and 
offers  the  privilege  for  sale  at  a  fixed  price  to  every  person  who  choos- 
es to  become  a  purchaser?  How  is  it  to  be  construed,  if  an  intent  to 
deal  honestly  and  fairly,  an  intent  as  wise  as  it  is  moral,  is  to  enter 
into  the  construction  ?  What  can  be  the  use  of  the  contract,  what  does 
the  importer  purchase,  if  he  does  not  purchase  the  privilege  to  sell? 
What  would  be  the  language  of  a  foreign  government,  which  should  be 
informed  that  its  merchants,  after  importing  according  to  law,  were 
forbidden  to  sell  the  merchandise  imported?  What  answer  would  the 
United  States  give  to  the  complaints  and  just  reproaches  to  which  such 
an  extraordinary  circumstance  would  expose  them?  No  apology  could 
be  received,  or  even  offered.  Such  a  state  of  things  would  break  up 
commerce.  It  will  not  meet  this  argument,  to  say,  that  this  state  of 
things  will  never  be  produced;  that  the  good  sense  of  the  states  is 
a  sufficient  security  against  it.  The  Constitution  has  not  confided  this 
subject  to  that  good  sense.  It  is  placed  elsewhere.  The  question  is. 
where  does  the  power  reside?  not,  how  far  will  it  be  probably  abused? 
The  power  claimed  by  the  state  is.  in  its  nature,  in  conllict  with  that 
given  to  Congress;  and  the  greater  or  less  extent  in  which  it  may  be 
exercised  does  not  enter  into  the  inquiry  concerning  its  existence. 

"We  think,  then,  that  if  the  power  to  authorize  a  sale  exists  in  Con- 
gress, the  conclusion  that  the  right  to  sell  is  connected  with  the  law 
permitting  importation,  as  an  inseparable  incident,  is  inevitable.  If 
the  principles  we  have  stated  be  correct,  the  result  to  which  they  con- 
duct us  cannot  be  mistaken.  Any  penalty  inflicted  on  the  importer  for 
selling  the  article  in  his  character  of  importer,  must  be  in  opposition 
to  the  act  of  Congress  which  authorizes  importation.  Any  charge  on 
the  introduction  and  incorporation  of  the  articles  into  and  with  the 
mass  of  property  in  the  country,  must  be  hostile  to  the  power  given  to 
Congress  to  regulate  commerce,  since  an  essential  part  of  that  i 
tion,  and  principal  object  of  it,  is  to  prescribe  the  regular  means  for 
accomplishing  that  introduction  and  incorporation.  The  distinction 
between  a  tax  on  the  thing  imported,  and  on  the  person  of  the  im- 
porter, can  have  no  influence  on  this  part  of  the  subject.  It  is  too  ob- 
vious for  controversy,  that  they  interfere  equally  with  the  power  to 
regulate  commerce. 

"It  has  been  contended  that  this  construction  of  the  power  to  regu- 
late commerce,  as  was  contended  in  construing  the  prohibition  to  lay 
duties  on  imports,  would  abridge  the  acknowledged  power  of  a  state 


1064  THE  FEDERAL   GOVERNMENT  (Part  3 

to  tax  its  own  citizens,  or  their  property  within  its  territory.  We  ad- 
mit this  power  to  be  sacred;  but  cannot  admit  that  it  may  be  used  so 
as  to  obstruct  the  free  course  of  a  power  given  to  Congress.  We  can- 
not admit  that  it  may  be  used  so  as  to  obstruct  or  defeat  the  power 
to  regulate  commerce.  It  has  been  observed  that  the  powers  remaining 
with  the  states  may  be  so  exercised  as  to  come  in  conflict  with  those 
vested  in  Congress.  When  this  happens,  that  which  is  not  supreme 
must  yield  to  that  which  is  supreme.  This  great  and  universal  truth  is 
inseparable  from  the  nature  of  things,  and  the  Constitution  has  applied 
it  to  the  often  interfering  powers  of  the  general  and  state  govern- 
ments, as  a  vital  principle  of  perpetual  operation.  It  results  necessa- 
rily from  this  principle  that  the  taxing  power  of  the  state  must  have 
some  limits.  It  cannot  reach  and  restrain  the  action  of  the  national 
government  within  its  proper  sphere.  It  cannot  reach  the  administra- 
tion of  justice  in  the  courts  of  the  Union,  or  the  collection  of  the  tax- 
es of  the  United  States,  or  restrain  the  operation  of  any  law  which 
Congress  may  constitutionally  pass.  It  cannot  interfere  with  any  reg- 
ulation of  commerce.  If  the  states  may  tax  all  persons  and  property 
found  on  their  territory,  what  shall  restrain  them  from  taxing  goods 
in  their  transit  through  the  state  from  one  port  to  another,  for  the 
purpose  of  re-exportation?  The  laws  of  trade  authorize  this  operation, 
and  general  convenience  requires  it.  Or  what  should  restrain  a  state 
from  taxing  any  article  passing  through  it  from  one  state  to  another, 
for  the  purpose  of  traffic?  or  from  taxing  the  transportation  of  arti- 
cles passing  from  the  state  itself  to  another  state,  for  commercial  pur- 
poses ?  These  cases  are  all  within  the  sovereign  power  of  taxation, 
but  would  obviously  derange  the  measures  of  Congress  to  regulate 
commerce,  and  affect  materially  the  purpose  for  which  that  power  was 
given.  We  deem  it  unnecessary  to  press  this  argument  farther,  or  to 
give  additional  illustrations  of  it,  because  the  subject  was  taken  up, 
and  considered  with  great  attention,  in  McCulloch  v.  State  of  Mary- 
land, 4  Wheat.  316,  4  L.  Ed.  579,  the  decision  in  which  case  is,  we 
think,  entirely  applicable  to  this. 

"It  may  be  proper  to  add  that  we  suppose  the  principles  laid  down 
in  this  case  to  apply  equally  to  importations  from  a  sister  state.  We 
do  not  mean  to  give  any  opinion  on  a  tax  discriminating  between  for- 
eign and  domestic  articles." 

[Thompson,  J.,  gave  a  dissenting  opinion.] 


INTERNATIONAL  TEXT-BOOK  CO.  v.  PIGG  (1910)  217  U. 
S.  91,  106,  107,  30  Sup.  Ct.  481,  54  L.  Ed.  678,  24  L.  R.  A.  (N.  S.) 
493,  18  Ann.  Cas.  1103,  Mr.  Justice  Harlan  (holding  invalid,  as 
applied  to  plaintiff  corporation,  a  Kansas  statute  forbidding  foreign 
corporations  to  do  business  in  the  state  until  they  had  filed  a  detailed 
statement  concerning  their  business  and  stockholders,  and   disabling 


Ch.  18)  Rr.<;rr,ATioN  of  COMM  1065 

foreign  corporations  doing  business  in  the  state  from  suing  in  the  state 
courts  until  they  had  a  certificate  that  this  statement  had  been  prop- 
erly made.  Plaintiff  was  a  Pennsylvania  corporation  giving  instruc- 
tion by  correspondence  in  Kansas,  where  it  employed  a  permanent  so- 
licitor and  collector,  and  its  right  to  sue  a  defaulting  student  had  been 
denied  by  the  Kansas  courts  under  this  statute): 

"It  is  true  that  the  business  in  which  the  International  Text-Book 
Company  is  engaged  is  of  a  somewhat  exceptional  character,  but,  in 
our  judgment,  it  was,  in  its  essential  characteristics,  commerce  among 
the  states  within  the  meaning  of  the  Constitution  of  the  United  States. 
It  involved,  as  already  suggested,  regular  and  practically  continuous 
intercourse  between  the  Text-Book  Company,  located  in  Pennsylvania, 
and  its  scholars  and  agents  in  Kansas  and  other  states.  That  inter- 
course was  conducted  by  means  of  correspondence  through  the  mails 
with  such  agents  and  scholars.  While  this  mode  of  imparting  and  ac- 
quiring an  education  may  not  be  such  as  is  commonly  adopted  in  this 
country,  it  is  a  lawful  mode  to  accomplish  the  valuable  purpose  the 
parties  have  in  view.  More  than  that ;  this  mode — looking  at  the  con- 
tracts between  the  Text-Book  Company  and  its  scholars — involved  the 
transportation  from  the  state  where  the  school  is  located  to  the  state 
in  which  the  scholar  resides,  of  books,  apparatus,  and  papers,  useful  or 
necessary  in  the  particular  course  of  study  the  scholar  is  pursuing,  and 
in  respect  of  which  he  is  entitled,  from  time  to  time,  by  virtue  of  his 
contract,  to  information  and  direction.  Intercourse  of  that  kind,  be- 
tween parties  in  different  states, — particularly  when  it  is  in  execution 
of  a  valid  contract  between  them, — is  as  much  intercourse  in  the  con- 
stitutional sense,  as  intercourse  by  means  of  the  telegraph, — 'a  new 
species  of  commerce,'  to  use  the  words  of  this  court  in  Pet 
Teleg.  Co.  v.  Western  U.  Teleg.  Co..  96  U.  S.  1,  9,  24  L.  Ed.  70s.  710 
In  the  great  case  of  Gibbons  v.  Ogden,  9  Wheat.  1.  189,  6  L.  Ed.  23. 
68,  this  court,  speaking  by  Chief  Justice  Marshall,  said:  'Commerce. 
undoubtedly,  is  traffic;  but  it  is  something  more;  it  is  intercourse.' 
Referring  to  the  constitutional  power  of  Congress  to  regulate  com- 
merce among  the  states  and  with  foreign  countries,  this  court  said  in 
the  Pensacola  Case,  just  cited,  that  'it  is  not  only  the  right,  hut  the 
duty,  of  Congress,  to  see  to  it  that  intercourse  among  the  states  and 
the  transmission  of  intelligence  are  not  obstructed  or  unnecessarily  en- 
cumbered by  state  legislation.'  This  principle  has  never  been  modified 
by  any  subsequent  decision  of  this  court. 

"The  same  thought  was  expressed  rn  U.  Teleg.  Co.  v.  Pen- 

dleton, 122  U.  S.  347,  356,  30  L.  Ed.  1187,  1 1S8,  1  Inters.  Com.  Rep. 
306,  307,  7  Sup.  Ct.  Rep.  1126,  1127.  where  the  court  said:  'Other 
commerce  deals  only  with  persons,  or  with  visible  and  tangible  things 
But  the  telegraph  transports  n  -ible  and  tangible;    it  carries 

only  ideas,  wishes,  orders.  And  e.'     It  was  said  in  the  circuit 

court  of  appeals  for  the  eighth  circuit,  speaking  by  Judge  Sanborn,  in 
Butler  Bros.  Shoe  Co.  v.  .United  States  Rubber  Co.,  84  C.  C.  A.  167, 


HHiG  the  federal  government  (PartS 

183,  156  Fed.  1,  17,  that  'all  interstate  commerce  is  not  sales  of  goods. 
Importation  into  one  state  from  another  is  the  indispensable  element, 
the  test,  of  interstate  commerce;  and  every  negotiation,  contract, 
trade,  and  dealing  between  citizens  of  different  states,  which  contem- 
plates and  causes  such  importation,  whether  it  be  of  goods,  persons, 
or  information,  is  a  transaction  of  interstate  commerce.'  If  inter- 
course between  persons  in  different  states  by  means  of  telegraphic 
messages  conveying  intelligence  or  information  is  commerce  among 
the  states,  which  no  state  may  directly  burden  or  unnecessarily  en- 
cumber, we  cannot  doubt  that  intercourse  or  communication  between 
persons  in  different  states,  by  means  of  correspondence  through  the 
mails,  is  commerce  among  the  states  within  the  meaning  of  the  Con- 
stitution, especially  where,  as  here,  such  intercourse  and  communica- 
tion really  relate  to  matters  of  regular,  continuous  business,  and  to 
the  making  of  contracts  and  the  transportation  of  books,  papers,  etc., 
appertaining  to  such  business.  In  our  further  consideration  of  this 
case,  we  shall  therefore  assume  that  the  business  of  the  Text-Book 
Company,  by  means  of  correspondence  through  the  mails  and  other- 
wise between  Kansas  and  Pennsylvania,  was  interstate  in  its  nature."  1 
[Moody,  J.,  approved  the  decision.  Fuller,  C.  J.,  and  Mc- 
KiJnna,  J.,   dissented.] 

i  "Post  offices  and  post  roads  are  established  to  facilitate  the  transmission 
of  intelligence.  Both  commerce  and  the  postal  service  are  placed  within  the 
power  of  Congress,  because,  being  national  in  their  operation,  they  should 
be  under  the  protecting  care  of  the  national  government.  The  powers  thus 
granted  are  not  confined  to  the  instrumentalities  of  commerce  or  the  postal 
service  known  or  in  use  when  the  Constitution,  was  adopted,  but  they  keep 
pace  with  the  progress  of  the  country,  and  adapt  themselves  to  the  new  de- 
velopments of  time  and  circumstances.  »  *  *  The  electric  telegraph 
marks  an  epoch  in  the  progress  of  time.  In  a  little  more  than  a  quarter  of 
a  century  it  has  changed  the  habits  of  business,  and  become  one  of  the  neces- 
sities of  commerce.  It  is  indispensable  as  a  means  of  inter-communication, 
but  especially  is  it  so  in  commercial  transactions.  *  *  *  It  cannot  for  a 
moment  be  doubted  that  this  powerful  agency  of  commerce  and  inter-com- 
munication comes  within  the  controlling  power  of  Congress,  certainly  as 
against  hostile  state  legislation.  *  *  *  It  is  not  necessary  now  to  inquire 
whether  Congress  may  assume  the  telegraph  as  part  of  the  postal  service,  and 
exclude  all  others  from  its  use." — Pensacola  Telegraph  Co.  v.  Western  Union 
Co.,  96  U.  S.  1,  9,  10,  24  L.  Ed.  708  (1878),  by  Waite,  C.  J.  (holding  that  Con- 
gress may  empower  interstate  telegraph  companies  to  occupy  post  roads  in 
a  state  against  the  will  of  the  state). 

•'Constitutional  provisions  do  not  change,  but  their  operation  extends  to  new 
matters,  as  the  modes  of  business  and  the  habits  of  life  of  the  people  vary 
with  each  succeeding  generation.  *  *  *  So  is  it  with  the  grant  to  the 
national  government  of  power  over  interstate  commerce.  The  Constitution 
has  not  changed.  The  power  is  the  same.  But  it  operates  to-day  upon  modes 
of  interstate  commerce  unknown  to  the  fathers,  and  it  will  operate  with  equal 
force  upon  any  new  modes  of  such  commerce  which  the  future  mav  develop." — 
Brewer,  J.,  in  In  re  Debs,  158  U.  S.  564,  591,  15  Sup.  Ct.  900.  909,  39  L.  Ed. 
1092  (1895). 

Are  all  telephones  with  the  usual  connections  instruments  of  interstate  com- 
merce? Pomona  v.  Sunset  Tel.  Co.,  224  U.  S.  330,  345,  32  Sup.  Ct,  477,  56  L. 
Ed.  7S8  (1912). 


Ch.  18)  BEOl  LATION    OF   COM.'.:  10OT 

PAUL  v.  VIRGINIA  (1869)  8  Wall.  168,  182-185,  19  L.  Ed  357, 
Mr.  Justice  FlELD  (upholding  a  Virginia  statute  requiring  foreign 
fire  insurance  companies  to  take  out  licenses  before  doing  business  in 
the  state) : 

"We  proceed  to  the  second  objection  urged  to  the  validity  of  the 
Virginia  statute,  which  is  founded  upon  the  commercial  clause  of  the 
Constitution.  It  is  undoubtedly  true,  as  stated  by  counsel,  that  the 
power  conferred  upon  Congress  to  regulate  commerce  includes  as  well 
commerce  carried  on  by  corporations  as  commerce  carried  on  by  in- 
dividuals. *  *  *  The  language  of  the  grant  makes  no  reference 
to  the  instrumentalities  by  which  commerce  may  be  carried  on ;  it  is 
general,  and  includes  alike  commerce  by  individuals,  partnerships,  as- 
sociations, and  corporations. 

"There  is,  therefore,  nothing  in  the  fact  that  the  insurance  compa- 
nies of  New  York  are  corporations  to  impair  the  force  of  the  argu- 
ment of  counsel.  The  defect  of  the  argument  lies  in  the  character  of 
their  business.  Issuing  a  policy  of  insurance  is  not  a  transaction  of 
commerce.  The  policies  are  simple  contracts  of  indemnity  against  loss 
by  fire,  entered  into  between  the  corporations  and  the  assured,  for  a 
consideration  paid  by  the  latter.  These  contracts  are  not  articles  of 
commerce  in  any  proper  meaning  of  the  word.  They  are  not  subjects 
of  trade  and  barter  offered  in  the  market  as  something  having  an  ex- 
istence and  value  independent  of  the  parties  to  them.  They  are  not 
commodities  to  be  shipped  or  forwarded  from  one  state  to  another, 
and  then  put  up  for  sale.  They  are  like  other  personal  contracts  be- 
tween parties  which  are  completed  by  their  signature  and  the  transfer 
of  the  consideration.  Such  contracts  are  not  interstate  transactions, 
i  the  parties  may  be  domiciled  in  different  states.  The  policies 
do  not  take  effect — are  not  executed  contracts — until  delivered  by  the 
agent  in  Virginia.  They  are,  then,  local  transactions,  and  are  governed 
by  the  local  law.  They  do  not  constitute  a  part  of  the  commerce  be- 
tween the  states  any  more  than  a  contract  for  the  purchase  and  sale 
of  goods  in  Virginia  by  a  citizen  of  New  York  whilst  in  Virginia 
would  constitute  a  portion  of  such  commerce.1 

i  "The  fii^ts  that  the  property  sold  Is  outside  of  the  state  and  the  seller  nnrt 

buyer  foreigners  are  no!  ugh  to  make  a  sa  with  foreign 

or  among  the  several  stares."  Hatch  v.  Reardon,  204  r.  s.  152,  162,  -7  Sup. 
i't.  188,  191,  M    I.    Ed.  418,  '•>  Ann.  Cas.  736  (1907),  by  IT. .lmcs.  .1. 

"The  plaintiff's  in  error  are  brokers  who  take  orders  and  transmit  them  to 
other  states  for  the  purchase  and  sal.'  of  -rain  ..r  cotton  upon  speculation. 

Tli.-v  arc.  in  no  just   sense.  Common  carriers  ol   messages,  as  are  the  telegraph 

companies.  For  that  part  of  the  transactions,  merely  speculative  and  fol- 
lowed by  no  actual  delivery.  It  cannot  be  fairly  contended  that  such  contracts 
are  the  subject  of  interstate  commerce;   an.l  concerning  such  of  the  contracts 

for  pur.  hases  for  future  delivery  as  result  in  actual  delivery  of  the  srain 
or  cotton,  the  Stipulated  facts  show  that,  when  the  orders  transmitted  are 
receive.!  in  the  foreign  state,  the  property  is  bonghl  in  that  state  and  there 
held   for   the  purchaser.     The  transaction   was  thus  closed  l.y  a  contract   com 

pleted  and  executed  in  the  foreign  state,  although  the  orders  were  received 
from  another  state.     When  the  delivery  was  upon  a  contract  of  sale  made  l.y 


1068  THE   FEDERAL   GOVERNMENT  (Part  3 

"In  Nathan  v.  Louisiana,  8  How.  73  [12  L.  Ed.  992],  this  court 
held  that  a  law  of  that  state  imposing  a  tax  on  money  and  exchange 
brokers,  who  dealt  entirely  in  the  purchase  and  sale  of  foreign  bills 
of  exchange,  was  not  in  conflict  with  the  constitutional  power  of  Con- 
gress to  regulate  commerce.  "The  individual  thus  using  his  money  and 
credit,'  said  the  court,  'is  not  engaged  in  commerce,  but  in  supplying 
an  instrument  of  commerce.  He  is  less  connected  with  it  than  the 
shipbuilder,  without  whose  labor  foreign  commerce  could  not  be  car- 
ried on.'  And  the  opinion  shows  that,  although  instruments  of  com- 
merce, they  are  the  subjects  of  state  regulation,  and,  inferentially,  that 
they  may  be  subjects  of  direct  state  taxation.2     *     *     * 

"If  foreign  bills  of  exchange  may  thus  be  the  subject  of  state  regula- 
tion, much  more  so  may  contracts  of  insurance  against  loss  by  fire."  3 

the  broker,  the  seller  was  at  liberty  to  acquire  the  cotton  in  the  market  where 
the  delivery  was  required  or  elsewhere.  He  did  not  contract  to  ship  it  from 
one  state  to  the  place  of  delivery  in  another  state.  And  though  it  is  stipulat- 
ed that  shipments  were  made  from  Alabama  to  the  foreign  state  in  some  in- 
stances, that  was  not  because  of  any  contractual  obligation  so  to  do.  In  nei- 
ther class  of  contracts,  for  sale  or  purchase,  was  there  necessarily  any  move- 
ment of  commodities  in  interstate  traffic  because  of  the  contracts  made  bv  the 
brokers."— Ware  v.  Mobile  Co..  209  U.  S.  405,  412,  413.  2S  Sup.  Ct.  526.  529,  52 
L.  Ed.  S55,  14  Ann.  Cas.  1031  (1908),  by  Day,  J.  (upholding  a  state  tax  on  sales 
for  future  delivery). 

2  Compare  Hamilton's  National  Bank  Opinion,  Appendix  to  Federalist 
(Ford's  Ed.)  667. 

3  "That  the  business  of  fire  insurance  is  not  interstate  commerce  is  decided 
in  Paul  v.  Virginia,  S  Wall.  16S,  19  L.  Ed.  357;  Liverpool  &  L.  L.  &  F.  Ins. 
Co.  v.  Massachusetts,  10  Wall.  5C6.  19  L.  Ed.  1029;  Philadelphia  Fire  Ass'n  v. 
New  York,  119  U.  S.  110,  30  L.  Ed.  342,  7  Sup.  Ct.  10S.  That  the  business 
of  marine  insurance  is  not  is  decided  in  Hooper  v.  California,  155  U.  S.  648. 
39  L.  Ed.  297,  5  Inters.  Com.  Rep.  610,  15  Sup.  Ct.  207.  In  the  latter  case 
it  is  said  that  the  contention  that  it  is  'involves  an  erroneous  conception  of 
what  constitutes  interstate  commerce.'  We  omit  the  reasoning  by  which  that 
is  demonstrated,  and  will  only  repeat:  'The  business  of  insurance  is  not  com- 
merce. The  contract  of  insurance  is  not  an  instrumentality  of  commerce. 
The  making  of  such  a  contract  is  a  mere  incident  of  commercial  intercourse. 
and  in  this  respect  there  is  no  difference  whatever  between  insurance  against 
fire  and  insurance  against  "the  perils  of  the  sea."'  And  we  add,  or  against 
the  uncertainty  of  man's  mortality." — N.  Y.  Life  Ins.  Co.  v.  Cravens,  ITS  V. 
S.  3S9,  401,  20  Sup.  Ct.  902,  44  L.  Ed.  111G  (1900),  by  McKenna,  J.,  (life  in- 
surance). 

Likewise,  commerce  does  not  include  oyster  culture,  McCready  v.  Virginia, 
94  U.  S.  391,  24  L.  Ed.  24S  (1S77);  sea  fishing,  Manchester  v.  Mass.,  139  U.  S. 
240,  11  Sup.  Ct.  559,  35  L.  Ed.  159  (1S91) :  manufacturing,  U.  S.  v.  Knight 
Co.,  156  U.  S.  1,  15  Sup.  Ct.  249,  39  L  Ed.  325  (1895);  taking  sponges,  The 
Abby  Dodge,  223  TJ.  S.  166,  32  Sup.  Ct.  310,  56  L.  Ed.  390  (1912) ;  or  produc- 
tive industry  generally,  Kidd  v.  Pearson,  12S  U.  S.  1,  20,  21,  9  Sup.  Ct.  6,  32 
L.  Ed.  346  (1 

"Commerce  has  nothing  to  do  with  land  while  producing,  but  only  with  the 
product  after  it  has  become  the  subject  of  trade." — McCready  v.  Virginia, 
above  cited,  at  pages  396,  397.  by  Waite,  C.  J. 

"Commerce  succeeds  to  manufacture  and  is  not  a  part  of  it.  *  *  * 
Slight  reflection  will  show  that  if  the  national  power  extends  to  all  contracts 
and  combinations  in  manufacture,  agriculture,  mining,  and  other  productive 
industries,  whose  ultimate  result  may  affect  external  commerce,  comparatively 
little  of  business  operations  and  affairs  would  be  left  for  state  control." — 
U.  S.  v.  Knight  Co.,  above  cited,  at  page  16,  by  Fuller,  C.  J.  So,  also,  Kidd 
v.  Pearson,  above  cited. 


Cll.  18)  i.ai.'ij.N'    OF   COMMBECH  1069 

THE  DANIEL  BALL  (1871)  10  Wall.  557,  564-566,  19  L.  Ed. 
999,  Mr.  Justice  Field  (upholding  the  requirement  of  a  federal 
license  for  a  steamer  of  123  tons  plying  on  the  Grand  river  between 
points  in  Michigan  and  so  constructed  as  to  be  incapable  of  navigating 
Lake  Michigan):1 

"But  it  is  contended  that  the  steamer  'Daniel  Ball'  was  only  en 
in  the  internal  commerce  of  the  state  of  Michigan,  and  was  not,  there- 
fore, required  to  be  inspected  or  licensed,  even  if  it  be  conceded  that 
Grand  river  is  a  navigable  water  of  the  United  States.     *     *     * 

"There  is  undoubtedly  an  internal  commerce  which  is  subject  to  the 
control  of  the  states.  The  power  delegated  to  Congress  is  limited  to 
commerce  'among  the  several  states,'  with  foreign  nations,  and  with 
the  Indian  tribes.  This  limitation  necessarily  excludes  from  federal 
control  all  commerce  not  thus  designated,  and  of  course  that  commerce 
which  is  carried  on  entirely  within  the  limits  of  a  state,  and  does  not 
extend  to  or  affect  other  states.  Gibbons  v.  Ogden,  9  Wheat.  194, 
195,  6  L.  Ed.  23.  In  this  case  it  is  admitted  that  the  steamer  was  en- 
gaged in  shipping  and  transporting  down  Grand  river,  goods  destined 
and  marked  for  other  states  than  Michigan,  and  in  receiving  and  trans- 
porting up  the  river  goods  brought  within  the  state  from  without  its 
limits;  but  inasmuch  as  her  agency  in  the  transportation  was  entirely 
within  the  limits  of  the  state,  and  she  did  not  run  in  connection  with, 
or  in  continuation  of,  any  line  of  vessels  of  railway  leading  to  other 
states,  it  is  contended  that  she  was  engaged  entirely  in  domestic  com- 
merce. But  this  conclusion  does  not  follow.  So  far  as  she  was  em- 
ployed in  transporting  goods  destined  for  other  states,  or  goods 
brought  from  without  the  limits  of  Michigan  and  destined.to  places 
within  that  state,  she  was  engaged  in  commerce  between  the  states, 
and  however  limited  that  commerce  may  have  been,  she  was,  so  far  as 
it  went,  subject  to  the  legislation  of  Congress.  She  was  employed  as 
an  instrument  of  that  commerce ;  for  whenever  a  commodity  has  be- 
gun to  move  as  an  article  of  trade  from  one  state  to  another,  com- 
merce in  that  commodity  between  the  states  has  commenced.  The  fact 
that  several  different  and  independent  agencies  are  employed  in  trans- 
porting the  commodity,  some'acting  entirely  in  one  state,  and  some  act- 
ing through  two  or  more  states,  does  in  no  respect  affect  the  character 
of  the  transaction.  To  the  extent  in  which  each  agency  acts  in  that 
transportation,  it  is  subject  to  the  regulation  of  Congress.2 

"It  is  said  that  if  the  position  here  asserted  be  sustained,  there  is  no 
such  thing  as  the  domestic  trade  of  a  state;  that  Congress  may  take 
the  entire  control  of  the  commerce  of  the  country,  and  extend  i 

»  The  first  r;irt  of  this  case  Is  printed  post.  p.  1261 

-  Accord :    See  D.  s.  v.  ■  r  .■•      5  c.  «'.  A.  27,  15 

L.    K.    A.   (N.    S.)    167,  13    Ann.    I 'as.    Si  il    Kv.    v.   r 

Fed.  us.  :is  C.  C.  A.  :u  (1909);    Northern  Vac.  By.  v.  Washington,  222  0.  S. 

::7'>.  .-.I'  sup.  Ct  160,  5G  I,.  Ed.  LV.T  (1912). 


1070  THE   FEDERAL   GOVERNMENT  (Part  o 

ulations  to  the  railroads  within  a  state  on  which  grain  or  fruit  is  trans- 
ported to  a  distant  market.  We  answer  that  the  present  case  relates 
to  transportation  on  the  navigable  waters  of  the  United  States,  and 
we  are  not  called  upon  to  express  an  opinion  upon  the  power  of  Con- 
gress over  interstate  commerce  when  carried  on  by  land  transporta- 
tion.3 And  we  answer  further,  that  we  are  unable  to  draw  any  clear 
and  distinct  line  between  the  authority  of  Congress  to  regulate  an 
agency  employed  in  commerce  between  the  states,  when  that  agency 
extends  through  two  or  more  states,  and  when  it  is  confined  in  its  ac- 
tion entirely  within  the  limits  of  a  single  state.  If  its  authority  does 
not  extend  to  an  agency  in  such  commerce,  when  that  agency  is  con- 
fined within  the  limits  of  a  state,  its  entire  authority  over  interstate 
commerce  may  be  defeated.  Several  agencies  combining,  each  taking 
up  the  commodity  transported  at  the  boundary  line  at  one  end  of  a 
state,  and  leaving  it  at  the  boundary  line  at  the  other  end,  the  federal 
jurisdiction  would  be  entirely  ousted,  and  the  constitutional  provision 
would  become  a  dead  letter." 


COE  v.  ERROL. 

(Supreme  Court  of  United  States,  1S86.     116  U.  S.  517.  6  Sup.  Ct  475, 
29  L.  Ed.  715.) 

[Error  to  the  Supreme  Court  of  New  Hampshire.  The  Androscog- 
gin river,  from  Maine  into  New  Hampshire  and  back  through  Maine 
to  the  sea,  had  long  been  used  as  a  public  highway  for  the  floatage  of 
timber.  Coe,  a  resident  of  Maine,  had  cut  certain  logs  in  Maine  and 
floated  them  down  the  river  on  their  way  through  New  Hampshire  to 
Lewiston,  Maine.  These  logs  were  detained  by  low  water  at  Errol. 
New  Hampshire,  for  nearly  a  year,  and  while  so  detained  were  taxed 
by  the  town  of  Errol.  Such  detention  by  low  water  was  in  the  usual 
course  of  such  transportation.  Other  logs  Coe  had  cut  in  New  Hamp- 
shire and  drawn  to  the  shores  of  the  river  or  placed  in  its  tributaries 
in  time  of  low  water,  waiting  for  the  high  water  of  next  spring  to 
carry  them  on  to  Lewiston.  Errol  also  taxed  these.  Coe  resisted  the 
tax,  and  the  Supreme  Court  of  New  Hampshire  abated  the  tax  on  the 
logs  cut  in  Maine  but  sustained  that  on  the  others.] 

3  "The  regulation  of  commerce  implies  as  much  control,  as  far-reaching 
power,  over  an  artificial  as  over  a  natural  highway.  They  are  simply  the 
means  and  instrumentalities  of  commerce,  and  the  power  of  Congress  to  regu-' 
late  commerce  carries  with  it  power  over  all  the  means  and  instrumentalities 
by  which  commerce  is  carried  on.  *  *  *  We  are  so  much  accustomed  to 
see  artificial  highways,  such  as  common  roads,  turnpike  roads,  and  railroads, 
constructed  under  the  authority  of  the  states,  and  the  improvement  of  natural 
highways  carried  on  by  the  general  government,  that  at  the  first  it  might 
seem  that  there  was  some  inherent  difference  in  the  power  of  the  national 
government  over  them.  But  the  grant  of  power  is  the  same.  *  *  *  The 
differences  between  the  two  are  in  their  origin;  nature  provides  the  one.  man 
establishes  the  other." — Monongahela  Nav.  Co.  v.  United  States,  148  II.  S. 
".lu.  :;i2,  13  Sup.  Ct.  622,  632,  37  L.  Ed.  463  (1S93),  by  Brewer,  J. 


Ch.  18)  REGULATION    OK    COMMBBCE  1071 

Mr.  Justice  Bradi.ky.  *  *  *  Tlic  question  for  us  to  consider, 
therefore,  is,  whether  the  products  of  a  state  (in  this  case  timber  cut 
in  its  forests)  are  liable  to  be  taxed  like  other  property  within  the  state, 
though  intended  for  exportation  to  another  state,  and  partially  pre- 
pared  for  that  purpose  by  being  deposited  at  a  place  of  shipment,  such 
products  being  owned  by  persons  residing  in  another  state.     *     *     * 

[After  deciding  that  the  non-residence  of  the  owner  does  not  ren- 
der personal  property  non-taxable  in  the  state  where  it  is  located:] 
We  recur,  then,  to  a  consideration  of  the  question  freed  from  this  lim- 
itation: Are  the  products  of  a  state,  though  intended  for  exportation 
to  another  state,  and  partially  prepared  for  that  purpose  by  being  de- 
posited at  a  place  or  port  of  shipment  within  the  state,  liable  to  be 
taxed  like  other  property  within  the  state:  Do[es)  the  owner's  state  of 
mind  in  relation  to  the  goods,  that  is,  his  intent  to  export  them,  and 
his  partial  preparation  to  do  so,  exempt  them  from  taxation?  This 
is  the  precise  question  for  solution. 

This  question  does  not  present  the  predicament  of  goods  in  course 
of  transportation  through  a  state,  though  detained  for  a  time  within 
the  state  by  low  water  or  other  causes  of  delay,  as  was  the  case  of  the 
lit  in  the  state  of  Maine,  the  tax  on  which  was  abated  by  the  Su- 
preme Court  of  New  Hampshire.  Such  goods  are  already  in  the 
course  of  commercial  transportation,  and  are  clearly  under  the  protec- 
tion of  the  Constitution.  And  so,  we  think,  would  the  goods  in  ques- 
tion be  when  actually  started  in  the  course  of  transportation  to  another 
state.1  or  delivered  to  a  carrier  for  isuch  transportation.  Then 
be  a  point  of  time  when  they  cease  to  be  governed  exclusively  by  the 
domestic  law  and  begin  to  be  governed  and  protected  by  the  national 
law  of  commercial  regulation,  and  that  moment  seems  to  us  to  be  a 
legitimate  one  for  this  purpose,  in  which  they  commence  their  final 
movement  for  transportation  from  the  state  of  their  origin  to  that  of 
their  destination.  When  the  products  of  the  farm  or  the  fore-t  are 
collected  and  brought  in  from  the  surrounding  country  to  a  town  or 
station  serving  as  an  entrepot  for  that  particular  region,  whether  on 
a  river  or  a  line  of  railroad,  such  products  are  not  yet  exports,  nor 
are  they  in  process  of  exportation,  nor  is  exportation  begun  until  they 
nnitted  to  the  common  carrier  for  transportation  out  of  the 
state  to  the  state  of  their  destination,  or  h  I  on  their  ultimate 

to  that  state.  Until  then  it  is  reasonable  to  regard  them  as 
not  only  within  the  state  of  their  origin,  but  as  a  part  of  the  general 
mass  of  property  of  that  state,  subject  to  its  jurisdiction,  and  liable 
to  taxation  there,  if  not  taxed  by  reason  of  tl  intended   for 

exportation,  hut  taxed  without  any  discrimination,  in  the  usual  way 
and  manner  in  which  such  property  is  taxed  in  the  state. 

Of  course  they  cannot  be  taxed  as  exports ;  that  is  to  say,  they  can- 

i  Accord:  Belle;  v.  Rhoads,  188  D.  S,  t.  23  Sup.  <'t  259,  it  L.  ' 
(1903)  (herd  of  sheep  being  driven  500  miles  across  three  states  to  pi 
shipment  by  rail). 


1072  Tin:  federal  government  (Part  3 

not  be  taxed  by  reason  or  because  of  their  exportation  or  intended 
exportation ;  for  that  would  amount  to  laying  a  duty  on  exports,  and 
would  be  a  plain  infraction  of  the  Constitution,  which  prohibits  any 
state,  without  the  consent  of  Congress,  from  laying  any  imposts  or  du- 
ties on  imports  or  exports ;  and,  although  it  has  been  decided,  Wood- 
ruff v.  Parham,  8  Wall.  123,  19  L.  Ed.  382,  that  this  clause  relates  to 
imports  from,  and  exports  to,  foreign  countries,  yet  when  such  im- 
posts or  duties  are  laid  on  imports  or  exports  from  one  state  to  an- 
other, it  cannot  be  doubted  that  such  an  imposition  would  be  a  regu- 
lation of  commerce  among  the  states,  and,  therefore,  void  as  an  inva- 
sion of  the  exclusive  power  of  Congress.  See  Walling  v.  Michigan, 
116  U.  S.  446,  6  Sup.  Ct.  454,  29  L.  Ed.  691,  decided  at  the  present 
term,  and  cases  cited  in  the  opinion  in  that  case.  But  if  such  goods 
are  not  taxed  as  exports,  nor  by  reason  of  their  exportation,  or  in- 
tended exportation,  but  are  taxed  as  part  of  the  general  mass  of  prop- 
erty in  the  state,  at  the  regular  period  of  assessment  for  such  prop- 
erty and  in  the  usual  manner,  they  not  being  in  course  of  transporta- 
tion at  the  time,  is  there  any  valid  reason  why  they  should  not  be 
taxed?  Though  intended  for  exportation,  they  may  never  be  ex- 
ported; the  owner  has  a  perfect  right  to  change  his  mind;  and  until 
actually  put  in  motion,  for  some  place  out  of  the  state,  or  committed 
to  the  custody  of  a  carrier  for  transportation  to  such  place,  why  may 
they  not  be  regarded  as  still  remaining  a  part  of  the  general  mass  of 
property  in  the  state?  If  assessed  in  an  exceptional  time  or  manner, 
because  of  their  anticipated  departure,  they  might  well  be  considered 
as  taxed  by  reason  of  their  exportation  or  intended  exportation ;  but 
if  assessed  in  the  usual  way,  when  not  under  motion  or  shipment,  we 
do  not  see  why  the  assessment  may  not  be  valid  and  binding. 

The  point  of  time  when  state  jurisdiction  over  the  commodities  of 
commerce  begins  and  ends  is  not  an  easy  matter  to  designate  or  define, 
and  yet  it  is  highly  important,  both  to  the  shipper  and  to  the  state,  that 
it  should  be  clearly  denned  so  as  to  avoid  all  ambiguity  or  question. 
In  regard  to  imports  from  foreign  countries,  it  was  settled  in  the  case 
of  Brown  v.  Maryland,  12  Wheat.  419,  6  L.  Ed.  678,  that  the  state 
cannot  impose  any  tax  or  duty  on  such  goods  so  long  as  they  remain 
the  property  of  the  importer,  and  continue  in  the  original  form  or 
packages  in  which  they  were  imported ;  the  right  to  sell  without  any 
restriction  imposed  by  the  state  being  a  necessary  incident  of  the  right 
to  import  without  such  restriction.  This  rule  was  deemed  to  be  the 
necessary  result  of  the  prohibitory  clause  of  the  Constitution,  which 
declares  that  no  state  shall  lay  any  imposts  or  duties  on  imports  or 
exports.  The  law  of  Maryland,  which  was  held  to  be  repugnant  to 
this  clause,  required  the  payment  of  a  license  tax  by  all  importers  be- 
fore they  were  permitted  to  sell  their  goods.  This  law  was  also  con- 
sidered to  be  an  infringement  of  the  clause  which  gives  to  Congress 
the  power  to  regulate  commerce.  This  court,  as  before  stated,  has 
since  held  that  goods  transported  from  one  state  to  another  are  not 


Cll.  18)  REGULATION    OF    COMUEBCU  1073 

imports  or  exports  within  the  meaning  of  the  prohibitory  clar 
fore  referred  to;  and  it  has  also  held  that  such  goods,  having  arrived 
at  their  place  of  destination,  may  be  taxed  in  the  state  to  which  they 
are  carried,  if  taxed  in  the  same  manner  as  other  goods  are 
and  not  by  reason  of  their  being  brought  into  the  state  from  another 
state,  nor  subjected  in  any  way  to  unfavorable  discrimination.  Wood- 
ruff v.  Parham,  8  Wall.  123,  19  L.  Ed.  382;  Brown  v.  Houston,  114 
U.  S.  622,  5  Sup.  Ct.  1091.  29  L.  Ed.  257. 

But  no  definite  rule  has  been  adopted  with  regard  to  the  point  of 
time  at  which  the  taxing  power  of  the  state  ceases  as  to  goods  ex- 
to  a  foreign  country  or  to  another  state.  What  we  have  al- 
ready said,  however,  in  relation  to  the  products  of  a  state  intended  for 
exportation  to  another  state  will  indicate  the  view  which  seems  to  us 
the  sound  one  on  that  subject,  namely,  that  such  goods  do  not  cease  to 
be  part  of  the  general  mass  of  property  in  the  state,  subject,  as  such, 
to  its  jurisdiction,  and  to  taxation  in  the  usual  way,  until  they  have 
leen  shipped,  or  entered  with  a  common  carrier  for  transportation  to 
another  state,  or  have  been  started  upon  such  transportation  in  a  con- 
tinuous route  or  journey.  We  think  that  this  must  be  the  true  rule 
on  the  subject.  It  seems  to  us  untenable  to  hold  that  a  crop  or  a  herd 
is  exempt  from  taxation  merely  because  it  is,  by  its  owner,  intended 
for  exportation.  If  such  were  the  rule  in  many  states  there  would  be 
nothing  but  the  lands  and  real  estate  to  bear  the  taxes.  Some  of  the 
Western  states  produce  very  little  except  wheat  and  corn,  most  of 
which  is  intended  for  export ;  and  so  of  cotton  in  the  Southern  states. 
Certainly,  as  long  as  these  products  are  on  the  lands  which  produce 
them,  they  are  part  of  the  general  property  of  the  state.  And  so  we 
think  they  continue  to  be  until  they  have  entered  upon  their  final  jour- 
ney for  leaving  the  state  and  going  into  another  state.  It  is  true,  it 
was  said  in  the  case  of  The  Daniel  Ball,  10  Wall.  557,  565,  19  L.  Ed. 
999 :  "Whenever  a  commodity  has  begun  to  move  as  an  article  of  trade 
from  one  state  to  another,  commerce  in  that  commodity  between  the 
states  has  commenced."  But  this  movement  does  not  begin  until  the 
articles  have  been  shipped  or  started  for  transportation  from  the  one 
state  to  the  other.  The  carrying  of  them  in  carts  or  other  vehicles,  or 
even  floating  them,  to  the  depot  where  the  journey  is  to  commence,  is 
no  part  of  that  journey.  That  is  all  preliminary  work,  performed  for 
the  purpose  of  putting  the  property  in  a  state  of  preparation  and  readi- 
ness for  transportation.  Until  actually  launched  on  its  way  to  another 
state,  or  committed  to  a  common  carrier  for  transportation  to  such 
state,  its  destination  is  not  fixed  and  certain.  It  may  be  sold  or  other- 
wise disposed  of  within  the  state,  and  never  put  in  course  of  transpor- 
tation out  of  the  state.  Carrying  it  from  the  farm,  or  the  forest,  to 
the  depot,  is  only  an  interior  movement  of  the  property,  entirely  within 
the  state,  for  the  purpose,  it  is  true,  but  only  for  the  purpose,  of  put- 
ting it  into  a  course  of  exportation ;  it  is  no  part  of  the  exportation  it- 
ll.\i.r.  < 


1074  THE    FEDERAL   GOVERNMENT  (Part  3 

self.  Until  shipped  or  started  on  its  final  journey  out  of  the  state  its 
exportation  is  a  matter  altogether  in  fieri,  and  not  at  all  a  fixed  and 
certain  thing. 

The  application  of  these  principles  to  the  present  case  is  obvious. 
The  logs  which  were  taxed,  and  the  tax  on  which  was  not  abated  by 
the  Supreme  Court  of  New  Hampshire,  had  not,  when  so  taxed,  been 
shipped  or  started  on  their  final  voyage  or  journey  to  the  state  of 
.Maine.  They  had  only  been  drawn  down  from  Wentworth's  location 
to  Errol,  the  place  from  which  they  were  to  be  transported  to  Lewis- 
ton  in  the  state  of  Maine.  There  they  were  to  remain  until  it  should 
be  convenient  to  send  them  to  their  destination.  They  come  precisely 
within  the  character  of  property  which,  according  to  the  principles 
herein  laid  down,  is  taxable.  But  granting  all  this,  it  may  still  be  per- 
tinently asked,  How  can  property  thus  situated,  to  wit,  deposited  or 
stored  at  the  place  of  entrepot  for  future  exportation,  be  taxed  in  the 
regular  way  as  part  of  the  property  of  the  state?  The  answer  is  plain. 
It  can  be  taxed  as  all  other  property  is  taxed,  in  the  place  where  it  is 
found,  if  taxed,  or  assessed  for  taxation,  in  the  usual  manner  in  which 
such  property  is  taxed ;  and  not  singled  out  to  be  assessed  by  itself  in 
an  unusual  and  exceptional  manner  because  of  its  destination.  If  thus 
taxed,  in  the  usual  way  that  other  similar  property  is  taxed,  and  at  the 
same  rate,  and  subject  to  like  conditions  and  regulations,  the  tax  is 
valid.  In  other  words,  the  right  to  tax  the  property  being  founded  on 
the  hypothesis  that  it  is  still  a  part  of  the  general  mass  of  property  in 
the  state,  it  must  be  treated  in  all  respects  as  other  property  of  the 
same  kind  is  treated.     *     *     * 

Judgment  affirmed.2 

-  Accord  (commodities  subject  to  state  taxation) :  Diamond  Match  Co.  v. 
Ontonagon,  1SS  U.  S.  82,  23  Sup.  Ct.  266,  47  L.  Ed.  394  (1903)  (loss  held  in 
river  to  be  shipped  as  needed);  American  Steel  Co.  v.  Speed,  192  U.  S.  500. 
24  Sup.  Ct.  365,  4S  L.  Ed.  538  (1904)  (goods  stored  after  interstate  transit 
and  used  to  fill  both  interstate  and  local  orders);  General  Oil  Co.  v.  Crain. 
209  U.  S.  211,  230,  231,  28  Sup.  Ct.  475,  482,  52  L.  Ed.  754  (1908)  (same  of  oil), 
in  which  it  was  said  by  McKenna,  J.: 

"The  company  was  doing  business  in  the  state,  and  its  property  was  re- 
ceiving the  protection  of  the  state.  Its  oil  was  not  in  movement  through  thu 
state.  It  had  reached  the  destination  of  its  first  shipment,  and  it  was  held 
there,  not  in  necessary  delay  or,  accommodation  to  the  means  of  transporta- 
tion, as  in  State,  Detnold,  Prosecutor,  v.  Engle  [34  N.  J.  Law,  4251.  but  for 
the  business  purposes  and  profit  of  the  company.  It  was  only  there  for  dis- 
tribution, it  is  said,  to  fulfil  orders  already  received.  But  to  do  this  required 
that  the  property  be  given  a  locality  in  the  state  beyond  a  mere  halting  in  its 
transportation.  It  required  storage  there, — the  maintenance  of  the  means  of 
storage;  of  putting  it  in  and  taking  it  from  storage.  *  *  *  This  certainly 
describes  a  business, — describes  a  purpose  for  which  the  oil  is  taken  from 
transportation,  brought  to  rest  in  the  state,  and  for  which  the  protection  of 
the  state  is  necessary, — a  purpose  outside  of  the  mere  transportation  of  the 
oil." 

General  Oil  Co.  v.  Crain  was  followed  in  Bacon  v.  Illinois,  227  U.  S    504, 

33  Sup.  Ct.  299,  57  L.  Ed.  (1913)  (grain  removed  from  car  in  transit  for 

purpose  of  inspecting,  weighing,  grading,  and  cleaning  it),  and  in  Susquehanna 
Coal  Co.  v.  Mayor,  etc.,  of  South  Amboy,  22S  U.  S.  665,  33  Sup.  Ct.  712,  57  L. 
Ed.  (1913)  (coal  stored  at  point  in  transit,  for  purpose  of  distribution). 

Interstate  Shipments  on  Local  Bills  of  Lading. — The  carriage  of  goods, 


Ch.  18)  REGULATION    OF    COMMKKCB  1U7."> 

WILLSON  v.  BLACKBIRD  CREEK  MARSH  CO. 
(Supreme  Court  of  United  States,  1829.    2  Pet  245,  7  L.  Ed.  412.) 

[Error  to  the  High  Court  of  Errors  and  Appeals  of  Delaware.  Un- 
der legislative  authority  from  Delaware  the  plaintiff  company  erected 
a  dam  across  Blackbird  creek  and  banked  the  creek.  Defendants,  own- 
ers of  the  sloop  "Sally,"  regularly  licensed  and  enrolled  under  the  nav- 
igation laws  of  the  United  States,  broke  the  dam,  and  were  sued  in 
trespass  for  $20,000  damages.  The  defendants  pleaded  that  the  creek- 
was  a  navigable  tidal  water  which  all  citizens  might  of  common  ri^'ht 
navigate,  that  said  dam  was  wrongfully  erected  obstructing  naviga- 
tion, and  that  in  order  to  pass  with  their  sloop  they  broke  the  dam, 
doing  as  little  damage  as  possible.  Judgment  upon  demurrer  was  giv- 
en against  defendants  on  this  plea  and  was  affirmed  by  the  state  Court 
of  Appeals.  In  argument  before  the  federal  Supreme  Court,  c 
for  Willson  relied  upon  Gibbons  v.  Ogden,  ante,  p.  1053,  urging  that 
the  Delaware  statute  was  inconsistent  with  Willson'6  federal  coasting 
license.  "If  Delaware  has  no  right  to  restrain  particular  vessels  from 
using  her  navigable  streams,  she  cannot  stop  the  navigation  oi 
streams."] 

Mr.  Chief  Justice  Marshall.  *  *  *  [After  holding  that  tin- 
record  showed  the  necessary  jurisdictional  facts:]  The  jurisdiction 
of  the  court  being  established,  the  more  doubtful  question  is  to  be 
considered,  whether  the  act  incorporating  the  Blackbird  Creek  Marsh 
Company  is  repugnant  to  the  Constitution,  so  far  as  it  authorizes  a 
dam  across  the  creek.  The  plea  states  the  creek  to  be  navigable,  in  the 
nature  of  a  highway,  through  which  the  tide  ebbs  and  flows. 

The  act  of  Assembly  by  which  the  plaintiffs  were  authorized  to  con- 
struct their  dam,  shows  plainly  that  this  is  one  of  those  many  creeks, 
passing  through  a  deep  level  marsh  adjoining  the  Delaware,  up  which 
the  tile  flows  for  some  distance.  The  value  of  the  property  on  its 
banks  must  be  enhanced  by  excluding  the  water  from  the  marsh,  and 
the  health  of  the  inhabitants  probably  improved.  Measures  calculated 
to  produce  these  objects,  provided  they  do  not  come  into  collision  with 
the  powers  of  the  general  government,  are  undoubtedly  within  those 

that  have  been  started  In  a  regular  course  of  transportation  to  a  point  outside 
of  the  state  of  origin  of  the  shipment,  is  subject  t"  federal  and  ii"t  to  state 
rate  regulation,  regardless  of  whether  it  takes  place,  in  whole  or  in  part,  anon 
c  interstate  bills  of  lading.  See  So.  I'ac.  T.  Co.  v.  I.  r.  Commlss., 
post.  p.  1236;   Ohio  l:.  O  thington,  post  p.  1171,  i 

etc.,   Ry.  v.  Sabine  Tram  Co.,  '-'-'.    U.  S.   111.  ■"•::  Sup.  Ct.  229,  -"7   L.  Ed.  — 
(1913) ;'  La.  R.  <  -.11111!  is.  v.  Tex,  &  Pae  H 

i     i,i.  — .     Compare  <:uif.  etc..  Ky.  v.  Texas,  post,  p.  1171,  note;  and  see 
New  lork  ex  rel.  Pa.  By.  v.  Knight,  post,  p.  U27  (taxation  of  business  of  car- 

The  federal  Anti-Trust   Act  applies  to  a  local  terminal  railroad  delivering 
shipments  at  the  end  or  their  Interstate  Journey. .though  without  any  I 
bill  of  lading.     United  States  v.  Dnlon  stock  \d.  &   C.  Co.,  --<•  D.  S.  J 
Sup  Ct  83,  57  U  Ed.  —  (1912). 


1(J7()  Till:   FEDERAL   GOVERNMENT  (Part  3 

which  are  reserved  to  the  states.  But  the  measure  authorized  by  this 
act  stops  a  navigable  creek,  and  must  be  supposed  to  abridge  the 
rights  of  those  who  have  been  accustomed  to  use  it.  But  this  abridg- 
ment, unless  it  comes  in  conflict  with  the  Constitution  or  a  law  of  the 
United  States,  is  an  affair  between  the  government  of  Delaware  and  its 
citizens,  of  which  this  court  can  take  no  cognizance. 

The  counsel  for  the  plaintiffs  in  error  insist  that  it  comes  in  conflict 
with  the  power  of  the  United  States  "to  regulate  commerce  with  for- 
eign nations  and  among  the  several  states."  If  Congress  had  passed 
any  act  which  bore  upon  the  case;  any  act  in  execution  of  the  power 
to  regulate  commerce,  the  object  of  which  was  to  control  state  legisla- 
tion over  those  small  navigable  creeks  into  which  the  tide  flows,  and 
which  abound  throughout  the  lower  country  of  the  Middle  and  South- 
ern states ;  we  should  feel  not  much  difficulty  in  saying  that  a  state  _ 
law  coming  in  conflict  with  such  act  would  be  void.  But  Congress  has 
passed  no  such  act.  The  repugnancy  of  the  law  of  Delaware  to  the 
Constitution  is  placed  entirely  on  its  repugnancy  to  the  power  to  regu- 
late commerce  with  foreign  nations  and  among  the  several  states;  a 
power  which  has  not  been  so  exercised  as  to  affect  the  question. 

We  do  not  think  that  the  act  empowering  the  Blackbird  Creek  Marsh 
Company  to  place  a  dam  across  the  creek,  can,  under  all  the  circum- 
stances of  the  case,  be  considered  as  repugnant  to  the  power  to  regu- 
late commerce  in  its  dormant  state,  or  as  being  in  conflict  with  any 
law  passed  on  the  subject. 

Judgment  affirmed.1 


LICENSE  CASES. 

(Supreme  Court  of  United  States,  1847.    5  How.  504,  12  L.  Ed.  256.) 

[Error  to  the  Supreme  Courts  of  Massachusetts  and  Rhode  Island, 
and  to  the  Superior  Court  of  New  Hampshire,  in  the  cases  of  Thur- 
low  v.  Massachusetts,  Fletcher  v.  Rhode  Island,  and  Peirce  v.  New 
Hampshire.  In  each,  the  state  court  had  affirmed  the  validity  of  stat- 
utes requiring  licenses  for  the  sale  of  liquor,  even  though  brought  into 
the  state  from  other  states  or  foreign  countries.     Other  facts  appear 

i  "The  only  question  in  the  case  [Gibbons  v.  Ogden]  was  whether  all  vessels 
enrolled  and  licensed  by  Congress  had  not  the  right  to  pass  over  the  same 
waters  as  freely  as  the  vessels  of  the  monopolists.  The  court  said  they  had. 
*  *  *  But  the  court  did  not  say  that  an  obstruction  placed  in  the  water, 
which  renders  navigation  inconvenient  or  hazardous,  is  a  violation  of  the  act 
for  licensing  and  enrolling  coasting  vessels,  or  in  conflict  with  it.  *  *  * 
The  result  of  those  two  cases  [Gibbons  v.  Ogden  and  Willson  v.  Blackbird 
Creek  Co.]  is  this :  The  act  of  Congress  gives  to  vessels  enrolled  and  licensed 
under  it  the  right  to  navigate  the  public  waters  wherever  they  find  them 
navigable.  *  *  *  But  this  act  of  Congress  has  no  application  to  an  ob- 
struction created  by  a  dam  across  the  navigable  water,  and,  without  further 
legislation  by  Congress,  the  law  of  Delaware  which  authorized  the  dam  was 
constitutional  and  valid." — Taney,  C.  J.,  dissenting,  in  Pennsylvania  v.  Wheel- 
ing Bridge  Co.,  13  How.  518,  5S5,  5S6,  14  L.  Ed.  249  (1851). 


Ch.  IS)  REGULATION    OF    COMMBBCB  W77 

jn  the  opinion  below.     In  the  federal  Supreme  Court  there  was  no 
opinion  of  the  court,  but  one  by  each  of  six  justices  for  himself.] 

Mr.  Chief  Justice  Taney.  *  *  *  The  judgment*  of  the  re- 
spective state  courts  are  severally  affirmed.  The  justices  of  this  court 
do  not,  however,  altogether  agree  in  the  priii    ,  which  these 

cases  are  decided,  and  I  therefore  proceed  to  state  the  gn 
which   I  concur  in  affirming  the  judgments.     *     *     *      |  I 
chusetts  and  Rhode  Island  statutes  were  upheld  on  the  ground  that  no 
question  of  a  sale  in  original  packages  was  involved.] 

I  now  come  to  the  New  Hampshire  case,  in  which  a  different  prin- 
ciple is  involved, — the  question,  however,  arising  under  the  same 
clause  in  the  Constitution,  and  depending  on  its  construction.  The  law 
of  New  Hampshire  prohibits  the  sale  of  distilled  spirits,  in  any  quan- 
tity, without  a  license  from  the  selectmen  of  the  town  in  which  the 
party  resides.  The  plaintiffs  in  error,  who  were  merchants  in  Dover, 
in  New  Hampshire,  purchased  a  barrel  of  gin  in  Boston,  brought  it  to 
Dover,  and  sold  it  in  the  cask  in  which  it  was  imported,  without  a  li- 
cense from  the  selectmen  of  the  town.  For  this  sale  they  were  in- 
dicted, convicted,  and  fined,  under  the  law  above  mentioned. 

The  power  to  regulate  commerce  among  the  several  states  is  granted 
to  Congress  in  the  same  clause,  and  by  the  same  words,  as  the 
to  regulate  commerce  with  foreign  nations,  and  is  coextensive  with  it. 
And,  according  to  the  doctrine  in  Crown  v.  Maryland  [12  Wheat.  419, 
6  L.  Ed.  678],  the  article  in  question,  at  the  time  of  the  sale,  was  sub- 
ject to  the  legislation  of  Congress.  The  present  case,  however, 
from  Brown  v.  State  of  Maryland  in  this, — that  the  former  was  one 
arising  out  of  commerce  with  foreign  nations,  which  Congress  had 
regulated  by  law ;  whereas  the  present  is  a  case  of  commerce  between 
two  states,  in  relation  to  which  Congress  has  not  exercised  its  power. 
*  *  *  This  case  differs  also  from  the  cases  of  Massachusetts  and 
Rhode  Island ;  because,  in  these  two  cases,  the  laws  of  the  states  oper- 
ated upon  the  articles  after  they  had  passed  beyond  the  limits  of  for- 
eign commerce,  and  consequently  were  beyond  the  control  and  power 
of  Congress.  But  the  law  of  New  Hampshire  acts  directly  upon  an 
import  from  one  state  to  another,  while  in  the  hands  of  the  importer 
for  sale,  and  is  therefore  a  regulation  of  commerce,  acting  upon  the 
article  while  it  is  within  the  admitted  jurisdiction  of  the  general  gov- 
ernment, and  subject  to  its  control  and  regulation.     *     *     * 

It  is  well  known  that. upon  this  subject  a  difference  of  opinion  has 
existed,  and  still  exists,  among  the  members  of  this  court.  But  with 
every  respect  for  the  opinion  of  my  brethren  with  whom  I  do  nol 
agree,  it  appears  to  me  to  be  very  clear,  that  the  mere  grant  of  power 
to  the  general  government  cannot,  upon  any  just  principles  of  con- 
struction, be  construed  to  be  an  ; 

any  power  over  the  same  subject  by  the  Mates.      The  controlling  ami 
supreme  power  over  commerce  with   foreign   nations  and  the 
states  is  undoubtedly  conferred  upon  Congress.     Yet,  in  my  judgment, 


1078  the  federal  government  (Part  3 

the  state  may,  nevertheless,  for  the  safety  or  convenience  of  trade,  or 
for  the  protection  of  the  health  of  its  citizens,  make  regulations  of 
commerce  for  its  own  ports  and  harbors,  and  for  its  own  territory ; 
and  such  regulations  are  valid  unless  they  come  in  conflict  with  a  law 
of  Congress.  Such  evidently,  I  think,  was  the  construction  which  the 
Constitution  universally  received  at  the  time  of  its  adoption,  as  appears 
from  the  legislation  of  Congress  and  of  the  several  states ;  and  a  care- 
ful examination  of  the  decisions  of  this  court  will  show,  that,  so  far 
from  sanctioning  the  opposite  doctrine,  they  recognize  and  maintain 
the  power  of  the  states. 

The  language  in  which  the  grant  of  power  to  the  general  govern- 
ment is  made,  certainly  furnishes  no  warrant  for  a  different  construc- 
tion, and  there  is  no  prohibition  to  the  states.  Neither  can  it  be  in- 
ferred by  comparing  the  provision  upon  this  subject  with  those  that 
relate  to  other  powers  granted  by  the  Constitution  to  the  general  gov- 
ernment. On  the  contrary,  in  many  instances,  after  the  grant  is  made. 
the  Constitution  proceeds  to  prohibit  the  exercise  of  the  same  power 
by  the  states  in  express  terms;  in  some  cases  absolutely,  in  others 
without  the  consent  of  Congress.  And  if  it  was  intended  to  forbid 
the  states  from  making  any  regulations  of  commerce,  it  is  difficult  to 
account  for  the  omission  to  prohibit  it,  when  that  prohibition  has  been 
so  carefully  and  distinctly  inserted  in  relation  to  other  powers,  where 
the  action  of  the  state  over  the  same  subject  was  intended  to  be  en- 
tirely excluded.  But  if,  as  I  think,  the  framers  of  the  Constitution 
(knowing  that  a  multitude  of  minor  regulations  must  be  necessary, 
which  Congress  amid  its  great  concerns  could  never  find  time  to  con- 
sider and  provide)  intended  merely  to  make  the  power  of  the  federal 
government  supreme  upon  this  subject  over  that  of  the  states,  then  the 
omission  of  any  prohibition  is  accounted  for,  and  is  consistent  with  the 
whole  instrument.     *     *     * 

I  have  said  that  the  legislation  of  Congress  and  the  states  has  con- 
formed to  this  construction  from  the  foundation  of  the  government. 
This  is  sufficiently  exemplified  in  the  laws  in  relation  to  pilots  and 
pilotage,  and  the  health  and  quarantine  laws.  *  *  *  [Here  fol- 
low references  to  various  state  laws  upon  these  subjects.]  Now,  so 
far  as  these  laws  interfere  with  shipping,  navigation,  or  foreign  com- 
merce, or  impose  burdens  upon  either  of  them,  they  are  unquestion- 
ably regulations  of  commerce.  Yet,  as  I  have  already  said,  the  power 
has  been  continually  exercised  by  the  states,  has  been  continually  rec- 
ognized by  Congress  ever  since  the  adoption  of  the  Constitution,  and 
constantly  affirmed  and  supported  by  this  court  whenever  the  subject 
came  before  it.  *  *  *  [Here  follows  a  discussion  of  Gibbons  v. 
Ogden,  ante,  p.  1053,  and  of  Willson  v.  Blackbird  Creek  Co.,  ante,  p. 
1075,  in  the  course  of  which  occurs  the  passage  printed  ante,  p.  323.] 

Upon  the  whole,  therefore,  the  law  of  New  Hampshire  is,  in  mv 
judgment,  a  valid  one.  For,  although  the  gin  sold  was  an  import  from 
another  state,  and  Congress  have  clearly  the  power  to  regulate  such 


Ch.  18)  REGULATION    OF    COMMBBC1  1079 

importations,  under  the  grant  of  power  to  regulate  commerce  among 
the  several  states,  yet,  as  Congress  has  made  no  regulation  on  the  sub- 
ject, the  traffic  in  the  article  may  be  lawfully  regulated  by  the  state  as 
soon  as  it  is  landed  in  its  territory,  and  a  tax  imposed  upon  it,  or  a 
license  required,  or  the  sale  altogether  prohibited,  according  to  the  pol- 
icy which  the  state  may  suppose  to  be  its  interest  or  duty  to  pursue. 

Judgments  affirmed. 

[Catron,  Woodisury,  McLean,  Grier,  and  Daniel,  JJ.,  gave 
concurring  opinions,  which  differed  chiefly  as  to  whether  the  state 
statutes  here  should  be  classified  as  regulations  of  commerce,  or  not. 
Nelson,  J.,  concurred  with  Taney  and  Catron,  JJ. ;  and  Wayne 
and  McKinley,  JJ.,  apparently  concurred  generally.] l 


COOLEY  v.  BOARD  OF  WARDENS  OF   PHILADELPHIA. 
(Supreme  Court  of  United  States,  1S51.    12  How.  299,  13  L.  Ed.  996.) 

[Error  to  the  Supreme  Court  of  Pennsylvania.  A  state  statute 
required  vessels  with  certain  exceptions,  to  receive  pilots  for  enter- 
ing or  leaving  the  port  of  Philadelphia,  and  those  who  did  not  were 
required  to  pay  half-pilotage  to  the  use  of  the  Society  for  the  Relief 
of  Decayed  Pilots.  A  suit  against  Cooley  to  recover  such  half- 
pilotage  was  decided  for  the  plaintiff  in  the  state  courts.  | 

Mr.  Justice  Curtis.  *  *  *  [After  holding  that  the  regulation 
did  not  impose  duties  on  imports,  exports,  or  tonnage,  or  give  a 
preference  to  the  ports  of  one  state  over  those  of  another:]  It  re- 
mains to  consider  the  objection  that  it  is  repugnant  to  the  third 
clause  of  the  eighth  section  of  the  first  article.  "The  Congress  shall 
have  power  to  regulate  commerce  with  foreign  nations  and  among 
the  several  states,  and  with  the  Indian  tribes." 

That  the  power  to  regulate  commerce  includes  the  regulation  of 
navigation,  we  consider  settled.  And  when  we  look  to  the  nature  of 
the  service  performed  by  pilots,  to  the  relations  which  that  service 
and  its  compensations  bear  to  navigation  between  the  several  states, 
and  between  the  ports  of  the  United  States  and  foreign  countries,  we 
are  brought  to  the  conclusion,  that  the  regulation  of  the  qualifica- 
tions of  pilots,  of  the  modes  and  times  of  offering  and  rendering 
their  services,  of  the  responsibilities  which  shall  rest  upon  them,  of 
the  powers   they  shall   possess,   of  the   compensation  they  may  de- 

i  it  was  said  later  that  a  majority  of  the  Judges  in  the  principal  cane 
thought  tin*  power  of  Congress  Dot  exclusion  7  How 

283,    170,  659,  12  L.  Ed.  702  (1849).     This  case  held   Invalid  a  stale  statute 
taxing  persons  doming  Prom  foreign  countries,  as  Inconsistent  with  0 

stitulioii.  and  with  certain  aets  Of  Congress  and  federal  treaties.     A    majority 

nit  refused  to  affirm  that  the  power  was  excluslvi 

ludges  dissented  from  the  decision.    See,  also.  Mayor  of  N.  T.  v.  Miln,  n  Pet 
L02,  9  L.  Ed.  648  (1837). 


1080  THE  FEDERAL   GOVERNMENT  (Part  3 

mand,  and  of  the  penalties  by  which  their  rights  and  duties  may  be 
enforced,  do  constitute  regulations  of  navigation,  and  consequently 
of  commerce,  within  the  just  meaning  of  this  clause  of  the  Constitu- 
tion. 

The  power  to  regulate  navigation  is  the  power  to  prescribe  rules 
in  conformity  with  which  navigation  must  be  carried  on.  It  ex- 
tends to  the  persons  who  conduct  it,  as  well  as  to  the  instruments 
used.  Accordingly,  the  first  Congress  assembled  under  the  Con- 
stitution passed  laws,  requiring  the  masters  of  ships  and  vessels  of 
the  United  States  to  be  citizens  of  the  United  States,  and  established 
many  rules  for  the  government  and  regulation  of  officers  and  sea- 
men. 1  Stats,  at  Large,  55,  131.  These  have  been  from  time  to 
time  added  to  and  changed,  and  we  are  not  aware  that  their  validity 
has  been  questioned.     *     *     * 

It  becomes  necessary,  therefore,  to  consider  whether  this  law  of 
Pennsylvania,  being  a  regulation  of  commerce,  is  valid. 

The  Act  of  Congress  of  the  7th  of  August,  1789,  §  4,  is  as  follows : 

"That  all  pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the 
United  States  shall  continue  to  be  regulated  in  conformity  with  the 
existing  laws  of  the  states,  respectively,  wherein  such  pilots  may  be, 
or  with  such  laws  as  the  states  may  respectively  hereafter  enact  for 
the  purpose,  until  further  legislative  provision  shall  be  made  by  Con- 
gress." 

If  the  law  of  Pennsylvania,  now  in  question,  had  been  in  existence 
at  the  date  of  this  act  of  Congress,  we  might  hold  it  to  have  been 
adopted  by  Congress,  and  thus  made  a  law  of  the  United  States,  and 
so  valid.  Because  this  act  does,  in  effect,  give  the  force  of  an  act 
of  Congress,  to  the  then  existing  state  laws  on  this  subject,  so  long 
as  they  should  continue  unrepealed  by  the  state  which  enacted  them. 
But  the  law  on  which  these  actions  are  founded,  was  not  enacted  till 
1803.  What  effect  then  can  be  attributed  to  so  much  of  the  act  of 
1789  as  declares  that  pilots  shall  continue  to  be  regulated  in  con- 
formity "with  such  laws  as  the  states  may  respectively  hereafter 
enact  for  the  purpose,  until  further  legislative  provision  shall  be  made 
by  Congress"? 

If  the  states  were  divested  of  the  power  to  legislate  on  this  subject 
by  the  grant  of  the  commercial  power  to  Congress,  it  is  plain  this  act 
could  not  confer  upon  them  power  thus  to  legislate.  If  the  Constitu- 
tion excluded  the  states  from  making  any  law  regulating  commerce, 
certainly  Congress  cannot  regrant,  or  in  any  manner  reconvey  to  the 
states  that  power.  And  yet  this  act  of  1789  gives  its  sanction  only 
to  laws  enacted  by  the  states.  This  necessarily  implies  a  constitu- 
tional power  to  legislate;  for  only  a  rule  created  by  the  sovereign 
power  of  a  state  acting  in  its  legislative  capacity,  can  be  deemed  a 
law  enacted  by  a  state;  and  if  the  state  has  so  limited  its  sovereign 
power  that  it  no  longer  extends  to  a  particular  subject,  manifestly  it 
cannot,  in  any  proper  sense,  be  said  to  enact  laws  thereon.     Enter- 


Ch.  18)  UKGULATION    OF    COMMKKCE  1081 

taining  tlicse  views,  we  are  brought  directly  and  unavoidably  to  the 
consideration  of  the  question,  whether  the  grant  of  the  commercial 
power  to  Congress  did  per  se  deprive  the  states  of  all  power  to  regu- 
late pilots.  This  question  has  never  been  decided  by  this  court,  nor, 
in  our  judgment,  has  any  case  depending  upon  all  the  considers 
which  must  govern  this  one,  come  before  this  court.  The  grant  of 
commercial  power  to  Congress  does  not  contain  any  terms  which  ex- 
pressly exclude  the  states  from  exercising  an  authority  over  its  sub- 
ject-matter. If  they  are  excluded,  it  must  be  because  the  nature  of 
the  power  thus  granted  to  Congress  requires  that  a  similar  authority 
should  not  exist  in  the  states.  If  it  were  conceded  on  the  one  side 
that  the  nature  of  this  power,  like  that  to  legislate  for  the  District  of 
Columbia,  is  absolutely  and  totally  repugnant  to  the  existence  of 
similar  power  in  the  states,  probably  no  one  would  deny  that  the 
grant  of  the  power  to  Congress,  as  effectually  and  perfectly  excludes 
the  states  from  all  future  legislation  on  the  subject,  as  if  express 
words  had  been  used  to  exclude  them.  And  on  tho  other  hand,  if  it 
were  admitted  that  the  existence  of  this  power  in  Congress,  like  the 
power  of  taxation,  is  compatible  with  the  existence  of  a  similar  power 
in  the  states,  then  it  would  be  in  conformity  with  the  contemporary 
exposition  of  the  Constitution  ("Federalist,"  \'o.  32),  and  with  the 
judicial  construction  given  from  time  to  time  by  this  court,  after  the 
most  deliberate  consideration,  to  hold  that  the  mere  grant  of  such  a 
power  to  Congress,  did  not  imply  a  prohibition  on  the  states  to  ex- 
ercise the  same  power;  that  it  is  not  the  mere  existence  of  such  a 
power,  but  its  exercise  by  Congress,  which  may  be  incompatible  with 
the  exercise  of  the  same  power  by  the  states,  and  that  the  states  may 
legislate  in  the  absence  of  congressional  regulations.  Sturges  v. 
Crowninshield,  4  Wheat.  193,  4  L.  Ed.  529;  Houston  v.  Moore,  5 
Wheat.  1,  5  L.  Ed.  19;  Willson  v.  Blackbird  Creek  Co.,  2  Pet.  251. 
7  L.  Ed.  412. 

The  diversities  of  opinion,  therefore,  which  have  existed  on  this 
subject  have  arisen  from  the  different  views  taken  of  the  nature  of 
this  power.  But  when  the  nature  of  a  power  like  this  is  spoken  of, 
when  it  is  said  that  the  nature  of  the  power  requires  that  it  should 
be  exercised  exclusively  by  Congress,  it  must  be  intended  to  refer 
to  the  subjects  of  that  power,  and  to  say  they  are  of  such  a  nature 
as  to  require  exclusive  legislation  by  Congress.  Now,  the  power  to 
regulate  commerce,  embraces  a  vast  field,  containing  not  only  many, 
but  exceedingly  various  subjects,  quite  unlike  in  their  nature;  some 
imperatively  demanding  a  single  uniform  rule,  operating  equally  on 
the  commerce  of  the  United  States  in  every  port ;  and  some,  like  the 
subject  now  in  question,  as  imperatively  demanding  that  diversity, 
which  alone  can  meet  the  local  nea       ties  ot  navigation. 

Either  absolutely  to  affirm,  or  deny  that  the  nature  of  this  power 
requires  exclusive  legislation  by  Congress,  is  to  lose  sight  of  the  na 
iure  of  the  subjects  of  this  power,  and  to  assert  concerning 


1082  THE   FEDERAL   GOVERNMENT  (Part  3 

them,  what  is  really  applicable  but  to  a  part.  Whatever  subjects  of 
this  power  are  in  their  nature  national,  or  admit  only  of  one  uniform 
system,  or  plan  of  regulation,  may  justly  be  said  to  be  of  such  a  na- 
ture as  to  require  exclusive  legislation  by  Congress.  That  this  cannot 
be  affirmed  of  laws  for  the  regulation  of  pilots  and  pilotage,  is  plain. 
The  act  of  1789  contains  a  clear  and  authoritative  declaration  by  the 
first  Congress,  that  the  nature  of  this  subject  is  such  that  until  Con- 
gress should  find  it  necessary  to  exert  its  power,  it  should  be  left  to 
the  legislation  of  the  states;  that  it  is  local  and  not  national;  that 
it  is  likely  to  be  the  best  provided  for,  not  by  one  system,  or  plan  of 
regulations,  but  by  as  many  as  the  legislative  discretion  of  the  sev- 
eral states  should  deem  applicable  to  the  local  peculiarities  of  the 
ports  within  their  limits.     . 

Viewed  in  this  light,  so  much  of  this  act  of  1789,  as  declares  that 
pilots  shall  continue  to  be  regulated  "by  such  laws  as  the  states  may 
respectively  hereafter  enact  for  that  purpose,"  instead  of  being  held 
to  be  inoperative,  as  an  attempt  to  confer  on  the  states  a  power  to 
legislate,  of  which  the  Constitution  had  deprived  them,  is  allowed  an 
appropriate  and  important  signification.  It  manifests  the  understand- 
ing of  Congress,  at  the  outset  of  the  government,  that  the  nature  of 
this  subject  is  not  such  as  to  require  its  exclusive- legislation.  The 
practice  of  the  states,  and  of  the  national  government,  has  been  in 
conformity  with  this  declaration,  from  the  origin  of  the  national  gov- 
ernment to  this  time;  and  the  nature  of  the  subject  when  examined, 
is  such  as  to  leave  no  doubt  of  the  superior  fitness  and  propriety,  not 
to  say  the  absolute  necessity,  of  different  systems  of  regulation,  drawn 
from  local  knowledge  and  experience,  and  conformed  to  local  wants. 
How,  then,  can  we  say  that,  by  the  mere  grant  of  power  to  regulate 
commerce,  the  states  are  deprived  of  all  the  power  to  legislate  on  this 
subject,  because  from  the  nature  of  the  power  the  legislation  of  Con- 
gress must  be  exclusive?  This  would  be  to  affirm  that  the  nature  of 
the  power  is,  in  this  case,  something  different  from  the  nature  of  the 
subject  to  which,  in  such  case,  the  power  extends,  and  that  the  nature 
of  the  power  necessarily  demands,  in  all  cases,  exclusive  legislation 
by  Congress,  while  the  nature  of  one  of  the  subjects  of  that  power, 
not  only  does  not  require  such  exclusive  legislation,  but  may  be 
best  provided  for  by  many  different  systems  enacted  by  the  states,  in 
conformity  with  the  circumstances  of  the  ports  within  their  limits. 
In  construing  an  instrument  designed  for  the  formation  of  a  govern- 
ment, and  in  determining  the  extent  of  one  of  its  important  grants 
of  power  to  legislate,  we  can  make  no  such  distinction  between  the 
nature  of  the  power  and  the  nature  of  the  subject  on  which  that  pow- 
er was  intended  practically  to  operate,  nor  consider  the  grant  more 
extensive  by  affirming  of  the  power  what  is  not  true  of  its  subject 
now  in  question. 

It  is  the  opinion  of  a  majority  of  the  court  that  the  mere  grant  to 
Congress   of  the   power   to   regulate  commerce,   did  not  deprive   the 


Cll.  18)  KEGULATION    OF   COMUBBCH  1083 

states  of  power  to  regulate  pilots,  and  that  although  Congress  has 
legislated  on  this  subject,  its  legislation  manifests  an  intention,  with 
a  single  exception,  not  to  regulate  this  subject,  but  to  leave  its  regu- 
lation to  the  several  states.  To  these  precise  questions,  which  are  all 
we  are  called  on  to  decide,  this  opinion  must  be  understood  to  be 
confined.  It  does  not  extend  to  the  question  what  other  subjects, 
under  the  commercial  power,  are  within  the  exclusive  control  of  Con- 
gress, or  may  be  regulated  by  the  states  in  the  absence  of  all  con- 
gressional legislation ;  nor  to  the  general  question,  how  far  any  reg- 
ulation of  a  subject  by  Congress,  may  be  deemed  to  operate  as  an 
exclusion  of  all  legislation  by  the  states  upon  the  same  subject.  We 
decide  the  precise  questions  before  us,  upon  what  we  deem  sound 
principles,  applicable  to  this  particular  subject  in  the  state  in  which 
islation  of  Congress  has  left  it.    We  go  no  further.     *     *     * 

Judgment  affirmed.1 

[McLean  and  Wayne,  JJ.,  dissented,  and  Daniel,  }.,  concurred 
for  other  reasons.] 


SECTION  3.— STATE  LEGISLATION  DISCRIMINATING 
AGAINST  NATIONAL  COMMERCE 


WELTON  v.  MISSOURI. 
(Supreme  Court  of  United  States,  1875.    91  U.  S.  275,  28  L.  FM.  347.) 

[Error  to  the  Supreme  Court  of  Missouri.  A  statute  required  a 
license  from  all  persons  peddling  in  the  state  goods  produced  or 
manufactured  elsewhere,  but  required  no  license  for  peddling  domes- 
tic goods.  Defendant  was  convicted  of  peddling,  without  a  license, 
sewing  machines  made  out  of  the  state,  and  this  was  affirmed  by  the 
state   Supreme  Court.] 

Mr.  Justice  Field.  *  *  *  The  license  charge  exacted  is 
sought  to  be  maintained  as  a  tax  upon  a  calling.  It  was  held  to  be 
such  a  tax  by  the  Supreme  Court  of  the  state;  a  calling,  says  the 
court,  which  is  limited  to  the  sale  of  merchandise  not  the  growth  or 
product  of  the  state. 

The  general  power  of  the  state  to  impose  taxes  in  the  way  of  li- 

i  The  rule  established  hy  this  case  was  earlier  suggested  by  Webster  as  coun- 
sel in  Glbbom  i  Wheat  ;>  l  I.  ><  I,.  Ed.  -.".  (1824).    See,  also, 
bury,  J.,  in  License  Cases,  ">  How.  at  624,  625,  12   U  I  d  .  and  in 
Passenger  Cases,  7  How.  :it  569  561,  12  i     i  .1    702  (1849). 

M.ist  <>f  the  subsequent  cases  In  which  state  pilotage  laws  have  been  upheld, 
except  where  Inconsistent  with  federal  statutes,  are  cited  in  Anderson 
S.  S.  Co.,  225  r.  s.  is;.  195,  204,  :'•'-'  Sni>.  Ct  &  L  1047  (1912) 

re  Thompson  v.  Darden,  198  D.  S.  310,  -'•'•  Sup  Ct  660,  19  L  E 
U'JOS);   Leech  v.  La..  214  V.  S.  175,  ^1)  Sup.  Ct.  552,  5^  L.  Ed.  966 


1084  THE  FEDERAL  GOVERNMENT  (Part  3 

censes  upon  all  pursuits  and  occupations  within  its  limits  is  admitted, 
but,  like  all  other  powers,  must  be  exercised  in  subordination  to  the 
requirements  of  the  federal  Constitution.  Where  the  business  or  oc- 
cupation consists  in  the  sale  of  goods,  the  license  tax  required  for  its 
pursuit  is  in  effect  a  tax  upon  the  goods  themselves.  If  such  a  tax 
be  within  the  power  of  the  state  to  levy,  it  matters  not  whether  it  be 
raised  directly  from  the  goods,  or  indirectly  from  them  through  the 
license  to  the  dealer;  but,  if  such  tax  conflict  with  any  power  vested 
in  Congress  by  the  Constitution  of  the  United  States,  it  will  not  be 
any  the  less  invalid  because  enforced  through  the  form  of  a  personal 
license.     *     *     * 

[After  discussing  Brown  v.  Maryland,  ante,  p.  1039,  and  p.  1062:] 
So,  in  like  manner,  the  license  tax  exacted  by  the  state  of  Missouri 
from  dealers  in  goods  which  are  not  the  product  or  manufacture  of 
the  state,  before  they  can  be  sold  from  place  to  place  within  the  state, 
must  be  regarded  as  a  tax  upon  such  goods  themselves ;  and  the  ques- 
tion presented  is,  whether  legislation  thus  discriminating  against  the 
products  of  other  states  in  the  conditions  of  their  sale  by  a  certain 
class  of  dealers  is  valid  under  the  Constitution  of  the  United  States. 
It  was  contended  in  the  state  courts,  and  it  is  urged  here,  that  this 
legislation  violates  that  clause  of  the  Constitution  which  declares  that 
Congress  shall  have  the  power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  states.  The  power  to  regulate  con- 
ferred by  that  clause  upon  Congress  is  one  without  limitation;  and 
to  regulate  commerce  is  to  prescribe  rules  by  which  it  shall  be  gov- 
erned,— that  is,  the  conditions  upon  which  it  shall  be  conducted;  to 
determine  how  far  it  shall  be  free  and  untrammelled,  how  far  it  shall 
be  burdened  by  duties  and  imposts,  and  how  far  it  shall  be  prohib- 
ited. 

Commerce  is  a  term  of  the  largest  import.  It  comprehends  inter- 
course for  the  purposes  of  trade  in  any  and  all  its  forms,  including 
the  transportation,  purchase,  sale,  and  exchange  of  commodities  be- 
tween the  citizens  of  our  country  and  the  citizens  or  subjects  of  other 
countries,  and  between  the  citizens  of  different  states.  The  power  to 
regulate  it  embraces  all  the  instruments  by  which  such  commerce 
may  be  conducted.  So  far  as  some  of  these  instruments  are  con- 
cerned, and  some  subjects  which  are  local  in  their  operation,  it  has 
been  held  that  the  states  may  provide  regulations  until  Congress  acts 
with  reference  to  them;  but  where  the  subject  to  which  the  power 
applies  is  national  in  its  character,  or  of  such  a  nature  as  to  admit  of 
uniformity  of  regulation,  the  power  is  exclusive  of  all  state  authority. 

It  will  not  be  denied  that  that  portion  of  commerce  with  foreign 
countries  and  between  the  states  which  consists  in  the  transportation 
and  exchange  of  commodities  is  of  national  importance,  and  admits 
and  requires  uniformity  of  regulation.  The  very  object  of  investing 
this  power  in  the  general  government  was  to  insure  this  uniformity 


Ch.  18)  REGULATION    OF    COMMERCE  108& 

against  discriminating  state  legislation.  The  depressed  condition  of 
commerce  and  the  obstacles  to  its  growth  previous  to  the  adoption 
of  the  Constitution,  from  the  want  of  some  single  controlling  author- 
ity, has  been  frequently  referred  to  by  this  court  in  commenting 
upon  the  power  in  question.     *     *     » 

The  power  which  insures  uniformity  of  commercial  regulation 
must  cover  the  property  which  is  transported  as  an  article  of  com- 
merce from  hostile  or  interfering  legislation,  until  it  has  mingled  with 
and  become  a  part  of  the  general  property  of  the  country,  and  sub- 
jected like  it  to  similar  protection,  and  to  no  greater  burdens.  If, 
at  any  time  before  it  has  thus  become  incorporated  into  the  mass  of 
property  of  the  state  or  nation,  it  can  be  subjected  to  any  restrictions 
by  state  legislation,  the  object  of  investing  the  control  in  Congress 
may  be  entirely  defeated.  If  Missouri  can  require  a  license  tax  for 
the  sale  by  travelling  dealers  of  goods  which  are  the  growth,  product, 
or  manufacture  of  other  states  or  countries,  it  may  require  such 
license  tax  as  a  condition  of  their  sale  from  ordinary  merchants,  and 
the  amount  of  the  tax  will  be  a  matter  resting  exclusively  in  its  dis- 
cretion. 

The  power  of  the  state  to  exact  a  license  tax  of  any  amount  being 
admitted,  no  authority  would  remain  in  the  United  States  or  in  this 
court  to  control  its  action,  however  unreasonable  or  oppressive.  Im- 
posts operating  as  an  absolute  exclusion  of  the  goods  would  be  pos- 
sible, and  all  the  evils  of  discriminating  state  legislation,  favorable 
to  the  interests  of  one  state  and  injurious  to  the  interests  of  other 
state-  and  countries,  which  existed  previous  to  the  adoption  of  the 
Constitution,  might  follow,  and  the  experience  of  the  last  fifteen 
years  shows  would  follow,  from  the  action  of  some  of  the  states. 

There  is  a  difficulty,  it  is  true,  in  all  cases  of  this  character,  in 
drawing  the  line  precisely  where  the  commercial  power  of  Congress 
nd  the  power  of  the  state  begins.  *  *  *  It  would  be  pre- 
mature to  state  any  rule  which  would  be  universal  in  its  application 
to  determine  when  the  commercial  power  of  the  federal  government 
over  a  commodity  has  ceased,  and  the  power  of  the  state  has  com- 
menced. It  is  sufficient  to  hold  now  that  the  commercial  power  con- 
tinues until  the  commodity  has  ceased  to  be  the  subject  of  discrim- 
inating legislation  by  reason  of  its  foreign  character.  That  power 
protects  it,  even  after  it  has  entered  the  state,  from  any  burdens  im- 
posed by  reason  of  its  foreign  origin.  The  act  of  Missouri  encroach- 
es upon  this  power  in  this  respect,  and  is  therefore,  in  our  judgment, 
unconstitutional  and  void. 

The  fact  that  Congress  has  not  seen  fit  to  prescribe  any  specific  rules 
to  govern  interstate  commerce  does  not  afreet  the  question.     It- 
tion  on  this  subject,  when  considered  with  reference  to  ii 
with  respect  to  foreign  commerce,  is  equivalent  to  a  declaration  that 
interstate  commerce  shall  be  free  and   untrammelled.     As  the   main 


10S6  THE   FEDERAL   GOVERNMENT  (Part  M 

object  of  that  commerce  is  the  sale  and  exchange  of  commodities, 
the  policy  thus  established  would  be  defeated  by  discriminating  leg- 
islation like  that  of  Missouri.     *     *     * 
Judgment  reversed.1 


MINNESOTA  v.  BARBER  (1890)  136  U.  S.  313,  321-323,  10 
Sup.  Ct.  862,  34  L.  Ed.  455,  Mr.  Justice  Harlan  (holding  invalid 
the  Minnesota  statute  stated  below) : 

"It  may  be  the  opinion  of  some  that  the  presence  of  disease  in  ani- 
mals, at  the  time  of  their  being  slaughtered,  cannot  be  determined  by 
inspection  of  the  meat  taken  from  them ;  but  we  are  not  aware  that 
such  is  the  view  universally,  or  even  generally,  entertained.  But  if, 
as  alleged,  the  inspection  of  fresh  beef,  veal,  mutton,  lamb,  or  pork 
will  not  necessarily  show  whether  the  animal  from  which  it  was  taken 
was  diseased  when  slaughtered,  it  would  not  follow  that  a  statute 
like  the  one  before  us  is  within  the  constitutional  power  of  the  state 
to  enact.  On  the  contrary,  the  enactment  of  a  similar  statute  by 
each  one  of  the  states  composing  the  Union  would  result  in  the  de- 
struction of  commerce  among  the  several  states,  so  far  as  such  com- 
merce is  involved  in  the  transportation  from  one  part  of  the  country 
to  another  of  animal  meats  designed  for  human  food,  and  entirely 
free  from  disease.  A  careful  examination  of  the  Minnesota  act  will 
place  this  construction  of  it  beyond  question. 

"The  first  section  prohibits  the  sale  of  any  fresh  beef,  veal,  mutton, 
lamb,  or  pork  for  human  food,  except  as  provided  in  that  act.  The 
second  and  third  sections  provide  that  all  cattle,  sheep,  and  swine  to 
be  slaughtered  for  human  food  within  the  respective  jurisdictions  of 

i  Accord  (as  to  various  discriminatory  pecuniary  exactions):  Cook  v.  Penn- 
sylvania. 97  U.  S.  566,  24  L.  Ed.  1015  (1S7S)  (auction  duties) ;  Guy  v.  Balti- 
more, 100  U.  S.  434,  25  L.  Ed.  743  (1S80)  (wharfage  fees):  Walling  v.  Michigan, 
116  U.  S.  446,  6  Sup.  Ct  454,  29  L.  Ed.  691  (1SS6)  (liquor  licenses);  Darnell 
&  Son  v.  Memphis,  20S  U.  S.  113,  2S  Sup.  Ct.  247,  52  L.  Ed.  413  (190S)  (prop- 
erty  tax) ;  Com.  v.  Caldwell.  190  Mass.  355,  76  N.  E.  955,  112  Am.  St.  Rep. 
334,  5  Ann.  Cas.  879  (1906)  (license  required  for  peddling  products  of  foreign 
countries  only).     See  Robbins  v.  Shelby  Tax.  Dist.,  post,  p.  1132. 

"None  of  [the]  cases  sustain  the  doctrine  that  an  occupation  can  be  taxed 
if  the  tax  is  so  specialized  as  to  operate  as  a  discriminative  burden  against 
the  introduction  and  sale  of  the  products  of  another  state,  or  against  the 
citizens  of  another  state." — Bradley,  J.,  in  Walling  v.  Michigan,  116  U.  S. 
446,  461,  6  Sup.  Ct.  454,  460,  29  L.  Ed.  691  (1SS6). 

"Excise  taxes  levied  by  a  state  upon  commodities  not  produced  to  any  con- 
siderable extent  by  the  citizens  of  the  state  may,  perhaps,  be  so  excessive 
and  unjust  in  respect  to  the  citizens  of  the  other  states  as  to  violate  [the 
commerce  clause]  of  the  Constitution,  even  though  Congress  has  not  legis- 
lated upon  that  precise  subject." — Clifford,  J.,  in  Ward  v.  Maryland,  12  Wall. 
41S.  429,  20  L.  Ed.  449  (1S71).  See  the  dissenting  opinion  of  Nelson,  J.,  iu 
Woodruff  v.  Parham,  8  Wall.  123,  145-147,  19  L.  Ed.  3S2  (1869)  as  to  the 
validity  of  such  taxes.  Compare  the  argument  of  "virtual  discrimination" 
denied  as  to  pilotage  regulations  in  Thompson  v.  Darden,  198  U.  S.  310,  25 
Sup.  Ct  660,  49  L.  Ed.  1064  (1905). 


Ch.  18)  i .1  ..i  i.atiun  of  1087 

the  inspectors,  shall  be  inspected  by  the  proper  local  inspector  ap- 
pointed in  Minnesota,  within  twenty-four  hours  before  the  animals 
are  slaughtered,  and  that  a  certificate  shall  be  made  by  such  inspec- 
tor, showing  (if  such  be  the  fact)  that  the  animals,  when  slaughtered, 
were  found  healthy  and  in  suitable  condition  to  be  slaughtered  for 
human  food.  The  fourth  section  mains  it  a  misdemeanor,  p 
able  by  fine  or  imprisonment,  for  any  one  to  sell,  expose,  or 
for  sale,  for  human  food,  in  the  state,  any  fresh  beef,  veal,  mutton, 
lamb,  or  pork,  not  taken  from  an  animal  inspected  and  'certified  be- 
fore slaughter,  by  the  proper  local  inspector'  appointed  under  that 
act.  As  the  inspection  must  take  place  within  the  twenty-four  hours 
immediately  before  the  slaughtering,  the  act,  by  its  necessary  op- 
eration, excludes  from  the  Minnesota  market,  practically,  all  fresh 
beef,  veal,  mutton,  lamb,  or  pork — in  whatever  form,  and  although 
entirely  sound,  healthy,  and  fit  for  human  food — taken  from  animal? 
slaughtered  in  other  states ;  and  directly  tends  to  restrict  the  slaugh- 
tering of  animals,  whose  meat  is  to,  be  sold  in  Minnesota  for  human 
food,  to  those  engaged  in  such  business  in  that  state.  This  must  be 
so,  because  the  time,  expense,  and  labor  of  sending  animals  from 
points  outside  of  Minnesota  to  points  in  that  state  to  be  there  in- 
spected, and  bringing  them  back,  after  inspection,  to  be  slaughtered 
at  the  place  from  which  they  were  sent — the  slaughtering  to  take 
place  within  twenty-four  hours  after  inspection,  else  the  certificate  of 
inspection  becomes  of  no  value — will  be  so  great  as  to  amount  to  an 
absolute  prohibition  upon  sales,  in  Minnesota,  of  meat  from  animals 
not  slaughtered  within  its  limits.  When  to  this  is  added  the  fact  that 
the  statute,  by  its  necessary  operation,  prohibits  the  sale,  in  the 
state,  of  fresh  beef,  veal,  mutton,  lamb,  or  pork,  from  animals  that 
may  have  been  inspected  carefully  and  thoroughly  in  the  state  where 
they  were  slaughtered,  and  before  they  were  slaughtered,  no  doubt 
can  remain  as  to  its  effect  upon  commerce  among  the  several  states. 
It  will  not  do  to  say — certainly  no  judicial  tribunal  can,  with  pro- 
priety, assume — that  the  people  of  Minnesota  may  not,  with  due  re- 
gard to  their  health,  rely  upon  inspections  in  other  states  of  animals 
there  slaughtered  for  purposes  of  human  food.  If  the  object  of  the 
statute  had  been  to  deny  altogether  to  the  citizens  of  other  states  the 
privilege  of  selling,  within  the  limits  of  Minnesota,  for  human  food, 
any  fresh  beef,  veal,  mutton,  lamb,  or  pork,  from  animals  slaugh- 
tered outside  of  that  state,  and  to  compel  the  people  of  Minnesota, 
wishing  to  buy  such  meats,  either  to  purchase  those  taken  from  an- 
imals inspected  and  slaughtered  in  the  state,  or  to  incur  the  cost  of 
purchasing  them,  when  desired  for  their  own  domestic  use.  at  points 
beyond  the  state,  that  object  is  attained  by  the  act  in  question.  Our 
duty  to  maintain  the  Constitution  will  not  permit  us  to  shut  oui 
to  these  obvious  and  necessary  results  of  the  Minnesota  statute.  If 
this  legislation  docs  not  make  such  discrimination  against  the 


1088  TIIE   FEDERAL   GOVERNMENT  (Part  3 

ucts  and  business  of  other  states  in  favor  of  the  products  and  busi- 
ness of  Minnesota  as  interferes  with  and  burdens  commerce  among 
the  several  states,  it  would  be  difficult  to  enact  legislation  that  would 
have  that  result."1 


REYM ANN  BREWING  CO.  v.  BRISTER  (1900)  179  U.  S.  445, 
451-454,  21  Sup.  Ct.  201,  45  L.  Ed.  269,  Mr.  Justice  Siiiras  (up- 
holding an  Ohio  statute  taxing  each  place  where  intoxicating  liquors 
were  sold  for  other  than  mechanical,  medical,  or  sacramental  pur- 
poses, $350  yearly,  except  sales  made  at  the  manufactory  by  the  man- 
ufacturer in  quantities  of  one  gallon  or  over) : 

"The  effect  of  this  is  claimed  to  be  that  the  domestic  manufacturer 
may  sell  liquor,  in  quantities  of  one  gallon  or  more,  at  the  place  of 
manufacture  without  being  subjected  to  the  tax,  and  that  thus  he  has 
an  advantage  over  the  foreign  manufacturer,  who  can  only  sell,  in 
Ohio,  at  some  other  place  than  the  place  of  manufacture,  and  is 
thereby  subjected  to  the  tax.  In  other  words,  while  the  domestic 
manufacturer  must  pay  the  tax  if  he  sells  at  other  places  than  the 
place  of  manufacture,  yet  as  he  is  declared  not  to  be  within  the  act 
in  selling  at  the  place  of  manufacture  in  quantities  not  less  than  one 
gallon  at  any  one  time,  such  a  provision  operates  as  an  illegal  dis- 

i  Accord  (as  to  various  discriminatory  regulations):  Brimmer  v.  Rebman, 
133  U.  S.  78,  11  Sup.  Ct.  213,  34  L.  Ed.  862  (1891)  (inspection  of  meat);  Voight 
v.  Wright,  141  U.  S.  62,  11  Sup.  Ct.  855,  35  L.  Ed.  638  (1891)  (inspection  of 
flour);  Scott  v.  Donald,  165  U.  S.  58,  17  Sup.  Ct.  265,  41  L.  Ed.  632  (1S97) 
(liquor  selling) ;  West  v.  Kansas  Nat.  Gas  Co.,  221  U.  S.  229,  201,  262,  31 
Sup.  Ct.  564,  573,  574,  55  L.  Ed.  716,  35  L.  R.  A.  (N.  S.)  1193  (1911)  (right  of 
eminent  domain  and  use  of  state  highways  forbidden  to  foreign  corporations 
engaged  in  interstate  piping  of  gas,  while  permitted  to  domestic  corporations 
engaged  in  intrastate  gas  business),  by  McKenna,  J. : 

"The  power  of  the  state  of  Oklahoma  over  highways  is  much  discussed  by 
appellant  and  appellees;  the  appellant  contending  for  a  power  practically 
absolute,  as  exercised  under  the  statute,  making  the  highways  impassable 
barriers  to  the  pipe  lines  of  appellees.  The  appellees  contend  for  a  more 
modified  and  limited  right  in  the  state,  one  not  extending  beyond  an  easement 
of  public  passage,  subject,  therefore,  to  certain  rights  in  the  abutting  owners, 
which  rights  can  be  transferred;  and  further  contend  that  even  if  the  power 
of  the  state  be  not  so  limited,  it  cannot  be  exercised  to  discriminate  against 
interstate  commerce. 

"The  rights  of  abutting  owners  we  will  not  discuss,  nor  the  rights  derived 
from  them  by  appellees,  except  to  say  that  whatever  rights  they  had,  they 
conveyed  to  appellees,  and  against  them  there  is  no  necessity  of  resorting  to 
the  exercise  of  eminent  domain.  We  place  our  decision  on  the  character  and 
purpose  of  the  Oklahoma  statute.  The  state,  as  we  have  seen,  grants  the  use 
of  the  highways  to  domestic  corporations  engaged  in  intrastate  transporta- 
tion of  natural  gas,  giving  such  corporations  even  the  right  to  the  longitudinal 
use  of  the  highways.  It  denies  to  appellees  the  lesser  right  to  pass  under 
them  or  over  them,  notwithstanding  it  is  conceded  in  the  pleadings  that  the 
greater  use  given  to  domestic  corporations  is  no  obstruction  to  them.  This 
discrimination  is  beyond  the  power  of  the  state  to  make.  As  said  by  the 
circuit  court  of  appeals  in  the  eighth  circuit,  no  state  can  by  action  or  inaction 
prevent,  unreasonably  burden,  discriminate  against,  or  directly  regulate,  inter- 
state commerce  or  the  right  to  carry  it  on.  And  in  all  of  these  inhibited  par- 
ticulars the  statute  of  Oklahoma  offends." 


Ch.  18)  Ki'lI.ATION    OF    COMMERCE  l"-'1 

crimination  against  the  foreign  competitor,  who  must  necessarily  sell 
at  places  other  than  the  place  of  manufacture. 

"Under  this  provision,  the  manufacturers,  whether  within  or  with- 
out the  state,  may  sell  at  the  manufactory  and  ship  to  any  part  of 
the  state  of  Ohio,  and  the  incidental  disadvantage  that  the  foreign 
manufacturer  is  under  that  if,  instead  of  selling  at  the  place  of  his 
plant,  he  wishes  to  establish  a  place  within  the  state  of  Ohio,  he  is 
d  to  pay  the  tax,  does  not  appear  to  arise  out  of  any  intention 
on  the  part  of  the  state  legislature  to  make  a  hostile  discrimination 
against  foreign  manufacturers.  If  an  Ohio  corporation  or  copart- 
p  should  establish  its  place  of  manufacture  in  another  state  it 
would  be  subjected  to  the  tax  if  it  sold  intoxicating  liquor  at  a  place 
within  the  state  of  Ohio;  and  if  a  foreign  corporation  should  manu- 
facture at  a  place  within  Ohio,  it  would  sell  its  product,  in  quantities 
not  less  than  one  gallon,  without  being  subjected  to  the  tax. 

"In  exempting  sales  in  quantities  exceeding  one  gallon  at  the  place 
of  manufacture,  and  in  imposing  the  tax  upon  such  sales  when  made 
at  places  elsewhere,  the  legislature  of'  Ohio  was,  in  the  exercise  of 
its  police  power,  aiming  to  restrict  the  evils  of  saloons,  or  places 
where  liquors  are  drunk.  By  imposing  the  tax  upon  the  latter,  tiiO 
law,  to  some  extent,  is  calculated  to  lessen  an  acknowledged  source 
of  vice  and  disorder. 

"The  supreme  court  of  the  state  of  Ohio,  in  construing  the  stat- 
ute in  question,  has  clearly  pointed  out  the  reasons  that  actuated  the 
legislature  in  distinguishing  between  places  where  the  liquors  are 
manufactured  and  those  where  liquors  are  sold  to  be  drunk  on  the 
premises.  Thus  in  the  case  of  Adler  v.  Whitbeck,  44  Ohio  St.  574. 
9  N.  E.  682,  that  court  said:  'It  was  for  the  legislature  to  determine 
the  form  of  the  traffic  that  required  to  be  regulated  as  a  source  of 
evil.  It  has  in  a  measure  drawn  a  line  between  a  distillery  and  a 
brewery  on  the  one  hand  and  a  saloon  on  the  other.  There  is  noth- 
ing unreal  in  the  distinction.  It  is  known  by  all  men,  and  in  one 
re-pect  probably  too  well  by  many  men.  And  unless  absolute  pro- 
hibition is  resorted  to  no  more  practical  distinction  could  be 
made.' "  l 

i  Compare  Cox  v.  Texas,  202  U.  S.  440,  20  Sup.  Ct  671.  60  L.   I: 
(1906). 

In  New   Mexico  v.  Denver,  etc.,  Ry.,  20.':  D.  S.  38,  64,  27  Sup.  Ot   1.  5,  51 
;-.  (1906),  a  statute  was  upheld  forbidding  the  shipment  out  of  the  ter- 
irrlers  of  ai  ■   bidi  ■■  brands  bad  not  been  officially 

il,  the  object  sought  being  the  prevention  of  the  theft  of  bjdi 
J  .  s."  ■!: 

•it  is  argued  that  this  act  lays  a  special  burden  upon  Interstate  coi 
i. .runs.',  under  the  law,  hairs  not  offered  tor  transportation  are  not  required 
to  be  Inspected  after  thirty  days  In  -  a  and  not  at  all  outside  ol 

slaughterhouses.     Bui   legislation  Is  not  roid  because  it  meets  th ■> 

of  a  particular  situation.     Other  sfc  rutory  provisions  apply  to  property  re- 
maining in  the  territory,  where  possibly  it  may  I"'  found  and  Identified.    When 
shipped  beyond  the  limits  of  the  territory  the  means  of  reaching  it  an 
Il.u.i.  Const.L.— 09 


1090  THE  FEDERAL   GOVERNMENT  (Part  3 

SECTION  4.— NON-DISCRIMINATORY   STATE   TAXATION 
I.  Taxes  Affecting  Transportation  or   Communication 


CASE  OF  THE  STATE  FREIGHT  TAX. 
(Supreme  Court  of  United  States,  1873.     15  Wall.  232,  21  L.  Ed.  140.) 

[Error  to  the  Supreme  Court  of  Pennsylvania,  which  had  upheld  a 
statute,  the  details  of  which  are  given  in  the  opinion  below,  taxing  the 
carriage  of  freight  in  the  state  from  two  to  five  cents  a  ton,  according 
to  its  character.] 

Mr.  Justice  Strong.  *  *  *  The  case  presents  the  question 
whether  the  statute  in  question — so  far  as  it  imposes  a  tax  upon 
freight  taken  up  within  the  state  and  carried  out  of  it,  or  taken  up  out- 
side the  state  and  delivered  within  it,  or,  in  different  words,  upon  all 
freight  other  than  that  taken  up  and  delivered  within  the  state — is  not 
repugnant  to  the  provision  of  the  Constitution  of  the  United  States 
which  ordains  "that  Congress  shall  have  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  states."     *     *     * 

Before  proceeding,  however,  to  a  consideration  of  the  direct  ques- 
tion whether  the  statute  is  in  direct  conflict  with  any  provision  of  the 
Constitution  of  the  United  States,  it  is  necessary  to  have  a  clear  appre- 
hension of  the  subject  and  the  nature  of  the  tax  imposed  by  it.  It  has 
repeatedly  been  held  that  the  constitutionality,  or  unconstitutionality 
of  a  state  tax  is  to  be  determined,  not  by  the  form  or  agency  through 
which  it  is  to  be  collected,  but  by  the  subject  upon  which  the  burden  is 
laid.     *     *     * 

Upon  what,  then,  is  the  tax  imposed  by  the  Act  of  August  25th, 
1864,  to  be  considered  as  laid?  Where  does  the  substantial  burden 
rest?  Very  plainly  it  was  not  intended  to  be,  nor  is  it  in  fact,  a  tax 
upon  the  franchise  of  the  carrying  companies,  or  upon  their  property, 

local  control,  and  it  is  the  purpose  of  §§  3  and  4  of  the  act  of  1901  to  preserve 
within  the  territory  a  record  of  the  brands  identifying  the  property  and  nam- 
ing the  purchaser  or  shipper.  Certainly  we  cannot  judicially  say  that  there 
can  be  no  valid  reason  for  making  the  inspection  in  question  apply  only  to 
hides  offered  for  transportation  beyond  the  territory,  and  that  for  that  reason 
the  tax  is  an  arbitrary  discrimination  against  interstate  traffic." 

Accord:  Turner  v.  Maryland,  107  U.  S.  38,  2  Sup.  Ct  44,  27  L.  Ed.  370 
(1S83)  (inspection  required  only  of  tobacco  to  be  shipped  out  of  state,  wit* 
view  to  enhancing  reputation  of  tobacco  grown  there);  Cooley  v.  Board  of 
Wardens,  12  How.  299,  13  L.  Ed.  996  (1S51)  (vessels  in  local  coal  trade  ex- 
empted from  compulsory  half-pilotage  fees)  [now  changed  by  federal  statute — 
Spraigue  v.  Thompson,  118  U.  S.  9C,  6  Sup.  Ct.  9SS,  30  L.  Ed.  115  (1SS6)]. 

A  purely  incidental  discrimination  against  interstate  commerce,  as  by  a 
municipality  specifying  a  kind  of  pavement  that  can  be  supplied  only  from 
non-interstate  sources,  is  of  course  valid.  Field  v.  Barber  Asphalt  Co.,  194 
U.  S.  618,  24  Sup.  Ct.  784,  48  L.  Ed.  1142  (1904). 


Ch.  18)  REGULATION    OF    COMMERCE  1091 

or  upon  their  business  measured  by  the  number  of  tons  of  freight  car- 
ried. On  the  contrary,  it  is  expressly  laid  upon  the  freight  carried. 
The  companies  are  required  to  pay  to  the  state  treasurer  for  the  use 
of  the  commonwealth,  "on  each  two  thousand  pounds  of  freight  so 
carried,"  a  tax  at  the  specified  rates.  And  this  tax  is  not  proportioned 
to  the  business  done  in  transportation.  It  is  the  same  whether  the 
freight  be  moved  one  mile  or  three  hundred.  If  freight  be  put  upon 
a  road  and  carried  at  all,  tax  is  to  be  paid  upon  it,  the  amount  of  the 
tax  being  determined  by  the  character  of  the  freight.  And  when  it  is 
observed  that  the  act  provides  "where  the  same  freight  shall  be  carried 
over  and  upon  different  but  continuous  lines,  said  freight  shall  be 
chargeable  with  tax  as  if  it  had  been  carried  upon  one  line,  and  the 
whole  tax  shall  be  paid  by  such  one  of  said  companies  as  the  state 
treasurer  may  select  and  notify  thereof,"  no  room  is  left  for  doubt. 
This  provision  demonstrates  that  the  tax  has  no  reference  to  the  busi- 
ness of  the  companies.  In  the  case  of  connected  lines  thousands  of 
tons  may  be  carried  over  the  line  of  one  company  without  any  liability 
of  that  company  to  pay  the  tax.  The  state  treasurer  is  to  decide  which 
of  several  shall  pay  the  whole.  There  is  still  another  provision  in  the 
act  which  shows  that  the  burden  of  the  tax  was  not  intended  to  be  im- 
posed upon  the  companies  designated  by  it,  neither  upon  their  fran- 
chises, their  property,  or  their  business.  The  provision  is  as  follows: 
"Corporations  whose  lines  of  improvements  are  used  by  others  for  the 
transportation  of  freight,  and  whose  only  earnings  arise  from  tolls 
charged  for  such  use,  are  authorized  to  add  the  tax  hereby  imposed  to 
said  tolls,  and  to  collect  the  same  therewith."  Evidently  this  contem- 
plates a  liability  for  the  tax  beyond  that  of  the  company  required  to 
pay  it  into  the  treasury,  and  it  authorizes  the  burden  to  be  laid  upon 
the  freight  carried,  in  exemption  of  the  corporation  owning  the  road- 
way. It  carries  the  tax  over  and  beyond  the  carrier  to  the  thing  car- 
ried. Improvement  companies,  not  themselves  authorized  to  act  as 
carriers,  but  having  only  power  to  construct  and  maintain  roadways, 
charging  tolls  for  the  use  thereof,  are  generally  limited  by  their  char- 
ters in  the  rates  of  toll  they  are  allowed  to  charge.  Hence  the  right  to 
increase  the  tolls  to  the  extent  of  the  tax  was  given  them  in  order  that 
the  tax  might  come  from  the  freight  transported,  and  not  from  the 
treasury  of  the  companies.  It  required  no  such  grant  to  companies 
which  not  only  own  their  roadway,  but  have  the  right  to  transport 
thereon.  Though  the  tolls  they  may  exact  are  limited,  their  charges 
for  carriage  are  not.  They  can,  therefore,  add  the  tax  to  the  charge 
for  transportation  without  further  authority.  In  view  of  these  provi- 
sions of  the  statute  it  is  impossible  to  escape  from  the  conviction  that 
the  burden  of  the  tax  rests  upon  the  freight  transported,  or  upon  the 
consignor  or  consignee  of  the  freight  (imposed  because  the  freight  is 
transported),  and  that  the  company  authorized  to  collect  the  tax  and 
.required  to  pay  <t  into  the  state  treasury  is,  in  effect,  only  a  tax-gath- 
erer.    *     *     • 


1092  THE  FEDERAL  GOVERNMENT  (Pa it  3 

Considering  it,  then,  as  manifest  that  the  tax  demanded  by  the  act 
is  imposed,  not  upon  the  company,  but  upon  the  freight  carried,  and 
because  carried,  we  proceed  to  inquire  whether,  so  far  as  it  affects 
commodities  transported  through  the  state,  or  from  points  without  the 
state  to  points  within  it,  or  from  points  within  the  state  to  points  with- 
out it,  the  act  is  a  regulation  of  interstate  commerce.  Beyond  all  ques- 
tion the  transportation  of  freight,  or  of  the  subjects  of  commerce,  for 
the  purpose  of  exchange  or  sale,  is  a  constituent  of  commerce  itself. 
This  has  never  been  doubted,  and  probably  the  transportation  of  arti- 
cles of  trade  from  one  state  to  another  was  the  prominent  idea  in  the 
minds  of  the  framers  of  the  Constitution,  when  to  Congress  was  com- 
mitted the  power  to  regulate  commerce  among  the  several  states.  A 
power  to  prevent  embarrassing  restrictions  by  any  state  was  the  thing 
desired.  The  power  was  given  by  the  same  words  and  in  the  same 
clause  by  which  was  conferred  power  to  regulate  commerce  with  for- 
eign nations.  It  would  be  absurd  to  suppose  that  the  transmission  of 
the  subjects  of  trade  from  the  state  to  the  buyer,  or  from  the  place  of 
production  to  the  market,  was  not  contemplated,  for  without  that  there 
could  be  no  consummated  trade  either  with  foreign  nations  or  among 
the  states.  In  his  work  on  the  Constitution,  §  1057,  Judge  Story  as- 
serts that  the  sense  in  which  the  word  commerce  is  used  in  that  instru- 
ment includes  not  only  traffic,  but  intercourse  and  navigation.  And  in 
the  Passenger  Cases,  7  How.  416,  12  L.  Ed.  702,  it  was  said:  "Com- 
merce consists  in  selling  the  superfluity,  in  purchasing  articles  of  ne- 
cessity, as  well  productions  as  manufactures,  in  buying  from  one  na- 
tion and  selling  to  another,  or  in  transporting  the  merchandise  from 
the  seller  to  the  buyer  to  gain  the  freight."  Nor  does  it  make  any  dif- 
ference whether  this  interchange  of  commodities  is  by  land  or  by  wa- 
ter. In  either  case  the  bringing  of  the  goods  from  the  seller  to  the 
buyer  is  commerce.  Among  the  states  it  must  have  been  principally 
by  land  when  the  Constitution  was  adopted. 

Then,  why  is  not  a  tax  upon  freight  transported  from  state  to  state 
a  regulation  of  interstate  transportation,  and,  therefore,  a  regulation  of 
commerce  among  the  states  ?  Is  it  not  prescribing  a  rule  for  the  trans- 
porter, by  which  he  is  to  be  controlled  in  bringing  the  subjects  of  com- 
merce into  the  state,  and  in  taking  them  out?  The  present  case  is  the 
best  possible  illustration.  The  Legislature  of  Pennsylvania  has  in  ef- 
fect declared  that  every  ton  of  freight  taken  up  within  the  state  and 
carried  out,  or  taken  up  in  other  states  and  brought  within  her  limits, 
shall  pay  a  specified  tax.  The  payment  of  that  tax  is  a  condition  upon 
which  is  made  dependent  the  prosecution  of  this  branch  of  commerce. 
And  as  there  is  no  limit  to  the  rate  of  taxation  she  may  impose,  if  she 
can  tax  at  all,  it  is  obvious  the  condition  may  be  made  so  onerous  that 
an  interchange  of  commodities  with  other  states  would  be  rendered 
impossible.  The  same  power  that  may  impose  a  tax  of  two  cents  per 
ton  upon  coal  carried  out  of  the  state,  may  impose  one  of  five  dollars. 
Such  an  imposition,  whether  large  or  small,  is  a  restraint  of  the  priv- 


Ch.  18)  EtBGULAI  i"  1093 

ilege  or  right  to  have  the  subjects  of  commerce  pass  freely  from  one 
state  to  another  without  being  obstructed  by  the  intervention  of  state 
lines.  It  would  hardly  be  maintained,  we  think,  that  had  the  state  es- 
ied  custom-houses  on  her  borders,  wherever  a  railroad  or  canal 
comes  to  the  state  line,  and  demanded  at  these  houses  a  duty  for  al- 
lowing merchandise  to  enter  or  to  leave  the  state  upon  one  01 
railroads  or  canals,  such  an  imposition  would  not  have  been  a  i 
tion  of  commerce  with  her  sister  states.  Yet  it  is  difficult  to  see  any 
substantial  difference  between  the  supposed  case  and  the  one  we  have 
in  hand.  The  goods  of  no  citizen  of  \'ew  York,  New  Jersey,  Ohio, 
or  of  any  other  state,  may  be  placed  upon  a  canal,  railroad,  or  steam- 
boat within  the  state  for  transportation  any  distance,  either  into  or  out 
of  the  state,  without  being  subjected  to  the  burden.  Nor  can  it  make 
any  difference  that  the  legislative  purpose  was  to  raise  money  for  the 
support  of  the  state  government,  and  not  to  regulate  transportation. 
It  is  not  the  purpose  of  the  law,  but  its  effect,  which  we  are  now  con- 
sidering. Nor  is  it  at  all  material  that  the  tax  is  levied  upon  all 
freight,  as  well  that  which  is  wholly  internal  as  that  embarked  in  in- 
terstate trade.  We  are  not  at  this  moment  inquiring  further  than 
whether  taxing  goods  carried  because  they  are  carried  is  a  regi 
of  carriage.  The  state  may  tax  its  internal  commerce,  but  if  an  act 
to  tax  interstate  or  foreign  commerce  is  unconstitutional,  it  is  not 
cured  by  including  in  its  provisions  subjects  within  the  domain  of  the 
state.  Nor  is  a  rule  prescribed  for  carriage  of  goods  through,  out  of, 
or  into  a  state  any  the  less  a  regulation  of  transportation  because  the 
same  rule  may  be  applied  to  carriage  which  is  wholly  internal.  Doubt- 
less a  state  may  regulate  its  internal  commerce  as  it  pleases.  If  a  state 
chooses  to  exact  conditions  for  allowing  the  passage  or  carriage  of 
persons  or  freight  through  it  into  another  state,  the  nature  of  the  ex- 
action is  not  changed  by  adding  to  it  similar  conditions  for  allowing 
transportation  wholly  within  the  state.     *     *     * 

If,  then,  this  is  a  tax  upon  freight  carried  between  states,  and  a  tax 
because  of  its  transportation,  and  if  such  a  tax  is  in  effect  a  regulation 
of  interstate  commerce,  the  conclusion  seems  to  be  inevitable  that  it  is 
in  conflict  with  the  Constitution  of  the  United  States.  *  *  *  The 
rule  has  been  asserted  with  great  clearness,  that  whenever  the  subjects 
over  which  a  power  to  regulate  commerce  is  asserted  are  in  their  nature 
national,  or  admit  of  one  uniform  system  or  plan  of  regulation,  they 
may  justly  be  said  to  be  of  such  a  nature  as  to  require  exclusive 
lation  by  Congress.  Cooley  v.  Port  Wardens.  12  How.  299,  13  L.  Ed. 
996;  Gilman  v.  Philadelphia  [3  Wall.  713,  18  L.  Ed.  96]  ;  Crandall  v. 
State  of  Nevada,  6  Wall.  42,  18  L.  Ed.  745.  Surely  transportation  of 
passengers  or  merchandise  through  a  state,  or  from  one  state  to  an- 
other, is  of  this  nature.  It  is  of  national  importance  that  over  that 
subject  there  should  be  but  one  regulating  power,  for  if  one  state  can 
directly  tax  persons  or  property  passing  through  it,  or  tax  them  indi- 
rectly by  levying  a  tax  upon  their  transportation,  every  other  may,  ami 


1094  THE   FEDERAL   GOVERNMENT  (Part  3 

thus  commercial  intercourse  between  states  remote  from  each  other 
may  be  destroyed.  The  produce  of  Western  states  may  thus  be  effec- 
tually excluded  from  Eastern  markets,  for  though  it  might  bear  the 
imposition  of  a  single  tax,  it  would  be  crushed  under  the  load  of 
many.  It  was  to  guard  against  the  possibility  of  such  commercial  em- 
barrassments, no  doubt,  that  the  power  of  regulating  commerce  among 
the  states  was  conferred  upon  the  federal  government.     *     *     * 

Merchandise  is  the  subject  of  commerce.  Transportation  is  essen- 
tial to  commerce ;  and  every  burden  laid  upon  it  is  pro  tanto  a  restric- 
tion. Whatever,  therefore,  may  be  the  true  doctrine  respecting  the  ex- 
clusiveness  of  the  power  vested  in  Congress  to  regulate  commerce 
among  the  states,  we  regard  it  as  established  that  no  state  can  impose 
a  tax  upon  freight  transported  from  state  to  state,  or  upon  the  trans- 
porter because  of  such  transportation.     *     *     * 

Judgment  reversed.1 

[Swayne,  J.,  gave  a  short  dissenting  opinion  with  which  Davis, 
J.,  concurred.] 


RAILROAD  CO.  v.  MARYLAND. 
(Supreme  Court  of  United  States,  1875.    21  Wall.  456,  22  L.  Ed.  678.) 

[Error  to  the  Court  of  Appeals  of  Maryland.  Maryland  granted  to 
the  Baltimore  &  Ohio  Railroad  Company  a  charter  to  construct  and 
operate  a  railroad  between  Washington  and  Baltimore  for  passengers 
and  freight,  the  passenger  fare  for  the  entire  distance  not  to  exceed 
$2.50  and  shorter  distances  in  proportion.  The  company  was  to  pay 
to  the  state  every  six  months  one-fifth  of  the  gross  passenger  receipts 
from  the  road.  After  paying  this  for  many  years,  the  company  finally 
disputed  the  validity  of  this  stipulation  and  discontinued  payments. 
The  state  brought  suit  for  these  payments  due  from  1860  to  1870,  and 
a  judgment  in  its  favor  was  affirmed  by  the  state  Court  of  Appeals.] 

Mr.  Justice  Bradley.  *  *  *  Commerce  on  land  between  the 
different  states  is  so  strikingly  dissimilar,  in  many  respects,  from  com- 
merce on  water,  that  it  is  often  difficult  to  regard  them  in  the  same 
aspect  in  reference  to  the  respective  constitutional  powers  and  duties 
of  the  state  and  federal  governments.  No  doubt  commerce  by  water 
was  principally  in  the  minds  of  those  who  framed  and  adopted  the 

i  Accord  :  W.  U.  Teleg.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067  (1882). 
In  the  Passenger  Cases,  7  How.  2S3,  12  L.  Ed.  702  (1849),  taxes  imposed  by 
New  York  and  Massachusetts  upon  masters  of  vessels,  for  each  person  brought 
into  the  state  from  other  states  or  abroad,  were  held  invalid  under  the  com- 
merce clause.  So,  Henderson  v.  Mayor  of  N.  Y.,  92  U.  S.  259,  23  L.  Ed.  513 
(1876) ;   Chy  Lung  v.  Freeman,  92  U.  S.  275,  23  L.  Ed.  550  (1876). 

In  Crandall  v.  Nevada,  post,  p.  1307,  a  state  tax  of  $1  upon  every  person  leav- 
ing Nevada  by  any  common  carrier,  to  be  paid  by  the  carrier,  was  held  to 
violate  various  rights  of  United  States  citizens  implied  from  other  parts  of 
the  Constitution,  but  the  majority  of  the  court  expressly  refused  to  rest  the 
decision  upon  the  commerce  clause. 


Ch.  18)  REGULATION    OF    COMMERCE  10!»."> 

Constitution,  although  both  its  language  and  spirit  embrace  commerce 
by  land  as  well.  Maritime  transportation  requires  no  artificial  road- 
way. Nature  has  prepared  to  hand  that  portion  of  the  instrumentality 
employed.  The  navigable  waters  of  the  earth  are  recognized  public 
highways  of  trade  and  intercourse.  No  franchise  is  needed  to  enable 
the  navigator  to  use  them.  Again,  the  vehicles  of  commerce  by  water 
being  instruments  of  intercommunication  with  other  nations,  the  regu- 
lation of  them  is  assumed  by  the  national  legislature.  So  that  state 
interference  with  transportation  by  water,  and  especially  by  sea,  is  at 
once  clearly  marked  and  distinctly  discernible.  But  it  is  different  with 
transportation  by  land.  This,  when  the  Constitution  was  adopted,  was 
entirely  performed  on  common  roads,  and  in  vehicles  drawn  by  animal 
power.  No  one  at  that  day  imagined  that  the  roads  and  bridges  of  the 
country  (except  when  the  latter  crossed  navigable  streams)  were  not 
entirely  subject,  both  as  to  their  construction,  repair,  and  management, 
to  state  regulation  and  control.  They  were  all  made  either  by  the 
states  or  under  their  authority.  The  power  of  the  state  to  impose  or 
authorize  such  tolls,  as  it  saw  fit,  was  unquestioned.  No  one  then  sup- 
posed that  the  wagons  of  the  country,  which  were  the  vehicles  of  this 
commerce,  or  the  horses  by  which  they  were  drawn,  were  subject  to 
national  regulation.  The  movement  of  persons  and  merchandise,  so 
long  as  it  was  as  free  to  one  person  as  to  another,  to  the  citizens  of 
other  states  as  to  the  citizens  of  the  state  in  which  it  was  performed, 
was  not  regarded  as  unconstitutionally  restricted  and  trammelled  by 
tolls  exacted  on  bridges  or  turnpikes,  whether  belonging  to  the  state 
or  to  private  persons.  And  when,  in  process  of  time,  canals  were  con- 
structed, no  amount  of  tolls  which  was  exacted  thereon  by  the  state 
or  the  companies  that  owned  them,  was  ever  regarded  as  an  infringe- 
ment of  the  Constitution.  When  constructed  by  the  state  itself,  they 
might  be  the  source  of  revenues  largely  exceeding  the  outlay  without 
exciting  even  the  question  of  constitutionality.  So  when,  by  the  im- 
provements and  discoveries  of  mechanical  science,  .railroads  came  to  be 
built  and  furnished  with  all  the  apparatus  of  rapid  and  all-absorbing 
transportation,  no  one  imagined  that  the  state,  if  itself  owner  of  the 
work,  might  not  exact  any  amount  whatever  of  toll  or  fare  or  freight, 
or  authorize  its  citizens  or  corporations,  if  owners,  to  do  the  same. 
Had  the  state  built  the  road  in  question  it  might,  to  this  day,  unchal- 
lenged and  unchallengeable,  have  charged  two  dollars  and  fifty  cents 
for  carrying  a  passenger  between  Baltimore  and  Washington.  So 
might  the  railroad  company,  under  authority  from  the  state,  if  it  saw 
fit  to  do  so.  These  are  positions  which  must  be  conceded.  No  one 
has  ever  doubted  them. 

This  unlimited  right  of  the  state  to  charge,  or  to  authorize  others  to 
charge,  toll,  freight,  or  fare  for  transportation  on  its  roads,  canals, 
and  railroads,  arises  from  the  simple  fact  that  they  are  its  own  works, 
or  constructed  under  its  authority.  It  gives  them  being.  It  has  a  right 
to  exact  compensation  for  their  use.     It  has  a  discretion  as  to  the 


1096  THE   FEDERAL   GOVERNMENT  (Part  3 

amount  of  that  compensation.  That  discretion  is  a  legislative — a  sov- 
ereign— discretion,  and  in  its  very  nature  is  unrestricted  and  uncon- 
trolled. The  security  of  the  public  against  any  abuse  of  this  discretion 
resides  in  the  responsibility  to  the  public  of  those  who,  for  the  time 
being,  are  officially  invested  with  it.  In  this  respect  it  is  like  all  other 
legislative  power  when  not  controlled  by  specific  constitutional  provi- 
sions, and  the  courts  cannot  presume  that  it  will  be  exercised  detri- 
mentally. 

So  long,  therefore,  as  it  is  conceded  (as  it  seems  to  us  it  must  be) 
that  the  power  to  charge  for  transportation,  and  the  amount  of  the 
charge,  are  absolutely  within  the  control  of  the  state,  how  can  it  mat- 
ter what  is  done  with  the  money,  whether  it  goes  to  the  state  or  to  the 
stockholders  of  a  private  corporation?  As  before  said,  the  state 
could  have  built  the  road  itself  and  charged  any  rate  it  chose,  and 
could  thus  have  filled  the  coffers  of  its  treasury  without  being  ques- 
tioned therefor.  How  does  the  case  differ,  in  a  constitutional  point  of 
view,  when  it  authorizes  its  private  citizens  to  build  the  road  and  re- 
serves for  its  own  use  a  portion  of  the  earnings?  We  are  unable  to 
see  any  distinction  between  the  two  cases.  In  our  judgment  there  is 
no  solid  distinction.  If  the  state,  as  a  consideration  of  the  franchise, 
had  stipulated  that  it  should  have  all  the  passenger  money,  and  that 
the  corporation  should  have  only  the  freight  for  the  transportation  of 
merchandise,  and  the  corporation  had  agreed  to  those  terms,  it  would 
have  been  the  same  thing.  It  is  simply  the  exercise  by  the  state  of  ab- 
solute control  over  its  own  property  and  prerogatives. 

The  exercise  of  power  on  the  part  of  a  state  is  very  different  from 
the  imposition  of  a  tax  or  duty  upon  the  movements  or  operations  of 
commerce  between  the  states.  Such  an  imposition,  whether  relating  to 
persons  or  goods,  we  have  decided  the  states  cannot  make,  because  it 
would  be  a  regulation  of  commerce  between  the  states  in  a  matter  in 
which  uniformity  is  essential  to  the  rights  of  all,  and,  therefore,  re- 
quiring the  exclusive  legislation  of  Congress.  Crandall  v.  Nevada,  6 
Wall.  42,  18  L.  Ed.  745;  Case  of  Freight  Tax,  15  Wall.  232,  279,  21 
L.  Ed.  146.  It  is  a  tax  because  of  the  transportation,  and  is,  therefore, 
virtually  a  tax  on  the  transportation,  and  not  in  any  sense  a  compen- 
sation therefor,  or  for  the  franchises  enjoyed  by  the  corporation  that 
performs  it. 

It  is  often  difficult  to  draw  the  line  between  the  power  of  the  state 
and  the  prohibitions  of  the  Constitution.  Whilst  it  is  commonly  said 
that  the  state  has  absolute  control  over  the  corporations  of  its  own 
creation,  and  may  impose  upon  them  such  conditions  as  it  pleases ;  and 
like  control  over  its  own  territory,  highways,  and  bridges,  and  may 
impose  such  exactions  for  their  use  as  it  sees  fit ;  on  the  other  hand,  it 
is  conceded  that  it  cannot  regulate  or  impede  interstate  commerce,  nor 
discriminate  between  its  own  citizens  and  those  of  other  states  preju- 
dicially to  the  latter.  The  problem  is  to  reconcile  the  two  propositions  ; 
and  as  the  latter  arises  from  the  provisions  of  the  Constitution  of  the 


Ch.  18)  KIOUULATION    OF    COMM  109"! 

United  States,  and  is,  therefore,  paramount,  the  question  is  practically 
reduced  to  this :  What  amounts  to  a  regulation  of  commerce  i 
the  states,  or  to  a  discrimination  against  the  citizens  of  other  states? 
This  is  often  difficult  to  determine.  In  view,  however,  of  th 
plenary  powers  which  a  state  has  always  been  conceded  to  ha 
its  own  territory,  its  highways,  its  franchises,  and  its  corporations,  we 
cannot  regard  the  stipulation  in  question  as  amounting  to  either  of 
these  unconstitutional  acts.  It  is  not  within  the  category  of  such  acts. 
It  may,  incidentally,  affect  transportation,  it  is  true;  but  so  does  every 
burden  or  tax  imposed  on  corporations  or  persons  engaged  in  that 
business.  Such  burdens,  however,  are  imposed  diverso  intuitu,  and  in 
the  exercise  of  an  undoubted  power.  The  state  is  conceded  to  \ 
the  power  to  tax  its  corporations ;  and  yet  every  tax  imposed  on  a  car- 
rier corporation  affects  more  or  less  the  charges  it  is  compelled  to 
make  upon  its  customers.  So,  the  state  has  an  undoubted  power  to 
exact  a  bonus  for  the  grant  of  a  franchise,  payable  in  advance  or  in 
futuro;  and  yet  that  bonus  will  necessarily  affect  the  charge  upon  the 
public  which  the  donee  of  the  franchise  will  be  obliged  to  impose. 
The  stipulated  payment  in  this  case,  indeed,  is  nothing  more  nor  less 
than  a  bonus;  and  so  long  as  the  rates  of  transportation  are  entirely 
discretionary  with  the  states,  such  a  stipulation  is  clearly  within  their 
reserved  powers.     *     *     * 

Judgment  affirmed.1 

[Mit.i.Ku,  J.,  dissented  in  a  brief  opinion.] 

i  Accord:    State  v.  111.  Cent.  R.  Co.,  246  111.  1SS,  205-221,  92  N.  E.  814  (1910) 
(exaction  of  7  per  cent,  of  railroad  gross  receipts  from  all  business  . 
pensation  for  grant  of  franchise).     See  article  bv  J.  P.  Hall,  2  ill.   I,    1; 
2:  (1907). 

In  Ashley  v.  Ryan,  153  U.  S.  436,  440-443,  446,  14  Sup.  Ct  865,  866,  38  I-. 
Ed.  77'!  (1N04),  Ohio  required,  as  a  condition  precedent  to  the  Incorporation  or 
consolidation  of  corporations  under  the  laws  of  that  state,  the  payment  of  a 
small  percentage  of  the  total  capital  stock  of  the  proposed  corporation  or  con- 
solidation. This  was  held  a  valid  exaction  for  the  consolidation  of  a  number 
of  railroad  corporations  Of  various  states,  whose  united  lines  formed  a  high- 
way for  Interstate  commerce,  Sir.  Justice  White  saying: 

"The  rights  thus  Bought  [those  of  Ohio  corporations)  could  only  be  acquired 
by  the  grant  of  the  state  of  Ohio,  and  depended  for  their  existence  opon  the 

ns  of  its  laws.    Without  that  state's  consent,  they  could  i 
procured.     •     *     *     As  it  was  within  the  discretion  ot"  the  state  to  withhold 
or  grant  the  privilege  of  exerdstn  -  defence,  it  was.  as  a  ne 

resultant,  also  within  Its  power  to  impose  whatever  conditions  it  might  deem 
at  as  prerequisite  to  corporate  life.    •    •    • 

"That  the  right  to  be  a  state  corporation  depends  solely  upon  the  grace  of 
the  state,  and  Is  not  a  right  inherent  In  the  parties,  is  settled.  •  •  »  [Here 
follows  a  quotation  from  i  v.  Pac.  By.,  ante.  p.  c.is,  concerning 

the  nature  of  a  corporate  franchise.]      In    Home   Ins.    Co.   v.  New  YtU.    Kit    I' 

s.  594,  u>  sup.  ct.  593,  :'.::  L.  Ed.   l"-':,  (1890)  through  Mr.  Justice  I  ield,  we 
said:  The  right  or  privilef  ition   or  to  do  business  as  such 

body,     »     •     *     Is  a  right  or  privilege  by  which  several  individuals  may  unite 
themselves  under  a  common   nam.,   and   act  as  a   single  person,  with   a 

siou  of  members,  without  dissolution  or  suspension  of  business,  and  with  a 
limited   indlvidi  The  granting  of  such  right  or  privilege 

entirely   within   the  discretion  of  the   Mate'      •      •     •     The  power   Of  corpora 

tions  of  other  states  to  become  corporations,  or  to  constitute  themselves  a 

Consolidated  corporation  under  the  Ohio  statutes,  and  thus  avail  of  the  rights 


1098  THE   FEDERAL   GOVERNMENT  (Part  3 


GLOUCESTER  FERRY  CO.  v.  PENNSYLVANIA. 

(Supreme  Court  of  United  States,  1S85.     114  TJ.  S.  196,  5  Sup.  Ct.  826,  29  L. 
Ed.  158.) 

[Error  to  the  Supreme  Court  of  Pennsylvania.  The  Gloucester 
Ferry  Company  was  incorporated  in  New  Jersey  with  a  capital  stock 
of  $50,000,  and  was  engaged  solely  in  ferrying  passengers  and  freight 
across  the  Delaware  river  between  New  Jersey  and  Philadelphia.  Its 
only  physical  property  permanently  located  in  Pennsylvania  was  the 
landing  wharf  leased  by  it  in  Philadelphia.  Its  boats  were  all  regis- 
tered at  Camden,  N.  J.,  and  never  remained  in  Pennsylvania  except  to 
discharge  and  receive  passengers  and  freight.  Under  a  Pennsylvania 
statute  taxing  all  corporations  doing  business  in  the  state,  the  ferry 
company  was  taxed  upon  the  value  of  all  its  capital  stock,  and  a  judg- 
ment for  these  taxes  was  affirmed  by  the  state  court.] 

Mr.  Justice  Field.  The  supreme  court  of  the  state,  in  giving  its 
decision,  stated  that  the  single  question  presented  for  consideration 
was  whether  the  company  did  business  within  the  state  of  Pennsyl- 
vania during  the  period  for  which  the  taxes  were  imposed;  and  it 
held  that  it  did  do  business  there,  because  it  landed  and  received  pas- 
given  thereby,  is  as  completely  dependent  on  the  will  of  that  state  as  is  the 
power  of  its  individual  citizens  to  become  a  corporate  body,  or  the  power  of 
corporations  of  its  own  creation  to  consolidate  under  its  laws.  Bank  v.  Earle 
[13  Pet.  519,  10  L.  Ed.  274  (1839)]  supra;  Insurance  Co.  v.  French  [18  How. 
404,  15  L.  Ed.  451  (1S55)]  supra;  Paul  v.  Virginia,  8  Wall.  168,  181,  19  L. 
Ed.  357  (1869).     •     •     * 

"It  follows  from  these  principles  that  a  state,  in  granting  a  corporate  priv- 
ilege to  its  own  citizens,  or,  what  is  equivalent  thereto,  in  permitting  a  foreign 
corporation  to  become  one  of  the  constituent  elements  of  a  consolidated  cor- 
poration organized  under  its  laws,  may  impose  such  conditions  as  it  deems 
proper,  and  that  the  acceptance  of  the  franchise  in  either  case  implies  a  sub- 
mission to  the  conditions  without  which  the  franchise  could  not  have  been  ob- 
tained.    •     •     » 

"The  question  here  is  not  the  power  of  the  state  of  Ohio  to  lay  a  charge 
on  interstate  commerce,  or  to  prevent  a  foreign  corporation  from  engaging  in 
interstate  commerce  within  its  confines,  but  simply  the  right  of  the  state  to 
determine  upon  what  conditions  its  laws  as  to  the  consolidation  of  corpora- 
tions may  be  availed  of.  Considering,  as  we  do,  that  the  payment  of  the 
charge  was  a  condition  imposed  by  the  state  of  Ohio  upon  the  taking  of  cor- 
porate being  or  the  exercise  of  corporate  franchises,  the  right  to  which  de- 
pended solely  on  the  will  of  that  state,  and  hence  that  liability  for  the  charge 
was  entirely  optional,  we  conclude  that  the  exaction  constituted  no  tax  upon 
interstate  commerce,  or  the  right  to  carry  on  the  same,  or  the  instruments 
thereof." 

May  a  state  refuse  to  permit  the  use  of  its  highways,  either  for  crossing 
or  passage,  to  all  pipelines  for  natural  gas,  even  though  engaged  in  interstate 
commerce?  See  Haskell  v.  Cowham,  187  Fed.  403,  109  C.  C.  A.  235  (1913) 
(cases);  West  v.  Kansas  Nat.  Gas  Co.,  221  U.  S.  229,  31  Sup.  Ct.  564,  55  L. 
Ed.  716  (1911),  annotated  in  35  L.  R.  A.  (N.  S.)  1195-1198.  Compare  Western 
Union  Co.  v.  Richmond,  224  U.  S.  160,  32  Sup.  Ct.  449,  56  L.  Ed.  710  (1912) 
(cases),  discussing  the  effect  of  the  federal  statute  of  1866  [14  Stat  221,  c. 
230,  U.  S.  Comp.  St.  1901,  p.  3579],  authorizing  telegraph  companies  to  main- 
tain lines  over  the  post  roads  of  the  United  States.  See,  also,  Western  U. 
Co.  v.  Penn.  Ry.,  195  U.  S.  540,  25  Sup.  Ct  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517 

(1904);    Williams  v.  Talladega,  226  U.  S.  404,  33  Sup.  Ct  116,  57  L.  Ed.  

(1912). 


Ch.  18)  REGULATION    OF    COMMKUCB  lO'J'.t 

sengers  and  freight  at  its  wharf  in  Philadelphia,  observing  that  its. 
whole  income  was  derived  from  the  transportation  of  freight  and  pas- 
sengers from  its  wharf  at  Gloucester  to  its  wharf  at  Philadelphia,  and 
from  its  wharf  at  Philadelphia  to  its  wharf  at  Gloucester ;  that  at  each 
of  these  points  its  main  business,  namely,  the  receipt  and  landing  of 
freight  and  passengers,  was  transacted ;  that  for  such  business  it  was 
dependent  as  much  upon  the  one  place  as, upon  the  other;  that,  as  it 
could  hold  the  wharf  at  Gloucester,  which  it  owned  in  fee,  only  by 
purchase  by  virtue  of  the  statutory  will  of  the  legislature  of  New  Jer- 
sey, so  it  could  hold  by  lease  the  one  in  Philadelphia  only  by  the  im- 
plied consent  of  the  legislature  of  the  commonwealth ;  ■  and  that,  there- 
fore, it  "was  dependent  equally,  not  only  for  its  business,  but  its  power 
to  do  that  business,  upon  both  states,  and  might  therefore  be  taxed  by 
both."    9S  Pa.  105,  116.' 

As  to  the  first  reason  thus  expressed,  it  may  be  answered  that  the 
business  of  landing  and  receiving  passengers  and  freight  at  the  wharf 
in  Philadelphia  is  a  necessary  incident  to,  indeed  is  a  part  of,  their 
transportation  across  the  Delaware  river  from  New  Jersey.  Without 
it  that  transportation  would  be  impossible.  Transportation  implies  the 
taking  up  of  persons  or  property  at  some  point  and  putting  them  down 
at  another.  A  tax,  therefore,  upon  such  receiving  and  landing  of  pas- 
sengers and  freight  is  a  tax  upon  their  transportation ;  that  is,  upon 
the  commerce  between  the  two  states  involved  in  such  transportation. 

It  matters  not  that  the  transportation  is  made  in  ferry-boats  which 
pass  between  the  states  every  hour  of  the  day.  The  means  of  trans- 
portation of  persons  and  freight  between  the  states  does  not  change  the 
character  of  the  business  as  one  of  commerce,  nor  does  the  time  within 
which  the  distance  between  the  states  may  be  traversed.  Commerce 
among  the  states  consists  of  intercourse  and  traffic  between  their  citi- 
zens, and  includes  the  transportation  of  persons  and  property,  and  the 
navigation  of  public  waters  for  that  purpose,  as  well  as  the  purchase, 
sale,  and  exchange  of  commodities.  The  power  to  regulate  that  com- 
merce, as  well  as  commerce  with  foreign  nations,  vested  in  Congress, 
is  the  power  to  pfescribe  the  rules  by  which  it  shall  be  governed,  that 
is,  the  conditions  upon  which  it  shall  be  conducted ;  to  determine  when 
it  shall  be  free,  and  when  subject  to  duties  or  other  exactions.  The 
power  also  embraces  within  its  control  all  the  instrumentalities  by 
which  that  commerce  may  be  carried  on,  and  the  means  by  which  it 
may  be  aided  and  encouraged.  The  subjects,  therefore,  upon  which 
the  power  may  be  exerted  are  of  infinite  variety.  While  with  refer- 
ence to  some  of  them,  which  are  local  and  limited  in  their  nature  or 
sphere  of  operation,  the  states  may  prescribe  regulations  until  C  ii 
intervenes  and  assumes  control  of  them,  yet,  when  they  are  national 
in  their  character,  and  require  uniformity  of  regulation  affecting  alike 
all  the  states,  the  power  of  Congress  is  exclusive.  Necessarily  that 
power  alone  can  prescribe  regulations  which  are  to  govern  the  whole 
country.     And  it  needs  no  argument  to  show  that  the  commerce  with 


1100  THE   FEDERAL  GOVERNMENT  (Part  3 

foreign  nations  and  between  the  states,  which  consists  in  the  transpor- 
tation of  persons  and  property  between  them,  is  a  subject  of  national 
character,  and  requires  uniformity  of  regulation.  Congress  alone, 
therefore,  can  deal  with  such  transportation ;  its  non-action  is  a  decla- 
ration that  it  shall  remain  free  from  burdens  imposed  by  state  legis- 
lation. Otherwise,  there  would  be  no  protection  against  conflicting 
regulations  of  different  states,  each  legislating  in  favor  of  its  own  citi- 
zens and  products,  and  against  those  of  other  states.  It  was  from  ap- 
prehension of  such  conflicting  and  discriminating  state  legislation,  and 
to  secure  uniformity  of  regulation,  that  the  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  states  was  vested  in  Con- 
gress. Nor  does  it  make  any  difference  whether  such  commerce  is 
carried  on  by  individuals  or  by  corporations.     *     *     * 

As  the  second-  reason  given  for  the  decision  below,  that  the  company 
could  not  lease  its  wharf  in  Philadelphia  except  by  the  implied  consent 
of  the  legislature  of  the  commonwealth,  and  thus  is  dependent  upon 
the  commonwealth  to  do  its  business,  and  therefore  can  be  taxed  there, 
it  may  be  answered  that  no  foreign  or  interstate  commerce  can  be  car- 
ried on  with  the  citizens  of  a  state  without  the  use  of  a  wharf,  or  oth- 
er place  within  its  limits  on  which  passengers  and  freight  can  be  landed 
and  received,  and  the  existence  of  power  in  a  state  to  impose  a  tax 
upon  the  capital  of  all  corporations  engaged  in  foreign  or  interstate 
commerce  for  the  use  of  such  places  would  be  inconsistent  with  and 
entirely  subversive  of  the  power  vested  in  Congress  over  such  com- 
merce. Nearly  all  the  lines  of  steam-ships  and  of  sailing  vessels  be- 
tween the  United  States  and  England,  France,  Germany,  and  other 
countries  of  Europe,  and  between  the  United  States  and  South  Amer- 
ica, are  owned  by  corporations ;  and  if  by  reason  of  landing  or  receiv- 
ing passengers  and  freight  at  wharves,  or  other  places  in  a  state,  they 
can  be  taxed  by  the  state  on  their  capital  stock,  on  the  ground  that  they 
are  thereby  doing  business  within  her  limits,  the  taxes  which  may  be 
imposed  may  embarrass,  impede,  and  even  destroy  such  commerce 
with  the  citizens  of  the  state.  If  such  a  tax  can  be  levied  at  all,  its 
amount  will  rest  in  the  discretion  of  the  state.  It  is  idle  to  say  that 
the  interests  of  the  state  would  prevent  oppressive  taxation.  Those 
engaged  in  foreign  and  interstate  commerce  are  not  bound  to  trust  to 
its  moderation  in  that  respect ;  they  require  security.  And  they  may 
rely  on  the  power  of  Congress  to  prevent  any  interference  by  the  state 
until  the  act  of  commerce,  the  transportation  of  passengers  and 
freight,  is  completed.     *     *     * 

It  is  true  that  the  property  of  corporations  engaged  in  foreign  or 
interstate  commerce,  as  well  as  the  property  of  corporations  engaged 
in  other  business,  is  subject  to  state  taxation,  provided,  always,  it  be 
within  the  jurisdiction  of  the  state.  *  *  *  [Here  is  reviewed 
Pennsylvania  v.  Standard  Oil  Co.,  101  Pa.  119,  holding  that  a  tax  upon 
the  property  or  capital  stock  of  a  foreign  corporation  could  be  levied 
only  upon  such  part  of  its  property  or  capital  stock  as  was  employed 


Ch.  18)  BBO0LATION   OF   COMM  1  1 ' » 1 

in  the  state.]     Under  this  decision  there  is  no  property  held  by  the 
Gloucester  Ferry  Company  which  can  be  the  subject  of  taxation  in 
Pennsylvania,  except  the  lease  of  the  wharf  in  that  state.    Whether 
that  wharf  is  taxed  to  the  owner  or  to  the  lessee  it  matters  not,  for  no 
i  here  is  involved  in  such  taxation.    It  is  admitted  that  it  could 
be  taxed  by  the  state  according  to  its  appraised  value.    The  fen 
of  the  company  are  registered  at  the  port  of  Camden,  in  New 
and  according  to  the  decisions  in  Hays  v.  Pacific  Mail  S. 
How.  596,  15  L.  Ed.  254]   and  in  I'arham   [16  Wall.  471. 

21  L.  Ed.  303],  they  can  be  taxed  only  at  their  home  port.1  *  *  * 
Receiving  and  landing  passengers  and  freight  is  incident  to  their 
transportation.  Without  both  there  could  be  no  such  thing  as  their 
■  itation  across  the  river  Delaware.  The  transportation,  a^  to 
rs,  is  not  completed  until,  as  said  in  the  Henders  on  Case  [92 
L  .  S.  259,  23  L.  Ed.  543],  they  are  disembarked  at  the  pier  of  the  city 
to  which  they  are  carried  ;  and  as  to  freight,  until  it  is  landed  upon 
such  pier.  And  all  restraints  by  exactions  in  the  form  of  taxes  upon 
such  transportation,  or  upon  acts  necessary  to  its  completion,  are  so 
many  invasions  of  the  exclusive  power  of  Congress  to  regulate  that 
portion  of  commerce  between  the  states.  The  cases  where  a  tax  or 
toll  upon  vessels  is  allowed  to  meet  the  expenses  incurred  in  improving 
the  navigation  of  waters  traversed  by  them,  as  by  the  removal  of  rocks, 
the  construction  of  dams  and  locks  to  increase  the  depth  of  water  and 
thus  extend  the  line  of  navigation,  or  the  construction  of  canals 
around  falls,  rest  upon  a  different  principle.  The  tax  in  such  cases  is 
considered  merely  as  compensation  for  the  additional  facilities  thus 
provided  in  the  navigation  of  the  waters.2  Kellogg  v.  Union  Co.,  12 
Conn.  7 ;  Thames  Bank  v.  Lovell,  18  Conn.  500,  46  Am.  Dec.  332 ; 
McRevnolds  v.  Smallhouse.  8  Bush  (  Ky.)  447. 

i  similar  grounds,  what  are  termed  harbor  dues  or  port  charges, 
exacted  by  the  state  from  vessels  in  its  harbors,  or  from  their  owners, 
for  other  than  sanitary  purposes,  are  sustained.  We  say  for  other 
than  sanitary  purposes,  for  the  power  to  prescribe  regulations  to  pro- 
tect the  health  of  the  community,  and  prevent  the  spread  of  disease,  is 

i  As  to  the  situs  for  property  taxation,  under  various  circumstances,  of 
vessels  employed  on  navigable  Interstate  waters,  see  So.  l'ac.  Co.  v.  Kentucky, 
ante,  p.  543,   nod-,  ami  cases  there 

'Accord  (compensation  for  the  use  or  proffer  of  various  facilil 
tn  the  user):    Cooley  v.  Board  of  Wardens,  12  How.  299,  13  I.    I 
(half-pilotage  fees):   racket  Co.  v.  St.  Louis,  i<>"  l'.  S.  430,  25  1..  Ed.  6SS  (1SS0) 
(wharfage  fees);    Huse  v.  Glover,  119  D.  S.  543,  7  Sup.  Ct.  313, 
(1886)  (tolls  for  use  of  lock  and  dam):    Morgan's  S.  S.  Co.  v.   la.  Board  of 
us   U.  S.    155,   6  Sup.   ct.    nit.  30   I,.   Ed.   237   (1886)   (quarantine 
charges);    Lindsay,  etc..  Co.  v.  Mullen.  176  D.  S.  126,  20  Sup.  Ct  325,   n  L. 
Ed,  100  (1900)  (log  boom  lien).    So  as  to  rentals  charged  by  state  muni 
for  the  use  of  public  highways,  by  an  Interstate  telegraph  line.    St  L 
\v.  r.  Tele-   Co..  us  o.  s.  92,  13  Sup.  Ct   185,  :;7  L.  1M.  :;st>  (1893);    West 
Union  Co.  v.  Richmond,  224  r.  S.  160,  :;-  Sup.  Ct.  449,  51 
Compare  Ilanmm   v.  Chicago,  147  U.  S.  390,  13  Sup.  Ct.  300,  37  L.  Ed    216 
(1893). 


1102  THE   FEDERAL   GOVERNMENT  (Part  '.> 

incident  to  all  local  municipal  authority,  however  much  such  regula- 
tions may  interfere  with  the  movements  of  commerce.  But,  independ- 
ently of  such  measures,  the  state  may  prescribe  regulations  for  the 
government  of  vessels  while  in  its  harbors;  it  may  provide  for  their 
anchorage  or  mooring,  so  as  to  prevent  confusion  and  collision ;  it 
may  designate  the  wharves  at  which  they  shall  discharge  and  receive 
their  passengers  and  cargoes,  and  require  their  removal  from  the 
wharves  when  not  thus  engaged,  so  as  to  make  room  for  other  ves- 
sels; it  may  appoint  officers  to  see  that  the  regulations  are  carried  out, 
and  impose  penalties  for  refusing  to  obey  the  directions  of  such  offi- 
cers ;  and  it  may  impose  a  tax  upon  vessels  sufficient  to  meet  the  ex- 
penses attendant  upon  the  execution  of  the  regulations.  The  authority 
for  establishing  regulations  of  this  character  is  found  in  the  right  and 
duty  of  the  supreme  power  of  the  state  to  provide  for  the  safety,  con- 
venient use,  and  undisturbed  enjoyment  of  property  within  its  limits ; 
and  charges  incurred  in  enforcing  the  regulations  may  properly  be 
considered  as  compensation  for  the  facilities  thus  furnished  to  the 
vessels.3  Vanderbilt  v.  Adams,  7  Cow.  (N.  Y.)  351.  Should  such  reg- 
ulations interfere  with  the  exercise  of  the  commercial  power  of  Con- 
gress, they  may  at  any  time  be  superseded  by  its  action.     *     *     * 

The  power  of  the  states  to  regulate  matters  of  internal  police  in- 
cludes the  establishment  of  ferries  as  well  as  the  construction  of  roads 
and  bridges.  In  Gibbons  v.  Ogden  [9  Wheat.  1,  6  L.  Ed.  23],  Chief 
Justice  Marshall  said  that  laws  respecting  ferries,  as  well  as  inspec- 
tion laws,  quarantine  laws,  health  laws,  and  laws  regulating  the  inter- 
nal commerce  of  the  states,  are  component  parts  of  an  immense  mass 
of  legislation,  embracing  everything  within  the  limits  of  a  state  not 
surrendered  to  the  general  government;  but  in  this  language  he  plain- 
ly refers  to  ferries  entirely  within  the  state,  and  not  to  ferries  trans- 
porting passengers  and  freight  between  the  states  and  a  foreign  coun- 
try ;  for  the  power  vested  in  Congress,  he  says,  comprehends  every 
species  of  commercial  intercourse  between  the  United  States  and  for- 
eign countries.  *  *  *  Ferries  between  one  of  the  states  and  a 
foreign  country  cannot  be  deemed,  therefore,  beyond  the  control  of 
Congress  under  the  commercial  power.  *  *  *  Congress  has  passed 
various  laws  respecting  such  international  and  interstate  ferries,  the 
validity  of  which  is  not  open  to  question.     *     *     * 

It  is  true  that  from  the  earliest  period  in  the  history  of  the  govern- 
ment the  states  have  authorized  and  regulated  ferries,  not  only  over 
waters  entirely  within  their  limits,  but  over  waters  separating  them ; 
and  it  may  be  conceded  that  in  many  respects  the  states  can  more  ad- 
vantageously manage  such  interstate  ferries  than  the  general  govern- 

s  Accord  (reasonable  charges  for  cost  of  governmental  supervision  made 
necessary  by  character  of  business) :  Atl.  &  Pac.  Co.  v.  Phila.,  190  TJ.  S.  1G0. 
23  Sup.  Ct.  817,  47  L.  Ed.  995  (1903)  (supervision  of  telegraph  wires) ;  and 
the  quarantine  and  pilotage  cases  in  note  2,  above.  Compare  Postal  Tel.  Co. 
v.  New  Hope.  192  U.  S.  55,  24  Sup.  Ct.  204,  48  L.  Ed.  33S  (1904). 


Ch.  18)  REGULATION    OF    COMMERCE  110M 

ment;  and  that  the  privilege  of  keeping  a  ferry,  with  a  right  to  take 
toll  for  passengers  and  freight,  is  a  franchise  grantable  by  the  state,  to 
be  exercised  within  such  limits  and  under  such  regulations  as  may  be 
required  for  the  safety,  comfort,  and  convenience  of  the  public.  Still, 
the  fact  remains  that  such  a  ferry  is  a  means,  and  a  necessary  means, 
of  commercial  intercourse  between  the  states  bordering  on  their  divid- 
ing waters,  and  it  must,  therefore,  be  conducted  without  the  imposi- 
tion by  the  states  of  taxes  or  other  burdens  upon  the  commerce 
between  them.  Freedom  from  such  imposition  does  not,  of  course,  im- 
ply exemption  from  reasonable  charges,  as  compensation  for  the  car- 
riage of  persons  in  the  way  of  tolls  or  fares,  or  from  the  ordinary  tax- 
ation to  which  other  property  is  subjected,  any  more  than  like  fieedom 
of  transportation  on  land  implies  such  exemption.  Reasonable  charges 
for  the  use  of  property,  either  on  water  or  land,  are  not  an  interfer- 
ence with  the  freedom  of  transportation  between  the  states,  secured 
under  the  commercial  power  of  Congress.  Packet  Co.  v.  Keokuk,  95 
U.  S.  80.  24  L.  Ed.  377;  Packet  Co.  v.  St.  Louis,  100  U.  S.  423,  25 
L.  Ed.  688;  Vicksburg  v.  Tobin,  100  U.  S.  430;  Packet  Co.  v.  Cat- 
lettsburg,  105  U.  S.  559,  26  L.  Ed.  1169;  Parkersburg  &  O.  R.  Transp. 
Co.  v.  Parkersburg,  107  U.  S.  691,  2  Sup.  Ct.  732,  27  L.  Ed.  584.  That 
freedom  implies  exemption  from  charges  other  than  such  as  are  im- 
posed by  way  of  compensation  for  the  use  of  the  property  employed, 
or  for  facilities  afforded  for  its  use,  or  as  ordinary  taxes  upon  the 
value  of  the  property.  How  conflicting  legislation  of  the  two  states  on 
the  subject  of  ferries  on  waters  dividing  them  is  to  be  met  and  treated, 
is  not  a  question  before  us  for  consideration.  Pennsylvania  has  never 
attempted  to  exercise  its  power  of  establishing  and  regulating  ferries 
across  the  Delaware  river.  Any  one,  so  far  as  her  laws  are  con- 
cerned, is  free,  as  we  are  informed,  to  establish  such  ferries  as  he  may 
choose.  No  license  fee  is  exacted  from  ferry-keepers.  She  merely  ex- 
ercises the  right  to  designate  the  places  of  landing,  as  she  does  the 
places  of  landing  for  all  vessels  engaged  in  commerce.  The  question, 
therefore,  respecting  the  tax  in  the  present  case,  is  not  complicated  by 
any  action  of  that  state  concerning  ferries.  However  great  her  power, 
no  legislation  on  her  part  can  impose  a  tax  on  that  portion  of  in- 
terstate commerce  which  is  involved  in  the  transportation  of  persons 
and  freight,  whatever  be  the  instrumentality  by  which  it  is  carried 
on.     *     *     * 

Judgment  reversed.* 

*  Compare  Wiggins  Ferry  Co.  v.  East  St.  Louis,  107  V.  S.  3fir>,  2  Sup.  Ct" 
257,  27  L.  Ed.  419  (1SS2).    See  Conway  v.  Taylor,  pest,  p.  1144.  Bad  I 


1104  THE   FEDERAL  GOVERNMENT  (Part  3 

PHILADELPHIA  &  SOUTHERN  MAIL  S.  S.  CO.  v.  PENN- 
SYLVANIA. 

(Supreme  Court  of  United  States,  18S7.     122  U.  S.  326,  7  Sup.  Ct.  HIS,  30 
L.  Ed.  1200.) 

[Error  to  the  Supreme  Court  of  Pennsylvania.  A  state  statute 
imposed  a  tax  of  Vio  per  cent,  upon  the  gross  receipts  of  every  trans- 
portation company  incorporated  by  or  doing  business  in  the  state. 
The  Philadelphia,  etc.,  S.  S.  Company,  a  Pennsylvania  corporation, 
denied  the  validity  of  this  tax,  as  to  its  receipts  derived  from  trans- 
portation by  sea  between  different  states  and  to  foreign  countries. 
From  a  decision  against  it,  this  writ  was  taken.] 

Mr.  Justice  Bradley.  The  question  which  underlies  the  immediate 
question  in  the  case  is  whether  the  imposition  of  the  tax  upon  the 
steam-ship  company's  receipts  amounted  to  a  regulation  of,  or  an 
interference  with,  interstate  and  foreign  commerce,  and  was  thus  in 
conflict  with  the  power  granted  by  the  Constitution  to  Congress. 
The  tax  was  levied  directly  upon  the  receipts  derived  by  the  com- 
pany from  its  fares  and  freights  for  the  transportation  of  persons 
and  goods  between  different  states,  and  between  the  states  and  for- 
eign countries,  and  from  the  charter  of  its  vessels,  which  was  for  the 
same  purpose.  This  transportation  was  an  act  of  interstate  and  for- 
eign commerce.  It  was  the  carrying  on  of  such  commerce.  It  was 
that,  and  nothing  else.  In  view  of  the  decisions  of  this  court,  it 
cannot  be  pretended  that  the  state  could  constitutionally  regulate 
or  interfere  with  that  commerce  itself.  But  taxing  is  one  of  the 
forms  of  regulation.  It  is  one  of  the  principal  forms.  Taxing  the 
transportation,  either  by  its  tonnage  or  its  distance,  or  by  the  num- 
ber of  trips  performed,  or  in  any  other  way,  would  certainly  be  a 
regulation  of  the  commerce,  a  restriction  upon  it,  a  burden  upon  it. 
Clearly,  this  could  not  be  done  by  the  state  without  interfering  with 
the  power  of  Congress.  Foreign  commerce  has  been  fully  regulated 
by  Congress,  and  any  regulations  imposed  by  the  states  upon  that 
branch  of  commerce  would  be  a  palpable  interference.  If  Congress 
has  not  made  any  express  regulations  with  regard  to  interstate  com- 
merce, its  inaction,  as  we  have  often  held,  is  equivalent  to  a  declara- 
tion that  it  shall  be  free  in  all  cases  where  its  power  is  exclusive ; 
and  its  power  is  necessarily  exclusive  whenever  the  subject-matter 
is  national  in  its  character,  and  properly  admits  of  only  one  uniform 
6ystem.  See  the  cases  collected  in  Robbins  v.  Shelby  Taxing-Dist., 
120  U.  S.  489,  492,  493,  7  Sup.  Ct.  592,  30  L.  Ed.  694.  Interstate 
commerce  carried  on  by  ships  on  the  sea  is  surely  of  this  character. 

If,  then,  the  commerce  carried  on  by  the  plaintiff  in  error  in  this 
case  could  not  be  constitutionally  taxed  by  the  state,  could  the  fares 
and  freights  received  for  transportation  in  carrying  on  that  com- 
merce be  constitutionally  taxed?     If  the  state  cannot  tax  the  trans- 


Ch.  IS)  REQUISITION    OF    i.'OMMKUCE  1105 

portalion,  may  it,  nevertheless,  tax  the  fares  and  freights  received 
therefor?  Where  is  the  difference?  Looking  at  the  substance  of 
things,  and  not  at  mere  forms,  it  is  very  difficult  to  see  any  differ- 
ence. The  one  thing  seems  to  be  tantamount  to  the  other.  It  would 
seem  to  be  rather  metaphysics  than  plain  logic  for  the  state  officials 
to  say  to  the  company:  "We  will  not  tax  you  for  the  transportation 
you  perform,  but  we  will  tax  you  for  what  you  get  for  performing 
it."  Such  a  position  can  hardly  be  said  to  be  based  on  a  sound 
i'  h  id  oi  rea  wring.  *  *  *  [Here  follow  quotations  from 
Crown  v.  Maryland,  ante,  p.  1063.]  The  application  of  this  reason- 
ing to  the  case  in  hand  is  obvious.  Of  whal  it  be  to  the 
ner,  in  carrying  on  interstate  and  foreign  commerce,  to  have 
the  right  of  transporting  persons  and  goods  free  from  state  inter- 
ference if  he  had  not  the  equal  right  to  charge  for  such  transporta- 
tion without  such  interference?  The  very  object  of  his  engaging 
in  transportation  is  to  receive  pay  for  it.  If  the  regulation  of  the 
transportation  belongs  to  the  power  of  Congress  to  regulate  com- 
merce, the  regulation  of  fares  and  freights  receivable  for  such  trans- 
portation  must  equally  belong  to  that  power;  and  any  burdens  im- 
posed by  the  state  on  such  receipts  must  be  in  conilict  with  it.  To 
apply  the  language  of  Chief  Justice  Marshall,  fares  and  freights  for 
transportation  in  carrying  on  interstate  or  foreign  commerce  are  as 
much  essential  ingredients  of  that  commerce  as  transportation  itself. 
*     *     * 

[After  discussing  the  Case  of  the  State  Freight  Tax,  ante,  p.  i 
If  this  case  stood  alone,  we  should  have  no  hesitation  in  saying  that 
it  would  entirely  govern  the  one  before  us;  for,  as  before  said,  a 
tax  upon  fares  and  freights  received  for  transportation  is  virtually 
a  tax  upon  the  transportation  itself.  But  at  the  same  time  that  the 
Case  of  State  Freight  Tax  was  decided  [another  case],  that  of  State 
Tax  on  Railway  Gross  Receipts,  was  also  decided,  and  the  opinion 
was  delivered  by  the  same  member  of  the  court.  15  Wall.  284,  21 
L.  Ed.  164.  *  *  *  [This  case  involved  a  state  tax  of  %  per 
cent,  upon  all  the  gross  receipts  of  transportation  companies  incor- 
porated in  Pennsylvania,  payable  semi-annually.]  The  same  line  of 
argument  was  taken  at  the  bar  as  in  the  other  case.  This  court, 
however,  held  the  tax  to  be  constitutional.  The  grounds  on  which 
the  opinion  was  based,  in  order  to  distinguish  this  case  from  the 
preceding  one,  were  two: 

First,  that  the  tax.  being  collectible  only  once  in  six  months,  was 
laid  upon  a  fund  which  had  become  the  property  of  the  company, 
mingled  with  its  other  property,  and  incorporated  into  the  general 
mass  of  its  property,  possibly  expended  in  improvements  or  other 
1.  The  case  is  likened,  in  the  opinion,  to  that  of  taxing 
goods  which  have  been  imported  after  their  original  packages  have 
been  broken,  and  after  they  have  been  mixed  with  the  mass  of  prop- 
II  am.  Const. L. — 70 


1106  THE   FEDERAL   GOVERNMENT  (Part  3 

erty  in  the  country,  which,  it  was  said,  are  conceded  in  Brown  v. 
Maryland  to  be  taxable.  This  reasoning  seems  to  have  much  force. 
But  is  the  analogy  to  the  case  of  imported  goods  as  perfect  as  is  sug- 
gested? When  the  latter  become  mingled  with  the  general  mass  of 
property  in  the  state,  they  are  not  followed  and  singled  out  for  tax- 
ation as  imported  goods,  and  by  reason  of  their  being  imported. 
If  they  were,  the  tax  would  be  as  unconstitutional  as  if  imposed  upon 
them  while  in  the  original  packages.  *  *  *  [Referring  to  Wel- 
ton  v.  Missouri,  ante,  p.  1083.]  The  tax  in  the  present  case  is  laid 
upon  the  gross  receipts  for  transportation  as  such.  Those  receipts 
are  followed,  and  caused  to  be  accounted  for  by  the  company  dollar 
for  dollar.  It  is  those  specific  receipts,  or  the  amount  thereof  (which 
is  the  same  thing),  for  which  the  company  is  called  upon  to  pay  the 
tax.  They  are  taxed,  not  only  because  they  are  money  or  its  value, 
but  because  they  were  received  for  transportation.  No  doubt  a  ship- 
owner, like  any  other  citizen,  may  be  personally  taxed  for  the  amount 
of  his  property  or  estate,  without  regard  to  the  source  from  which 
it  was  derived,  whether  from  commerce  or  banking  or  any  other  em- 
ployment. But  that  is  an  entirely  different  thing  from  laying  a  spe- 
cial tax  upon  his  receipts  in  a  particular  employment.  If  such  a  tax 
is  laid,  and  the  receipts  taxed  are  those  derived  from  transporting 
goods  and  passengers  in  the  way  of  interstate  or  foreign  commerce, 
no  matter  when  the  tax  is  exacted,  whether  at  the  time  of  realizing 
the  receipts,  or  at  the  end  of  every  six  months  or  a  year,  it  is  an 
exaction  aimed  at  the  commerce  itself,  and  is  a  burden  upon  it,  and 
seriously  affects  it.  A  review  of  the  question  convinces  us  that  the 
first  ground  on  which  the  decision  in  State  Tax  on  Railway  Gross 
Receipts  was  placed  is  not  tenable;  that  it  is  not  supported  by  any- 
thing decided  in  Brown  v.  Maryland ;  but,  on  the  contrary,  that  the 
reasoning  in  that  case  is  decidedly  against  it. 

The  second  ground  on  which  the  decision  referred  to  was  based 
was  that  the  tax  was  upon  the  franchise  of  the  corporation  granted 
to  it  by  the  state.  We  do  not  think  that  this  can  be  affirmed  in  the 
present  case.  It  certainly  could  not  have  been  intended  as  a  tax  on 
the  corporate  franchise,  because,  by  the  terms  of  the  act,  it  was  laid 
equally  on  the  corporations  of  other  states  doing  business  in  Penn- 
sylvania. If  intended  as  a  tax  on  the  franchise  of  doing  business, — 
which  in  this  case  is  the  business  of  transportation  in  carrying  on 
interstate  'and  foreign  commerce, — it  would  clearly  be  unconstitu- 
tional. *  *  *  [After  stating  and  quoting  from  the  case  of  Glou- 
cester Ferry  Co.  v.  Pennsylvania,  ante,  p.  1098:]  The  decision  in 
this  case,  and  the  reasoning  on  which  it  is  founded,  so  far  as  they 
relate  to  the  taxation  of  interstate  commerce  carried  on  by  corpora- 
tions, apply  equally  to  domestic  and  foreign  corporations.  No  doubt, 
the  capital  stock  of  the  former,  regarded  as  inhabitants  of  the  state, 
or  their  property,  may  be  taxed  as  other  corporations  and  inhabi- 
tants are,  provided  no  discrimination  be  made  against  them  as  cor- 


Ch.  18)  REGULATION    OF    COlfMBBCS  l"1" 

porations  carrying  on  foreign  or  interstate  commerce,  so  as  to  make 
the  tax,  in  effect,  a  tax  on  such  commerce.  But  their  business  as 
carriers  in  foreign  or  interstate  commerce  cannot  be  taxed  by  the 
state  under  the  plea  that  they  are  exercising  a  franchise.     *     *     * 

Can  the  tax  in  this  case  be  regarded  as  an  income  tax?  And,  if  it 
can,  does  that  make  any  difference  as  to  its  constitutionality? 
*  *  *  Conceding,  however,  that  an  income  tax  may  be  imposed 
on  certain  classes  of  the  community,  distinguished  by  the  character 
of  their  occupations,  this  is  not  an  income  tax  on  the  class  to  which 
it  refers,  but  a  tax  on  their  receipts  for  transportation  only.  *  * 
It  is  unnecessary,  therefore,  to  discuss  the  question  which  would 
arise  if  the  tax  were  properly  a  tax  on  income.  *  *  *  The  cor- 
porate franchises,  the  property,  the  business,  the  income  of  corpora- 
tions created  by  a  state  may  undoubtedly  be  taxed  by  the  state;  but, 
in  imposing  such  taxes,  care  should  be  taken  not  to  interfere  with 
or  hamper,  directly  or  by  indirection,  interstate  or  foreign  commerce, 
or  any  other  matter  exclusively  within  the  jurisdiction  of  the  federal 
government.     *     *     * 

Judgment  reversed.1 


LELOUP  v.  PORT  OF  MOBILE  (1888)  127  U.  S.  640,  644-648. 
8  Sup.  Ct.  1383,  32  L.  Ed.  311,  Mr.  Justice  Bradley  (holding  invalid 
an  ordinance  of  Mobile,  Alabama,  imposing  upon  telegraph  com- 
panies doing  business  in  the  city  an  annual  license  tax  of  $225) : 

"In  approaching  the  question  thus  presented,  it  is  proper  to  note 
that  the  license  tax  in  question  is  purely  a  tax  on  the  privilege  of 
doing  the  business  in  which  the  telegraph  company  was  engaged.  By 
the  laws  of  Alabama  in  force  at  the  time  this  tax  was  imposed,  the 
telegraph  company  was  required,  in  addition,  to  pay  taxes  to  the  state, 
county,  and  port  of  Mobile,  on  its  poles,  wires,  fixtures,  and  other 

i  Where  a  state  tax  on  gross  receipts  from  both  Internal  and  Interstate 
commerce  can  be  construed  as  separable,  the  tax  on  the  Internal  receipts  will 
be  sustained.  Rattermau  v.  W,  U.  Teleg.  Co..  127  D.  B.  411.  8  Sup.  Ct  1127, 
32  L.  Ed.  229  (1888).  Compare  Okla.  v.  Wells,  Fargo  &  Co.,  223  U.  S.  298,  32 
Sup.  Ct.  218,  56  L.  Ed.  445  (1912).  A  tax  expressly  confined  to  the  gross  re- 
ceipts from  Internal  transportation  Is  of  course  valid,  though  the  company  be 
also  engaged  in  Interstate  transportation.  I'ac.  Exp.  Co.  v.  Seibert,  142  U. 
s.  839,  12  Sup.  Ct.  250,  35  L.  Ed.  1035  (1892). 

Where  both  termini  of  the  transit  are  in  the  taxing  state,  though  the  goods 
pass  outside  en  route,  a  part  of  the  gross  receipts  therefrom  may  be  taxed 
that  is  proportional  to  the  mileage  Id  the  state,  Lehigh  Val.  By.  v.  Pennsyl- 
vania, 146  D.  S.  192,  12  Sup.  Ct  SOt;,  36  L.  Ed.  672  (1S92);  United  States  Exp 
Co.  v.  Minn..  223  V.  S.  335,  82  Sup,  Ct  211,  56  I..  Ed.  469  (1912);  or  a  tint 
privilege  tax  may  be  exacted  f»r  doing  any  business  of  this  character,  Ewing 
v.  Leavenworth,  226  r.  s.  464,  33  Sup.  Ct  157,  57  L.  Ed.  —  (1913)  (?50  yearly 
tax  on  express  business). 

The  lessor  of  a  railroad  within  a  state,  which  the  lessee  uses  largely  tor 
Interstate  transportation,  may  be  taxed  by  the  state  upon  the  rentals  ami  tolls 
received  from  the  lessee  as  compensation  for  the  lease  X.  Y.,  etc.,  Ry.  v. 
Eennsylvania,  15S  U.  S.  431,  15  Sup.  Ct.  B96,  39  L.  Ed.  1043 


1108  THE   FEDERAL   GOVERNMENT  (Part  3 

property,  at  the  same  rate  and  to  the  same  extent  as  other  corpora- 
tions and  individuals  were  required  to  do.  Besides  the  tax  on  tangi- 
ble property,  they  were  also  required  to  pay  a  tax  of  three-quarters 
of  1  per  cent,  on  their  gross  receipts  within  the  state.  The  question 
is  squarely  presented  to  us,  therefore,  whether  a  state,  as  a  condition 
of  doing  business  within  its  jurisdiction,  may  exact  a  license  tax 
from  a  telegraph  company,  a  large  part  of  whose  business  is  the 
transmission  of  messages  from  one  state  to  another  and  between  the 
United  States  and  foreign  countries,  and  which  is  invested  with  the 
powers  and  privileges  conferred  by  the  act  of  Congress  passed  July 
24,  1866,  and  other  acts  incorporated  in  title  45  of  the  Revised  Stat- 
utes ?  Can  a  state  prohibit  such  a  company  from  doing  such  a  busi- 
ness within  its  jurisdiction,  unless  it  will  pay  a  tax  and  procure  a 
license  for  the  privilege?  If  it  can,  it  can  exclude  such  companies, 
and  prohibit  the  transaction  of  such  business  altogether.  We  are  not 
prepared  to  say  that  this  can  be  done.  Ordinary  occupations  are 
taxed  in  various  ways,  and,  in  most  cases,  legitimately  taxed.  But 
we  fail  to  see  how  a  state  can  tax  a  business  occupation  when  it 
cannot  tax  the  business  itself.  Of  course,  the  exaction  of  a  license 
tax  as  a  condition  of  doing  any  particular  business  is  a  tax  on  the 
occupation ;  and  a  tax  on  the  occupation  of  doing  a  business  is  surely 
a  tax  on  the  business.  Now,  we  have  decided  that  communication  by 
telegraph  is  commerce,  as  well  as  in  the  nature  of  postal  service,  and, 
if  carried  on  between  different  states,  it  is  commerce  among  the  sev- 
eral states,  and  directly  within  the  power  of  regulation  conferred  up- 
on Congress,  and  free  from  the  control  of  state  regulations,  except 
such  as  are  strictly  of  a  police  character.  *  *  *  [Citing  and  dis- 
cussing Pensacola  Teleg.  Co.  v.  W.  U.  Teleg.  Co.,  96  U.  S.  1,  24  L. 
Ed.  708,  and  W.  U.  Teleg.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed. 
1067.] 

"In  the  present  case,  it  is  true,  the  tax  is  not  laid  upon  individual 
messages,  but  it  is  laid  on  the  occupation,  or  the  business  of  sending 
such  messages.  It  comes  plainly  within  the  principle  of  the  decisions 
lately  made  by  this  court  in  Robbins  v.  Taxing  Dist,  120  U.  S.  489, 
7  Sup.  Ct.  592,  30  L.  Ed.  694,  and  Steamship  Co.  v.  Pennsylvania, 
122  U.  S.  326,  7  Sup.  Ct.  1118,  30  L.  Ed.  1200.  It  is  parallel  with 
the  case  of  Brown  v.  Maryland,  12  Wheat.  419,  6  L.  Ed.  678.  That 
was  a  tax  on  an  occupation,  and  this  court  held  that  it  was  equiva- 
lent to  a  tax  on  the  business  carried  on  (the  importation  of  goods 
from  foreign  countries),  and  even  equivalent  to  a  tax  on  the  imports 
themselves,  and  therefore  contrary  to  the  clause  of  the  Constitution 
which  prohibits  the  states  from  laying  any  duty  on  imports.  *  *  * 
[Here  follows  a  quotation  from  Almy  v.  California,  24  How.  169, 
173,  16  L.  Ed.  644,  applying  Brown  v.  Maryland.] 

"But  it  is  urged  that  a  portion  of  the  telegraph  company's  business 
is  internal  to  the  state  of  Alabama,  and   therefore  taxable  by   the 


Ch.  18)  BEGULATION    OP    COMM  HOD 

state.  But  that  fact  does  not  remove  the  difficulty.  The  tax  affects 
the  whole  business  without  discrimination.  There  are  sufficient 
modes  in  which  the  internal  business,  if  not  already  taxed  in  some 
other  way,  may  be  subjected  to  taxation,  without  the  imposition  of 
a  tax  which  covers  the  entire  operations  of  the  company.  The  state 
court  relies  upon  the  case  of  Osborne  v.  Mobile,  16  Wall.  479,  21  L. 
Ed.  470,  which  brought  up  for  consideration  an  ordinance  of  the  city, 
requiring  every  express  company,  or  railroad  company  doing  busi- 
ness in  that  city,  and  having  a  business  extending  beyond  the  limits 
of  the  state,  to  pay  an  annual  license  of  $500;  if  the  busine 
confined  within  the  limits  of  the  state,  the  license  fee  was  only  $100; 
if  confined  within  the  city,  it  was  $50;  subject  in  each  case  to  a  pen- 
alty for  neglect  or  refusal  to  pay  the  charge.  This  court  held  that 
the  ordinance  was  not  unconstitutional.  This  was  in  December  term, 
1872.  In  view  of  the  course  of  decisions  which  have  been  made  since 
that  time,  it  is  very  certain  that  such  an  ordinance  would  now  be  re- 
garded as  repugnant  to  the  power  conferred  upon  Congress  to  reg- 
ulate commerce  among  the  several  states.  A  great  number  and  va- 
riety of  cases  involving  the  commercial  power  of  Congress  have  been 
brought  to  the  attention  of  this  court  during  the  past  15  years  which 
have  frequently  made  it  necessary  to  re-examine  the  whole  subject 
with  care;  and  the  result  has  sometimes  been  that,  in  order  to  give 
full  and  fair  effect  to  the  different  clauses  of  the  Constitution,  the 
court  has  felt  constrained  to  recur  to  the  fundamental  principles 
stated  and  illustrated  with  so  much  clearness  and  force  by  Chief  Jus- 
tice Marshall  and  other  members  of  the  court  in  former  times,  and 
to  modify  in  some  degree  certain  dicta  and  decisions  that  have  occa- 
sionally been  made  in  the  intervening  period.  This  is  always  done, 
however,  with  great  caution,  and  an  anxious  desire  to  place  the  final 
conclusion  reached  upon  the  fairest  and  most  just  construction  of  the 
Constitution  in  all  its  parts.  In  our  opinion,  such  a  construction  of 
the  Constitution  leads  to  the  conclusion  that  no  state  has  thi 
to  lay  a  tax  on  interstate  commerce  in  any  form,  whether  by  way 
of  duties  laid  on  the  transportation  of  the  subjects  of  that  commerce, 
or  on  the  receipts  derived  from  that  transportation,  or  on  the  occu- 
pation or  business  of  carrying  it  on,  and  the  reason  is  that  such  tax- 
ation is  a  burden  on  that  commerce,  and  amounts  to  a  regulation  of 
it,  which  belongs  solely  to  Con-,. 

i  Accord:    McOaU  v.  California,  136  D.  S.  104,  L0  Sup,  Ct.  vm.  3 
391  (1890)  (license  tax  on  business  of  soliciting  In  California  Interstate  traffic 
for  ;i  railroad  between  Chicago  and  New   STork);    Norfolk,  etc.,  Ry.  v.  Penn- 
sylvania, 130  O.  s.  ill,  10  Sup.  Ct  958,  31  1..  Ed.  391  (1890)   (similar 
Crutcher  v.  Kentucky,  ill  C.  s.  47,  it  Sup.  Ct  feol,  351*  Ed.  OU  li- 
cense tax  on  interstate  express  company). 


1110  THE  FEDERAL   GOVERNMENT  (Part  ?> 

ALLEN  v.  PULLMAN'S  PALACE  CAR  COMPANY. 

(Supreme  Court  of  United   States,  1903.     191   U.   S.  171,  24   Sup.   Ct.  39,  48 
L.  Ed.  134.) 

[Error  to  the  Circuit  Court  of  the  United  States  for  the  Middle 
District  of  Tennessee.  The  Pullman  Company  sued  Allen,  the  comp- 
troller of  Tennessee,  to  recover  back  taxes  paid  by  it  under  protest  for 
the  years  1887  to  1893.  From  a  judgment  in  its  favor,  Allen  took  this 
writ.  The  yearly  gross  rereipts  of  the  company  from  interstate  busi- 
ness extending  into  the  state  were  $500,000.  The  similar  receipts 
from  its  purely  local  business  in  the  state  were  $25,000.  Other  facts 
appear  in  the  opinion.] 

Mr.  Justice  Day.  The  taxes  in  controversy  were  levied  under 
certain  revenue  laws  of  the  state  of  Tennessee,  Those  for  the  years 
1887  and  1888  provided :  "That  the  rate  of  taxation  on  the  following 
privileges  shall  be  as  follows:  Sleeping  cars:  Each  company  doing 
business  in  the  state,  on  each  car,  per  annum,  $500."  Section  eight  of 
the  act  provided :  "That  any  and  all  parties,  firms,  or  corporations  ex- 
ercising any  of  the  foregoing  privileges  must  pay  this  tax,  as  set  forth 
in  this  act,  for  the  exercise  of  such  privilege,  whether  they  make  a 
business  of  it  or  not." 

The  Tennessee  act  of  1877,  imposing  a  tax  upon  the  running  of 
sleeping  cars,  was  before  this  court  for  consideration  in  the  case  of 
Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  34,  29  L.  Ed.  785,  6 
Sup.  Ct.  635.     *     *     * 

It  was  [there]  held  that  the  tax  was  a  burden  upon  interstate  com- 
merce, and  void  because  of  the  exclusive  power  of  Congress  to  regu- 
late commerce  between  the  states.  Unless  the  statute  now  under  con- 
sideration can  be  distinguished  from  the  one  then  construed,  the  Pick- 
ard Case  is  decisive  of  the  present  case.  *  *  *  In  the  act  of  1877 
the  running  and  using  of  sleeping  cars  on  railroads  in  the  state,  when 
the  cars  are  not  owned  by  the  railroads  upon  which  they  are  run,  is 
declared  to  be  a  privilege.  Under  the  act  of  1887,  the  tax  is  specifi- 
cally imposed  upon  a  privilege.  Under  the  act  of  1877,  the  tax  im- 
posed was  $50  for  each  car  or  coach  used  or  run  over  the  road.  Un- 
der the  act  of  1887,  each  company  doing  business  in  the  state  is  re- 
quired to  pay  $500  per  annum  for  the  same  privilege.  The  distinction, 
except  in  the  amount  of  annual  tax  exacted,  is  without  substantial  dif- 
ference. Under  the  earlier  act  the  tax  is  required  for  the  privilege  of 
running  and  using  sleeping  cars  on  railroads  not  owning  the  cars.  In 
the  later  act  it  is  enacted  for  the  privilege  of  doing  business  in  the 
state.  This  business  consists  of  running  sleeping  cars  upon  railroads 
not  owning  the  cars,  and  is  precisely  the  privilege  to  be  paid  for  under 
the  first  act,  neither  more  nor  less.  In  neither  act  is  any  distinction  at- 
tempted between  local  or  through  cars  or  carriers  of  passengers.  The 
railroads  upon  which  the  cars  are  run  are  lines  traversing  the  state, 


Ch.  IS)  REGULATION    OK    COMMEBCB  1111 

but  not  confined  to  its  limits.  The  cars  of  the  Pullman  Company  run 
into  and  beyond  the  state  as  well  as  between  points  within  the  state. 
The  act  in  its  terms  applies  to  cars  running  through  the  state  as  well 
as  those  whose  operation  is  wholly  intrastate.  It  applies  to  all  alike, 
and  requires  payment  for  the  privilege  of  running  the  cars  of  the  com- 
pany, regardless  of  the  fact  whether  used  in  interstate  traffic  or  in  that 
which  is  wholly  within  the  borders  of  the  state.  There  is  no  decision 
of  the  supreme  court  of  Tennessee  limiting  the  act  in  its  operation  to 
intrastate  traffic.     *     *     * 

The  statute  now  under  consideration  requires  payment  of  the  sum 
exacted  for  the  privilege  of  doing  any  business,  when  the  principal 
thing  to  be  done  is  interstate  traffic.  We  are  not  at  liberty  to  read  into 
the  statute  terms  not  found  therein  or  necessarily  implied,  with  a  view 
to  limiting  the  tax  to  local  business,  which  the  legislature,  in  the  terms 
of  the  act,  impose  upon  the  entire  business  of  the  company.  We  are 
of  opinion  that  taxes  exacted  under  the  act  of  18S7  are  void  as  an  at- 
tempt by  the  state  to  impose  a  burden  upon  interstate  commerce. 

Other  considerations  apply  in  the  construction  of  the  act  of  1889, 
under  which,  or  acts  identical  in  terms,  taxes  were  collected  from  1889 
to  1893,  inclusive.  It  provides:  "Sec.  4.  The  rate  of  taxation  on  the 
following  privileges  shall  be  as  follows,  per  annum :  *  *  *  Sleep- 
ing car  companies  (in  lieu  of  all  other  taxes  except  ad  valorem  tax) 
for  one  or  more  passengers  taken  up  at  one  point  in  this  state  and  de- 
livered at  another  point  in  this  state,  and  transported  wholly  within 
the  state,  per  annum,  $3,000."  Its  terms  apply  strictly  to  business 
done  in  the  transportation  of  passengers  taken  up  at  one  point  in  the 
state  and  transported  wholly  within  the  state  to  another  point  therein. 
It  is  not  necessary  to  review  the  numerous  cases  in  this  court  in  which 
attempts  by  the  states  to  control  or  regulate  interstate  commerce  have 
been  the  subject  of  consideration.  While  they  show  a  zealous  care  to 
preserve  the  exclusive  right  of  Congress  to  regulate  interstate  traffic, 
the  corresponding  right  of  the  state  to  tax  and  control  the  internal 
business  of  the  state,  although  thereby  foreign  or  interstate  commerce 
may  be  indirectly  affected,  has  been  recognized  with  equal  clearness. 
In  the  late  case  of  Osborne  v.  Florida,  164  U.  S.  650,  41  L.  Ed.  586, 
17  Sup.  Ct.  215,  Mr.  Justice  Peckham,  speaking  for  the  court,  said: 
"It  has  never  been  held,  however,  that  when  the  business  of  the  com- 
pany, which  is  wholly  within  the  state,  is  but  a  mere  incident  to  its 
interstate  business,  such  fact  would  furnish  any  obstacle  to  the  valid 
taxation  by  the  state  of  the  business  of  the  company  which  is  entirely 
local.  So  long  as  the  regulation  as  to  the  license  or  taxation  does  not 
refer  to,  and  is  not  imposed  upon,  the  business  of  the  company  which 
is  interstate,  there  is  no  interference  with  that  commerce  by  the  state 
statute." 

Granting  that  the  right  exists  whereby  a  state  may  impose  privilege 
or  license  ices  upon  business  carried  on  wholly  within  the  state,  it  is 
argued  that  the  tax  of  $3,000  per  annum,  collected  for  carrying  one  or 


1112  THE   FEDERAL  GOVERNMENT  (Part  3 

more  local  passengers  on  cars  operating  within  the  state,  is  assessed 
upon  traffic  which  bears  such  small  proportion  to  the  entire  business 
of  the  company  within  the  state  that  it  could  not  have  been  levied  in 
good  faith  upon  purely  local  business,  and  is  but  a  thinly  disguised  at- 
tempt to  tax  the  privilege  of  interstate  traffic.  If  the  payment  of  this 
tax  was  compulsory  upon  the  company  before  it  could  do  a  carrying 
business  within  the  state,  and  the  burden  of  its  payment,  because  of 
the  minor  character  of  the  domestic  traffic,  rested  mainly  upon  the  re- 
ceipts from  interstate  traffic,  there  would  be  much  force  in  this  objec- 
tion. Upon  this  proposition  we  are  unable  to  distinguish  this  case 
from  Pullman  Co.  v.  Adams,  189  U.  S.  420,  47  h.  Ed.  877,  23  Sup. 
Ct.  494,  decided  at  the  last  term,  wherein  it  was  held  that  the  privilege 
tax  imposed  by  the  state  of  Mississippi,  upon  each  car  carrying  pas- 
sengers from  one  point  in  the  state  to  another  therein,  was  a  valid  tax, 
notwithstanding  the  fact  that  the  company  offered  to  show  that  its  re- 
ceipts from  the  carrying  of  the  passengers  named  did  not  equal  the 
expenses  chargeable  against  such  receipts.  This  conclusion  was  based 
upon  the  right  of  the  company  to  abandon  the  business  if  it  saw  fit. 
It  was  urged  that  under  the  Constitution  of  Mississippi  the  Pullman 
Company  was  a  common  carrier,  required  to  carry  passengers,  and 
therefore  could  not  be  taxed  for  the  privilege  of  doing  that  which  it 
was  compelled  to  do ;  but  in  view  of  a  decision  of  the  supreme  court 
of  Mississippi,  sustaining  the  tax,  it  was  assumed  that  no  such  objec- 
tion existed  under  the  state  Constitution.  Speaking  upon  this  subject, 
Mr.  Justice  Holmes,  delivering  the  opinion  of  the  court,  said:  "If  the 
clause  of  the  state  Constitution  referred  to  were  held  to  impose  the  ob- 
ligation supposed,  and  to  be  valid,  we  assume,  without  discussion,  that 
the  tax  would  be  invalid.  For  then  it  would  seem  to  be  true  that  the 
state  Constitution  and  the  statute  combined  would  impose  a  burden  on 
commerce  between  the  states  analogous  to  that  which  was  held  bad  in 
Crutcher  v.  Kentucky,  141  U.  S.  47,  35  L.  Ed.  649,  11  Sup.  Ct.  851. 
On  the  other  hand,  if  the  Pullman  Company,  whether  called  a  com- 
mon carrier  or  not,  had  the  right  to  choose  between  what  points  it 
would  carry,  and  therefore  to  give  up  the  carriage  of  passengers  from 
one  point  to  another  within  the  state,  the  case  is  governed  by  Osborne 
v.  Florida,  164  U.  S.  650,  41  L.  Ed.  586.  17  Sup.  Ct.  214.  The  com- 
pany cannot  complain  of  being  taxed  for  the  privilege  of  doing  a  local 
business  which  it  is  free  to  renounce.  Both  parties  agree  that  the  tax 
is  a  privilege  tax."     *     *     * 

[Under  section  3046,  Shannon's  Tenn.  Code,  it  was  held  that  Ten- 
nessee had  abrogated  the  common  law  rule  requiring  inn-keepers 
and  passenger  carriers  to  serve  all,  and  that  the  Pullman  Company 
was  under  no  obligation  to  receive  passengers  in  the  state.] 

It  follows  that  a  tax  imposed  upon  domestic  business,  under  the 
circumstances  shown,  cannot  be  a  burden  upon  interstate  commerce 
in  such  sense  as  will  invalidate  it.  Under  the  judgment  of  the  court 
below,  the   Pullman  Company  was  permitted  to  recover  for  license 


Ch.  18)  REGULATION    OF    COMMERCE  1118 

taxes  levied  under  both  acts.  In  so  far  as  it  permitted  a  recovery 
for  taxes  under  the  act  of  1889  and  identical  laws  of  other  years,  the 
judgment  should  be  modified.1 


PULLMAN'?  PALACE  CAR  CO.  v.  PENNSYLVANIA 
141  U.  S.  18,  22,  23,  25,  26,  29,  11  Pup.  Ct.  876,  35   L.   ! 
Mr.  Justice  Gray  (upholding  a  Pennsylvania  statute  taxing  the  Pull- 
man Company,  a  foreign  corporation,  upon  a  proportion  of  its  cap- 
ital stock  ascertained  as  stated  in  the  opinion  below): 

"It  is  *  *  *  well  settled  that  there  is  nothing  in  the  Constitu- 
tion or  laws  of  the  United  States  which  prevents  a  state  from  tax- 
ing personal  property  employed  in  interstate  or  foreign  commerce 
like  other  personal  property  within  its  jurisdiction.     *     *     * 

"Much  reliance  is  placed  by  the  plaintiff  in  error  upon  the  cases  in 
which  this  court  has  decided  that  citizens  or  corporations  of  qne 
state  cannot  be  taxed  by  another  state  for  a  license  or  privilege  to 
carry  on  interstate  or  foreign  commerce  within  its  limits.  But  in 
each  of  those  cases  the  tax  was  not  upon  the  property  employed  in 
the  business,  but  upon  the  right  to  carry  on  the  business  at  all,  and 
was  therefore  held  to  impose  a  direct  burden  upon  the  commerce 
itself.  *  *  *  For  the  same  reason,  a  tax  upon  the  gross  receipts 
derived  from  the  transportation  of  passengers  and  goods  b« 
one  state  and  other  states  or  foreign  nations  has  been  held  to  be  in- 
valid.    *     *     * 

"The  tax  now  in  question  is  not  a  license  tax  or  a  privilege  tax  . 
it  is  not  a  tax  on  business  or  occupation;  it  is  not  a  tax  on  or  be- 
cause of  the  transportation  or  the  right  of  transit  of  persons  or  prop- 
erty through  the  state  to  other  states  or  countries.  The  tax  is  im- 
posed equally  on  corporations  doing  business  within  the  state,  wheth- 
er domestic  or  foreign,  and  whether  engaged  in  interstate  commerce 
or  not.  The  tax  on  the  capital  of  the  corporation  on  account  of  its 
property  within  the  state  is,  in  substance  and  effect,  a  tax  on  that 
iv.  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196,  209.  5  Sup. 
Ct.  826,  29  L.  Ed.  158;  Telegraph  Co.  v.  Attorney  General,  125  U. 
S.  530,  552,  8  Sup.  Ct.  961,  31  L.  Ed.  790.  This  is  not  only  admitted, 
but  insisted  on,  by  the  plaintiff  in  error. 

"The  cars  of  this  company  within  the  state  of  Pennsylvania  are 
employed  in  interstate  commerce;  but  their  being  so  employed  does 
not  exempt  them  from  taxation  by  the  State;  and  the  state  has  not 
taxed  them  because  of  their  being  so  employed,  but  because  of  their 
being  within  its  territory  and  jurisdiction.     The  cars  were  continu- 

i  Accord:     Postal  Teleg.  Co.  v.  Charleston,  153  V.  S.  892,  II  8 
38  L.  I'M.  873   (1894);    Osborne  v.  n.  8.  650,   17  Sup.  Ct  21  I.    n 

I..  Ed.  586  (1897);    Pullman  Co.  v.  Adams,  L89  U.  S.  120,  28  Sup.  Ct   194,    17 

l.  Ed.  s77  uaoa). 


1114  THE   FEDERAL   GOVERNMENT  (Part  3 

ously  and  permanently  employed  in  going  to  and  fro  upon  certain 
routes  of  travel.  If  they  had  never  passed  beyond  the  limits  of  Penn- 
sylvania, it  could  not  be  doubted  that  the  state  could  tax  them,  like 
other  property  within  its  borders,  notwithstanding  they  were  em- 
ployed in  interstate  commerce.  The  fact  that,  instead  of  stopping  at 
the  state  boundary,  they  cross  that  boundary  in  going  out  and  com- 
ing back,  cannot  affect  the  power  of  the  state  to  levy  a  tax  upon 
them.  The  state,  having  the  right,  for  the  purposes  of  taxation,  to 
tax  any  personal  property  found  within  its  jurisdiction,  without  re- 
gard to  the  place  of  the  owner's  domicile,  could  tax  the  specific  cars 
which  at  a  given  moment  were  within  its  borders.  The  route  over 
which  the  cars  travel  extending  beyond  the  limits  of  the  state,  partic- 
ular cars  may  not  remain  within  the  state ;  but  the  company  has  at 
all  times  substantially  the  same  number  of  cars  within  the  state,  and 
continuously  and  constantly  uses  there  a  portion  of  its  property ; 
and  it  is  distinctly  found,  as  matter  of  fact,  that  the  company  contin- 
uously, throughout  the  periods  for  which  these  taxes  were  levied, 
carried  on  business  in  Pennsylvania,  and  had  about  100  cars  within 
the  state. 

"The  mode  which  the  state  of  Pennsylvania  adopted  to  ascertain 
the  proportion  of  the  company's  property  upon  which  it  should  be 
taxed  in  that  state  was  by  taking  as  a  basis  of  assessment  such  pro- 
portion of  the  capital  stock  of  the  company  as  the  number  of  miles 
over  which  it  ran  cars  within  the  state  bore  to  the  whole  number  of 
miles  in  that  and  other  states  over  which  its  cars  were  run.  This  was 
a  just  and  equitable  method  of  assessment;  and,  if  it  were  adopted 
by  all  the  states  through  which  these  cars  ran,  the  company  would 
be  assessed  upon  the  whole  value  of  its  capital  stock,  and  no  more. 
The  validity  of  this  mode  of  apportioning  such  a  tax  is  sustained  by 
several  decisions  of  this  court  in  cases  which  came  up  from  the  cir- 
cuit courts  of  the  United  States,  and  in  which,  therefore,  the  juris- 
diction of  this  court  extended  to  the  determination  of  the  whole  case, 
and  was  not  limited,  as  upon  writs  of  error  to  the  state  courts,  to 
questions  under  the  Constitution  and  laws  of  the  United  States. 
*  *  *  [State  R.  R.  Tax  Cases,  92  U.  S.  575,  23  L.  Ed.  663,  W. 
U.  Teleg.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31 
L.  Ed.  790,  and  Marye  v.  Bait.  &  O.  Ry.,  127  U.  S.  117,  8  Sup.  Ct. 
1037,  32  L.  Ed.  94,  are  here  cited  and  discussed.] 

"For  these  reasons,  and  upon  these  authorities,  the  court  is  of 
opinion  that  the  tax  in  question  is  constitutional  and  valid."  l 

[Brown,  J.,  took  no  part  in  the  decision.  Bradley,  J.,  gave  a 
dissenting  opinion,  in  which  concurred  Field  and  Harlan,  JJ.] 

i  As  to  valid  methods  of  taxing  tangible  property  (like  cars)  constautly  pass- 
ing in  and  out  of  a  state,  see  New  York  ex  rel.  v.  Miller,  ante,  p.  541,  and 
notes. 

A  fair  proportion  of  the  Intangible  values  created  by  a  business  consisting 
wholly  or  partly  of  Interstate  commerce  may  be  taxed  by  an  ad  valorem  prop- 
erty tax  in  each  state  where  such  business  is  carried  on.    To  fix  this,  the  uni- 


Ch.  18)  REGULATION    OF    COMMHBCB  1115 


MAINE  v.  GRAND  TRUNK  RY.  CO. 

(Supreme  Court  of  United  States,  1891.     142  U.  S.  217,  12  Sup.  Ct.  121,  168, 
B6  L  Ed.  994.) 

[Error  to  the  United  States  Circuit  Court  for  Maine.  The  At- 
lantic &  St.  Lawrence  Ry.  Co.  was  chartered  by  Maine  and  built  a 
railroad  from  Portland  to  a  point  in  Vermont,  a  distance  of  about 
150  miles,  of  which  about  83  miles  were  in  Maine.  In  1853  the  rights 
and  privileges  of  this  company  were,  by  legislative  permission,  leased 
to  the  Grand  Trunk  Ry.,  a  Canadian  corporation,  which  thereafter 
operated  the  road.  In  1881  a  Maine  statute  required  from  every 
person  operating  a  railroad  in  the  state  an  annual  excise  tax -for  the 
privilege  of  exercising  its  franchises  in  the  state.  This  tax  was  meas- 
ured by  a  certain  percentage  of  the  gross  receipts  of  such  railroads, 

lied  value  of  the  entire  business  as  a  going  concern  may  be  ascertained,  and 
then  the  proportion  of  this  assignable  to  the  taxing  state  may  be  determined 
by  any  fair  method.  See  Adams  Exp.  Co.  v.  Ohio,  ante,  p.  551,  and  notes. 
In  Cleveland,  etc.,  Ry.  v.  Backus,  154  U.  S.  4:19,  445-447,  14  Sup.  Ct.  1122,  88 
h.  Kd.  1041  (1S94),  Brewer,  J.,  said: 

"The  rule  of  property  taxation  is  that  the  value  of  the  property  Is  the  basis 
of  taxation.  It  does  not  mean  a  tax  upon  the  earnings  which  the  pn 
makes,  nor  for  the  privilege  of  using  the  properly,  but  rests  solely  upon  the 
value.  But  the  value  of  property  results  from  the  use  to  which  it  is  put.  and 
varies  with  the  profitableness  of  that  use,  present  and  prospective,  actual 
and  anticipated.  There  is  no  pecuniary  value  outside  of  that  which  results 
from  such  use.     •     •     • 

"Take,  for  Illustration,  property  whose  sole  use  is  for  purposes  of  Interstate 
commerce;  such  as  a  bridge  over  the  Ohio  between  the  states  of  Kentucky 
and  Ohio.  From  that  springs  its  entire  value.  Can  it  be  that  it  is  on  that 
account  entirely  relieved  from  the  burden  of  state  taxation?  Will  it  be  said 
that  the  taxation  must  be  based  simply  on  the  cost,  when  never  was  it  held 
that  the  cost  of  a  thing  is  the  test  of  its  value?  Suppose  there  be  two  bridges 
over  the  Ohio,  the  cost  of  the  construction  of  each  being  the  same, — one  be- 
tween Cincinnati  and  Newport,  and  another  20  miles  below,  and  where  there 
is  nothing  but  a  small  village  on  either  shore.  The  value  of  the  one  will, 
manifestly,  be  greater  than  that  Of  the  oilier,  and  that  excess  of  value  will 
spring  solely  from  the  larger  use  of  the  one  than  of  the  other.  Must  an  assess- 
ing hoard  in  either  state,  assessing  that  portion  of  the  bridge  within  the  state 
tor  purposes  of  taxation,  eliminate  all  of  the  value  which  flows  from  the  use. 
and  place  the  assessment  at  only  the  sum  remaining?  It  is  a  practical  im- 
possibility. Either  the  property  must  be  declared  wholly  exempt  from  s;ate 
taxation,  or  taxed  at  its  value,  irrespective  of  the  causes  and  uses  which  have 
brought  about  such  value. 

"And  the  uniform  ruling  of  this  court — a  ruling  demanded  by  the  harmoni- 
ous relations  between  the  states  and  the  national  government — has  affirmed 
that  the  full  discharge  of  no  duty  Intrusted  to  the  latter  restrali 

f the  exercise  of  the  power  of  equal  taxation  upon  all  private  property 

within  its  territorial  limits.  All  that  lias  been  decided  is  that  beyond  the  tax- 
ation of  property,  according  (to  the  nile  of  ordinary  property  taxation,  no 
slate  shall  attempt  to  impose  the  added  burden  of  a  license  or  other  tax  for 
the  privilege  of  using,  constructing,  or  operating  any  bridge,  or  other  Instru- 
mentality Of  interstate  commerce,  or  for  the  carrying  on  of  such  commerce. 
It  is  enough  for  the  state  that  it  finds  within  its  borders  property  which  is 
of  a  certain  value.  What  has  caused  that  value  is  immaterial.  It  is  protected 
by  state  laws,  and  the  rule  of  all  property  taxation  is  the  rule  of  value:  and 
by  that  rule  property  engaged  in  interstate  commerce  Is  controlled  the  same  as 
property  engaged  in  cotnmerce  within  the  state." 


1116  THE   FEDERAL  GOVERNMENT  (Part  3 

progressively  increasing  with  the  average  gross  receipts  per  mile  up 
to  a  maximum  of  Zy±  per  cent.;  and  railroads  lying  partly  without 
the  state  paid  only  upon  such  part  of  their  gross  receipts  as  was  pro- 
portional to  the  mileage  within  the  state.  Maine  sued  the  Grand 
Trunk  Company  for  the  amount  of  this  tax  due  from  the  operation 
of  the  line  of  the  Atlantic  &  St.  Lawrence  Company,  and  the  suit 
was  removed  to  the  state  federal  court,  which  gave  judgment  for  the 
defendant.] 

Mr.  Justice  Field.  The  tax,  for  the  collection  of  which  this  ac- 
tion is  brought,  is  an  excise  tax  upon  the  defendant  corporation  for 
the  privilege  of  exercising  its  franchises  within  the  state  of  Maine.  It 
is  so  declared  in  the  statute  which  imposes  it ;  and  that  a  tax  of  this 
character  is  within  the  power  of  the  state  to  levy,  there  can  be  no 
question.  The  designation  does  not  always  indicate  merely  an  in- 
land imposition  or  duty  on  the  consumption  of  commodities,  but 
often  denotes  an  impost  for  a  license  to  pursue  certain  callings,  or 
to  deal  in  special  commodities,  or  to  exercise  particular  franchises. 
It  is  used  more  frequently,  in  this  country,  in  the  latter  sense  than  in 
any  other.  The  privilege  of  exercising  the  franchises  of  a  corpora- 
tion within  a  state  is  generally  one  of  value,  and  often  of  great 
value,  and  the  subject  of  earnest  contention.  It  is  natural,  therefore, 
that  the  corporation  should  be  made  to  bear  some  proportion  of  the 
burdens  of  government.  As  the  granting  of  the  privilege  rests  en- 
tirely in  the  discretion  of  the  state,  whether  the  corporation  be  of  do- 
mestic or  foreign  origin,  it  may  be  conferred  upon  such  conditions, 
pecuniary  or  otherwise,  as  the  state,  in  its  judgment,  may  deem  most 
conducive  to  its  interests  or  policy.  It  may  require  the  payment  in- 
to its  treasury,  each  year,  of  a  specific  sum,  or  may  apportion  the 
amount  exacted  according  to  the  value  of  the  business  permitted,  as 
disclosed  by  its  gains  or  receipts  of  the  present  or  past  years.  The 
character  of  the  tax,  or  its  validity,  is  not  determined  by  the  mode 
adopted  in  fixing  its  amount  for  any  specific  period,  or  the  times  of 
its  payment.  The  whole  field  of  inquiry  into  the  extent  of  revenue 
from  sources  at  the  command  of  the  corporation  is  open  to  the  con- 
sideration of  the  state  in  determining  what  may  be  justly  exacted  for 
the  privilege.  The  rule  of  apportioning  the  charge  to  the  receipts 
of  the  business  would  seem  to  be  eminently  reasonable,  and  likely  to 
produce  the  most  satisfactory  results,  both  to  the  state  and  the  cor- 
poration taxed. 

The  court  below  held  that  the  imposition  of  the  taxes  was  a  reg- 
ulation of  commerce,  interstate  and  foreign,  and  therefore  in  conflict 
with  the  exclusive  power  of  Congress  in  that  respect ;  and  on  that 
ground  alone  it  ordered  judgment  for  the  defendant.  This  ruling 
was  founded  upon  the  assumption  that  a  reference  by  the  statute 
to  the  transportation  receipts,  and  to  a  certain  percentage  of  the 
same,  in  determining  the  amount  of  the  excise  tax,  was  in  effect 
the  imposition  of  the  tax  upon  such  receipts,  and  therefore  an  inter- 


Ch.  18)  REGULATION    OF    COM.M  1117 

ference  with  interstate  and  foreign  commerce.  Bui  a  resort  to  those 
receipts  was  simply  to  ascertain  the  value  of  the  business  done  by 
the  corporation,  and  thus  obtain  a  guide  to  a  reasonable  conclusion 
as  to  the  amount  of  the  excise  tax  which  should  be  levied ;  and  we 
are  unable  to  perceive  in  that  resort  any  interference  with  trans- 
portation, domestic  or  foreign,  over  the  road  of  the  railroad  company, 
or  any  regulation  of  commerce  which  consists  in  such  transporta- 
tion. If  the  amount  ascertained  were  specifically  imposed  as  the  tax, 
no  objection  to  its  validity  would  be  pretended.  And  if  the  inquiry 
of  the  state  as  to  the  value  of  the  privilege  were  limited  to  receipts 
of  certain  past  years,  instead  of  the  year  in  which  the  tax  is  collected, 
it  is  conceded  that  the  validity  of  the  tax  would  not  be  affected ;  and 
if  not,  we  do  not  see  how  a  reference  to  the  results  of  any  other 
year  could  affect  its  character.  There  is  no  levy  by  the  statute  on  the 
receipts  themselves,  either  in  form  or  fact.  They  constitute,  as  said 
.  -imply  the  means  of  ascertaining  the  value  of  the  privilege 
conferred.  *  *  *  [Here  Home  Ins.  Co.  v.  New  York,  134  U. 
S.  594,  10  Sup.  Ct.  593,  33  L.  Ed.  1025,  is  discussed.] 

Tin  case  of  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326,  7  Sup. 
Ct.  1118,  30  L.  Ed.  1200,  in  no  way  conflicts  with  this  decision.  That 
was  the  case  of  a  tax,  in  terms,  upon  the  gross  receipts  of  a  steam- 
ship company,  incorporated  under  the  laws  of  the  state,  derived  from 
the  transportation  of  persons  and  property  between  different  states 
and  to  and  from  foreign  countries.  Such  tax  was  held,  without  any 
dissent,  to  be  a  regulation  of  interstate  and  foreign  commerce,  and 
therefore  invalid.  We  do  not  question  the  correctness  of  that  deci- 
sion, nor  do  the  views  we  hold  in  this  case  in  any  way  qualify  or  im- 
pair it. 

Judgment  reversed.1 

[Bradley,  J.,  gave  a  dissenting  opinion,  in  which  concurred  Har- 
lan, Lamar,  and  Brown,  JJ.] 

i  In  Postal  'role-.  Co.  v.  Adams,  155  D.  S.  688,  G9C-G9S.  700,  15  Sup. 
I..   Ed.  •"•!!    (1895)   Mississippi  Imposed  upon  tele 
"privilege  tax"  of  $]  a  mile  for  wires  operated  by  them  in  the  state,  "in  lieu 
oi'  nil  other  state,  county,  and  municipal  taxes."    The  tax  under  this  statute 
amounted  to  considerably  less  than  would  an  ad  valorem  tax  under 
oral   revenue  laws  of  the  state,  and  was  uj 

n  ation  doing  a  general  telegraph  business  In  the  state;    Fuller, 
C.  J.,  saying : 

lerty  in  a  stale  belonging  to  a  corporation,  whether  foreign  or  domestic, 

i  in  foreign  or  interstate  commerce,  may  he  taxed,  or  a  tax  may  be  1m- 

ration  on  account  of  its  property  within  a  state,  and  may 

take  the  form   of  a   lav   for  the  privilege  of  exercising  i'  -   within 

the  state,  if  the  asc  '   of  the  amount  Is  made  dependent  ii    I 

the  value  of  i:  mated  within  the  state  (the  exaction,  therefore,  not 

which  might  he  leviable  directly  there 
out,  and  if  payment  be  not  made  a  condition  precedent  to  the  n. 
the  business,  hut  its  enforcement  left  to  the  ordinary  met  for  the 

collection  Of  taxes.      The   Corporation   is   thus   made   to  hear   its   proper 

tlon  of  the  burdens  of  the  government  under  whose  protection  it  conducts  Its 


1118  THE   FEDERAL   GOVERNMENT  (Part  3 


GALVESTON,  H.  &  S.  A.  RY.  CO.  v.  TEXAS. 

(Supreme  Court  of  United  States,  1908.    210  U.  S.  21T,  28  Sup.  Ct.  638,  52  L. 
Ed.  1031.) 

[Error  to  the  Supreme  Court  of  Texas.  A  state  statute  imposed 
upon  each  railroad,  whose  lines  lay  wholly  within  the  state,  an  annual 
tax  "equal  to  1  per  cent,  of  its  gross  receipts."  In  an  action  by  the 
state  to  collect  such  taxes  this  statute  was  upheld  by  the  state  courts.] 

Mr.  Justice  Holmes.  *  *  *  The  lines  of  the  railroads  con- 
cerned are  wholly  within  the  state,  but  they  connect  with  other  lines, 
and  a  part,  in  some  instances  much  the  larger  part,  of  their  gross  re- 
ceipts is  derived  from  the  carriage  of  passengers  and  freight  coming 
from,  or  destined  to,  points  without  the  state.  In  view  of  this  portion 
of  their  business,  the  railroads  contend  that  the  case  is  governed  by 
Philadelphia  &  S.  Mail  S.  S.  Co.  v.  Pennsylvania,  122  U.  S.  326,  30  L. 
Ed.  1200,  1  Interst.  Com.  Rep.  308,  7  Sup.  Ct.  1118.  The  counsel  for 
the  state  rely  upon  Maine  v.  Grand  Trunk  R.  Co.,  142  U.  S.  217,  35 
L.  Ed.  994,  3  Interst.  Com.  Rep.  807,  12  Sup.  Ct.  121,  163,  and  main- 
tain, if  necessary,  that  the  later  overrules  the  earlier  case. 

In  Philadelphia  &  S.  Mail  S.  S.  Co.  v.  Pennsylvania,  supra,  it  was 
decided  that  a  tax  upon  the  gross  receipts  of  a  steamship  corporation 
of  the  state,  when  such  receipts  were  derived  from  commerce  between 
the  states  and  with  foreign  countries,  was  unconstitutional.  We  re- 
gard this  decision  as  unshaken  and  as  stating  established  law. 
*     *     *     In  Maine  v.  Grand  Trunk  R.  Co.  supra,  the  authority  of 

operations,  while  interstate  commerce  is  not  in  itself  subjected  to  restraint  or 
impediment.     *     •     * 

"Doubtless  no  state  could  add  to  the  taxation  of  property  according  to  the 
rule  of  ordinary  property  taxation  the  burden  of  a  license  or  other  tax  on 
the  privilege  of  using,  constructing,  or  operating  an  instrumentality  of  inter- 
state or  international  commerce,  or  for  the  carrying  on  of  such  commerce; 
but  the  value  of  property  results  from  the  use  to  which  it  is  put,  and  varies 
with  the  profitableness  of  that  use,  and  by  whatever  name  the  exaction  may 
be  called,  if  it  amounts  to  no  more  than  the  ordinary  tax  upon  property,  or 
a  just  equivalent  therefor,  ascertained  by  reference  thereto,  it  is  not  open  to 
attack  as  inconsistent  with  the  Constitution.  Railroad  Co.  v.  Backus,  154  U. 
S.  439,  445,  14  Sup.  Ct.  1122,  38  L.  Ed.  1041.     •     *     * 

"In  the  case  at  bar  the  supreme  court,  in  its  examination  of  the  liability 
of  plaintiff  in  error  for  the  taxes  in  question,  said :  'It  will  be  thus  seen  at 
once  that  this  is  a  tax  imposed  upon  a  telegraph  company,  in  lieu  of  all  oth- 
ers, as  a  privilege  tax,  and  its  amount  is  graduated  according  to  the  amount 
and  value  of  the  property  measured  by  miles.  It  is  to  be  noticed  that  it  is 
in  lieu  of  all  other  taxes,  state,  county,  municipal.  The  reasonableness  of 
the  imposition  appears  in  the  record,  as  shown  by  the  second  count  of  the 
declaration  and  its  exhibits,  whereby  the  appellant  seems  to  be  burdened 
in  this  way  with  a  tax  much  less  than  that  which  would  be  produced  if  its 
property  had  been  subjected  to  a  single  ad  valorem  tax.'  This  exposition  of 
the  statute  brings  it  within  the  rule  where  ad  valorem  taxes  are  compounded 
or  commuted  for  a  just  equivalent,  determined  by  reference  to  the  amount 
and  value  of  the  property.  Being  thus  brought  within  the  rule,  the  tax  be- 
comes substantially  a  mere  tax  on  property,  and  not  one  imposed  on  the  priv- 
ilege of  doing  interstate  business.  The  substance,  and  not  the  shadow,  de- 
termines the  validity  of  the  exercise  of  the  power." 

[Brewer  and  Harlan,  JJ.,  dissented.] 


Ch.  18)  REGULATION    OP    COMUEBCB  1\\'.> 

the  Philadelphia  Steamship'Company  Case  was  accepted  without  ques- 
tion, and  the  decision  was  justified  by  the  majority  as  not  in  any  way 
qualifying  or  impairing  it.  The  validity  of  the  distinction  was  what 
divided  the  court. 

It  being  once  admitted,  as  of  course  it  must  be,  that  not  every  law 
that  affects  commerce  among  the  states  is  a  regulation  of  it  in  a  con- 
stitutional sense,  nice  distinctions  are  to  be  expected.  Regulation  and 
commerce  among  the  states  both  are  practical  rather  than  technical 
conceptions,  and,  naturally,  their  limits  must  be  fixed  by  practical 
lines.  As  the  property  of  companies  engaged  in  such  commerce  may 
be  taxed  (Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  35 
L.  Ed.  613,  3  Interst.  Com.  Rep.  595,  11  Sup.  Ct.  876),  and  may  be 
taxed  at  its  value  as  it  is,  in  its  organic  relations,  and  not  merely  as  a 
congeries  of  unrelated  items,  taxes  on  such  property  have  been  sus- 
tained that  took  account  of  the  augmentation  of  value  from  the  com- 
merce in  which  it  was  engaged.  Adams  Exp.  Co.  v.  Ohio  State  Audi- 
tor, 165  U.  S.  194,  41  L.  Ed.  683,  17  Sup.  Ct.  305;  Adams  Exp.  Co. 
v.  Kentucky,  166  U.  S.  171,  41  L.  Ed.  960.  17  Sup.  Ct.  527;  Fargo  v. 
Hart,  193  U.  S.  490,  499,  48  L.  Ed.  761,  765,  24  Sup.  Ct.  498.  So  it 
has  been  held  that  a  tax  on  the  property  and  business  of  a  railroad 
operated  within  the  state  might  be  estimated  prima  facie  by  gross  in- 
come, computed  by  adding  to  the  income  derived  from  business  with- 
in the  state  the  proportion  of  interstate  business  equal  to  the  propor- 
tion between  the  road  over  which  the  business  was  carried  within 
the  state  to  the  total  length  of  the  road  over  which  it  was  carried. 
Wisconsin  &  M.  R.  Co.  v.  Powers,  191  U.  S.  379,  48  L.  Ed.  229,  24 
Sup.  Ct.  107. 

Since  the  commercial  value  of  property  consists  in  the  expectation 
of  income  from  it,  and  since  taxes  ultimately,  at  least,  in  the  long  run, 
come  out  of  income,  obviously  taxes  called  taxes  on  property,  and 
those  called  taxes  on  income  or  receipts,  tend  to  run  into  each  other 
somewhat  as  fair  value  and  anticipated  profits  run  into  each  other  in 
the  law  of  damages.  The  difficulty  of  distinguishing  them  became 
greater  when  it  was  decided,  not  without  much  debate  and  difference 
of  opinion,  that  interstate  carriers'  property  might  be  taxed  as  a  going 
concern.  In  Wisconsin  &  M.  R.  Co.  v.  Powers,  supra,  the  measure 
of  property  by  income  purported  only  to  be  prima  facie  valid.  But 
the  extreme  case  came  earlier.  In  Maine  v.  Grand  Trunk  R.  Co.  su- 
pra, "an  annual  excise  tax  for  the  privilege  of  exercising  its  franchise" 
was  levied  upon  everyone  operating  a  railroad  in  the  state,  fixed  by 
percentages,  varying  up  to  a  certain  limit,  upon  the  average  gross  re- 
ceipts per  mile  multiplied  by  the  number  of  miles  within  the  state, 
when  the  road  extended  outside.  This  seems  at  first  si^ht  like  a  reac- 
tion from  the  Philadelphia  &  Southern  Mail  Steamship  Company  Case. 
But  it  may  not  have  been.  The  estimated  gross  receipts  per  mile  may 
be  said  to  have  been  made  a  measure  of  the  value  of  the  property  p<  r 
mile.    That  the  effort  of  the  state  was  to  reach  that  value,  and  not  to 


1120 


THE   FEDERAL   GOVERNMENT 


(Part  3 


fasten  on  the  receipts  from  transportation  as  such,  was  shown  by  the 
fact  that  the  scheme  of  the  statute  was  to  establish  a  system.  The 
buildings  of  the  railroad  and  its  lands  and  fixtures  outside  of  its  right 
of  way  were  to  be  taxed  locally,  as  other  property  was  taxed,  and  this 
excise  with  the  local  tax  were  to  be  in  lieu  of  all  taxes.  The  language 
shows  that  the  local  tax  was  not  expected  to  include  the  additional 
value  gained  by  the  property  being  part  of  a  going  concern.  That 
idea  came  in  later.  The  excise  was  an  attempt  to  reach  that  addition- 
al value.  The  two  taxes  together  fairlv  may  be  called  a  commutation 
tax.  See  Ficklen  v.  Taxing  District,  145  U.  S.  1,  23,  36  L.  Ed.  601, 
607, 4  Interst.  Com.  Rep.  79,  12  Sup.  Ct.  810;  Postal  Teleg.  Cable  Co. 
v.  Adams,  155  U.  S.  688,  697,  39  L.  Ed.  311,  316,  5  Interst.  Com.  Rep. 
1,  15  Sup.  Ct.  268,  360;  McHenrv  v.  Alford,  168  U.  S.  651,  670,  671, 
42  L.  Ed.  614,  621,  18  Sup.  Ct.  242. 

"By  whatever  name  the  exaction  may  be  called,  if  it  amounts  to  no 
more  than  the  ordinary  tax  upon  property  or  a  just  equivalent  there- 
for, ascertained  by  reference  thereto,  it  is  not  open  to  attack  as  incon- 
sistent with  the  Constitution."  Postal  Teleg.  Cable  Co.  v.  Adams, 
supra.  See  New  York,  L.  E.  &  W.  R.  Co.  v.  Pennsylvania,  158  U.  S. 
431,  438,  439,  39  L.  Ed.  1043,  1045,  1046,  15  Sup.  Ct.  896.  The  ques- 
tion is  whether  this  is  such  a  tax.  It  appears  sufficiently,  perhaps  from 
what  has  been  said,  that  we  are  to  look  for  a  practical  rather  than  a 
logical  or  philosophical  distinction.  The  state  must  be  allowed  to  tax 
the  property,  and  to  tax  it  at  its  actual  value  as  a  going  concern.  On 
the  other  hand,  the  state  cannot  tax  the  interstate  business.  The  two 
necessities  hardly  admit  of  an  absolute  logical  reconciliation.  Yet  the 
distinction  is  not  without  sense.  When  a  legislature  is  trying  simply 
to  value  property,  it  is  less  likely  to  attempt  or  to  effect  injurious  regu- 
lation than  when  it  is  aiming  directly  at  the  receipts  from  interstate 
commerce.  A  practical  line -can  be  drawn  by  taking  the  whole  scheme 
of  taxation  into  account.  That  must  be  done  by  this  court  as  best  it 
can.  Neither  the  state  courts  nor  the  legislatures,  by  giving  the  tax 
a  particular  name  or  by  the  use  of  some  form  of  words,  can  take  away 
our  duty  to  consider  its  nature  and  effect.  If  it  bears  upon  commerce 
among  the  states  so  directly  as  to  amount  to  a  regulation  in  a  relatively 
immediate  way,  it  will  not  be  saved  by  name  or  form.  Stockard  v. 
Morgan,  185  U.  S.  27,  37,  46  L.  Ed.  785,  794,  22  Sup.  Ct.  576 ;  Asbell 
v.  Kansas,  209  U.  S.  251,  254,  256,  28  Sup.  Ct.  485,  52  X.  Ed.  778,  14 
Ann.  Cas.  1101. 

We  are  of  opinion  that  the  statute  levying  this  tax  does  amount  to 
an  attempt  to  regulate  commerce  among  the  states.  The  distinction 
between  a  tax  "equal  to"  1  per  cent,  of  gross  receipts,  and  a  tax  of  1 
per  cent,  of  the  same,  seems  to  us  nothing,  except  where  the  former 
phrase  is  the  index  of  an  actual  attempt  to  reach  the  property  and  to 
let  the  interstate  traffic  and  the  receipts  from  it  alone.  We  find  no 
such  attempt  or  anything  to  qualify  the  plain  inference  from  the  stat- 
ute, taken  by  itself.    On  the  contrary,  we  rather  infer  from  the  judg- 


Ch.  18)  REGULATION    OF    COMM1  11  —  1 

nieiit  of  the  state  court  and  from  the  argument  on  behalf  of  the  state 
that  another  tax  on  the  property  of  the  railroad  is  upon  a  valuation 
of  that  property,  taken  as  a  going  concern.  This  is  merely  an  effort 
to  reach  the  gross  receipts,  not  even  disguised  by  the  name  of  an  occu- 
pation tax,  and  in  no  way  helped  by  the  words  "equal  to." 

Of  course,  it  does  not  matter  that  the  plaintiffs  in  error  are  domestic 
corporations,  or  that  the  tax  embraces  indiscriminately  gross  receipts 
from  commerce  within  as  well  as  outside  of  the  state. 

Judgment  reversed.1 

[Harlan,  J.,  gave  a  dissenting  opinion,  in  which  concurred  Ful- 
ler, C.  J.,  and  White  and  McKenxa,  JJ.] 

i  Lccord:  Oklahoma  v.  Wella  Fargo  .x  Oo.,  223  U.  S.  298,  32  Sup.  Ct.  328, 
50  L.  Ed.  445  (1012). 

In  United  States  Kxpress  Co.  v.  Minnesota,  223  U.  S.  335,  HI2 -3  18,  ^2  Sup. 
Ct  211,  56  I..  Ed.  159  (1912),  a  Minnesota  tax  of  6  per  cent,  upon  tbe  gross  re- 
ceipts of  express  companies  for  transportation  within  the  state  was  upheld, 
even  when  construed  to  include  that  portion  of  the  receipts  from  Interstate 
carriage  attributable  to  the  part  of  the  journey  performed  In  Mil 
J.,  saying: 

■•It  is  thoroughly  well  settled  In  this  court  that  state  laws  may  not 
interstate  commerce.    As  one  Form  of  burden  may  exist  in  taxing  the  i 
of  interstate  commerce,  such  taxation  has  been  uniformly  condemned.    *    *     * 
[Citing  cases.]     While  we  have  no  disposition  to  detract  from   the  authority 
of  these  decisions,  this  court  has  bad  also  to  consider  and  determine  the  ef- 
fect of  statutes  which  undertake  to  measure  B  tax  within  the  legitimate 
of  the  state  by  receipts  which  came  in  part  from  business  of  an  It 
character.     In  that  class  of  cases  a  distinction  was  drawn  between  laws  bur- 
dening interstate  commerce,  and  laws  where  the  measure  of  a  legitimate  tSJ 

consists  in  part  of  the  avails  or  income  from  the  conduct  of  sin  ! 

*     *     *  • 

"The  difficulty  has  been,  and  is,  to  distinguish  between  legitimate  at 
to  exert  the  taxing  power  of  the  state  and  those  laws  which,  though  in   the 
guise  of  taxation.  Impose  real  burdens  upon  interstate  commerce  as  such.    This 
difficulty  was  recognized  In  Galveston,  II.  &  S.  A.  R.  Co.  v.  Texas.  210  0.  8. 
L'iT.  52  L,  Ed.   1031,  28  Sup.  Ct.  C'iS.  wherein  the  possible  differ. 
the  decisions  In  Philadelphia,  ft  S.  Mail  S.  S.  Co.  v.  Pennsylvania,  122  O.  S. 
328,  30  I..  Ed.   1200,  1  Interst  Com.  Rep.  308,  7  Sup.  Ct  Ills,  and  Main,-  v. 
Grand  Trunk  it.  Co.   [ante,  n.  1115],  were  commented  upon  and  ■ 
»     »     • 

"Appreciating  the  difficulty  emphasised  in  the  Galveston  Case  of  drawing 
the  line  between  taxes  that  burden  interstate  commerce  and  those 
the  legislature  is  simply  undertaking  to  Impose  a  property  tax  within  its  le- 
gitimate power,  measured  in  part  by  the  income  from  interstate  commerce 
transactions,  how  does  the  present  case  stand?  The  supreme  court  of  Minne- 
sota construed  the  tax  to  be  a  property  tax.  measured  by  the  gross  earnings 

ihe  state,  which,  under  their  construction  of  the  tax.  Includ 
earnings  here  in  question.  That  court  held  that  the  statute  was  pari  of  a 
system  long  in  force  in  Minnesota,  passed  under  the  authority  of  th< 
Constitution,  and  was  intended  to  afford  a  means  of  valuing  the  property  of 
express  companies  within  the  state.  While  the  determination  that  the  tax  is 
B  property  tax  measured  by  gross  receipt-;  Is  not  binding  upon  this  court,  we 
are  not  prepared  to  say  that  this  conclusion  is  not  well  founded,  in  view  of 
isions  and  purposes  of  the  law. 

"The  statute  itself  provides  that  tbe  assessments  under  it  'shall  be  in  lieu 

of  all  taxes  u) its  property.'     in  other  words,  this  is  | 

scribed  In  Minnesota  for  exercising  the  recognized  authority  of  the  state  to 
property  of  express  companies  as  going  eras  within  its  ; 

tion.     If  not   taxed  by  this  method,  the  property  is  not   taxed  at  all.     •      •      • 
"The  tax   iii   the  present  ease  is  not  like  those  held  invalid  in  the  • 
Hall  Const. L. — 71 


1122  THE   FEDERAL   GOVERNMENT  (Part  3 


WESTERN  UNION  TELEGRAPH  CO.  v.  KANSAS. 

(Supreme  Court  of  United  States,  1910.     216  U.  S.  1,  30  Sup.  Ct.  190,  54  L. 
Ed.  355.) 

[See  ante,  p.  256,  for  the  facts  of  this  case.] 

Mr.  Justice  Harlan.  *  *  *  [After  discussing  McCall  v.  Cal- 
ifornia, 136  U.  S.  104,  10  Sup'.  Ct.  881,  34  L.  Ed.  391;  Crutcher  v. 
Kentucky,  141  U.  S.  47,  11  Sup.  Ct.  851,  35  L,  Ed.  649;  Gloucester 
Ferry  Co.  v.  Pennsylvania,  ante,  p.  1098;  Phila.  S.  S.  Co.  v.  Pennsyl- 
vania, ante,  p.  1104;  Leloup  v.  Mobile,  ante,  p.  1107;  Galveston,  etc., 
Ry.  v.  Texas,  ante,  p.  1118;  and  Brennan  v.  Titusville,  153  U.  S.  289, 
14  Sup.  Ct.  829,  38  L.  Ed.  719:]  We  are  aware  of  no  decision  by  this 
court  holding  that  a  state  may,  by  any  device  or  in  any  way,  whether 
by  a  license  tax  in  the  form  of  a  "fee,"  or  otherwise,  burden  the  inter- 
state business  of  a  corporation  of  another  state,  although  the  state 
may  tax  the  corporation's  property  regularly  or  permanently  located 
within  its  limits,  where  the  ascertainment  of  the  amount  assessed  is 
made  "dependent  in  fact  on  the  value  of  its  property  situated  within 
the  state."  Postal  Teleg.  Cable  Co.  v.  Adams,  155  U.  S.  688,  696,  39 
L.  Ed.  311,  315,  5  Interst.  Com.  Rep.  1,  15  Sup.  Ct.  268,  360;  Leloup 
v.  Mobile,  127  U.  S.  640,  649,  32  L.  Ed.  311,  314,  2  Interst.  Com.  Rep. 
134,  8  Sup.  Ct.  1383.  On  the  contrary,  it  is  to  be  deduced  from  the 
adjudged  cases  that  a  corporation  of  one  state,  authorized  by  its  char- 
ter to  engage  in  lawful  commerce  among  the  states,  may  not  be  pre- 
vented by  another  state  from  coming  into  its.  limits  for  all  the  legiti- 
mate purposes  of  such  commerce.  It  may  go  into  the  state  without 
obtaining  a  license  from  it  for  the  purposes  of  its  interstate  business, 
and  without  liability  to  taxation  there  on  account  of  such  business. 

But  it  is  said  that  none  of  the  authorities  cited  are  pertinent  to  the 
present  case,  because  the  state  expressly  disclaims  any  purpose  by  the 
statute  in  question  to  obstruct  or  embarrass  interstate  commerce,  but 
seeks  only  to  prevent  the  telegraph  company  from  entering  the  field 
of  domestic  business  in  Kansas  without  its  consent^  and  without  con- 
ion  Case  and  the  Oklahoma  Case  [cited  at  the  beginning  of  this  note,  abovel, 
being  in  addition  to  other  state  taxation  reaching  the  property  of  all  kinds 
of  the  express  company.  The  tax  to  be  collected  in  part  from  the  earnings 
of  interstate  commerce  was  part  of  a  scheme  of  taxation  seeking  to  reach 
the  value  of  the  property  of  such  companies  in  the  state,  measured  by  the  re- 
ceipts from  business  done  within  the  state.  The  statute  was  not  aimed  ex- 
clusively at  the  avails  of  interstate  commerce  (Philadelphia  &  S.  Mail  S.  S. 
Co.  v.  Pennsylvania,  supra),  but,  as  in  the  Maine  Case,  was  an  attempt  to 
measure  the  amount  of  tax  within  the  admitted  power  of  the  state  by  income 
derived,  in  part,  from  the  conduct  of  interstate  commerce.  The  property  of 
express  companies,  being  much  of  it  of  an  intangible  character,  is  difficult  to 
reach  and  properly  assess  for  taxation.  *  *  *  [After  quoting  from  Postal 
Teleg.  Co.  v.  Adams,  the  second  paragraph  of  this  case  printed  ante,  p.  1118, 
note :]     We  think  the  tax  here  in  question  comes  within  this  principle." 

See,  also,  McHenry  v.  Alford,  16S  U.  S.  651,  IS  Sup.  Ct.  242,  42  L.  Ed.  014 
(1898)  (tax  on  railroad  gross  receipts  in  lieu  of  all  taxes  on  right  of  way  and 
land  grant);   and  article  by  J.  P.  Hall,  2  111.  L.  Rev.  21  (1907). 


Ch.  18)  REGULATION    OF   COMMKRCH  tl23 

forming  to  the  requirements  of  its  statute.  But  the  disavowal  by  the 
state  of  any  purpose  to  burden  interstate  commerce  cannot  conclude 
the  question  as  to  the  fact  of  such  a  burden  being  imposed,  or  as  to  the 
unconstitutionality  of  the  statute,  as  shown  by  its  necessary  operation 
upon  interstate  commerce.  If  the  statute,  reasonably  interpreted,  ei- 
ther directly  or  by  its  necessary  operation,  burdens  interstate  com- 
merce, it  must  be  adjudged  to  be  invalid,  whatever  may  have  been  the 
purpose  for  which  it  was  enacted,  and  although  the  company  may  do 
both  interstate  and  local  business.  This  court  has  repeatedly  adjudg 
ed  that  in  all  such  matters  the  judiciary  will  not  regard  mere  forms, 
but  will  look  through  forms  to-  the  substance  of  things.  Such  is  an 
established  rule  of  constitutional  construction,  as  the  adjudged  cases 
abundantly  show.     *     *     * 

Looking,  then,  at  the  natural  and  reasonable  effect  of  the  statute, 
disregarding  mere  forms  of  expression,  it  is  clear  that  the  making  of 
the  payment  by  the  telegraph  company,  as  a  charter  fee,  of  a  given  per 
cent  of  its  authorized  capital  representing,  as  that  capital  clearly  does, 
all  of  its  business  and  property,  both  within  and  outside  of  the  state 
a  condition  of  its  right  to  do  local  business  in  Kansas,  is,  in  its  essence, 
not  simply  a  tax  for  the  privilege  of  doing  local  business  in  the  state, 
but  a  burden  and  tax  on  the  company's  interstate  business  and  on  its 
property  located  or  used  outside  of  the  state.  The  express  words  of 
the  statute  leave-  no  doubt  as  to  what  is  the  basis  on  which  the  fee 
specified  in  the  state  statute  rests.  That  fee,  plainly,  is  not  based  on 
such  of  the  company's  capital  stock  as  represented  in  its  local  business 
and  property  in  Kansas.  The  requirement  is  a  given  per  cent  of  the 
company's  authorized  capital ;  that  is,  all  its  capital,  wherever  or  how- 
ever employed,  whether  in  the  United  States  or  in  foreign  countries, 
and  whatever  may  be  the  extent  of  its  lines  in  Kansas  as  compared 
with  its  lines  outside  of  that  state.  What  part  of  the  fee  exacted  is  to 
be  attributed  to  the  company's  domestic  business  in  Kansas  and  what 
part  to  interstate  business,  the  state  has  not  chosen  to  ascertain  and 
declare  in  the  statute.  It  strikes  at  the  company's  entire  business, 
wherever  conducted,  and  its  property,  wherever  located,  and,  in  terms, 
makes  it  a  condition  of  the  telegraph  company's  right  to  transact  pure- 
ly local  business  in  Kansas  that  it  shall  contribute,  for  the  benefit  of 
the  state  school  fund,  a  given  per  cent  of  its  whole  authorized  capital, 
representing  all  of  its  property  and  all  its  business  and  interests  every- 
where.    *     *     * 

The  exaction,  as  a  condition  of  the  privilege  of  continuing  to  do  or 
doing  local  business  in  Kansas,  that  the  telegraph  company  shall  pay  a 
given  per  cent  of  its  authorized  capital  stock,  is,  for  every  practical 
purpose,  a  tax  both  on  the  company's  local  business  in  Kansas;  and  on 
its  interstate  business,  or  on  the  privilege  of  doing  interstate  business  ; 
statute,  by  its  necessary  operation,  will  accomplish  precisely  the 
result  that  would  have  been  accomplished  had  it  been  made,  in  express 
words,  a  condition  of   doing  local  business,   that  the  telegraph  com- 


1124  THE   FEDERAL   GOVERNMENT  (Part  3 

pany  should  submit  to  taxation  upon  both  its  interstate  and  intrastate 
business  and  upon  its  interests  and  property  everywhere,  as  represent- 
ed by  its  capital  stock.     *     *     * 

It  is  important  here  to  observe — indeed,  the  contrary  could  not  be 
asserted — that  the  telegraph  company  lawfully  entered  Kansas,  with 
the  consent  of  both  the  territory  and  state,  for  the  purposes  of  its 
business  of  every  kind,  long  before,  and  was  legally  there  when,  the 
Bush  act  was  passed.  The  state  concedes  its  right  to  continue  in  such 
business  in  Kansas,  if  it  will  comply  with  the  statute  in  question,  and 
pay  the  fee  demanded ;  and  only  because  of  such  refusal  it  seeks  the 
aid  of  the  court  to  oust  the  company  from  the  state,  so  far  as  local 
business  is  concerned,  unless  it  shall,  by  paying  such  fee,  contribute — 
that  is  the  proper  word — a  given  per  cent  of  all  its  capital  for  the  sup- 
port of  the  schools  of  the  state.  The  state  knows  that  the  telegraph 
company,  in  order  to  accommodate  the  general  public  and  make  its 
telegraphic  system  effective,  must  do  all  kinds  of  telegraphic  business. 
Yet,  it  seeks  to  enforce  a  regulation  requiring  the  company  by  paying 
the  "fee"  in  question  to  assent  to  its  interstate  business  being  burden- 
ed and  its  property  outside  of  Kansas  being  taxed  in  order  that  it  may 
continue  to  conduct  a  business  concededly  beneficial  to  the  public, — a 
right  lawfully  acquired  from  the  United  States  when  Kansas  was  a 
territory,  and  exercised  consistently  with  the  statutes  of  the  state  for 
many  years  after  Kansas  was  admitted  as  a  state  of  the  Union. 

But  it  is  said  to  be  well  settled  that  a  state,  in  the  exercise  of  its  re- 
served powers,  may  prescribe  the  terms  on  which  a  foreign  corpora- 
tion, whatever  the  nature  of  its  business,  may  enter  and  do  business 
within  its  limits.  It  is  true  that,  in  many  cases,  the  general  rule  has 
been  laid  down  that  a  state  may,  if  it  chooses  to  do  so,  exclude  for- 
eign corporations  from  its  limits,  or  impose  such  terms  and  conditions 
on  their  doing  business  in  the  state  as,  in  its  judgment,  may  be  con- 
sistent with  the  interests  of  the  people.  But  those  were  cases  in 
which  the  particular  foreign  corporation  before  the  court  was  engaged 
in  ordinary  business,  and  not  directly  or  regularly  in  interstate  or 
foreign  commerce.     *     *     * 

Whatever  may  be  the  extent  of  the  state's  authority  over  intrastate 
business,  was  it  competent  for  the  state  to  require  that  the  telegraph 
company, — which  surely  had  the  right  to  enter  and  remain  in  the  state 
for  interstate  business, — as  a  condition  of  its  right  to  continue  doing 
domestic  business  in  Kansas,  should  pay,  in  the  form  of  a  fee,  a  speci- 
fied per  cent  of  its  capital  stock  representing  the  interests,  property, 
and  operations  of  the  company  not  only  in  Kansas,  but  throughout 
the  United  States  and  foreign  countries?  Is  such  a  regulation  con- 
sistent with  the  power  of  Congress  to  regulate  commerce  among  the 
states,  or  with  rights  growing  out  of  such  commerce,  and  secured  by 
the  Constitution  of  the  United  States?  Can  the  state,  in  this  way, 
relieve  its  own  treasury  from  the  burden  of  supporting  its  public 
schools,  and  put  that  burden,  in  whole  or  in  part,  upon  the  interstate 


Ch.  18)  BBGTJLATION    OF   COMM  1125 

business  and  property  of  foreign  corporations?  Can  such  a  regulation 
med  constitutional  any  more  than  one  requiring  [of]  the  com- 
pany, as  a  condition  of  its  doing  intrastate  business,  that  it  should  sur- 
render its  right,  for  instance,  to  invoke  the  protection  of  the  Constitu- 
tion when  it  is  proposed  to  deprive  it  of  its  property  without  clue  process 
of  law,  or  to  deny  it  the  equal  protection  of  the  laws?  *  *  *  If  a 
domestic  corporation  engaged  in  the  business  of  soliciting  orders  for 
goods  manufactured,  sold,  and  delivered  in  a  state  should,  in  addition, 
solicit  orders  for  goods  manufactured  in  and  to  be  brought  from  an- 
other state  for  delivery,  could  the  former  state  make  it  a  condition  of 
the  right  to  engage  in  local  business  within  its  limits  that  the  corpo- 
ration pay  a  given  per  cent  of  all  fees  or  commissions  received  by  it  in 
its  business,  interstate  and  domestic?  There  can  be  but  one  answer  to 
this  question,  namely,  that  such  a  condition  would  operate  as  a  direct 
burden  on  interstate  commerce,  and  therefore  would  be  unconstitution- 
al and  void.  Consistently  with  the  Constitution  no  court  could,  by  any 
form  of  decree,  recognize  or  give  effect  to  or  enforce  such  a  condition.1 
We  repeat  that  the  statutory  requirement  that  the  telegraph  com- 
pany shall,  as  a  condition  of  its  right  to  engage  in  local  business  in 
Kansas,  first  pay  into  the  state  school  fund  a  given  per  cent  of  its  au- 
thorized capital,  representing  all  its  business  and  property  everywhere. 
is  a  burden  on  the  company's  interstate  commerce  and  its  privilege  to 
engage  in  that  commerce,  in  that  it  makes  both  such  commerce,  as 
conducted  by  the  company,  and  its  property  outside  of  the  state,  con- 
tribute to  the  support  of  the  state's  schools.  Such  is  the  necessary 
effect  of  the  statute,  and  that  result  cannot  be  avoided  or  concealed  by 
calling  the  exaction  of  such  a  per  cent  of  its  capital  stock  a  "fee"  for 
the  privilege  of  doing  local  business.  To  hold  otherwise,  is  to  allow 
form  to  control  substance.  It  is  easy  to  be  seen  that  if  everv  state 
should  pass  a  statute  similar  to  that  enacted  by  Kansas,  not  only  the 
freedom  of  interstate  commerce  would  be  destroyed,  the  decisions  of 
this  court  nullified,  and  the  business  of  the  country  thrown  into  con- 
fusion, but  each  state  would  continue  to  meet  its  own  local  expenses 
not  only  by  exactions  that  directly  burdened  such  commerce,  but  by 
taxation  upon  property  situat'  its  limits.    We  cannot  fail  to 

recognize  the  intimate  connection  which,  at  this  day,  exists  between 
the  interstate  busim  ss  d<  ine  by  interstate  o  impanies  and  the  loc 
ness  which,  for  the  convenience  of  the  people,  must  be  done,  or  can  gen- 
erally be  better  and  more  economically  done,  by  such  interstate  com- 
panies rather  than  by  domestic  companies  organized  to  conduct  only 
local  business.  It  is  of  the  last  importance  that  the  freedom  of  inter- 
state commerce  shall  not  be  trammeled  1  by  local  regula- 
tions which,  under  the  guise  of  regulating  local  affairs,  really  b 
rights  secured  by  the  Constitution  and  laws  of  the  United  States. 


Hut  see  Kieklen  7.  Shelby  Co.  Dist..  post,  p.  :  i:>. 


1126  THE   FEDERAL  GOVERNMENT  (Part  3 

[After  discussing  and  distinguishing  Osborne  v.  Florida,  164  U. 
S.  650,  17  Sup.  Ct.  214,  41  L.  Ed.  586;  Pullman  Co.  v.  Adams,  189 
U.  S.  420,  23  Sup.  Ct.  494,  47  L.  Ed.  877;  Allen  v.  Pullman's  Co., 
ante,  p.  1110;  and  Security  Co.  v.  Prewitt,  ante,  p.  254:]  The  vital 
difference  between  the  Prewitt  Case  and  the  one  now  before  us  is  that 
the  business  of  the  insurance  company,  involved  in  the  former  case, 
was  not,  as  this  court  has  often  adjudged,  interstate  commerce,  while 
the  business  of  the  telegraph  company  was  primarily  and  mainly 
that  of  interstate  commerce.  A  decision,  such  as  was  rendered  in  the 
Prewitt  Case,  that  a  state  could,  with  or  without  reason,  and  with- 
out violating  the  Constitution,  revoke  its  permit  to  a  foreign  insur- 
ance company  to  do  business  of  a  domestic  character  within  its 
limits,  cannot  be  cited  as  authority  for  the  proposition,  upon  which 
the  Kansas  statute  rests,  that  a  state  may  prescribe  such  regulations 
as  to  corporations  of  other  states  engaged  in  both  interstate  and  local 
business,  as  will  require  [of]  them,  as  a  condition  of  their  doing  local 
business,  that  they  shall  contribute  a  given  amount,  out  of  their  cap- 
ital stock,  representing  all  their  business,  interstate  and  domestic, 
wherever  done,  and  all  their  property,  wherever  located,  in  or  out- 
side of  the  state,  for  the  support  of  the  state's  schools.  The  Prewitt 
Case  by  no  means  recognized  any  uncontrollable  power  in  a  state  to 
prohibit  all  foreign  corporations,  in  whatever  business  engaged,  from 
doing  business  within  its  limits.  On  the  contrary,  this  court  said  in 
that  very  case  that  "a  state  has  the  right  to  prohibit  a  foreign  cor- 
poration from  doing  business  within  its  borders,  unless  such  prohibi- 
tion is  so  conditioned  cw  to  violate  some  provision  of  the  federal  Con- 
stitution,"— citing  various  adjudged  authorities,  among  them  the  case 
of  Hooper  v.  California,  155  U.  S.  648,  652,  653,  39.  L,.  Ed.  297,  298, 
300,  5  Interst.  Com.  Rep.  610,  15  Sup.  Ct.  207.  In  the  latter  case 
the  court  recognized,  as  long  settled,  the  general  principle  that  the 
right  of  a  foreign  corporation  to  engage  in  business  within  the  state 
depended  solely  on  the  will  of  such  state.  But  it  took  especial  care 
to  say  that  the  interstate  business  of  a  foreign  corporation  was  a 
business  of  an  exceptional  character,  and  was  protected  by  the  Con- 
stitution against  interference  by  state  authority.  *  *  *  The 
court  did  not  intend  by  its  judgment  in  the  Prewitt  Case  to  recognize 
the  right  of  Kentucky,  by  any  regulation  as  to  foreign  insurance 
companies,  to  burden  interstate  commerce  or  to  tax  property  located 
and  used  without  its  limits.     *     *     * 

Judgment  reversed.2 

2  See,  also,  Pullman  Co.  v.  Kansas,  216  U.  S.  56,  30  Sup.  Ct.  232,  54  L.  Ed. 
378  (1910) ;  Ludwig  v.  W.  U.  Teleg.  Co.,  216  U.  S.  146,  30  Sup.  Ct.  2S0,  54  L. 
Ed.  423  (1910);  So.  Ry.  v.  Greene,  216  U.  S.  400,  30  Sup.  Ct.  2S7,  54  L.  Ed. 
536,  17  Ann.  Cas.  1247  (1910) ;  Atchison,  etc.,  Ry.  v.  O'Connor,  223  U.  S.  2S0, 
32  Sup.  Ct.  216,  56  L.  Ed.  436,  Ann.  Cas.  1913C,  1050  (1912). 

May  a  flat  rate  license  tax  upon  the  internal  business  of  a  telegraph  com- 
pany doing  also  interstate  business  be  so  high  as  to  be  invalid,  within  the 


Ch.  18)  i.ATION    OF    COMMERCE  H-~ 

[White,  J.,  gave  a  concurring  opinion,  most  of  which  is  printed 
ante,  pp.  256-258.] 

Holmes,  J.,  dissenting  [with  whom  concurred  Fuller,  C.  J.,  Mc- 
Kenxa,  J.,  and  (before  his  death)  Peckham,  J.]  :  See  his  opinion, 
ante,  pp.  258-261. 


NEW  YORK  ex  rel.  PENNSYLVANIA  R.  CO.  v.  KNIGHT 
(1904)  192  U.  S.  21,  26,  27,  24  Sup.  Ct.  202,  203,  48  L.  Ed.  325.  Mr. 
Justice  Brewer  (upholding  a  franchise  tax  imposed  upon  the  Penn- 
sylvania Railroad  Company  for  conducting  a  cab  business  in  New 
York  City  entirely  for  the  benefit  of  its  interstate  passengers  leaving 
and  arriving  in  the  city) : 

"It  is  true  that  a  passenger  over  the  Pennsylvania  Railroad  to  the 
city  of  New  York  does  not,  in  one  sense,  fully  complete  his  journey 
when  he  reaches  the  ferry  landing  on  the  New  York  side,  but  only 
when  he  is  delivered  at  his  temporary  or  permanent  stopping  place 
in  the  city.  Looking  at  it  from  this  standpoint,  the  company's  cab 
service  is  simply  one  element  in  a  continuous  interstate  transporta- 
tion, and  as  such  would  be  excluded  from  state,  and  be  subject  to 
national,  control.  The  state  may  not  tax  for  the  privilege  of  doing 
an  interstate  commerce  business.  Atlantic  &  P.  Teleg.  Co.  v.  Phil- 
adelphia, 190  U.  S.  160,  47  L  Ed.  995,  23  Sup.  Ct.  817.  On  the 
other  hand,  the  cab  service  is  exclusively  rendered  within  the  limit  ~ 
of  the  city.  It  is  contracted  and  paid  for  independently  of  any  con- 
tract or  payment  for  strictly  interstate  transportation.  The  party  re- 
ceiving it  owes  no  legal  duty  of  crossing  the  state  line. 

'Undoubtedly,  a  single  act  of  carriage  or  transportation  wholly 
within  a  state  may  be  part  of  a  continuous  interstate  carriage  or 
transportation.  Goods  shipped  from  Albany  to  Philadelphia  may  be 
carried  by  the  New  York  Central  Railroad  only  within  the  limits  of 
New  York,  and  yet  that  service  is  in  interstate  carriage.  By  reason 
thereof  the  nation  regulates  that  carriage,  including  the  part  per- 
formed by  the  New  York  company.  But  it  does  not  follow  therefrom 
that  the  New  York  company  is  wholly  relieved  from  state  regulation 
and  state  taxation,  for  a  part  of  its  work  is  carriage  and  transporta- 
tion begun  and  ended  within  the  state.  So  the  Pennsylvania  com- 
pany, which  is  engaged  largely  in  interstate  transportation,  is  amena- 
ble to  state  regulation  and  state  taxation  as  to  any  of  its  service 
which  is  wholly  performed  within  the  state,  and  not  as  a  part  of  in- 
terstate transportation.  Wherever  a  separation  in  fact  exists  be- 
tween transportation  service  wholly  within  the  state  and  that  between 

doctrine  of  the  principal  case?    See  Williams  v.  Talladega,  226  U.  S.  404,  416, 

117.  83  Sup.  Ct.  11C,  57  L.  Ed. (1912). 

In  Waters  Pierce  Oil  Co.  v.  Texas,  it:  r.  s.  28,  20  Sop,  Ct.  618,  41  i.  Ed 
657  (1900),  a  foreign  corporation  doing  both  Interna]  and  interstate  business 
w;is  deprived  of  the  ridit  to  continue  the  former  for  violation  of  conditions 
upon  which  it  was  admitted  to  tbe  State 


1126 


THE   FEDERAL   GOVERNMENT 


(Part  3 


[After  discussing  and  distinguishing  Osborne  v.  Florida,  164  U. 
S.  650,  17  Sup.  Ct.  214,  41  L.  Ed.  586;  Pullman  Co.  v.  Adams,  189 
U.  S.  420,  23  Sup.  Ct.  494,  47  L.  Ed.  877;  Allen  v.  Pullman's  Co., 
ante,  p.  1110;  and  Security  Co.  v.  Prewitt,  ante.  p.  254:]  The  vital 
difference  between  the  Prewitt  Case  and  the  one  now  before  us  is  that 
the  business  of  the  insurance  company,  involved  in  the  former  case, 
was  not,  as  this  court  has  often  adjudged,  interstate  commerce,  while 
the  business  of  the  telegraph  company  was  primarily  and  mainly 
that  of  interstate  commerce.  A  decision,  such  as  was  rendered  in  the 
Prewitt  Case,  that  a  state  could,  with  or  without  reason,  and  with- 
out violating  the  Constitution,  revoke  its  permit  to  a  foreign  insur- 
ance company  to  do  business  of  a  domestic  character  within  its 
limits,  cannot  be  cited  as  authority  for  the  proposition,  upon  which 
the  Kansas  statute  rests,  that  a  state  may  prescribe  such  regulations 
as  to  corporations  of  other  states  engaged  in  both  interstate  and  local 
business,  as  will  require  [of]  them,  as  a  condition  of  their  doing  local 
business,  that  they  shall  contribute  a  given  amount,  out  of  their  cap- 
ital stock,  representing  all  their  business,  interstate  and  domestic, 
wherever  done,  and  all  their  property,  wherever  located,  in  or  out- 
side of  the  state,  for  the  support  of  the  state's  schools.  The  Prewitt 
Case  by  no  means  recognized  any  uncontrollable  power  in  a  state  to 
prohibit  all  foreign  corporations,  in  whatever  business  engaged,  from 
doing  business  within  its  limits.  On  the  contrary,  this  court  said  in 
that  very  case  that  "a  state  has  the  right  to  prohibit  a  foreign  cor- 
poration from  doing  business  within  its  borders,  unless  such  prohibi- 
tion is  so  conditioned  as  to  violate  some  prozision  of  the  federal  Con- 
stitution,"— citing  various  adjudged  authorities,  among  them  the  case 
of  Hooper  v.  California,  155  U.  S.  648,  652,  653,  39  L.  Ed.  297,  298, 
300,  5  Interst.  Com.  Rep.  610,  15  Sup.  Ct.  207.  In  the  latter  case 
the  court  recognized,  as  long  settled,  the  general  principle  that  the 
right  of  a  foreign  corporation  to  engage  in  business  within  the  state 
depended  solely  on  the  will  of  such  state.  But  it  took  especial  care 
to  say  that  the  interstate  business  of  a  foreign  corporation  was  a 
business  of  an  exceptional  character,  and  was  protected  by  the  Con- 
stitution against  interference  by  state  authority.  *  *  *  The 
court  did  not  intend  by  its  judgment  in  the  Prewitt  Case  to  recognize 
the  right  of  Kentucky,  by  any  regulation  as  to  foreign  insurance 
companies,  to  burden  interstate  commerce  or  to  tax  property  located 
and  used  without  its  limits.     *     *     * 

Judgment  reversed.2 


=  See,  also,  Pullman  Co.  v.  Kansas,  216  U.  S.  56,  30  Sup.  Ct.  232,  54  L.  Ed. 
378  (1910) ;  Ludwlg  v.  W.  U.  Teleg.  Co.,  216  U.  S.  146,  30  Sup.  Ct.  2S0,  54  L. 
Ed.  423  (1910) ;  So.  Ry.  v.  Greene,  216  TJ.  S.  400,  30  Sup.  Ct.  287,  54  L.  Ed. 
536,  17  Ann.  Cas.  1247  (1910);  Atchison,  etc.,  Ry.  v.  O'Connor,  223  U.  S.  280. 
32  Sup.  Ct.  216,  56  L.  Ed.  436,  Ann.  Cas.  1913C,  1050  (1912). 

May  a  flat  rate  license  tax  upon  the  internal  business  of  a  telegraph  com- 
pany doing  also  interstate  business  be  so  high  as  to  be  invalid,  within  the 


Ch.  18)  kl.Of'I.ATION    OF   COMMERCE  1129 

and  consisted  wholly  in  carrying  it  on.  The  agent  was  the  agent  of 
the  transportation  company,  and  he  was  acting  solely  in  its  interests. 
So  in  Norfolk  &  W.  R.  Co.  v.  Pennsylvania,  136  U.  S.  114,  34  L.  Ed. 
394,  3  Inters.  Com.  Rep.  178,  10  Sup.  Ct.  958,  it  was  ruled  that  a 
tax  imposed  by  a  state  on  a  corporation  engaged  in  the  business  of 
interstate  commerce,  as  described,  for  the  privilege  of  keeping  an 
office  in  the  state,  was  a  tax  on  commerce  among  the  states. 

"On  the  other  hand,  it  was  held  in  Nathan  v.  Louisiana,  8  How. 
73,  12  L.  Ed.  992,  that  a  broker  dealing  in  foreign  bills  of  exchange 
was  not  engaged  in  commerce,  but  in  supplying  an  instrument  of 
commerce,  and  that  a  state  tax  on  all  money  or  exchange  brokers 
was  not  void  as  to  him  as  a  regulation  of  commerce.  In  Paul  v. 
Virginia,  8  Wall.  168,  183,  19  L.  Ed.  357,  361,  it  was  decided  that 
issuing  a  policy  of  insurance  was  not  a  transaction  of  commerce.  *  *  * 

"Again,  in  Hooper  v.  California,  155  U.  S.  648.  655,  39  L.  E(f.  297, 
300,  S  Inters.  Com.  Rep.  610,  15  Sup.  Ct.  207,  Mr.  Justice  White 
there  adverts  to  the  real  distinction  on  which  the  general  rule  and 
its  exceptions  are  based,  'and  which  consists  in  the  difference  between 
interstate  commerce  or  an  instrumentality  thereof  on  the  one  side, 
and  the  mere  incidents  which  may  attend  the  carrying  on  of  such 
commerce  on  the  other.  This  distinction  has  always  been  carefully 
observed,  and  is  clearly  defined  by  the  authorities  cited.  If  the  power 
to  regulate  interstate  commerce  applied  to  all  the  incidents  to  which 
said  commerce  might  give  rise  and  to  all  contracts  which  might  lie- 
made  in  the  course  of  its  transaction,  that  power  would  embrace  the 
entire  sphere  of  mercantile  activity  in  any  way  connected  with  trade 
between  the  states,  and  would  exclude  state  control  over  many  con- 
tracts purely  domestic  in  their  nature.' 

"The  imposition  of  this  tax  falls  within  the  distinction  stated. 
These  labor  contracts  were  not  in  themselves  subjects  of  traffic  be- 
tween the  states,  nor  was  the  business  of  hiring  laborers  so  immedi- 
ately connected  with  interstate  transportation  or  interstate  traffic  that 
it  could  be  correctly  said  that  those  who  followed  it  were  engaged  in 
interstate  commerce,  or  that  the  tax  on  that  occupation  constituted  a 
burden  on  such  commerce."1     *     *     * 

[Harlan,  J.,  dissented.] 

i  Compare  Hopkins  v.  United  States,  post,  p.  1U1G,  and  notes. 

Mode  of  Collecting  State  Tax  from  Persons  Engaged  is  Interstate  or 
i  obi  i    •.  Commerce. — Even  when  tie  property  or  business  of  those  en 
Interstate  commerce  may  be  validly  taxed   by  the  state,  the  payment  of  the 
tax  cannot  be  made  a  condition  pi  the  right  to  engage  In  such  com- 

merce,   nor  enforced   by   an  Injunction   against    c  mtinulng   such   coi 
Western  Union  Co.  v.  Massachusetts,  125  C.  s.  530,  554,  8  Sup.  Ct  861,  :u  L 
Ed.  790  (1888);    Postal  Teleg.  Co.  v.  Adams,  ante,  p.  1117,  note  1. 

"If  a  resort  to  a  judicial  proceeding  to  collect  it  ithe  tax]  is  deemed  ex 
pedlent,  there  remains  to  (he  court  all  the'  ordinary  means  of  enforcing  Its 
.t    executions,  sequestration,  and  any  other  appropriate  rem 
ry."-  West  Union  Co.  v.  m.-i^  ited,  by  Miller.  .1. 

So  also  as  to  en-tain  regulath dltiona  precedent,  see  Internal.  Text- 
Book  Co.  v.  Plgg,  post,  p.  ll  16,  and  notes. 


1130  THE   FEDERAL   GOVERNMENT  (Part  '•'< 


II.  Taxes  Affecting  Sales 

BROWN  v.  HOUSTON  (1885)  114  U.  S.  622,  632-634,  5  Sup. 
Ct.  1091,  1096,  1097,  29  L.  Ed.  257,  Mr.  Justice  Bradley  (upholding 
a  Louisiana  ad  valorem  property  tax  upon  a  certain  lot  of  coal  floated 
from  Pennsylvania  to  Louisiana  in  flatboats  and  held  by  the  consignees 
for  sale  in  the  original  flatboat  packages  upon  arrival  in  Louisiana, 
part  being  sold  for  export  and  part  for  domestic  use) : 

"The  question  arises  whether  the  assessment  of  the  tax  in  question 
amounted  to  any  interference  with,  or  restriction  upon,  the  free  intro- 
duction of  the  plaintiffs'  coal  from  the  state  of  Pennsylvania  into  the 
state  of  Louisiana,  and  the  free  disposal  of  the  same  in  commerce  in 
the  latter  state;  in  other  words,  whether  the  tax  amounted  to  a  regu- 
lation of,  or  restriction  upon,  commerce  among  the  states,  or  only  to 
an  exercise  of  local  administration  under  the  general  taxing  power, 
which,  though  it  may  incidentally  affect  the  subjects  of  commerce,  is 
entirely  within  the  power  of  the  state  until  Congress  shall  see  fit  to  in- 
terfere and  make  express  regulations  on  the  subject. 

"As  to  the  character  and  mode  of  the  assessment,  little  need  be 
added  to  what  has  already  been  said.  It  was  not  a  tax  imposed  upon 
the  coal  as  a  foreign  product,  or  as  the  product  of  another  state  than 
Louisiana,  nor  a  tax  imposed  by  reason  of  the  coal  being  imported  or 
brought  into  Louisiana,  nor  a  tax  imposed  while  it  was  in  a  state  of 
transit  through  that  state  to  some  other  place  of  destination.  It  was 
imposed  after  the  coal  had  arrived  at  its  destination  and  was  put  up 
for  sale.  The  coal  had  come  to  its  place  of  rest,  for  final  disposal  or 
use,  and  was  a  commodity  in  the  market  of  New  Orleans.  It  might 
continue  in  that  condition  for  a  year  or  two  years,  or  only  for  a  day. 
It  had  become  a  part  of  the  general  mass  of  property  in  the  state,  and 
as  such  it  was  taxed  for  the  current  year  (1880),  as  all  other  property 
in  the  city  of  New  Orleans  was  taxed.  Under  the  law,  it  could  not 
be  taxed  again  until  the  following  year.  It  was  subjected  to  no  dis- 
crimination in  favor  of  goods  which  were  the  product  of  Louisiana, 
or  goods  which  were  the  property  of  citizens  of  Louisiana.  It  was 
treated  in  exactly  the  same  manner  as  such  goods  were  treated. 

"It  cannot  be  seriously  contended,  at  least  in  the  absence  of  any 
congressional  legislation  to  the  contrary,  that  all  goods  which  are  the 
product  of  other  states  are  to  be  free  from  taxation  in  the  state  to 
which  they  may  be  carried  for  use  or  sale.  Take  the  city  of  New 
York,  for  example.  When  the  assessor  of  taxes  goes  his  round,  must 
he  omit  from  his  list  of  taxables  all  goods  which  have  come  into  the 
city  from  the  factories  of  New  England  and  New  Jersey,  or  from  the 
pastures  and  grain-fields  of  the  West?  If  he  must,  what  will  be  left 
for  taxation?  And  how  is  he  to  distinguish  between  those  goods  which 
are  taxable  and  those  which  are  not?  With  the  exception  of  goods 
imported  from  foreign  countries,  still   in  the  original  packages,  and 


Ch.  18)  REGULATION   OF   COMMERI  B  HJH 

goods  in  transit1  to  some  other  place,  why  may  he  not  assess  all  prop- 
erty alike  that  may  be  found  in  the  city,  being  there  for  the  purpose 
of  remaining  there  till  used  or  sold,  and  constituting  part  of  the  great 
mass  of  its  commercial  capital :  provided  always  that  the  assessment 
will  be  a  general  one,  and  made  without  discrimination  between  goods 
the  product  of  New  York,  and  goods  the  product  of  other  states?  Of 
course  the  assessment  should  be  a  general  one,  and  not  discriminative 
between  goods  of  different  states.  The  taxing  of  goods  coming  from 
other  states,  as  such,  or  by  reason  of  their  so  coming,  would  be  a  dis- 
criminating tax  against  them  as  imports,  and  would  be  a  regulation  of 
interstate  commerce,  inconsistent  with  that  perfect  freedom  of  trade 
which  Congress  has  seen  fit  should  remain  undisturbed.  But  if,  after 
their  arrival  in  the  state, — that  being  their  place  of  destination  for  use 
or  trade, — if,  after  this,  they  are  subjected  to  a  general  tax  laid  alike 
on  all  property  within  the  city,  we  fail  to  see  how  such  a  taxing  can  be 
deemed  a  regulation  of  commerce  which  would  have  the  objectionable 
effect  referred  to. 

"We  do  not  mean  to  say  that  if  a  tax  collector  should  be  stationed 
at  every  ferry  and  railroad  depot  in  the  city  of  New  York,  charged 
with  the  duty  of  collecting  a  tax  on  every  wagon-load  or  car-load  of 
produce  and  merchandise  brought  into  the  city,  that  it  would  not  be 
a  regulation  of,  and  restraint  upon,  interstate  commerce,  so  far  as  the 
tax  should  be  imposed  on  articles  brought  from  other  states.  We 
think  it  would  be,  and  that  it  would  be  an  encroachment  upon  the  ex- 
clusive powers  of  Congress.  It  would  be  very  different  from  the  tax 
laid  on  auction  sales  of  all  property  indiscriminately,  as  in  the  case  of 
Woodruff  v.  Parham  [8  Wall.  123,  19  L.  Ed.  382],  which  had  no  re- 
lation to  the  movement  of  goods  from  one  state  to  another.  It  would 
be  very  different  from  a  tax  laid,  as  in  the  present  case,  on  property 
which  had  reached  its  destination,  and  had  become  part  of  the  general 
mass  of  property  of  the  city,  and  which  was  only  taxed  as  a  part  of 
that  general  mass  in  common  with  all  other  property  in  the  city,  and 
in  precisely  the  same  manner. 

"When  Congress  shall  see  fit  to  make  a. regulation  on  the  subject  of 
property  transported  from  one  state  to  another,  which  may  have  the 
effect  to  give  it  a  temporary  exemption  from  taxation  in  the  state  to 
which  it  is  transported,  it  will  be  time  enough  to  consider  any  conflict 
that  may  arise  between  such  regulation  and  the  general  taxing  laws  of 
the  state."2 

i  Goods  in  transit  from  state  to  slate  or  to  a  foreign  country  cease  mean- 
while to  be  subject  to  the  property  taxes  of  anj  state,  even  though  the  owner 
be  domiciled  therein.  Bacon  v.  Illinois.  227  r.  s.  504,  33  Sup.  ct.  299,  57 
!     i  d  1913).    Compare  Southern  Pac  Co.  v.  Kentucky,  ante,  p.  643,  oote 

(taxation  of  vessels  similarly   in   transit). 

id:  Pittsburg,  etc.,  Coal  Co.  v.  Bates.  150  l\  S.  577,  15  Sup.  Ct  U5, 
:;9  L.  Ed.  53S  (1895);  Banker  Bros.  Co.  v.  Pennsylvania,  post.  p.  1142;  and 
eases  under  Coe  v.  ESrrol,  ante.  \>.  1074,  note  2.  Similarly  stale  taxes  anon 
peddlers   who  carry  with   them   for  sale  goods   from  other  states  are   valid, 


1132  THE   FEDERAL  GOVERNMENT  (Part  3 


ROBBINS  v.  SHELBY  COUNTY  TAXING  DISTRICT. 

(Supreme  Court  of  United  States,  1887.    120  U.  S.  489,  7  Sup.  Ct.  592,  30  L. 
Ed.  694.) 

[Error  to  the  Supreme  Court  of  Tennessee.  A  state  statute  required 
all  drummers  and  persons  not  having  a  licensed  house  of  business  in 
the  Taxing  District  (the  city  of  Memphis),  offering  for  sale  goods  by 
sample,  to  pay  a  license  tax  of  $25  a  month.  Robbins  was  convicted 
of  selling  goods  by  sample  without  a  license  in  Memphis,  for  a  firm  in 
Cincinnati,  Ohio,  and  this  was  affirmed  by  the  state  supreme  court.] 

Mr.  Justice  Bradley.  *  *  *  The  principal  question  argued 
before  the  supreme  court  of  Tennessee  was  as  to  the  constitutionality 
of  the  act  which  imposed  the  tax  on  drummers ;  and  the  court  decided 
that  it  was  constitutional  and  valid.  *  *  *  Certain  principles  have 
been  already  established  by  the  decisions  of  this  court,  which  will  con- 
duct us  to  a  satisfactory  decision.  Among  those  principles  are  the  fol- 
lowing : 

1.  The  Constitution  of  the  United  States  having  given  to  Congress 
the  power  to  regulate  commerce,  not  only  with  foreign  nations,  but 
among  the  several  states,  that  power  is  necessarily  exclusive  whenever 
the  subjects  of  it  are  national  in  their  character,  or  admit  only  of  one 
uniform  system,  or  plan  of  regulation.  This  was  decided  in  the  case 
of  Cooley  v.  Board  of  Wardens  of  the  Port  of  Philadelphia,  12  How. 
299,  319,  13  L.  Ed.  996,  and  was  virtually  involved  in  the  case  of  Gib- 
bons v.  Ogden,  9  Wheat.  1,6  L.  Ed.  23,  and  has  been  confirmed  in 
many  subsequent  cases.     *     *     * 

2.  Another  established  doctrine  of  this  court  is  that,  where  the  pow- 
er of  Congress  to  regulate  is  exclusive,  the  failure  of  Congress  to 
make  express  regulations  indicates  its  will  that  the  subject  shall  be  left 
free  from  any  restrictions  or  impositions ;  and  any  regulation  of  the 
subject  by  the  states,  except  in  matters  of  local  concern  only,  as  here- 
after mentioned,  is  repugnant  to  such  freedom.  This  was  held  by  Mr. 
Justice  Johnson  in  Gibbons  v.  Ogden,  9  Wheat.  1,  222,  6  L.  Ed.  23, 
by  Mr.  Justice  Grier  in  the  Passenger  Cases,  7  How.  283,  462,  12  L. 
Ed.  702,  and  has  been  affirmed  in  subsequent  cases.  State  Freight  Tax 
Cases,  15  Wall.  232,  279,  21  L.  Ed.  146;  Railroad  Co.  v.  Husen,  95 
U.  S.  465,  469,  24  L.  Ed.  527;  Welton  v.  Missouri,  91  U.  S.  275,  282, 
23  L.  Ed.  347;  County  of  Mobile  v.  Kimball,  102  U.  S.  691,  697,  26 
L.  Ed.  238;  Brown  v.  Houston,  114  U.  S.  622,  631,  5  Sup.  Ct.  1091, 
29  L.  Ed.  257;  Walling  v.  Michigan,  116  U.  S.  446,  455,  6  Sup.  Ct. 
454,  29  E.  Ed.  691 ;  Pickard  v.  Pullman  Palace  Car  Co.,  117  U.  S.  34, 
6  Sup.  Ct.  635,  29  L.  Ed.  785;  Wabash  R.  Co.  v.  Illinois,  118  U.  S. 
557,  7  Sup.  Ct.  4,  30  L.  Ed.  244. 

whether  imposed  for  purposes  of  revenue.  Machine  Co.  v.  Gage,  100  U.  S. 
676,  25  L.  Ed.  754  (1SS0) ;  or  primarily  as  a  regulative  measure,  Emert  v. 
Missouri,  156  U.  S.  296,  15  Sup.  Ct.  367,  39  L.  Ed.  430  (1895). 


Ch.  18)  REGULATION    OK    I  1133 

3.  It  is  also  an  established  principle,  as  already  indicated,  that  the 
only  way  in  which  commerce  between  the  states  can  be  legitimately  af- 
fected by  state  laws  is  when,  by  virtue  of  its  police  power,  and  its  ju- 
risdiction over  persons  and  property  within  its  limits,  a  state  provides 
for  the  security  of  the  lives,  limbs,  health,  and  comfort  of  persons  and 
the  protection  of  property,  or  when  it  does  those  things  which  may 
otherwise  incidentally  affect  commerce;  such  as  the  establishmi 
regulation  of  highways,  canals,  railroads,  wharves,  ferries,  and  other 
commercial  facilities ;  the  passage  of  inspection  laws  to  secure  the  due 
quality  and  measure  of  products  and  commodities;  the  passage  of 
laws  to  regulate  or  restrict  the  sale  of  articles  deemed  injurious  to  the 
health  or  morals  of  the  community ;  the  imposition  of  taxes  upon  per- 
sons residing  within  the  state  or  belonging  to  its  population,  and  upon 
avocations  and  employments  pursued  therein,  not  directly  connected 
with  foreign  or  interstate  commerce,  or  with  some  other  empl 
or  business  exercised  under  authority  of  the  Constitution  and  laws  of 
the  United  States,  and  the  imposition  of  taxes  upon  all  property  with- 
in the  state,  mingled  with  and  forming  part  of  the  great  mass  of  prop- 
erty therein.  But,  in  making  such  internal  regulations,  a  state  cannot 
impose  taxes  upon  persons  passing  through  the  state,  or  coming  into 
it  merely  for  a  temporary  purpose,  especially  if  connected  with  inter- 
state or  foreign  commerce;  nor  can  it  impose  such  taxes  upon  prop- 
erty imported  into  the  state  from  abroad,  or  from  another  state,  and 
not  yet  become  part  of  the  common  mass  of  properly  therein  :  and  no 
discrimination  can  be  made  by  any  such  regulations  adversely  to  the 
persons  or  property  of  other  states ;  and  no  regulations  can  be  made 
directly  affecting  interstate  commerce.  Any  taxation  or  regulation  of 
the  latter  character  would  be  an  unauthorized  interference  with  the 
power  given  to  Congress  over  the  subject.  For  authorities  on  this  last 
head  it  is  only  necessary  to  refer  to  those  already  cited.  In  a  word, 
it  may  be  said  that,  in  the  matter  of  interstate  commerce,  the  United 
States  are  but  one  country,  and  are  and  must  be  subject  to  one 
of  regulations,  and  not  to  a  multitude  of  systems.  The  doctrine  of  the 
freedom  of  that  commerce,  except  as  regulated  by  Congress,  is  so 
firmly  established  that  it  is  unnecessary  to  enlarge  further  upon  the 
subject. 

In  view  of  these  fundamental  principles,  which  are  to  govern  our 
decision,  we  may  approach  the  question  submitted  to  us  in  the  \ 
case,  and  inquire  whether  it  is  competent  for  a  state  to  levy  a 
impose  any  other  restriction  upon  the  citizens  or  inhabitants  of  other 
states  for  selling  or  seeking  to  sell  their  goods  in  such  state  before  they 
are  introduced  therein.     Do  not  such  restrictions  affect  the  very  foun- 
dation of  interstate  trade?     How  is  a  manufacturer  or  a  merchant  of 
one  state  to  sell  his  goods  in  another  state,  without,  in  some  « 
taining  orders  therefor?     Must  he  be  compelled  to  send  them  at 
ture,  without  knowing  whether  there  is  any  demand  for  them?    This 
may.   undoubtedly,  be  safely  done  with   regard  to  some  products  for 


1134  THE   FEDERAL   GOVERNMENT  (Part  3 

which  there  is  always  a  market  and  a  demand,  or  where  the  course 
of  trade  has  established  a  general  and  unlimited  demand.  A  raiser  of 
farm  produce  in  New  Jersey  or  Connecticut,  or  a  manufacturer  of 
leather  or  woodenware,  may,  perhaps,  safely  take  his  goods  to  the  city 
of  New  York,  and  be  sure  of  finding  a  stable  and  reliable  market  for 
them.  But  there  are  hundreds,  perhaps  thousands,  of  articles  which 
no  person  would  think  of  exporting  to  another  state  without  first  pro- 
curing an  order  for  them.  It  is  true,  a  merchant  or  manufacturer  in 
one  state  may  erect  or  hire  a  warehouse  or  store  in  another  state,  in 
which  to  place  his  goods,  and  await  the  chances  of  being  able  to  sell 
them ;  but  this  would  require  a  warehouse  or  store  in  every  state  with 
which  he  might  desire  to  trade.  Surely,  he  cannot  be  compelled  to 
take  this  inconvenient  and  expensive  course.  In  certain  branches  of 
business,  it  may  be  adopted  with  advantage.  Many  manufacturers  do 
open  houses  or  places  of  business  in  other  states  than  those  in  which 
they  reside,  and  send  their  goods  there  to  be  kept  on  sale;  but  this  is 
a  matter  of  convenience,  and  not  of  compulsion,  and  would  neither 
suit  the  convenience  nor  be  within  the  ability  of  many  others  engaged 
in  the  same  kinds  of  business,  and  would  be  entirely  unsuited  to  many 
branches  of  business.  In  these  cases,  then,  what  shall  the  merchant 
or  manufacturer  do,  who  wishes  to  sell  his  goods  in  other  states? 
Must  he  sit  still  in  his  factory  or  warehouse,  and  wait  for  the  people 
of  those  states  to  come  to  him?  This  would  be  a  silly  and  ruinous 
proceeding.  The  only  other  way,  and  the  one,  perhaps,  which  most 
extensively  prevails,  is  to  obtain  orders  from  persons  residing  or  doing 
business  in  those  other  states.  But  how  is  the  merchant  or  manufac- 
turer to  secure  such  orders?  If  he  may  be  taxed  by  such  states  for 
doing  so,  who  shall  limit  the  tax?  It  may  amount  to  prohibition.  To 
say  that  such  a  tax  is  not  a  burden  upon  interstate  commerce,  is  to 
speak  at  least  unadvisedly,  and  without  due  attention  to  the  truth  of 
things.  It  may  be  suggested  that  the  merchant  or  manufacturer  has 
the  post-office  at  his  command,  and  may  solicit  orders  through  the 
mails.  We  do  not  suppose,  however,  that  any  one  would  seriously 
contend  that  this  is  the  only  way  in  which  his  business  can  be  trans- 
acted without  being  amenable  to  exactions  on  the  part  of  the  state. 
Besides,  why  could  not  the  state  to  which  his  letters  might  be  sent,  tax 
him  for  soliciting  orders  in  this  way,  as  well  as  in  any  other  way? 
The  truth  is,  that  in  numberless  instances,  the  most  feasible,  if  not  the 
only  practicable,  way  for  the  merchant  or  manufacturer  to  obtain  or- 
ders in  other  states  is  to  obtain  them  by  personal  application,  either 
by  himself  or  by  some  one  employed  by  him  for  that  purpose ;  and  in 
many  branches  of  business  he  must  necessarily  exhibit  samples  for  the 
purpose  of  determining  the  kind  and  quality  of  the  goods  he  proposes 
to  sell,  or  which  the  other  party  desires  to  purchase.  But  the  right  of 
taxation,  if  it  exists  at  all,  is  not  confined  to  selling  by  sample.  It  em- 
braces every  act  of  sale,  whether  by  word  of  mouth  only,  or  by  the 
exhibition  of  samples.     If  the  right  exists,  any  New  York  or  Chicago 


Ch.  18)  REGULATION    Or    COMMERCE  1135 

merchant,  visiting  New  Orleans  or  Jacksonville  for  pleasure  or  for  his 
health,  and  casually  taking  an  order  for  goods  to  be  sent  from  his 
warehouse,  could  be  made  liable  to  pay  a  tax  for  so  doing,  or  be  con- 
victed of  a  misdemeanor  for  not  having  taken  out  a  license.  The  right 
to  tax  would  apply  equally  as  well  to  the  principal  as  to  his  agent,  and 
to  a  single  act  of  sale  as  to  a  hundred  acts. 

But  it  will  be  said  that  a  denial  of  this  power  of  taxation  will  inter- 
fere with  the  right  of  the  state  to  tax  business  pursuits  and  callings 
carried  on  within  its  limits,  and  its  right  to  require  licenses  for  carry- 
ing on  those  which  are  declared  to  be  privileges.  This  may  be  true  to 
a  certain  extent,  but  only  in  those  cases  in  which  the  states  themselves, 
as  well  as  individual  citizens,  are  subject  to  the  restraints  of  the  high- 
er law  of  the  Constitution;  and  this  interference  will  be  very  limited 
in  its  operation.  It  will  only  prevent  the  levy  of  a  tax,  or  the  require- 
ments of  a  license,  for  making  negotiations  in  the  conduct  of  inter- 
state commerce ;  and  it  may  well  be  asked  where  the  state  gets  author- 
ity for  imposing  burdens  on  that  branch  of  business  any  more  than  for 
imposing  a  tax  on  the  business  of  importing  from  foreign  countries. 
or  even  on  that  of  postmaster  or  United  States  marshal.  The  mere 
calling  the  business  of  a  drummer  a  privilege,  cannot  make  it  so.  Can 
the  state  legislature  make  it  a  Tennessee  privilege  to  carry  on  the  busi- 
ness of  importing  goods  from  foreign  countries?  If  not,  has  it  any 
better  right  to  make  it  a  state  privilege  to  carry  on  interstate  com- 
merce? It  seems  to  be  forgotten  in  argument  that  the  people  of  this 
country  are  citizens  of  the  United  States,  as  well  as  of  the  individual 
states,  and  that  they  have  some  rights  under  the  Constitution  and  laws 
of  the  former,  independent  of  the  latter,  and  free  from  any  interfer- 
ence or  restraint  from  them.  To  deny  to  the  state  the  power  to  lay 
the  tax  or  require  the  license  in  question,  will  not,  in  any  perceptible 
degree,  diminish  its  resources,  or  its  just  power  of  taxation.  It  is  very 
true  that,  if  the  goods  when  sold  were  in  the  state,  and  part  of  its  gen- 
eral mass  of  property,  they  would  be  liable  to  taxation ;  but  when 
brought  into  the  state  in  consequence  of  the  sale,  they  will  be  equally 
liable;  so  that,  in  the  end,  the  state  will  derive  just  as  much  revenue 
from  them  as  if  they  were  there  before  the  sale.  As  soon  as  the  goods 
are  in  the  state,  and  become  part  of  its  general  mass  of  property,  they 
will  become  liable  to  be  taxed  in  the  same  manner  as  other  property  of 
similar  character,  as  was  distinctly  held  by  this  court  in  the  case  of 
Brown  v.  Houston,  114  U.  S.  622.  5  Sup.  Ct.  1091,  29  L.  Ed.  2?7. 
When  goods  are  sent  from  one  state  to  another  for  sale,  or  in  conse- 
quence of  a  sale,  they  become  part  of  its  general  property,  ami  amen- 
able to  its  laws:  provided  that  no  discrimination  be  made  against  them 
as  goods  from  another  state,  and  that  they  be  not  taxed  by  reason  of 
being  brought  from  another  state,  but  only  taxed  in  the  usual  way  as 
other  goods  are.  Brown  v.  Houston,  qua  supra  ;  Machine  Co.  v.  Gage 
100  U.  S.  676,  25  L.  Ed.  754.  But  to  ia.\  the  sale  of  such  goods,  or 
the  offer  to  sell  them,  before  they  are  brought  into  the  state,  is  a  very 


1136  THE   FEDERAL   GOVERNMENT  (Part  3 

different  thing,  and  seems  to  us  clearly  a  tax  on  interstate  commerce 
itself. 

It  is  strongly  urged,  as  if  it  were  a  material  point  in  the  case,  that 
no  discrimination  is  made  between  domestic  and  foreign  drummers, — 
those  of  Tennessee  and  those  of  other  states ;  that  all  are  taxed  alike. 
But  that  does  not  meet  the  difficulty.  Interstate  commerce  cannot  be 
taxed  at  all,  even  though  the  same  amount  of  tax  should  be  laid  on 
domestic  commerce,  or  that  which  is  carried  on  solely  within  the  state. 
This  was  decided  in  the  case  of  State  Freight  Tax  Cases,  15  Wall.  232, 
21  L,.  Ed.  146.  The  negotiation  of  sales  of  goods  which  are  in  another 
state,  for  the  purpose  of  introducing  them  into  the  state  in  which  the 
negotiation  is  made,  is  interstate  commerce.  A  New  Orleans  mer- 
chant cannot  be  taxed  there  for  ordering  goods  from  London  or  New 
York,  because,  in  the  one  case,  it  is  an  act  of  foreign,  and,  in  the  other, 
of  interstate,  commerce,  both  of  which  are  subject  to  regulation  by 
Congress  alone.  It  would  not  be  difficult,  however,  to  show  that  the 
tax  authorized  by  the  state  of  Tennessee  in  the  present  case  is  discrim- 
inative against  the  merchants  and  manufacturers  of  other  states.  They 
can  only  sell  their  goods  in  Memphis  by  the  employment  of  drummers 
and  by  means  of  samples ;  while  the  merchants  and  manufacturers  of 
Memphis,  having  regular  licensed  houses  of  business  there,  have  no 
occasion  for  such  agents,  and,  if  they  had,  they  are  not  subject  to  any 
tax  therefor.  They  are  taxed  for  their  licensed  houses,  it  is  true ;  but 
so,  it  is  presumable,  are  the  merchants  and  manufacturers  of  other 
states  in  the  places  where  they  reside ;  and  the  tax  on  drummers  oper- 
ates greatly  to  their  disadvantage  in  comparison  with  the  merchants 
and  manufacturers  of  Memphis.  And  such  was  undoubtedly  one  of 
its  objects.  This  kind  of  taxation  is  usually  imposed  at  the  instance 
and  solicitation  of  domestic  dealers  as  a  means  of  protecting  them 
from  foreign  competition ;  and  in  many  cases  there  may  be  some  rea- 
son in  their  desire  for  such  protection.  But  this  shows  in  a  still 
stronger  light  the  unconstitutionality  of  the  tax.  It  shows  that  it  not 
only  operates  as  a  restriction  upon  interstate  commerce,  but  that  it  is 
intended  to  have  that  effect  as  one  of  its  principal  objects.  And  if  a 
state  can,  in  this  way,  impose  restrictions  upon  interstate  commerce 
for  the  benefit  and  protection  of  its  own  citizens,  we  are  brought  back 
to  the  condition  of  things  which  existed  before  the  adoption  of  the 
Constitution,  and  which  was  one  of  the  principal  causes  that  led  to  it. 
If  the  selling  of  goods  by  sample,  and  the  employment  of  drummers 
for  that  purpose,  injuriously  affect  the  local  interest  of  the  states,  Con- 
gress, if  applied  to,  will  undoubtedly  make  such  reasonable  regulations 
as  the  case  may  demand.  And  Congress  alone  can  do  it ;  for  it  is  ob- 
vious that  such  regulations  should  be  based  on  a  uniform  system  ap- 
plicable to  the  whole  country,  and  not  left  to  the  varied,  discordant,  or 
retaliatory  enactments  of  40  different  states.  The  confusion  into  which 
the  commerce  of  the  country  would  be  thrown  by  being  subject  to 


Cll.  18)  Itl'XJULATION    OF    COMMKHi.B  H:'~ 

state  legislation  on  this  subject  would  be  but  a  repetition  of  the  disor- 
der which  prevailed  under  the  articles  of  confederation. 

To  say  that  the  tax,  if  invalid  as  against  drummers  from  other 
states,  operates  as  a  discrimination  against  the  drummers  of  Tennes- 
see, against  whom  it  is  conceded  to  be  valid,  is  no  argument,  because 
the  state  is  not  bound  to  tax  its  own  drummers ;  and  if  it  does  so, 
while  having  no  power  to  tax  those  of  other  states,  it  acts  of  its  own 
free  will,  and  is  itself  the  author  of  such  discriminations.  As  before 
said,  the  state  may  tax  its  own  internal  commerce;  but  that  does  not 
gi\  c  it  any  right  to  tax  interstate  commerce. 

Judgment  reversed.1 

WAITS,  C.  J.,  gave  a  dissenting  opinion,  in  which  concurred  FlELD 
and  Gray,  ]].  It  proceeded  upon  the  ground  that  there  was  no  dis- 
crimination.] 

■  Accord:    Ashe*  v.  Texas,  128  P.  S.  129,  9  Sup.  Ct.  1,  32  L.  Ed  368 
Brennan  v.  Titusville,  153  I'.  S.  289,  11  Sup.  Ct  829,  38  L.  Ed,  71!)  (1894)  (tan 

I  to  drummers  selling  directly  to  consumers);    and  the  cases  digested 
below. 

in  Caldwell  v.  North  Carolina,  187  U.  S.  G22,  23  Sup.  ct  229,  47  L.  Ed.  330 
(1903),  tiit-  North  Carolina  agent  of  a  Chicago  portrait  company  took  local  or- 
ders for  pictures  and  frames  to  be  supplied  from  Chicago.    The  trai 
pictures  were  packed  separately  for  convenience,  shipped  to  tbe  local 
put  together  by  him,  and  then  delivered  by  him  to  the  purchasers.     No  pari 
of  iliis  transaction  was  held  to  be,  taxable  by  North  Carolina. 

In   Norfolk  &  W.  Ry.  v.  Sims,  101  U.  S.  411,  4  17,  24  Sup.  Ct.  151,  152,  48  L. 
I'll.  L'fil  (1903)  a  sewing  machine  was  ordered  by  a  customer  in  North 
Una  from  a  dealer  in  Chicago  and  was  sent  C.  O.  D.  by  freight  to  her.     It  was 
hold  that  North  Carolina  could  not  require  a  license  for  any  part  of  this  trans 
action.  Brown,  J.,  saying: 

"While  it  may  be  entirely  true  that  the  property  in  the  thing  sold  does  not 
pass  under  a  C.  O.  D.  consignment  until  delivery  of  the  goods  and  payment  to 
the  carrier,  and  hence  it  may  lie  said  that  the  sale  is  not  completed  until  then, 
yet,  as  matter  of  fact,  the  bargain  is  made,  and  the  contract  of  .- 
as  such,  when  the  order  is  received  in  Chicago,  and  the  machine  shipped  in 
pursuance  thereof.  A  sale  really  consists  of  two  separate  and  distinct  ele- 
ments: First,  a  contract  of  sale,  which  is  completed  when  the  offer  is  made 
and  accepted ;  and,  second,  a  delivery  of  the  property  which  may  precede, 
be  accompanied  by,  or  follow,  the  payment  of  the  price,  as  may  have  been 
agreed  upon  between  the  parties.  The  substance  of  the  sale  is  the  agreement 
to  sell,  and  its  acceptance.  That  possession  shall  be  retained  until  payment 
of  the  price  may  or  may  not  have  been  a  part  of  the  original  bargain,  but  in 

substance  It  Is  a  mere  method  of  collection,  and  we  have  never  nndersl i 

that  a  license  could  he  imposed  upon  this  transaction  except  in  connection 
with  the  prior  agreement  to  sell." 

In  Rearick  v.  Pennsylvania,  203  U.  S.  507,  511,  512,  27  Sup.  Ct  159.  160. 
51  L.  Ed.  295  (1906)  the  facts  were  similar  to  those  In  Caldwell  v.  North  Car.. 
Una.  stated  above,  except  that  a  part  of  the  goods  (brooms)  ordered  by  several 
persons  were  packed  together  for  convenience  of  shipment,  and  then  the  pack- 
ages were  broken  by  the  local  anent  before  delivery.  The  buyer  had  the  right 
to  reject  the  goods  if  not  according  t..  sample.  The  state  where  delivery  to..!c 
place  was  still  held  disabled  to  tax  the  transaction,  Holmes.  .7..  Baying: 

"A  ground  relied  upon  by  the  prosecution  *  *  *  was  that  the  goods,  or 
at  least  this  pari  of  them,  were  not  in  the  original  packages  when  delivered 
•      •      •      In  other  words,  it  was  I  I. rooms,   before  they  were 

sold,  had  beco  a  with,  or  part  of,  the  common  mass  of  goods  In  the 

state,  and  so  subject  to  the  local  law.  Bui  the  doctrine  as  to  original  pack- 
ages primarily  concerns  the  right   to  sell   within  the  prohibiting  or  taxing 

'  .ds  coming  into  it  from  outside.     When  the  goods  have  been  sold  be- 
Hall  Const.L. — 72 


1138  THE  FEDERAL   GOVERNMENT  (Part  3 

FICKLEN  v.  SHELBY  COUNTY  TAXING  DISTRICT  (1892) 
145  U.  S.  1,  20-24,  12  Sup.  Ct.  810,  811-813,  36  L.  Ed.  601,  Mr. 
Chief  Justice  Fuller  (upholding  a  Tennessee  tax  upon  commission 
dealers  of  $50  a  year  and  10  cents  upon  each  $100  of  their  capital, 
or,  if  without  capital,  2V,  P^1"  cent-  OI  tne'r  gross  yearly  commissions, 
for  the  payment  of  which  latter  sum  a  bond  was  required  in  advance. 
Complainants  paid  the  $50  tax  and  gave  the  bond,  but  at  the  end 
of  the  year  refused  to  pay  the  2y2  per  cent.,  because  all  of  their  busi- 
ness for  the  year  had  consisted  of  the  negotiation  of  interstate  sales 
for  non-resident  principals) : 

"In  the  case  at  bar  the  complainants  were  established  and  did  busi- 
ness in  the  taxing  district  as  general  merchandise  brokers,  and  were 
taxed  as  such.  *  *  *  For  the  year  18S7  they  paid  the  $50  tax 
charged,  gave  bond  to  report  their  gross  commissions  at  the  end  of 
the  year,  and  thereupon  received,  and  throughout  the  entire  year 
held,  a  general  unrestricted  license  to  do  business  as  such  brokers. 
They  were  thereby  authorized  to  do  any  and  all  kinds  of  commission 
business,  and  became  liable  to  pay  the  privilege  tax  in  question,  which 
was  fixed  in  part  and  in  part  graduated  according  to  the  amount  of 
capital  invested  in  the  business,  or,  if  no  capital  were  invested,  by  the 
amount  of  commissions  received.  Although  their  principals  hap- 
pened during  1887,  as  to  the  one  party,  to  be  wholly  nonresident,  and 
as  to  the  other,  largely  such,  this  fact  might  have  been  otherwise  then 
and  afterwards,  as  their  business  was  not  confined  to  transactions  for 
nonresidents. 

fore  arrival  the  limitations  that  still  may  be  found  to  the  power  of  the  state 
will  be  due.  generally,  at  least,  to  other  reasons,  and  we  shall  consider  wheth- 
er the  limitations  may  not  exist,  irrespective  of  that  doctrine,  in  some  cases 
where  there  is  no  executed  sale.  Hence  the  prosecution,  whatever  its  as- 
sumption on  the  point  last  mentioned,  sought  to  show  that  there  was  no  sale 
until  the  goods  were  delivered  and  the  cash  paid  for  them.     *     *     » 

"  'Commerce  among  the  several  states'  is  a  practical  conception,  not  drawn 
from  the  'witty  diversities'  ([Yaites  v.  Goughl  Yelv.  33)  of  the  law  of  sales. 
Swift  &  Co.  v.  United  States,  196  U.  S.  375,  39S,  399,  49  L.  Ed.  518,  525,  526, 
25  Sup.  Ct.  276.  The  brooms  were  specifically  appropriated  to  specific  con- 
tracts, in  a  practical,  if  not  in  a  technical,  sense.  Under  such  circumstauces 
it  is  plain  that,  wherever  might  have  been  the  title,  the  transport  of  the 
brooms  for  the  purpose  of  fulfilling  the  contracts  was  protected  commerce." 

Dozier  v.  Alabama,  218  U.  S.  124,  30  Sup.  Ct  649,  54  L.  Ed.  965.  28  L.  R.  A. 
(N.  S.)  264  (1910)  was  like  the  Caldwell  Case,  stated  above,  except  that  the 
original  contract  gave  the  buyer  an  option  to  take  a  frame  at  "factory  prices" 
when  the  picture  ordered  was  delivered.  It  was  held  that  the  state  where  the 
buyer  lived  could  not  tax  the  delivery  of  the  frame,  if  the  option  were  ex- 
ercised. 

In  the  most  recent  (1913)  case  upon  the  subject,  it  was  held  that  a  state 
could  not  impose  a  license  tax  upon  a  traveling  solicitor  of  sales  of  stoves, 
to  be  shipped  in  from  another  state,  even  as  a  regulative  police  measure  to 
protect  citizens  of  the   state   against  itinerant   and   irresponsible   salesmen. 

Crenshaw  v.  Arkansas,  227  U.  S.  3S9,  33  Sup.  Ct.  294,  57  L.  Ed.  (1913), 

distinguishing  Emert  v.  Missouri,  156  U.  S.  296,  15  Sup.  Ct.  367,  39  L.  Ed.  430 
(1895)  (similar  legislation  upheld  against  peddlers  carrying  goods  for  sale). 
See  the  opinion  below,  in  Crenshaw  v.  State,  95  Ark.  464,  130  S.  W.  569  (1910). 


CIl.  IS)  REGULATION    OF    COHM  11M 

"In  the  Case  of  Robbins  [ante,  p.  1132]  the  tax  was  held,  in  effect, 
not  to  be  a  tax  on  Robbins,  but  on  his  principals,  while  here  the  tax 
was  clearly  levied  upon  complainants  in  respect  of  the  general  com- 
mission business  they  conducted,  and  their  property  engaged  therein, 
or  their  profits  realized  therefrom. 

"No  doubt  can  be  entertained  of  the  right  of  a  state  legislature  to 
tax  trades,  professions,  and  occupations,  in  the  absence  of  inhibition 
in  the  state  Constitution  in  that  regard,  and  where  a  resident  citizen 
engages  in  general  business  subject  to  a  particular  tax,  the  fact  that 
the  business  done  chances  to  consist,  for  the  time  being,  wholly  or 
partially  in  negotiating  sales  between  resident  and  nonresident  mer- 
chants of  goods  situated  in  another  state  does  not  necessarily  involve 
the  taxation  of  interstate  commerce,  forbidden  by  the  Constitution. 

*  *  *  Here  the  tax  was  not  laid  on  the  occupation  or  business 
of  carrying  on  interstate  commerce,  or  exacted  as  a  condition  of 
doing  any  particular  commission  business,  and  complainants  volun- 
tarily subjected  themselves  thereto  in  order  to  do  a  general  business. 

*  *     * 

"In  Maine  v.  Railway  Co.,  142  U.  S.  217,  12  Sup.  Ct.  121,  163,  35 
L.  Ed.  994,  we  decided  that  a  state  statute  which  required  every 
corporation,  person,  or  association  operating  a  railroad  within  the 
state  to  pay  an  annual  tax  for  the  privilege  of  exercising  its  franchise 
therein,  to  be  determined  by  the  amount  of  its  gross  transportation 
receipts,  and  further  provided  that,  when  applied  to  a  railroad  lying 
partly  within  and  partly  without  a  state,  or  to  one  operated  as  a  part 
of  a  line  or  system  extending  beyond  the  state,  the  tax  should  be 
equal  to  the  proportion  of  the  gross  receipts  in  the  state,  to  be  as- 
certained in  the  manner  provided  by  the  statute,  did  not  conflict  with 
the  Constitution  of  the  United  States.  It  was  held  that  the  refer- 
ence by  the  statute  to  the  transportation  receipts,  and  to  a  certain 
percentage  of  the  same,  in  determining  the  amount  of  the  excise  tax. 
was  simply  to  ascertain  the  value  of  the  business  done  by  the  cor- 
poration, and  thus  obtain  a  guide  to  a  reasonable  conclusion  as  to 
the  amount  of  the  excise  tax  which  should  be  levied.  In  this  respect 
the  tax  was  unlike  that  levied  in  Philadelphia  &  Southern  S.  S.  Co. 
v.  Pennsylvania,  supra,  where  the  specific  gross  receipts  for  trans- 
portation were  taxed  as  such, — taxed  'not  only  because  they  are 
money,  or  its  value,  but  because  they  were  received  for  tran- 
tion.' 

"Since  a  railroad  company  engaged  in  interstate  commerce  is  lia- 
ble to  pay  an  excise  tax  according  to  the  value  of  the  business  done 
in  the  state,  ascertained  as  above  stated,  it  is  difficult  to  see  why  a 
citizen  doing  a  general  business  at  the  place  of  his  domicile  should 
escape  payment  of  his  share  of  the  burdens  of  municipal  government 
because  the  amount  of  his  tax  is  arrived  at  by  reference  to  his  profits. 
This  tax  is  not  on  the  goods,  nor  on  the  proceeds  of  the  goods,  nor 
is  it  a  tax  on  nonresident  merchants;   and.  if  it  can  be  said  to  affect 


1140  THE   FEDERAL  GOVERNMENT  (Part  3 

interstate  commerce  in  any  way,  it  is  incidentally,  and  so  remotely 
as  not  to  amount  to  a  regulation  of  such  commerce. 

"We  presume  it  would  not  be  doubted  that  if  the  complainants 
had  been  taxed  on  capital  invested  in  the  business,  such  taxation 
would  not  have  been  obnoxious  to  constitutional  objection,  but,  be- 
cause they  had  no  capital  invested,  the  tax  was  ascertained  by  refer- 
ence to  the  amount  of  their  commissions,  which,  when  received,  were 
no  less  their  property  than  their  capital  would  have  been.  We  agree 
with  the  supreme  court  of  the  state  that  the  complainants,  having 
taken  out  licenses  under  the  law  in  question  to  do  a  general  commis- 
sion business,  and  having  given  bond  to  report  their  commissions 
during  the  year,  and  to  pay  the  required  percentage  thereon,  could 
not,  when  they  applied  for  similar  licenses  for  the  ensuing  year,  re- 
sort to  the  courts  because  the  municipal  authorities  refused  to  issue 
such  licenses  without  the  payment  of  the  stipulated  tax.  What  posi- 
tion they  would  have  occupied  if  they  had  not  undertaken  to  do  a 
general  commission  business,  and  had  taken  out  no  licenses  there- 
for, but  had  simply  transacted  business  for  nonresident  principals, 
is  an  entirely  different  question,  which  does  not  arise  upon  this  rec- 
ord."1 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


KEHRER  v.  STEWART  (1905)  197  U.  S.  60,  64,  65,  67^69,  25 
Sup.  Ct.  403^106,  49  L.  Ed.  663,  Mr.  Justice  Brown  (upholding  a 
Georgia  license  tax  of  $200  upon  agents  of  packing  houses  doing 
business  in  each  county  in  the  state) : 

"Nelson  Morris  &  Co.,  citizens  of  Illinois,  were  engaged,  in  the 
city  of  Chicago,  in  the  business  of  packing  meats  for  sale  and  con- 
sumption, and  also  had  a  place  of  business  in  Atlanta,  Georgia, 
where  they  sold  their  products  at  wholesale.  *  *  *  The  firm 
*  *  took  orders,  which  were  transmitted  and  filled  at  Chicago, 
the  meats  sent  to  Atlanta,  and  there  distributed  in  pursuance  of  such 
orders.  Certain  meats  were  also  shipped  from  Chicago  to  Atlanta 
without  a  previous  sale  or  contract  to  sell.  These  were  stored  in  the 
Atlanta  house  of  the  firm  in  the  original  packages,  and  were  kept  and 
held  for  sale,  in  the  ordinary  course  of  trade,  as  domestic  business. 
*  *  *  It  was  [by  the  Georgia  supreme  court]  held  that  the  tax, 
so  far  as  applied  to  meats  sold  in  Chicago,  and  shipped  to  the  peti- 
tioner in  Georgia  for  distribution,  could  not  be  supported;  but  that 
so  far  as  the  petitioner  was  engaged  in  the  business  of  selling  di- 

i  Where  brokers  neither  do  nor  hold  themselves  out  as  doing  any  local 
business  whatever,  but  confine  themselves  entirely  to  soliciting  orders  for 
principals  resident  in  other  states,  they  are  not  subject  to  the  tax  in  the 
principal  case.  Stockard  v.  Morgan,  1S5  U.  S.  27,  22  Sup.  Ct.  576,  46  L.  Ed. 
785  (1902). 


Cll.  18)  REGULATION    OF    COHM1  1M1 

rectly  to  customers  in  Atlanta,  he  was  engaged  in  carrying  on  an 
independent  business  as  a  wholesale  dealer,  and  was  liable  to  the  tax. 

"Tbis  decision  was  correct.  In  carrying  on  the  domestic  business, 
petitioner  was  indistinguishable  from  the  ordinary  butcher,  who 
slaughters  cattle  and  sells  their  carcasses,  and  in  principle  it  made  no 
difference  that  the  cattle  were  slaughtered  in  Chicago  and  their  car- 
casses sent  to  Atlanta  for  sale  and  consumption  in  the  ordinary 
course  of  trade.  Upon  arrival  there  they  became  a  part  of  the  tax- 
able property  of  the  state.  It  ma  le  no  difference  whence  they  came 
and  to  whom  they  were  ultimately  sold,  or  whether  the  domestic  and 
interstate  business  were  carried  on  in  the  same  or  different  buildings. 
In  this  particular  the  case  is  covered  by  that  of  Brown  v.  Houston, 
114  U.  S.  622,  29  L.  Ed.  257,  5  Sup.  Ct.  Rep.  1091.     *     *     * 

"The  only  difficulty  in  this  case  arises  from  the  fact  that  the  tax 
is  laid  not  in  terms  upon  the  domestic  business,  nor  upon  the  gross 
receipts  or  profits  which  might  be  apportioned  between  interstate  and 
domestic  business,  but  is  a  gross  sum  imposed  upon  the  managing 
agent  of  packing  houses,  regardless  of  the  fact  that  the  greater  por- 
tion of  the  business  may  be  interstate  in  its  character.  This  contin- 
gency, however,  is  met  by  the  case  of  Osborne  v.  Florida,  164  U.  S. 
650,  41  L.  Ed.  586,  17  Sup.  Ct.  214,  wherein  a  license  tax  imposed 
upon  express  companies  doing  business  in  Florida  had  been  con- 
strued by  the  supreme  court  of  that  state  as  applying  solely  to  busi- 
ness of  the  company  done  within  the  state,  and  not  to  its  interstate 
business.  Accepting  this  construction  of  the  state  statute  as  in  real- 
ity part  of  the  statute  itself,  we  held  that  it  did  not  in  any  way  vio- 
late the  federal  Constitution.  The  statute  was  sustained,  notwith- 
standing the  fact  that  95  per  cent,  of  the  business  was  interstate  in 
its  character,  and  only  5  per  cent,  consisted  of  carrying  goods  and 
freight  between  points  within  the  state  of  Florida.     *     *     * 

"So,  in  the  case  under  consideration,  it  was  expressly  held  by  the 
supreme  court  of  Georgia  that  that  part  of  the  Nelson  Morris  & 
Co.'s  business  which  consisted  in  shipping  goods  to  Atlanta  to  fill 
orders  previously  received,  the  goods  being  delivered  in  accordance 
with  such  orders,  was  interstate  commerce,  not  subject  to  ta 
within  the  state,  and  that,  so  far  as  applied  to  that  business,  the  tax 
was  void.  Accepting  this  construction  of  the  supreme  court,  we 
think  the  act,  so  far  as  applied  to  domestic  business,  is  valid.  The 
record  does  not  show  what  proportion  of  such  business  is  interstate 
and  what  proportion  is  domestic,  although  it  is  conceded  that  most 
of  the  business  is  interstate  in  its  character.  If  the  amount  of  domes- 
tic business  were  purely  nominal,  as,  for  instance,  if  the  consignee 
of  a  shipment  made  in  Chicago,  upon  an  order  filled  there,  r< 
the  goods  shipped,  and  the  only  way  of  disposing  of  them  was  bj 
sales  at  Atlanta,  this  might  be  held  to  be  strictly  incidental  to  an  in- 
terstate business,  and  in  reality  a  part  of  it,  as  we  held  in  Crutcher 
v.  Kentucky,  141  U.  S.  47,  35  L.  Ed.  649,  11  Sup.  Ct.  851 ;  but  if  the 


1142  THE   FEDERAL   GOVERNMENT  (Part  3 

agent  carried  on  a  definite,  though  a  minor,  part  of  his  business  in 
the  state  by  the  sales  of  meat  there,  he  would  not  escape  the  payment 
of  the  tax,  since  the  greater  or  less  magnitude  of  the  business  cuts 
no  figure  in  the  imposition  of  the  tax.  There  could  be  no  doubt 
whatever  that,  if  the  agent  carried  on  his  interstate  and  domestic 
business  in  two  distinct  establishments,  one  would  be  subject  and  the 
other  would  not  be  subject  to  the  tax,  and  in  our  view  it  makes  no 
difference  that  the  two  branches  of  business  are  carried  on  in  the 
same  establishment.  The  burden  of  proof  was  clearly  upon  the 
plaintiff  to  show  that  the  domestic  business  was  a  mere  incident  to 
the  interstate  business."1 


BANKER  BROTHERS  CO.  v.  PENNSYLVANIA  (1911)  222  U. 
S.  210,  212-214,  32  Sup.  Ct.  38,  39,  56  L.  Ed.  168,  Mr.  Justice  Lamar  : 

"The  Banker  Brothers  Company,  a  corporation  doing  business  in 
Pittsburg,  was  charged,  as  retail  vendors,  with  a  tax  of  1  per  cent. 
on  $351,000  on  sales  of  automobiles  to  persons  in  Pennsylvania,  un- 
der a  statute  of  that  state.  It  denied  liability  on  the  ground  that  the 
sales  were  interstate  transactions.     *     *     * 

"It  appears  that  the  George  N.  Pierce  Company  was  engaged  in 
the  business  of  manufacturing  automobiles  in  Buffalo,  and  in  1905 
made  a  contract  by  which  it  agreed  'to  build  for  and  sell  automobiles 
to  Banker  Brothers  Company  at  20  per  cent,  less  than  list  prices. 
Deliveries  to  be  f.  o.  b.  Buffalo  as  soon  as  practicable  after  order  for 
deliveries  are  received.  Payments  to  be  made  in  cash.'  The  Banker 
Brothers  Company  kept  no  machines  in  stock  except  those  used  for 
demonstration,  and  were  allowed  to  sell  only  within  a  restricted  ter- 
ritory on  terms  stipulated  by  the  manufacturer.  The  purchaser  of 
the  machine  was  to  pay  at  least  10  per  cent,  when  he  signed  a  printed 
form  addressed  to  Banker  Brothers  Company,  requesting  it  'to  enter 

my  order  for  motor  car,  for  which  I  agree  to  pay  the  list 

price,  f.  o.  b.  factory,  as  follows :    $ upon  signing  this  order, 

and  the  balance  upon  delivery  of  the  car  to  me.' 

"The  name  of  the  Pierce  Company  did  not  appear  anywhere  on 
this  printed  form  furnished  by  it,  but  when  the  Banker  Brothers 
Company  accepted  the  order,  it  remitted  the  cash  to  the  Pierce  Com- 
pany. If  the  latter  accepted  the  order,  it  agreed  thereupon  to  make 
the  automobile  and  ship  it,  drawing  on  Banker  Brothers  Company 
for  the  balance  of  the  list  price,  less  20  per  cent.,  with  bill  of  lading 
attached.  The  Banker  Brothers  Company,  on  paying  the  draft,  took 
up  the  bill  of  lading,  received  from  the  carrier  an  automobile  which, 
though  shipped  in  interstate  commerce,  had  become  at  rest  in  the 
state  of  Pennsylvania.    Banker  Brothers  Company  had  the  title,  and 

i  Accord :  Armour  Packing  Co.  v.  Lacy,  200  U.  S.  226,  26  Sup.  Ct  232,  50 
L.  Ed.  451  (1906). 


Ch.  18)  REGULATION  of  commiorce  Un- 

delivered it  to  the  buyer  on  his  paying  the  balance  of  the  purchase 
money.     *     *     * 

"It  is  contended  that  Banker  Brothers  Company  were  agents  and 
the  Pierce  Company  an  undisclosed  principal.  It  is  urged  that  the 
sale  was  an  interstate  transaction  between  the  manufacturer  and  the 
purchaser,  with  Banker  Brothers  Company  merely  acting  as  an  agent 
which  looked  after  the  delivery  of  the  machine  and  collected  the  pur- 
chase price.  *  *  *  As  between  Banker  Brothers  Company  and 
the  Pittsburg  purchaser,  there  can  be  no  doubt  that  it  occupied  the 
position  of  vendor.  As  such  it  was  bound  by  its  contract  to  him, 
and  under  the  duty  of  paying  to  the  state  a  tax  on  the  sale. 

"The  name  of  the  Pierce  Company  was  not  mentioned  in  the  or- 
der signed  by  the  purchaser.  Had  there  been  a  breach  of  its  terms 
he  would  have  had  a  cause  of  action  against  the  Banker  Brothers 
Company,  with  whom  alone  he  dealt.  If  he  had  failed  to  complete 
the  purchase,  the  Pierce  Company  would  have  no  right  to  sue  him 
on  the  contract.  The  fact  that  he  was  liable  for  the  freight  by  virtue 
of  the  agreement  to  'pay  the  list  price  f.  o.  b.  factory'  did  not  con- 
vert it  into  a  sale  by  the  manufacturer  at  the  factory;  neither  was 
that  result  accomplished  because,  with  the  machine,  Banker  Brothers 
Company  also  delivered  to  the  buyer  in  Pittsburg  a  warranty  from 
the  manufacturer  direct. 

"These  were  mere  incidents  of  the  intrastate  contract  of  sale  be- 
tween Banker  Brothers  Company  and  the  purchaser  in  Pittsburg, 
who  was  not  concerned  with  the  question  as  to  how  the  machine  was 
acquired  by  his  vendor,  or  whether  that  company  bought  it  from 
another  dealer  in  the  same  city,  or  from  the  manufacturer  in  New 
York.  The  contract  was  marie  in  Pennsylvania,  and  was  there  to  be 
performed  by  the  delivery  of  the  automobile  and  the  payment  of  the 
balance  of  the  purchase  price.  See  American  Steel  &  Wire  Co.  v. 
Speed,  192  U.  S.  500,  48  L.  Ed.  538,  24  Sup.  Ct.  365;  American 
Exp.  Co.  v.  Iowa,  196  U.  S.  146,  49  L.  Ed.  423,  25  Sup.  Ct.  182. 
The  court  properly  held  it  was  not  an  interstate  transaction,  but  tax- 
able under  the  laws  of  Pennsylvania." 

Taxes  Incidentally  Affecting  Interstate  Sales. — A  stamp  tax  upon  all 
sales  made  at  business  exchanges  is  valid,  though  part  or  the  commodities 
there  sold  are  at  the  time  in  course  of  Interstate  transit.  Broadnax  v.  Mis- 
souri, 219  U.  S.  285,  31  Sup.  Ct.  23S,  55  L.  Ed.  219  (1911).  See,  also.  Hatch  v. 
Keardon,  204  U.  S.  152.  27  Sup.  Ct  188,  51  U  Ed.  115.  9  Ann.  Cas.  736  (1907) 
(tax  on  transfers  of  stock);  Ware  &  Leland  v.  Mobile  County.  209  V.  S.  W5, 
28  Sup.  Ct.  526,  52  L.  Ed.  855,  14  Ann.  Cas.  1031  (190S)  (tax  on  trading  in 
futures,  ante,  p.  1067,  note. 


1144  THE  FEDERAL   GOVERNMENT  (Part  3 


SECTION  5.— NON-DISCRIMTNATORY  STATE  REGULA- 
TION 


CONWAY  v.  TAYLOR'S  EX'R  (1862)  1  Black,  603,  629,  631- 
635,  17  L.  Ed.  191,  Mr.  Justice  Swayne  (affirming  a  Kentucky  decree 
enjoining  Conway  from  invading  plaintiff's  exclusive  franchise  of  fer- 
rying from  Newport,  Ky.,  across  the  Ohio  river  to  Ohio,  although 
Conway's  steamboat  "Commodore"  had  a  federal  coasting  license) : 

"It  is  objected  by  the  appellants,  that  no  such  ferry  franchise  ex- 
ists as  was  sought  to  be  protected  by  this  decree,  because  it  was  grant- 
ed under  the  laws  of  Kentucky,  and  did  not  embrace  a  landing  on  the 
Ohio  shore.  It  is  insisted  that  such  a  franchise,  when  confined  to  one 
shore,  is  a  nullity,  and  that  the  concurrent  action  of  both  states  is  nec- 
essary to  give  it  validity.  Under  the  laws  of  Kentucky  a  ferry  fran- 
chise is  grantable  only  to  riparian  owners.  The  franchise  in  this  in- 
stance was  granted  in  pursuance  of  those  laws.  Any  riparian  owner- 
ship, or  right  of  landing,  or  legal  sanction  of  any  kind  beyond  the 
jurisdiction  of  that  state,  is  not  required  by  her  laws.     *     *     * 

"The  franchise  is  confined  to  the  transit  from  the  shore  of  the  state. 
The  same  rights  which  she  claims  for  herself  she  concedes  to  others. 
She  has  thrown  no  obstacle  in  the  way  of  the  transit  from  the  states 
lying  upon  the  other  side  of  the  Ohio  and  Mississippi.  She  has  left 
that  to  be  wholly  regulated  by  their  ferry  laws.  We  have  heard  of  no 
hostile  legislation,  and  of  no  complaints,  by  any  of  those  states.  It 
was  shown  in  the  argument  at  bar  that  similar  laws  exist  in  most,  if 
not  all,  the  states  bordering  upon  those  streams.  They  exist  in  other 
states  of  the  Union  bounded  by  navigable  waters. 

"Very  few  adjudged  cases  have  been  brought  to  our  notice  in 
which  the  ferry  rights  they  authorize  to  be  granted  have  been  chal- 
lenged; none  in  which  they  have  been  held  to  be  invalid.  A  ferry 
franchise  is  as  much  property  as  a  rent  or  any  other  incorporeal  her- 
editament, or  chattels,  or  realty.  It  is  clothed  with  the  same  sanctity 
and  entitled  to  the  same  protection  as  other  property.     *     *     * 

"Lastly,  it  is  urged  that  the  Commodore  having  been  enrolled  under 
the  laws  of  the  United  States,  and  licensed  under  those  laws  for  the 
coasting  trade,  the  decree  violates  the  rights  which  the  enrollment  and 
license  gave  to  the  appellants  in  respect  of  that  trade  by  obstructing 
the  free  navigation  of  the  Ohio.     *     *     * 

"We  do  not  so  understand  the  decree.  *  *  *  That  the  appel- 
lants had  the  right  after  as  before  the  injunction,  in  the  prosecution 
of  the  carrying  and  coasting  trade,  and  of  ordinary  commercial  navi- 
gation, to  transport  'persons  and  property'  from  the  Kentucky  shore, 
no  one,  we  apprehend,  will  deny.  The  limitation  is  the  line  which 
protects  the  ferry  rights  of  the  appellees.    Those  rights  give  them  no 


Ch.  18)  UEGULATIO.N    OF    COJIMKHCE  111" 

monopoly,  under  'all  circumstances,'  of  all  commercial  transportation 
from  the  Kentucky  shore.  They  have  no  right  to  exclude  or  restrain 
those  there  prosecuting  the  business  of  commerce  in  good  faith,  with- 
out the  regularity  or  purposes  of  ferry  trips,1  and  seeking  in  nowise  to 
interfere  with  the  enjoyment  of  their  franchise.  *  *  *  The  Com- 
modore was  run  openly  and  avowedly  as  a  ferryboat ;   that  was  her 

business.     The  injunction  as  to  her  and  her  business  was  correct. 

*     *     * 

"Rights  of  commerce  give  no  authority  to  their  possessor  to  invade 
the  rights  of  property.  He  cannot  use  a  bridge,  a  canal,  or  a  railroad 
paying  the  fixed  rate  of  compensation.  He  cannot  use  a  ware- 
house or  vehicle  of  transportation  belonging  to  another  without  the 
owner's  consent.  No  more  can  he  invade  the  ferry  franchise  of  an- 
other without  authority  from  the  holder.  The  vitality  of  such  a  fran- 
chise lies  in  its  exclusiveness.  The  moment  the  right  becomes  com- 
mon, the  franchise  ceases  to  exist.  We  have  shown  that  it  is  proper- 
ty, and,  as  such,  rests  upon  the  same  principle  which  lies  at  the  foun- 
dation of  all  other  property. 

"Undoubtedly,  the  states,  in  conferring  ferry  rights,  may  pass  laws 
so  infringing  the  commercial  power  of  the  nation  that  it  would  be  the 
duty  of  this  court  to  annul  or  control  them.  13  How.  519,  14  L.  Ed. 
249,  Wheeling  Bridge  Case.  The  function  is  one  of  extreme  delicacy, 
and  only  to  be  performed  where  the  infraction  is  clear.  The  ferrv  laws 
in  question  in  this  case  are  not  of  that  character.  We  find  nothing  in 
them  transcending  the  legitimate  exercise  of  the  legislative  power  of 
the  state.  *  *  *  There  has  been  now  nearly  three-quarters  of  a 
century  of  practical  interpretation  of  the  Constitution.  During  all 
that  time,  as  before  the  Constitution  had  its  birth,  the  states  have  ex- 
ercised the  power  to  establish  and  regulate  ferries ;  Congress  never. 
We  have  sought  in  vain  for  any  act  of  Congress  which  involves  the 
exercise  of  this  power.  That  the  authority  lies  within  the  scope  of 
'that  immense  mass'  of  undelegated  powers  which  'are  reserved  to  the 
states  respectively,'  we  think  too  clear  to  admit  of  doubt. 

"We  place  our  judgment  wholly  upon  that  ground."* 

i  See  Starln  v.  New  York,  115  U.  S.  248,  250,  254,  257,  258,  6  Sap.  Ct  28. 
29  L  Ed.  388  (1885)  as  to  frequency  of  trips  thai  distinguish  "ferrying"  from 
"coasting." 

I  In  St  Clair  County  v.  Interstate  Transfer  Co.,  1H-J  r.  S.  454,  466,  470.  2» 
Sup.  Ct.  300,  304,305,48  r..  Ed.  518(1904),  the  requirement  of  an  Illinois  license 
for  a  Mississippi  river  railroad  ear  ferry  was  beld  invalid.  After  dls 
the  leading  eases  upon  state  ferry  regulations.  Fanning  v.  Gregolre,  16  How 
524,  534,  it  L.  Ed.  1043  (1863);  Conway  v.  Taylor,  above;  Covington  &  C. 
Co.  v.  Kentucky,  154  t".  S.  204,  11  Sup.  Ct  1087,  38  I..  Ed.  062  (1894) 
Kerry  Co.  v.  E.  St.  Louis,  107  U.  S.  365,  2  Sup.  Ct  257,  27  I..  Ed.  419 
11883);    and  Gloucester  Ferry  Co,  v.  Pennsylvania,  ante,  p.  1098,  White,  J., 

said  : 

"Conceding,  arguendo,  that  the  police  power  of  a  state  extends  to  the  es- 
tablishment regulation,  and  licensing  of  ferries  on  a  navigable  stream,  belug 

the  boundary  between  two  states,  noi (  the  cases  justify  the  proposition 

tii.it  such  power  embraces  transportation  by  water  across  such  a  river  which 
does  not  constitute  a  ferry  in  a  strict  technical  sense.     In  that  Bense  'a  ferry 


1146  THE  FEDERAL  GOVERNMENT  (Part  3 


INTERNATIONAL  TEXT-BOOK  CO.  v.  PIGG  (1910)  217  U. 
S.  91,  108-112,  30  Sup.  Ct.  481,  54  L.  Ed.  678,  24  L.  R.  A.  (N.  S.) 
493,  18  Ann.  Cas.  1103,  Mr.  Justice  Harlan  (for  facts  and  dissenting 
judges,  see  ante,  pp.  1064-1066) : 

"Was  it  competent  for  the  state  to  prescribe,  as  a  condition  of  the 
right  of  the  Text-Book  Company  to  do  interstate  business  in  Kansas, 
such  as  was  transacted  with  Pigg,  that  it  should  prepare,  deliver,  and 
file  with  the  secretary' of  state  the  statement  mentioned  in  §  1283  ?  The 
above  question  must  be  answered  in  the  negative  upon  the  authority 
of  former  adjudications  by  this  court.  A  case  in  point  is  Crutcher  v. 
Kentucky,  141  U.  S.  47,  56,  57,  35  L.  Ed.  649,  652,  11  Sup.  Ct.  851, 
853,  854,  often  referred  to  and  never  qualified  by  any  subsequent  deci- 
sion. That  case  arose  under  a  statute  of  Kentucky  regulating  agen- 
cies of  foreign  express  companies.  The  statute  required,  as  ajcondi- 
tion  of  the  right  of  the  agent  of  an  express  company  not  incorporated 
by  the  laws  of  Kentucky,  to  do  business  in  that  commonwealth,  [it]  to 
take  out  a  license  from  the  state  auditor,  and  to  make  and  file  in  the 
auditor's  office  a  statement  showing  that  the  company  had  an  actual 
capital  of  a  given  amount,  either  in  cash  or  in  safe  investments,  exclu- 
sive of  costs.  These  requirements  were  held  by  this  court  to  be  in  vio- 
lation of  the  Constitution  of  the  United  States  in  their  application  to 
foreign  corporations  engaged  in  interstate  commerce. 

"The  court  said :  'If  the  subject  was  one  which  appertained  to  the 
jurisdiction  of  the  state  legislature,  it  may  be  that  the  requirements 
and  conditions  of  doing  business  within  the  state  would  be  promotive 
of  the  public  good.  It  is  clear,  however,  that  it  would  be  a  regulation 
of  interstate  commerce  in  its  application  to  corporations  or  associa- 
tions engaged  in  that  business ;  and  that  is  a  subject  which  belongs 
to  the  jurisdiction  of  the  national,  and  not  the  state,  legislature.  Con- 
gress would  undoubtedly  have  the  right  to  exact  from  associations  of 
that  kind  any  guaranties  it  might  deem  necessary  for  the  public  securi- 
ty, and  for  the  faithful  transaction  of  business ;  and  as  it  is  within  the 
province  of  Congress,  it  is  to  be  presumed  that  Congress  has  done,  or 
will  do,  all  that  is  necessary  and  proper  in  that  regard.     Besides,  it  is 

is  a  continuation  of  the  highway  from  one  side  of  the  water  over  which  it 
passes  to  the  other,  and  is  for  transportation  of  passengers  or  of  travelers 
with  their  teams  and  vehicles  and  such  other  property  as  they  may  carry  or 
have  with  them.'     •     •     * 

"Because  we  have,  arguendo,  rested  our  conclusion  In  this  case  upon  the 
assumption  that  the  respective  states  have  the  power  to  regulate  ferries  over 
navigable  rivers  constituting  boundaries  between  states,  we  must  not  be  un- 
derstood as  deciding  that  that  doctrine,  which  undoubtedly  finds  support  in 
the  opinions  announced  In  Fanning  v.  Gregoire  and  Conway  v.  Taylor,  has  not 
been  modified  by  the  rule  subsequently  laid  down  in  the  Gloucester  Ferry  and 
the  Covington  Bridge  Cases.  As  this  case  has  not  required  us  to  enter  into 
those  considerations  we  have  not  done  so." 

See,  also,  N.  T.  Central,  etc.,  Ry.  v.  Hudson  Co.,  227  U.  S.  248,  33  Sup.  Ct. 

269,  57  L.  Ed.  (1913)  (can  state  regulate  Interstate  ferry  rates,  In  absence 

of  federal  action?). 


Ch.  18)  REGULATION    OF    COKMH&Cfl  1"' 

not  to  be  presumed  that  the  state  of  its  origin  has  neglected  to  require 
from  any  such  corporation  proper  guaranties  as  to  capital  and  other 
securities  necessary  for  the  public  safety.  If  a  partnership  firm  of  in- 
dividuals should  undertake  to  carry  on  the  business  of  interstate  com- 
merce between  Kentucky  and  other  states,  it  would  not  be  within  the 
province  of  the  state  legislature  to  exact  conditions  on  which  they 
should  carry  on  their  business,  nor  to  require  them  to  take  out  a  li- 
cense therefor.  To  carry  on  interstate  commerce  is  not  a  franchise  or 
a  privilege  granted  by  the  state;  it  is  a  right  which  every  citizen  of 
the  United  States  is  entitled  to  exercise  under  the  Constitution  and 
laws  of  the  United  States ;  and  the  accession  of  mere  corporate  facili- 
ties, as  a  matter  of  convenience  in  carrying  on  their  business,  cannot 
have  the  effect  of  depriving  them  of  such  right,  unless  Congress  should 
see  fit  to  interpose  some  contrary  regulation  on  the  subject.'     *     *     * 

"Further,  in  the  same  case:  'We  do  not  think  that  the  difficulty  is 
at  all  obviated  by  the  fact  that  the  express  company,  as  incidental  to 
its  main  business  (which  is  to  carry  goods  between  different  states), 
does  also  some  local  business  by  carrying  goods  from  one  point  to  an- 
other within  the  state  of  Kentucky.  This  is,  probably,  quite  as  much 
for  the  accommodation  of  the  people  of  that  state  as  for  the  advan- 
tage of  the  company.  But  whether  so  or  not,  it  does  not  obviate  the 
objection  that  the  regulation  as  to  license  and  capital  stock  are  imposed 
as  conditions  on  the  company's  carrying  on  the  business  of  interstate 
commerce,  which  was  manifestly  the  principal  object  of  its  organiza- 
tion. These  regulations  are  clearly  a  burden  and  a  restriction  upon 
that  commerce.  Whether  intended  as  such  or  not,  they  operate  as 
such.'    *    *    * 

"In  this  connection  it  is  to  be  observed  that  by  the  statute  the  doors 
of  Kansas  courts  are  closed  against  the  Text-Book  Company,  unless  it 
first  obtains  from  the  secretary  of  state  a  certificate  showing  that  the 
statement'  mentioned  in  §  1283  has  been  properly  made.  In  other 
words,  although  the  Text-Book  Company  may  have  a  valid  contract 
with  a  citizen  of  Kansas,  one  directly  arising  out  of  and  connected 
with  its  interstate  business,  the  statute  denies  its  right  to  invoke  the 
authority  of  a  Kansas  court  to  enforce  its  provisions  unless  it  does 
what  we  hold  it  was  not,  under  the  Constitution,  bound  to  do ;  namely, 
make,  deliver,  and  file  with  the  secretary  of  state  the  statement  re- 
quired by  §  1283.  If  the  state  could,  under  any  circumstances,  legally 
forbid  its  courts  from  taking  jurisdiction  of  a  suit  brought  by  a  cor- 
poration of  another  state,  engaged  in  interstate  business,  upon  a  valid 
contract  arising  out  of  such  business,  and  made  with  it  by  a  citizen  of 
Kansas,  it  could  not  impose  on  the  company,  as  a  condition  of  its  au- 
thority to  carry  on  its  interstate  business  in  Kansas,  that  it  shall  make, 
deliver,  and  file  that  statement  with  the  secretary  of  state,  and  obtain 
his  certificate  that  it  had  been  properly  made.  This  court  in  Chambers 
v.  Baltimore  &  O.  R.  Co.,  207  U.  S.  142,  148.  52  L.  Ed.  143,  146.  28 


1148  THE  FEDERAL  GOVERNMENT  (Part  3 

Sup.  Ct.-34,  *  *  *  said:  *  *  *  'The  right  to  sue  and  defend 
in  the  courts  is  the  alternative  of  force.  In  an  organized  society  it  is 
the  right  conservative  of  all  other  rights,  and  lies  at  the  foundation  of 
orderly  government.  It  is  one  of  the  highest  and  most  essential  privi- 
leges of  citizenship.'     *     *     * 

"It  is  the  established  doctrine  of  this  court  that  a  state  may  not,  in 
any  form  or  under  any  guise,  directly  burden  the  prosecution  of  in- 
terstate business.  But  such  a  burden  is  imposed  when  the  corporation 
of  another  state,  lawfully  engaged  in  interstate  commerce,  is  required, 
as  a  condition  of  its  right  to  prosecute  its  business  in  Kansas,  to  make 
and  file  a  statement  setting  forth  certain  facts  which  the  state,  con- 
fessedly, could  not  control  by  legislation."1 

[The  court  held  that,  as  a  matter  of  statutory  construction,  the  con- 
dition precedent  to  suing  in  the  Kansas  courts  failed  with  the  condi- 
tion precedent  to  doing  business  in  the  state,  not  being  intended  to  be 
separately  enforced.] 


GILMAN  v.  PHILADELPHIA. 
(Supreme  Court  of  United  States,  1S66.    3  Wall.  713,  18  L.  Ed.  OG.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Eastern  Dis- 
trict of  Pennsylvania.  Under  state  authority,  Philadelphia  was  about 
to  construct  a  bridge  across  the  Schuylkill  river,  a  navigable  tidal 
stream  running  through  the  city,  and  wholly  within  Pennsylvania.  It 
was  to  be  30  feet  high,  without  draws,  and  vessels  with  masts  could 
not  pass  it.  Gilman  of  New  Hampshire  owned  coal  wharves  just 
above  the  proposed  bridge,  access  to  which  would  be  seriously  im- 
paired by  the  bridge,  and  he  sought  an  injunction  against  its  construc- 
tion, which  was  denied  by  the  lower  court.] 

Mr.  Justice   Swayne.     *     *     *     Commerce   includes    navigation. 

i  Accord:  Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S.  727,  5  Sup.  Ct.  739,  28 
L.  Ed.  1137  (1885)  (semble) ;  Buck  Stove  Co.  v.  Viewers,  226  TJ.  S.  205,  33  Sup. 
Ct.  41,  57  L.  Ed. (1912).  So,  requiring  payment  of  state  taxes,  as  a  condi- 
tion of  engaging  in  interstate  commerce,  see  ante,  p.  1129,  note.  See,  also,  Sin- 
not  v.  Davenport,  22  How.  227,  16  L.  Ed.  243  (1859)  (condition  inconsistent 
with  federal  coasting  license) ;  Pensacola  Teleg.  Co.  v.  W.  U.  Teleg.  Co.,  96 
U.  S.  1,  24  L.  Ed.  708  (1878)  (state  monopoly  inconsistent  with  federal  statute). 

"The  only  limitation  upon  this  power  of  the  state  to  exclude  a  foreign  cor- 
poration from  doing  business  within  its  limits  or  hiring  offices  for  that  pur- 
pose, or  to  exact  conditions  for  allowing  the  corporation  to  do  business  or 
hire  offices  there,  arises  where  the  corporation  is  iu  the  employ  of  the  federal 
government,  or  where  its  business  is  strictly  commerce,  interstate  or  foreign. 
The  control  of  such  commerce  being  in  the  federal  government,  is  not  to  be 
restricted  by  state  authority." — Field,  J.,  in  Pembina  Mining  Co.  v.  Pennsyl- 
vania, 125  TJ.  S.  181,  190,  8  Sup.  Ct.  737,  741,  31  L.  Ed.  650  (1SS8).  See,  also. 
Hooper  v.  California,  155  TJ.  S.  648,  652,  653,  15  Sup.  Ct.  207,  39  L.  Ed.  297 
(1*95). 

State  License  fob  Business  Incidental  to  National  Commerce. — See 
W.  W.  Cargill  Co.  v.  Minnesota,  ISO  U.  S.  452,  470,  21  Sup.  Ct.  423,  45  L.  Ed. 
619  (1901)  (license  for  grain  warehouse). 


Ch.  18)  REGULATION    OF   COMMERCE  1149 

The  power  to  regulate  commerce  comprehends  the  control  for  that  pur- 
pose, and  to  the  extent  necessary,  of  all  the  navigable  waters  of  the 
United  States  which  are  accessible  from  a  state  other  than  those  in 
which  they  lie.  For  this  purpose  they  are  the  public  property  of  the 
nation,  and  subject  to  all  the  requisite  legislation  by  Congress.  This 
necessarily  includes  the  power  to  keep  them  open  and  free  from  any 
obstruction  to  their  navigation,  interposed  by  the  states  or  otherwise ; 
to  remove  such  obstructions  when  they  exist ;  and  to  provide,  by  such 
sanctions  as  they  may  deem  proper,  against  the  occurrence  of  the  evil 
and  for  the  punishment  of  offenders.  For  these  purposes,  Congress 
possesses  all  the  powers  which  existed  in  the  states  before  the  adoption 
of  the  national  Constitution,  and  which  have  always  existed  in  the 
Parliament  in  England.  It  is  for  Congress  to  determine  when  its  full 
power  shall  be  brought  into  activity,  and  as  to  the  regulations  and  sanc- 
tions which  shall  be  provided. 

A  license  under  the  act  of  1793,  to  engage  in  the  coasting  trade, 
carries  with  it  right  and  authority.  "Commerce  among  the  states"  does 
not  stop  at  a  state  line.  Coming  from  abroad  it  penetrates  wherever 
it  can  find  navigable  waters  reaching  from  without  into  the  interior, 
and  may  follow  them  up  as  far  as  navigation  is  practicable.  Wher- 
ever "commerce  among  the  states"  goes,  the  power  of  the  nation,  as 
.represented  in  this  court,  goes  with  it  to  protect  and  enforce  its  rights. 
There  can  be  no  doubt  that  the  0  listing  trade  may  be  carried  on  be- 
yond where  the  bridge  in  question  is  to  be  built. 

We  will  now  turn  our  attention  to  the  rights  and  powers  of  the 
states  which  are  to  be  considered.  The  national  government  posses'ses 
no  powers  but  such  as  have  been  delegated  to  it.  The  states  hate  all 
but  such  as  they  have  surrendered.  The  power  to  authorize  the  build- 
ing of  briflges  is  not  to  be  found  in  the  federal  Constitution.  It  has 
not  been  taken  from  the  states.  It  must  reside  somewhere.  They  had 
it  before  the  Constitution  was  adopted,  and  they  have  it  still.  *  *  * 
The  power  to  regulate  commerce  covers  a  wide  field,  and  embraces  a 
great  variety  of  subjects.  Some  of  these  subjects  call  for  uniform 
rules  and  national  legislation ;  others  can  be  best  regulated  by  rules  • 
and  provisions  suggested  by  the  varying  circumstances  of  different  lo- 
calities, and  limited  in  their  operation  to  such  localities  respectively. 
To  this  extent  the  power  to  regulate  commerce  may  be  exercised  by 
the  states.  Whether  the  power  in  any  given  case  is  vested  exclusively 
in  the  general  government  depends  upon  the  nature  of  the  subject  to 
be  regulated.     *     *     * 

The  most  important  authority,  in  its  application  to  the  case  before 
us,  is  Willson  v.  Blackbird  Creek  Marsh  Co.  [ante,  p.  10/ 5. J  *  *  * 
This  opinion  came  from  the  same  "expounder  of  the  Constitution" 
who  delivered  the  earlier  and  more  elaborate  judgment  in  Gibbons  v. 
Ogden.  We  are  not  aware  that  the  soundness  of  the  principle  upon 
which  the  court  proceeded  has  been  questioned  in  any  later  case.     We 


1150  THE   FEDERAL  GOVERNMENT  (Part  3 

can  see  no  difference  in  principle  between  that  case  and  the  one  before 
us.  Both  streams  are  affluents  of  the  same  larger  river.  Each  is  en- 
tirely within  the  state  which  authorized  the  obstruction.  The  dissimi- 
larities are  in  facts  which  do  not  affect  the  legal  question.  Blackbird 
creek  is  the  less  important  water,  but  it  had  been  navigable,  and  the 
obstruction  was  complete.  If  the  Schuylkill  is  larger  and  its  com- 
merce greater,  on  the  other  hand,  the  obstruction  will  be  only  partial 
and  the  public  convenience,  to  be  promoted,  is  more  imperative.  In 
neither  case  is  a  law  of  Congress  forbidding  the  obstruction  an  ele- 
ment to  be  considered.  The  point  that  the  vessel  was  enrolled  and  li- 
censed for  the  coasting  trade  was  relied  upon  in  that  case  by  the  coun- 
sel for  the  defendant.  The  court  was  silent  upon  the  subject.  A  dis- 
tinct denial  of  its  materiality  would  not  have  been  more  significant.  It 
seems  to  have  been  deemed  of  too  little  consequence  to  require  notice. 
Without  overruling  the  authority  of  that  adjudication  we  cannot,  by 
our  judgment,  annul  the  law  of  Pennsylvania. 

It  must  not  be  forgotten  that  bridges,  which  are  connecting  parts  of 
turnpikes,  streets,  and  railroads,  are  means  of  commercial  transporta- 
tion, as  well  as  navigable  waters,  and  that  the  commerce  which  passes 
over  a  bridge  may  be  much  greater  than  would  ever  be  transported  on 
the  water  it  obstructs.  It  is  for  the  municipal  power  to  weigh  the  con- 
siderations which  belong  to  the  subject,  and  to  decide  which  shall  be 
preferred,  and  how  far  either  shall  be  made  subservient  to  the  other. 
The  states  have  always  exercised  this  power,  and  from  the  nature  and 
objects  of  the  two  systems  of  government  they  must  always  continue 
to  exercise  it,  subject,  however,  in  all  cases,  to  the  paramount  author- 
ity of  Congress,  whenever  the  power  of  the  state  shall  be  exerted  with- 
in the  sphere  of  the  commercial  power  which  belongs  to  the  nation. 

The  states  may  exercise  concurrent  or  independent  power  in  all  cas- 
es but  three:  1.  Where  the  power  is  lodged  exclusively  in  the  federal 
Constitution.  2.  Where  it  is  given  to  the  United  States  and  prohibited 
to  the  states.  3.  Where,  from  the  nature  and  subjects  of  the  power,  it 
must  necessarily  be  exercised  by  the  national  government  exclusively. 
The  power  here  in  question  does  not,  in  our  judgment,  fall  within  ei- 
ther of  these  exceptions.     *     *     * 

Congress  may  interpose,  whenever  it  shall  be  deemed  necessary,  by 
general  or  special  laws.  It  may  regulate  all  bridges  over  navigable 
waters,  remove  offending  bridges,  and  punish  those  who  shall  there- 
after erect  them.     *     *     * 

The  defendants  are  proceeding  in  no  wanton  or  aggressive  spirit. 
The  authority  upon  which  they  rely  was  given,  and  afterwards  delib- 
erately renewed  by  the  state.  The  case  stands  before  us  as  if  the  par- 
ties were  the  state  of  Pennsylvania  and  the  United  States.  The  river, 
being  wholly  within  her  limits,  we  cannot  say  the  state  has  exceeded 
the  bounds  of  her  authority.  Until  the  dormant  power  of  the  Con- 
stitution is  awakened  and  made  effective,  by  appropriate  legislation, 


Ch.  IS)  BBOULATION    OF   COMMERCE  1 1  ■"  1 

the  reserved  power  of  the  states  is  plenary,  and  its  exercise  in  good 
faith  cannot  be  made  the  subject  of  review  by  this  court.     *     *     * 
Decree  affirmed.1 

[Clifford,    J.,    gave   a   dissenting   opinion,    in    which   concurred 
Wayne  and  Davis,  JJ.] 

i  Accord:  The  Passaic  Bridges.  8  Wall.  782,  append.  16  E.  Ed.  799  (1807) 
(bridge);  Pound  v.  Turck,  95  U.  S.  459,  24  L.  Ed.  52S  (1878)  (dam);  Co.  of 
Mobile  v.  Kimball,  102  U.  S.  691,  20  L.  Ed.  238  (1881)  (harbor  Improv 
Escannba  Co.  v.  Chicago,  107  TJ.  S.  078,  2  Sup.  Ot,  185,  27  1..  Ed.  442  (1888) 
(bridge);  Willamette  Bdg.  Co.  v.  Hatch,  125  D.  S.  1,  8  Sup.  Ct.  811,  31  I.  Ed 
629  (1888)  (bridge);  Manigault  v.  Springs,  199  D.  S.  473,  26  Sup.  Ct.  127,  •"'» 
L.  Ed.  274  (1905)  (dam)  ;  No.  Shore  Co.  v.  Nicomen  Co.,  212  U.  S.  406,  29  Sup. 
Ct.  355.  53  E.  Ed.  574  (1909)   (tog  boom). 

By  acts  of  Congress  in  1S90  (20  Stat.  426,  454)  and  in  1899  (30  Stat.  1121, 
11..1  [TJ.  s.  Comp.  St.  1901,  p.  3540J)  the  erection  of  obstructions  in  navigable 
waters  of  the  United  States  is  forbidden,  unless  authorized  by  the  8i 
of  War.  For  the  construction  of  these  acts  see  Leovv  v.  D.  S.,  177  U.  S.  621, 
20  Sup.  Ct.  797.  44  L.  Ed.  914  (1900);  U.  S.  v.  Bellingham  Boom  Co.,  176  U. 
S.  211.  20  Sup.  Ct  343.  44  L.  Ed.  437  (1900);    Montgomery  v.  Portland,  190 

0.  S.  v.).  '_'.':  Sup.  Ct.  735.  47  E.  Ed.  905  (1903) ;   and  the  cases  cited  therein. 
Provisions  in  acts   of  Congress  admitting  stales   to  the  Union,    that   their 

navigable  waters  shall  be  common  highways  and  forever  free  to  all  United 

States  citizens,  do  not  forbid  physical  obstructions  but  only  v 

tions  that  would  hamper  commerce.     Willamette  Bdg.  Co.  v.  Hatch,  125  U.  S. 

1,  8  Sup.  Ct.  811,  31  L.  Ed.  629  (1888). 

That  Congress  has  established  a  port  of  entry  or  improved  navigation  upon 
a  stream  rines  not  sufficiently  indicate  Its  will  that  the  state  shall  not  ob- 
struct navigation  below  these  points.  The  Passaic  Bridges,  3  Wall.  782.  ap- 
pend. 10  E  Ed.  799  (1857);  Escanaba  Co.  v.  Chicago.  107  U.  S.  678,  2  Sup.  Ct. 
185,  27  E.  Ed.  112  (1883)  ;   Willamette  Bridge  Case,  above  cited. 

Tn  Pennsylvania  v.  Wheeling,  etc..  Bridge  Co.,  13  How.  518.  14  E.  Ed.  24!> 
(1852),  the  state  of  Pennsylvania  was  granted  an  Injunction  in  the  federal 
courts  against  the  maintenance,  under  the  authority  "f  I  be  state  of  Virginia, 
of  a  bridge  across  -the  Ohio  river  at  Wheeling,  of  such  height  that  at  high 
water  it  did  not  permit  the  passage  of  the  tall  chimneys  of  steamers  from 
Pittsburgh.  In  Willamette  Bdg.  Co.  v.  Hatch,  125  U.  S.  1,  15,  16,  8  Sup.  Ct 
811,  818,  819,  31  L.  Ed.  629  (18SS),  Oils  case  was  explained  as  follows  by 
Bradley,  J. : 

"In  that  case  this  court  had  original  jurisdiction  in  consequence  of  a  state 
being  a  party:   and  the  complainant,  the  state  of  Pennsylvania,  was  . 
to  invoke,  and  the  court  had  power  to  apply,  any  law  applicable  to  the  case, 
whether  state  law,  federal  law,  or  international  law.     The  bridge  bad  been 
authorized  by  the  legislature  of  Virginia,  whose  jurisdiction  exl 
the  whole  river  Ohio.     But  Virginia,  in  consenting  to   the  erection 
tueky  into  a  state,  had  entered  into  a  compact  with  regard  to  the  free  naviga- 
tion of  the  Ohio."  confirmed  by  the  act  of  Congress  Admitting  Kentucky  into 
the  Union,  which  the  court  held  to  be  violated  by  authorizing  the  bridge  to  be 
constructed  in  the  manner  it  was;  and  the  bridge,  e  i    Injuriously 

affected  a  supra-riparian  state  (Pennsylvania)  bordering  on  the  river,  contrary 
to  international  law. 

"Mr.  Justice  Grier,  In  the  Passaic  Bridge  Cases,  disposes  of  the  Wheeling 
Bridge  f'ase  as  follows:  'This  legislation  of  Virginia  being  pleaded  as  a  bar 
to  further  action  of  the  court  in  the  ease,  necessarily  raised  these  questions  : 
Could  Virginia  license  or  authorize  B  nuisance  on  a  public  river,  i 
which  rose  In  Pennsylvania,  and  passed  along  the  border  of  Virginia,  and 
which,  by  compart  between  the  stales,  was  declared  to  be  "free  and  common 
to  all  the  citizens  ot  the  United  States"?  if  Virginia  could  authorize  any  ob- 
struetion  at  all  to  the  channel  navigation,  she  could  stop  It  altogether,  and 

•See  Mr.  Stanton's  argument.  13  How.  623,  14  L.  Ed.  249;  1  Bloren'g  Laws  U.  S.  p.  JTC, 
art.  7— Rep. 


1152  TOE   FEDERAL  GOVERNMENT  (Part  3 


SMITH  v.  ST.  LOUIS  &  S.  W.  RY.  CO. 

(Supreme  Court  of  United   States.  1901.     181  U.  S.  248,  21  Sup.  Ct.  603,  45 
L.  Ed.  847.) 

[Error  to  the  Court  of  Civil  Appeals  of  Texas.  The  Texas  live- 
stock sanitary  commission  was  authorized  by  law  to  establish  quar- 
antine and  sanitary  regulations  for  the  protection  of  domestic  stock. 
It  was  made  their  duty  to  investigate  stock  diseases  alleged  to  exist 
and  to  adopt  preventive  measures.  In  June,  1897,  the  commission 
recited  that  it  had  reason  to  believe  that  anthrax  had  broken  out 
in  Louisiana  or  was  liable  to  do  so,  and  recommended  that  until  after 
November  15,  1897,  no  cattle,  horses,  or  mules  be  transported  thence 
into  Texas.  The  governor  proclaimed  this  regulation.  Plaintiff  sued 
defendant  railway  for  a  consequent  failure  to  deliver  to  him  in  Texas 
cattle  shipped  from  Louisiana.  The  Court  of  Civil  Appeals  gave 
judgment  for  the  defendant.] 

Mr.  Justice  McKenna.  *  *  *  To  what  extent  the  police  pow- 
er of  the  state  may  be  exerted  on  traffic  and  intercourse  with  the 
state,  without  conflicting  with  the  commerce  clause  of  the  Constitu- 
tion of  the  United  States,-  has  not  been  precisely  defined.  In  the 
case  of  Henderson  v.  New  York,  92  U.  S.  259,  sub  nom.  Henderson 
v.  Wickham,  23  L.  Ed.  543,  it  was  held  that  the  statute  of  the  state, 
which,  aiming  to  secure  indemnity  against  persons  coming  from  for- 
eign countries  becoming  a  charge  upon  the  state,  required  shipown- 
ers to  pay  a  fixed  sum  for  each  passenger, — that  is,  to  pay  for  all 
passengers, — not  limiting  the  payment  to  those  who  might  actually 
become  such  charge, — was  void.  Whether  the  statute  would  have 
been  valid  if  so  limited  was  not  decided. 

In  Chy  Lung  v.  Freeman,  92  U.  S.  275,  23  L.  Ed.  550,  a  statute 
declaring  the  same  purpose  as  the  New  York  statute,  and  apparently 
directed  against  persons  mentally  and  physically  infirm,  and  against 
convicted  criminals  and  immoral  women,  was  also  declared  void,  be- 
cause it  imposed  conditions  on  all  passengers,  and  invested  a  dis- 

divert  the  whole  commerce  of  that  great  river  from  the  state  of  Pennsylvania, 
and  compel  it  to  seek  its  outlet  by  the  railroads  and  other  public  improve- 
ments of  Virginia.  If  she  had  the  sovereign  right  over  this  boundary  river 
claimed  by  her,  there  would  be  no  measure  to  her  power.  She  would  have  the 
same  right  to  stop  its  navigation  altogether  as  to  stop  it  ten  days  in  a  year. 
If  the  plea  was  admitted,  Virginia  could  make  Wheeling  the  head  of  naviga- 
tion on  the  Ohio,  and  Kentucky  might  do  the  same  at  Louisville,  having  the 
same  right  over  the  \vhole  river  which  Virginia  can  claim.  This  plea,  there- 
fore, presented  not  only  a  great  question  of  international  law,  but  whether 
rights  secured  to  the  people  of  the  United  States,  by  compact  made  before  the 
Constitution,  were  held  at  the  mercy  or  caprice  of  every  or  any  of  the  states 
to  which  the  river  was  a  boundary.  The  decision  of  the  court  denied  this 
right.'  " 

After  the  decree  in  the  Wheeling  Bridge  Case,  Congress  legalized  the  bridge. 
See  the  same  case  in  IS  How.  421,  15  L.  Ed.  435  (1S55).  So  also  The  Clinton 
Bridge,  10  Wall.  454,  19  L.  Ed.  969  (1870). 


Ch.  18)  REGULATION    OF   COMMERCE  1153 

cretion  in  officers  which  could  be  exercised  against  all  passengers. 
The  court,  by  Mr.  Justice  Miller,  said: 

"We  are  not  called  upon  by  this  statute  to  decide  for  or  against 
the  right  of  a  state,  in  the  absence  of  legislation  by  Congress,  to  pro- 
tect herself  by  necessary  and  proper  laws  against  paupers  and  con- 
victed criminals  from  abroad ;  nor  to  lay  down  the  definite  limit  of 
such  right  if  it  exist.1  Such  a  right  can  only  arise  from  a  vital  neces- 
sity for  its  exercise,  and  cannot  be  carried  beyond  the  scope  of  that 
necessity.  When  a  state  statute  limited  to  provisions  necessary  and 
appropriate  to  that  object  alone  shall,  in  a  proper  controversy,  come 
before  us,  it  will  be  time  enough  to  decide  that  question." 

In  Hannibal  &  St.  J.  R.  Co.  v.  Musen,  95  U.  S.  465.  24  L.  Ed. 
527,  a  statute  of  Missouri  which  provided  that  "no  Texas,  Mexican, 
or  Indian  cattle  shall  be  driven  or  otherwise  conveyed  into  or  remain 
in  any  county  in  this  state  between  the  1st  day  of  March  and  the  1st 
day  of  November  in  each  year,  by  any  person  or  persons  whatso- 
ever," was  held  to  be  in  conflict  with  the  clause  of  the  Constitution 
which  gives  to  Congress  the  power  to  regulate  interstate  commerce. 

The  case  was  an  action  for  damages  against  the  railroad  company 
for  bringing  cattle  into  the  state  in  violation  of  the  act.  A  distinc- 
tion was  made  between  a  proper  and  an  improper  exertion  of  the 
police  power  of  the  state.  The  former  was  confined  to  the  prohibi- 
tion of  actually  infected  or  diseased  cattle  and  to  regulations  not 
transcending  such  prohibition.  The  statute  was  held  not  to  be  so 
confined,  and  hence  was  declared  invalid.     *     *     * 

In  Schollenberger  v.  Pennsylvania,  171  U.  S.  1,  43  L.  Ed. 
Sup.  Ct.  757,  some  prior  cases  were  reviewed,  and  the  court,  speak- 
ing by  Mr.  Justice  Peckham,  said : 

"The  general  rule  to  be  deduced  from  the  decisions  of  this  court  is 
that  a  lawful  article  of  commerce  cannot  be  wholly  excluded  from 
importation  into  a  state  from  another  state  where  it  was  manufac- 
tured or  grown.  A  state  has  power  to  regulate  the  introduction  of 
any  article,  including  a  food  product,  so  as  to  insure  purity  of  the 
article  imported,  but  such  police  power  does  not  include  the  total 
exclusion  even  of  an  article  of  food. 

"In  Minnesota  v.  Barber,  136  U.  S.  313,  34  L.  Ed.  455,  3  Interst. 

i  "A  stnte  •  •  •  may  exclude  from  its  limits  convicts,  paupers,  idiots 
nud  lunatics,  and  persons  likely  to  become  apt  .  as  well  as  | 

afflicted   by  contagious  or  Infectious  diseases."     Railroad   Go.   v.   Hn 
0.  s.  465,  -171,  24   I,.  Ed.  527  (1878)   bj    Strong,  J.  (semble).     So  Pluniley  v. 
ii  isetts,  l."..".  D.  s.  461,  its.  15  gup.  Ct.  154,  ::'.'  1..  Ed.  223  (1894);   Moon 
v.  Illinois,  m  How.  13,  it  1..  Ed.  306  (1852)  (fugitive  slaves— semble). 

ieasures  not  amounting  i"  exclusion.  Mayor  v.  Miln,  u 
Pet  102,  1 1L'.  '.)  I,.  Ed.  648  (1837);  Passenger  Cases,  7  How.  283,  no,  \-:  p. 
Ed.  7ii-j  (1849).  in  Compagnie  Franeaise,  etc.,  v.  La.  Bd.  of  Health,  is.;  r. 
s.  880,  22  sup.  ct.  mi,  16  i..  Bd.  1209  (1902),  a  state  regulation  was  upheld 
excluding  healthy  persons,  whether  from  wiihin  or  without  the  sUite,  from 
districts  infested  with  contagious  or  infectious  disease. 
Ham.  Const  L. — 73 


1154  THE   FEDERAL   GOVERNMENT  (Part  3 

Com.  R.  185,  10  Sup.  Ct.  862,  it  was  held  that  an  inspection  law  re- 
lating to  an  article  of  food  was  not  a  rightful  exercise  of  the  police 
power  of  the  state,  if  the  inspection  prescribed  were  of  such  a  char- 
acter, or  if  it  were  burdened  with  such  conditions,  as  would  wholly 
prevent  the  introduction  of  the  sound  article  from  other  states.  This 
was  held  in  relation  to  the  slaughter  of  animals  whose  meat  was  to 
be  sold  as  food  in  the  state  passing  the  so-called  inspection  law.  The 
principle  was  affirmed  in  Brimmer  v.  Rcbman,  138  U.  S.  78,  34  L. 
Ed.  862,  3  Interst.  Com.  R.  485,  11  Sup.  Ct.  213;  and  in  Scott  v. 
Donald,  165  U.  S.  58,  97,  41  L.  Ed.  632,  644,  17  Sup.  Ct.  265." 

The  exclusion  in  the  case  at  bar  is  not  as  complete  as  in  the  cited 
cases.  That,  however,  makes  no  difference  if  it  is  within  their  prin- 
ciple; and  their  principle  does  not  depend  upon  the  number  of  states 
which  are  embraced  in  the  exclusion.  It  depends  upon  whether  the 
police  power  of  the  state  has  been  exerted  beyond  its  province, — ex- 
erted to  regulate  interstate  commerce, — exerted  to  exclude,  without 
discrimination,  the  good  and  the  bad,  the  healthy  and  the  diseased, 
and  to  an  extent  beyond  what  is  necessary  for  any  proper  quarantine. 
The  words  in  italics  express  an  important  qualification.  The  preven- 
tion of  disease  is  the  essence  of  a  quarantine  law.  Such  law  is  di- 
rected, not  only  to  the  actually  diseased,  but  to  what  has  become  ex- 
posed to  disease.  In  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Louisiana 
Bd.  of  Health,  118  U.  S.  455,  30  L.  Ed.  237,  6  Sup.  Ct.  1114,  the 
quarantine  system  of  Louisiana  was  sustained.  It  established  a  quar- 
antine below  New  Orleans,  provided  health  officers  and  inspection 
officers,  and  fees  for  them,  to  be  paid  by  the  ships  detained  and  in- 
spected. The  system  was  held  to  be  a  proper  exercise  of  the  police 
power  of  the  state  for  the  protection  of  health,  though  some  of  its 
rules  amounted  to  regulations  of  commerce  with  foreign  nations  and 
among  the  states.  In  Kimmish  v.  Ball,  129  U.  S.  217,  32  L.  Ed.  695, 
2  Interst.  Com.  R.  407,  9  Sup.  Ct.  277,  certain  sections  of  the  laws 
of  Iowa  were  passed  on.  One  of  them  imposed  a  penalty  upon  any 
person  who  should  bring  into  the  state  any  Texas  cattle,  unless  they 
had  been  wintered  at  least  one  winter  north  of  the  southern  boundary 
of  the  state  of  Missouri  or  Kansas ;  or  should  have  in  his  possession 
any  Texas  cattle  between  the  1st  day  of  November  and  the  1st  day 
of  April  following.  Another  section  made  any  person  having  in  his 
possession  such  cattle  liable  for  any  damages  which  might  accrue 
from  allowing  them  to  run  at  large,  "and  thereby  spreading  the  dis- 
ease among  other  cattle,  known  as  the  Texas  fever,"  and  there  was, 
besides,  criminal  punishment.  The  court  did  not  pass  upon  the  1st 
section.  In  commenting  upon  the  2d  some  pertinent  remarks  were 
made  on  the  facts  which  justified  the  statute,  and  the  case  of  Hanni- 
bal &  St.  J.  R.  Co.  v.  Husen,  95  U.  S.  465,  24  L.  Ed.  527,  was  ex- 
plained. It  was  said  that  the  case  "interpreted  the  law  of  Missouri 
as  saying  to  all  transportation  companies :  'You  shall  not  bring  into 
the  state  any  Texas  cattle,  or  any  Mexican  cattle,  or  Indian  cattle,  be- 


Ch.  18)  REGULATION    OF    COMMEUCB  1155 

twccn  March  1st  and  December  1st  in  any  year,  no  matter  whether 
they  are  free  from  disease  or  not,  no  matter  whether  they  may  do 
an  injury  to  the  inhabitants  of  the  state  or  not ;  and  if  you  do  bring 
them  in,  even  for  the  purpose  of  carrying  them  through  the  state 
without  unloading  them,  you  shall  be  subject  to  extraordinary  lia- 
bilities.' Page  473,  L.  Ed.  531.  Such  a  statute,  the  court  held,  was 
not  a  quarantine  law,  nor  an  inspection  law,  but  a  law  which  inter- 
fered with  interstate  commerce,  and  therefore  invalid.  At  the  same 
time  the  court  admitted  unhesitatingly  that  a  state  may  pass  laws  to 
prevent  animals  suffering  from  contagious  or  infectious  diseases  from 
entering  within  it.  Page  472,  L.  Ed.  530.  No  attempt  was  made 
to  show  that  all  Texas,  Mexican,  or  Indian  cattle  coming  from  the 
malarial  districts  during  the  months  mentioned  were  infected  with 
the  disease,  or  that  such  cattle  were  so  generally  infected  that  it 
would  have  been  impossible  to  separate  the  healthy  from  the  diseased. 
Had  such  proof  been  given,  a  different  question  would  have  been 
presented  for  the  consideration  of  the  court.  Certainly  all  animals 
thus  infected  may  be  excluded  from  the  state  by  its  laws  until  they 
are  cured  of  the  disease,  or  at  least  until  some  mode  of  transporting 
them  without  danger  of  spreading  it  is  devised." 

In  Missouri,  K.  &  T.  R.  Co.  v.  Haber,  169  U.  S.  613,  42  L.  Ed. 
878,  18  Sup.  Ct.  488,  the  Husen  Case  was  again  commented  upon, 
and  what  the  law  of  Missouri  was  and  was  not  was  again  declared. 
A  statute  of  Kansas,  however,  which  made  any  person  who  shall 
drive  or  ship  into  the  state  "any  cattle  liable  or  capable  of  communi- 
cating Texas,  splenetic  or  Spanish  fever  to  any  domestic  cattle  of 
this  state  shall  be  liable  *  *  *  for  *  *  *  damages,"  was 
held  not  to  be  a  regulation  of  commerce.  It  was  also  held  that  the 
statute  was  not  repugnant  to  the  act  of  Congress  of  May  29,  1884 
(23  Stat,  at  L.  31,  chap.  60  [U.  S.  Comp.  St.^1901,  p.  299]),  known 
as  the  Animal  Industry  Act. 

What,  however,  is  a  proper  quarantine  law — what  a  proper  inspec- 
tion law  in  regard  to  cattle — has  not  been  declared.  Under  the  guise 
of  either  a  regulation  of  commerce  will  not  be  permitted.  Any  pre- 
tense or  masquerade  will  be  disregarded,  and  the  true  purpose  of  a 
statute  ascertained.  Henderson  v.  Xew  York,  92  U.  S.  259,  sub 
nom.  Henderson  v.  Wickham,  23  L.  Ed.  543,  and  Chy  Lung  v.  Free- 
man, 92  U.  S.  275,  23  L.  Ed.  550.  But  we  are  not  now  put  to  any 
inquiry  of  that  kind.  The  good  faith  and  sincerity  of  the  Texas  of- 
ficers cannot  be  doubted,  and  the  statutes  under  which  they  acted 
cannot  be  justifiably  complained  of.  The  regulations  prescribed  are 
complained  of,  but  are  they  not  reasonably  adaptive  to  the  purpose 
of  the  statutes, — not  in  excess  of  it?  Quarantine  regulations  cannot 
be  the  same  for  cattle  as  for  persons,  and  must  vary  with  the  nature 
of  the  disease  to  be  defended  against.  As  the  court  of  civil  appeals 
said:   "The  necessities  of  such  cases  often  require  prompt  action.    If 


1156  THE    FEDERAL   GOVERXMl'.XT  (Part  3 

too  long  delayed  the  end  to  be  attained  by  the  exercise  of  the  power 
to  declare  a  quarantine  may  be  defeated  and  irreparable  injury  done." 

It  is  urged  that  it  does  not  appear  that  the  action  of  the  live-stock 
sanitary  commission  was  taken  on  sufficient  information.  It  does 
not  appear  that  it  was  not,  and  the  presumption  which  the  law  at- 
taches to  the  acts  of  public  officers  must  obtain  and  prevail.  The 
plaintiff  in  error  relies  entirely  on  abstract  right,  which  he  seems  to 
think  cannot  depend  upon  any  circumstances,  or  be  affected  by  them. 
This  is  a  radical  mistake.  It  is  the  character  of  the  circumstances 
which  gives  or  takes  from  a  law  or  regulation  of  quarantine  a  legal 
quality.  In  some  cases  the  circumstance  would  have  to  be  shown  to 
sustain  the  quarantine,  as  was  said  in  Kimmish  v.  Ball,  129  U.  S. 
217,  32  L.  Ed.  695,  2  Interst.  Com.  R.  407,  9  Sup.  Ct.  277.  But  the 
presumptions  of  the  law  are  proof,  and  such  presumptions  exist  in 
the  pending  case,  arising  from  the  provisions  of  and  the  duties  en- 
joined by  the  statute,  and  sanction  the  action  of  the  sanitary  commis- 
sion and  the  governor  of  the  state.  If  they  could  have  been,  they 
should  have  been  met  and  overcome,  and  the  remarks  of  the  court  oi 
civil  appeals  become  pertinent : 

"The  facts  in  this  case  are  not  disputed.  The  plaintiff  sues  as  for 
a  conversion,  because  of  a  refusal  to  deliver  his  cattle  at  Fort  Worth. 
It  is  necessary  to  his  recovery  that  he  show  that  it  was  the  legal  duty 
of  the  defendant  company  to  make  such  delivery.  It  is  for  the  breach 
of  this  alleged  duty  he  sues;  yet  it  nowhere  appears  from  the  rec- 
ord that  before  the  quarantine  line  in  question  was  established  the 
sanitary  commission  did  not  make  the  most  careful  and  thorough 
investigation  into  the  necessity  therefor,  if,  indeed,  that  matter  could 
in  any  event  be  inquired  into.  So  far  as  the  record  shows,  every 
animal  of  the  kind  prohibited  in  the  state  of  Louisiana  may  have 
been  actually  affected  with  charbon  or  anthrax;  and  it  is  conceded 
that  this  is  a  disease  different  from  Texas  or  splenetic  fever,  and  that 
it  is  contagious  and  infectious  and  of  the  most  virulent  character." 

Judgment  affirmed.2 

[Harlan  and  Brown,  JJ.,  gave  dissenting  opinions,  with  the  for- 
mer of  which  White,  J.,  concurred.] 

nl:  Rasmussen  v.  Idaho,  1S1  U.  S.  198,  21  Sup.  Ct.  591,  45  L.  Ed. 
820  (1901).  See  Louisiana  v.  Texas,  176  U.  S.  1,  21,  20  Sup.  Ct.  251.  44  L. 
Ed.  347  (1900).  Of  course  inspection,  as  a  condition  of  the  admission  of  sus- 
als,  is  valid.  Eeid  v.  Colorado,  IS"  TJ.  S.  137,  23  Sup.  Ct.  92,  47 
I..  Ed.  in--  (1902)  ;  Ashell  v.  Kansas,  209  TJ.  S.  251,  28  Sup.  Ct.  485,  52  L.  Ed. 
778,  II  Ann.  Cas.  1101  (190S). 

In  Morgan's   S.  S.   Co.   v.  La.  Board  of  Health.  118  TJ.  S.  455,  463-467,   6 
Sup.  Ct.  1114.  111S,  1119,  30  L.  Ed.  237  (1SSG).  Miller,  J.,  said   (upholding  a 
antine  at  New  Orleans): 
"Is  Hie  law  under  consideration  void  as  a  regulation  of  commerce?     Un- 
doubtedly it  is.  in  some  sense,  a  regulation  of  commerce.     It  arrests  a  vessel 
age  which  may  have  been  a  long  one.     It  may  affect  commerce  among 
the  sintes  when  the  vessel  is  coming  from  some  other  state  of  the  Union  than 
Louisiana,  and  it  may  affect  commerce  with  foreign  nations  when  the  vessel 
arrested  comes  from  a  foreign  port.     This  interruption  of  the  voyage  may  be 


Ch.  18)  Anns-  of  couuEBoa  1163 

PATAPSCO  GUANO  CO.  v.  NORTH  CAROLINA  BOARD  OF 

AGRICULTURE. 

(Supreme  Court  of  United  States,  1898.     171  U.  S.  345,  18  Sup.  Ct.  SC2,  43  L, 

Ed.  101.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Eastern  Dis- 
trict of  North  Carolina.  A  statute  required  every  package  of  fertilizer 
sold  or  offered  for  sale  in  the  state  to  have  printed  upon  it  certain 
facts  about  its  manufacture  and  composition,  and  to  bear  a  tag  furnish- 
ed by  the  state  reciting  that  all  inspection  charges  upon  it  had  been 
paid.  Samples  of  all  fertilizers  offered  for  sale  in  the  state  were  to  be 
sent  to  the  department  of  agriculture,  which  was  charged  with  the  du- 

for  days  or  for  weeks.  It  extends  to  the  vessel,  the  cargo,  the  officers  and 
seamen,  and  the  passengers.  In  so  far  as  it  provides  a  rule  by  which  this 
power  is  exercised,  it  cannot  be  denied  that  it  regulates  commerce.  We  do 
not  tliink  it  necessary  to  enter  into  the  Inquiry  whether,  notwithstanding 
tliis,  it  is  to  be  classed  among  those  police  powers  which  were  retained  by 
the  states  as  exclusively  their  own.  and  therefore  not  ceded  to  Congress;  for 
while  it  may  be  a  police  power  in  the  sense  that  all  provisions  for  the  health. 
comfort,  and  security  of  the  Citizens  are  police  regulations,  and  an  exercise  of 
the  police  power,  it  has  been  said  mure  than  once  in  this  court  tha 
where  such  powers  are  so  exercised  as  to  come  within  the  domain  of  federal 
authority  as  defined  by  the  Constitution,  the  latter  must  prevail.  Gibbons  v. 
Ogden,  9  Wheat  210,  6  L.  Ed,  23  (1824);  Henderson  v.  The  Mayor.  92  D.  3. 
272,  23  T,.  Ed.  543  (1876);  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115 
U.  S.  661,  6  Sup.  Ct.  252,  20  L.  Ed.  516  (1885). 

"But  it  may  be  conceded   that  whenever  Congress  shall  undertake  to  pro- 
vide for  the  commercial  cities  of  the  United  States  a  general  system  0 
antine,  or  shall  contide  the  execution  of  the  details  of  such  a  system  to  a  na- 
tional  board   of  health,  or  to  local   boards,  as  may   be  found  expedient,  all 
state  laws  on  the  subject  will  be  abrogated,  at  least  so  far  us  the  two  are  in- 
consistent;   but  until  this  is  done,  the   laws  of  the  state  on  the  subj 
valid.     »     »     «     Quarantine    laws   belong  to    that   class   of   state   legislation 
which,  whether  passed  with  intent  to  regulate  commerce  or  not.  must  be  ad- 
mitted  to  have   that   effect,  and   which  are  valid  until  displaced  or  contra- 
vened by  some  legislation  of  Congress.     The  matter  is  one  in  which  the  rules 
1  li.it   Should  govern  it  may.  in  many  respects,  be  different  in  different   locali- 
ties   and   for  that   reason  be  better  understood   and   more  wisely  established 
by    the    local   authorities.      The   practice   which   Should   control   a   quarantine 
station  on  the  Mississippi  river,  a  hundred  miles  from  the  sea,  may  be  wide- 
ly and  wisely  different  from  that  which  is  best  for  the  harbor  of  New  York, 
in  this  respect  the  case  falls  within  the  principle  which  governed   tin 
of  Willson  v.  Blackbird  Creek  Marsh  Co.,   2   Pet.  245,  T   L.   Ed.  412 
Cooley  v.  Board  of  Wardens,  12  How.  299,   13   L.   Ed.  000  (1851);    Oilman  v. 
Philadelphia.  8  Wall.  727,  is  I..  Ed.  96  (1866);    Pound  v.  Turok.  95  i 
24  I*  Ed.  525  (1878);    Hall  v.  I).-  Cuir,  Id.   188,  24  L.  Ed.  647  (1878);    Packet 
Co.  v.  Catlettsburg,  105  U.  S.  562,  26  L.  Ed.  1169  (1882);    Parkersbnrg  &  O. 
R.  Transp,  Co.  v.  Parkersburg,  107  O.  8,  702,  2  Sup.  Ct  732,  27  L.  Ed.  584 
(1883);    Eacanaba  &  L.  M.  Transp.  Qo.  v.  Chicago,  107  u.  S.  678,  2  Sup.  Ct 
185",  27  L.  Ed.  1 12  (1883).    •    •    • 

"It  is  said  that  the  charge  to  the  vessel  for  the  ollicer's  service  in  examining 
her  is  not  a  necessary  part  of  quarantine  system.  It  has  always  been  held 
to  be  a  part  in  all  other  countries,  and  in  all  quarantine  stations  in  the  United 
States.     No  reason  is  perceived  for  selecting  this  Item  from  the  genera: 

ling  it  a  regulation  of  commerce,  while  the  remainder  is  not     if  the 
arrest  of  the  vessel,  the  detention  of  its  passengers,  the  cleansing  pi 

is  ordered  to  go  through  With,  are  less  important  as  regulations  of  Commerce 

than  the  exaction  of  the  examination  fee,  it  Is  not  easily  to  be  seen.    We  think 
the  proposition  untenable." 


1158  THE  FEDERAL  GOVERNMENT  (Part  3 

ty  of  inspecting  them  to  enforce  the  law,  and  to  defray  the  expenses  of 
this  25  cents  a  ton  was  charged  on  all  fertilizer  delivered  to  agents, 
dealers,  or  consumers  in  the  state.  In  1891  the  receipts  from  this  were 
$33,000  and  in  1892  about  $24,000.  The  actual  cost  of  inspection  in 
these  years  was  less  than  $17,000  yearly.  Plaintiff  company  sought 
an  injunction  against  the  collection  of  this  tax  on  fertilizers  from  oth- 
er states,  and  the  Circuit  Court  dismissed  his  bill.]1 

Mr.  Chief  Justice  Fuller.  *  *  *  The  second  clause  of  sec- 
tion 10  of  article  1  of  the  Constitution  reads :  "No  state  shall,  without 
the  consent  of  the  Congress,  lay  any  imposts  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws ;  and  the  net  produce  of  all  duties  and  imposts,  laid  by 
any  state  on  imports  or  exports,  shall  be  for  the  use  of  the  treasury  of 
the  United  States ;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress."  The  words  "imports"  and  "exports," 
as  therein  used,  have  been  held  to  apply  only  to  articles  imported  from 
or  exported  to  foreign  countries.  Woodruff  v.  Parham,  8  Wall.  123, 
19  L.  Ed.  382;  Pittsburgh  Coal  Co.  v.  Louisiana,  156  U.  S.  590,  600. 
15  Sup.  Ct.  459,  39  L.  Ed.  544. 

The  clause  recognized  that  the  inspection  of  such  articles  may  be 
required  by  the  states,  and  that  they  may  lay  duties  on  them  to  pay 
the  expense  of  such  inspections ;  but  as  it  would  be  difficult,  if  not 
impossible,  to  determine  the  necessary  amount  with  exactness,  and  to 
remove  any  inducement  to  excess,  it  was  provided  that  any  surplus 
should  be  paid  to  the  United  States.  As  such  laws  are  subject  to  the 
revision  and  control  of  Congress,  it  has  been  suggested  that  whether 
inspection  charges  are  excessive  or  not  might  be  for  Congress  to  de- 
termine, and  not  the  courts,  which  would  also  be  so  where  inspection 
laws  operate  on  interstate  as  well  as  foreign  commerce.  Neilson  v. 
Garza,  2  Woods,  287,  Fed.  Cas.  No.  10,091 ;  Turner  v.  Maryland,  107 
U.  S.  38,  2  Sup.  Ct.  44,  27  L.  Ed.  370. 

Considered  as  an  inspection  law  and  as  not  open  to  attack  as  in  con- 
travention of  that  clause,  the  questions  still  remain  whether  an  inspec- 
tion law  can  operate  on  importations  as  well  as  exportations,  and 
whether  in  this  instance  the  charge  was  so  excessive  as  to  deprive  the 
act  of  its  character  as  an  inspection  law  or  as  a  legitimate  exercise  of 
protective  governmental  power,  and  make  it  a  mere  revenue  law  ob- 
noxious to  the  objection  of  being  an  unlawful  interference  with  inter- 
state commerce.  Counsel  for  plaintiff  in  error  insists  that  this  result 
is  deducible  from  the  legislation  of  North  Carolina  making  appropria- 
tions from  the  funds  of  the  department  of  agriculture  received  from 
the  charge  on  fertilizers  or  fertilizing  materials,  as  also  from  the  evi- 
dence submitted  on  the  hearing.     *     *     * 

It  does  not  appear  to  us  that  evidence  tending  to  show  that  mone\ 

i  Statement  of  facts  partly  taken  from  the  case  in  the  Circuit  Court,  52 
Fed.  690. 


Cll.  18)  REGULATION    OF    COMMKItCE  W59 

collected  from  this  source  was  applied  to  other  than  the  purposes  for 
which  it  was  received  should  be  entered  into  on  this  inquiry  into  the 
validity  of  the  act.  If  the  receipts  are  found  to  average  largely  more 
than  enough  to  pay  the  expenses,  the  presumption  would  be  that  the 
legislature  would  moderate  the  charge.2  But  treating  the  question 
whether  the  charge  of  25  cents  per  ton  was  shown  to  be  so  excessive 
as  to  demonstrate  a  purpose  other  than  that  which  the  law  declared 
as  a  judicial  question,  we  are  satisfied  that,  comparing  the  receipts 
from  this  charge  with  the  necessary  expenses, — such  as  the 'cost  of 
analyses,  the  salaries  of  inspectors,  the  cost  of  tags,  express  charges, 
miscellaneous  expenses  of  the  department  in  this  connection,  and  so  on, 
— we  cannot  conclude  that  the  charge  is  so  seriously  in  excess  of  what 
is  necessary  for  the  objects  designed  to  be  effected  as  to  justify  the  im- 
putation of  bad  faith,  and  change  the  character  of  the  act. 

Inspection  laws  are  not  in  themselves  regulations  of  commerce,  and, 
while  their  object  frequently  is  to  improve  the  quality  of  articles  pro- 
duced by  the  labor  of  a  country  and  fit  them  for  exportation,  yet  they 
are  quite  as  often  aimed  at  fitting  them,  or  determining  their  fitness, 
for  domestic  use,  and,  in  so  doing,  protecting  the  citizen  from  fraud. 
Necessarily,  in  the  latter  aspect,  such  laws  are  applicable  to  articles 
imported  into,  as  well  as  to  articles  produced  within,  a  state. 

Clause  2  of  section  10  expressly  allows  the  state  to  collect  from  im- 
ports as  well  as  exports  the  amounts  necessary  for  executing  its  in- 
spection laws ;  and  Chief  Justice  Marshall  expressed  the  opinion  in 
Brown  v.  Maryland,  12  Wheat.  419,  6  L.  Ed.  678,  that  imported  as 
well  as  exported  articles  were  subject  to  inspection.  The  observa- 
tions of  Mr.  Justice  Bradley,  on  circuit,  in  Neilson  v.  Garza,  are  quite 
apposite  on  this  and  other  points  under  discussion,  and  may  profitably 
be  quoted.  That  case  involved  the  validity  of  a  law  of  the  state  of 
Texas,  providing  for  the  inspection  of  hides,  and  Mr.  Justice  Bradley 
said: 

"If  the  state  law  of  Texas  which  is  complained  of  is  really  an  in- 
spection law,  it  is  valid  and  binding,  unless  it  interferes  with  the  power 
of  Congress  to  regulate  commerce ;  and,  if  it  does  thus  interfere,  it 
may  still  be  valid  and  binding  until  revised  and  altered  by  Congress. 
The  right  to  make  inspection  laws  is  not  granted  to  Congress,  but  is 
reserved  to  the  states ;  but  it  is  subject  to  the  paramount  right  of 
Congress  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  states  ;  and  if  any  state,  as  a  means  of  carrying  out  and  execut- 
ing its  inspection  laws,  imposes  any  duty  or  impost  on  imports  or  ex- 
ports, such  impost  or  duty  is  void  if  it  exceeds  what  is  absolutely  nec- 
essary for  executing  such  inspection  laws.  How  the  question  whether 
a  dutv  is  excessive  or  not  is  to  be  decided  may  be  doubtful.  As  tljat 
question  is  passed  upon  by  the  state  legislature  when  the  duty  is  im- 

2  Accord:  Red  "C"  Oil  Co.  v.  Board  of  Agrlc,  222  U.  S.  3S0,  388-394,  82 
Sup.  Ct  152,  56  L.  Ed.  240  (1912). 


11G0  THE  FEDERAL   GOVERNMENT  (Part  3 

posed,  it  would  hardly  be  seemly  to  submit  it  to  the  consideration  of 
a  jury  in  every  case  that  arises.  This  might  give  rise  to  great  di- 
versity of  judgment,  the  result  of  which  would  be  to  make  the  law 
constitutional  one  day,  and  in  one  case,  and  unconstitutional  another 
day,  in  another  case.  As  the  article  of  the  Constitution  which  pre- 
scribes the  limit  goes  on  to  provide  that  'all  such  laws  shall  be  sub- 
ject to  the  revision  and  control  of  Congress,'  it  seems  to  me  that  Con- 
gress is  the  proper  tribunal  to  decide  the  question  whether  a  charge  or 
duty  is  'or  is  not  excessive.  If,  therefore,  the  fee  allowed  in  this  case 
by  the  state  law  is  to  be  regarded  as  in  effect  an  impost  or  duty  on  im- 
ports or  exports,  still,  if  the  law  is  really  an  inspection  law,  the  duty- 
must  stand  until  Congress  shall  see  fit  to  alter  it. 

"Then  we  are  brought  back  to  the  question  whether  the  law  is  really 
an  inspection  law.  If  it  is,  we  cannot  interfere  with  it  on  account  of 
supposed  excessiveness  of  fees.  If  it  is  not,  the  exaction  is  clearly  un- 
constitutional and  void,  being  an  unauthorized  interference  with  the 
free  importation  of  goods.  The  complainant  contends  that  it  is  not  an 
inspection  law  ;  that  inspection  laws  only  apply  legitimately  to  the  do- 
mestic products  of  the  country,  intended  for  exportation;  and  that  no 
inspection  is  actually  required  in  this  particular  case,  but  a  mere  ex- 
amination to  see  if  the  hides  are  marked,  and  who  imported  them,  etc., 
— duties  which  belong  to  the  entry  of  goods,  and  not  their  inspection. 

"No  doubt  the  primary  and  most  usual  object  of  inspection  is  to 
prepare  goods  for  exportation,  in  order  to  preserve  the  credit  of  our 
exports  in  foreign  markets.  Chief  Justice  Marshall,  in  Gibbons  v. 
Ogden,  says :  'The  object  of  inspection  laws  is  to  improve  the  quality 
of  articles  produced  by  the  labor  of  a  country,  to  fit  them  for  exporta- 
tion, or,  it  may  be,  for  domestic  use.'  9  Wheat.  203,  6  L.  Ed.  23; 
Story,  Const.  §  1017.  But  in  Brown  v.  Maryland  he  adds,  speaking  of 
the  time  when  inspection  takes  place:  'Inspection  laws,  so  far  as  they 
act  upon  articles  for  exportation,  are  generally  executed  on  land  be- 
fore the  article  is  put  on  board  a  vessel ;  so  far  as  they  act  upon  im- 
portations, they  are  generally  executed  upon  articles  which  are  landed. 
The  tax  or  duty  of  inspection  is  a  tax  which  is  frequently,  if  not  al- 
ways, paid  for  service  performed  on  land.'  12  Wheat.  419,  6  L.  Ed. 
678;  Story,  Const.  §  1017.  So  that,  according  to  Chief  Justice  Mar- 
shall, imported  as  well  as  exported  goods  may  be  subject  to  inspec- 
tion ;  and  they  may  be  inspected  as  well  to  fit  them  for  domestic  use 
as  for  exportation."     *     *     * 

Whenever  inspection  laws  act  on  the  subject  before  it  becomes  an 
article  of  commerce,  they  are  confessedly  valid,  and  also  when,  al- 
though operating  on  articles  brought  from  one  state  into  another, 
they  provide  for  inspection  in  the  exercise  of  that  power  of  self-pro- 
tection commonly  called  the  "police  power."  No  doubt  can  be  en- 
tertained of  this  where  the  inspection  is  manifestly  intended,  and  cal- 
culated in  good  faith,  to  protect  the  public  health,  the  public  morals, 


Ch.  18)  REGULATION   OF   COMMERCE  HG1 

or  the  public  safety.  Minnesota  v.  Barber,  136  U.  S.  313,  10  Sup.  Ct. 
862,  34  L.  Ed.  455.  And  it  has  now  been  determined  that  this  is  so  if 
the  object  of  the  inspection  is  the  prevention  of  imposition  on  the  pub- 
lic generally.  *  *  *  [Here  is  stated  Plumley  v.  Massachusetts, 
post,  p.  1202.] 

Where  the  subject  is  of  wide  importance  to  the  community,  the  con- 
sequences of  fraudulent  practices  generally  injurious,  and  the  suppres- 
sion of  such  frauds  matter  of  public  concern,  it  is  within  the  protec- 
tive power  of  the  state  to  intervene.  Laws  providing  for  the  inspec- 
tion and  grading  of  flour,  the  inspection  and  regulation  of  weights 
and  measures,  the  weighing  of  coal  on  public  scales,  and  the  like,  are 
all  competent  exercises  of  that  power,  and  it  is  not  perceived  why  the 
prevention  of  deception  in  the  adulteration  of  fertilizers  does  not  fall 
within  its  scope.8 

It  is  apparent  that  there  is  no  article  entering  into  common  use  in 
many  of  the  states,  and  particularly  the  Southern  states,  the  inspec- 
tion of  which  is  so  necessary  for  the  protection  of  those  citizens  en- 
gaged in  agricultural  operations,  as  commercial  fertilizers.  Certain 
ingredients,  as  ammonia  or  nitrogen,  phosphoric  acid,  and  potash, 
make  up  the  larger  part  of  the  value  of  these  fertilizers;  and,  with- 
out the  aid  of  scientific  analysis,  the  amount  of  these  ingredients  can- 
not be  ascertained,  nor  whether  the  fertilizer  sold  is  of  a  uniform 
grade.  The  average  farmer  was  compelled,  without  an  analysis,  to 
depend  on  his  sense  of  smell,  or  his  success  or  failure  during  the  previ- 
ous year  with  the  same  brand  or  name,  to  determine  the  relative 
amounts  of  the  essential  ingredients,  and  the  value  of  the  materials. 
To  protect  agricultural  interests  against  spurious  and  low-grade  fer- 
tilizers was  the  object  of  this  law,  which  simply  imposed  the  actual 
cost  of  inspection,  necessarily  varying  with  the  agricultural  condition 
of  the  various  years.     *     *     * 

The  act  of  January  21,  1891,  must  be  regarded,  then,  as  an  act  pro- 
viding for  the  inspection  of  fertilizers  and  fertilizing  materials  in  order 
to  prevent  the  practice  of  imposition  on  the  people  of  the  state,  and 
the  charge  of  25  cents  per  ton  as  intended  merely  to  defray  the  cost 
of  such  inspection.  It  being  competent  for  the  state  to  pass  laws  of 
this  character,  does  the  requirement  of  inspection  and  payment  of  its 
cost  bring  the  act  into  collision  with  the  commercial  power  vested  in 
Congress?  Clearly,  this  cannot  be  so  as  to  foreign  commerce,  for 
clause  2  of  section  10  of  article  1  expressly  recognizes  the  validity  of 
state  inspection  laws,  and  allows  the  collection  of  the  amounts  neces- 
sary for  their  execution  ;    and  we  think  the  same  principle  must  ap- 

8  Accord:  Pittsburg,  etc.,  Co:il  Co.  v.  Louisiana,  150  U.  S.  500,  15  Sup.  Ct. 
469,  39  I..  Kd.  544  (1895)  (gauging  of  coal  barges);  Now  Mexico  v.  Denver 
A  i:  Q.  i:.v..  203  I  8.  38,  27  Sup.  Ct  I,  51  U  Ed.  Ts  (1906)  (Inspection  of 
branded  hides  before  shipment  out  of  state,  to  prevent  theft);  Savage  v.  Jones, 
225  U.  S.  501,  32  Sup.  Ct  716,  56  L.  Ed.  1182  (1912)  (determination  of  constitu- 
ents of  prepared  cattle  foods). 


]\t','2  THE   FEDERAL   GOVERNMENT  (Part  8 

ply  to  interstate  commerce.  In  any  view,  the  effect  on  that  commerce 
is  indirect  and  incidental,  and  "the  Constitution  of  the  United  States 
does  not  secure  to  any  one  the  privilege  of  defrauding  the  public." 

Decree  affirmed.* 

[Harlan  and  White,  JJ.,  dissented.] 

*  "The  law  being  otherwise  valid,  the  amount  of  the  inspection  fee  is  not  a 
judicial  question;  it  rests  with  the  legislature  to  fix  the  amount,  and  it  can 
only  present  a  valid  objection  when  it  is  shown  that  it  is  so  unreasonable 
and  disproportionate  to  the  services  rendered  as  to  attack  the  good  faith  of 
the  law."— New  Mexico  v.  D.  &  R.  G.  Ky.,  203  U.  S.  38,  55,  27  Sup.  Ct.  1,  51 
L.  Ed.  7S  (1906),  by  Day,  J.  So  Red  "C"  Oil  Co.  v.  Board  of  Agric,  222  U. 
S.  3S0,  393.  32  Sup.  Ct.  152,  56  L.  Ed.  240  (1912) ;  Savage  v.  Jones,  225  U.  S. 
501,  52S.  529,  32  Sup.  Ct  715,  56  L.  Ed.  1182  (1912). 

And  so,  as  regards  bona  tide  wharfage  charges.  "And  being  wharfage,  and 
nothing  else,  if  the  charges  are  unreasonable  remedy  must  be  sought  by  in- 
voking the  laws  of  the  state.  *  *  *  If  the  charges  are  sanctioned  by  them, 
then,  as  before  stated,  it  is  for  Congress  and  not  for  the  United  States  courts 
to  regulate  the  matter  and  provide  a  proper  remedy." — Ouachita  Packet  Co.  v. 
Aiken,  121  U.  S.  444,  449,  450.  7  Sup.  Ct.  907,  30  L.  Ed.  976  (1S87),  by  Brad- 
ley, J. 

In  Turner  v.  Maryland,  107  U.  S.  38,  55,  2  Sup.  Ct.  44,  27  L.  Ed.  370  (18S3), 
upholding  a  statute  forbidding  domestic  tobacco  to  be  shipped  out  of  the  state 
except  in  packages  of  certain  sizes,  marked  and  inspected  in  certain  ways, 
Blatchford,  J.,  said:  "Recognized  elements  of  inspection  laws  have  always 
been  quality  of  the  article,  form,  capacity,  dimensions,  and  weight  of  package, 
mode  of  putting  up,  and  marking  and  branding  of  various  kinds,  all  these 
matters  being  supervised  by  a  public  officer  having  authority  to  pass  or  not 
pass  the  article  as  lawful  merchandise,  as  it  did  or  did  not  answer  the  pre- 
scribed requirements.  It  has  never  been  regarded  as  necessary,  and  it  is 
manifestly  not  necessary  that  all  of  these  elements  should  coexist  in  order  to 
make  a  valid  inspection  law.  Quality  alone  may  be  the  subject  of  inspection, 
without  other  requirement,  or  the  inspection  may  be  made  to  extend  to  all  of 
the  above  matters.  When  all  are  prescribed,  and  then  inspection  as  to  quality 
is  dropped  out,  leaving  the  rest  in  force,  it  cannot  be  said  to  be  a  necessary 
legal  conclusion  that  the  law  has  ceased  to  be  an  inspection  law." 

In  People  v.  Compag.  Gen.  Trans.,  107  U.  S.  59,  61,  62,  2  Sup.  Ct.  87,  27  L. 
Ed.  383  (1883),  declaring  invalid  a  New  York  statute,  Miller,  J.,  said: 

"What  laws  may  be  properly  classed  as  inspection  laws,  under  this  provi- 
sion of  the  Constitution,  must  be  determined  largely  by  the  nature  of  the  in- 
spection laws  of  the  states  at  the  time  the  Constitution  was  framed.  In  the 
opinion  of  this  court  in  the  case  of  Turner  v.  Maryland  [107  U.  S.]  51-54,  2 
Sup.  Ct.  44,  27  L.  Ed.  370,  delivered  by  Mr.  Justice  Blatchford  contempora- 
neously with  the  one  in  the  present  case,  an  elaborate  examination  of  those 
statutes,  many  of  which  are  cited,  is  to  be  found,  and  similar  citations  are 
found  in  a  foot-note  to  the  report  of  Gibbons  v.  Ogden,  9  Wheat.  119,  6  L. 
Ed.  23.  We  feel  quite  safe  in  saying  that  neither  at  the  time  of  the  forma- 
tion of  the  Constitution  nor  since  has  any  inspection  law  included  anything 
but  personal  property  as  a  subject  of  its  operation.  Nor  has  it  ever  been  held 
that  the  words  'imports  and  exports'  are  used  in  that  instrument  as  applicable 
to  free  human  beings  by  any  competent  judicial  authority.     «     *     * 

"In  addition  to  what  is  said  above,  it  is  apparent  that  the  object  of  these 
New  York  enactments  goes  far  beyond  any  correct  view  of  the  purpose  of  an 
inspection  law.  The  commissioners  are  'to  inspect  all  persons  arriving  from 
any  foreign  country  to  ascertain  who  among  them  are  habitual  criminals  or 
pauper  lunatics,  idiots  or  imbeciles,  *  *  *  or  orphan  persons,  without 
means  or  capacity  to  support  themselves,  and  subject  to  become  a  public 
charge.'  It  may  safely  be  said  that  these  are  matters  incapable  of  being  sat- 
isfactorily ascertained  by  inspection.  What  is  an  inspection?  Something 
which  can  be  accomplished  by  looking  at  or  weighing  or  measuring  the  thing 
to  be  inspected,  or  applying  to  it  at  once  some  crucial  test.     When  testimony 


Ch.  18)  REGULATION    OF    COMMERCE  11(J3 

HALL  v.  DE  CUIR. 
(Supreme  Court  of  United  States,  1878.    95  U.  S.  485,  24  L.  Ed.  r.  17.) 

[Error  to  the  Supreme  Court  of  Louisiana.  Benson  owned  a  steam- 
boat having  a  United  States  coasting  license  and  plying  between  ports 
in  Mississippi  and  Louisiana  on  the  Mississippi  river.  He  was  sued 
for  an  alleged  violation  of  the  Louisiana  statute  mentioned  in  the 
opinion  below,  in  that  he  refused  to  the  plaintiff,  a  colored  woman,  ac- 
commodations in  a  cabin  especially  reserved  for  white  persons, 
tiff  was  traveling  between  points  in  Louisiana  only.  Plaintiff  recover- 
ed damages,  and  Hall,  Benson's  administratrix,  took  this  writ  of  er- 
ror.] 

Mr.  Chief  Justice  Waite.  For  the  purposes  of  this  case,  we  must 
treat  the  Act  of  Louisiana  of  February  23,  1869,  as  requiring  those  en- 

or  evidence  is  to  be  taken  and  examined,  it  is  not  inspection  in  any  sense 
whatever.  Another  section  provides  for  the  custody,  the  support,  and  the 
treatment  for  disease  of  these  persons,  and  the  transportation  of  criminals. 
Are  these  Inspection  laws?  Is  the  ascertainment  of  a  guilt  of  a  crime  to  be 
made  by  Inspection?  fn  fact,  these  statutes  differ  from  those  heretofore  held 
void  only  in  calling  them  in  their  caption  inspection  laws,'  and  in  providing 
for  payment  of  any  surplus,  after  the  support  of  paupers,  criminals,  and  dis- 
eased  persons,  Into  the  treasury  of  the  United  States — a  surplus  which.  In 
this  enlarged  view  of  what  are  the  expenses  of  an  inspection  law,  it  is  safe 
to  say  will  never  exist. 

"A  state  cannot  make  a  law  designed  to  raise  money  to  support  paupers, 
to  detect  or  prevent  crime,  to  guard  against  disease,  and  to  cure  the  sick,  an 
Inspection  law,  within  the  constitutional  meaning  of  that  word,  by  calling  it 
so  in  the  title." 

Compare  Vance  v.  Vandercook  Co.  (No.  1)  170  U.  S.  438,  18  Sup.  Ct.  G74. 
42  L.  Ed.  1100  (1898)  (holding  Invalid  the  requirement  of  a  rather  burdensome 
tnary  Inspection  of  samples  of  liquor  as  a  condition  precedent  to  its 
shipment  into  the  state  for  the  consignee's  own  use — the  later  shipment  not 
being  inspected) :  and  Foster  v.  Blaster,  etc.,  of  New  Orleans,  PI  1'.  S  246, 
24  I,  Ed.  122  (1877)  (holding  invalid  a  statutory  monopoly  of  the  riL'ht  of 
making  surveys  of  damaged  goods  on  incoming  vessels  and  granting  certiflcatec 
for  their  sale).  Tn  the  Vance  Case  It  was  suggested  that  the  state's  power  of 
inspecting  articles  shipped  into  it  for  use  only  was  more  restricted  than  if 
they  were  Intended  for  sale,    id.,  at  page  456. 

In  .Minnesota  v.  Barber,  ante,  p.  10S6,  holding  Invalid  the  inspection  law- 
there  stated.  Harlan.  J.,  said  (186  U.  S.  at  pages  326,  328,  10  Sup.  Ct  862. 
866,  .'U  L.  Ed.  456): 

"A  statute  may  upon  its  face  apply  equally  to  the  people  of  all  the  states, 
ami  yet  be  a  regulation  of  Interstate  commerce  which  a  state  may  not  estab- 
lish. A  burden  imposed  by  a  state  upon  interstate  commerce  is  not  to  be  sus- 
tained simply  because  the  statute  imposing  it  applies  alike  to  the  people  of 
all  the  states,  including  the  people  of  the  state  enacting  such  statute.  Rob- 
bins  v.  Shelby  Taxlng-Dist.,  120  D.  8.  189,  197,  7  Sup.  Ct  592,  30  L.  Ed.  694: 
Case  of  the  State  Freight  Tax.  IS  Wall.  232,  21  L.  Ed.  146.  The  people  of 
Minnesota  have  as  much  right  to  protection  against  the  enactments  of  that 
state  Interfering  with  the  freedom  of  commerce  among  the  states  as  have  the 
people  of  other  states.  •  *  *  A  law  providing  for  the  inspection  of  an- 
imals whose  meats  are  designed  for  human  food  cannot  be  regarded  as  a  right 
i ui  exertion  of  the  police  powers  of  the  state,  if  the  Inspection  prescribed  Is 

of  such  a  Character,  or  is  burdened  with  such  conditions,  as  will  prevent  al 
together  the  Introduction  into  the  state  of  sound  meats,  the  product  of  animals 
slaughtered  in  other  states." 


1164  THE  FEDERAL  GOVERNMENT  (Part  3 

gaged  in  interstate  commerce  to  give  all  persons  traveling  in  that 
state,  upon  the  public  conveyances  employed  in  such  business,  equal 
rights  and  privileges  in  all  parts  of  the  conveyance,  without  distinction 
or  discrimination  on  account  of  race  or  color.  Such  was  the  con- 
struction given  to  that  act  in  the  courts  below,  and  it  is  conclusive 
upon  us  as  the  construction  of  a  state  law  by  the  state  courts.  It  is 
with  this  provision  of  the  statute  alone  that  we  have  to  deal.  We  have 
nothing  whatever  to  do  with  it  as  a  regulation  of  internal  commerce, 
or  as  affecting  anything  else  than  commerce  among  the  states.    *    *    * 

[After  referring  to  state  regulation  of  public  warehouses,  dams, 
bridges,  turnpikes,  and  ferries :]  By  such  statutes  the  states  regulate, 
as  a  matter  of  domestic  concern,  the  instruments  of  commerce  situated 
wholly  within  their  own  jurisdictions,  and  over  which  they  have  ex- 
clusive governmental  control,  except  when  employed  in  foreign  or  in- 
terstate commerce.  As  they  can  only  be  used  in  the  state,  their  regu- 
lation for  all  purposes  may  properly  be  assumed  by  the  state,  until 
Congress  acts  in  reference  to  their  foreign  or  interstate  relations. 
When  Congress  does  act,  the  state  laws  are  superseded  only  to  the 
extent  that  they  affect  commerce  outside  the  state  as  it  comes  within 
the  state.  *  *  *  [Reference  is  here  made  to  state  health,  inspec- 
tion, and  pilotage  laws.] 

But  we  think  it  may  safely  be  said  that  state  legislation  which  seeks 
to  impose  a  direct  burden  upon  interstate  commerce,  or  to  interfere 
directly  with  its  freedom,  does  encroach  upon  the  exclusive  power  of 
Congress.  The  statute  now  under  consideration,  in  our  opinion,  occu- 
pies that  position.  It  does  not  act  upon  the  business  through  the  local 
instruments  to  be  employed  after  coming  within  the  state,  but  directly 
upon  the  business  as  it  comes  into  the  state  from  without  or  goes  out 
from  within.  While  it  purports  only  to  control  the  carrier  when  en- 
gaged within  the  state,  it  must  necessarily  influence  his  conduct  to 
some  extent  in  the  management  of  his  business  throughout  his  entire 
voyage.  His  disposition  of  passengers  taken  up  and  put  down  within 
the  state,  or  taken  up  within  to  be  carried  without,  cannot  but  affect  in 
a  greater  or  less  degree  those  taken  up  without  and  brought  within, 
and  sometimes  those  taken  up  and  put  down  without.  A  passenger  in 
the  cabin  set  apart  for  the  use  of  whites  without  the  state  must,  when 
the  boat  comes  within,  share  the  accommodations  of  that  cabin  with 
such  colored  persons  as  may  come  on  board  afterwards,  if  the  law  is 
enforced. 

It  was  to  meet  just  such  a  case  that  the  commercial  clause  in  the 
Constitution  was  adopted.  The  river  Mississippi  passes  through  or 
along  the  borders  of  ten  different  states,  and  its  tributaries  reach  many 
more.  The  commerce  upon  these  waters  is  immense,  and  its  regula- 
tion clearly  a  matter  of  national  concern.  If  each  state  was  at  liberty 
to  regulate  the  conduct  of  carriers  while  within  its  jurisdiction,  the 
confusion  likely  to  follow  could  not  but  be  productive  of  great  incon- 


Ch.  18)  REGULATION    OF    COMMERCE  11C5 

venience  and  unnecessary  hardship.  Each  state  could  provide  for  its 
own  passengers  and  regulate  the  transportation  of  it's  own  freight,  re- 
gardless of  the  interests  of  others.  Nay,  more,  it  could  prescribe  rules 
by  which  the  carrier  must  be  governed  within  the  state  in  respect  to 
passengers  and  property  brought  from  without.  On  one  side  of  the 
river  or  its  tributaries  he  might  be  required  to  observe  one  set  of  rules, 
and  on  the  other  another.  Commerce  cannot  flourish  in  the  midst  of 
such  embarrassments.     No  carrier  of  passengers  can  his  busi- 

ness with  satisfaction  to  himself,  or  comfort  to  those  employing  him,  if 
on  one  side  of  a  state  line  his  passengers,  both  white  and  colored,  must 
be  permitted  to  occupy  the  same  cabin,  and  on  the  other  be  kept  sepa- 
rate. Uniformity  in  the  regulations  by  which  he  is  to  be  governed 
from  one  end  to  the  other  of  his  route  is  a  necessity  in  his  business, 
and  to  secure  it  Congress,  which  is  untrammeled  by  state  lines,  has 
been  invested  with  the  exclusive  legislative  power  of  determining  what 
such  regulations  shall  be.  If  this  statute  can  be  enforced  a 
those  engaged  in  interstate  commerce,  it  may  be  as  well  against  those 
engaged  in  foreign  ;  and  the  master  of  a  ship  clearing  from  New  Or- 
leans for  Liverpool,  having  passengers  on  board,  would  be  compelled 
to  carry  all,  white  and  colored,  in  the  same  cabin,  during  his  ; 
down  the  river,  or  be  subject  to  an  action  for  damages,  "exemplary  as 
well  as  actual,"  by  any  one  who  felt  himself  aggrieved  because  he  had 
been  excluded  on  account  of  his  color. 

This  power  of  regulation  may  be  exercised  without  legislation  as 
well  as  with  it.  By  refraining  from  action,  Congress,  in  effect. 
as  its  own  regulations  those  which  the  common  law  or  the  civil  law, 
hat  prevails,  has  provided  for  the  government  of  such  business, 
and  those  which  the  states,  in  the  regulation  of  their  domestic  con- 
cerns, have  established  affecting  commerce,  but  not  regulating  it  with- 
in the  meaning  of  the  Constitution.  In  fact,  congressional  legislation 
is  only  necessary  to  cure  defects  in  existing  laws,  as  they  are  discover- 
ed, and  to  adapt  such  laws  to  new  developments  of  trade.  As  was 
said  by  Mr.  Tustice  Field,  speaking  for  the  court  in  Welton  v.  State 
of  Missouri,  91  U.  S.  282,  23  L.  Ed.  347:  "Inaction  [by  Cor 
*  *  *  is  equivalent  to  a- declaration  that  interstate  commerce  shall 
remain  free  and  untrammeled."  Applying  that  principle  to  the  cir- 
cumstances of  this  case,  congressional  inaction  left  Benson  at  liberty 
to  adopt  such  reasonable  rules  and  regulations  for  I  itio.n  of 

;ers  upon  his  boat,  while  pursuing  her  voyage  within  Lou 
or  without,  as  seemed  to  him  must  for  the  interest  of  all  con.      - 
The  statute  under  which  this  suit   is   brought,  as  construed  by   the 
state  court,  seeks  to  take  away  from  him  that  power  so  long  as  he  is 
within  Louisiana;   and  while  recognizing  to  the  fullest  extent  the  prin- 
ciple which  sustains  a  statute,  unless  its  unconstitutionality  is  clearly 
established,  we  think  this  statute,  to  the  extent  that  it  requir  :s 
engaged  in  die  transportation  of  passengers  among  the  states  to  carry 


HG6  THE   FEDERAL   GOVERNMENT  (Part  3 

colored  passengers  in  Louisiana  in  the  same  cabin  with  whites,  is  un- 
constitutional and  void.  If  the  public  good  require  such  legislation,  it 
must  come  from  Congress,  and  not  from  the  states.     *     *     * 

Judgment  reversed.1 

[Clifford,  J.,  gave  a  concurring  opinion.] 


WABASH,  ST.  L.  &  P.  RY.  CO.  v.  ILLINOIS. 

(Supreme  Court  of  United  States,  1886.     118  U.  S.  557,  7   Sup.  Ct.  4,  30  I.. 
Ed.  244.) 

[Error  to  the  Supreme  Court  of  Illinois.  An  Illinois  statute  penal- 
ized unjust  discriminations  practiced  by  railroads  against  shippers, 
and  enacted  that  charging  the  same  or  a  greater  amount  of  toll  for 
any  transportation  within  the  state  than  was  charged  for  like  trans- 
portation over  a  greater  distance  on  the  same  road  should  be  prima 
facie  evidence  of  such  discrimination.  The  defendant  railroad  charged 
fifteen  cents  a  hundred  pounds  for  carrying  carload  lots  of  certain 
goods  from  Peoria,  Illinois,  to  New  York  City,  and  twenty-five  cents 
a  hundred  for  a  similar  carriage  from  Gilman,  Illinois,  to  New  York, 
although  Peoria  was  86  miles  further  from  New  York.  The  Illinois 
Supreme  Court  sustained  a  suit  against  the  railroad  for  this  act,  and 
this  writ  was  taken.] 

Mr.  Justice  Miller.  *  *  *  The  Supreme  Court  of  Illinois  in 
the  case  now  before  us,  conceding  that  each  of  these  contracts  was  in 
itself  a  unit,  and  that  the  pay  received  by  the  Illinois  railroad  company 
was  the  compensation  for  the  entire  transportation  from  the  point  of 
departure  in  the  state  of  Illinois  to  the  city  of  New  York,  holds  that, 
while  the  statute  of  Illinois  is  inoperative  upon  that  part  of  the  con- 
tract which  has  reference  to  the  transportation  outside  of  the  state. 
it  is  binding  and  effectual  as  to  so  much  of  the  transportation  as  was 
within  the  limits  Of  the  state  of  Illinois  (People  v.  Wabash,  St.  L.  & 
P.  R.  Co.,  104  111.  476);  and,  undertaking  for  itself  to  apportion  the 
rates  charged  over  the  whole  route,  decides  that  the  contract  and  the 
receipt  of  the  money  for  so  much  of  it  as'  was  performed  within  the 
state  of  Illinois  violate  the  statute  of  the  state  on  that  subject. 

i  Similar  statutes  applicable  to  intrastate  railroad  transportation  have  been 
upheld.  Ches.  &  O.  Ry.  v.  Kentucky,  179  U.  S.  OSS,  21  Sup.  Ct.  101,  45  L.  Ed. 
244  (1900)  (citing  earlier  cases).  Of  such  a  statute  Brewer,  J.,  in  Louisville. 
etc'Ry.  v.  Mississippi,  130  U.  S.  5S7.  591,  10  Sup.  Ct.  348,  349,  33  L.  Ed.  784 
(1890),  said:  "Its  provisions  are  fully  complied  with  when  to  trains  within 
the  state  is  attached  a  separate  car  for  colored  passengers." 

In  Chiles  v.  Ches.  &  O.  Ry.,  218  U.  S.  71,  30  Sup.  Ct.  GG7,  54  L.  Ed.  936, 
20  Ann.  Cas.  9S0  (1910),  it  was  held  that  a  railway  might  by  its  own  regula- 
tions separate  the  races  even  in  interstate  transportation.  Nor  has  the  fed- 
eral Supreme  Court  yet  Q913)  held  that  a  state  might  not  require  this  of 
ordinary  day-coach  passengers  in  such  transportation.  Compare  the  reason- 
ing in  Plessy  v.  Ferguson,  ante,  p.  367. 


Ch.  18)  REGULATION   of   COMMERCE  l'1'" 

If  the  Illinois  statute  could  be  construed  to  apply  exclusively  to 
contracts  for  a  carriage  which  begins  and  ends  within  the  state,  discon- 
nected from  a  continuous  transportation  through  or  into  other  states, 
there  does  not  seem  to  be  any  difficulty  in  holding  it  to  be  valid.  For 
instance,  a  contract  might  be  made  to  carry  goods  for  a  certain  price 
from  Cairo  to  Chicago,  or  from  Chicago  to  Alton.  The  charges  for 
these  might  Le  within  the  competency  of  the  Illinois  Legislature  to 
regulate.  The  reason  for  this  is  that  both  the  charge  and  the  actual 
transportation  in  such  cases  are  exclusively  confined  to  the  limits  of 
the  territory  of  the  state,  and  is  not  commerce  among  the  states,  or 
interstate  commerce,  but  is  exclusively  commerce  within  the  state. 
So  far,  therefore,  as  this  class  of  transportation,  as  an  element  of 
commerce,  is  affected  by  the  statute  under  consideration,  it  is  not  sub- 
ject to  the  constitutional  provision  concerning  commerce  among  the 
states.1     *     *     * 

The  Supreme  Court  of  Illinois  does  not  place  its  judgment  in  the 
present  case  on  the  ground  that  the  transportation  and  the  charge  are 
exclusively  state  commerce,  but,  conceding  that  it  may  be  a  case  of 
commerce  among  the  states,  or  interstate  commerce,  which  Congress 
would  have  the  right  to  regulate  if  it  had  attempted  to  do  so,  argues 
that  this  statute  of  Illinois  belongs  to  that  class  of  commercial  regula- 
tions which  may  be  established  by  the  laws  of  a  state  until  Congress 
shall  have  exercised  its  power  on  that  subject.  *  *  *  [Here  follow 
quotations  from  Munn  v.  Illinois,  94  U.  S.  113,  135,  24  L.  Ed.  77;  C, 
Li.  &  O.  Ry.  v.  Iowa,  94  U.  S.  155,  163,  24  L.  Ed.  94 ;  and  Peik  v.  Chic. 
&  N.  W.  Ry.,  94  U.  S.  164,  177,  178,  24  L.  Ed.  97.]  These  extracts 
show  that  the  question  of  the  right  of  the  state  to  regulate  the  rates  of 
fares  and  tolls  on  railroads,  and  how  far  that  right  was  affected  by  the 
commerce  clause  of  the  Constitution  of  the  United  States, was  present- 
ed to  the  court  in  those  cases.  And  it  must  be  admitted  that,  in  a  gen- 
eral way,  the  court  treated  the  cases  then  before  it  as  belonging  to 
that  class  of  regulations  of  commerce  which,  like  pilotage,  bridging 
navigable  rivers,  and  many  others,  could  be  acted  upon  by  the  states. 
in  the  absence  of  any  legislation  by  Congress  on  the  same  subject.  By 
the  slightest  attention  to  the  matter,  it  will  be  readily  seen  that  the 
circumstances  under  which  a  bridge  may  be  authorized  across  a  navi- 
gable stream  within  the  limits  of  a  state  for  the  use  of  a  public  high- 
way, and  the  local  rules  which  shall  govern  the  conduct  of  the  pilots 
of  each  of  the  varying  harbors  of  the  coasts  of  the  United  States, 
depends  upon  principles  far  more  limited  in  their  application  and 
importance  than  those  which  should  regulate  the  transportation  of  per- 

i  Accord;  Louisville,  etc.  By.  v.  Kentucky,  1S3  U.  S.  608,  22  sun.  Ct  95 
46  L.  Ed.  298  (1902).  Bui  domestic  rates  must  be  Szed  solely  with  reference 
to  the  expenses  and  receipts  of  domestic  business.  Smytb  v.  Ann's.  169  0.  S. 
166,  540  542,  IS  Sup.  Ct  41S,  412  L.  Ed.  819  (1898);  Minnesota  Hate  Cases, 
ante,  at  p.  4U9. 


11G8  THE   FEDERAL   GOVERNMENT  (Part  3 

sons  and  property  across  the  half  or  the  whole  of  the  continent,  over 
the  territories  of'  half  a  dozen  states,  through  which  they  are  carried 
without  change  of  car  or  hreaking  bulk.     *     *     * 

It  will  be  seen  from  the  opinions  themselves,  and  from  the  arguments 
of  counsel  presented  in  the  reports,  that  the  question  did  not  receive 
any  very  elaborate  consideration,  either  in  the  opinions  of  the  court  or 
in  the  arguments  of  counsel.  *  *  *  It  was  strenuously  denied, 
and  very  confidently,  by  all  the  railroad  companies,  that  any  legislative 
body  whatever  had  a  right  to  limit  the  tolls  and  charges  to  be  made  by 
the  carrying  companies  for  transportation.  And  the  great  question  to 
be  decided,  and  which  was  decided,  and  which  was  argued  in  all  those 
cases,  was  the  right  of  the  state  within  which  a  railroad  company  did 
business  to  regulate  or  limit  the  amount  of  any  of  these  traffic  charg- 
es.   *    *    * 

It  is  impossible  to  see  any  distinction,  in  its  effect  upon  commerce  of 
either  class,  between  a  statute  which  regulates  the  charges  for  trans- 
portation and  a  statute  which  levies  a  tax  for  the  benefit  of  the  state 
upon  the  same  transportation ;  and,  in  fact,  the  judgment  of  the  court 
in  the  State  Freight  Tax  Case  rested  upon  the  ground  that  the  tax 
was  always  added  to  the  cost  of  transportation,  and  thus  was  a  tax,  in 
effect,  upon  the  privilege  of  carrying  the  goods  through  the  state.  It 
is  also  very  difficult  to  believe  that  the  court  consciously  intended  to 
overrule  the  first  of  these  cases  without  any  reference  to  it  in  the 
opinion. 

At  the  very  next  term  of  the  court  after  the  delivery  of  these  opin- 
ions the  case  of  Hall  v.  De  Cuir,  95  U.  S.  485,  24  L.  Ed.  547,  was 
decided,  in  which  the  same  point  was  considered,  in  reference  to  a 
statute  of  the  state  of  Louisiana  which  attempted  to  regulate  the 
carriage  of  passengers  upon  railroads,  steam-boats,  and  other  public 
conveyances,  and  which  provided  that  no  regulations  of  any  companies 
engaged  in  that  business  should  make  any  discrimination  on  account  of 
race  or  color.  *  *  *  [Here  follows  a  quotation  from  that  part  of 
this  case  printed  ante,  at  p.  1164,  pointing  out  that  the  Louisiana  law 
necessarily  affected  the  conduct  of  the  carrier's  business  outside  of  the 
state  as  well  as  in  it.] 

The  applicability  of  this  language  to  the  case  now  under  considera- 
tion, of  a  continuous  transportation  of  goods  from  New  York  to  cen- 
tral Illinois,  or  from  the  latter  to  New  York,  is  obvious,  and  it  is  not 
easy  to  see  how  any  distinction  can  be  made.  Whatever  may  be  the 
instrumentalities  by  which  this  transportation  from  the  one  point  to 
the  other  is  effected,  it  is  but  one  voyage, — as  much  so  as  that  of  the' 
steam-boat  on  the  Mississippi  river.  It  is  not  the  railroads  themselves 
that  are  regulated  by  this  act  of  the  Illinois  legislature  so  much  as  the 
charge  for  transportation;  and,  in  language  just  cited,  if  each  one  of 
the  states  through  whose  territories  these  goods  are  transported  can 
fix   its   own   rules    for   prices,   for  modes   of    transit,   for  times    and 


C!i.   IS)  l.ATION    OF    COMMERCE  1169 

of  delivery,  and  all  the  other  incidents  of  transportation  to 
which  the  word  "regulation"  can  be  applied,  it  is  readily  seen  that  the 
embarrassments  upon  interstate  transportation,  as  an  element  of  inter- 
ommerce,  might  be  too  oppressive  to  be  submitted  to.  "It  was," 
in  the  language  of  the  court  cited  above,  "to  meet  just  such  a  case 
that  the  commerce  clause  of  the  Constitution  was  adopted."  It  cannot 
be  too  strongly  insisted  upon  that  the  right  of  continuous  transporta- 
tion, from  one  end  of  the  country  to  the  other,  is  essential,  in  modern 
times,  to  that  freedom  of  commerce  from  the  restraints  which  the 
states  might  choose  to  impose  upon  it,  that  the  commerce  clause  was 
intended  to  secure.  This  clause,  giving  to  Congress  the  power  to 
regulate  commerce  among  the  states,  and  with  foreign  nations,  as  this 
court  has  said  .before,  was  among  the  most  important  of  the  sub- 
jects which  prompted  the  formation  of  the  Constitution.  Cook  v. 
Pennsylvania,  97  U.  S.  574,  24  L.  Ed.  1015;  Brown  v.  Maryland,  12 
Wheat.  446,  6  L.  Ed.  678.  And  it  would  be  a  very  feeble  and  almost 
useless  provision,  but  poorly  adapted  to  secure  the  entire  freedom  of 
commerce  among  the  states  which  was  deemed  essential  to  a  more 
perfect  union  by  the  framers  of  the  Constitution,  if,  at  every  stage  of 
the  transportation  of  goods  and  chattels  through  the  country,  the 
state  within  whose  limits  a  part  of  this  transportation  must  be  done 
could  impose  regulations  concerning  the  price,  compensation,  or  taxa- 
tion, or  any  other  restrictive  regulation  interfering  with  and  seriously 
embarrassing  this  commerce.     *     *     * 

We  must  therefore  bold  that  it  is  not,  and  never  has  been,  the  de- 
liberate opinion  of  a  majority  of  this  court  that  a  statute  of  a  state 
which  attempts  to  regulate  the  fares  and  charges  by  railroad  companies 
within  its  limits,  for  a  transportation  which  constitutes  a  part  of  com- 
merce among  the  states,  is  a  valid  law. 

Let  us  see  precisely  what  is  the  degree  of  interference  with  trans- 
portation of  property  or  persons  from  one  state  to  another  which  this 
statute  proposes.  A  citizen  of  New  York  has  goods  which  he  desires 
to  have  transported  by  the  railroad  companies  from  that  city  to  the  in- 
terior of  the  state  of  Illinois.  A  continuous  line  of  rail  over  which  a 
car  loaded  with  these  goods  can  be  carried,  and  is  carried  habitually, 
connects  the  place  of  shipment  with  the  place  of  delivery.  He  under- 
takes to  make  a  contract  with  a  person  engaged  in  the  carrying  busi- 
ness at  the  end  of  this  route  from  whence  the  goods  are  to  start,  and 
he  is  told  by  the  carrier:  "I  am  free  to  make  a  fair  and  reasonable 
contract  for  this  carriage  to  the  line  of  the  state  of  Illinois,  but  when 
the  car  which  carries  these  goods  is  to  cross  the  line  of  that  state, 
pursuing  at  the  same  time  this  continuous  track,  I  am  met  by  a  law 
of  Illinois  which  forbids  me  to  make  a  free  contract  concerning  this 
transportation  within  that  state,  and  subjects  me  to  certain  rules  by 
which  I  am  to  be  governed  as  to  the  charges  which  the  same  railroad 
company  in  Illinois  may  make,  or  has  made,  with  reference  to  other 

ltALL  COKST.L. — 74 


1170  THE  FEDERAL  GOVERNMENT  (Part  3 

persons  and  other  places  of  delivery."  So  that  while  that  carrier 
might  be  willing  to  carry  these  goods  from  the  city  of  New  York  to 
the  city  of  Peoria  at  the  rate  of  15  cents  per  hundred  pounds,  he  is 
not  permitted  to  do  so,  because  the  Illinois  railroad  company  has  al- 
ready charged  at  the  rate  of  25  cents  per  hundred  pounds  for  carriage 
to  Gilman,  in  Illinois,  which  is  86  miles  shorter  than  the  distance  to 
Peoria.  So,  also,  in  the  present  case,  the  owner  of  corn,  the  principal 
product  of  the  country,  desiring  to  transport  it  from  Peoria,  in  Illinois, 
to  New  York,  finds  a  railroad  company  willing  to  do  this  at  the  rate 
of  15  cents  per  hundred  pounds  for  a  car-load,  but  is  compelled  to 
pay  at  the  rate  of  25  cents  per  hundred  pounds,  because  the  railroad 
company  has  received  from  a  person  residing  at  Gilman  25  cents  per 
hundred  pounds  for  the  transportation  of  a  car-load  of  the  same  class 
of  freight  over  the  same  line  of  road  from  Gilman  to  New  York. 
This  is  the  result  of  the  statute  of  Illinois,  in  its  endeavor  to  prevent 
unjust  discrimination,  as  construed  by  the  supreme  court  of  that  state. 
The  effect  of  it  is  that  whatever  may  be  the  rate  of  transportation 
per  mile  charged  by  the  railroad  company  from  Gilman  to  Sheldon,  a 
distance  of  23  miles,  in  which  the  loading  and  the  unloading  of  the 
freight  is  the  largest  expense  incurred  by  the  railroad  company,  the 
same  rate  per  mile  must  be  charged  from  Peoria  to  the  city  of  New 
York.  The  obvious  injustice  of  such  a  rule  as  this,  which  railroad 
companies  are  by  heavy  penalties  compelled  to  conform  to,  in  regard  to 
commerce  among  the  states,  when  applied  to  transportation  which 
includes  Illinois  in  a  long  line  of  carriage  through  several  states, 
shows  the  value  of  the  constitutional  provision  which  confides  the 
power  of  regulating  interstate  commerce  to  the  Congress  of  the 
United  States,  whose  enlarged  view  of  the  interests  of  all  the  states, 
and  of  the  railroads  concerned,  better  fits  it  to  establish  just  and 
equitable  rules. 

Of  the  justice  or  propriety  of  the  principle  which  lies  at  the  founda- 
tion of  the  Illinois  statute  it  is  not  the  province  of  this  court  to  speak. 
As  restricted  to  a  transportation  which  begins  and  ends  within  the  lim- 
its of  the  state,  it  may  be  very  just  and  equitable,  and  it  certainly  is  the 
province  of  the  state  Legislature  to  determine  that  question  ;  but  when 
it  is  attempted  to  apply  to  transportation  through  an  entire  series  of 
states  a  principle  of  this  kind,  and  each  one  of  the  states  shall  attempt 
to  establish  its  own  rates  of  transportation,  its  own  methods  to  prevent 
discrimination  in  rates,  or  to  permit  it,  the  deleterious  influence  upon 
the  freedom  of  commerce,  among  the  states,  and  upon  the  transit  of 
goods  through  those  states,  cannot  be  overestimated.  That  this  species 
of  regulation  is  one  which  must  be,  if  established  at  all,  of  a  general 
and  national  character,  and  cannot  be  safely  and  wisely  remitted  to  lo- 
cal rules  and  local  regulations,  we  think  is  clear  from  what  has  already 
been  said.  And  if  it  be  a  regulation  of  commerce,  as  we  think  we  have 
demonstrated  it  is,  and  as  the  Illinois  court  concedes  it  to  be,  it  must 


Ch.  18)  REGULATION    OF    COMMERCE  1171 

be  of  that  national  character ;  and  the  regulation  can  only  appropri- 
ately exist  by  general  rules  and  principles,  which  demand  that  it  should 
be  done  by  the  Congress  of  the  United  States  under  the  commerce 
clause  of  the  Constitution. 

Judgment  reversed.2 

[Bradley,  J.,  gave  a  dissenting  opinion,  in  which  concurred 
Waite,  C.  J.,  and  Gray,  J.] 

2  In  Hanley  v.  Kansas,  etc.,  Ry.,  187  D.  S.  617.  620,  23  Sup.  Ct.  214,  47  L. 
Bid.  .•;:;::  (1903)  Arkansas  was  denied  the  power  to  regulate  rates  betwi 
points  In  the  state,  where  an  intermediate  part  of  the  journey  was  performed 
in  Indian  Territory  or  Texas,  Holmes,  J.,  saying: 

"The  transportation  of  these  goods  certainly  went  outside  of  Arkansas,  and 
we  are  of  opinion  that  in  its  aspect  of  commerce  It  was  not  confined  within 
the  slate.  Suppose  that  the  Indian  territory  were  a  state,  and  Should  try 
to  regulate  such  traffic,  what  would  stop  It?  Certainly  not  the  fiction  that 
the  commerce  was  confined  to  Arkansas.  If  it  could  not  interfere  the  only 
reason  would  be  that  this  was  commerce  among  the  states.  But  If  this  com- 
merce would  have  that  character  as  against  the  state  supposed  to  have  been 
formed  out  of  the  Indian  territory,  it  would  have  it  equally  as  against  the 
state  of  Arkansas.    If  one  could  not  regulate  it  the  other  could  not. 

"No  one  contends  that  the  regulation  could  be  split  up  according  to  the 
jurisdiction  of  state  or  territory  over  the  track,  or  that  both  state  and  ter- 
ritory may  regulate  the  whole  rate.  There  can  be  but  one  rate,  fixed  by  one 
authority,  whether  that  authority  be  Arkansas  or  Congress.     Wabash,  St.   I.. 

6  P.  R.  Co.  v.  Illinois,  118  V.  S.  557,  30  L.  Ed.  244,  L  Interst  Goxa   Rep,  31, 

7  Sup.  Ct  4:  Covington  &  C.  Bridge  Co.  v.  Kentucky,  154  U.  S.  204.  3S  L. 
Ed.  962,  4  Interst.  Com.  Rep.  049,  14  Sup.  Ct.  1087;  Hall  v.  De  Cuir.  95  I*.  S. 
185,  24  E.  Ed.  547.  Hut  it  would  be  more  logical  to  allow  a  division  according 
in  the  jurisdiction  over  the  track  than  to  declare  that  the  subject  for  regula- 
tion is  Indivisible,  yet  that  the  indivisibility  does  not  depend  upon  tl 
merce  being  under  the  authority  of  Congress,  but  upon  a  fiction  which  at- 
tributes it  wholly  to  Arkansas,  although  that  fiction  is  quite  beyond  the  power 
of  Arkansas  to  enforce." 

So  also  when  the  intermediate  carriage  is  performed  at  sea.     Pacific  S.   S. 
Co.  v.  Ry.  Com'rs  (C.  C.)  18  Fed.  10,  9  Sawy.  253  (1883).    Such  ram 
be  regulated  by  the  United  states,  in  either  case,    Lord  v.  s.  S.  Co.,  Li 
541,  26  E.  Ed.  224   (1881)  (limitation  of  liability):    U.  S.  v.  Deh  L.  &  W.  Ry. 
(i     C.)  152  Fed  269  (1907)  (prohibition  of  rel 

In  Ohio  R.  R.  Commission  v.  Wortbington,  225  r.  S.  101,  108,  109,  32  Sup. 
Ct.  653.  56  L.  Ed.  1004  (1012)  coal  was  shipped  in  Ohio  from  an  Ohio  mine  to 
Huron,  an  Ohio  port  on  Lake  Erie,  and  there  loaded  and  trimmed  Into  vessels 
bound  for  upper  lake  ports  outside  of  Ohio.  A  single  rate  was  made  for  trans- 
porting to  Huron,  loading,  and  trimming  into  the  vessels,  and  Ohio  sought 
to  regidate  this.  This  rate  was  different  from  that  for  coal  sent  to  Huron 
and  not  put  on  vessels  for  shipment.  The  Ohio  regulation  was  held  invalid, 
Irrespective  of  conflict  with  any  authority  of  the  Interstate  Commerce  Com- 
mlsslon,  Day,  J.,  saying: 

"By  every  fair  test  the  transportation  of  this  coal  from  the  mine  to  the 
upper  lake  ports  is  an  interstate  carriage,  Intended  by  the  parties  to  lie  such, 
and  the  rate  fixed  by  the  commission,  which  is  in  controversy  here,  is  ap- 
plicable alone  to  coal  which  is  thus,  from  the  beginning  to  the  end  of  its 
transportation,  In  interstate  carriage,  and  such  rate  is  Intended  to  and  dues 
COTer  an   integral  part   Of  that  carriage,   the   transportation   from   the  mine   to 

the  Lane  Erie  port,  the  placing  upon  the  vessel,  and  the  trimming  or  distribut- 
ing in  t lie  hold,  if  required,  so  that  the  vessel  may  complete  such  interstate 
carriage." 

See  So.  Pac.  T.  So.  v.  interst.  Com.  Commis.,  post,  p.  1230;  and  compare 
Gulf,  etc.,  Ry.  v.  Texas.  204  0.  S.  403,  27  Sup.  Ct.  360,  51  E.  Ed  540  (1907) 
(interstate  shipment  to  Texarkana,  Tex.,  by  a  shipper  who  intended  from  the 
first  to  reship  from  there  to  Goldthwaite,  Tex.     Five  days  after  arrival  in 


1172  THE    FEDERAL  GOVERNMENT  (Part  3 

COVINGTON  &  C.  BRIDGE  CO.  v.  KENTUCKY  (1S94)  154 
U.  S.  204,  218,  220-222,  14  Sup.  Ct.  1087,  1092,  3S  L.  Ed.  962,  Mr. 
Justice  Brown  (holding  invalid  a  Kentucky  statute  fixing  maximum 
rates  for  a  toll  bridge  across  the  Ohio  river  between  Kentucky  and 
Ohio,  and  requiring  the  issue  of  tickets  good  in  either  direction) : 

..jf  *  *  *  interstate  commerce  means  simply  commerce  between 
the  states,  it  must  apply  to  all  commerce  which  crosses  the  state  line, 
Hess  of  the  distance  from  which  it  comes  or  to  which  it  is  bound, 
before  or  after  crossing  such  state  line;  in  other  words,  if  it  be  com- 
merce to  send  goods  from  Cincinnati,  in  Ohio,  to  Lexington,  in  Ken- 
tucky, it  is  equally  such  to  send  goods  or  to  travel  in  person  from  Cin- 
cinnati to  Covington.  And,  while  the  reasons  which  influenced  this 
court  to  hold  in  the  Wabash  Case  that  Illinois  could  not  fix  rates  be- 
tween Peoria  and  New  York  may  not  impress  the  mind  so  strongly 
when  applied  to  fixing  the  rates  of  toll  upon  a  bridge  or  ferry,  the 
principle  is  identically  the  same ;  and,  at  least  in  the  absence  of  mu- 
tual or  reciprocal  legislation  between  the  two  states,  it  is  impossible  for 
either  to  fix  a  tariff  of  charges. 

*  *  *  "An  attempt  is  made  to  distinguish  a  bridge  from  a  ferry- 
boat, and  to  argue  that,  while  the  latter  is  an  instrument  of  interstate 
commerce,  the  former  is  not.  Both  are,  however,  vehicles  of  such 
commerce,  and  the  fact  that  one  is  movable  and  the  other  is  a  fixture 
makes  no  difference  in  the  application  of  the  rule.     'Commerce'  was 

Texarkana,  he  did  reship  to  Goldthwaite,  and  rate  upon  latter  shipment  was 
held  subject  to  state  regulation).  See  cases  in  note  to  Coe  v.  Errol,  ante,  at 
p.  1075. 

A  state  cannot  forbid  a  carrier  to  charge  more  for  internal  transportation 
than  is  charged  by  it  for  similar  interstate  transportation  for  a  greater  dis- 
tance over  the  same  route.  L.  &  N.  Ry.  v.  Eubank,  184  U.  S.  27,  43,  22  Sup. 
Ct.  277.  2S3,  46  L.  Ed.  41C  (1902),  Peclcham,  J.,  saying:  "In  the  case  at  bar  the 
state  claims  only  to  regulate  its  local  rates  by  the  standard  of  the  interstate 
rate,  and  says  the  former  shall  be  no  higher  than  the  latter,  but  the  direct 
effect  of  that  provision  is,  as  we  have  seen,  to  regulate  the  interstate  rate,  for 
to  do  any  interstate  business  at  the  local  rate  is  impossible,  and  if  so,  it 
must  give  up  its  interstate  business  or  else  reduce  the  local  rate  in  propor- 
ii hi.  'that  very  result  is  a  hindrance  to,  an  interference  with,  and  a  regula- 
tion of,  commerce  between  the  states,  carried  on,  though  it  may  be,  by  only 
a  single  company." 

May  a  state,  either  by  contract  or  as  a  condition  of  granting  a  franchise, 
pr  sscribe,  limit,  or  otherwise  control  interstate  transportation  rates?  See 
Railroad  Co.  v.  Maryland,  ante,  p.  1094.  Whatever  control  may  be  thus  gained, 
however,  is  subject  to  federal  regulation.  State  v.  Western  &  A.  Ry.,  13S  Ga. 
835,  76  S.  E.  577  (1912). 

A  state  may  forbid  its  railroads  to  acquire  or  to  consolidate  with  parallel 
•Mill  competing  lines,  even  though  engaged  largely  in  interstate  commerce.  L. 
&  X.  Ry.  v.  Kentucky,  161  U.  S.  677,  701-703,  16  Sup.  Ct.  714,  40  L.  Ed.  849 
(1896). 

State  Peculation  op  Rates  for  Services  Incidental  to  National  Com- 
merce.— In  the  absence  of  congressional  legislation  the  rates  for  such  services 
may  be  regulated  by  the  statrs.  Munn  v.  Illinois,  94  U.  S.  113,  135,  24  L.  Ed. 
77  (1S77)  (grain  warehouses);  Ouachita,  etc.,  Co.  v.  Aiken,  121  U.  S  444  7 
Sup.  Ct.  907,  .".0  L.  Ed.  976  (1SS7)  (wharfage);  Morgan  S.  S.  Co.  v.  La.,  118 
r.  S.  -I;,-,,  6  Sup.  ct.  1114,  30  L.  Ed.  237  (18S6)  (quarantine);  Patapsco  Co.  v. 
North  Carolina,  ante.  p.  1157  (inspection). 


Ch.  ]8)  REGULATION    OF   COMMERCE  1178 

defined  in  Gibbons  v.  Ogden,  9  Wheat.  1,  189,  6  L.  Ed.  23,  to  be  'in- 
tercourse,' and  the  thousands  of  people  who  daily  pass  and 
over  this  bridge  may  be  as  truly  said  to  be  engaged  in  commerce  as  if 
ihey  were  shipping  cargoes  of  merchandise  from  New  York  to  Liver- 
pool. While  the  bridge  company  is  not  itself  a  common  carrier,  it 
affords  a  highway  for  such  carriage,  and  a  toll  upon  such  bridge  is  as 
much  a  tax  upon  commerce  as  a  toll  upon  a  turnpike  is  a  tax  upon 
the  traffic  of  such  turnpike,  or  the  charges  upon  a  ferry  a  tax  upon 
the  commerce  across  a  river.  A  tax  laid  upon  those  who  do  the  busi- 
ness of  common  carriers  upon  a  certain  bridge  is  as  much  a  tax  upon 
the  commerce  of  that  bridge  as  if  the  owner  of  the  bridge  were  him- 
self a  common  carrier.     *     *     * 

[Here  the  question  is  mooted  whether,  within  the  doctrine  of  Con- 
way v.  Taylor,  ante,  p.  1144,  a  state  may  regulate  interstate  ferry 
charges  in  the  absence  of  federal  action.]1 

"It  is  clear  that  the  slate  of  Kentucky,  by  the  statute  in  question, 
attempts  to  reach  out  and  secure  for  itself  a  right  to  prescribe  a  rate 
of  toll  applicable,  not  only  to  persons  crossing  from  Kentucky  to 
Ohio,  but  from  Ohio  to  Kentucky ;  a  right  which  practically  nullifies 
the  corresponding  right  of  Ohio  to  fix  tolls  from  her  own  state. 
*  *  *  It  may  be  for  the  interest  of  Kentucky  to  add  to  its  own 
population  by  encouraging  residents  of  Cincinnati  to  purchase  homes 
in  Covington,  and  to  do  this  by  fixing  the  tolls  at  such  a  rate  as  to 
induce  citizens  of  Ohio  to  reside  within  her  borders.  It  mig 
equally  for  the  interest  of  Ohio  to  prescribe  a  higher  rate  of  toll  to 
induce  her  citizens  to  remain  and  fix  their  homes  within  their  own 
state,  and,  as  persons  living  in  one  state  and  doing  business  in  another 
would  necessarily  have  to  cross  the  bridge  at  least  twice  a  day,  the 
rates  of  toll  might  become  a  serious  question  to  them. 

"Congress,  and  Congress  alone,  possesses  the  requisite  power  to 
nize  such  differences,  and  to  enact  a  uniform  scale  of  charges 
which  will  be  operative  in  both  directions.  The  authority  of  the  state, 
so  frequently  recognized  by  this  court,  to  fix  tolls  for  the  use  of 
wharves,  piers,  elevators,  and  improved  channels  of  navigation,  has 
always  been  limited  to  such  as  were  exclusively  within  the  territory  of 
a  single  state,  thus  affecting  interstate  commerce  but  incidentally,  and 
cannot  be  extended  to  structures  connecting  two  states  without  involv- 
ing a  liability  of  controversies  of  a  serious  nature.  For  instance,  sup- 
pose the  agent  of  the  bridge  company  in  Cincinnati  should  refuse  to 
nize  tickets  sold  upon  the  Kentucky  side,  enabling  the  person 
holding  the  ticket  to  pass  from  Ohio  to  Kentucky,  it  would  be  a  mere 
brutum  fulmen  to  attempt  to  punish  such  agent  under  the  laws  of 
Kentucky.  Or,  suppose  the  state  of  Ohio  should  authorize  such 
agent  to  refuse  a  passage  to  persons  coming  from  Kentucky  who  had 

i  Soe  New   York,  etc.,   K.  Go.  v.  Hudson  County.  227  V.  S.  LMS  33  Sup.  Ct. 
2C9.  ">7  L.  Ed.  -       (1)913)  (leaving  s:u |uestion  open). 


1174  THE   FEDERAL   GOVERNMENT  (Part  3 

not  paid  the  toll  required  by  the  Ohio  statute ;  or  that  Kentucky 
should  enact  that  all  persons  crossing  from  Kentucky  to  Ohio  should 
be  entitled  to  a  free  passage,  and  thus  attempt  to  throw  the  whole 
burden  upon  persons  crossing  in  the  opposite  direction.  It  might  be 
an  advantage  to  one  state  to  make  the  charge  for  foot  passengers  very 
low,  and  the  charge  for  merchandise  very  high,  and  for  the  other  side 
to  adopt  a  converse  system.  One  scale  of  charges  might  be  advantage- 
ous to  Kentucky  in  this  instance,  where  the  larger  city  is  upon  the 
north  side  of  the  river,  while  a  wholly  different  system  might  be  to  her 
advantage  at  Louisville,  where  the  larger  city  is  upon  the  south  side. 
"We  do  not  wish  to  be  understood  as  saying  that,  in  the  absence  of 
congressional  legislation  or  mutual  legislation  of  the  two  states,  the 
company  has  the  right  to  fix  tolls  at  its  own  discretion.  There  is  always 
an  implied  understanding  with  reference  to  these  structures  that  the 
charges  shall  be  reasonable,  and  the  question  of  reasonableness  must 
be  settled,  as  other  questions  of  a  judicial  nature  are  settled,  by  the 
evidence  in  the  particular  case.  As  was  said  in  Gloucester  Ferry  Co. 
v.  Pennsylvania,  114  U.  S.  196,  217,  5  Sup.  Ct.  826,  29  L.  Ed.  158: 
'Freedom  from  such  imposition  does  not  of  course  imply  exemption 
from  reasonable  charges,  as  compensation  for  the  carriage  of  per- 
sons, in  the  way  of  tolls  or  fares,  or  from  the  ordinary  taxation  to 
which  other  property  is  subjected,  any  more  than  like  freedom  of 
transportation  on  land  implies  such  exemption.  Reasonable  charges 
for  the  use  of  property,  either  on  water  or  land,  are  not  an  interfer- 
ence with  the  freedom  of  transportation  between  the  states  secured 
under  the  commercial  power  of  Congress.'  Nor  are  we  to  be  under- 
stood as  passing  upon  the  question  whether,  in  the  absence  of  legisla- 
tion by  Congress,  the  states  may  by  reciprocal  action  fix  upon  a  tariff 
which  shall  be  operative  upon  both  sides  of  the  river."  - 

[Fuller,  C.  J.,  and  Field,  Gray,  and  White,  JJ.,  concurred  on 
other  grounds.! 


MINNESOTA  RATE  CASES  (1913)  230  U.  S.  352,  382,  383,  394, 
395,  416,  417,  432,  433,  33  Sup.  Ct.  729,  733,  738,  747,  748,  753,  754, 
57  L.  Ed.  ,  Mr.  Justice  Hughes  (upholding  certain  intrastate  rail- 
road rates  fixed  by  Minnesota — see  other  facts,  ante,  p.  499,  and  in 
opinion  below) : 

"The  state  line  of  Minnesota  on  the  east  and  west  runs  between  cit- 
ies which  are  in  close  proximity.  Superior,  Wisconsin,  and  Duluth, 
Minnesota,  are  side  by  side  at  the  extremity  of  Lake  Superior.  Op- 
posite one  another,  on  the  western  boundary  of  the  state,  lie  Grand 
Forks,  North  Dakota,  and  East  Grand  Forks,  Minnesota ;  Fargo, 
North  Dakota,  and  Moorhead,  Minnesota;  and  Wahpeton,  North  Da- 

2  See  Hanley  v.  Kansas,  etc.,  Ry.,  187  U.  S.  617,  620,  23  Sup.  Ct.  214,  47  L. 
Ed.  333  (1903),  ante,  p.  1171.  note. 


Ch.  18)  REGULATION    OF    COMMERCE  11""' 

kota,  and  F.reckenridge,  Minnesota.  The  cities  in  each  pair  ship  and 
receive,  to  and  from  the  same  localities,  the  same  kinds  of  freight. 
The  railroad  companies  have  always  put  each  on  a  parity  with  the 
other  in  the  matter  of  rates,  ard  if  there  were  a  substantial  difference 
it  would  cause  serious  injury  to  the  commerce  of  the  city  having  the 
higher  rate.  If  the  Northern  Pacific  Company  failed  to  maintain  as 
low  rates  on  traffic  in  and  out  of  Superior  as  on  that  to  and  from  Du- 
luth,  its  power  to  transact  interstate  business  between  Superior  and 
points  in  Minnesota  would  be  seriously  impaired  and  the  value  of  its 
property  in  Superior  would  be  depreciated.     *     *     * 

[After  reciting  the  20  to  25  per  cent,  reduction  of  local  rates  within 
the  state  to  the  above-mentioned  Minnesota  points ;  the  consequent  en- 
forced similar  reduction  by  the  railroads  of  rates  from  Minnesota 
points  to  the  competing  cities  in  neighboring  states  in  order  to  prevent 
the  practical  destruction  of  this  part  of  the  interstate  business  of  these 
cities  and  of  the  railroads  ;  the  necessity  of  continuing  these  reductions 
on  west  from  one  jobbing  center  to  another,  through  Fargo  and  Bis- 
marck in  North  Dakota  and  Billings  and  Butte  in  Montana,  in  order  to 
maintain  the  relative  commercial  positions  of  these  cities  in  their  re- 
spective localities ;  and  the  consequent  loss  of  interstate  revenue  to  the 
railroads:] 

"The  situation  is  not  peculiar  to  Minnesota.  *  *  *  A  scheme  of 
state  rates  framed  to  avoid  discrimination  between  localities  within  the 
state,  and  to  provide  an  harmonious  system  for  intrastate  transporta- 
tion throughout  the  state,  naturally  would  embrace  those  places  within 
the  state  which  are  on  or  near  the  state's  boundaries ;  and  when  these 
are  included  in  a  general  reduction  of  intrastate  rates,  there  is,  of 
course,  a  change  in  the  relation  of  rates  as  theretofore  existing  to 
points  adjacent  to,  but  across,  the  state  line.  *  *  *  Many  other  plac- 
es throughout  the  country  which  might  be  mentioned,  present  substan- 
tially the  same  conditions  as  those  here  appearing  with  respect  to  local- 
ities on  the  boundaries  of  Minnesota.  It  is  also  a  matter  of  common 
knowledge  that  competition  takes  but  little  account  of  state  lines,  and 
in  every  part  of  the  land  competitive  districts  embrace  points  in  differ- 
ent states.     *     *     * 

[After  referring  to  various  cases  holding  that  the  states  may  regu- 
late their  internal  railroad  rates  (sec  Munn  v.  Illinois,  ante.  p.  479,  ana 
notes),  and  to  the  Wabash  Case,  ante.  p.  1166:]  "It  has  never  been 
doubted  that  the  state  could,  if  it  saw  fit,  build  its  own  highways,  ca- 
nals and  railroads.  Baltimore  &  O.  R.  Co.  v.  Maryland,  21  Wall.  456, 
470,  471.  22  L.  Ed.  678.  6S3,  684.  It  could  build  railroads  traversing 
the  entire  state,  and  thus  join  its  border  cities  and  commercial  centers 
by  new  highways  of  internal  intercourse,  to  be  always  available  upon 
reasonable  terms.  Such  provision  for  local  traffic  might  indeed  alter 
relative  advantages  in  competition,  and,  by  virtue  of  economic  forces, 
those  engagfcd  in  interstate  trade  and  transportation  might  find  it  nec- 
essary   to    make    readjustments    extending    from    market    to    market 


1176  THE   FEDERAL  GOVERNMENT  (Part  3 

through  a  wide  sphere  of  influence;  but  such  action  of  the  state 
would  not  for  that  reason  be  regarded  as  creating  a  direct  restraint 
upon  interstate  commerce,  and  as  thus  transcending  the  state  power. 

"Similarly,  the  authority  of  the  state  to  prescribe  what  shall  be  rea- 
sonable charges  of  common  carriers  for  interstate  transportation,  un- 
less it  be  limited  by  the  exertion  of  the  constitutional  power  of  Con- 
gress, is  state-wide.  As  a  power  appropriate  to  the  territorial  juris- 
diction of  the  state,  it  is  not  confined  to  a  part  of  the  state,  but  extends 
throughout  the  state, — to  its  cities  adjacent  to  its  boundaries  as  well 
as  to  those  in  the  interior  of  the  state.  To  say  that  this  power  exists, 
but  that  it  may  be  exercised  only  in  prescribing  rates  that  are  on  an 
equal  or  higher  basis  than  those  that  are  fixed  by  the  carrier  for  inter- 
state transportation,  is  to  maintain  the  power  in  name  while  denying 
it  in  fact.  It  is  to  assert  that  the  exercise  of  the  legislative  judgment 
in  determining  what  shall  be  the  carrier's  charge  for  the  intrastate 
service  is  itself  subject  to  the  carrier's  will.  But  this  state-wide  au- 
thority controls  the  carrier,  and  is  not  controlled  by  it ;  and  the  idea 
that  the  power  of  the  states  to  fix  reasonable  rates  for  its  internal  traf- 
fic is  limited  by  the  mere  action  of  the  carrier  in  laying  an  interstate 
rate  to  places  across  the  state's  border  is  foreign  to  our  jurisprudence. 

"If  this  authority  of  the  state  be  restricted,  it  must  be  by  virtue  of 
the  paramount  power  of  Congress  over  interstate  commerce  and  its  in- 
struments ;  and,  in  view  of  the  nature  of  the  subject,  a  limitation  may 
not  be  implied  because  of  a  dormant  federal  power;  that  is,  one  which 
has  not  been  exerted,  but  can  only  be  found  in  the  actual  exercise  of 
federal  control  in  such  measure  as  to  exclude  this  action  by  the  state 
which  otherwise  would  clearly  be  within  its  province.  *  *  *  [It 
was  denied  that  the  Interstate  Commerce  Act,  at  least  in  the  absence 
of  action  by  the  Commission,1  operated  to  forbid  any  state  regulation 
of  internal  rates.]     *     *     * 

"The  interblending  of  operations  in  the  conduct  of  interstate  and 
local  business  by  interstate  carriers  is  strongly  pressed  upon  our  atten- 
tion. It  is  urged  that  the  same  right  of  way,  terminals,  rails,  bridges, 
and  stations  are  provided  for  both  classes  of  traffic;  that  the  propor- 
tion of  each  sort  of  business  varies  from  year  to  year,  and,  indeed, 
from  day  to  day;  that  no  division  of  the  plant,  no  apportionment  of  it 
between  interstate  and  local  traffic,  can  be  made  to-day,  which  will 
hold  tomorrow ;  that  terminals,  facilities,  and  connections  in  one  state 
aid  the  carrier's  entire  business,  and  are  an  element  of  value  with  re- 
spect to  the  whole  property  and  the  business  in  other  states ;  that 
securities  are  issued  against  the  entire  line  of  the  carrier  and  cannot  be 
divided  by  states ;  that  tariffs  should  be  made  with  a  view  to  all  the 
traffic  of  the  road,  and  should  be  fair  as  between  through  and  short- 
haul  business;    and  that,  in  substance,  no  regulation  of  rates  can  be 

i  As  to  the  Commission's  control  of  intrastate  rates  improoerly  discriminat- 
ing against  interstate  traffic,  see  Texas  &  Pac.  Ry.  v.  United  States,  205  Fed. 
380  (1913). 


Ch.  18)  REGULATION    OF    COMMERCE  1177 

just  which  does  not  take  into  consideration  the  whole  field  of  the  car- 
rier's operations,  irrespective  of  state  lines.  The  force  of  these  con- 
tentions is  emphasized  in  these  cases,  and  in  others  of  like  nature,  by 
the  extreme  difficulty  and  intricacy  of  the  calculations  which  must  be 
made  in  the  effort  to  establish  a  segregation  of  intrastate  business  for 
the  purpose  of  determining  the  return  to  which  the  carrier  is  properly 
entitle  d  therefrom. 

"But  these  considerations  are  for  the  practical  judgment  of  Congress 
in  determining  the  extent  of  the  regulation  necessary  under  existing 
conditions  of  transportation  to  conserve  and  promote  the  interests  of 
interstate  commerce.  If  the  situation  has  become  such,  by  reason  of 
the  interblending  of  the  interstate  and  intrastate  operations  of  inter- 
state carriers,  that  adequate  regulation  of  their  interstate  rates  cannot 
be  maintained  without  imposing  requirements  with  respect  to  their  in- 
trastate rates  which  substantially  affect  the  former,  it  is  for  Congress 
to  determine,  within  the  limits  of  its  constitutional  authority  over  inter- 
state commerce  and  its  instruments,  the  measure  of  the  regulation  it 
should  supply."* 


WESTERN  UNION  TELEGRAPH  CO.  v.  CALL  PUB.  CO. 
(1901)  181  U.  S.  92,  99-102,  21  Sup.  Ct.  561,  564,  565,  45  L.  Ed.  765, 
Mr.  Justice  P>kewer  (affirming  a  decision  of  the  Supreme  Court  of 
Nebraska  awarding  damages  against  defendant  telegraph  company 
for  illegal  discrimination  in  charges  for  interstate  service) : 

"Common  carriers,  whether  engaged  in  interstate  commerce  or 
in  that  wholly  within  the  state,  are  performing  a  public  service.  They 
are  endowed  by  the  state  with  some  of  its  sovereign  powers,  such 
as  the  right  of  eminent  domain,  and  so  endowed  by  reason  of  the 
public  service  they  render.  As  a  consequence  of  this,  all  individuals 
have  equal  rights  both  in  respect  to  service  and  charges.  Of  course, 
such  equality  of  right  docs  not  prevent  differences  in  the  modes  and 
kinds  of  service  and  different  charges  based  thereon.  There  is  no 
cast  iron  line  of  uniformity  which  prevents  a  charge  from  being  above 
or  below  a  particular  sum,  or  requires  that  the  service  shall  lie  ex- 
actly along  the  same  lines.  But  that  principle  of  equality  does  for- 
bid any  difference  in  charge  which  is  n  upon  difference  in 
service,  and,  even  when  based  upon  difference  of  service,  must  have 
some  reasonable  relation  to  the  aim  nun  of  difference,  and  cannot  be 
so  great  as  to  produce  an  unjust  discrimination.  To  affirm  that  a 
condition  of  tilings  exists  under  which  common  carriers  anywhere  in 
the  country,  engaged  in  any  form  of  transportation,  are  relieved  from 
the  burdens  of  these  obligations,  is  a  proposition  which,  to  say  the 
least  is  startling.     And  yet,  as  we  have   seen,  that   is  precisely  the 

-  See  the  argument  contrary  to  the  principal  case  by  the  lower  court  In  the 
same  ease,  Shepard  \\  No.  I'm.-.  Ry.,  L84  Fed.  765,  77<>  799  (1911). 


1178  THE   FEDERAL   GOVERNMENT  (Part  ."> 

contention  of  the  telegraph  company.  It  contends  that  there  is  no 
federal  common  law,  and  that  such  has  been  the  ruling  of  this  court  ; 
there  was  no  federal  statute  law  at  the  time  applicable  to  this  case, 
and,  as  the  matter  is  interstate  commerce,  wholly  removed  from 
state  jurisdiction,  the  conclusion  is  reached  that  there  is  no  control- 
ling law,  and  the  question  of  rates  is  left  entirely  to  the  judgment  or 
whim  of  the  telegraph  company.     *     *     * 

"Reference  is  also  made  to  opinions  in  which  it  has  been  stated  that 
there  is  no  federal  common  law  different  and  distinct  from  the  com- 
mon law  existing  in  the  several  states.  Thus,  in  Smith  v.  Alabama, 
124  U.  S.  465,  31  L.  Ed.  508,  1  Inters.  Com.  Rep.  804,  8  Sup.  Ct. 
564,  it  was  said  by  Mr.  Justice  Matthews,  speaking  for  the  court: 

"  'There  is  no  common  law  of  the  United  States  in  the  sense  of  a 
national  customary  law  distinct  from  the  common  law  of  England  as 
adopted  by  the  several  states,  each  for  itself,  applied  as  its  local  law, 
and  subject  to  such  alteration  as  may  be  provided  by  its  own  stat- 
utes. Wheaton  v.  Peters,  8  Pet.  591,  8  L.  Ed.  1055. 1  A  determina- 
tion in  a  given  case  of  what  that  law  is  may  be  different  in  a  court 
of  the  United  States  from  that  which  prevails  in  the  judicial  tribunals 
of  a  particular  state.  This  arises  from  the  circumstance  that  the 
courts  of  the  United  States,  in  cases  within  their  jurisdiction  where 
they  are  called  upon  to  administer  the  law  of  the  state  in  which  they 
sit,  or  by  which  the  transaction  is  governed,  exercise  an  independent, 
though  concurrent,  jurisdiction,  and  are  required  to  ascertain  and  de- 
clare the  law  according  to  their  own  judgment.  This  is  illustrated 
by  the  case  of  New  York  C.  R.  Co.  v.  Lockwood,  17  Wall.  357,  21 
L.  Ed.  627,  where  the  common  law  prevailing  in  the  state  of  New 
York  in  reference  to  the  liability  of  common  carriers  for  negligence 
received  a  different  interpretation  from  that  placed  upon  it  by  the 
judicial  tribunals  of  the  state ;  but  the  law  as  applied  is  none  the  less 
the  law  of  that  state.'  P.  478,  L.  Ed.  512,  Inters.  Com.  Rep.  808, 
Sup.  Ct.  569. 

"Properly  understood,  no  exceptions  can  be  taken  to  declarations 
of  this  kind.  There  is  no  body  of  federal  common  law  separate  and 
distinct  from  the  common  law  existing  in  the  several  states,  in  the 
sense  that  there  is  a  body  of  statute  law  enacted  by  Congress  separate 
and  distinct  from   the  body  of   statute  law   enacted  by   the  several 

i  Accord :  U.  S.  v.  Hudson,  7  Cranch,  32,  3  L.  Ed.  259  (1S12)  (criminal 
law— semble) ;  Chicago,  etc.,  Ry.  v.  Solan,  169  U.  S.  133,  136,  137,  18  Sup.  Ct. 
289,  42  L.  Ed.  6SS  (189S)  (contract  exemption  of  carrier  from  negligence); 
Willamette  Bridge  Co.  v.  Hatch,  125  U.  S.  1,  8,  8  Sup.  Ct.  811,  815,  31  L.  Ed. 
629  (1888),  Bradley,  J.,  saying:  "There  must  be  a  direct  statute  of  the  United 
States  in  order  to  bring  within  the  scope  of  its  laws,  as  administered  by  the 
courts  of  law  and  equity,  obstructions  and  nuisances  in  navigable  streams 
within  the  states.  Such  obstructions  and  nuisances  are  offenses  against  the 
laws  of  the  states  within  which  the  navigable  waters  lie,  and  may  be  indicted 
or  prohibited  as  such;  but  they  are  not  offenses  against  United  States  laws 
which  do  not  exist;  and  none  such  exist  except  what  are  to  be  found  on  the 
statute  book."  See  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  518.  564, 
It  I>.  Ed.  249  (1852). 


Ch.  18)  REGULATION    OF    COMMERCE!  1179 

states.  But  it  is  an  entirely  different  thing  to  hold  that  there  is  no 
common  law  in  force  generally  throughout  the  United  States,  and 
that  the  countless  multitude  of  interstate  commercial  transactions 
are  subject  to  no  rules  and  burdened  by  no  restrictions  other  than 
those  expressed  in  the  statutes  of  Congress. 

"What  is  the  common  law?  *  *  *  In  Black's  Law  Dictionary, 
page  232.  it  is  thus  defined :  'As  distinguished  from  law  created  by 
tke  enactment  of  legislatures,  the  common  law  comprises  the  body 
of  those  principles  and  rules  of  action  relating  to  the  government  and 
security  of  persons  and  property,  which  derive  their  authority  solely 
from  usages  and  customs  of  immemorial  antiquity,  or  from  the  judg- 
ments and  decrees  of  the  courts  recognizing,  affirming,  and  enforcing 
such  usages  and  customs;  and,  in  this  sense,  particularly  the  ancient 
unwritten  law  of  England.' 

"Can  it  be  that  the  great  multitude  of  interstate  commercial  trans- 
actions are  freed  from  the  burdens  created  by  the  common  law,  as  so 
defined,  and  are  subject  to  no  rule  except  that  to  be  found  in  the 
statutes  of  Congress?  We  are  clearly  of  opinion  that  this  cannot 
be  so,  and  that  the  principles  of  the  common  law  are  operative  upon 
all  interstate  commercial  transactions,  except  so  far  as  they  are  modi- 
fied by  congressional  enactment."  * 


SOUTHERN  RY.  CO.  v.  KING  (1910)  217  U.  S.  524,  332-534, 
536.  537,  30  Sup.  Ct.  594-597,  54  L.  Ed.  868,  Mr.  Justice  Day  (up- 
holding a  Georgia  statute  requiring  the  speed  of  railroad  trains  to  be 
checked  at  highway  crossings); 

"The  rights  of  the  states  to  pass  laws  not  having  the  effect  to  regu- 
late or  directly  interfere  with  the  operations  of  interstate  commerce, 
passed  in  the  exercise  of  the  police  power  of  the  state,  in  the  interest 

«  Accord:  Mo.  Pac.  Ry.  v.  Larabee  Co.,  211  U.  S.  612,  29  Sup.  Ct.  214.  53 
r,.  Ed.  35?  (1909)  (discrimination  In  transferrins  cars).  See  Transportation 
Co.  v.  Parkerstrarg,  107  U.  S,  691,  700.  2  Sup.  Ct  732,  27  L.  Ed.  584  (1888). 
Tn  W.  D.  Teleg.  Co.  v.  Com.  Milling  Co..  218  D.  S.  406,  416,  417.  31  Sup.  Ct 
59,  62,  54  T..  fid.  1088,  36  L.  It.  A.  (X.  S.)  220.  21  Ann.  Cas.  S15  (1910),  the 
court,  by  McKenna.  J.,  denied  (semble)  that  a  state  common  law  rule  could 
have  a  validity  denied  to  a  similar  statute: 

"We  cannot  concede  such  effect  to  the  common  law  and  deny  It  to  a  statute. 
Both  are  rules  of  conduct  proceeding  from  the  supreme  power  of  th 
That  one  is  unwritten  and  the  other  written  can  make  no  difference  In  their 
validity  or  effect.  The  common  law  did  not  become  a  part  of  the  laws  of  the 
states  of  its  own  vigor.  It  has  been  adopted  by  constitutional  provision,  by 
statute  or  decision,  and,  we  may  say  in  passing,  is  not  the  same  in  all  par- 
ticulars in  all  the  states.  But,  however  adopted,  it  expresses  the  policy  of 
the  state  for  the  time  being  only,  and  is  subject  to  change  by  the  power  that 
adopted  it.  How,  then,  can  it  have  an  efficacy  that  the  statute  changing  it 
does  not  possess?" 

See  also  St  L.,  etc.,  Ry.  v.  Arkansas,  217  U.  S.  13C,  30  Sup.  Ct  476,  54  L. 
Ed.  69S.  29  L.  K.  A.  (N.  S.)  802  (1910),  holding  invalid  a  statutory  prescription 
of  a  railroad's  duty  to  furnish  cars,  said  by  the  state  court  to  be  merely  de- 
claratory of  the  state  common  law. 


HSO  Till:    FEDERAL  GOVERNMENT  (Part?. 

of  the  public  health  and  safety,  have  been  maintained  by  the  decisions 
of  this  court.  We  may  instance  some  of  the  cases  of  this  nature  in 
which  statutes  have  been  held  not  to  be  a  regulation  of  interstate 
commerce,  although  they  may  affect  the  transaction  of  such  com- 
merce among  the  states.  In  Smith  v.  Alabama,  124  U.  S.  465,  31  L. 
Ed.  508,  1  Inters.  Com.  Rep.  804,  8  Sup.  Ct.  564,  it  was  held  to  be 
within  the  police  power  of  the  state  to  require  locomotive  engineers 
to  be  examined  and  licensed.  In  New  York,  N.  H.  &  H.  R.  Co.  V: 
New  York,  165  U.  S.  628,  41  L.  Ed.  853,  17  Sup.  Ct.  418,  a  law  reg- 
ulating the  heating  of  passenger  cars  and  requiring  guard  posts  on 
bridges  was  sustained.  *  *  *  In  Erb  v.  Morasch,  177  U.  S. 
584,  44  L.  Ed.  897,  20  Sup.  Ct.  819,  it  was  held  that  a  municipal  or- 
dinance of  Kansas  City,  Kansas,  although  applicable  to  interstate 
trains,  which  restricted  the  speed  of  all  trains  within  the  city  limits 
to  6  miles  an  hour,  was  a  valid  exertion  of  the  police  power  of  the 
state.  In  the  case  of  Crutcher  v.  Kentucky,  141  U.  S.  47,  35  L.  Ed. 
649,  11  Sup.  Ct.  851,  this  court  said: 

"  'It  is  also  within  the  undoubted  province  of  the  state  legislature 
to  make  regulations  with  regard  to  the  speed  of  railroad  trains  in 
the  neighborhood  of  cities  and  towns;  with  regard  to  the  precau- 
tions to  be  taken  in  the  approach  of  such  trains  to  bridges,  tunnels, 
deep  cuts  and  sharp  curves,  and,  generally,  with  regard  to  all  opera- 
tions in  which  the  lives  and  health  of  people  may  be  endangered,  even 
though  such  regulations  affect,  to  some  extent,  the  operations  of  in- 
terstate commerce.  Such  regulations  are  eminently  local  in  their 
character,  and,  in  the  absence  of  congressional  regulations  over  the 
same  subject,  are  free  from  all  constitutional  objections,  and  unques- 
tionably valid.'      *     *     * 

"Applying  the  general  rule  to  be  deduced  from  these  cases  to  such 
regulations  as  are  under  consideration  here,  it  is  evident  that  the 
constitutionality  of  such  statutes  will  depend  upon  their  effect  upon 
interstate  commerce.  It  is  consistent  with  the  former  decisions  of 
this  court,  and  with  a  proper  interpretation  of  constitutional  rights. 
at  least  in  the  absence  of  congressional  action  upon  the  same  sub- 
ject-matter, for  the  state  to  regulate  the  manner  in  which  interstate 
trains  shall  approach  dangerous  crossings,  the  signals  which  shall  be 
given,  and  the  control  of  the  train  which  shall  be  required  under 
such  circumstances.  Crossings  may  be  so  situated  in  reference  to 
cuts  or  curves  as  to  render  them  highly  dangerous  to  those  using 
the  public  highways.  They  may  be  in  or  near  towns  or  cities,  so 
that  to  approach  them  at  a  high  rate  of  speed  would  be  attended  with 
great  danger  to  life  or  limb.  On  the  other  hand,  highway  crossings 
may  be  so  numerous  and  so  near  together  that  to  require  interstate 
trains  to  slacken  speed  indiscriminately  at  all  such  crossings  would 
be  practically  destructive  of  the  successful  operation  of  such  passen- 
ger  trains.     Statutes  which  require  the  speed  of  such   trains  to  be 


Ch.  18)  REGULATION    of   COMMERCH  1181 

checked  at  all  crossings  so  situated  might  not  only  be  a  regulation, 
but  also  a  direct  burden  upon  interstate  commerce,  and  therefor  be- 
yond the  power  of  the  state  to  enact.     *     *     * 

"The  amended  answer  contains  the  general  statement  that  the  stat- 
ute is  in  violation  of  the  commerce  clause  of  the  Constitution.  But 
these  averments  are  mere  conclusions.  They  set  forth  no  facts 
which  would  make  the  operation  of  the  statute  unconstitutional.  In 
the  absence  of  facts  setting  up  a  situation  showing  the  unreasonable 
character  of  the  statute  as  applied  to  the  defendant  under  the  cir- 
cumstances, we  think  the  amended  answer  set  up  no  legal  defense, 
and  that  the  demurrer  thereto  was  properly  sustained."  ' 

[Holmes  and  White,  JJ.,  dissented  in  their  interpretation  of  de- 
fendant's answer.] 

i  Accord  (in  addition  to  the  cases  cited  In  the  above  opinion):     Nashville, 

etc.  Ky.  v.  Alabama,  128  (J.  S.  96,  9  Sup.  Ct.  28,  32  \,.  Ed.  352  (1888)  (railway 

operatives  required  to  show  freedom  from  color-blindness) ;    Chicago,  etc.,  Ry. 

Lnsas,  219  r.  S.  453,  465,  166,  31  Sup.  Ct.  275,  55  L.  Ed.  290  (191 1  >  (three 

brakemen  required  on  freight  trains  of  over  25  cars),  Harlan.  J.,  savins: 

"Beyond  doubt,  passengers  on  interstate  carriers  while  within  Arkansas  arc 
as  fully  entitled  to  the  benefits  of  valid  local  laws  enacted  for  the  public  safety 
as  are  citizens  of  the  state.  •  •  •  The  statute  here  Involved,  *  ♦  » 
upon  its  face,  must  be  taken  as  not  directed  against  interstate  commerce,  but 
as  having  been  enacted  In  aid,  not  in  obstruction,  of  such  commerce,  and  for 
the  protection  of  those  engaged  in  such  commerce.  Under  the  evidence,  there 
is  admittedly  some  roqm  for  controversy  as  to  whether  the  statute  Is  or  was 
necessary;  hut  it  cannot  be  said  that  it  is  so  unreasonable  as  to  justify  the 
court  in  adjudging  that  it  is  merely  an  arbitrary  exercise  of  power,  and  not 
germane  to  the  objects  which  evidently  thi>  slate  Legislature  had  in  view.  It 
is  a  means  employed  by  the  state  to  accomplish  an  object  which  it  is  entitled 
to  accomplish,  and  such  means,  even  If  deemed  unwise,  are  not  to  be  con- 
demned or  disregarded  by  the  courts,  if  they  have  a  real  relation  to  that  ob- 
j<"  i  " 

(  ompare  Hall  v.  De  Ouir,  ante,  p.  11G3. 

In  N.  V..  etc.,  Ky.  V.  New  York,  165  1'.  S.  628,  632,  633,  17  Sup.  Ct.  418,  120. 
41  1..  Ed.  S53  (1S97),  Harlan,  J.,  said  (upholding  as  to  interstate  traffic,  with- 
in the  state,  a  New  York  statute  forbidding  the  heating  of  passenger  cars  by 

"Counsel  for  the  railroad  suggests  that  a  conflict  between  state  regulations 
in  respect  of  the  heating  of  passenger  cars  used  in  interstate  commerce  would 
make  safe  and  rapid  transportation  impossible;  that  to  st.oi  an  express  train 
on  its  trip  from  New  ?ork  to  Boston  at  the  Connecticut  line  in  order  that 
era  may  leave  the  cars  heated  as  required  by  New  York,  and  gel  Into 
other  cars  heated  in  a  different  mode  in  conformity  with  the  laws  of  Con- 
necticut, and  then  at  the  Massachusetts  line  to  get  into  cars  heated  by  still 
another  mode  as  required  by  the  laws  of  that  commonwealth,  would  be  a  hard- 
ship on  travel  that  could  not  be  endured.  These  possible  Inconvenii  n 
not  affect  the  jui  -lion  of  power  In  each  slate  to  make  such  reasonable  regula- 

r  the  safety  or  passengers  on  interstate  trains  as  In  its  judgm 
things  considered,  is  appropriate  and  effective.     Inconveniences  of  this  char- 

unci  be  avoided  SO  long  as  each  state  has  plenary  authority  within 
its  territorial  limits  to  provide  for  the  safety  of  the  public  I ording  to  it- 
own  views  of  necessity  and  public  policy,  and  so  long  ;i-  Congress  deems  it 

v.Uc  no!  to  establish  regulations  on  the  subject  that  would  displace  any  in 
consistent  regulations  of  the  states  covering  the  same  ground." 


1182  THE   FEDERAL   GOVERNMENT  (Part  3 

WESTERN  UNION  TELEGRAPH  CO.  v.  COMMERCIAL 
MILLING  CO. 

(Supreme  Court  of  United  States,  1910.    218  U.  S.  406,  31  Sup.  Ct.  59,  51  L. 
Ed.  10SS,  36  L.  R.  A.  [N.  S.]  220,  21  Ann.  Cas.  S15.) 

[Error  to  the  Supreme  Court  of  Michigan.  Plaintiff  sent  by  de- 
fendant telegraph  company  at  Detroit,  Michigan,  a  commercial  mes- 
sage to  be  transmitted  to  Kansas  City,  Missouri.  Defendant  sent  it 
promptly  as  far  as  Chicago,  but  never  delivered  it  in  Kansas  City.  A 
printed  condition  of  the  contract  under  which  defendant  sent  the  mes- 
sage limited  plaintiff's  damages  for  its  non-delivery  to  50  times  its 
cost.  A  Michigan  statute  forbade  telegraph  companies  to  limit  their 
liability  for  damages  due  to  negligent  non-delivery  of  messages.  Plain- 
tiff recovered  damages  in  excess  of  the  stipulated  amount,  and  one  di- 
vision of  the  state  Supreme  Court  affirmed  this.] 

Mr.  Justice  McKenna.  *  *  *  "The  contract,"  it  was  said  [by 
the  state  court],  "was  made  in  the  state,  is  single,  involves  in  its  per- 
formance service  of  defendant  within  and  without  this  state  for  a  single 
charge."  The  service  was  not  performed,  and  for  the  breach  of  the 
common-law  and  contract  duty  the  milling  company  has  brought 
suit,  it  was  said,  and  that  the  telegraph  company  seeks  to  avoid  liability 
by  the  stipulation  on  the  back  of  the  rnessage.  To  this  defense  it  was 
answered : 

"By  the  law  of  the  state,  the  stipulation  is  of  no  force  or  effect. 
*  *  *  Undoubtedly,  it  was  the  application  of  a  local  law  to  the 
contract.  But  the  local  law  does  not  attempt  to  state,  measure,  or 
define  any  duty  of  defendant,  or  to  establish,  define,  or  fix  the  conse- 
quences of  its  miscarriage.  The  liability  of  defendant  is  established 
without  reference  to  the  statute.  It  is  when  it  asks  to  be  discharged 
therefrom,  by  giving  effect  to  the  stipulation,  that  the  local  law  be- 
comes, if  at  all,  effective.  These  considerations  answer  those  objec- 
tions which  are  based  upon  the  notion  that  the  local  law  has  been 
given  extraterritorial  effect,  and  they  require,  also,  that  this  case  and 
Western  U.  Teleg.  Co.  v.  Pendleton,  122  U.  S.  347,  30  L.  Ed.  11S7, 
I  Inters.  Com.  Rep.  306,  7  Sup.  Ct.  1126,  shall  be  distinguished." 

Western  U.  Teleg.  Co.  v.  Pendleton  leaves  nothing  to  be  said  upon 
the  principles  relating  to  interstate  telegraphic  messages  and  the  lim- 
itations upon  the  states  of  power  to  regulate  them.  *  *  *  [An 
Indiana  statute  that  prescribed  the  mode  in  which  telegraph  compan- 
ies should  deliver,  even  outside  of  the  state,  messages  sent  from  with- 
in, was  in  this  case  held  invalid  as  applied  to  the  delivery  of  such  a 
message  in  Iowa  in  accordance  with  Iowa  law  but  not  as  prescribed 
by  the  Indiana  statute.]  Of  the  correctness  of  that  conclusion  there 
cannot  be  any  controversy,  but  there  is  a  manifest  difference  between 
the  statute  of  Indiana  and  the  statute  of  Michigan  and  their  purposes 
and  effects.    The  former  imposed  affirmative  duties,  and  regulated  the 


Lh.  IS)  REGULATION    fir    COMMERCE)  1183 

performance  of  the  business  of  the  telegraph  company.  It  besides 
ignored  the  requirements  or  regulations  of  another  state,  made  its 
laws  paramount  to  the  laws  of  another  state,  gave  an  action  for  dam- 
ages against  the  permission  of  such  laws  for  acts  done  within  its  juris- 
diction. Such  a  statute  was  plainly  a  regulation  of  interstate  com- 
merce, and  exhibited  in  a  conspicuous  degree  the  evils  of  such  inter- 
ference by  a  state,  and  the  necessity  of  one  uniform  plan  of  regulation. 
The  statute  of  Michigan  has  no  such  objectionable  qualities.  It  im- 
poses no  additional  duty.  It  gives  sanction  only  to  an  inherent  duty. 
It  declares  that  in  the  performance  of  a  service  public  in  its  nature, 
that  it  is  a  policy  of  the  state  that  there  shall  be  no  contract  against 
negligence.  The  prohibition  of  the  statute,  therefore,  entails  no  bur- 
den. It  permits  no  release  from  that  duty  in  the  public  service  which 
men  in  their  intercourse  must  observe, — the  duty  of  observing  the  de- 
gree of  care  and  vigilance  which  the  circumstances  justly  demand,  to 
avoid  injury  to  another. 

We  have  seen  that  one  division  of  the  supreme  court  of  the  state  wn- 
of  the  view  that  if  the  prohibition  rested  on  the  common  law.  its 
validity  could  not  be  questioned.  We  cannot  concede  such  effect  to 
the  common  law  and  deny  it  to  a  statute.  [Here  follows  the  passage 
quoted  ante,  p.  117°,  note.]  It  is  to  the  laws,  whether  part  of  the  com- 
mon law  or  found  in  the  statutes  of  the  state,  that  we  look  for  the  val- 
idity and  extent  of  a  contract  between  persons.  They  constitute  its 
obligation.  How  far  this  principle  is  limited  by  the  commerce  clause 
of  the  Constitution  of  the  United  States  may  be  illustrated  by  several 
cases  cognate  to  the  one  at  bar. 

In  Chicago,  M.  &  St.  P.  R.  Co.  v.  Solan,  169  U.  S.  133,  42  L.  Ed. 
688,  18  Sup.  Ct.  289,  *  *  *  fan  Iowa  statute  forbade  railways  to 
limit  their  common  law  liability.  Solan  was  injured  in  Iowa  bv  de- 
fendant's negligence,  while  being  transported  to  Chicago  in  charge 
of  cattle,  under  a  contract  limiting  the  railway's  liability  to  $500.  He 
sued  for  $10,000.1  The  company  alleged  that  the  stipulation  was  part 
of  the  consideration  for  the  transportation,  that  it  related  exclusively 
to  interstate  comnierce,  that  it  was  valid  at  common  law,  and  that  the 
statute  of  Iowa  was  void  and  unconstitutional,  "as  being  an  attempt 
to  regulate  and  limit  contracts  relating  to  interstate  commerce."  The 
contentions  were  rejected.    The  court  said  :     *     *     * 

"The  rules  prescribed  for  the  construction  of  railroads,  and  for  their 
management  and  operation,  designed  to  protect  persons  and  property 
otherwise  endangered  by  their  use,  are  strictly  within  the  scope  of  the 
local  law.  *  *  *  The  statute  now  in  question,  so  far  as  it  con- 
cerns liability  for  injuries  happening  within  the  state  of  Iowa. — which 
is  the  only  matter  presented  for  decision  in  this  case, — clearly  comes 
within  the  same  principles.  It  is  in  no  just  sense  a  regulation  of  com- 
merce. It  does  not  undertake  to  impose  any  tax  upon  the  company.  >  >r 
to  restrict  the  persons  or  things  to  be  carried,  or  to  regulate  the  rate 
of  tolls,  fares,  or  freight.     Its  whole  object  and  effect  are  to  make  it 


1184  THE   FEDERAL   GOVERNMENT  (Part  3 

more  sure  that  railroad  companies  shall  perform  the  duty  resting  upon 
them  by  virtue  of  their  employment  as  common  carriers  to  use  the  ut- 
most care  and  diligence  in  the  transportation  of  passengers  and 
goods." 

^  Pennsylvania  R.  Co.  v.  Hughes,  191  U.  S.  477,  48  L.  Ed.  268,  24 
Sup.  Ct.  132,  may  be  cited  as  pertinent.  It  determined  the  validity  of 
the  common  law  of  Pennsylvania,  which  prohibited  the  common  car- 
rier from  limiting  his  liability  for  his  own  negligence,  though  the  prop- 
erty  was  shipped  from  New  York  to  a  town  in  Pennsylvania,  under  a 
bill  of  lading  which  contained  a  clause  limiting  the  carrier's  liability  to 
a  stipulated  value  in  consideration  of  the  rate  paid,  the  shipper  having 
been  offered  a  bill  of  lading  without  such  limitation  on  payment  of  a 
higher  rate.  The  court  quoted  at  length  from  the  Solan  Case,  and 
concluded  as  follows : 

"We  can  see  no  difference  in  the  application  of  the  principle  based 
upon  the  manner  in  which  the  state  requires  this  degree  of  care  and 
responsibility,  whether  enacted  into  a  statute  or  resulting  from  the 
rules  of  law  enforced  in  the  state  courts.  The  state  has  a  right  to  pro- 
mote the  welfare  and  safety  of  those  within  its  jurisdiction  by  requir- 
ing common  carriers  to  be  responsible  to  the  full  measure  of  the  loss 
resulting  from  their  negligence,  a  contract  to  the  contrary  notwith- 
standing." 

There  is  a  difference  between  that  case  and  this, — indeed  some  con- 
trast. In  that  case  a  contract  was  made  in  New  York  which  limited 
the  liability  of  the  carrier,  the  limitation  being  in  accordance  with  the 
laws  of  that  state ;  it  was  disregarded  in  Pennsylvania,  where  the  act 
of  negligence  occurred,  and  the  law  of  the  latter  enforced.  In  this 
case  the  contract  limiting  liability  was  made  in  Michigan,  the  negli- 
gent act  occurred  in  another  state,  and  yet  the  limitation,  it  is  insisted, 
is  void.  In  other  words,  in  that  case  the  law  of  the  state  was  disre- 
garded ;  in  this  case  it  is  sought  to  be  enforced.  These,  however,  are 
but  incidental  contrasts,  in  no  way  affecting  the  basic  principle  of  the 
cases,  which  was  that  the  laws  passed  upon  were  exercises  of  the  police 
power  of  the  states  in  aid  of  interstate  commerce,  and,  although  in- 
cidentally affecting  it,  did  not  burden  it. 

Western  U.  Teleg.  Co.  v.  James,  162  U.  S.  650,  40  L.  Ed.  1105, 
16  Sup.  Ct.  934,  is  a  strong  example  of  the  same  distinctions.  A  stat- 
ute of  Georgia  which  required  telegraph  companies  having  wires  whol- 
ly or  partly  within  the  state  to  receive  despatches,  transmit  and  de- 
liver them  with  due  diligence,  under  the  penalty  of  $100,  was  sus- 
tained as  a  valid  exercise  of  the  power  of  the  state  in  relation  to  mes- 
sages by  telegraph  from  points  outside  of  and  directed  to  some  point 
within  the  state.  It  will  be  observed  that  this  case  in  some  particulars 
exhibits  a  contrast  to  Western  U.  Teleg.  Co.  v.  Pendleton,  122  U.  S. 
347,  30  L.  Ed.  1187,  1  Inters.  Com.  Rep.  306,  7  Sup.  Ct.  1126,  and 
yet  they  are  entirely  reconcilable,  having  a  common  principle.  In 
the  latter  case  the  law  passed  on  clearly  transcended  the  power  of  the 


Ch.  18)  REGULATION    OF    COMMERCE  1185 

state,  because  it  directly  regulated  interstate  commerce,  as  we  have 
already  shown.  In  the  James  Case  the  power  of  the  state  was  exer- 
cised in  aid  of  commerce.  In  the  latter  case  prior  cases  were  reviewed, 
and  the  principle  determining  the  validity  of  the  respective  statutes 
was  declared  to  be  whether  they  could  be  "fully  carried  out  and  i 
without  in  any  manner  affecting  the  conduct  of  the  company  with  re- 
gard to  the  performance  of  its  duties  in  other  states."  1     *     *     * 

And  there  can  be  liability  to  the  sender  of  the  message  as  well  as 
to  him  who  is  to  receive  it.  The  telegraph  company  in  the  case  at  bar 
surely  owed  the  obligation  to  the  milling  company  to  not  only  trans- 
mit the  message,  but  to  deliver  it.  For  the  failure  of  the  latter  it 
sought  to  limit  its  responsibility,— to  make  the  measure  of  its  default 
not  the  full  and  natural  consequence  of  the  breach  of  its  obligation, 
but  the  mere  price  of  the  service,  relieving  itself,  to  some  extent,  even 
from  the  performance  of  its  duty ;  a  duty,  we  may  say,  if  performed 
or  omitted,  may  have  consequence  beyond  the  damage  in  the  particu- 
lar instance.  This  the  statute  of  the  state,  expressing  the  policy  of  the 
state,  declares  shall  not  be.  For  the  reasons  stated  we  think  that  this 
may  be  done,  and  that  it  is  not  an  illegal  interference  with  interstate 
commerce.     *     *     * 

Judgment  affirmed.2 

[Holmes,  J.,  dissented.] 

i  Accord:  W.  U.  Teleg.  Co.  v.  Crovo.  220  TT.  S.  364,  31  Sup.  Ct.  309,  55  L. 
Ed.  [98  (1011)  istate  from  which  interstate  message  is  sent  may  penalize  de- 
fault in  sending}. 

-  A  state  may  regulate  the  form  in  which  a  contract  shall  be  made,  even 
though  its  suliject-matter  be  interstate  commerce.  Richmond,  etc.  Ry.  v.  Pat- 
terson Co.,  169  U.  S.  311,  18  Sup.  Ct.  335,  42  L.  Ed.  759  (1898)  (carrier  deemed 
to  assume  obligation  for  safe  carriage  over  connecting  lines,  unless  exempted 
by  written  contract);  Mo.,  K.  &  T.  By.  v.  McCann,  174  u.  s.  580.  10  Sup.  ct. 
755,  43  I..  Ed.  1093  (1S99)  (same,  unless  exemption  made  in  certain  part  of  bill 
i.r  lading),    in  the  Brst  case,  White,  J.,  said  ii<:'.>  r.  s.  at  page  314): 

"The  distinction  between  a  law  which  forbids  a  contract  to  be  made  and 
one  which  simply  requires  the  contract  when  made  to  be  embodied  in  a  par- 
tlcular  form  is  obvious.  *  *  *  It  is,  of  course,  elementary  that  v.:, 
object  of  a  contract  is  the  transportation  of  articles  of  commerce  front  one 
State  to  another  that  no  power  is  left  in  the  states  to  burden  or  forbid  it; 
but  this  does  not  imply  that,  because  such  want  of  power  obtains,  there  is 
also  do  authority  on  the  part  of  the  several  states  to  create  rules  of  evidence 
governing  the  form  in  which  such  contracts  when  entered  Into  within  their 
borders  may  be  made,  at  least  until  Congress,  by  general  legislation,  has  un- 
dertaken to  govern  the  subject." 

But  a  state  cannot  forbid 'contracts  exempting  carriers  from  liability  for 
injury  to   Interstate  shipments  due  to  the  negligence  of  connecting  carriers, 
nor  can  such  exemptions  be  burdened  with  onerous  conditions.    Cent,  of  Ga. 
Ky.  v.  Murphey,  190  U.  S.  194,  25  Sup.  Ct.  218,  49  L.  Ed.  444,  2  Ann.  I 
(1905). 

IIat.i.  Const.E. — 75 


11S6  THE   FEDERAL  GOVERNMENT  (Part  ?> 


HOUSTON  &  T.  C.  R.  CO.  v.  MAYES  (1906)  201  U.  S.  321, 
328-331,  26  Sup.  Ct.  491,  50  L.  Ed.  772,  Mr.  Justice' Brown  (holding 
invalid,  as  applied  to  interstate  commerce,  a  Texas  statute  imposing 
upon  railroads  a  penalty  of  $25  a  day  for  delay  in  furnishing  each  car 
demanded  in  writing  by  shippers,  with  reciprocal  penalties  upon  ship- 
pers for  delay  in  loading  or  unloading  cars) : 

"As  the  power  to  build  and  operate  railways,  and  to  acquire  land  by 
condemnation,  usually  rests  upon  state  authority,  the  legislatures  may 
annex  such  conditions  as  they  please  with  regard  to  intrastate  trans- 
portation, and  such  other  rules  regarding  interstate  commerce  as  are 
not  inconsistent  with  the  general  right  of  such  commerce  to  be  free 
and  unobstructed.     *     *     * 

"While  there  is  much  to  be  said  in  favor  of  laws  compelling  rail- 
roads to  furnish  adequate  facilities  for  the  transportation  of  both 
freight  and  passengers,  and  to  regulate  the  general  subject  of  speed, 
length,  and  frequency  of  stops,  for  the  heating,  lighting,  and  ventila- 
tion of  passenger  cars,  the  furnishing  of  food  and  water  to  cattle  and 
other  live  stock,  we  think  an  absolute  requirement  that  a  railroad  shall 
furnish  a  certain  number  of  cars  at  a  specified  day,  regardless  of  every 
other  consideration  except  strikes  and  other  public  calamities,  tran- 
scends the  police  power  of  the  state,  and  amounts  to  a  burden  upon 
interstate  commerce.  It  makes  no  exception  in  cases  of  a  sudden  con- 
gestion of  traffic,  an  actual  inability  to  furnish  cars  by  reason  of  their 
temporary  and  unavoidable  detention  in  other  states,  or  in  other  places 
within  the  same  state.  It  makes  no  allowance  for  interference  of  traf- 
fic occasioned  by  wrecks  or  other  accidents  upon  the  same  or  other 
roads,  involving  a  detention  of  traffic,  the  breaking  of  bridges,  acci- 
dental fires,  washouts,  or  other  unavoidable  consequences  of  heavy 
weather.  *  *  *  We  think  that  in  its  practical  operation  it  is  likely 
to  work  a  great  injustice  to  the  roads,  and  to  impose  heavy  penalties 
for  trivial,  unintentional,  and  accidental  violations  of  its  provisions, 
when  no  damages  could  actually  have  resulted  to  the  shippers.     *     *     * 

"While  railroad  companies  may  be  bound  to  furnish  sufficient  cars 
for  their  usual  and  ordinary  traffic,  cases  will  inevitably  arise  where,  by 
reason  of  an  unexpected  turn  in  the  market,  a  great  public  gathering, 
or  an  unforeseen  rush  of  travel,  a  pressure  upon  the  road  for  trans- 
portation facilities  may  arise,  which  good  management  and  a  desire  to 
fulfil  all  its  legal  requirements  cannot  provide  for,  and  against  which 
the  statute  in  question  makes  no  allowance.  Although  it  may  be  admit- 
ted that  the  statute  is  not  far  from  the  line  of  proper  police  regula- 
tion, we  think  that  sufficient  allowance  is  not  made  for  the  practical 
difficulties  in  the  administration  of  the  law,  and  that,  as  applied  to  in- 
terstate commerce,  it  transcends  the  legitimate  powers  of  the  legisla- 
ture." 

[White,  J.,  took  no  part  in  the  decision.  Fuller,  C.  J.,  and 
Harlan  and  McKenna,  JJ.,  dissented.] 


Cll.  18)  REGULATION    OF    COMMERCE  1187 

Accord  (where  the  regulation  of  acts  done  in  the  course  of  interstate  com- 
merce, though  to  be  performed  within  the  regulating  state,  imposed  unrea- 
sonable burdens):  McNeill  v.  Southern  By.,  202  D.  S.  543,  26  Sup.  CI 
L.  Ed.  1142  (1906)  (requiring  delivery  of  Interstate  shipments  on  prlvi 
Logs);  St.  Umis,  etc.,  Ry.  v.  Arkansas,  217  U.  S.  136,  30  Sup.  Ct.  470,  54  L.  Ed. 
688,  29  L.  B.  A.  i.N.  S.)  s02  (1910)  (requiring  cars  for  local  shipments  to  be  fur- 
nished on  demand,  when  compliance  therewith  would  cripple  interstate  serv- 
[i  e). 

in  general,  state  regulation  of  such  acts,  where  not  unduly  onerous.  Is  valid. 
B.  B,  Co,  v.  Fuller,  17  Wall.  560,  21  I*  Ed.  710  (1S73)  (requiring  posting 
terstate  railroad  rates  and  forbidding  charges  in  excess  thereof);  Hennington 
v.  Georgia,  168  U.  S.  299,  16  Sup.  Ct.  1086.  41  L.  Ed.  166  (1896)  (forbidding 
Sunday  freight  trains,  except  for  preservation  of  stock);  Wis.,  etc.,  Ry.  v.  Ja- 
cobson,  179  U.  S.  2S7,  21  Sup.  Ct.  115,  45  L.  Ed.  194  (1900)  (requiring  Intersect- 
ing railways  to  make  track  connections);  Mobile,  etc..  Ry.  v.  Mississippi,  210 
U.  S.  187,"  28  Sup.  Ct.  650,  52  L.  Ed.  1016  (1908)  (enforcing  agreement  to 
broaden  and  operate  a  section  of  narrow-gauge  railroad) ;  Mo.  Pac.  Ry.  v. 
Larabee  Mills,  211  U.  S.  612,  29  Sup.  Ct  214,  53  L.  Ed.  352  (1909)  (compelling 
equality  of  car  service  between  shippers).  See  also  the  telegraph  cases  cited 
in  W.  U.  Teleg.  Co.  v.  Com.  Co.,  ante,  p.  1182. 

State  Regulation  of  Stoppage  of  Interstate  Trains. — Railroads  may 
be"  required  to  furnish  adequate  transportation  facilities  at  each  station, 
and  if  they  do  not  supply  this  by  local  trains  a  sufficient  number  of  interstate 
trains  must  be  stopped  there.  L.  S.  &  M.  S.  Ry.  v.  Ohio,  173  U.  S.  285,  19 
Sup.  Ct.  465,  43  L.  Ed.  702  (1S99) ;  Mo.  Pac.  Ry.  v.  Kansas,  216  U.  S,  262, 
30  Sup.  Ct.  330,  54  L.  Ed.  472  (1910).  Trains  whose  runs  are  entirely  within 
te  may  be  compelled  to  stop  at  all  county  seats,  regardless  of  the  fact 
that  they  carry  mail  and  interstate  passengers  who  are  transferred  t 
state  trains  at  junction  points.  Gladson  v.  Minnesota,  166  U.  S.  427.  17  Sup. 
Ct  627,  41  L.  Ed.  1064  (1897).  But  interstate  trains  may  not  be  compelled  to 
stop  at  county  seats  or  junction  points,  provided  a  sufficient  local  and  con- 
necting service  is  supplied  by  local  trains.  111.  C.  Ry.  v.  Illinois,  163  O.  S. 
112.  It:  Sup.  Ct  1096,  41  L.  Ed.  107  (1S9G);  Cleveland,  etc.,  Ry.  v.  Illinois,  177 
U.  S.  514,  20  Slip.  Ct  722,  44  L.  Ed.  868  (1900);  Mississippi  R.  Com.  v.  I.  C. 
Rv.,  203  U.  S.  335,  27  Sup.  Ct  90,  51  L.  Ed.  209  (1906) ;  Atlantic  C.  Line  v. 
Wharton,  207  U.  S.  328,  28  Sup.  Ct  121.  52  L.  Ed.  230  (1907);  Herndon  v. 
Chicago,  etc.,  Ry.,  218  U.  S.  135,  30  Sup.  Ct.  633.  54  L.  Ed.  970  (1910). 

State  Regulation  of  Extent  and  Enforcement  of  Liability  for  In- 
juries.— For  injuries  resulting  from  acts  done  within  its  limits,  though  in  the 
course  of  Interstate  commerce,  a  state  may  ordinarily  regulate  the  extent  of 
liability  and  its  mode  of  enforcement.  Martin  v.  Pittsburg,  etc.,  Ry.,  203 
U.  S.  2S4.  27  Sup.  Ct.  100,  51  L.  Ed.  184,  8  Ann.  Cas.  87  (1906)  (injury  to  rail- 
way postal  clerk) ;  Mo.  Pac.  Ry.  v.  Castle,  224  U.  S.  541,  32  Sup.  Ct  606.  56 
L.  Ed.  S75  (1912)  (abolition  of  defences  of  fellow  service  and  contributory 
negligence);  Atlantic  C.  L.  Ry.  v.  Maznrsky,  216  U.  S.  122,  30  Sup.  Ct  878, 
54  L.  Ed.  411  (1910)  (penalty  for  carrier's  failure  promptly  to  pay  claims  for 
damaged  freight}. 

State  Regulations  Incidentally  or  Remotely  Affecting  National  Com- 
merce.— Holding  these  valid,  see  Diamond  Glue  Co.  v.  U.  S.  Co.,  187  U.  S. 
till,  23  Sup.  Ct.  206.  47  L.  Ed.  328  (1903);  Davis  v.  Cleveland,  etc.,  Ry..  217 
IT.  S.  157.  30  Sup.  Ct  168,  54  I..  Ed.  70s,  27  L.  B.  A.  (N.  S.)  823,  18  Ann.  Cas. 
'■X)'  (1910)  (foreign  attachment  of  empty  cars);  Martin  v.  West,  222  D.  S.  191, 
197,  198,  32  Sup.  Ct.  42,  56  L.  Ed.  159,  36  L.  R.  A.  (N.  S.)  592  (1911)  (attach- 
ment of  vessel  for  non-maritime  tort) ;  Standard  Oil  Co.  v.  Tennessee.  217 
U.  S.  413,  30  Sup.  Ct.  513,  54  L.  Ed.  S17  (1910)  (punishing  A.  for  inducing  R. 
to  break  interstate  contracts);  Engel  v.  O'Malley,  219  U.  S.  128.  31  Sup.  Ct. 
190,  55  L.  Ed.  128  (1911). 

Kki  \tion  of  State  Police  Powers  in  General  to  Federal  Commercial 
Powers. — See  as  to  this  the  cases  ante,  pp.  323-327. 


11S8  THE   FEDERAL   GOVERNMENT  (Part  3 


BOWMAN  v.  CHICAGO  &  N.  W.  RY.  CO. 

(Supreme  Court  of  United  States,  18SS.    125  U.  S.  4G5,  S  Sup.  Ct.  6S9,  10C2, 
31  L.  Ed.  700.) 

[Error  to  the  United  States  Circuit  Court  for  the  Northern  District 
of  Illinois.  An  Iowa  statute,  as  part  of  a  system  of  general  prohibi- 
tion, forbade  carriers  to  bring  intoxicating  liquor  into  the  state  for 
Iowa  consignees  not  duly  authorized  to  sell  the  same.  Plaintiffs,  part- 
ners doing  business  in  Iowa,  sued  the  defendant  Illinois  corporation 
for  refusing  to  accept  5,000  barrels  of  beer  offered  at  Chicago  to  be 
carried  to  plaintiffs  in  Iowa.  Defendant  set  up  the  Iowa  statute  as  a 
defence,  plaintiffs  not  being  duly  authorized  by  Iowa  to  sell  liquor 
there.  Plaintiffs'  demurrer  was  overruled  and  judgment  given  for  de- 
fendant.] 

Mr.  Justice  Matthews.  *  *  *  [After  examining  the  Iowa 
statute  and  granting  that  it  was  enacted  in  good  faith  to  protect  the 
health  and  morals  of  Iowa  people  and  to  preserve  peace  and  good  or- 
der in  the  state ;  and  after  reviewing  the  opinions  in  The  License  Cas- 
es, ante,  p.  1076:]  From  this  analysis  it  is  apparent  that  the  question 
presented  in  this  case  was  not  decided  in  the  License  Cases.  The  point 
in  judgment  in  them  was  strictly  confined  to  the  right  of  the  states  to 
prohibit  the  sale  of  intoxicating  liquor  after  it  had  been  brought  within 
their  territorial  limits.  The  right  to  bring  it  within  the  states  was  not 
questioned ;  and  the  reasoning  which  justified  the  right  to  prohibit 
sales  admitted,  by  implication,  the  right  to  introduce  intoxicating  liq- 
uor, as  merchandise,  from  foreign  countries,  or  from  other  states  of 
the  Union,  free  from  the  control  of  the  several  states,  and  subject  to 
the  exclusive  power  of  Congress  over  commerce. 

It  cannot  be  doubted  that  the  law  of  Iowa  now  under  examination, 
regarded  as  a  rule  for  the  transportation  of  merchandise,  operates  as 
a  regulation  of  commerce  among  the  states.  *  *  *  Mr.  Justice  Cur- 
tis in  the  case  of  Cooley  v.  Board  of  Wardens,  12  How.  299,  13  L.  Ed. 
996,  *  .  *  *  speaking  of  commerce  with  foreign  nations,  said  (page 
319):  "Now,  the  power  to  regulate  commerce  embraces  a  vast  field, 
containing  not  only  many,  but  exceedingly  various,  subjects,  quite  un- 
like in  their  nature, — some  imperatively  demanding  a  single  uniform 
rule,  operating  equally  on  the  commerce  of  the  United  States  in  every 
port;  and  some,  like  the  subject  now  in  question,  as  imperatively  de- 
manding that  diversity  which  alone  can  meet  the  local  necessities  of 
navigation."  It  was  therefore  held,  in  that  case,  that  the  laws  of  the  sev- 
eral states  concerning  pilotage,  although  in  their  nature  regulations  of 
foreign  commerce,  were,  in  the  absence  of  legislation  on  the  same  sub- 
ject by  Congress,  valid  exercises  of  power.  The  subject  was  local,  and 
not  national,  and  was  likely  to  be  best  provided  for,  not  by  one  system 
or  plan  of  regulations,  but  by  as  many  as  the  legislative  discretion  of 
the  several  states  should  deem  applicable  to  the  local  peculiarities  of  the 


Ch.  18)  RK01  LATION    of   COMMBBCB  1180 

ports  within  their  limits ;  and  to  this  it  may  be  added  that  it  was  a 
subject  imperatively  demanding  positive  regulation.  The  absence  of 
tion  on  the  subject,  therefore,  by  Congress,  was  evidence  of  its 
opinion  that  the  matter  might  be  best  regulated  by  local  authority,  and 
proof  of  its  intention  that  local  regulations  might  be  made. 

It  may  be  argued,  however,  that  aside  from  such  regulations  as 
these,  which  are  purely  local,  the  inference  to  be  drawn  from  the  ab- 
sence of  legislation  by  Congress  on  the  subject  excludes  state  legisla- 
tion affecting  commerce  with  foreign  nations  more  strongly  than  that 
affecting  commerce  among  the  states.  Laws  which  concern  the  exte- 
rior relations  of  the  United  States  with  other  nations  and  governments 
are  general  in  their  nature,  and  should  proceed  exclusively  from  the 
legislative  authority  of  the  nation.  The  organization  of  our  state  and 
federal  system  of  government  is  such  that  the  people  of  the  several 
states  can  have  no  relations  with  foreign  powers  in  respect  to  com- 
merce, or  any  other  subject,  except  through  the  government  of  the 
United  States,  and  its  laws  and  treaties.  Henderson  v.  Mayor  of  New- 
York,  92  U.  S.  259,  273,  23  L.  Ed.  543.  The  same  necessity,  perhaps, 
does  not  exist  equally  in  reference  to  commerce  among  the  states.  The 
power  conferred  upon  Congress  to  regulate  commerce  among  the  states 
is  indeed  contained  in  the  same  clause  of  the  Constitution  which  con- 
fers upon  it  power  to  regulate  commerce  with  foreign  nations.  The 
grant  is  conceived  in  the  same  terms,  and  the  two  powers  are  un- 
doubtedly of  the  same  class  and  character,  and  equally  extensive.  The 
actual  exercise  of  its  power  over  cither  subject  is  equally  and  neces- 
sarily exclusive  of  that  of  the  states,  and  paramount  over  all  the  pow- 
ers of  the  states;  so  that  state  legislation,  however  legitimate  in  its 
origin  or  object,  when  it  conflicts  with  the  positive  legislation  of  Con- 
gress, or  its  intention,  reasonably  implied  from  its  silence,  in  respect  to 
the  subject  of  commerce  of  both  kinds  must  fail.  And  yet.  in  respect 
to  commerce  among  the  states,  it  may  be,  for  the  reason  already  as- 
signed,  that  the  same  inference  is  not  always  to  be  drawn  from  the  ab- 
sence of  congressional  legislation,  as  might  be  in  the  case  of  commerce 
with  foreign  nations.  The  question,  therefore,  may  be  still  considered 
in  each  case  as  it  arises,  whether  the  fact  that  Congress  has  failed  in 
the  particular  instance  to  provide  by  law  a  regulation  of  commerce 
among  the  states  is  conclusive  of  its  intention  that  the  subject  shall  be 
free  from  all  positive  regulation,  or  that,  until  it  positively  interferes, 
such  commerce  may  be  left  to  be  freely  dealt  with  by  the  respective 
*     *     * 

[After  referring  to  The  State  Freight  Tax,  ante,  p.  1090:]  If  the 
state  has  not  power  to  tax  freight  and  passengers  passing  through  it. 
or  to  or  from  it,  from  or  into  another  state,  much  less  would  it  have 
the  power  directly  to  regulate  such  transportation,  or  to  forbid  it  alto- 
gether. If,  in  the  present  case,  the  law  of  Iowa  operated  upon  all  mer- 
chandise sought  to  be  brought  from  another  state  into  its  limits,  there 
could  be  no  doubt  that  it  would  be  a  regulation  of  commerce  among 


1190  THE   FEDERAL   GOVERNMENT  (Part  3 

the  states,  and  repugnant  to  the  Constitution  of  the  United  States.  In 
point  of  fact,  however,  it  applies  only  to  one  class  of  articles  of  a  par- 
ticular kind,  and  prohibits  their  introduction  into  the  state  upon  spe- 
cial grounds.  It  remains  for  us  to  consider  whether  those  grounds  are 
sufficient  to  justify  it  as  an  exception  from  the  rule  which  would  gov- 
ern if  they  did  not  exist.     *     *     * 

The  law  of  the  state  of  Iowa  under  consideration,  while  it  professes 
to  regulate  the  conduct  of  carriers  engaged  in  transportation  within 
the  limits  of  that  state,  nevertheless  materially  affects,  if  allowed  to 
operate,  the  conduct  of  such  carriers,  both  as  respects  their  rights  and 
obligations,  in  every  other  state  into  or  through  which  they  pass,  in  the 
prosecution  of  their  business  of  interstate  transportation.  In  the  pres- 
ent case,  the  defendant  is  sued  as  a  common  carrier  in  the  state  of  Illi- 
nois, and  the  breach  of  duty  alleged  against  it  is  a  violation  of  the  law 
of  that  state  in  refusing  to  receive  and  transport  goods  which,  as  a 
common  carrier,  by  that  law,  it  was  bound  to  accept  and  carry.  It  in- 
terposes as  a  defense  a  law  of  the  state  of  Iowa  which  forbids  the  de- 
livery of  such  goods  within  that  state.  Has  the  law  of  Iowa  any  ex- 
traterritorial force  which  does  not  belong  to  the  law  of  the  state  of 
Illinois?  If  the  law  of  Iowa  forbids  the  delivery,  and  the  law  of  Illi- 
nois requires  the  transportation,  which  of  the  two  shall  prevail  ?  How 
can  the  former  make  void  the  latter  ?  In  view  of  this  necessary  opera- 
tion of  the  law  of  Iowa,  if  it  be  valid,  the  language  of  this  court  in  the 
case  of  Hall  v.  De  Cuir,  95  U.  S.  485,  488,  24  L.  Ed.  547,  is  exactly 
in  point.  *  *  *  [Here  follows  a  quotation  from  this  case  printed 
ante.  p.  1164,  showing  how  the  Louisiana  law  affected  the  carrier's 
business  outside  of  the  state  also.] 

It  is  impossible  to  justify  this  statute  of  Iowa  by  classifying  it  as  an 
inspection  law.  *  *  *  It  has  never  been  regarded  as  within  the 
legitimate  scope  of  inspection  laws  to  forbid  trade  in  respect  to  any 
known  article  of  commerce,  irrespective  of  its  condition  and  quality, 
merely  on  account  of  its  intrinsic  nature,  and  the  injurious  conse- 
quences of  its  use  or  abuse. 

For  similar  reasons  the  statute  of  Iowa  under  consideration  cannot 
be  regarded  as  a  regulation  of  quarantine,  or  a  sanitary  provision  for 
the  purpose  of  protecting  the  physical  health  of  the  community,  or  a 
law  to  prevent  the  introduction  into  the  state  of  disease,  contagious,  in- 
fectious, or  otherwise.  Doubtless,  the  states  have  power  to  provide 
by  law  suitable  measures  to  prevent  the  introduction  into  the  states  of 
articles  of  trade  which,  on  account  of  their  existing  condition,  would 
bring  in  and  spread  disease,  pestilence,  and  death;  such  as  rags  or 
other  substances  infected  with  the  germs  of  yellow  fever,  or  the  virus 
of  small-pox,  or  cattle  or  meat  or  other  provisions  that  are  diseased 
or  decayed,  or  otherwise,  from  their  condition  and  quality,  unfit  for 
human  use  or  consumption.  Such  articles  are  not  merchantable.  They 
are  not  legitimate  subjects  of  trade  and  commerce.  They  may  be 
rightly  outlawed,  as   intrinsically  and  directlv  the   immediate  sources 


Ch.  18)  REGULATION   OF   GOKUBBCB  1WJ 

and  causes  of  destruction  to  human  health  and  life.  The  self-protect- 
ing power  of  each  state,  therefore,  may  be  rightfully  exerted  against 
their  introduction,  and  such  exercises  of  power  cannot  be  considered 
regulations  of  commerce  prohibited  by  the  Constitution.  *  * 
|  I  [ere  follow  quotations  from  the  License  Cases,  5  How.  504,  599- 
601,  12  L.  Ed.  256,  and  from  several  of  the  cases  discussed  in  Smith 
v.  St.  L.,  etc..  Ry.,  ante.  p.  1152.] 

Can  it  be  supposed  that,  by  omitting  any  express  declarations  on  the 
subject,  Congress  has  intended  to  submit  to  the  several  states  the  deci- 
sion of  the  cjuestion  in  each  locality  of  what  shall  and  what  shall  not 
be  articles  of  traffic  in  the  interstate  commerce  of  the  country?  If  so, 
it  has  left  to  each  state,  according  to  its  own  caprice  and  arbitrary 
will,  to  discriminate  for  or  against  every  article  grown,  produced,  man- 
ufactured, or  sold  in  any  state,  and  sought  to  be  introduced  as  an  arti- 
cle of  commerce  into  any  other.  If  the  state  of  Iowa  may  prohibit  the 
importation  of  intoxicating  liquors  from  all  other  states,  it  may  also 
include  tobacco,  or  any  other  article,  the  use  or  abuse  of  which  it  may 
deem  deleterious.  It  may  not  choose,  even,  to  be  governed  by  consid- 
erations growing  out  of  the  health,  comfort,  or  peace  of  the  commu- 
nity. Its  policy  may  be  directed  to  other  ends.  It  may  choose  to  es- 
tablish a  system  directed  to  the  promotion  and  benefit  of  its  own  agri- 
culture, manufactures,  or  arts  of  any  description,  and  prevent  the  in- 
troduction and  sale  within  its  limits  of  any  or  of  all  articles  that  it  may 
select  as  coming  into  competition  with  those  which  it  seeks  to  protect. 
The  police  power  of  the  state  would  extend  to  such  cases,  as  well  as  to 
those  in  which  it  was  sought  to  legislate  in  behalf  of  the  health,  peace, 
and  morals  of  the  people.  In  view  of  the  commercial  anarchy  and 
confusion  that  would  result  from  the  diverse  exertions  of  power  by 
the  several  states  of  the  Union,  it  cannot  be  supposed  that  the  Consti- 
tution or  Congress  has  intended  to  limit  the  freedom  of  commercial 
intercourse  among  the  people  of  the  several  states.     *     *     * 

The  statute  of  Iowa  *  *  *  is  not  an  exercise  of  the  jurisdiction 
of  the  state  over  persons  and  property  within  its  limits ;  on  the  con- 
trary, it  is  an  attempt  to  exert  that  jurisdiction  over  persons  and  prop- 
erty within  the  limits  of  other  states.  It  seeks  to  prohibit  and  stop 
their  passage  and  importation  into  its  own  limits,  and  is  designed  as 
a  regulation  for  the  conduct  of  commerce  before  the  merchandise  is 
brought  to  its  border.  *  *  *  It  may  be  said,  however,  that  the 
right  of  the  state  to  restrict  or  prohibit  sales  of  intoxicating  liquor 
within  its  limits,  conceded  to  exist  as  a  part  of  its  police  power,  im- 
plies the  right  to  prohibit  its  importation,  because  the  latter  is  neces- 
sary to  the  effectual  exercise  of  the  former.  The  argument  is  that  a 
prohibition  of  the  sale  cannot  be  made  effective  except  by  preventing 
the  introduction  of  the  subject  of  the  sale:  that,  if  its  entrance  into  the 
state  is  permitted,  the  traffic  in  it  cannot  be  suppressed.  But  the  right 
to  prohibit  sales,  so  far  as  conceded  to  the  states,  arises  only  after  the 
act  of  transportation  has  terminated,  because  the  sales  which  the  state 


1192  THE  FEDERAL  GOVERNMENT  (Part  3 

•may  forbid  are  of  things  within  its  jurisdiction.  Its  power  over  them 
does  not  begin  to  operate  until  they  are  brought  within  the  territorial 
limits  which  circumscribe  it.  It  might  be  very  convenient  and  useful, 
in  the  execution  of  the  policy  of  prohibition  within  the  state,  to  extend 
the  powers  of  the  state  beyond  its  territorial  limits.  But  such  extra- 
territorial powers  cannot  be  assumed  upon  such  an  implication.  On 
the  contrary,  the  nature  of  the  case  contradicts  their  existence;  for,  if 
they  belong  to  one  state,  they  belong  to  all,  and  cannot  be  exercised 
severally  and  independently.  The  attempt  would  necessarily  produce 
that  conflict  and  confusion  which  it  was  the  very  purpose  of  the  Con- 
stitution, by  its  delegations  of  national  power,  to  prevent. 

It  is  easier  to  think  that  the  right  of  importation  from  abroad,  and 
of  transportation  from  one  state  to  another,  includes,  by  necessary  im- 
plication, the  right  of  the  importer  to  sell  in  unbroken  packages  at  the 
place  where  the  transit  terminates ;  for  the  very  purpose  and  motive 
of  that  branch  of  commerce  which  consists  in  transportation  is  that 
other  and  consequent  act  of  commerce  which  consists  in  the  sale  and 
exchange  of  the  commodities  transported.  Such,  indeed,  was  the  point 
decided  in  the  case  of  Brown  v.  Maryland,  12  Wheat.  419,  6  L.  Ed. 
678,  as  to  foreign  commerce,  with  the  express  statement,  in  the  opin- 
ion of  Chief  Justice  Marshall,  that  the  conclusion  would  be  the  same  in 
a  case  of  commerce  among  the  states.  But  it  is  not  necessary  now  to 
express  any  opinion  upon  the  point,  because  that  question  does  not 
arise  in  the  present  case.  The  precise  line  which  divides  the  transac- 
tion, so  far  as  it  belongs  to  foreign  or  interstate  commerce,  from  the 
internal  and  domestic  commerce  of  the  state,  we  are  not  now  called 
upon  to  delineate.  It  is  enough  to  say  that  the  power  to  regulate  or 
forbid  the  sale  of  a  commodity,  after  it  has  been  brought  into  the  state, 
does  not  carry  with  it  the  right  and  power  to  prevent  its  introduction 
by  transportation  from  another  state. 

Judgment  reversed.1 

[Field,  J.,  gave  a  concurring  opinion,  and  Harlan,  J.,  a  dissent- 
ing one,  in  which  concurred  WAITE,  C.  J.,  and  Gray,  J.  Lamar,  J., 
took  no  part  in  the  decision.] 

i  Accord  :  Adams  Exp.  Co.  v.  Kentucky,  214  TJ.  S.  218,  29  Sup.  Ct.  633,  53 
L.  FA.  072  (1909)  (state  cannot  forbid  interstate  shipment  and  delivery  of  in- 
toxicating liquor  to  a  known  habitual  inebriate). 

In  Groves  v.  Slaughter,  15  Pet.  449,  10  L.  Ed.  800  (1S41)  it  was  said  that  a 
slave-holding  state  could  forbid  the  introduction  into  it  for  sale  of  slaves  from 
other  states. 

Power  of  State  to  Forbid  Exportation  of  Its  Products. — In  Geer  v. 
Connecticut,  161  U.  S.  519,  16  Sup.  Ct.  COO,  40  L.  Ed.  793  (1896),  it  was  held 
that,  inasmuch  as  a  state  had  full  control  over  the  killing  and  ownership  of 
wild  game  within  it,  it  could  permit  this  on  condition  that  game  killed  should 
not  be  shipped  out  of  the  state.  In  Hudson  Water  Co.  v.  McCarter,  209  U. 
S.  349,  28  Sup.  Ct.  529,  52  L.  Ed.  828,  14  Ann.  Cas.  560  (190S)  it  was  held  that 
a  state  might  forbid  the  transportation  out  of  the  state,  by  pipes  or  ditches, 
of  waters  from  its  important  streams.  See  extract,  ante.  p.  524,  note,  and 
same  case  in  state  court  below,  70  N.  J.  En..  695,  65  Atl.  4S9  (1906).  In  West 
v.  Kansas  Gas  Co..  221  TJ.   S.  229,  255.  256,  31   Sup.  Ct.  564,  571,  55  L.  Ed. 


Ch.  18)  REGULATION   OP   COMMKUCE  H93 


LEISY  v.  HARDIN. 

(Supreme  Court  of  United  States,  1890.     135  U.  S.  100,  10  Sup.  Ct.  681,  34 
L.  Ed.  128.) 

[Error  to  the  Supreme  Court  of  Iowa.  Plaintiffs,  brewers  at  Pe- 
oria, Illinois,  transported  into  Iowa  and  there  sold  and  offered  for 
sale  in  the  original  packages  (quarter  barrels,  eighth  barrels,  and 
Si  aled  cases)  a  large  quantity  of  beer.  Defendant,  a  constable,  acting 
under  a  general  prohibition  law  of  the  state,  seized  the  beer,  and 
plaintiffs  brought  replevin  to  recover  it.  A  judgment  for  plaintiffs 
in  the  lower  court  was  reversed  by  the  state  Supreme  Court.] 

Mr.  Chief  Justice  Fuller.  The  power  vested  in  Congress  "to  regu- 
late commerce  with  foreign  nations,  and  among  the  several  states, 
and  with  the  Indian  tribes,"  is  the  power  to  prescribe  the  rule 
by  which  that  commerce  is  to  be  governed,  and  is  a  power  complete 
in  itself,  acknowledging  no  limitations  other  than  those  prescribed 
in  the  Constitution.  It  is  co-extensive  with  the  subject  on  which  it 
acts,  and  cannot  be  stopped  at  the  external  boundary  of  a  state,  but 
must  enter  its  interior,  and  must  be  capable  of  authorizing  the  dis- 

716,  35  L.  R.  A.  (N.  S.)  1193  (1911)  this  doctrine  was  held  inapplicable  to 
natural  gas,  MeKenna,  J.,  saying  (Holmes,  Lurton,  and  Hughes,  J  J.,  dis- 
senting): 

"Gas,  when  reduced  to  possession,  is  a  commodity ;  it  belongs  to  the  owner 
of  the  land;  and,  when  reduced  to  possession,  is  his  individual  property,  sub- 
ject to  sale  liy  him,  and  may  be  a  subject  of  intrastate  commerce  ami  Intel 
state  commerce.  The  statute  of  Oklahoma  recognizes  it  to  be  a  subject  of 
Intrastate  commerce,  but  seeks  to  prohibit  it  from  being  the  subject  of  Inter- 
state commerce,  and  this  is  the  purpose  of  its  conservation.  In  other  words, 
the  purpose  of  its  conservation  is  in  a  sense  commercial, — the  business  welfare 
of  the  state,  as  coal  might  be.  or  timber.  Roth  of  those  products  may  be 
limited  in  amount,  and  the  same  consideration  of  the  public  welfare  which 
would  confine  gas  to  the  use  of  the  inhabitants  of  a  state  would  confine  them 
to  the  inhabitants  of  the  state.  If  the  states  have  such  power,  a  Singular  sit- 
uation might  result.  Pennsylvania  might  keep  its  coal,  the  Northwest  Its 
timber,  the  mining  states  their  minerals.  And  why  may  not  the  products  of 
the  field  be  brought  within  the  principle?  Thus  enlarged,  or  without  that  en- 
largement, its  influence  on  interstate  commerce  need  not  be  pointed  out. 

"To  what  consequences  does  sueh  power  tend?  If  one  state  has  it,  all  states 
have  it;  embargo  may  be  retaliated  by  embargo,  and  commerce  will  be  halte  1 
at  state  lines.  And  yet  we  have  said  that  'in  matters  of  foreign  and  inter- 
state commerce  there  are  no  state  lines.'  In  sueh  commerce,  instead  of  the 
states,  a  new  power  appears  and  a  new  welfare, — a  welfare  which  transcends 
that  "i"  any  state.  Hut  rather  let  us  say  ft  is  constituted  of  the  welfare  of  ;ill 
of  the  states,  and  that  of  each  state  is  made  the  greater  by  a  division  of  its 
resources,  natural  and  created,  with  every  other  state,  and  those  of  every 
other  state  with  it.     This  was  the  purpose,  as  it  is  the  result,  of  the  interstate 

commerce  clause  of  the  Constitution  of  the  Onited  states.  If  there  is  to  be 
a  turning  backward,  it  must  be  done  by  the  authority  of  another  instrumen- 
tality than  a  court." 

See  also,  as  to  the  extent  of  private  rights  over  gas  and  oil.  Ohio  fill  Co. 
v.  Indiana,  ante.  p.  521.  As  to  how  far  slate  regulations  affecting  Commodities 
during   production   and  before   they   become   articles  of  commerce   may   condl 

lien  their  subsequent  entry  int.'  Interstate  commerce,  see  Turner  v.  Maryland. 
HIT  r.  S.  38,  58,  'J  Sup.  ct.  44,  '-'7  1„  Ed.  370  (1SS3);  Kidd  v.  Pearson,  128 
U.  S.  1,  9  Sup.  Ct.  6,  32  L,  Ed.  346  (18S8) 


1104  THE   FEDERAL   GOVERNMENT  (Part  -i 

position  of  those  articles  which  it  introduces,  so  that  they  may  be- 
come mingled  with  the  common  mass  of  property  within  the  terri- 
tory entered.  Gibbons  v.  Ogden,  9  Wheat.  1,  6  L.  Ed.  23;  Brown 
v.  Maryland,  12  Wheat.  419,  6  L.  Ed.  678.  And  while,  by  virtue  of 
its  jurisdiction  over  persons  and  property  within  its  limits,  a  state 
may  provide  for  the  security  of  the  lives,  limbs,  health,  and  comfort 
of  persons  and  the  protection  of  property  so  situated,  yet  a  subject- 
matter  which  has  been  confided  exclusively  to  Congress  by  the  Con- 
stitution is  not  within  the  jurisdiction  of  the  police  power  of  the 
state,  unless  placed  there  by  congressional  action.  Henderson  v. 
Mayor,  92  U.  S.  259,  23  L.  Ed.  543;  Railroad  Co.  v.  Husen,  95  U. 
S.  465,  24  L.  Ed.  527;  Walling  v.  Michigan,  116  U.  S.  446,  6  Sup. 
Ct.  454,  29  L.  Ed.  691 ;  Robbins  v.  Taxing  Dist.,  120  U.  S.  489,  7 
Sup.  Ct.  592,  30  L.  Ed.  694. 

The  power  to  regulate  commerce  among  the  states  is  a  unit,  but,  if 
particular  subjects  within  its  operation  do  not  require  the  application 
of  a  general  or  uniform  system,  the  states  may  legislate  in  regard 
to  them  with  a  view  to  local  needs  and  circumstances,  until  Con- 
gress otherwise  directs ;  but  the  power  thus  exercised  by  the  states 
is  not  identical  in  its  extent  with  the  power  to  regulate  commerce 
among  the  states.  *  *  *  Where  the  subject-matter  requires  a 
uniform  system  as  between  the  states,  the  power  controlling  it  is 
vested  exclusively  in  Congress,  and  cannot  be  encroached  upon  by 
the  states;  but  where,  in  relation  to  the  subject-matter,  different 
rules  may  be  suitable  for  different  localities,  the  states  may  exercise 
powers  which,  though  they  may  be  said  to  partake  of  the  nature  of 
the  power  granted  to  the  general  government,  are  strictly  not  such, 
but  are  simply  local  powers,  which  have  full  operation  until  or  unless 
circumscribed  by  the  action  of  Congress  in  effectuation  of  the  gen- 
eral power.  Cooley  v.  Board  of  Wardens,  12  How.  299,  13  L.  Ed. 
996.     *     *     * 

Whenever,  however,  a  particular  power  of  the  general  government  is 
one  which  must  necessarily  be  exercised  by  it,  and  Congress  remains 
silent,  this  is  not  only  not  a  concession  that  the  powers  reserved  by 
the  states  may  be  exerted  as  if  the  specific  power  had  not  been  else- 
where reposed,  but,  on  the  contrary,  the  only  legitimate  conclusion 
is  that  the  general  government  intended  that  power  should  not  be 
affirmatively  exercised,  and  the  action  of  the  states  cannot  be  permit- 
ted to  effect  that  which  would  be  incompatible  with  such  intention. 
Hence,  inasmuch  as  interstate  commerce,  consisting  in  the  transpor- 
tation, purchase,  sale,  and  exchange  of  commodities,  is  national  in 
its  character,  and  must  be  governed  by  a  uniform  system,  so  long  as 
Congress  does  not  pass  any  law  to  regulate  it,  or  allowing  the  states 
so  to  do,  it  thereby  indicates  its  will  that  such  commerce  shall  be 
free  and  untrammeled.  County  of  Mobile  v.  Kimball,  102  U.  S.  691, 
26  L.  Ed.  238;  Brown  v.  Houston,  114  U.  S.  622,  631,  5  Sup.  Ct. 
1091,  29  L.  Ed.  257;   Railroad  Co.  v.  Illinois,  118  U.  S.  557,  7  Sup 


Ch.  18)  REGULATION    OP    COMMENCE  1196 

Ct.  4,  30  L.  Ed.  244 ;  Robbins  v.  Taxing  Dist,  120  U.  S.  489,  493, 
7  Sup.  Ct.  592,  30  L.  Ed.  694. 

Thai  ardent  spirits,  distilled  liquors,  ale,  and  beer  are  subjects  of 
exchange,  barter,  and  traffic,  like  any  other  commodity  in  which  a 
ht  oi  traffic  exists,  and  are  so  recognized  by  tbe  usages  of  the  com- 
mercial world,  the  laws  of  Congress,  and  the  decisions  of  courts,  is 
not  denied.  Being  thus  articles  of  commerce,  can  a  state,  in  the 
absence  of  legislation  on  the  part  of  Congress,  prohibit  their  im- 
portation from  abroad  or  from  a  sister  state?  or,  when  imported, 
prohibit  their  sale  by  the  importer?  If  the  importation  cannot  be 
prohibited  without  the  consent  of  Congress,  when  does  property  im- 
ported from  abroad,  or  from  a  sister  state,  so  become  part  of  the 
common  mass  of  property  within  a  state  as  to  be  subject  to  its  un- 
impeded control? 

In  Brown  v.  Maryland,  supra,  *  *  *  it  was  laid  down  *  *  * 
that  the  right  to  sell  any  article  imported  was  an  inseparable  incident 
to  the  right  to  import  it;  and  that  the  principles  expounded  in  the 
case  applied  equally  to  importations  from  a  sister  state.  Manifestly 
this  must  be  so,  for  the  same  public  policy  applied  to  commerce 
among  the  states  as  to  foreign  commerce,  and  not  a  reason  could 
be  assigned  for  confiding  the  power  over  the  one  which  did  not  con- 
duce to  establish  the  propriety  of  confiding  the  power  over  the 
other.  Story,  Const.  §  1066.  And  although  the  precise  question  be- 
fore us  was  not  ruled  in  Gibbons  v.  Ogdcn  and  Brown  v.  Maryland, 
yet  we  think  it  was  virtually  involved  and  answered,  and  that  this  is 
demonstrated,  among  other  cases,  in  Bowman  v.  Railway  Co.,  125 
U.  S.  465.  8  Sup.  Ct.  689,  1062,  31  L.  Ed.  700.  *  *  *  |"Here  fol- 
lows a  discussion  of  this  case,  ante,  p.  1188,  and  of  the  License  Case*. 
ante,  p.  1076.] 

'i'lu'  authority  of  Peirce  v.  New  Hampshire  [the  License  Cases], 
in  so  far  as  it  rests  on  the  view  that  the  law  of  New  Hampshire  was 
valid  because  Congress  had  made  no  regulation  on  the  subject,  must 
be  regarded  as  having  been  distinctly  overthrown  by  the  numerous 
cases  hereinafter  referred  to.  The  doctrine  now  firmly  established  is, 
as  stated  by  Mr.  Tusticc  Field,  in  Bowman  v.  Railway  Co.,  125  U. 
S.  507,  8  Sup.  Ct.  689,  1062,  31  L.  Ed.  700,  "that  *  *  *  where  the 
subject  is  national  in  its  character,  and  admits  and  requires  uniform- 
ity of  regulation,  affecting  alike  all  the  states,  such  as  transportation 
between  the  states,  including  the  importation  of  goods  from  one 
state  into  another,  Congress  can  alone  act  upon  it,  and  provide  the 
needed  regulations.  The  absence  of  any  law  of  Congress  on  the  sub- 
ject is  equivalent  to  its  declaration  that  commerce  in  that  matter 
shall  be  free.  Thus  the  absence  of  regulations  as  to  interstate  com- 
merce with  reference  to  any  particular  subject  is  taken  as  a  declara- 
tion that  the  importation  of  that  article  into  the  states  shall  be  un- 
restricted. It  is  only  after  the  importation  is  completed,  and  the 
property  imported  is  mingled  with  and  becomes  a  part  of  the  genera) 


1196  THE  FEDERAL   GOVERNMENT  (Part  3 

property  of  the  state,  that  its  regulations  can  act  upon  it,  except  so 
far  as  may  be  necessary  to  insure  safety  in  the  disposition  of  the 
import  until  thus  mingled." 

The  conclusion  follows  that,  as  the  grant  of  the  power  to  regulate 
commerce  among  the  states,  so  far  as  one  system  is  required,  is  ex- 
clusive, the  states  cannot  exercise  that  power  without  the  assent  of 
Congress,  and,  in  the  absence  of  legislation,  it  is  left  for  the  courts 
to  determine  when  state  action  does  or  does  not  amount  to  such 
exercise ;  or,  in  other  words,  what  is  or  is  not  a  regulation  of  such 
commerce.  When  that  is  determined,  controversy  is  at  an  end. 
*  *  *  [Here  follows  a  discussion  of  a  number  of  prior  cases,  the 
more  important  of  which  are  printed  ante,  in  this  chapter.] 

These  decisions  rest  upon  the  undoubted  right  of  the  states  of  the 
Union  to  contrbl  their  purely  internal  affairs,  in  doing  which  they  ex- 
ercise powers  not  surrendered  to  the  national  government ;  but  when- 
ever the  law  of  the  state  amounts  essentially  to  a  regulation  of  com- 
merce with  foreign  nations  or  among  the  states,  as  it  does  when  it  in- 
hibits, directly  or  indirectly,  the  receipt  of  an  imported  commodity,  or 
its  disposition  before  it  has  ceased  to  become  an  article  of  trade  be- 
tween one  state  and  another,  or  another  country  and  this,  it  comes  in 
conflict  with  a  power  which,  in  this  particular,  has  been  exclusively 
vested  in  the  general  government,  and  is  therefore  void.     *     *     * 

Undoubtedly  it  is  for  the  legislative  branch  of  the  state  govern- 
ments to  determine  whether  the  manufacture  of  particular  articles  of 
traffic,  or  the  sale  of  such  articles,  will  injuriously  affect  the  public, 
and  it  is  not  for  Congress  to  determine  what  measures  a  state  may 
properly  adopt  as  appropriate  or  needful  for  the  protection  of  the 
public  morals,  the  public  health,  or  the  public  safety;  but,  notwith- 
standing it  is  not  vested  with  supervisory  power  over  matters  of  local 
administration,  the  responsibility  is  upon  Congress,  so  far  as  the 
regulation  of  interstate  commerce  is  concerned,  to  remove  the  restric- 
tion upon  the  state  in  dealing  with  imported  articles  of  trade  within  its 
limits,  which  have  not  been  mingled  with  the  common  mass  of  property 
therein,  if  in  its  judgment  the  end  to  be  secured  justifies  and  requires 
such  action.     *     *    * 

The  plaintiffs  in  error  are  citizens  of  Illinois,  are  not  pharmacists, 
and  have  no  permit,  but  import  into  Iowa  beer  which  they  sell'  in 
original  packages,  as  described.  Under  our  decision  in  Bowman  v. 
Railway  Co.,  supra,  they  had  the  right  to  import  this  beer  into  that 
state,  and  in  the  view  which  we  have  expressed  they  had  the  right  to 
sell  it,  by  which  act  alone  it  would  become  mingled  in  the  common 
mass  of  property  within  the  state.  Up  to  that  point  of  time,  we  hold 
that,  in  the  absence  of  congressional  permission  to  do  so,  the  state 
had  no  power  to  interfere  by  seizure,  or  any  other  action,  in  prohibi- 
tion of  importation  and  sale  by  the  foreign  or  non-resident  importer. 
Whatever  our  individual  views  may  be  as  to  the  deleterious  or  danger- 
ous qualities  of  particular  articles,  we  cannot  hold  that  any  articles 


Ch.  18)  REGULATION    OF    COMMERCE  H!,~ 

which  Congress  recognizes  as  subjects  of  interstate  commerce  are 
not  such,  or  that  whatever  are  thus  recognized  can  be  controlled  by 
state  laws  amounting  to  regulations,  while  they  retain  that  character ; 
although,  at  the  same  time  if  directly  dangerous  in  themselves,  the 
state  may  take  appropriate  measures  to  guard  against  injury  before 
it  obtains  complete  jurisdiction  over  them.  To  concede  to  a  state 
the  power  to  exclude,  directly  or  indirectly,  articles  so  situated,  without 
congressional  permission,  is  to  concede  to  a  majority  of  the  people  of 
a  state,  represented  in  the  state  legislature,  the  power  to  regulate  com- 
mercial intercourse  between  the  states,  by  determining  what  shall  be 
its  subjects,  when  that  power  was  distinctly  granted  to  be  exercised 
by  the  people  of  the  United  States,  represented  in  Congress,  and  its 
possession  by  the  latter  was  considered  essential  to  that  more  perfect 
Union  which  the  Constitution  was  adopted  to  create.    *    *    * 

Judgment  reversed.1 

[Gray,  ].,  gave  a  dissenting  opinion,  in  which  concurred  Harlan 
and  Brown,  ]].,  in  the  course  of  which  occurred  the  paragraph:] 

The  silence  and  inaction  of  Congress  upon  the  subject,  during  the 
long  period  since  the  decision  of  the  License  Cases,  appear  to  us  to 
require  the  inference  that  Congress  intended  that  the  law  should  re- 
main as  thereby  declared  by  this  court,  rather  than  to  warrant  the 
presumption  that  Congress  intended  that  commerce  among  the  states 
should  be  free  from  the  indirect  effect  of  such  an  exercise  of  the 
police  power  for  the  public  safety,  as  had  been  adjudged  by  that  de- 
cision to  be  within  the  constitutional  authority  of  the  states. 


In  re  RAHRER. 

(Supreme  Court  of  United  States.  1891.     I  10  U.  S.  545,  11  Sup.  Ct.  865,  35  L. 
Ed.  572.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  District  of 
Kansas.  On  August  8,  1S90,  an  act  of  Congress  (the  "Wilson  Act") 
took  effect  providing  that  all  intoxicating  liquors  shipped  into  any 
state  or  territory  or  remaining  therein  for  use,  sale,  or  storage,  should, 
upon  arrival  therein,  be  subject  to  the  laws  of  such  state  or  territory, 
enacted  in  the  exercise  of  its  police  powers,  as  though  such  liquor 
had  been  produced  therein,  and  should  not  be  exempt  therefrom 
because  introduced  in  original  packages  or  otherwise.  26  Stat.  313. 
c.  728  (U.  S.  Comp.  St.  1901,  p.  3177).  On  August  9.  18r>0.  Rahrer, 
an  agent  of  liquor  dealers  in  Missouri,  sold  in  the  original  packages  in 
Kansas  a  four-gallon  keg  of  beer  and  a  pint  of  whiskey,  part  of  a 

aberger  v.  Pennsylvania,  171  D.  8.  1.  18  Sup.  Ct  757,    13 
I  9  (1898)  (oleomargarine);   Collins  v.  New  Hampshire,  it 

Sup.  Ct.  768,  13  L.  Ed.  60  (1898)  (oleomargarine  required  to  be  col  ired  pink); 
Austin  v.  Tennessee,  179  U.  S.  343,  21  Sup.  Ct.  132,  45  L.  Ed.  224  U'.>00)  (cig- 
arettes—Bemble). 


1108 


THE    FEDEl'.AL   GOVERNMENT 


(Part  3 


carload  of  liquor  received  by  him  from  his  principals  earlier  in  1890. 
Me  was  arrested  for  violation  of  the  Kansas  general  prohibition  law 
passed  before  the  act  of  Congress,  and  was  discharged  by  the  federal 
Circuit  Court  on  writ  of  habeas  corpus,  from  which  decree  this  ap- 
peal was  taken.] 

Mr.  Chief  Justice  Fuller.  *  *  *  The  power  of  Congress  to 
regulate  commerce  among  the  several  states,  when  the  subjects  of  that 
power  are  national  in  their  nature,  is  exclusive.  The  Constitution  does 
not  provide  that  interstate  commerce  shall  be  free,  but,  by  the  grant 
of  this  exclusive  power  to  regulate  it,  it  was  left  free  except  as  Con- 
gress might  impose  restraint.  Therefore  it  has  been  determined  that 
the  failure  of  Congress  to  exercise  this  exclusive  power  in  any  case  is 
an  expression  of  its  will  that  the  subject  shall  be  free  from  restric- 
tions or  impositions  upon  it  by  the  several  states.  Robbins  v.  Taxing 
Dist,  120  U.  S.  489,  7  Sup.  Ct.  592,  30  L.  Ed.  694.  And  if  a  law 
passed  by  a  state,  in  the  exercise  of  its  acknowledged  powers,  comes 
into  conflict  with  that  will,  the  Congress  and  the  state  cannot  occupy 
the  position  of  equal  opposing  sovereignties,  because  the  Constitu- 
tion declares  its  supremacy,  and  that  of  the  laws  passed  in  pursuance 
thereof.     *     *     * 

The  laws  of  Iowa  under  consideration  in  Bowman  v.  Railway  Co., 
125  U.  S.  465,  8  Sup.  Ct.  689,  1062,  31  L.  Ed.  700,  and  Leisy  v.  Har- 
din, 135  U.  S.  100.  10  Sup.  Ct.  681,  34  L.  Ed.  128,  were  enacted  in  the 
exercise  of  the  police  power  of  the  state,  and  not  at  all  as  regula- 
tions of  commerce  with  foreign  nations  and  among  the  states ;  but  as 
they  inhibited  the  receipt  of  an  imported  commodity,  or  its  disposition 
before  it  had  ceased  to  become  an  article  of  trade  between  one  state 
and  another,  or  another  country  and  this,  they  amounted  in  effect  to 
a  regulation  of  such  commerce.  Hence  it  was  held  that  inasmuch  as 
interstate  commerce,  consisting  in  the  transportation,  purchase,  sale, 
and  exchange  of  commodities,  is  national  in  its  character,  and  must 
be  governed  by  a  uniform  system,  so  long  as  Congress  did  not  pass 
any  law  to  regulate  it  specifically,  or  in  such  way  as  to  allow  the  laws 
of  the  state  to  operate  upon  it,  Congress  thereby  indicated  its  will 
that  such  commerce  should  be  free  and  untrammeled ;  and  there- 
fore that  the  laws  of  Iowa,  referred  to,  were  inoperative  in  so  far  as 
they  amounted  to  regulations  of  foreign  or  interstate  commerce  in 
inhibiting  the  reception  of  such  articles  within  the  state,  or  their  sale 
upon  arrival,  in  the  form  in  which  they  were  imported  there  from  a 
foreign  country  or  another  state.  It  followed  as  a  corollary  that, 
when  Congress  acted  at  all,  the  result  of  its  action  must  be  to  operate 
as  a  restraint  upon  that  perfect  freedom  which  its  silence  insured. 
Congress  has  now  spoken,  and  declared  that  imported  liquors  or 
liquids  shall,  upon  arrival  in  a  state,  fall  within  the  category  of  domes- 
tic articles  of  a  similar  nature.  Is  the  law  open  to  constitutional  ob- 
jection? 


Ch.  18)  REGULATION   OF   COMMERCE  1109 

By  the  first  clause  of  section  10  of  article  1  of  the  Constitution,  cer- 
tain powers  are  enumerated  which  the  states  are  forbidden  to  exer- 
cise in  any  event ;  and  by  clauses  2  and  3,  certain  others,  which  may 
be  exercised  with  the  consent  of  Congress.  As  to  those  in  the  first 
class,  Congress  cannot  relieve  from  the  positive  restriction  imposed. 
As  to  those  in  the  second,  their  exercise  may  be  authorized ;  and 
they  include  the  collection  of  the  revenue  from  imposts  and  duties  on 
imports  and  exports  by  state  enactments,  subject  to  the  revision  and 
control  of  Congress;  and  a  tonnage  duty,  to  the  exaction  of  which 
only  the  consent  of  Congress  is  required.  Beyond  this,  Congress  is 
not  empowered  to  enable  the  state  to  go  in  this  direction.  Nor  can 
Congress  transfer  legislative  powers  to  a  state,  nor  sanction  a  state 
law  in  violation  of  the  Constitution ;  and  if  it  can  adopt  a  state  law 
as  its  own,  it  must  be  one  that  it  would  be  competent  for  it  to  enact 
itself,  and  not  a  law  passed  in  the  exercise  of  the  police  power.  Coolev 
v.  Board,  12  How.  299,  13  L.  Ed.  996;  Gunn  v.  Barry,  15  Wall.  610. 
21  L.  Ed.  212;   U.  S.  v.  Dewitt,  9  Wall.  41.  19  L.  Ed.  593. 

It  does  not  admit  of  argument  that  Congress  can  neither  delegate 
its  own  powers,  nor  enlarge  those  of  a  state.  This  being  so,  it  is 
urged  that  the  act  of  Congress  cannot  be  sustained  as  a  regulation  of 
commerce,  because  the  Constitution,  in  the  matter  of  interstate  com- 
merce, operates  ex  proprio  vigore  as  a  restraint  upon  the  power  of 
Congress  to  so  regulate  it  as  to  bring  any  of  its  subjects  within  the 
grasp  of  the  police  power  of  the  state.  In  other  words,  it  is  earnestly 
contended  that  the  Constitution  guarantees  freedom  of  commerce 
among  the  states  in  all  things,  and  that  not  only  may  intoxicating  liq- 
uors be  imported  from  one  state  into  another  without  being  subject  to 
regulation  under  the  laws  of  the  latter,  but  that  Congress  is  power- 
less to  obviate  that  result.  Thus  the  grant  to  the  general  government 
of  a  power  designed  to  prevent  embarrassing  restrictions  upon  inter- 
state commerce  by  any  state  would  be  made  to  forbid  any  restraint 
whatever.  We  do  not  concur  in  this  view.  In  surrendering  their 
own  power  over  external  commerce,  the  states  did  not  secure  absolute 
freedom  in  such  commerce,  but  only  the  protection  from  encroach- 
ment afforded  by  confiding  its  regulation  exclusively  to  Congress. 

By  the  adoption  of  the  Constitution,  the  ability  of  the  several  states 
to  act  upon  the  matter  solely  in  accordance  with  their  own  will  was 
extinguished,  and  the  legislative  will  of  the  general  government  sub- 
stituted. No  affirmative  guaranty  was  thereby  given  to  any  state  of 
the  right  to  demand,  as  between  it  and  the  others,  what  it  could  not 
have  obtained  before;  while  the  object  was  undoubtedly  sought  to 
be  attained  of  preventing  commercial  regulations  partial  in  their  char- 
acter or  contrary  to  the  common  interests.  And  the  magnificent 
growth  and  prosperity  of  the  country  attest  the  success  which  has  at- 
tended the  accomplishment  of  that  object.  But  this  furnishes  no  sup- 
port to  the  position  that  Congress  could  not,  in  the  exercise  of  the  dis- 


1200  THE   FEDERAL   GOVERNMENT  (Part  3 

cretion  reposed  in  it,  concluding  that  the  common  interests  did  not  re- 
quire entire  freedom  in  the  traffic  in  ardent  spirits,  enact  the  law  in 
question.  In  so  doing,  Congress  has  not  attempted  to  delegate  the  pow- 
er to  regulate  commerce,  or  to  exercise  any  power  reserved  to  the 
states,  or  to  grant  a  power  not  possessed  by  the  states,  or  to  adopt  state 
laws.  It  has  taken  its  own  course,  and  made  its  own  regulation,  apply- 
ing to  these  subjects  of  interstate  commerce  one  common  rule,  whose 
uniformity  is  not  affected  by  variations  in  state  laws  in  dealing  with 
such  property. 

The  principle  upon  which  local  option  laws,  so  called,  have  been 
sustained,  is  that,  while  the  legislature  cannot  delegate  its  power  to 
make  a  law,  it  can  make  a  law  which  leaves  it  to  municipalities  or 
the  people  to  determine  some  fact  or  state  of  things,  upon  which  the 
action  of  the  law  may  depend.  But  we  do  not  rest  the  validity  of  the 
act  of  Congress  on  this  analogy.  The  power  over  interstate  commerce 
is  too  vital  to  the  integrity  of  the  nation  to  be  qualified  by  any  refine- 
ment of  reasoning.  The  power  to  regulate  is  solely  in  the  general 
government,  and  it  is  an  essential  part  of  that  regulation  to  prescribe 
the  regular  means  for  accomplishing  the  introduction  and  incorpora- 
tion of  articles  into  and  with  the  mass  of  property  in  the  country  or 
state.  12  Wheat.  448,  6  L.  Ed.  678.  No  reason  is  perceived  why,  if 
Congress  chooses  to  provide  that  certain  designated  subjects  of  inter- 
state commerce  shall  be  governed  by  a  rule  which  divests  them  of  that 
character  at  an  earlier  period  of  time  than  would  otherwise  be  the 
case,  it  is  not  within  its  competency  to  do  so.1  The  differences  of 
opinion  which  have  existed  in  this  tribunal  in  many  leading  cases 
upon  this  subject  have  arisen,  not  from  a  denial  of  the  power  of 
Congress,  when  exercised,  but  upon  the  question  whether  the  inac- 
tion of  Congress  was  in  itself  equivalent  to  the  affirmative  interposi- 
tion of  a  bar  to  the  operation  of  an  undisputed  power  possessed  by  the 
states.     *     *     * 

Congress  did  not  use  terms  of  permission  to  the  state  to  act,  but 
simply  removed  an  impediment  to  the  enforcement  of  the  state  laws 
in  respect  to  imported  packages  in  their  original  condition,  created  by 
the  absence  of  a  specific  utterance  on  its  part.  It  imparted  no  power 
to  the  state  not  then  possessed,  but  allowed  imported  property  to 
fall  at  once  upon  arrival  within  the  local  jurisdiction.  *  *  *  This 
is  not  the  case  of  a  law  enacted  in  the  unauthorized  exercise  of  a 
power  exclusively  confided  to  Congress,  but  of  a  law  which  it  was 
competent  for  the  state  to  pass,  but  which  could  not  operate  upon 
articles  occupying  a  certain  situation  until  the  passage  of  the  act  of 
Congress.  That  act  in  terms  removed  the  obstacle,  and  we  perceive 
no  adequate  ground   for  adjudging  that  a  re-enactment  of  the  state 

i  As  to  congressional  power  to  postpone  this  time,  see  McDerniott  v.  Wis- 
consin, post,  p.  1244. 


Cll.  18)  REGULATION    OF    COMMERCE  1201 

law  was  required  before  it  could  have  the  effect  upon  imported  which 
it  had  always  had  upon  domestic  property.  Jurisdiction  attached,  not 
in  virtue  of  the  law  of  Congress,  but  because  the  effect  of  the  latter 
was   to  place  the  property  where  jurisdiction   could   attach. 

Decree  reversed.2 

[Haulan,  Gray,  and  Brewer,  J].,  did  not  concur  in  all  of  the 
reasoning  of  this  opinion.] 

s  In  Rhodes  v.  Iowa,  170  U.  S.  412,  424,  426,  18  Sup.  Ct  664,  668,  42  L.  Ed. 
10S8  (1898),  the  Wilson  Act  was  held  Inapplicable  to  an  Interstate  shipment 
of  liquor  uutil  after  delivery  to  the  consignee,  White,  J.,  saying  (Gray,  Harlan, 
and  Brown,  JJ.,  dissenting): 

"While  it  is  true  that  the  right  to  sell  free  from  state  interference  inter- 
state commerce  merchandise  was  held  in  Leisy  v.  Hardin  to  be  an  essential 
incident  to  Interstate  commerce,  it  was  yet  but  an  incident,  as  the  contract 
oi  sale  within  a  state  in  its  nature  was  usually  subject  to  the  control  of  the 
legislative  authority  of  the  state.  On  the  other  hand,  the  right  to  contract 
lor  the  transportation  of  merchandise  from  one  state  into  or  across  another 
1  interstate  commerce  in  its  fundamental  aspect,  and  imported  in  its 
very  esseuce  a  relation  which  necessarily  must  be  governed  by  laws  apart 
from  the  laws  of  the  several  states,  since  it  embraced  a  contract  which  must 
come  under  the  laws  of  more  than  one  state.  The  purpose  of  Congress  to 
submit  the  incidental  power  to  sell  to  the  dominion  of  state  authority  should 
not,  without  the  clearest  implication,  be  held  to  imply  the  purpose  of  subject- 
ing to  Btate  laws  a  contract  which,  in  its  very  object  and  nature,  was  ii". 
susceptible  of  such  regulation  eveu  if  the  constitutional  right  to  do  so  ex- 
isted, as  to  which  no  opinion  is  expressed."  »  ♦  «  (Here  follows  a  quota- 
tion from  the  Bowman  Case,  printed  ante,  p.  1190,  hiving  stress  upon  the  ex- 
tra-territorial effect  of  the  Iowa  law  there  questioned.] 

"We  think  that,  interpreting  the  statute  by  the  light  of  all  its  provisions, 
it  was  not  intended  to  and  did  not  cause  the  power  of  the  state  to  attach  t" 
an  interstate  commerce  shipment  while  the  merchandise  was  in  transit  under 
such  shipment,  and  until  its  arrival  at  the  point  of  destination  and  delivery 
there  to  the  consignee;  and  of  course  this  conclusion  renders  it  entirely  un- 
necessary to  consider  whether,  if  the  act  of  Congress  had  submitted  the  right 
to  make  interstate  commerce  shipments  to  state  control,  it  would  be  repug- 
nant to  the  (  (institution." 

Rhodes  v.  Iowa  was  followed  in  Am.  Exp.  Co.  v.  Iowa,  196  U.  S.  133,  25 
Sup.  Ct.  1S2,  49  L.  Ed.  417  (1905)  (C.  O.  D.  shipment);  Adams  Exp.  Co.  v. 
Kentucky,  20G  U.  S.  129.  27  Sup.  Ct  60G,  51  L.  Ed.  987  (1907)   (same,  where 

ee  had  not  ordered  liquor  and  carrier  held  it  for  him  a  few  daj  - 
lie  paid  charges);    Heymann  v.  So.  Ry.,  203  U.  S.  270,  27  Sup.  Ct  104,  51  L. 
Ed.  17S,  7  Ann.  Cas.  1130  (1906)  (where  carrier  warehoused  liquor  before  de- 
11  very);    L.  &  X.   By.  v.  Cook  Brewing  Co.,  223  U.  S.  70,  32  Sup.  Ct.  189,  56 
L.  Ed.  355  (1912). 

Seine  of  the  practices  permitted  under  the  above  decisions  are  now  forbid- 
den by  SS  Stat  1186,  1137.  c.  321,  §S  238-240  (U.  S.  Com  p.  St.  Supp.  1911,  p. 
1662)  (191K)),  or  by  the  "Webb  Act"  of  March  1,  1913  (37  Stat  899,  c.  90).    The 
\et  lias  in  substance  been  enacted  into  section  113  of  the  Australian 
Constitution  of  1900.    See  Fox  v.  Bobbins,  8  Com.  L.  Rep.  115.  124,  125  (1909). 

In  Scott  v.  Donald,  165  D.  S.  58,  17  Sup.  Ct  265,  41  L.  Ed.  632  (1897),  it  was 
held  that  the  Wilson  Act  gave  the  states  no  power  to  discriminate  against 
the  sale  of  liquor  from  other  states,  and  in  Vance  v.  Vandercook  Co.  (No,  I), 
170  U.  s.  438,  462,  in  Sup.  Ct  674,  42  L.  Ed.  1100  (1898),  three  Judges  thought 
Congress  powerless  to  do  this.  The  same  case  held  that  the  Wilson  A.ct  per 
mitted  South  Carolina  to  make  s  state  ol  the  sale  of  liquor  in  the 

state.  Individuals  being  free  to  ship  it  in  for  their  own  uses.  The  >tate  police 
power  authorized  by  the  act  ms  ed   by  means  of  taxation.  Pabsl 

Co.  v.  Crenshaw,  198  D.  S.  17.  25  Sup  Ct  552,  49  U  Ed.  925  (1905);   Phillips 
v.  Mobile.  208  U.  s.  172.  28  Sup.  Ct  370,  52  I..  Ed.  578  (1908);   or  bj 
ing  licenses  for  the  sale  of  liquor  on  Interstate  boats,  while  within  the  state. 
H.u.r.  Const.!.. — 76 


1202  THE  FEDERAL   GOVERNMENT  (Part  ."S 

PLUMLEY  v.  MASSACHUSETTS  (1894)  155  U.  S.  461,  467, 
468,  A7X-A7A,  478-481,  15  Sup.  Ct.  154,  39  L.  Ed.  223,  Mr.  Justice 
Harlan  (upholding  as  applied  to  interstate  original  packages  a 
Massachusetts  statute  forbidding  the  sale  of  any  oleomargarine  which 
was  in  imitation  of  yellow  butter) : 

[After  holding  that  the  federal  internal  revenue  tax  did  not  affect 
the  question:]  "It  will  be  observed  that  the  statute  of  Massachusetts 
which  is  alleged  to  be  repugnant  to  the  commerce  clause  of  the  Consti- 
tution does  not  prohibit  the  manufacture  or  sale  of  all  oleomargarine, 
but  only  such  as  is  colored  in  imitation  of  yellow  butter  produced  from 
pure  unadulterated  milk  or  cream  of  such  milk.  If  free  from  colora- 
tion or  ingredient  that  'causes  it  to  look  like  butter,'  the  right  to  sell 
it  'in  a  separate  and  distinct  form,  and  in  such  manner  as  will  advise 
the  consumer  of  its  real  character,'  is  neither  restricted  nor  prohibited. 
It  appears  in  this  case  that  oleomargarine,  in  its  natural  condition,  is 
of  'a  light  yellowish  color,'  and  that  the  article  sold  by  the  accused  was 
artificially  colored  'in  imitation  of  yellow  butter.'  Now,  the  real  ob- 
ject of  coloring  oleomargarine  so  as  to  make  it  look  like  genuine  but- 
ter is  that  it  may  appear  to  be  what  it  is  not,  and  thus  induce  unwary 
purchasers,  who  do  not  closely  scrutinize  the  label  upon  the  package  in 
which  it  is  contained,  to  buy  it  as  and  for  butter  produced  from  un- 
adulterated milk,  or  cream  from  such  milk.  The  suggestion  that  oleo- 
margarine is  artificially  colored  so  as  to  render  it  more  palatable  and 
attractive  can  only  mean  that  customers  are  deluded,  by  such  colora- 
tion, into  believing  that  they  are  getting  genuine  butter.  If  any  one 
thinks  that  oleomargarine,  not  artificially  colored  so  as  to  cause  it  to 
look  like  butter,  is  as  palatable  or  as  wholesome  for  purposes  of  food 
as  pure  butter,  he  is,  as  already  observed,  at  liberty,  under  the  statute 
of  Massachusetts,  to  manufacture  it  in  that  state,  or  to  sell  it  there  in 
such  manner  as  to  inform  the  customer  of  its  real  character.  He  is 
only  forbidden  to  practice,  in  such  matters,  a  fraud  upon  the  general 
public.  The  statute  seeks  to  suppress  false  pretenses  and  to  promote 
fair  dealing  in  the  sale  of  an  article  of  food.  It  compels  the  sale  of 
oleomargarine  for  what  it  really  is,  by  preventing  its  sale  for  what  it 
is  not.  Can  it  be  that  the  Constitution  of  the  United  States  secures 
to  any  one  the  privilege  of  manufacturing  and  selling  an  article  of 
food  in  such  manner  as  to  induce  the  mass  of  people  to  believe  that 
they  are  buying  something  which,  in  fact,  is  wholly  different  from 
that  which  is  offered  for  sale?  Does  the  freedom  of  commerce  among 
the  states  demand  a  recognition  of  the  right  to  practice  a  deception 
upon  the  public  in  the  sale  of  any  articles,  even  those  that  may  have  be- 
come the  subject  of  trade  in  different  parts  of  the  country?"  *     *     * 

Foppiano  v.  Speed,  199  U.  S.  501,  26  Sup.  Ct  138,  50  L.  Ed.  288  (1905) ;    and 
even  as  regards  first  sales  of  imported  liquor  in   the  original  packages,   De 

Bary  &  Co.  v.  Louisiana.  227  U.  S.  108,  33  Sup.  Ct.  239.  57  L.  Ed.  (1913), 

affirming  130  I.a.  1090.  109.".  58  South.  892  (1912). 


Ch.  IS)  EF.cn.ATION    OF    COMMERCE  1203 

[After  discussing  Railroad  Co.  v.  Husen,  95  U.  S.  465,  24  L.  Ed. 
527 ;  Minnesota  v.  Barber,  ante,  p.  10S6 ;  and  several  cases  similar  to 
the  latter:]  "It  is  obvious  that  none  of  the  above  cases  presented 
the  question  now  before  us.  Each  of  them  involved  the  question 
whether  one  state  could  burden  interstate  commerce  by  means  of  dis- 
criminations enforced  for  the  benefit  of  its  own  products  and  industries 
at  the  expense  of  the  products  and  industries  of  other  states.  It  did 
not  become  material  in  any  of  them  to  inquire,  nor  did  this  court  in- 
quire, whether  a  state,  in  the  exercise  of  its  police  powers,  may  protect 
the  public  against  the  deception  and  fraud  that  would  be  involved  in 
the  sale  within  its  limits,  for  purposes  of  food,  of  a  compound  that  had 
been  so  prepared  as  to  make  it  appear  to  be  what  it  was  not.     *     *     * 

"If  there  be  any  subject  over  which  it  would  seem  the  states  ought 
to  have  plenary  control,  and  the  power  to  legislate  in  respect  to  which, 
it  ought  not  to  be  supposed  was  intended  to  be  surrendered  to  the 
general  government,  it  is  the  protection  of  the  people  against  fraud 
and  deception  in  the  sale  of  food  products.  Such  legislation  may,  in- 
deed, indirectly  or  incidentally  affect  trade  in  such  products  trans- 
ported from  one  state  to  another  state.  But  that  circumstance  does 
not  show  that  laws  of  the  character  alluded  to  are  inconsistent  with  the 
power  of  Congress  to  regulate  commerce  among  the  states.     *     * 

"But  the  case  most  relied  on  by  the  petitioner  to  support  the  propo- 
sition that  oleomargarine,  being  a  recognized  article  of  commerce, 
may  be  introduced  into  a  state,  and  there  sold  in  original  packages, 
without  any  restriction  being  imposed  by  the  state  upon  such  sale,  is 
Leisy  v.  Hardin,  135  U.  S.  100,  10  Sup.  Ct.  681,  34  L.  Ed.  12s. 
*  *  *  It  is  sufficient  to  say  of  Leisy  v.  Hardin  that  it  did  not  in 
form  or  in  substance  present  the  particular  question  now  under  con- 
sideration. The  article  which  the  majority  of  the  court  in  that  case 
held  could  be  sold  in  Iowa  in  original  packages,  the  statute  of  that 
state  to  the  contrary  notwithstanding,  was  beer  manufactured  in 
Illinois,  and  shipped  to  the  former  state,  to  be  there  sold  in  such  pack- 
ages. So  far  as  the  record  disclosed,  and  so  far  as  the  contentions  of 
the  parties  were  concerned,  the  article  there  in  question  was  what 
it  appeared  to  be,  namely,  genuine  beer,  and  not  a  liquid  or  drink  col- 
ored artificially  so  as  to  cause  it  to  look  like  beer.  The  language  we 
have  quoted  from  Leisy  v.  Hardin  must  be  restrained  in  its  applica- 
tion to  the  case  actually  presented  for  determination,  and  does  not 
justify  the  broad  contention  that  a  state  is  powerless  to  prevent  the 
sale  of  articles  manufactured  in  or  brought  from  another  state,  and 
subjects  of  traffic  and  commerce,  if  their  sale  may  cheat  the  people  into 
purchasing  something  they  do  not  intend  to  buy,  and  which  is  wholly 
different  from  what  its  condition  and  appearance  import."     *     *     * 

[After  referring  to  various  state  decisions  upholding  statutes  like 
this  one :]  "It  has  been  adjudged  that  the  states  may  legislate  to  pre- 
vent the  spread  of  crime,  and  may  exclude  from  their  limits  paupers, 
convicts,  persons  likely  to  become  a  public  charge,  and  persons  atilict- 


1204  THE   FEDERAL   GOVERNMENT  (Part  3 

ed  with  contagious  or  infectious  diseases.  These  and  other  like  tilings 
immediate  connection  with  the  health,  morals,  and  safety  of  the 
people  may  be  done  by  the  states  in  the  exercise  of  the  right  of  self- 
i  .  And  yet  it  is  supposed  that  the  owners  of  a  compound  which 
has  been  put  in  a  condition  to  cheat  the  public  into  believing  that  it  is 
a  particular  article  of  food  in  daily  use,  and  eagerly  sought  by  people 
in  every  condition  of  life,  are  protected  by  the  Constitution  in  making 
a  sale  of  it  against  the  will  of  the  state,  in  which  it  is  offered  for  sale, 
because  of  the  circumstance  that  it  is  in  an  original  package,  and  has  ' 
become  a  subject  of  ordinary  traffic.  We  are  unwilling  to  accept  this 
view.  We  are  of  opinion  that  it  is  within  the  power  of  a  state  to  ex- 
clude from  its  markets  any  compound  manufactured  in  another  state, 
which  has  been  artificially  colored  or  adulterated  so  as  to  cause  it  to 
look  like  an  article  of  food  in  general  use,  and  the  sale  of  which  may, 
by  reason  of  such  coloration  or  adulteration,  cheat  the  general  public 
into  purchasing  that  which  they  may  not  intend  to  buy.  The  Consti- 
tution of  the  United  States  does  not  secure  to  any  one  the  privilege 
of  defrauding  the  public.  The  deception  against  which  the  statute  of 
Massachusetts  is  aimed  is  an  offense  against  society ;  and  the  states 
are  as  competent  to  protect  their  people  against  such  offenses  or 
wrongs  as  they  are  to  protect  them  against  crimes  or  wrongs  of  more 
serious  character.  And  this  protection  may  be  given  without  violat- 
ing any  right  secured  by  the  national  Constitution,  and  without  in- 
fringing the  authority  of  the  general  government.     *     *     * 

"In  view  of  the  complex  system  of  government  which  exists  in  this 
country  *  *  *  the  judiciary  of  the  United  States  should  not 
strike  down  a  legislative  enactment  of  a  state — especially  if  it  has  di- 
rect connection  with  the  social  order,  the  health,  and  the  morals  of  its 
people — unless  such  legislation  plainly  and  palpably  violates  some 
right  granted  or  secured  by  the  national  Constitution,  or  encroaches 
upon  the  authority  delegated  to  the  United  States  for  the  attainment 
of  objects  of  national  concern."1 

'Mr.  Chief  Justice  Fuller,  dissenting  [with  whom  concurred  Field 
and  Brewbr,  JJ.]  : 

"This  [law]  prohibits  [the]  sale  [of  oleomargarine]  in  its  natural 
state  of  light  yellow,  or  when  colored  a  deeper  yellow,  because  in  ei- 

i  Accord:  Crossman  v.  Ian-man,  192  U.  S.  1S9,  24  Sup.  Ct.  234,  48  L.  Ed. 
■101  (1904)  (artificially  colored  coffee  beans);  New  York  v.  Hesterberg  211 
U.  S.  31,  43,  29  Sup.  Ct.  10,  53  L.  Ed.  75  (190S)  (possession  or  sale  of  game 
during  closed  season),  by  Day,  J.:  "Owing  to  the  likelihood  of  fraud  and  deceit 
in  the  handling  of  such  game,  the  possession  of  game  of  the  classes  named  is 
likewise  prohibited  [during  the  closed  season],  whether  it  is  killed  within  or 
without  the  state." 

Compare  Opinion  of  the  Justices,  211  Mass.  605,  98  N.  E.  334,  Ann.  Cas. 
1913B,  815  (1012),  holding  that  a  state  cannot  compel  prison-made  goods  from 
ates  to  be  so  labeled  when  offered  for  sale,  even  though  it  makes  a 
similar  requirement  of  its  own  goods;  and  People  v.  Hawkins,  157  N.  Y.  1, 
51  N.  E.  257,  42  L.  R.  A.  490,  68  Am.  St.  Rep.  736  (1S9S)  (same).  Compare 
People  ex  rel.  v.  Raynes,  136  App.  Div.  417,  120  N.  Y.  Supp.  1053  (1010),  af- 
firmed in  198  N.  Y.  022,  02  N.  E.  1007. 


Ch.  18)  REGULATION    OF    COMM  1205 

ther  case  it  looks  like  butter.  The  statute  is  not  limited  to  imitations 
made  for  a  fraudulent  purpose;  that  is,  intentionally  made  to  deceive. 
The  act  of  Congress  *  *  *  and  numerous  acts  of  Massachusetts, 
minutely  providing  against  deception  in  that  respect,  *  *  *  amply 
protect  the  public  from  the  danger  of  being  induced  to  purchase  oleo- 
ine  for  butter.  The  natural  and  reasonable  effect  of  this  stat- 
ute is  to  prevent  the  sale  of  oleomargarine  because  it  looks  like  butter. 
How  this  resemblance,  although  it  might  possibly  mislead  a  purchaser, 
renders  it  any  the  less  an  article  of  commerce,  it  is  difficult  to  see. 

"I  deny  that  a  state  may  exclude  from  commerce  legitimate  subjects 
of  commercial  dealings  because  of  the  possibility  that  their  appearance 
may  deceive  purchasers  in  regard  to  their  qualities.  In  the  language 
of  Knowllon,  J.,  in  the  dissenting  opinion  below,  I  am  not  'prepared  to 
hold  that  no  cloth  whose  fabric  is  so  carded  and  spun  and  woven  and 
finished  as  to  give  it  the  appearance  of  being  wholly  wool,  when  in  fact 
it  is  in  part  cotton,  can  be  a  subject  of  commercial  transactions,  or  that 
no  jewelry  which  is  not  gold,  but  is  made  to  resemble  gold,  and  no 
imitations  of  precious  stones,  however  desirable  they  may  be  consider- 
ed by  those  who  wish  to  wear  them,  shall  be  deemed  articles  of  mer- 
chandise in  regard  to  which  Congress  may  make  commercial  regula- 
tions.' " 


DELAMATER  v.  SOUTH  DAKOTA  (1907)  205  U.  S.  93,  99- 
102,  104,  27  Sup.  Ct.  447,  51  L.  Ed.  724,  10  Ann.  Cas.  733,  Mr.  Jus- 
tice White  (upholding  a  state  statute  imposing  an  annual  license 
charge  upon  the  business  of  soliciting  sales  of  liquor  within  the  state 
in  less  than  five  gallon  lots  by  traveling  salesmen,  as  applied  to  the 
solicitation  of  orders  for  liquor  to  be  shipped  into  the  state  from  out- 
side) : 

"[The  Wilson  Act]  manifested  the  conviction  of  Congress  that 
control  by  the  states  over  the  traffic  of  dealing  in  liquor  within  their 
borders  was  of  such  importance  that  it  was  wise  to  adopt  a  special 
regulation  of  interstate  commerce  on  the  subject.  When,  then,  for 
the  carrying  out  of  this  purpose,  the  regulation  expressly  provided 
that  intoxicating  liquors  coming  into  a  state  should  be  as  completely 
under  the  control  of  a  state  as  if  the  liquor  had  been  manufactured 
therein,  it  would  be,  we  think,  a  disregard  of  the  purposes  of  Con- 
gress to  hold  that  the  owner  of  intoxicating  liquors  in  one  state  can, 
by  virtue  of  the  commerce  clause,  go  himself  or  send  his  agent  into 
such  other  state,  there,  in  defiance  of  the  law  of  the  state,  to  carry 
on  the  business  of  soliciting  proposals  for  the  purchase  of  intoxicat- 
ing  liquors.     *    *    * 

"Decisions  of   this  court   interpreting  the  Wilson   Act  have  held 
that  that  law  did  not  authorize  state  power  to  attach  to  liquor  - 
from  one  state  into  another  before  its  arrival  and  delivery  within  the 
State  to  which  destined.    From  this  it  is  insisted,  as  none  of  the  liquor 


1206  THE  FEDERAL  GOVERNMENT  (Part  3 

covered  by  the  proposals  in  this  case  had  arrived  and  been  deliv- 
ered within  South  Dakota,  the  power  of  the  state  did  not  attach  to 
the  carrying  on  of  the  business  of  soliciting  proposals,  for,  until  the 
liquor  arrived  in  the  state,  there  was  nothing  on  which  the  state 
authority  could  operate.  But  this  is  simply  to  misapprehend  and  mis- 
apply the  cases  and  to  misconceive  the  nature  of  the  act  done  in  the 
carrying  on  the  business  of  soliciting  proposals.  The  rulings  in  the 
previous  cases  to  the  effect  that,  under  the  Wilson  Act,  state  author- 
ity did  not  extend  over  liquor  shipped  from  one  state  into  another 
until  arrival  and  delivery  to  the  consignee  at  the  point  of  destination, 
were  but  a  recognition  of  the  fact  that  Congress  did  not  intend,  in 
adopting  the  Wilson  Act,  even  if  it  lawfully  could  have  done  so,  to 
authorize  one  state  to  exert  its  authority  in  another  state  by  prevent- 
ing the  delivery  of  liquor  embraced  by  transactions  made  in  such  oth- 
er state. 

"The  proposition  here  relied  on  is  widely  different,  since  it  is  that, 
despite  the  Wilson  Act,  the  state  of  South  Dakota  was  without  power 
to  regulate  or  control  the  business  carried  on  in  South  Dakota  of 
soliciting  proposals  for  the  purchase  of  liquors,  because  the  pro- 
posals related  to  liquor  situated  in  another  state.  But  the  business 
of  soliciting  proposals  in  South  Dakota  was  one  which  that  state  had 
a  right  to  regulate,  wholly  irrespective  of  when  or  wdiere  it  was  con- 
templated the  proposals  would  be  accepted  or  whence  the  liquor 
which  thy  embraced  was  to  be  shipped.  Of  course,  if  the  owner  of 
the  liquor  in  another  state  had  a  right  to  ship  the  same  into  South 
Dakota  as  an  article  of  interstate  commerce,  and,  as  such,  there  sell 
the  same  in  the  original  packages,  irrespective  of  the  laws  of  South 
Dakota,  it  would  follow  that  the  right  to  carry  on  the  business  of 
soliciting  in  South  Dakota  was  an  incident  to  the  right  to  ship  and 
sell,  which  could  not  be  burdened  without  directly  affecting  interstate 
commerce.  But,  as  by  the  Wilson  Act,  the  power  of  South  Dakota 
attached  to  intoxicating  liquors,  when  shipped  into  that  state  from 
another  state,  after  delivery,  but  before  the  sale  in  the  original  pack- 
age, so  as  to  authorize  South  Dakota  to  regulate  or  forbid  such  sale, 
it  follows  that  the  regulation  by  South  Dakota  of  the  business  car- 
ried on  within  its  borders  of  soliciting  proposals  to  purchase  intoxi- 
cating liquors,  even  though  such  liquors  were  situated  in  other  states, 
cannot  be  held  to  be  repugnant  to  the  commerce  clause  of  the  Con- 
stitution, because  directly  or  indirectly  burdening  the  right  to  sell 
in  South  Dakota, — a  right  which,  by  virtue  of  the  Wilson  Act,  did 
not  exist."     *     *     * 

[After  referring  to  Vance  v.  Vandercook  Co.,  170  U.  S.  438,  18 
Sup.  Ct.  674,  42  L.  Ed.  1100:]  "It  having  been  thus  settled  that  un- 
der the  Wilson  Act  a  resident  of  one  state  had  the  right  to  contract 
for  liquors  in  another  state  and  receive  the  liquors  in  the  state  of 
his  residence  for  his  own  use,  therefore,  it  is  insisted,  the  agent  or 
traveling   salesman   of   a   nonresident   dealer   in   intoxicating   liquors 


Ch.  18)  REGULATION    OP    COMMKRCH  1207 

had  the  rigf.it  to  go  into  South  Dakota  and  there  carry  on  the  busi- 
ness of  soliciting  from  residents  of  that  state  orders  for  liquor,  to  be 
consummated  by  acceptance  of  the  proposals  by  the  nonresident  deal- 
er. The  premise  is  sound,  but  the  error  lies  in  the  deduction,  since 
it  ignores  the  broad  distinction  between  the  want  of  power  of  a  state 
to  prevent  a  resident  from  ordering  from  another  state  liquor  for  his 
own  use,  and  the  plenary  authority  of  a  state  to  forbid  the  carrying 
on  within  its  borders  of  the  business  of  soliciting  orders  for  intoxi- 
cating liquors  situated  in  another  state,  even  although  such  orders 
may  only  contemplate  a  contract  to  result  from  final  acceptance  in 
the  state  where  the  liquor  is  situated.  The  distinction  between  the 
two  is  not  only  obvious,  but  has  been  foreclosed  by  a  previous  deci- 
sion of  this  court."     *     *     * 

[After  discussing  Nutting  v.  Massachusetts,  183  U.  S.  553,  22  Sup. 
Ct.  238,  46  L.  Ed.  324,  holding  that  a  state  could  prohibit  the  solicit- 
ing in  it  by  agents  of  foreign  insurance  companies  of  proposals  for 
contracts  of  insurance  to  be  accepted  outside,  though  it  could  not 
forbid  a  resident  himself  to  send  such  proposals  out  of  the  state  for 
acceptance,  Allgeyer  v.  Louisiana,  ante,  p.  232:]  "The  ruling  thus 
made  is  particularly  pertinent  to  the  subject  of  intoxicating  liquors 
and  the  power  of  the  state  in  respect  thereto.  As  we  have  seen,  the 
right  of  the  states  to  prohibit  the  sale  of  liquor  within  their  respective 
jurisdictions  in  and  by  virtue  of  the  regulation  of  commerce  em- 
bodied in  the  Wilson  Act  is  absolutely  applicable  to  liquor  shipped 
from  one  state  into  another,  after  delivery,  and  before  the  sale  in  the 
original  package.  It  follows  that  the  authority  of  the  states,  so  far 
as  the  sale  of  intoxicating  liquors  within  their  borders  is  concerned, 
is  just  as  complete  as  is  their  right  to  regulate  within  their  jurisdiction 
the  making  of  contracts  of  insurance.  It  hence  must  be  that  the  au- 
thority of  the  states  to  forbid  agents  of  nonresident  liquor  dealers 
from  coming  within  their  borders  to  solicit  contracts  for  the  pur- 
chase of  intoxicating  liquors  which  otherwise  the  citizen  of  the  state 
'would  not  have  thought  of  making'  must  be  as  complete  and  effica- 
cious as  is  such  authority  in  relation  to  contracts  of  insurance,  es- 
pecially in  view  of  the  conceptions  of  public  order  and  social  well- 
being  which  it  may  be  assumed  lie  at  the  foundation  of  regulations 
concerning  the  traffic  in  liquor." 

[FULLER,  C.  J.,  dissented.] 


1208  THE   FEDERAL   GOVERNMENT  (Part  3 

SECTION  6.— POWER  OF  CONGRESS 


SHERLOCK  v.  ALLING  (1876)  93  U.  S.  99,  103,  104,  23  L. 
Ed.  819,  Mr.  Justice  Field: 

"It  is  true  that  the  commercial  power  conferred  by  the  Constitu- 
tion is  one  without  limitation.  It  authorizes  legislation  with  respect 
to  all  the  subjects  of  foreign  and  interstate  commerce,  the  persons 
engaged  in  it,  and  the  instruments  by  which  it  is  carried  on.  And 
legislation  has  largely  dealt,  so  far  as  commerce  by  water  is  con- 
cerned, with  the  instruments  of  that  commerce.  It  has  embraced 
the  whole  subject  of  navigation,  prescribed  what  shall  constitute 
American  vessels,  and  by  whom  they  shall  be  navigated ;  how  they 
shall  be  registered  or  enrolled  and  licensed ;  to  what  tonnage,  hos- 
pital, and  other  dues  they  shall  be  subjected;  what  rules  they  shall 
obey  in  passing  each  other;  and  what  provision  their  owners  shall 
make  for  the  health,  safety,  and  comfort  of  their  crews.  Since  steam 
has  been  applied  to  the  propulsion  of  vessels,  legislation  has  embraced 
an  infinite  variety  of  further  details,  to  guard  against  accident  and 
consequent  loss  of  life.  The  power  to  prescribe  these  and  similar 
regulations  necessarily  involves  the  right  to  declare  the  liability  which 
shall  follow  their  infraction.  Whatever,  therefore,  Congress  deter- 
mines, either  as  to  a  regulation  or  the  liability  for  its  infringement, 
is  exclusive  of  state  authority."  1 


GLOUCESTER  FERRY  CO.  v.  PENNSYLVANIA  (1885)  114 
U.  S.  196,  215,  5  Sup.  Ct.  826,  29  L.  Ed.  158,  Mr.  Justice  Field 
(quoting  with  approval  from  Cooley,  Constitutional  Limitations, 
732) : 

"It  is  not  doubted  that  Congress  has  the  power  to  go  beyond  the 
general  regulations  of  commerce  which  it  is  accustomed  to  establish, 
and  to  descend  to  the  most  minute  directions  if  it  shall  be  deemed 
advisable,  and  that  to  whatever  extent  ground  shall  be  covered  by 
those  directions,  the  exercise  of  state  power  is  excluded.  Congress 
may  establish  police  regulations  as  well  as  the  states,  confining  their 
operations  to  the  subjects  over  which  it  is  given  control  by  the  Con- 
stitution;, but  as  the  general  police  power  can  better  be  exercised 

i  In  U.  S.  v.  Coombs,  12  Pet.  72,  9  L.  Ed.  1004  (1838),  it  was  held  that  Con- 
gress  could  make  it  a  crime,  under  the  commerce  clause,  to  steal  or  destroy 
(even  when  above  high-water  mark)  any  property  from  a  vessel  in  distress 
or  wrecked  in  any  place  within  the  federal  admiralty  jurisdiction.  "Locality 
is  attached  to  the  ship  or  vessel  and  not  to  the  propertv  plundered."  Id.,  at 
page  79. 


Ch.  18)  REGULATION    OF    COMMERCE  1209 

under  the  provisions  of  the  local  authority,  and  mischiefs  are  not 
likely  to  spring  therefrom  so  long  as  the  power  to  arrest  collision 
resides  in  the  national  Congress,  the  regulations  which  are  made  by 
Congress  do  not  often  exclude  the  establishment  of  others  by  the 
state  covering  very  many  particulars." 


TRADE-MARK  CASES  (1879)  100  U.  S.  82,  93,  95-99,  25  L. 
Ed.  550,  Mr.  Justice  Miller  (holding  invalid  a  federal  statute  regu- 
lating generally  the  registration  and  wrongful  use  of  trade-marks) : 

"As  the  property  in  trade-marks  and  the  right  to  their  exclusive 
use  rest  on  the  laws  of  the  states,  and,  like  the  great  body  of  the 
rights  of  person  and  of  property,  depend  on  them  for  security  and 
protection,  the  power  of  Congress  to  legislate  on  the  subject,  to 
establish  the  conditions  on  which  these  rights  shall  be  enjoyed  and 
exercised,  the  period  of  their  duration,  and  the  legal  remedies  for 
their  enforcement,  if  such  power  exist  at  all,  must  be  found  in  the 
Constitution  of  the  United  States,  which  is  the  source  of  all  the 
powers  that  Congress  can  lawfully  exercise.  *  *  *  The  argu- 
ment is  that  the  use  of  a  trade-mark — that  which  alone  gives  it  any 
value — is  to  identify  a  particular  class  or  quality  of  goods  as  the 
manufacture,  produce,  or  property  of  the  person  who  puts  them  in 
the  general  market  for  sale ;  that  the  sale  of  the  article  so  distin- 
guished is  commerce;  that  the  trade-mark  is,  therefore,  a  useful  and 
valuable  aid  or  instrument  of  commerce,  and  its  regulation  by  virtue 
of  the  [commerce]  clause  belongs  to  Congress,  and  that  the  act  in 
question  is  a  lawful  exercise  of  this  power. 

"Every  species  of  property  which  is  the  subject  of  commerce,  or 
which  is  used  or  even  essential  in  commerce,  is  not  brought  by  this 
clause  within  the  control  of  Congress.  The  barrels  and  casks,  the 
bottles  and  boxes  in  which  alone  certain  articles  of  commerce  are 
kept  for  safety  and  by  which  their  contents  are  transferred  from  the 
seller  to  the  buyer,  do  not  thereby  become  subjects  of  congressional 
legislation  more  than  other  property.  *  *  *  The  question,  there- 
lore,  whether  the  trade-mark  bears  such  a  relation  to  commerce  in 
general  terms  as  to  bring  it  within  congressional  control,  when  used 
or  applied  to  the  classes  of  commerce  which  fall  within  that  control, 
is  one  which,  in  the  present  case,  we  propose  to  leave  undecided. 
*  *  *  While  bearing  in  mind  the  liberal  construction,  that  com- 
merce with  foreign  nations  means  commerce  between  citizens  of  the 
United  States  and  citizens  and  subjects  of  foreign  nations,  and  com- 
merce among  the  states  means  commerce  between  the  individual  cit- 
izens of  different  states,  there  still  remains  a  very  large  amount  of 
commerce,  perhaps  the  largest,  which,  being  trade  or  traffic  between 
citizens  of  the  same  state,  is  beyond  the  control  of  Congress. 


IL'10  THE   FEDERAL   GOVERNMENT  (Part  .°< 

"When,  therefore,  Congress  undertakes  to  enact  a  law,  which  can 
only  be  valid  as  a  regulation  of  commerce,  it  is  reasonable  to  expect 
to  find  on  the  face  of  the  law,  or  from  its  essential  nature,  that  it  is 
a  regulation  of  commerce  with  foreign  nations,  or  among  the  several 
states,  or  with  the  Indian  tribes.  If  not  so  limited,  it  is  in  excess 
of  the  power  of  Congress.  If  its  main  purpose  be  to  establish  a  reg- 
ulation applicable  to  all  trade,  to  commerce  at  all  points,  especially 
if  it  be  apparent  that  it  is  designed  to  govern  the  commerce  wholly 
between  citizens  of  the  same  state,  it  is  obviously  the  exercise  of  a 
power  not  confided  to  Congress.  *  *  *  It  is  manifest  that  no 
such  distinction  is  found  in  the  act,  but  that  its  broad  purpose  was 
to  establish  a  universal  system  of  trade-mark  registration,  for  the 
benefit  of  all  who  had  already  used  a  trade-mark,  or  who  wished  to 
adopt  one  in  the  future,  without  regard  to  the  character  of  the  trade 
to  which  it  was  to  be  applied  or  the  residence  of  the  owner,  with  the 
solitary  exception  that  those  who  resided  in  foreign  countries  which 
extended  no  such  privileges  to  us  were  excluded  from  them  here. 

"It  has  been  suggested  that  if  Congress  has  the  power  to  regulate 
trade-marks  used  in  commerce  with  foreign  nations  and  among  the 
several  stales,  these  statutes  shall  be  held  valid  in  that  class  of  cases, 
if  no  further.  To  this  there  are  two  objections :  First,  the  indict- 
ments in  these  cases  do  not  show  that  the  trade-marks  which  are 
wrongfully  used  were  trade-marks  used  in  that  kind  of  commerce. 
Secondly,  while  it  may  be  true  that  when  one  part  of  a  statute  is 
valid  and  constitutional,  and  another  part  is  unconstitutional  and 
void,  the  court  may  enforce  the  valid  part  where  they  are  distinctly 
separable  so  that  each  can  stand  alone,  it  is  not  within  the  judicial 
province  to  give  to  the  words  used  by  Congress  a  narrower  meaning 
than  they  are  manifestly  intended  to  bear  in  order  that  crimes  may- 
be punished  which  are  not  described  in  language  that  brings  them 
within  the  constitutional  power  of  that  body.  This  precise  point  was 
decided  in  United  States  v.  Reese,  92  U.  S.  214,  23  L.  Ed.  563. 
*  *  If  we  should,  in  the  case  before  us,  undertake  to  make  by 
judicial  construction  a  law  which  Congress  did  not  make,  it  is  quite 
probable  we  should  do  what,  if  the  matter  were  now  before  that 
body,  it  would  be  unwilling  to  do ;  namely,  make  a  trade-mark  law 
which  is  only  partial  in  its  operation,  and  which  would  complicate 
the  rights  which  parties  would  hold,  in  some  instances  under  the  Act 
of  Congress,  and  in  others  under  State  law."1 

i  Accord :  111.  C.  Ry.  v.  MeKendree,  203  U.  S.  514,  27  Sup.  Ct.  153,  51  L. 
Ed.  298  (1906)  (quarantine  regulation  applicable  to  all  commerce) ;  Howard  v. 
1.  C.  Ry.,  207  U.  S.  463,  28  Sup.  Ct.  141,  52  L.  Ed.  297  (1908)  (employers'  lia- 
bility act  applicable  to  all  employees  of  interstate  railroad).  Compare  El 
Paso,  etc.,  Ry  v.  Gutierrez,  215  U.  S.  87,  30  Sup.  Ct  21,  54  L.  Ed.  106  (1909) 
(separable  provisions). 

In  1905  Congress  passed  a  general  act  for  the  registration  and  protection  of 
trade-marljs  used  in  foreign,  interstate,  and  Indian  commerce.  33  Stat.  72-1. 
c.  592  (U.  S.  Comp.  St.  Supp.  1911.  p.  1459). 


Ch.  18)  REGULATION    OF    COMMERCE!  1211 


In  re  DEBS. 

(Sui.rfme  Court  of  UnUed  States,   1895.     158  D.   S.  564,  15  Sup.  Ct.  900,  39 
I,.  Ed.  1092.) 

[Petition  for  writ  of  habeas  corpus  by  Debs  and  others,  imprisoned 
for  contempt  of  court  in  disobeying  orders  of  the  federal  Circuit 
Court  for  the  Northern  District  of  Illinois  issued  during  the  Chi- 
cago railway  strike  of  1894,  forbidding  further  obstruction  of  trains 
engaged  in  interstate  commerce  or  in  carrying  the  mails.  Other 
facts  appear  in  the  opinion.] 

Mr.  Justice  Brewer.  The  case  presented  by  the  bill  is  this:  The 
United  States,  finding  that  the  interstate  transportation  of  persons 
and  property,  as  well  as  the  carriage  of  the  mails,  is  forcibly  ob- 
structed, and  that  a  combination  and  conspiracy  exists  to  subject 
the  control  of  such  transportation  to  the  will  of  the  conspirators,  ap- 
plied to  one  of  their  courts,  sitting  as  a  court  of  equity,  for  an  injunc- 
tion to  restrain  such  obstruction  and  prevent  carrying  into  effect  such 
conspiracy.  Two  questions  of  importance  are  presented :  First.  Are 
the  relations  of  the  general  government  to  interstate  commerce  and 
the  transportation  of  the  mails  such  as  authorize  a  direct  interference 
to  prevent  a  forcible  obstruction  thereof?  Second.  If  authority  ex- 
ists, as  authority  in  governmental  affairs  implies  both  power  and 
duty,  has  a  court  of  equity  jurisdiction  to  issue  an  injunction  in  aid 
of  the  performance  of  such  duty?     *     *     * 

As,  under  the  Constitution,  power  over  interstate  commerce  and 
the  transportation  of  the  mails  is  vested  in  the  national  government, 
and  Congress,  by  virtue  of  such  grant,  has  assumed  actual  and  direct 
control,  it  follows  that  the  national  government  may  prevent  any 
unlawful  and  forcible  interference  therewith.  But  how  shall  this  be 
accomplished?  Doubtless,  it  is  within  the  competency  of  Congress 
to  prescribe  by  legislation  that  any  interferences  with  these  matters 
shall  be  offenses  against  the  United  States,  and  prosecuted  and  pun- 
ished by  indictment  in  the  proper  courts.  But  is  that  the  only  rem- 
edy? Have  the  vast  interests  of  the  nation  in  interstate  commerce, 
and  in  the  transportation  of  the  mails,  no  other  protection  than  lies 
in  the  possible  punishment  of  those  who  interfere  with  it?  To  ask 
the  question  is  to  answer  it.  By  article  3,  §  2,  cl.  3,  of  the  federal 
Constitution,  it  is  provided :  "The  trial  of  all  crimes  except  in  cases 
of  impeachment  shall  be  by  jury ;  and  such  trial  shall  be  held  in  the 
state  where  the  said  crime  shall  have  been  committed."  If  all  the  in- 
habitants of  a  state,  or  even  a  great  body  of  them,  should  combine 
to  obstruct  interstate  commerce  or  the  transportation  of  the  mails, 
prosecutions  for  such  offenses  had  in  such  a  community  would  be 
doomed  in  advance  to  failure.  And  if  the  certainty  of  such  failure 
was  known,  and  the  national  government  had  no  other  wav  to  ex\- 


1212  TQE   FEDERAL  GOVERNMENT  (Part  3 

force  the  freedom  of  interstate  commerce  and  the  transportation  of 
the  mails  than  by  prosecution  and  punishment  for  interference  there- 
with, the  whole  interests  of  the  nation  in  these  respects  would  be  at 
the  absolute  mercy  of  a  portion  of  the  inhabitants  of  that  single 
slate. 

But  there  is  no  such  impotency  in  the  national  government.  The 
entire  strength  of  the  nation  may  be  used  to  enforce  in  any  part  of 
the  land  the  full  and  free  exercise  of  all  national  powers  and  the 
security  of  all  rights  intrusted  by  the  Constitution  to  its  care.  The 
strong  arm  of  the  national  government  may  be  put  forth  to  brush 
away  all  obstructions  to  the  freedom  of  interstate  commerce  or  the 
transportation  of  the  mails.  If  the  emergency  arises,  the  army  of 
the  nation,  and  all  its  militia,  are  at  the  service  of  the  nation,  to 
compel  obedience  to  its  laws. 

But,  passing  to  the  second  question,  is  there  no  other  alternative 
than  the  use  of  force  on  the  part  of  the  executive  authorities  when- 
ever obstructions  arise  to  the  freedom  of  interstate  commerce  or  the 
transportation  of  the  mails?  Is  the  army  the  only  instrument  by 
which  rights  of  the  public  can  be  enforced,  and  the  peace  of  the  na- 
tion preserved  ?  Grant  that  any  public  nuisance  may  be  forcibly  abat- 
ed, either  at  the  instance  of  the  authorities,  or  by  any  individual  suf- 
fering private  damage  therefrom.  The  existence  of  this  right  of 
forcible  abatement  is  not  inconsistent  with,  nor  does  it  destroy,  the 
right  of  appeal,  in  an  orderly  way,  to  the  courts  for  a  judicial  deter- 
mination, and  an  exercise  of  their  powers,  by  writ  of  injunction  and 
otherwise,  to  accomplish  the  same  result.     *     *     * 

Neither  can  it  be  doubted  that  the  government  has  such  an  interest 
in  the  subject-matter  as  enables  it  to  appear  as  party  plaintiff  in  this 
suit.  It  is  said  that  equity  only  interferes  for  the  protection  of  prop- 
erty, and  that  the  government  has  no  property  interest.  A  sufficient 
reply  is  that  the  United  States  have  a  property  in  the  mails,  the  pro- 
tection of  which  was  one  of  the  purposes  of  this  bill.  *  *  *  We 
do  not  care  to  place  our  decision  upon  this  ground  alone.  Every  gov- 
ernment, intrusted  by  the  very  terms  of  its  being  with  powers  and  du- 
ties to  be  exercised  and  discharged  for  the  general  welfare,  has  a 
right  to  apply  to  its  own  courts  for  any  proper  assistance  in  the  exer- 
cise of  the  one  and  the  discharge  of  the  other,  and  it  is  no  sufficient 
answer  to  its.  appeal  to  one  of  those  courts  that  it  has  no  pecuniary  in- 
terest in  the  matter.  The  obligations  which  it  is  under  to  promote  the 
interest  of  all  and  to  prevent  the  wrongdoing  of  one.  resulting  in  in- 
jury to  the  general  welfare,  is  often  of  itself  sufficient  to  give  it  a 
standing  in  court.  *  *  *  [Here  are  discussed  U.  S.  v.  San  Tacin- 
to  Co.,  125  U.  S.  273,  8  Sup.  Ct.  850,  31  L.  Ed.  747,  and  U.  S.  v.  Amer. 
Bell  Tel.  Co.,  128  U.  S.  315,  9  Sup.  Ct.  90,  32  L.  Ed.  450.] 

It  is  obvious  from  these  decisions  that  while  it  is  not  the  province 
of  the  government  to  interfere  in  any  mere  matter  of  private  contro- 


Ch.  18)  REGULATION    OF    COMMERCE  121:! 

versy  between  individuals,  or  to  use  its  great  powers  to  enforce  the 
rights  of  one  against  another,  yet,  whenever  the  wrongs  complained  of 
are  such  as  affect  the  public  at  large,  and  are  in  respect  of  matters 
which  by  the  Constitution  are  intrusted  to  the  care  of  the  nation,  and 
concerning  which  the  nation  owes  the  duty  to  all  the  citizens  of  se- 
curing to  them  their  common  rights,  then  the  mere  fact  that  the  gov- 
ernment has  no  pecuniary  interest  in  the  controversy  is  not  sufficient 
to  exclude  it  from  the  courts,  or  prevent  it  from  taking  measures 
therein  to  fully  discharge  those  constitutional  duties. 

The  national  government,  given  by  the  Constitution  power  to  regu- 
late interstate  commerce,  has  by  express  statute  assumed  jurisdiction 
over  such  commerce  when  carried  upon  railroads.  It  is  charged,  there- 
fore, with  the  duty  of  keeping  those  highways  of  interstate  commerce 
free  from  obstruction,  for  it  has  always  been  recognized  as  one  of  the 
powers  and  duties  of  a  government  to  remove  obstructions  from  the 
highways  under  its  control.  *  *  *  Indeed,  the  obstruction  of  a 
highway  is  a  public  nuisance  (4  Bl.  Comm.  167),  and  a  public  nuisance 
has  always  been  held  subject  to  abatement  at  the  instance  of  the  gov- 
ernment.    *     *     * 

It  is  said  that  the  jurisdiction  heretofore  exercised  by  the  national 
government  over  highways  has  been  in  respect  to  waterways, — the 
natural  highways  of  the  country, — and  not  over  artificial  highways, 
such  as  railroads ;  but  the  occasion  for  the  exercise  by  Congress  of  its 
jurisdiction  over  the  latter  is  of  recent  date.  Perhaps  the  first  act  in 
the  course  of  such  legislation  is  that  heretofore  referred  to.  of  June 
IS,  1866;  but  the  basis  upon  which  rests  its  jurisdiction  over  artificial 
highways  is  the  same  as  that  which  supports  it  over  the  natural  high- 
ways. Both  spring  from  the  power  to  regulate  commerce.  The  na- 
tional government  has  no  separate  dominion  over  a  river  within  the 
limits  of  a  state :  its  jurisdiction  there  is  like  that  over  land  within 
the  same  state.  Its  control  over  the  river  is  simply  by  virtue  of  the 
fact  that  it  is  one  of  the  highways  of  interstate  and  international  com- 
merce. *  *  *  The  fact  that  in  recent  years  interstate  commerce 
has  come  to  be  carried  on  mainly  by  railroads  and  over  artificial  high- 
ways has  in  no  manner  narrowed  the  scope  of  the  constitutional^pro- 
vision,  or  abridged  the  power  of  Congress  over  such  commerce.  On 
the  contrary,  the  same  fullness  of  control  exists  in  the  one  case  as  in 
the  other,  and  the  same  power  to  remove  obstructions  from  the  one  as 
from  the  other.     *     *     * 

Petition  denied.1 

i  As  to  the  power  of  the  T'nlted  States  to  enforce  In  Us  own  courts  various 
rirate  rights,  on  behalf  of  the  beneficiaries  thereof,  see  Heckman  v. 
United  States,  post,  p.  iim    • 


1214  THE  FEDERAL  GOVERNMENT  (Part  3 

LUXTON  v.  NORTH  RIVER  BRIDGE  CO.  (1894)  153  U.  S. 
525,  529,  530,  533.  534,  14  Sup.  Ct.  891,  38  L.  Ed.  808,  Mr.  Justice 
Okay  (upholding  a  federal  statute  incorporating  a  bridge  company  au- 
thorized to  build  a  bridge  across  the  Hudson  river  between  New  York 
and  New  Jersey  and  to  take  land  therefor  by  eminent  domain) : 

"The  Congress  of  the  United  States,  being  empowered  by  the  Con- 
stitution to  regulate  commerce  among  the  several  states,  and  to  pass 
all  laws  necessary  or  proper  for  carrying  into  execution  any  of  the 
powers  specifically  conferred,  may  make  use  of  any  appropriate  means 
for  this  end.  As  said  by  Chief  Justice  Marshall:  'The  power  of  cre- 
ating a  corporation,  though  appertaining  to  sovereignty,  is  not,  like  the 
power  of  making  war,  or  levying  taxes,  or  of  regulating  commerce,  a 
great  substantive  and  independent  power,  which  cannot  be  implied  as 
incidental  to  other  powers,  or  used  as  a  means  of  executing  them.  It 
is  never  the  end  for  which  other  powers  are  exercised,  but  a  means  by 
which  other  objects  are  accomplished.'  Congress,  therefore,  may  cre- 
ate corporations  as  appropriate  means  of  executing  the  powers  of  gov- 
ernment, as,  for  instance,  a  bank  for  the  purpose  of  carrying  on  the 
fiscal  operations  of  the  United  States,  or  a  railroad  corporation  for  the 
purpose  of  promoting  commerce  among  the  states.  McCulloch  v. 
Maryland,  4  Wheat.  316,  411,  422,  4  L.  Ed.  579;  Osborn  v.  Bank,  9 
Wheat.  738,  861,  873,  6  L.  Ed.  204;  Pacific  Railroad  Removal  Cases, 
115  U.  S.  1,  18,  5  Sup.  Ct.  1113,  29  L.  Ed.  319;  California  v.  Central 
Pac.  R.  Co.,  127  U.  S.  1,  39,  8  Sup.  Ct.  1073,  32  L.  Ed.  150.  Con- 
gress has  likewise  the  power,  exercised  early  in  this  century  by  suc- 
cessive acts  in  the  case  of  the  Cumberland  or  National  road  from  the 
Potomac  across  the  Alleghenies  to  the  Ohio,1  to  authorize  the  con- 
struction of  a  public  highway  connecting  several  states.  See  Indiana 
v.  U.  S.,  148  U.  S.  148,  13  Sup.  Ct.  564,  37  L.  Ed.  401.  And  whenever 
it  becomes  necessary,  for  the  accomplishment  of  any  object  within  the 
authority  of  Congress,  to  exercise  the  right  of  eminent  domain,  and 
take  private  lands,  making  just  compensation  to  the  owners,  Congress 
may  do  this  with  or  without  a  concurrent  act  of  the  state  in  which  the 
lancts  lie.  Van  Brocklin  v.  Tennessee,  117  U.  S.  151,  154,  6  Sup.  Ct. 
670,  29  L.  Ed.  845,  and  cases  cited;  Cherokee  Nation  v.  Southern 
Kansas  Ry.  Co.,  135  U.  S.  641,  656,  10  Sup.  Ct.  965,  34  L-  Ed.  295. 

"From  these  premises;  the  conclusion  appears  to  be  inevitable  that, 
although  Congress  may,  if  it  sees  fit,  and  as  it  has  often  done,  recog- 
nize and  approve  bridges  erected  by  authority  of  two  states  across  nav- 
igable waters  between  them,  it  may,  at  its  discretion,  use  its  sovereign 
powers,  directly  or  through  a  corporation  created  for  that  object,  to 
construct  bridges  for  the  accommodation  of  interstate  commerce  by 

i  For  cases  dealing  with  various  phases  of  the  compact  between  the  United 
States  and  Ohio,  Virginia,  Maryland,  and  Pennsylvania,  under  which  this  road 
was  constructed,  see  Achison  v.  Huddleson,  12  How.  293.  13  L.  Ed.  993  (1S51), 
iind  the  cases  there  cited. 


Ch.  18)  REGULATION    OF    COMMERCE  121"> 

land,  as  it  undoubtedly  may  to  improve  the  navigation  of  rivers  for 
the  convenience  of  interstate  commerce  by  water.  1  Hare,  Const. 
Law,  248,  249.  See  Acts  of  July  14,  1862,  c.  167  (12  Stat.  569) ;  Feb- 
ruary 17,  1865,  c.  38  (13  Stat.  431);  July  25,  1866,  c.  246  (14  Stat. 
244);  March  3,  1871,  c.  121,  §  5  (16  Stat.  572,  573);  June  16,  1886, 
c.  417  (24  Stat.  78).     *     *     * 

"In  California  v.  Central  Pac.  R.  Co.,  127  U.  S.  1,  8  Sup.  Ct.  1073, 
32  L.  Ed.  150,  it  was  directly  adjudged  that  Congress  has  authority, 
in  the  exercise  of  its  power  to  regulate  commerce  among  the  several 
states,  to  authorize  corporations  to  construct  railroads  across  the  states 
as  well  as  the  territories  of  the  United  States ;  and  Mr.  Justice  Brad- 
ley, again  speaking  for  the  court,  and  referring  to  the  acts  of  Con- 
gress establishing  corporations  to  build  railroads  across  the  continent, 
said :  'It  cannot  at  the  present  day  be  doubted  that  Congress,  under 
the  power  to  regulate  commerce  among  the  several  states,  as  well  as 
to  provide  for  postal  accommodations  and  military  exigencies,  had  au- 
thority to  pass  these  laws.  The  power  to  construct,  or  to  authorize  in- 
dividuals or  corporations  to  construct,  national  highways  and  bridges 
from  state  to  state,  is  essential  to  the  complete  control  and  regulation 
of  interstate  commerce.  Without  authority  in  Congress  to  establish 
and  maintain  such  highways  and  bridges,  it  would  be  without  author- 
ity to  regulate  one  of  the  most  important  adjuncts  of  commerce.  This 
power  in  former  times  was  exerted  to  a  very  limited  extent,  the  Cum- 
berland or  National  road  being  the  most  notable  instance.  Its  exer- 
tion was  but  little  called  for,  as  commerce  was  then  mostly  conducted 
by  water,  and  many  of  our  statesmen  entertained  doubts  as  to  the  ex- 
istence of  the  power  to  establish  ways  of  communication  by  land. 
But  since,  in  consequence  of  the  expansion  of  the  country,  the  multipli- 
cation of  its  products,  and  the  invention  of  railroads  and  locomotion 
by  steam,  land  transportation  has  so  vastly  increased,  a  sounder  con- 
sideration of  the  subject  has  prevailed,  and  led  to  the  conclusion  that 
Congress  has  plenary  power  over  the  whole  subject.  Of  course,  the 
authority  of  Congress  over  the  territories  of  the  United  States,  and 
its  power  to  grant  franchises  exercisable  therein,  are,  and  ever  have 
been,  undoubted.  But  the  wider  power  was  very  freely  exercised,  and 
much  to  the  general  satisfaction,  in  the  creation  of  the  vast  system  of 
railroads  connecting  the  east  with  the  Pacific,  traversing  states  as  well 
as  territories,  and  employing  the  agency  of  state  as  well  as  federal  cor- 
porations.'   127  U.  S.  39,  40,  8  Sup.  Ct.  1073,  32  L.  Ed.  150.     *     *     * 

"In  the  light  of  the  foregoing  principles  and  authorities,  the  objec- 
tion made  to  the  constitutionality  of  this  act  cannot  be  sustained."2 

2  Accord:  Wilson  v.  Shaw,  204  U.  S.  24,  27  Sup.  Ct.  233,  51  L.  Ed.  351 
(1907)  (construction  of  Panama  Canal  by  United  States — seinble). 

Federal  Control  of  Navigable  Waters  of  United  States. — The  para- 
mount power,  of  Congress  over  the  physical  condition  of  navigable  waters  of 
the  United  States  has  been  frequently  asserted,  whether  by  forbidding  ob- 
structions In  them,  U.  S.  v.  Bellingham  Boom  Co.,  176  U.  S.211,  20  Sup.  CI 
34?.,  44  Ei.  Ed.  4"7  (1900),  even  when  previously  authorised  by  a  state.  Union 


j  216  Tin:  federal  government  (Part  3 

HOPKINS  v.  UNITED  STATES  (1898)  171  U.  S.  578,  590-596, 
601-603,  19  Sup.  Ct.  40,  43  L.  Ed.  290,  Mr.  Justice  Peckham  (up- 
holding as  not  violating  the  federal  Anti-Trust  law1  the  rules  of  the 
Kansas  City  Livestock  Exchange,  fixing  the  charges  to  be  made  by  its 
members  for  selling  cattle  on  commission,  and  forbidding  members  to 
send  out  prepaid  telegraphic  market  reports,  or  to  employ  more  than 
three  solicitors  of  business,  or  to  do  business  with  persons  violating 
the  rules  of  the  Exchange) : 

"The  selling  of  an  article  at  its  destination,  which  has  been  sent  from 
another  state',  while  it  may  be  regarded  as  an  interstate  sale,  and  one 
which  the  importer  was  entitled  to  make,  yet  the  services  of  the  indi- 
vidual employed  at  the  place  where  the  article  is  sold  are  not  so  con- 
nected with  the  subject  sold  as  to  make  them  a  portion  of  interstate 
commerce ;  and  a  combination  in  regard  to  the  amount  to  be  charged 
for  such  service  is  not,  therefore,  a  combination  in  restraint  of  that 
trade  or  commerce.     *     *     * 

"The  contract  condemned  by  the  statute  is  one  whose  direct  and  im- 
mediate effect  is  a  restraint  upon  that  kind  of  trade  or  commerce  which 
is  interstate.  *  *  *  Many  agreements  suggest  themselves  which 
relate  only  to  facilities  furnished  commerce,  or  else  touch  it  only  in  an 
indirect  way,  while  possibly  enhancing  the  cost  of  transacting  the  busi- 
ness, and  which  at  the  same  time  we  would  not  think  of  as  agree- 
ments in  restraint  of  interstate  trade  or  commerce.    They  are  agree- 

Bridge  Co.  v.  U.  S.,  204  U.  S.  364,  27  Sup.  Ct.  367,  51  h.  Ed.  523  (1007) ;  by 
itself  improving  them,  Gibson  v.  U.  S.,  166  U.  S.  269,  17  Sup.  Ct.  57S,  41  L. 
Ed.  996  (1897);  Scranton  v.  Wheeler,  179  U.  S.  141,  21  Sup.  Ct.  48,  45  L.  Ed. 
126  (1900) ;  by  itself  obstructing  them,  So.  Car.  v.  Georgia,  93  U.  S.  4,  23  L. 
Ed.  782  (1876);  or  by  legalizing  their  obstruction  even  against  state  law, 
Pennsylvania  v.  Wheeling  Bridge  Co.,  18  How.  421,  15  L.  Ed.  435  (1856);  or 
by  exercising  the  power  of  eminent  domain  for  their  benefit,  Monongahela, 
etc.,  Co.  v.  U.  S.,  148  U.  S.  312,  13  Sup.  Ct.  622,  37  L.  Ed.  463  (1S93) ;  U.  S. 
v.  ciwuidler-Dunbar  Co.,  ante,  p.  726. 

"lis  led  may  vary  and  its  banks  may  change,  but  •  »  •  the  public  right 
of  navigation  follows  the  stream  and  the  authority  of  Congress  goes  with  it." — 
Hughes,  .1..  in  Pbila.  Co.  v.  Stimson,  223  U.  S.  605,  634,  635,  32  Sup.  Ct.  340, 
56  L.  Ed.  570  (1912). 

"It  is  for  Congress  to  determine  when  It  will  exert  its  power  to  regulate  in- 
terstate commerce.  Its  mere  silence  or  inaction  when  individuals  or  corpora- 
tions, under  the  authority  of  a  state,  place  unreasonable  obstructions  in  the 
waterways  of  the  United  States,  cannot  have  the  effect  to  cast  upon  the  gov- 
ernment an  obligation  not  to  exert  its  constitutional  power  to  regulate  inter- 
state commerce  except  subject  to  the  condition  that  compensation  be  made 
or  secured  to  the  individuals  or  corporation  who  may  be  incidentally  affected 
by  the  exercise  of  such  power." — Harlan,  J.,  in  Union  Bridge  Co.  v.  U.  S.,  204 
U.  S.  364,  400,  401,  27  Sup.  Ct.  367,  51  L.  Ed.  523  (1907). 

As  to  bow  far  private  riparian  property  rights  are  subordinate  to  the  fed- 
eral control  of  navigable  waters,  see  United  States  v.  Chandler-Dunbar  Co., 
ante.  p.  720,  and  notes;   Monongahela,  etc.,  Co.  v.  United  States,  ante,  p.  955; 

'  to.  v.  Briggs,  229  U.  S.  82,  33  Sup.  Ct.  679,  57  L.  Ed.  (1913) ; 

and  United  States  v.  Bait.  &  O.  R.  Co.,  229  U.  S.  244,  33  Sup.  Ct.  850,  57  L.. 
Ed.  — r  (1913). 

1  The  substance  of  this  act  is  given  in  the  statement  of  facts  in  Northern 
.  v.  U.  S.,  post,  p.  1220. 


Ch.  18)  REGULATION    OF    COMMERCE  1217 

mcnts  which  in  their  effect  operate  in  furtherance  and  in  aid  of  com- 
merce, by  providing  for  it  facilities,  conveniences,  privileges,  or  serv- 
ices, but  which  do  not  directly  relate  to  charges  for  its  transportation, 
nor  to  any  other  form  of  interstate  commerce.  To  hold  all- such  agree- 
ments void  would,  in  our  judgment,  improperly  extend  the  act  to  mat- 
ters which  are  not  of  an  interstate  commercial  nature. 

"It  is  not  difficult  to  imagine  agreements  of  the  character  above  in- 
dicated. For  example,  cattle,  when  transported  long  distances  by  rail, 
require  rest,  food,  and  water.  To  give  them  these  accommodations,  it 
is  necessary  to  take  them  from  the  car,  and  put  them  in  pens  or  other 
places  for  their  safe  reception.  Would  an  agreement  among  the  land- 
owners along  the  line  not  to  lease  their  lands  for  less  than  a  certain 
sum  be  a  contract  within  the  statute,  as  being  in  restraint  of  interstate 
trade  or  commerce?  Would  it  be  such  a  contract,  even  if  the  lands, 
or  some  of  them,  were  necessary  for  use  in  furnishing  the  cattle  with 
suitable  accommodations?  Would  an  agreement  between  the  dealers 
in  corn  at  some  station  along  the  line  of  the  road  not  to  sell  it  below 
a  certain  price  be  covered  by  the  act,  because  the  cattle  must  have  corn 
for  food?  Or  would  an  agreement  among  the  men  not  to  perform  the 
service  of  watering  the  cattle  for  less  than  a  certain  compensation 
come  within  the  restriction  of  the  statute?  Suppose  the  railroad  com- 
pany which  transports  the  cattle  itself  furnishes  the  facilities,  and  that 
its  charges  for  transportation  are  enhanced  because  of  an  agreement 
among  the  landowners  along  the  line  not  to  lease  their  lands  to  the 
company  for  such  purposes  for  less  than  a  named  sum ;  could  it  be 
successfully  contended  that  the  agreement  of  the  landowners  among 
themselves  would  be  a  violation  of  the  act,  as  being  in  restraint  of  in- 
terstate trade  or  commerce?  Would  an  agreement  between  builders  of 
cattle  cars  not  to  build  them  under  a  certain  price  be  void  because  the 
effect  might  be  to  increase  the  price  of  transportation  of  cattle  be- 
tween the  states?  Would  an  agreement  among  dealers  in  horse  blan- 
kets not  to  sell  them  for  less  than  a  certain  price  be  open  to  the  charge 
of  a  violation  of  the  act  because  horse  blankets  are  necessary  to  put 
on  horses  to  be  sent  long  journeys  by  rail,  and  by  reason  of  the  agree- 
ment the  expense  of  sending  the  horses  from  one  state  to  another  for 
a  market  might  be  thereby  enhanced?  Would  an  agreement  among 
cattle  drivers  not  to  drive  the  cattle  after  their  arrival  at  the  railroad 
depot  at  their  place  of  destination,  to  the  cattle  yards  where  sold,  for 
an  a  minimum  sum,  come  within  the  statute?  Would  an  agree- 
ment among  themselves  by  locomotive  engineers,  firemen,  or  trainmen 
1  in  the  service  of  an  interstate  railroad  not  to  work  for  less 
than  a  certain  named  compensation  be  illegal  because  the  cost  of  trans- 
porting interstate  freight  would  be  thereby  enhanced?  Agreements 
similar  to  these  might  be  indefinitely  suggested. 

"In  our  opinion,  all  these  queries  should  be  answered  in  the  nega- 
tive. The  indirect  effect  of  the  agreements  mentioned  might  be  to  en- 
Haix  Const.L. — 77 


1218  THE  FEDERAL  GOVERNMENT  (Part:! 

hance  the  cost  of  marketing  the  cattle,  but  the  agreements  themselves 
would  not  necessarily  for  that  reason  be  in  restraint  of  interstate  trade 
nmerce.  As  their  effect  is  either  indirect,  or  else  they  relate  to 
charges  for  the  use  of  facilities  furnished,  the  agreements  instanced 
would  be  valid,  provided  the  charges  agreed  upon  were  reasonable. 
*  *  *  It  is  possible  that  exorbitant  charges  for  the  use  of  these  fa- 
cilities might  have  similar  effect  as  a  burden  on  commerce  that  a 
charge  upon  commerce  itself  might  have.  In  a  case  like  that  the  rem- 
edy would  probably  be  forthcoming.  *  *  *  But  whether  the  charg- 
es are  or  are  not  exorbitant  is  a  question  primarily  of  local  law,  at 
least  in  the  absence  of  any  superior  or  paramount  law  providing  for 
reasonable  charges.  Parkersburg  &  O.  R.  Transp.  Co.  v.  City  of  Par- 
kersburg,  107  U.  S.  691,  2  Sup.  Ct.  732,  27  L.  Ed.  584.  This  case 
does  not  involve  that  question. 

"If  charges  of  the  nature  described  do  not  amount  to  a  regulation 
of  interstate  trade  or  commerce  because  they  touch  it  only  in  an  in- 
direct and  remote  way,  or  else  because  they  are  in  the  nature  of  com- 
pensation for  the  use  of  property  or  privileges  as  a  mere  facility 
for  that  commerce,  it  would  for  a  like  reason  seem  clear  that  agree- 
ments relating  to  the  amounts  of  such  charges  among  those  who  fur- 
nish the  privileges  or  facilities  are  not  in  restraint  of  that  kind  of 
trade.     *     *     * 

[After  holding  that  a  voluntary  agreement  among  business  men  not 
to  send  prepaid  telegrams  for  certain  purposes  was  not  a  burden  upon 
interstate  commerce  by  telegraph  2 :]  "We  do  not  think  it  can  be  prop- 
erly said  that  the  agents  of  the  defendants  whom  they  send  out  to  so- 
licit the  various  owners  of  stock  to  consign  the  cattle  to  one  of  the 
defendants  for  sale  are  thereby  themselves  engaged  in  interstate  com- 
merce. "  *  *  The  position  of  the  solicitors  is  entirely  different 
from  that  of  drummers  who  are  traveling  through  the  several  states 
for  the  purpose  of  getting  orders  for  the  purchase  of  property. 
The  solicitors  for  these  defendants  have  no  property  or 
goods  for  sale,  and  their  only  duty  is  to  ask  or  induce  those  who  own 
the  property  to  agree  that  when  they  send  it  to  market  for  sale  they 
will  consign  it  to  the  solicitor's  principal,  so  that  he  may  perform  such 
services  as  may  be  necessary  to  sell  the  stock  for  them,  and  account 
to  them  for  the  proceeds  thereof.  Unlike  the  drummer,  who  contracts 
in  one  state  for  the  sale  of  goods  which  are  in  another,  and  which  are 
to  be  thereafter  delivered  in  the  state  in  which  the  contract  is  made, 
the  solicitor  in  this  case  has  no  goods  or  samples  of  goods,  and  nego- 
tiates no  sales,  and  merely  seeks  to  exact  a  promise  from  the  owner 
of  property  that  when  he  does  wish  to  sell  he  will  consign  to  and  sell 
the  property  through  the  solicitor's  principal.  There  is  no  interstate 
commerce  in  that  business.  *  *  *  The  solicitors  do  not  solicit 
transportation  of  the  cattle.     *     *     *     The  transportation  would  take 

2  See  Board  of  Trade  v.  Christie  Co.,  198  U.  S.  236.  252,  25  Sup.  Ct.  637.  49 
h.  Ed.  1031  (1905). 


Ch.  18)  REGULATION    OF    COMMERCE  1219 

place  any  way,  and  the  cattle  be  consigned  for  sale  by  some  one  of  the 
defendants,  or  by  others  engaged  in  the  business.     *     *     * 

"The  complainants  have  failed  to  show  the  defendants  guilty  of  any 
violations  of  the  act  of  Congress,  because  it  does  not  appear  that  the 
defendants  are  engaged  in  interstate  commerce,  or  that  any  agree- 
ments or  contracts  made  by  them,  and  relating  to  the  conduct  of  their 
business,  are  in  restraint  of  any  such  commerce.  Whether  they  re- 
fused to  transact  business  which  is  not  interstate  commerce,  except 
with  those  who  are  members  of  the  exchange,  and  whether  such  re- 
fusal is  justifiable  or  not,  are  questions  not  open  for  discussion  here."' 

[Harlan,  J.,  dissented.  McKenna,  J.,  took  no  part  in  the  deci- 
sion.] 

»  Accord :  Anderson  v.  U.  S.,  171  U.  S.  604,  19  Sup.  Ct.  50,  43  L.  Ed.  300 
(180S)  (agreement  among  members  of  a  livestock  exchange,  buying  for  them- 
selves at  stockyards  cattle  from  other  .status,  not  to  do  business  with  non- 
members  or  with  those  who  do  business  with  non-members — any  one  obeying 
its  rules  being  at  liberty  to  join  the  exchange  and  prices  not  being  fixed). 

"The  formation  of  corporations  for  business  or  manufacturing  purposes  has 
never,  to  our  knowledge,  been  regarded  in  the  nature  of  a  contract  in  restraint 
of  trade  or  commerce.  The  same  may  be  said  of  the  contract  of  partnership. 
It  might  also  be  difficult  to  show  that  the  appointment  by  two  or  more  pro- 
ducers of  the  same  person  to  sell  their  goods  on  commission  was  a  matter 
in  any  degree  in  restraint  of  trade.  We  are  not  aware  that  it  has  ever  been 
claimed  that  a  lease  or  purchase  by  a  farmer,  manufacturer,  or  merchant  of 
an  additional  farm,  manufactory,  or  shop,  or  the  withdrawal  from  business 
of  any  farmer,  merchant,  or  manufacturer,  restrained  commerce  or  trade, 
within  any  legal  definition  of  that  term ;  and  the  sale  of  a  good  will  of  a 
business  with  an  accompanying  agreement  not  to  engage  in  a  similar  business 
was  instanced  in  the  Trans-Missouri  Case  [100  U.  S.  at  329,  17  Sup.  Ct.  540, 
41  L.  Ed.  1007]  as  a  contract  not  within  the  meaning  of  the  act,  and  it  was 
said  that  such  a  contract  was  collateral  to  the  main  contract  of  sale,  and  was 
entered  into  for  the  purpose  of  enhancing  the  price  at  which  the  vendor  sells 
his  business."— U.  S.  v.  Joint  Traffic  Ass'n,  171  V.  S.  505,  567-568,  19  Sup.  Ct. 
25,  31,  43  L.  Ed.  259  (1S98)  by  Peckham,  J.  So  Cincinnati,  etc.,  Co.  v.  Bay.  200 
U.  S.  179,  26  Sup.  Ct.  208,  50  L.  Ed.  428  (1906).  Compare  Shawnee  Compress 
Co.  v.  Anderson,  209  U.  S.  423.  2S  Sup.  Ct  572,  52  L.  Ed.  865  (190S).  See 
0.  S.  v.  Knight  Company,  156  U.  S.  1,  15  Sup.  Ct  249,  39  L.  Ed.  325  (1S95) 
(act  not  constitutionally  applicable  to  monopolies  of  manufacturing  alone). 

As  to  how  far  the  act  applies  to  combinations  in  regard  to  patented  articles, 
see  Bement  v.  Nat.  Harrow  Co.,  186  U.  S.  70,  22  Sup.  Ct  747,  46  L.  Ed.  1058 
(1902):    Standard  Sanitary  Co.  v.  U.  S.,  226  U.  S.  20,  33  Sup.  Ct  9,  57  L.  Ed. 

(1912);  U.  S.  v.  Winslow,  227  U.  S.  202,  83  Sup.  Ct.  253,  57  L.  Ed. (1913) ; 

Virtue  v.  Creamery  Package  Co.,  227  U.  S.  8,  33  Sup.  Ct  202,  57  B.  Ed.  — 
(1913).  Compare  Henry  v.  A.  B.  Dick  Co.,  224  U.  S.  1,  32  Sup.  Ct  3G4,  56  L. 
Ed.  645  (1912);  Bauer  &  Cie  v.  O'Donnell,  229  U.  S.  1,  33  Sup.  Ct  616,  57  L. 
Ed.  —  (1913). 


1220  THE  FEDERAL  GOVERNMENT  (Part  3 

NORTHERN  SECURITIES  CO.  v.  UNITED  STATES. 

(Supreme  Court  of  United  States,  1904.     193  U.  S.  197,  24  Sup.  Ct.  436,  48  L. 
Ed.  679.) 

[Appeal  from  the  United  States  Circuit  Court  for  Minnesota.  A 
federal  statute  of  1890  (26  Stat.  209,  c.  647  [U.  S.  Comp.  St.  1901,  p. 
3200],  the  "Sherman  Anti-Trust  Act")  declared  criminally  illegal  (§  1) 
"every  contract,  combination  in  the  form  of  trust  or  otherwise,  or 
conspiracy,  in  restraint  of  trade  or  commerce  among  the  several  states 
or  with  foreign  nations";  punished  (§  2)  "every  person  who  shall 
monopolize,  or  attempt  to  monopolize,  or  combine  or  conspire 
*  *  *  to  monopolize"  any  part  of  said  trade  or  commerce;  and 
(§  4)  authorized  governmental  proceedings  in  equity  to  restrain  viola- 
tions of  the  act.  The  Northern  Pacific  and  Great  Northern  Railroad 
Companies,  owning  parallel  and  competing  systems  about  9,000  miles 
in  length  between  the  Great  Lakes  and  Puget  Sound,  in  1901  pur- 
chased most  of  the  stock  of  the  Burlington  Railroad,  a  connecting  sys- 
tem 8,000  miles  long,  giving  their  bonds  therefor;  and  James  J.  Hill, 
with  associate  stockholders  of  the  Great  Northern  road,  and  J.  P.  Mor- 
gan, with  associate  stockholders  of  the  Northern  Pacific,  entered  into  a 
combination  to  form  a  New  Jersey  corporation  to  hold  the  stock  of 
their  two  railroads,  shares  in  the  holding  corporation  to  be  exchanged 
at  an  agreed  valuation  for  shares  in  the  railroads.  Pursuant  thereto, 
the  Northern  Securities  Company  was  formed  and  became  the  holder 
of  over  three-fourths  of  the  stock  of  each  of  the  two  railroads.  The 
United  States  filed  a  bill  in  equity  under  the  above  Anti-Trust  law 
against  the  three  corporations  and  the  principal  individuals  concerned 
in  this  transaction,  and  obtained  a  decree  forbidding  the  Securities 
Company  from  voting  or  receiving  dividends  upon  any  stock  of  the 
railroad  companies,  or  of  exercising  any  control  over  their  acts,  but 
permitting  a  retransfer  of  the  railroad  stocks  to  holders  of  Securities 
Company  stock  issued  therefor.] 

Mr.  Justice  Harlan.  *  *  *  [After  summarizing  the  facts  as 
above :]  Necessarily  the  constituent  companies  ceased,  under  such  a 
combination,  to  be  in  active  competition  for  trade  and  commerce  along 
their  respective  lines,  and  have  become,  practically,  one  powerful  con- 
solidated corporation,  by  the  name  of  a  holding  corporation,  the  prin- 
cipal, if  not  the  sole,  object  for  the  formation  of  which  was  to  carry 
out  the  purpose  of  the  original  combination,  under  which  competition 
between  the  constituent  companies  would  cease.  *  *  *  No 
scheme  or  device  could  more  certainly  come  within  the  words  of  the 
act, — "combination  in  the  form  of  a  trust  or  otherwise  *  *  *  in 
restraint  of  commerce  among  the  several  states  or  with  foreign  na- 
tions,"— or  could  more  effectively  and  certainly  suppress  free  compe- 
tition between  the  constituent  companies.  This  combination  is,  within 
the  meaning  of  the  act  a  "trust;"   but  if  not,  it  is  a  combination  in  re- 


Cll.  18)  REGULATION    OF    COMMERCE)  1221 

straint  of  interstate  and  international  commerce;  and  that  is  enough  to 
bring  it  under  the  condemnation  of  the  act.  The  mere  existence  of 
such  a  combination,  and  the  power  acquired  by  the  holding  company  as 
its  trustee,  constitute  a  menace  to,  and  a  restraint  upon,  that  freedom 
of  commerce  which  Congress  intended  to  recognize  and  protect,  and 
which  the  public  is  entitled  to  have  protected.     *     *     * 

How  far  may  Congress  go  in  regulating  the  affairs  or  conduct  of 
state  corporations  engaged  as  carriers  in  commerce  among  the  states 
or  of  state  corporations  which,  although  not  directly  engaged  them- 
selves in  such  commerce,  yet  have  control  of  the  business  of  inter- 
state carriers?  If  state  corporations,  or  their  stockholders,  are  found 
to  be  parties  to  a  combination  in  the  form  of  a  trust  or  otherwise, 
which  restrains  interstate  or  international  commerce,  may  they  not 
be  compelled  to  respect  any  rule  for  such  commerce  that  may  be 
lawfully  prescribed  by  Congress?    *    *     * 

[After  summarizing  the  results  of  previous  decisions  under  the 
Anti-Trust  Act :]  In  this  connection,  it  is  suggested  that  the  contention 
of  the  government  is  that  the  acquisition  and  ownership  of  stock  in  a 
state  railroad  corporation  is  itself  interstate  commerce  if  that  cor- 
poration be  engaged  in  interstate  commerce.  *  *  *  We  do  not 
understand  that  the  government  makes  any  such  contentions  or  takes 
any  such  positions  as  those  statements  imply.  It  does  not  contend 
that  Congress  may  control  the  mere  acquisition  or  the  mere  ownership 
of  stock  in  a  state  corporation  engaged  in  interstate  commerce.  Nor 
does  it  contend  that  Congress  can  control  the  organization  of  state  cor- 
porations authorized  by  their  charters  to  engage  in  interstate  and  inter- 
national commerce.  But  it  does  contend  that  Congress  may  protect  the 
freedom  of  interstate  commerce  by  any  means  that  are  appropriate 
and  that  are  lawful,  and  not  prohibited  by  the  Constitution.  It  does 
contend  that  no  state  corporation  can  stand  in  the  way  of  the  enforce- 
ment of  the  national  will,  legally  expressed.  What  the  government 
particularly  complains  of — indeed,  all  that  it  complains  of  here — is  the 
existence  of  a  combination  among  the  stockholders  of  competing 
railroad  companies  which,  in  violation  of  the  act  of  Congress,  restrains 
interstate  and  international  commerce  through  the  agency  of  a  common 
corporate  trustee,  designated  to  act  for  both  companies  in  repressing 
free  competition  between  them.  Independently  of  any  question  of  the 
mere  ownership  of  stock  or  of  the  organization  of  a  state  corporation, 
can  it  in  reason  be  said  that  such  a  combination  is  not  embraced  by 
the  very  terms  of  the  Anti-Trust  Act?  May  not  Congress  declare  that 
combination  to  be  illegal?     *     *     * 

Even  if  the  state  allowed  consolidation,  it  would  not  follow  that 
the  stockholders  of  two  or  more  state  railroad  corporations,  having 
competing  lines  and  engaged  in  interstate  commerce,  could  lawfully 
combine  and  form  a  distinct  corporation  to  hold  the  stock  of  the  con- 
stituent corporations,  and,  by  destroying  competition  between  them,  in 


1222  THE   FEDERAL  GOVERNMENT  (Part  3 

violation  of  the  act  of  Congress,  restrain  commerce  among  the  states 
and  with  foreign  nations.     *     *     * 

When  Congress  declared  contracts,  combinations,  and  conspiracies 
in  restraint  of  trade  or  commerce  to  be  illegal,  it  did  nothing  more 
than  apply  to  interstate  commerce  a  rule  that  had  been  long  applied 
by  the  several  states  when  dealing  with  combinations  that  were  in 
restraint  of  their  domestic  commerce.  The  decisions  in  state  courts 
upon  this  general  subject  are  not  only  numerous  and  instructive, 
but  they  show  the  circumstances  under  which  the  Anti-Trust  Act  was 
passed.     *     *     * 

[After  citing  various  state  decisions  upholding  local  anti-trust  stat- 
utes:] The  cases  just  cited,  it  is  true,  relate  to  the  domestic  commerce 
of  the  states.  But  they  serve  to  show  the  authority  which  the  states 
possess  to  guard  the  public  against  combinations  that  repress  indi- 
vidual enterprise  and  interfere  with  the  operation  of  the  natural  laws 
of  competition  among  those  engaged  in  trade  within  its  limits.  They 
serve  also  to  give  point  to  the  declaration  of  this  court  in  Gibbons  v. 
Ogden,  9  Wheat.  197,  6  L.  Ed.  70, — a  principle  never  modified  by  any 
subsequent  decision, — that,  subject  to  the  limitations  imposed  by  the 
Constitution  upon  the  exercise  of  the  powers  granted  by  that  instru- 
ment, "the  power  over  commerce  with  foreign  nations  and  among  the 
several  states  is  vested  in  Congress  as  absolutely  as  it  would  be  in  a 
single  government  having  in  its  constitution  the  same  restrictions 
on  the  exercise  of  the  power  as  are  found  in  the  Constitution  of  the 
United  States."  Is  there,  then  any  escape  from  the  conclusion  that, 
subject  only  to  such  restrictions,  the  power  of  Congress  over  interstate 
and  international  commerce  is  as  full  and  complete  as  is  the  power 
of  any  state  over  its  domestic  commerce?  If  a  state  may  strike  down 
combinations  that  restrain  its  domestic  commerce  by  destroying  free 
competition  among  those  engaged  in  such  commerce,  what  power, 
except  that  of  Congress,  is  competent  to  protect  the  freedom  of  inter- 
state and  international  commerce  when  assailed  by  a  combination  that 
restrains  such  commerce  by  stifling  competition  among  those  engaged 
in  it?     *     *     * 

Will  it  be  said  that  Congress  can  meet  such  emergencies  by  pre- 
scribing the  rates  by  which  interstate  carriers  shall  be  governed  in  the 
transportation  of  freight  and  passengers?  If  Congress  has  the  power 
to  fix  such  rates — and  upon  that  question  we  express  no  opinion — it 
does  not  choose  to  exercise  its  power  in  that  way  or  to  that  extent. 
It  has,  all  will  agree,  a  large  discretion  as  to  the  means  to  be  employed 
in  the  exercise  of  any  power  granted  to  it.  For  the  present,  it  has 
determined  to  go  no  farther  than  to  protect  the  freedom  of  commerce 
among  the  states  and  with  foreign  states  by  declaring  illegal  all  con- 
tracts, combinations,  conspiracies,  or  monopolies  in  restraint  of  such 
commerce,  and  make  it  a  public  offense  to  violate  the  rule  thus  pre- 
scribed.   How  much  further  it  may  go,  we  do  not  now  say.     *     *     * 

The  suggestion  is  made  that  to  restrain  a   state  corporation   from 


Ch.  18)  REGULATION    OF   COMMENCE  l-"-:; 

interfering  with  the  free  course  of  trade  and  commerce  among  the 
states,  in  violation  of  an  act  of  Congress,  is  hostile  to  the  reserved 
rights  of  the  states.  The  federal  court  may  not  have  power  to  for- 
feit the  charter  of  the  Securities  Company;  it  may  not  declare  how- 
its  shares  of  stock  may  be  transferred  on  its  books,  nor  prohibit  it 
from  acquiring  real  estate,  nor  diminish  or  increase  its  capital  stock. 
All  these  and  like  matters  are  to  be  regulated  by  the  state  which 
created  the  company.  But  to  the  end  that  effect  be  given  to  the  na- 
tional will,  lawfully  expressed,  Congress  may  prevent  that  company, 
in  its  capacity  as  a  holding  corporation  and  trustee,  from  carrying  out 
the  purposes  of  a  combination  formed  in  restraint  of  interstate  com- 
merce. *  *  *  Upon  like  grounds  the  court  can,  by  appropriate  or- 
ders, prevent  the  two  competing  railroad  companies  here  involved 
from  co-operating  with  the  Securities  Company  in  restraining  com- 
merce among  the  states.  In  short,  the  court  may  make  any  order  nec- 
essary to  bring  about  the  dissolution  or  suppression  of  an  illegal  com- 
bination that  restrains  interstate  commerce.    *    *    * 

So  far  as  the  Constitution  of  the  United  States  is  concerned,  a 
state  may,  indeed,  create  a  corporation,  define  its  powers,  prescribe 
the  amount  of  its  stock  and  the  mode  in  which  it  may  be  transferred. 
It  may  even  authorize  one  of  its  corporations  to  engage  in  commerce 
of  every  kind, — domestic,  interstate,  and  international.  *  *  *  But> 
neither  a  state  corporation  nor  its  stockholders  can,  by  reason  of 
the  nonaction  of  the  slate  or  by  means  of  any  combination  among 
such  stockholders,  interfere  with  the  complete  enforcement  of  any 
rule  lawfully  devised  by  Congress  for  the  conduct  of  commerce  among 
the  states  or  with  foreign  nations.  *  *  *  Whilst  every  instrumen- 
tality of  domestic  commerce  is  subject  to  state  control,  every  instru- 
mentality of  interstate  commerce  may  be  reached  and  controlled  by 
national  authority,  so  far  as  to  compel  it  to  respect  the  rules  for  such 
commerce  lawfully  established  by  Congress.    *     *     * 

Decree  affirmed.1 

Mr.  Justice  Brewer,  concurring.  *  *  *  [After  stating  that  Con- 
gress could  not  deprive  an  individual  of  the  right  to  purchase  stock 
control  of  competing  interstate  railroads:]  But  no  such  investment 
by  a  single  individual  of  his  means  is  here  presented.  There  was  a 
combination  by  several  individuals,  separately  owning  stock  in  two 
competing  railroad  companies,  to  place  the  control  of  both  in  a  single 

i  In  an  omitted  portion  of  his  opinion  (193  U.  S.  at  354),  Harlan,  J.,  stated 
that  the  Northern  Securities  Company  was  not  a  real  purchaser  or  owner  of 
the  stock,  but  merely  a  custodian  to  represent  the  combination  of  stockholders. 
In  Harrlman  v.  No.  Seeur.  Co.,  10T  U.  S.  244,  291,  25  Sup.  Ct  493,  503,  49  I.  Ed. 
739  (1905),  the  Securities  Company  was  held  to  be  an  absolute  owner;  (Toller, 
C.  J.,  saying,  referring  to  the  principal  case:  "For  the  purposes  of  that  suit 
It  was  enough  that  in  any  capacity  the  Securities  Company  had  the  powei 
to  vote  the  railway  shares  and  to  receive  the  dividends  i  hereon.  The  objection 
was  that  the  exercise  of  its  powers,  whether  those  of  owner  or  of  trustee, 
would  tend  to  prevent  competition,  and   thus  to  restrain  commerce." 


1  224  THE  FEDERAL   GOVERNMENT  (Part  3 

corporation.     The  purpose  to  combine,  and  by  combination  destroy 
,i i,.n,  existed  before  the  organization  of   the  corporation,   the 
Securities  Company.     *     *     * 

If  the  parties  interested  in  these  two  railroad  companies  can,  through 
the  instrumentality  of  a  holding  corporation,  place  both  under  one  con- 
trol, then  in  like  manner,  as  was  conceded  on  the  argument  by  one  of 
the  counsel  for  the  appellants,  could  the  control  of  all  the  railroad 
companies  in  the  country  be  placed  in  a  single  corporation.  Nor  need 
this  arrangement  for  control  stop  with  what  has  already  been  done. 
The  holders  of  $201,000,000  of  stock  in  the  Northern  Securities  Com- 
pany might  organize  another  corporation  to  hold  their  stock  in  that 
company,  and  the  new  corporation,  holding  the  majority  of  the  stock 
in  the  Northern  Securities  Company,  and  acting  in  obedience  to  the 
wishes  of  a  majority  of  its  stockholders,  would  control  the  action  of 
the  Securities  Company  and  through  it  the  action  of  the  two  railroad 
companies ;  and  this  process  might  be  extended  until  a  single  corpora- 
tion whose  stock  was  owned  by  three  or  four  parties  would  be  in  prac- 
tical control  of  both  roads;  or,  having  before  us  the  possibilities  of 
combination,  the  control  of  the  whole  transportation  system  of  the 
country.  I  cannot  believe  that  to  be  a  reasonable  or  lawful  restraint  of 
trade.    *    *    * 

Mr.  Justice  White  [with  whom  concurred  Fuller,  C.  J.,  and 
Peckham  and  Holmes,  JJ.]  dissenting.  *  *  *  [Quoting  from 
Gibbons  v.  Ogden,  ante,  p.  1053:]  "Commerce  undoubtedly  is  traffic, 
but  it  is  something  more, — it  is  intercourse.  It  describes  the  commer- 
cial intercourse  between  nations  and  parts  of  nations  in  all  its  branches, 
and  is  regulated  by  prescribing  rules  for  carrying  on  that  intercourse." 
(Italics  mine.) 

I  think  the  ownership  of  stock  in  a  state  corporation  cannot  be  said 
to  be  in  any  sense  traffic  between  the  states  or  intercourse  between 
them.  *  *  *  can  the  ownership  of  stock  in  a  state  corporation,  by 
the  most  latitudinarian  construction,  be  embraced  by  the  words  "com- 
mercial intercourse  between  nations  and  parts  of  nations?"  *  *  * 
Can  it  in  reason  be  maintained  that  to  prescribe  rules  governing  the 
ownership  of  stock  within  a  state,  in  a  corporation  created  by  it,  is 
within  the  power  to  prescribe  rules  for  the  regulation  of  intercourse 
between  citizens  of  different  states  ?    *     *     * 

If  the  control  of  the  ownership  of  stock  in  competing  roads  by  one 
and  the  same  corporation  is  within  the  power  of  Congress,  and  creates 
a  restraint  of  trade  or  monopoly  forbidden  by  Congress,  it  is  not  con- 
ceivable to  me  how  exactly  similar  ownership  by  one  or  more  indi- 
viduals would  not  create  the  same  restraint  or  monopoly,  and -be 
equally  within  the  prohibition  which  it  is  decided  Congress  has  im- 
posed.   *    *    * 

Under  this  doctrine  the  sum  of  property  to  be  acquired  by  indi- 
viduals or  by  corporations,  the  contracts  which  they  may  make,  would 


Ch.  18)  REGULATION    OF    COMMERCE  1225 

be  within  the  regulating  power  of  Congress.  If  it  were  judged  by 
Congress  that  the  farmer  in  sowing  his  crops  should  be  limited  to  a 
certain  production  because  overproduction  would  give  power  to  affect 
commerce,  Congress  could  regulate  that  subject.  If  the  acquisition  of 
a  large  amount  of  property  by  an  individual  was  deemed  by  Congress 
to  confer  upon  him  the  power  to  affect  interstate  commerce  if  he  en- 
gaged in  it,  Congress  could  regulate  that  subject.  If  the  wage-earner 
organized  to  better  his  condition  and  Congress  believed  that  the  ex- 
istence of  such  organization  would  give  power,  if  it  were  exerted,  to 
affect  interstate  commerce,  Congress  could  forbid  the  organization  of 
all  labor  associations.  Indeed,  the  doctrine  must  in  reason  lead  to  a 
concession  of  the  right  in  Congress  to  regulate  concerning  the  aptitude, 
the  character,  and  capacity  of  persons.  If  individuals  were  deemed  by 
Congress  to  be  possessed  of  such  ability  that  participation  in  the 
management  of  two  great  competing  railroad  enterprises  would  endow 
them  with  the  power  to  injuriously  affect  interstate  commerce,  Con- 
gress could  forbid  such  participation.     *     *     * 

The  general  governmental  [power]  to  reasonably  control  the  use  of 
property,  affords  no  foundation  for  the  proposition  that  there  exists 
in  government  a  power  to  limit  the  quantity  and  character  of  property 
which  may  be  acquired  and  owned.  The  difference  between  the  two 
is  that  which  exists  between  a  free  and  constitutional  government, 
restrained  by  law,  and  an  absolute  government,  unrestrained  by  any  of 
the  principles  which  are  necessary  for  the  perpetuation  of  society,  and 
the  protection  of  life,  liberty,  and  property.     *     *     * 

[Holmes,  J.,  also  gave  an  opinion,  in  which  concurred  the  other 
dissenting  justices.]2 

2  Accord  with  majority  opinion  (corporate  ownership  of  stock  in  other  cor- 
08,  stifling  the  interstate  competition  of  the  latter):  Standard  Oil  Co. 
v.  U.  S.,  221  U.  S..  1,  31  Sup.  Ct.  502,  55  L.  Ed.  619,  34  L.  R.  A.  (N.  S.)  834, 
Ann.  Cas.  1912D,  734  (1911)  (interstate  trade):  U.  S.  v.  Am.  Tobacco  Co., 
221  U.  S.  10G.  31  Sup.  Ct  632,  55  L.  Ed.  663  (1911)  (same):  rj.  S.  v.  Terminal 
Ry..  224  U.  S.  3S3,  32  Sup.  Ct  507,  56  L.  Ed.  810  (1912)  (interstate  railroad 
terminals);    U.  S.  v.  Union  Pac.  Ry.,  226  U.  S.  61,  33  Sup.  Ct.  53,  57  I..  Ed. 

(1912)   (railway  corporation  owning  46  per  cent,  of  stock  of  railway  par- 

Uallj  competing  with  It)  [see  also  s.  c.  226  U.  S.  470,  33  Sup.  Ct.  162,  57  L. 
Ed.  ]. 

In  Swift  &  Co.  v.  U.  S..  196  U.  S.  375,  394,  396,  398-400,  25  Sup.  Ct.  276.  278, 
279,  2S0,  49  L.  Ed.  518  (1905),  the  act  was  held  to  be  violated  by  a  combination 
of  persons  engaged  in  buying  live  stock  at  the  principal  stockyards,  convert- 
blg  tin'  cattle  into  fresh  meat  at  their  plants  there,  and  Shipping  the 
other  states  for  sale,  controlling  about  «/io  of  this  commerce,  Holmes,  J.,  said  : 

"The  bill  *  *  *  charges  a  combination  of  a  dominant  proportion  of  the 
dealers  in  fresh  meat  throughout  tlio  United  States  not  to  bid  agaii 
other  in  the  live-stock  markets  of  the  different  states,  to  bid  up  prices  for 
a  tew  days  in  order  to  induce  the  cattle  men  to  semi  their  stock  to  the  stock- 
yards, to  fix  prices  at  which  they  will  sell,  and  to  that  end  to  restrict  ship- 
ni, 'His  of  meat  when  necessary,  to  establish  a  uniform  rule  of  credit  to  deal- 
ers, and  to  keep  a  black  list,  to  make  uniform  and  improper  charges  for  Cart- 
age, and  finally  to  get  less  than  lawful  rates  from  the  railroads,  to  the  ex- 
eiiisinii  of  competitors.    *    *    • 

"The  scheme  as  a  whole  seems  to  us  to  be  within  reach  of  the  law.  »  •  * 
It  is  suggested  that  the  several  acts  charged  are  lawful,  and  that  intent  can 


lL'L'G  Tin:  FEDERAL  GOVERNMENT  (Part  3 

make  no  difference.  But  they  are  bound  together  as  the  parts  of  a  single 
plan.  The  plan  may  make  the  parts  unlawful.  Aikens  v.  Wisconsin,  195  U.  S. 
int.  206,  25  Sup.  Ct  3,  49  L.  Ed.  154  (1901).     •     *     * 

in  it,-  among  the  states  is  not  a  technical  legal  conception,  but  a  prac- 
tical >ini\  drawn  from  the  course  of  business.  When  cattle  are  sent  for  sale 
in  one  state,  with  the  expectation  that  they  will  end  their  trans- 
it, after  purchase,  in  another,  and  when  in  effect  they  do  so,  with  only  the 
i : 'linn  necessary  to  Cud  a  purchaser  at  the  stockyards,  and  when  this 
is  a  typical,  constantly  recurring  course,  the  current  thus  existing  is  a  cur- 
ii  ii  iif  commerce  among  the  states,  and  the  purchase  of  the  cattle  is  a  part 
and  incident  of  such  commerce.  What  we  say  is  true  at  least  of  such  a  pur- 
chase by  residents  in  another  state  from  that  of  the  seller  and  of  the  cattle. 
And  we  need  not  trouble  ourselves  at  this  time  as  to  whether  the  statute  could 
lie  escaped  by  any  arrangement  as  to  the  place  where  the  sale  in  point  of  law 
is  consummated.     *     *     * 

"It  should  be  added  that  the  cattle  in  the  stockyard  are  not  at  rest  even  to 
the  extent  that  was  held  sufficient  to  warrant  taxation  in  American  Steel  & 
Wire  Co.  r.  Speed,  192  U.  S.  500,  4S  L.  Ed.  53S,  24  Sup.  Ct.  365  (1904).  But 
it  may  be  that  the  question  of  taxation  does  not  depend  upon  whether  the 
article  taxed  may  or  may  not  be  said  to  be  in  the  course  of  commerce  between 
the  states,  but  depends  upon  whether  the  tax  so  far  affects  that  commerce  as 
to  amount  to  a  regulation  of  it.  *  *  *  But  we  do  not  mean  to  imply  that 
the  rule  which  marks  the  point  at  which  state  taxation  or  regulation  becomes 
permissible  necessarily  is  beyond  the  scope  of  interference  by  Congress  in 
cases  where  such  interference  is  deemed  necessary  for  the  protection  of  com- 
merce among  the  states."  *  *  «  [All  of  the  specific  acts  and  devices  al- 
leged  in  the  bill  were  enjoined,  so  far  as  connected  with  interstate  commerce.] 

Accord  (series  of  contracts  and  intrastate  sales  designed  to  affect  interstate 

commerce):     U.  S.  v.  Beading  Co.,  226  U.  S.  324,  33  Sup.  Ct.  90,  57  L,  Ed.  

(1912). 

As  to  how  general  an  injunction  against  such  acts  may  properly  be,  see  the 
Swift  Case,  above,  at  pp.  396,  401,  and  N.  Y.,  etc.,  Ry.  v.  Interst.  Com.  Com- 
mis.,  200  U.  S.  361,  404,  26  Sup.  Ct.  272,  50  L.  Ed.  515  (1906). 

A  company  having  a  factory  in  one  state,  from  which  it  ships  goods  to  its 
nun  warehouses  in  other  states  and  there  makes  local  sales,  is  engaged  in  iu- 
terstate  commerce  within  the  act.    Standard  Sanitary  Co.  v.  U.  S.,  226  U.  S. 

20,  50,  51,  33  Sup.  Ct.  9,  57  L.  Ed.  (1912)  (combination  of  enameled  ware 

manufacturers,  licensed  to  use  a  patent  process  subject  to  conditions  fixing 
prices  and  restricting  output). 

Cases  Interpreting  Federal  Anti-Trust  Act. — Other  combinations  held 
illegal  under  the  statute  have  been:  Railroad  rate  agreements:  U.  S.  v. 
Trans-Missouri  Frt.  Ass'n,  166  U.  S.  290,  17  Sup.  Ct.  540,  41  L.  Ed.  1007  (1897) 
i even  though  rates  fixed  are  reasonable) ;  U.  S.  v.  Joint  Traffic  Ass'n,  171  U.  S. 
505,  19  Sup.  Ct.  25,  43  L.  Ed.  259  (1S9S)  (same) ;  connecting  carrier  agree- 
ments: IT.  S.  v.  Pacific  &  Arctic  By.  &  Nav.  Co.,  228  U.  S.  87,  33  Sup.  Ct.  443, 

57  L.  Ed.  (1913)   (object  being  to  monopolize  traffic  by  refusing  through 

connections  to  independent  carriers);  trading  agreements:  Addyston  Pipe  Co. 
v.  U.  S.,  175  U.  S.  211,  20  Sup.  Ct.  96,  44  L.  Ed.  136  (1S09)  (restriction  of  com- 
petitive bidding  to  supply  iron  pipe) ;  Montague  &  Co.  v.  Lowry,  193  TJ.  S.  38, 
24  Sup.  Ct.  307,  48  L.  Ed.  608  (1904)  (agreement  of  certain  manufacturers  and 
dealers  in  tile  and  mantel  business  to  deal  only  with  each  other);  Continental 
Wall  Paper  Co.  v.  Lewis  Voight  Co.,  212  U.  S.  227,  29  Sup.  Ct.  280,  53  L.  Ed. 
186  (1909)  (selling  agency  of  manufacturer's  combination  exacting  exclusive 
price-fixing  agreement  from  jobbers) ;  Dr.  Miles  Medical  Co.  v.  John  D.  Park 
Co.,  220  U.  S.  373,  31  Sup.  Ct.  376,  55  L.  Ed.  502  (1911)  (proprietary  medicine 
manufacturer  fixing  price  of  sales  by  dealers) ;  trades  union  boycott  against 
dealers  handling  plaintiff's  hats:  Loewe  v.  Lawlor,  208  U.  S.  274,  2S  Sup. 
Ct.  301,  52  L.  Ed.  4S8,  13  Ann.  Cas.  815  (190S);    speculative  corner:    U.  S.   v. 

Patten,  226  U.  S.  525,  33  Sup.  Ct.  141,  57  L.  Ed.  (1913)  (combination  of 

speculators  to  "corner"  the  raw  cotton  supply  of  the  United  States  and  heuce 
artificially  to  raise  prices  to  be  paid  for  cotton  in  interstate  trade). 

The  act  does  not  forbid  a  combination  of  businesses  which  do  not  naturally 
compete  with  each  other  but  which  contribute  to  a  common  result,  U.  S.  v. 

Winslow,  227  U.  S.  202,  33  Sup.  Ct.  253,  57  L.  Ed. (1913)  (combination  of 

owners  of  three  groups  of  shoe  machinery,  each  group  doing  different  part  of 


Ch.  18)  REGULATION    OF    COMMERCE  1227 

UNITED  STATES  v.  AMERICAN  TOBACCO  CO.  (1911)  221 
U.  S.  106,  175-177,  179-184,  31  Sup.  Ct.  632,  646,  647,  648-650,  55 
L.  Ed.  663,  Mr.  Chief  Justice  White  (upholding  a  decree  for  the 
dissolution  of  a  combination  controlling  the  tobacco  business  in  viola- 
tion of  the  federal  Anti-Trust  law) : 

"If  the  Anti-Trust  law  is  applicable  to  the  entire  situation  here 
presented,  and  is  adequate  to  afford  complete  relief  for  the  evils 
which  the  United  States  insists  that  situation  presents,  it  can  only  be 
because  that  law  will  be  given  a  more  comprehensive  application  than 
has  been  affixed  to  it  in  any  previous  decision.  This  will  be  the  case 
because  the  undisputed  facts  as  we  have  stated  them  involve  questions 
as  to  the  operation  of  the  Anti-Trust  law  not  hitherto  presented  in  any 
case.  Thus,  even  if  the  ownership  of  stock  by  the  American  Tobacco 
Company  in  the  accessory  and  subsidiary  companies,  and  the  ownership 
of  stock  in  any  of  those  companies  among  themselves,  were  held,  as 
was  decided  in  the  Standard  Oil  Company  Case,  to  be  a  violation  of 
the  act,  and  all  relations  resulting  from  such  stock  ownership  were 
therefore  set  aside,  the  question  would  yet  remain  whether  the  princi- 
pal defendant,  the  American  Tobacco  Company,  and  the  five  accessory 
defendants,  even  when  devested  of  their  stock  ownership  in  other 
corporations,  by  virtue  of  the  power  which  they  would  continue  to 
possess,  even  although  thus  stripped,  would  amount  to  a  violation  of 
both  the  1st  and  2d  sections1  of  the  act.  Again,  if  it  were  held  that 
the  corporation,  the  existence  whereof  was  due  to  a  combination  be- 
tween such  companies  and  other  companies,  was  a  violation  of  the 
act,  the  question  would  remain  whether  such  of  the  companies  as 
did  not  owe  their  existence  and  power  to  combinations,  but  whose 
power  alone  arose  from  the  exercise  of  the  right  to  acquire  and  own 
property,  would  be  amenable  to  the  prohibitions  of  the  act.  Yet  fur- 
ther: Even  if  this  proposition  was  held  in  the  affirmative,  the  question 
would  remain  whether  the  principal  defendant,  the  American  Tobacco 
Company,  when  stripped  of  its  stock  ownership,  would  be,  in  and  of 
itself  within  the  prohibitions  of  the  act,  although  that  company  was 
organized  and  took  being  before  the  Anti-Trust  Act  was  passed.  Still 
further,  the  question  would  yet  remain  whether  particular  corporations 
which,  when  bereft  of  the  power  which  they  possessed  as  resulting 
from  stock  ownership,  although  they  were  not  inherently  possessed 

work  of  shoe  manufacturing) ;  aud  of  course  the  acts  of  separate  persons,  not 
acting  coneertedly,  do  not  constitute  a  "combination,"  even  though  the  united 
result  he  injurious  to  a  plaintiff's  Interstate  business,  Virtue  v.  Creanierv 
Package  Co.,  227  0.  S.  8,  33  Sup.  Ct.  202,  r,7  L.  Ed.  — . 

\i  i  kalian  Anti-Trvst  Act. — For  the  Interpretation  of  thp  Australian  act 
(modeled  upon  the  United  States  act,  with  the  addition  of  the  Significant 
qualification  that  the  forbidden  combination  or  monopoly  must  be  "to  the  det- 
riment of  the  public"),  see  the  elaborate  and  important  ease  of  King  v.  Asm. 
eiated  Northern  Collieries,   11   Com.   L.  Rep.  387  (1911). 

i  For  the  substance  of  these  sections,  see  Northern  Securities  Co.  v.  U.  S  . 
ante,  p.  1220. 


1228  THE   FEDEKAL  GOVERNMENT  (Part  3 

of  a  sufficient  residuum  of  power  to  cause  them  to  be,  in  and  of  them- 
selves, either  a  restraint  of  trade  or  a  monopolization  or  an  attempt 
to  monopolize,  should  nevertheless  be  restrained  because  of  their  inti- 
-  onnection  and  association  with  other  corporations  found  to  be 
within  the  prohibitions  of  the  act.     *     *     * 

"Construing  the  act  by  the  rule  of  the  letter  which  kills  would  nec- 
essarily operate  to  take  out  of  the  reach  of  the  act  some  of  the  acces- 
sory and  many  subsidiary  corporations,  the  existence  of  which  de- 
pends not  at  all  upon  combination  or  agreement  or  contract,  but  upon 
mere  purchases  of  property. 

"Applying  the  rule  of  reason  to  the  construction  of  the  statute,  it 
was  held  in  the  Standard  Oil  Case  [221  U.  S.  1,  31  Sup.  Ct.  502,  55 
L.  Ed.  619,  34  L.  R.  A.  (N.  S.)  834,  Ann.  Cas.  1912D,  734]  that,  as  the 
words  'restraint  of  trade'  at  common  law  and  in  the  law  of  this  country 
at  the  time  of  the  adoption  of  the  Anti-Trust  Act  only  embraced  acts 
or  contracts  or  agreements  or  combinations  which  operated  to  the  prej- 
udice of  the  public  interests  by  unduly  restricting  competition,  or  un- 
duly obstructing  the  due  course  of  trade,  or  which,  either  because  of 
their  inherent  nature  or  effect,  or  because  of  the  evident  purpose  of  the 
acts,  etc.,  injuriously  restrained  trade,  that  the  words  as  used  in  the 
statute  were  designed  to  have  and  did  have  but  a  like  significance.  It 
was  therefore  pointed  out  that  the  statute  did  not  forbid  or  restrain 
the  power  to  make  normal  and  usual  contracts  to  further  trade  by 
resorting  to  all  normal  methods,  whether  by  agreement  or  otherwise, 
to  accomplish  such  purpose.  In  other  words,  it  was  held  not  that  acts 
which  the  statute  prohibited  could  be  removed  from  the  control  of 
its  prohibitions  by  a  finding  that  they  were  reasonable,  but  that  the 
duty  to  interpret,  which  inevitably  arose  from  the  general  character 
of  the  term  'restraint  of  trade,'  required  that  the  words  'restraint  of 
trade'  should  be  given  a  meaning  which  would  not  destroy  the  indi- 
vidual right  to  contract,  and  render  difficult,  if  not  impossible,  any 
movement  of  trade  in  the  channels  of  interstate  commerce, — the  free 
movement  of  which  it  was  the  purpose  of  the  statute  to  protect. 
*  *  *  As  a  result  of  the  reasonable  construction  which  was  affixed 
to  the  statute,  it  was  pointed  out  that  the  generic  designation  of  the 
1st  and  2d  sections  of  the  law,  when  taken  together,  embraced  every 
conceivable  act  which  could  possibly  come  within  the  spirit  or  purpose 
of  the  prohibitions  of  the  law,  without  regard  to  the  garb  in  which 
such  acts  were  clothed.  That  is  to  say,  it  was  held  that,  in  view  of  the 
general  language  of  the  statute  and  the  public  policy  which  it  mani- 
fested, there  was  no  possibility  of  frustrating  that  policy  by  resorting 
to  any  disguise  or  subterfuge  of  form,  since  resort  to  reason  rendered  it 
impossible  to  escape,  by  any  indirection,  the  prohibitions  of  the  statute. 

"Considering,  then,  the  undisputed  facts  which  we  have  previously 
stated,  it  remains  only  to  determine  whether  they  establish  that  the 
acts>:  contracts,  agreements,  combinations,  etc.,   which  were  assailed. 


Ch.  18)  REGULATION    OF    COMMERCE  1229 

were  of  such  an  unusual  and  wrongful  character  as  to  bring  them 
within  the  prohibitions  of  the  law.     *     *     * 

"We  think  the  conclusion  of  wrongful  purpose  and  illegal  combina- 
tion is  overwhelmingly  established  by  the  following  considerations : 
(a)  By  the  fact  that  the  very  first  organization  or  combination  was 
impelled  by  a  previously  existing  fierce  trade  war,  evidently  inspired 
by  one  or  more  of  the  minds  which  brought  about  and  became  parties 
to  that  combination,  (b)  Because,  immediately  after  that  combination 
and  the  increase  of  capital  which  followed,  the  acts  which  ensued  jus- 
tify the  inference  that  the  intention  existed  to  use  the  power  of  the 
combination  as  a  vantage  ground  to  further  monopolize  the  trade  in 
tobacco  by  means  of  trade  conflicts  designed  to  injure  others,  either  by 
driving  competitors  out  of  the  business  or  compelling  them  to  become 
parties  to  a  combination, — a  purpose  whose  execution  was  illustrated 
by  the  plug  war  which  ensued  and  its  results,  by  the  snuff  war  which 
followed  and  its  results,  and  by  the  conflict  which  immediately  fol- 
lowed the  entry  of  the  combination  in  England,  and  the  division  of 
the  world's  business  by  the  two  foreign  contracts  which  ensued, 
(c)  By  the  ever-present  manifestation  which  is  exhibited  of  a  con- 
scious wrongdoing  by  the  form  in  which  the  various  transactions  were 
embodied  from  the  beginning,  ever  changing,  but  ever  in  substance 
the  same.  Now  the  organization  of  a  new  company,  now  the  control 
exerted  by  the  taking  of  stock  in  one  or  another  or  in  several,  so  as  to 
obscure  the  result  actually  attained,  nevertheless  uniform,  in  their 
manifestations  of  the  purpose  to  restrain  others  and  to  monopolize 
and  retain  power  in  the  hands  of  the  few  who,  it  would  seem,  from  the 
beginning,  contemplated  the  mastery  of  the  trade  which  practically 
followed,  (d)  By  the  gradual  absorption  of  control  over  all  the  ele- 
ments essential  to  the  successful  manufacture  of  tobacco  products,  and 
placing  such  control  in  the  hands  of  seemingly  independent  corpora- 
tions serving  as  perpetual  barriers  to  the  entry  of  others  into  the  to- 
bacco trade,  (e)  By  persistent  expenditure  of  millions  upon  millions 
of  dollars  in  buying  out  plants,  not  for  the  purpose  of  utilizing  them, 
but  in  order  to  close  them  up  and  render  them  useless  for  the  pur- 
poses of  trade,  (f)  By  the  constantly  recurring  stipulations,  whose 
legality,  isolatedly  viewed,  we  are  not  considering,  by  which  numbers 
of  persons,  whether  manufacturers,  stockholders,  or  employees,  were 
required  to  bind  themselves,  generally  for  long  periods,  not  to  com- 
pete in  the  future. 

"Indeed,  when  the  results  of  the  undisputed  proof  which  we  have 
stated  are  fully  apprehended,  and  the  wrongful  acts  which  they  ex- 
hibit are  considered,  there  comes  inevitably  to  the  mind  the  conviction 
that  it  was  the  danger  which  it  was  deemed  would  arise  to  individual 
liberty  and  the  public  well-being  from  acts  like  those  which  this  record 
exhibits,  which  led  the  legislative  mind  to  conceive  and  to  enact  the 
Anti-Trust  Act.  The  assailed  combination  in  all  its  aspects — that  is  to 
say,  whether  it  be  looked  at  from  the  point  of  view  of  stock  owner- 


1230  THE    FEDERAL   GOVERNMENT  (Part  3 

ship  or  from  the  standpoint  of  the  principal  corporation  and  the  ac- 
or  subsidiary  corporations,  viewed  independently,  including  the 
foreign  corporations  in  so  far  as  by  the  contracts  made  by  them  they 
became  co-operators  in  the  combination — comes  within  the  prohibi- 
tions of  the  1st  and  2d  sections  of  the  Anti-Trust  Act."  2 

[Mr.  Justice  Harlan  dissented  from  the  application  of  the  "rule 
of  reason"  in  interpreting  the  Anti-Trust  law.] 


LOTTERY  CASE. 

(Supreme  Court  of  United  States,  1903.     18S  U.  S.  321,  23  Sup.  Ct  321.  47  L. 
Ed.  492.) 

[Appeal  from  the  United  States  Circuit  Court  for  the  Northern 
District  of  Illinois.  A  federal  statute  of  1895  (28  Stat.  963,  c.  191 
[U.  S.  Comp.  St.  1901,  p.  3178])  criminally  forbade  any  one  to 
cause  to  be  brought  into  the  United  States  for  the  purpose  of  dis- 
posing of  the  same,  or  to  be  deposited  in  the  mails,  or  to  be  carried 
from  one  state  to  another,  any  lottery  tickets  or  advertisements  there- 
of. One  Champion  was  arrested  in  Chicago  charged  with  conspiracy 
to  violate  the  above  act.  and  in  pursuance  thereof  with  having  caused 
the  Wells-Fargo  Express  Company  to  carry  lottery  tickets  in  a  South 
American  lottery  from  Texas  to  California.  His  writ  of  habeas 
corpus  based  upon  the  alleged  invalidity  of  the  above  act  was  dis- 
missed by  the  Circuit  Court.] 

Mr.  Justice  Harlan:  *  *  *  What  is  the  import  of  the  word 
"commerce"  as  used  in  the  Constitution!'  It  is  not  defined  by  that 
instrument.  Undoubtedly,  the  carrying  from  one  state  to  another 
by  independent  carriers  of  things  or  commodities  that  are  ordinary 
subjects  of  traffic,  and  which  have  in  themselves  a  recognized  value 
in  money,  constitutes  interstate  commerce.  But  does  not  commerce 
among  the  several  states  include  something  more?     Does  not  the 

*  "It  Is  not  contended  that  the  unification  of  the  terminal  facilities  of  a  great 

.  ity  where  many  rail)  i  enter  is.  under  all  circumstances  and  con- 

a  combination  in  restraint  of  trade  or  commerce.     Whether  it  is  a 

facility  in  aid  of  interstate  commerce  or  an  unreasonable  restraint,  forbidden 

by   the  act  of  Congress,  as  construed  and  applied  by  this  court  in  the  cases 

of  standard  Oil  Co.  v.  United  States,  221  U.  S.  1,  55  L.  Ed.  619,  34  L.  R.  A. 

(N.  S.)  834,  :!1  Sup.  Ct.  502,  Ann.  Cas.  1912D,  734.  and  United  States  v.  Amer- 

Ican  Ti  i        221   U.  S.  106,  55  L.  Ed.  6G3,  31  Sup.  Ct.  632,  will  depend 

upon  the  intent  to  be  inferred  from  the  extent  of  the  control  thereby  secured 

over  instrumentalities  which  such  commerce  is  under  compulsion  to  use,  the 

'   by   which  such  control  has  been  brought  about,  and  the  manner  iu 

which  that  control  has  been  exerted." — U.  S.  v.  Terminal  Ey.,  224  U.  S.  3S3. 

:;'■'  I.  395,  32  Sup.  ct.  507,  56  L.  Ed.  810  tl912),  by  Lurton,  J.    For  other  applica- 

t  the  "rule  of  reason"  as  applied  to  various  agreements,  see  U.  S.  v. 

Reading  Co.,  226  )'.  S.  324,  369  ft"..  33  Sup.  Ct.  90,  57  L.  Ed.  (1912);    U. 

S.  v.  Pac.  &  Arc-tie  Co..  228  1'.  S.  87,  104.  3.1  Sup.  Ct.  443,  57  L.  Ed.  (1913). 

For  the  "rule  of  reason''  under  the  Australian  Anti-Trust  Act,  see  King  v. 
Associated  Northern  Collieries,  14  Com.  L.  Rep.  3S7.  397,  4C2-476,  534-536,. 
.-.41-r.4<:.  650-655  (1911). 


Ch.  18)  REHOLATION    OF    COMMERCE  1231 

carrying  from  one  state  to  another,  by  independent  carriers,  of  lot- 
tery tickets  that  entitle  the  holder  to  the  payment  of  a  certain  amount 
of  money  therein  specified,  also  constitute  commerce  among  the 
states?  *  *  *  [Here  are  discussed,  among  other  cases,  Gibbons 
v.  Ogden,  ante,  p.  1053:  Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co.,  ante. 
p.  1066,  note;  Covington  Bridge  Co.  v.  Kentucky,  ante,  p.  1172;  and 
Hanley  v.  K.  C.  Ry.,  ante,  p.  1171,  note.] 

The  cases  cited  Sufficiently  indicate  the  grounds  upon  which  this 
court  has  proceeded  when  determining  the  meaning  and  scope  of  the 
commerce  clause.  They  show  that  commerce  among  the  states  em- 
braces navigation,  intercourse,  communication,  traffic,  the  transit  of 
persons,  and  the  transmission  of  messages  by  telegraph.  They  also 
show  that  the  power  to  regulate  commerce  among  the  several  states  is 
vested  in  Congress  as  absolutely  as  it  would  be  in  a  single  government, 
having  in  its  constitution  the  same  restrictions  on  the  exercise  of  the 
power  as  are  found  in  the  Constitution  of  the  United  States;  that  such 
power  is  plenary,  complete  in  itself,  and  may  be  exerted  by  Congress 
to  its  utmost  extent,  subject  only  to  such  limitations  as  the  Constitu- 
tion imposes  upon  the  exercise  of  the  powers  granted  by  it;  and  that 
in  determining  the  character  of  the  regulations  to  be  adopted  Congress 
has  a  large  discretion  which  is  not  to  be  controlled  by  the  courts,  sim- 
ply because,  in  their  opinion,  such  regulations  may  not  be  the  best  or 
most  effective  that  could  be  employed.     *     *     * 

It  was  said  in  argument  that  lottery  tickets  are  not  of  any  real  or 
substantial  value  in  themselves,  and  therefore  are  not  subjects  of  com- 
merce. If  that  were  conceded  to  be  the  only  legal  test  as  to  what  are 
to  be  deemed  subjects  of  the  commerce  that  may  be  regulated  by  Con- 
gress, we  cannot  accept  as  accurate  the  broad  statement  that  such  tick- 
ets are  of  no  value.  *  *  *  These  tickets  were  the  subject  of  traf- 
fic :  they  could  have  been  sold ;  and  the  holder  was  assured  that  the 
company  would  pay  to  him  the  amount  of  the  prize  drawn.  *  *  * 
We  are  of  opinion  that  lottery  tickets  are  subjects  of  traffic,  and  there- 
fore are  subjects  of  commerce,  and  the  regulation  of  the  carriage  of 
such  tickets  from  state  to  stale,  at  least  by  independent  carriers,  is  a 
regulation  of  commerce  among  the  several  states. 

Hut  it  is  said  that  *  *  *  the  authority  given  Congress  was  not 
to  prohibit,  but  only  to  regulate.     *     *     * 

We  have  said  that  the  carrying  from  state  to  state  of  lottery  tickets 
constitutes  interstate  commerce,  and  that  the  regulation  of  such  com- 
merce is  within  the  power  of  Congress  under  the  Constitution.  Are 
we  prepared  to  say  that  a  provision  which  is,  in  effect,  a  prohibition 
of  the  carriage  of  such  articles  from  state  to  state  is  not  a  fit  or  appro- 
priate mode  for  the  regulation  of  that  particular  kind  of  commerce? 
If  lottery  traffic,  carried  on  through  interstate  commerce,  is  a  matter  of 
which  Congress  may  take  cognizance  and  over  which  its  power  may  be 
exerted,  can  it  be  possible  that  it  must  tolerate  the  traffic,  and  simply 
regulate  the  manner  in  which  it  may  be  carried  on?    Or  may  not  Con- 


1232  THE  FEDERAL  GOVERNMENT  (Part  3 

for  the  protection  of  the  people  of  all  the  states,  and  under  the 
to  regulate  interstate  commerce,  devise  such  means,  within  the 
scope  of  the  Constitution,  and  not  prohibited  by  it,  as  will  drive  that 
traffic  out  of  commerce  among  the  states? 

In  determining  whether  regulation  may  not  under  some  circumstanc- 
es properly  take  the  form  or  have  the  effect  of  prohibition,  the  nature 
of  the  interstate  traffic  which  it  was  sought  by  the  act  of  May  2d, 
1895,  to  suppress  cannot  be  overlooked.     *     *     * 

If  a  state,  when  considering  legislation  for  the  suppression  of  lotter- 
ies within  its  own  limits,  may  properly  take  into  view  the  evils  that 
inhere  in  the  raising  of  money,  in  that  mode,  why  may  not  Congress, 
invested  with  the  power  to  regulate  commerce  among  the  several  states, 
provide  that  such  commerce  shall  not  be  polluted  by  the  carrying  of 
lottery  tickets  from  one  state  to  another?  In  this  connection  it  must 
not  be  forgotten  that  the  power  of  Congress  to  regulate  commerce 
among  the  states  is  plenary,  is  complete  in  itself,  and  is  subject  to  no 
limitations  except  such  as  may  be  found  in  the  Constitution.  What 
provision  in  that  instrument  can  be  regarded  as  limiting  the  exercise 
of  the  power  granted  ?  What  clause  can  be  cited  which,  in  any  degree, 
countenances  the  suggestion  that  one  may,  of  right,  carry  or  cause  to 
be  carried  from  one  state  to  another  that  which  will  harm  the  public 
morals?  We  cannot  think  of  any  clause  of  that  instrument  that  could 
possibly  be  invoked  by  those  who  assert  their  right  to  send  lottery  tick- 
ets from  state  to  state  except  the  one  providing  that  no  person  shall  be 
deprived  of  his  liberty  without  due  'process  of  law.  *  *  *  But 
surely  it  will  not  be  said  to  be  a  part  of  anyone's  liberty,  as  recognized 
by  the  supreme  law  of  the  land,  that  he  shall  be  allowed'  to  introduce 
into  commerce  among  the  states  an  element  that  will  be  confessedly 
injurious  to  the  public  morals. 

If  it  be  said  that  the  act  of  1895  is  inconsistent  with  the  tenth 
amendment,  reserving  to  the  states  respectively,  or  to  the  people,  the 
powers  not  delegated  to  the  United  States,  the  answer  is  that  the  pow- 
er to  regulate  commerce  among  the  states  has  been  expressly  delegated 
to  Congress. 

Besides,  Congress,  by  that  act,  does  not  assume  to  interfere  with 
traffic  or  commerce  in  lottery  tickets  carried  on  exclusively  within  the 
limits  of  any  state,  but  has  in  view  only  commerce  of  that  kind  among 
the  several  states.  It  has  not  assumed  to  interfere  with  the  completely 
internal  affairs  of  any  state,  and  has  only  legislated  in  respect  of  a 
matter  which  concerns  the  people  of  the  United  States.  As  a  state 
may,  for  the  purpose  of  guarding  the  morals  of  its  own  people,  forbid 
all  sales  of  lottery  tickets  within  its  limits,  so  Congress,  for  the  pur- 
pose of  guarding  the  people  of  the  United  States  against  the  "wide- 
spread pestilence  of  lotteries"  and  to  protect  the  commerce  which  con- 
cerns all  the  states,  may  prohibit  the  carrying  of  lottery  tickets  from 
one  state  to  another.  In  legislating  upon  the  subject  of  the  traffic  in 
lottery  tickets,  as  carried  on  through  interstate  commerce,  Congress 


Cll.  18)  REGULATION    OF    COMMERCE  1233 

only  supplemented  the  action  of  those  states — perhaps  all  of  them — 
which,  for  the  protection  of  the  public  morals,  prohibit  the  drawing  of 
lotteries,  as  well  as  the  sale  or  circulation  of  lottery  tickets,  within 
their  respective  limits.  It  said,  in  effect,  that  it  would  not  permit  the 
declared  policy  of  the  states,  which  sought  to  protect  their  people 
against  the  mischiefs  of  the  lottery  business,  to  be  overthrown  or  dis- 
regarded by  the  agency  of  interstate  commerce.  We  should  hesitate 
long  before  adjudging  that  an  evil  of  such  appalling  character,  carried 
on  through  interstate  commerce,  cannot  be  met  and  crushed  by  the 
only  power  competent  to  that  end.  We  say  competent  to  that  end,  be- 
cause Congress  alone  has  the  power  to  occupy,  by  legislation,  the 
whole  field  of  interstate  commerce.     *     *     * 

We  know  of  no  authority  in  the  courts  to  hold  that  the  means  thus 
devised  are  not  appropriate  and  necessary  to  protect  the  country  at 
large  against  a  species  of  interstate  commerce  which,  although  in  gen- 
eral use  and  somewhat  favored  in  both  national  and  state  legislation  in 
the  early  history  of  the  country,  has  grown  into  disrepute,  and  has  be- 
come offensive  to  the  entire  people  of  the  nation.  It  is  a  kind  of  traffic 
which  no  one  can  be  entitled  to  pursue  as  of  right.     *     *     * 

[After  discussing  Reid  v.  Colorado,  187  U.  S.  137,  23  Sup.  Ct.  92, 
47  L.  Ed.  108;  Addyston  Pipe  Co.  v.  U.  S.,  175  U.  S.  211,  20  Sup.  Ct. 
96,  44  L.  Ed.  136;  and  Re  Rahrer,  ante,  p.  1197, — as  involving  the  va- 
lidity of  the  regulation  of  commerce  by  prohibition:]  It  is  said,  how- 
ever, that  if,  in  order  to  suppress  lotteries  carried  on  through  inter- 
state commerce,  Congrdss  may  exclude  lottery  tickets  from  such  com- 
merce, that  principle  leads  necessarily  to  the  conclusion  that  Congress 
may  arbitrarily  exclude  from  commerce  among  the  states  any  article, 
commodity,  or  thing,  of  whatever  kind  or  nature,  or  however  useful 
or  valuable,  which  it  may  choose,  no  matter  with  what  motive,  to  de- 
clare shall  not  be  carried  from  one  state  to  another.  It  will  be  time 
enough  to  consider  the  constitutionality  of  such  legislation  when  we 
must  do  so.  The  present  case  does  not  require  the  court  to  declare 
the  full  extent  of  the  power  that  Congress  may  exercise  in  the  regula- 
tion of  commerce  among  the  states.  We  may,  however,  repeat,  in  this 
connection,  what  the  court  has  heretofore  said,  that  the  power  of  Con- 
gress to  regulate  commerce  among  the  states,  although  plenary,  can- 
not be  deemed  arbitrary,  since  it  is  subject  to  such  limitations  or  re- 
strictions as  are  prescribed  by  the  Constitution.1  This  power,  there- 
fore, may  not  be  exercised  so  as  to  infringe  rights  secured  or  protected 
by  that  instrument.  It  would  not  be  difficult  to  imagine  legislation 
that  would  be  justly  liable  to  such  an  objection  as  that  stated,  and  be 
hostile  to  the  objects  for  the  accomplishment  of  which  Congress  was 
invested  with  the  general  power  to  regulate  commerce  among  the  sev- 
eral states.    But,  as  often  said,  the  possible  abuse  of  a  power  is  not  an 

i  Sec  Monongabela  Navig.  Co.  v.  United  states,  ante,  p.  955. 
n  m  i  Const.L. — ~S 


1234  THE  FEDERAL  GOVERNMENT  (Part  3 

argument  against  its  existence.  There  is  probably  no  governmental 
power  that  may  not  be  exerted  to  the  injury  of  the  public.  *  *  * 
We  decide  nothing  more  in  the  present  case  than  that  lottery  tickets 
are  subjects  of  traffic  among  those  who  choose  to  sell  or  buy  them ; 
that  the  carriage  of  such  tickets  by  independent  carriers  from  one  state 
to  another  is  therefore  interstate  commerce ;  that  under  its  power  to 
regulate  commerce  among  the  several  states  Congress — subject  to  the 
limitations  imposed  by  the  Constitution  upon  the  exercise  of  the  pow- 
ers granted — has  plenary  authority  over  such  commerce,  and  may 
prohibit  the  carriage  of  such  tickets  from  state  to  state ;  and  that  leg- 
islation to  that  end,  and  of  that  character,  is  not  inconsistent  with  any 
limitation  or  restriction  imposed  upon  the  exercise  of  the  powers 
granted  to  Congress. 
Judgment  affirmed.2 

2  Accord:  U.  S.  v.  Popper,  9S  Fed.  423  (1899)  (prohibiting  interstate  car- 
riage of  articles  designed  to  prevent  conception) ;    Hoke  v.   U.   S.,  227  U.  S. 

308,  320-323,  33  Sup.  Ct.  2S1-283,  57  L.  Ed.  (1913)  (upholding  the  federal 

"White  Slave  Act"  [36  Stat.  S24,  c.  395,  U.  S.  Comp.  St.  Supp.  1911,  p.  1343], 
forbidding  transporting  or  assisting  to  transport  any  woman  from  one  state 
or  territory  to  another  for  any  immoral  purpose),  McKenna,  J.,  saying: 

"A  person  may  move  or  be  moved  in  interstate  commerce.  »  »  *  What 
the  net  condemns  is  transportation  obtained  or  aided,  or  transportation  in- 
duced, in  interstate  commerce,  for  the  immoral  purposes  mentioned.  But  an 
objection  is  made  and  urged  with  earnestness,  it  is  said  that  it  is  the  right 
and  privilege  of  a  person  to  move  between  states,  and  that  such  being  the 
right,  another  cannot  be  made  guilty  of  the  crime  of  inducing  or  assisting  or 
aiding  in  the  exercise  of  it,  and  'that  the  motive  or  intention  of  the  passen- 
ger, either  before  beginning  the  journey,  or  during  or  after  completing  it,  is 
not  a  matter  of  interstate  commerce.'  The  contentions  confound  things  im- 
portant to  be  distinguished.  It  urges  a  right  exercised  in  morality  to  sustain 
a  riu'ht  to  be  exercised  in  immorality.     *     *     * 

"Plaintiffs  in  error  admit  that  the  states  may  control  the  immoralities  of 
its  citizens.  Indeed,  this  is  their  chief  insistence;  and  they  especially  con- 
demn the  act  under  review  as  a  subterfuge  and  an  attempt  to  interfere  with 
the  police  power  of  the  states  to  regulate  the  morals  of  their  citizens,  and 
assert  that  it  is  in  consequence  an  invasion  of  the  reserved  powers  of  the 
-  ates.  There  is  unquestionably  a  control  in  the  states  over  the  morals  of 
i heir  citizens,  and,  it  may  be  admitted,  it  extends  to  making  prostitution  a 
crime.  It  is  a  control,  however,  which  can  be  exercised  only  within  the  juris- 
diction of  the  states,  but  there  is  a  domain  which  the  states  cannot  reach  and 
over  which  Congress  alone  has  power;  and  if  such  power  be  exerted  to  con- 
trol what  the  states  cannot,  it  is  an  argument  for — not  against — its  legality. 
Its  exertion  does  not  encroach  upon  the  jurisdiction  of  the  states.     *     *     * 

"Our  dual  form  of  government  has  its  perplexities,  state  and  nation  having 
different  spheres  of  jurisdiction,  as  we  have  said;  but  it  must  be  kept  in  mind 
that  we  are  one  people;  and  the  powers  reserved  to  the  states  and  those 
conferred  on  the  nation  are  adapted  to  be  exercised,  whether  independently 
or  concurrently,  to  promote  the  general  welfare,  material  and  moral.  This 
is  the  effect  of  the  decisions;  and  surely,  if  the  facility  of  interstate  trans- 
portation can  be  taken  away  from  the  demoralization  of  lotteries,  the  debase- 
ment of  obscene  literature,  the  contagion  of  diseased  cattle  or  persons,  the 
impurity  of  food  and  drugs,  the  like  facility  can  be  taken  away  from  the 
systematic  enticement  to  and  the  enslavement  in  prostitution  and  debauchery 
of  women,  and,  more  insistently,  of  girls.  This  is  the  aim  of  the  law,  ex- 
pressed in  broad  generalization;  and  motives  are  made  of  determining  con- 
sequence. Motives  executed  by  actions  may  make  it  the  concern  of  govern- 
ment to  exert  its  powers.     *     «     » 

"Of  course  it  will  be  said  that  women  are  not  articles  of  merchandise,  but 
this  does   not  affect   the   analogy   of   the  cases:    the   substance   of  the  con- 


Ch.  18)  REGULATION    OF    COMMERCE  1235 

Mr.  Chief  Justice  Fuller,  dissenting  [with  whom  concurred 
Brewer,  Shiras,  and  Peckham,  JJ.,  on  the  ground  that  lottery 
tickets  were  not  articles  of  commerce  nor  injurious  to  such  com- 
merce] :  *  *  *  An  invitation  to  dine,  or  take  a  drive,  or  a  note 
of  introduction,  all  become  articles  of  commerce  under  the  ruling  in 
this  case,  by  being  deposited  with  an  express  company  for  transpor- 
tation. This  in  effect  breaks  down  all  the  differences  between  that 
which  is,  and  that  which  is  not,  an  article  of  commerce,  and  the  neces- 
sary consequence  is  to  take  from  the  states  all  jurisdiction  over  the 
subject  so  far  as  interstate  communication  is  concerned;  It  is  a  long 
step  in  the  direction  of  wiping  out  all  traces  of  state  lines,  and  the 
creation  of  a  centralized  government.     *     *     * 

gresslonal  power  Is  the  same,  only  the  manner  of  Its  exercise  must  be  accom- 
modated to  the  difference  in  its  objects.  It  is  misleading  to  say  that  men  and 
women  have  rights.  Their  rights  cannot  fortify  or  sanction  their  wrongs  : 
and  if  they  employ  interstate  transportation  as  a  facility  of  their  wrongs. 
it  may  be  forbidden  to  them  to  the  extent  of  the  act  of  July  25,  1910,  and  we 
need  go  no  farther  in  the  present  case." 

Federal  Authority  over  Foreign  Commerce. — Of  the  power  to  regulate 
commerce  with  foreign  nations,  it  was  said  in  Buttfield  v.  Stranahan,  192 
D.  S.  470,  492,  493,  24  Sup.  Ct.  349,  354  (48  L.  Ed.  525)  (1904),  by  White,  J.: 

"Whatever  difference  of  opinion,  if  any,  may  have  existed  or  does  exist 
concerning  the  limitations  of  the  power,  resulting  from  other  provisions  of 
the  Constitution,  so  far  as  interstate  commerce  is  concerned,  it  is  not  to  be 
doubted  that  from  the  beginning  Congress  has  exercised  a  plenary  power  in 
respect  to  the  exclusion  of  merchandise  brought  from  foreign  countries;  not 
alone  directly  by  the  enactment  of  embargo  statutes,  but  indirectly,  as  a 
necessary  result  of  provisions  contained  in  tariff  legislation.  It  has  also,  in 
other  than  tariff  legislation,  exerted  a  police  power  over  foreign  commerce 
by  provisions  which  in  and  of  themselves  amounted  to  the  assertion  of  the 
righ(  to  exclude  merchandise  at  discretion.  This  is  illustrated  by  statutory 
provisions  which  have  been  in  force  for  more  than  fifty  years,  regulating  the 
degree  of  strength  of  drugs,  medicines,  and  chemicals  entitled  to  ail1 
into  the  United  States  and  excluding  such  as  did  not  equal  the  standards 
adopted.  9  Stat,  at  L.  237,  c.  70;  Rev.  Stat.  §  2933,  U.  S.  Comp.  Stat.  1901,  p. 
1936.  »  *  *  We  entertain  no  doubt  that  it  was  competent  for  Congress 
by  statute,  under  the  power  to  regulate  foreign  commerce,  to  establish  stand 
a i ils  and  provide  that  no  right  should  exist  to  Import  teas  from  foreign  couu- 
trles  into  the  United  States,  unless  such  teas  should  be  equal  to  the  stand- 
ards. 

"As  a  result  of  the  complete  power  of  Congress  over  foreign  commerce,  it 
in  cessarUy  follows  that  no  individual  has  a  vested  right  to  trade  with  foreign 
nations  which   is  so   broad  in  character  as   to  limit  and  restrict  the   power 

of  i  ongress  to  determine  what  articles  of  rchandise  may  be  imported   Into 

this  country  and  the  terms  upon  which  a  riirht  to  import  may  be  exercised. 
I'lii:  being  true,  it  results  that  a  statute  which  restrains  the  introduction  of 
particular  goi  ds  into  the  United  States  from  considerations  of  public  policy 
dm  s  not  violate  the  due  process  clause  of  the  Constitution." 

So  also.  Oceanic  Nav.  Co.  v.  Stranahan.  211  U.  S.  .■'.•_•(!.  29  Sup.  Ct.  871,  58 
L.  Ed.  1013  (1909)  (exclusion  of  aliens):  The  Abby  Dodge.  223  U.  S.  166,  82 
Sup,  Ct.  310,  5ti  L.  I'd.  390  (1912)  (excluding  deep  sea  sponges  taken  by  divers 
■    a  Conservation  measure). 

Foreign  commerce  may  of  course  be  regulated  by  taxation,  as  by  a  protective 
tariff  or  by  duties  on  Immigrants,  even  when  the  purpose  of  the  law  is  not 
revenue.  Head  Money  Cases,  112  U.  S.  580,  5  Sup.  Ct  247,  28  L.  Ed.  7'.'^ 
(1884). 


1236  TDK   FEDERAL   GOVERNMENT  (Part  3 

HALE  v.  HENKEL  (1906)  201  U.   S.  43,  74,  75,  26  Sup.  Ct. 
i  L.  Ed.  652,  Mr.  Justice  Brown  (upholding  the  right  of  the 
United  States  in  a  proceeding  under  the  federal  Anti-Trust  law  to  com- 
pel the  production  before  a  federal  grand  jury  of  books  and  documents 
of  a  state  corporation  whose  suspected  violation  of  said  law  was  being 
igated  with  a  view  to  its  indictment) : 
See  the  part  of  this  case  printed  ante,  at  pp.  190,  191,  begining  "Up- 
on the  other  hand"  (p.  190,  bottom),  and  ending  "over  the  state  cor- 
porations'' (pr  191,  end  second  paragraph).1 


SOUTHERN  PACIFIC  TERMINAL  CO.  v.  INTERSTATE 
COMMERCE  COMMISSION. 

(Supreme  Court  of  United  States,  1911.    219  U.  S.  49S,  31  Sup.  Ct.  279,  55  L. 
Ed.  310.) 

[Appeals  from  United  States  Circuit  Court  for  Southern  District  of 
Texas.  The  appellant  Terminal  Company,  a  Texas  corporation,  was 
organized  in  1901  to  construct  and  maintain,  under  certain  legislation 
of  Texas,  public  piers  and  terminal  facilities  for  the  use  of  the  South- 
ern Pacific  Systems  upon  certain  land  in  Galveston.  It  gave  an  exclu- 
sive lease  of  one  of  its  piers  to  one  Young,  who  used  it  as  a  place  to 
manufacture  into  meal,  for  export,  cotton-seed  cake  shipped  to  him 
there,  whereby  he  undersold  his  competitors  who  had  to  pay  the  Ter- 
minal Company  wharfage  charges  for  the  use  of  its  piers  and  were  af- 
forded no  facilities  for  manufacturing  there.  The  Southern  Pacific 
Systems  consisted  of  a  number  of  separate  railroad  and  steamship  cor- 
porations and  the  Terminal  Company,  99  per  cent,  of  the  stock  in  each 
being  owned  by  the  Southern  Pacific  Company,  a  Kentucky  corpora- 
tion. The  Terminal  Company  owned  no  rolling  stock  nor  interest  in 
any  other  corporation,  issued  no  bills  of  lading,  and  did  only  a  wharf- 
age business  under  a  published  schedule  of  rates.  Export  shipments 
on  through  bills  of  lading  included  these  wharfage  charges  in  the 
freight  rates.  The  Interstate  Commerce  Commission  ordered  the  dis- 
continuance of  the  exclusive  arrangement  between  Young  and  the 
Terminal  Company,  as  a  discrimination  against  other  shippers.  Bills 
in  equity  to  enjoin  this  order  were  dismissed,  and  these  appeals  taken, 
on  the  grounds,  among  others,  that  the  Terminal  Company  was  not  a 
common  carrier  and  that  Young's  commerce  was  purely  foreign,  to 
which  cases  the  Interstate  Commerce  Act  (24  Stat.  379,  c.  104,  U.  S. 
Comp.  St.  1901,  p.  3154)  by  its  terms  did  not  extend.] 

Mr.  Justice  McKbnna.  *  *  *  We  assume  that  the  wharves  in 
the  pending  case  are  the  instruments  of  a  common  carrier.     *     *     * 

i  Approved  In  Interstate  Com.  Comm.  v.  Goodrich  Transit  Co.,  224  U.  S. 
.01.  21.-,,  :;u  Sup.  Ct.  436,  56  L.  Ed.  729  (1912). 


Ch.  18)  REGULATION    OF    COMMERCE  1237 

The  terminal  company  was  incorporated  to  execute  the  purposes  ex- 
pressed in  the  act  of  the  legislature  of  the  state  of  Texas,  that  is,  to 
construct  terminal  facilities  for  the  Southern  Pacific  Railroad  & 
Steamship  Systems,  and  to  accommodate  the  export  and  import  traffic 
at  Galveston;  and,  necessarily,  as  instrumentalities  of  such  traffic, 
wharves  and  piers  are  as  essential  as  steamships  and  railroads,  and 
are,  in  fact,  as  they  were  intended  to  be  by  the  charter  of  their  authori- 
zation, parts  of  a  system.  The  only  track  facilities  for  movement  of 
cars  to  or  from  the  ships,  from  or  to  the.  tracks  of  the  Southern  Pacif- 
ic Railway,  are  on  the  terminal  company's  lands,  and  are  owned  by 
it      *     *     * 

Another  and  important  fact  is  the  control  of  the  properties  by  the 
Southern  Pacific  Company  through  stock  ownership.  There  is  a  sep- 
aration of  the  companies  if  we  regard  only  their  charters ;  there  is  a 
union  of  them  if  we  regard  their  control  and  operation  through  the 
Southern  Pacific  Company.  This  control  and  operation  are  the  impor- 
tant facts  to  shippers.  It  is  of  no  consequence  that  by  mere  charter 
declaration  the  terminal  company  is  a  wharfage  company,  or  the 
Southern  Pacific  a  holding  company.  Verbal  declarations  cannot  al- 
ter the  facts.  The  control  and  operation  [by]  the  Southern  Pacific 
Company  of  the  railroads  and  the  terminal  company  have  united  them 
into  a  system  of  which  all  are  necessary  parts,  the  terminal  company 
as  well  as  the  railroad  companies.  *  *  *  And  surely  a  system  so 
constituted  and  used  as  an  instrument  of  interstate  commerce  may  not- 
escape  regulation  as  such  because  one  of  its  constituents  is  a  wharfage 
company  and  its  dominating  power  a  holding  company.  As  was  well 
said  by  the  Interstate  Commerce  Commission,  "a  corporation  such 
as  this  terminal  company,  which  has  'competing  lines,'  should  not  be 
permitted  to  defeat  the  jurisdiction  of  this  Commission  by  showing: 
that  it  is  not  in  fact  owned  by  any  railroad  company.  *  *  *  The 
terminal  company  is  part  and  parcel  of  the  system  engaged  in  the 
transportation  of  commerce,  and  to  the  extent  that  such  commerce  is 
interstate  the  Commission  has  jurisdiction  to  supervise  and  control  it 
within  statutory  limits.  To  hold  otherwise  would  in  effect  permit  car- 
riers generally,  through  the  organization  of  separate  corporations,  to 
exempt  all  of  their  terminals  from  our  regulating  authority."     *     *     * 

In  opposition  to  these  views  appellants  urge  the  legal  individuality 
of  the  different  railroads  and  the  terminal  company,  and  cite  cases 
which  establish,  it  is  contended,  that  stock  ownership  simply  or 
through  a  holding  company  does  not  identify  them.  We  are  not  con- 
cerned to  combat  the  proposition.  The  record  does  not  present  a  case 
of  stock  ownership  merely,  or  of  a  holding  company  which  was  con- 
tent to  hold.  It  presents  a  case,  as  we  have  already  said,  of  one  ac- 
tively managing  and  uniting  the  railroads  and  the  terminal  company 
into  an  organized  system.  And  it  is  with  the  system  that  the  law 
must  deal,  not  with  its  elements.  Such  elements  may,  indeed,  be  re- 
garded from  some  standpoints  as  legal  entities;   may  have,  in  a  sense. 


1238  THE   FEDERAL   GOVERNMENT  (Part  3 

separate  corporate  operation ;  but  they  are  directed  by  the  same 
paramount  and  combining  power  and  made  single  by  it.  In  all  trans- 
actions it  is  treated  as  single.  In  the  ordinance  of  the  city  of  Galves- 
ton, in  the  act  of  the  legislature  of  the  state  of  1899,  and  in  public  cir- 
culars and  in  the  lease  of  Young,  it  is  the  system  which  is  dealt  with, 
and  not  its  separate  links.  And,  we  have  seen,  the  terminal  facilities 
which  the  terminal  company  was  authorized  to  maintain  were  for  the 
system,  not  for  the  corporate  elements  considered  separately.     *      *      * 

The  last  contention  advanced  is  that  "the  order  of  the  Commission 
transcends  its  jurisdiction,  in  that  it  regulates  commerce  purely  state 
and  intrastate,  and  also  purely  foreign  commerce,  neither  of  which  is 
subject  to  its  authority." 

In  support  of  this  contention  it  is  insisted  that  the  evidence  shows 
the  following  facts :  The  cake  and  meal  purchased  by  Young  are 
bought  by  him  in  Texas,  Oklahoma,  Louisiana,  and  Arkansas,  but 
chiefly  in  Texas,  and  shipped  to  him  on  bills  of  lading  and  way  bills, 
showing  the  point  of  origin  in  those  states  and  the  destination  at  Gal- 
veston. The  purchases  are  made  for  export,  there  being  no  consump- 
tion of  the  products  at  Galveston.  His  sales  to  foreign  countries  are 
sometimes  for  immediate  and  sometimes  for  future  delivery,  irrespec- 
tive of  whether  he  has  the  product  on  hand  at  Galveston.  At  times 
he  has  it  on  hand.  At  times,  therefore,  orders  must  be  filled  from  cake 
to  be  purchased  in  the  interior  or  then  in  transit  to  him.  When  the 
"cake  reaches  Galveston  it  is  ground  into  meal  and  sacked  by  Young, 
and  for  the  meal  thus  ground  and  such  meal  as  has  been  brought  to 
his  customers  he  takes  out  ships'  bills  of  lading  made  to  his  order. 

This  evidence  establishes,  appellants  contend,  that  the  transit  of  the 
cake  and  meal  is  absolutely  ended  at  the  leased  premises  at  Galveston, 
and  that  it  is  "a  final  point  of  concentration  and  manufacture,  the  cot- 
ton-seed cake  being  there  manufactured  into  meal  and  sacked  for  ex- 
port." But  this  does  not  distinguish  between  the  meal  and  the  cake, 
nor  between  the  meal  that  is  purchased  at  points  outside  of  Texas  and 
directly  exported,  from  that  so  purchased  and  manufactured  on  the 
wharves  of  the  terminal  company.  Nor  does  it  take  account  of  the 
fact  that  the  wharves  were  intended  for  shipping  facilities,  a  means  of 
transition  from  land  carriage  to  water  carriage.  It  is  manifest,  as  we 
have  said,  that  to  make  the  wharves  manufacturing  or  concentrating 
points  for  one  shipper,  and  not  for  all,  is  to  give  that  shipper  a  pref- 
erence. And,  being  a  preference,  the  traffic  necessarily  comes  under 
the  jurisdiction  of  the  Interstate  Commerce  Commission.  In  other 
words,  the  manufacture  or  concentration  on  the  wharves  of  the  termi- 
nal company  are  but  incidents,  under  the  circumstances  presented  by 
the  record,  in  the  transhipment  of  the  products  in  export  trade,  and 
their  regulation  is  within  the  power  of  the  Interstate  Commerce  Com- 
mission. To  hold  otherwise  would  be  to  disregard,  as  the  Commission 
said,  the  substance  of  things,  and  make  evasions  of  the  act  of  Congress 
quite  easy.     It  makes  no  difference,  therefore,  that  the  shipments  of 


Ch.  18)  REGULATION   OF   COMMEECB  1239 

the  products  were  not  made  on  through  bills  of  lading,  or  whether 
their  initial  point  was  Galveston  or  some  other  place  in  Texas.  They 
were  all  destined  for  export  and  by  their  delivery  to  the  Galveston, 
Harrisburg  &  San  Antonio  Railway  they  must  be  considered  as  hav- 
ing been  delivered  to  a  carrier  for  transportation  to  their  foreign  des- 
tination, the  terminal  company  being  a  part  of  the  railway  for  such 
purpose.  The  case,  therefore,  comes  under  Coe  v.  Errol,  116  U.  S. 
517,  29  L.  Ed.  715,  6  Sup.  Ct.  475,  where  it  is  said  that  goods  are  in 
interstate,  and  necessarily  as  well  in  foreign,  commerce  when  they  have 
"actually  started  in  the  course  of  transportation  to  another  state  or 
been  delivered  to  a  carrier  for  transportation."  In  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Texas,  204  U.  S.  403,  51  L.  Ed.  540,  27  Sup.  Ct.  360,  the 
facts  are  different,  and  the  case  is  not  apposite. 
Decree  affirmed.1 

i  In  Interstate  Com.  Comm.  v.  Ill  C.  Ry..  215  U.  S.  452,  472-474,  30  Sup. 
Ct.  155,  161,  51  L.  Ed.  2S0  (1910)  it  was  held  that  the  federal  Commission 
might  regulate  the  distribution  to  coal  mines  of  the  fuel  cars  of  ah  Interstate 
railway,  in  times  of  car  shortage,  in  order  to  prevent  preferences,  White,  J.. 
saying: 

"When  coal  is  received  from  the  tipple  of  a  coal  mine  Into  coal  cars  by  a 
railway  company,  and  the  coal  is  intended  for  Its  own  use  and  is  transported 
by  it,  it  is  said  there  is  no  consignor,  no  consignee,  and  no  freight  to  be  paid, 
and  therefore,  although  there  may  be  transportation,  there  is  no  shipment, 
and  hence  no  commerce.  «  •  •  When  the  erroneous  assumption  upon 
which  the  proposition  must  rest  Is  considered.  Its  unsoundness  is  readily 
demonstrable.  That  assumption  is  this:  that  commerce,  in  the  constitutional 
sense,  only  embraces  shipment  in  a  technical  sense,  and  does  not,  therefore, 
extend  to  carriers  engaged  in  interstate  commerce,  certainly  in  so  far  as  so 
engaged,  and  the  instrumentalities  by  which  such  commerce  is  carried  on, — 
a  doctrine  the  unsoundness  of  which  has  been  apparent  ever  since  the  deci- 
sion in  Gibbons  v.  Ogden,  9  Wheat.  1,  6  L.  Ed.  23,  and  which  has  not  since 
been  open  to  question.  lb  may  not  be  doubted  that  the  equipment  of  a  rail- 
road  company  engaged  in  interstate  commerce,  included  in  which  are  its  coal 
cars,  are  instruments  of  such  commerce.  From  this  it  necessarily  follows  that 
such  cars  are  embraced  within  the  governmental  power  of  regulation,  which 
extends,  in  time  of  car  shortage,  to  compelling  a  just  and  equal  distribution, 
anil  Hie  prevention  of  an  unjust  and  discriminatory  one." 

Interstate  Commerce  Act. — After  the  decision  in  Wabash,  etc..  My.  v. 
Illinois,  ante,  p.  1166,  Congress  in  1887  enacted  the  Interstate  Commerce  Act 
(24  Stat.  379,  c.  104,  U.  S.  Comp.  St.  1901,  p.  3154)  creating  a  Commission  upon 
which  was  conferred  important  regulative  powers  over  interstate  transporta- 
tion by  railroad.  In  1898  the  Secretary  of  the  Interior  was  authorized  to  reg- 
ulate railroad  rates  in  Alaska  (30  Stat.  409.  c.  299,  U.  S.  Comp.  St.  1901.  p. 
L412).  "At  that  time  it  had  been  held  in  the  Maximum  Rate  Cases  (162  D. 
S.  184,  40  L.  Ed.  935,  5  Inters.  Com.  Rep.  891,  10  Srp.  Ct.  700;  167  U.  S.  479, 
42  I..  Ed.  243,  17  Sup.  Ct.  896,  and  10S  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct 
45),  that  Congress  had  not  conferred  upon  the  Interstate  Commerce  Commis- 
sion the  legislative  power  to  prescribe  rates,  either  maximum,  minimum,  or 
absolute.  The  power  to  prescribe  a  rate  was  conferred  by  the  amendment  of 
June  29,  1906  [34  Stat  5S4,  c.  3591,  U.  S.  Comp.  St.  Supp.  1911,  p.  1288],  and 
that  amendment  extended  the  provisions  of  the  act  for  the  first  time  to  in- 
traterritorial  commerce.  The  amendment  made  the  act  completely  compre- 
hensive of  the  whole  subject,  and  entirely  superseded  the  tuiuor  authority 
which  had  been  conferred  upon  the  Secretary  of  the  Interior." — [McKenna, 
J.,  in  Interstate  Com.  Comm.  v.  Humboldt  S.  S.  Co.,  224  U.  S.  474,  4S3.  4N4, 
32  Sup.  Ct.  556,  558,  559,  50  L.  Ed.  849  11912).]  Pipe  lines  (except  water  and 
gas),  express  companies,  and  sleeping  oar  companies  were  brought  within  the 
act  by  the  latter  amendment. 

Among  the  more  important   constitutional  cases  decided  under  the  act  and 


1240  THE  FEDERAL  GOVERNMENT  (Part  3 


INTERSTATE   COMMERCE   COMMISSION    v.    GOODRICH 
TRANSIT  CO. 

(Supreme  Court  of  United  States,  1912.     224  TJ.  S.   194,  32  Sup.  Ct.  436,  56 
L.  Ed.  729.) 

[Appeals  from  United  States  Commerce  Court.  The  federal  Inter- 
state Commerce  Act  as  amended  in  1906  (34  Stat.  584,  c.  3591,  U.  S. 
Comp.  St.  Supp.  1911,  p.  1288)  applied  to  carriers  engaged  in  inter- 
.-.tate  transportation  partly  by  rail  and  partly  by.  water,  when  both  were 
used  under  an  arrangement  for  continuous  carriage.  The  Goodrich 
Transit  Company,  a  carrier  by  water  upon  the  Great  Lakes,  deriving 
less  than  20  per  cent,  of  its  gross  revenue  from  joint  rail  and  water  in- 
terstate business,  and  the  White  Star  Line,  a  similar  carrier  deriving 
less  than  1  per  cent,  of  it  gross  revenue  from  this  source,  obtained 
from  the  federal  Commerce  Court  injunctions  against  orders  of  the 
Interstate  Commerce  Commission  calling  for  reports  and  prescribing 
rules  of  accounting  under  §  20  of  the  above  act,  in  so  far  as  such  or- 
ders extended  beyond  their  said  joint  interstate  business.  Other  facts 
appear  in  the  opinion  below.] 

Mr.  Justice  Day.  *  *  *  As  to  annual  reports,  the  power  con- 
ferred in  §  20  of  the  act  extends  to  all  common  carriers  subject  to  the 
provisions  of  the  act.  The  Commission  is  vested  with  authority  to 
prescribe  the  manner  in  which  such  reports  shall  be  made,  and  to  re- 
quire specific  answers  to  all  questions  as  to  which  the  Commission 
may  need  information.     *     *     * 

The  form  of  report  adopted  by  the  Commission  required  a  showing 
as  to  the  corporate  organization  of  each  carrier  by  water  subject  to 
the  act,  the  companies  owned  by  it,  and  the  parties  or  companies  con- 
trolling it ;  as  to  the  financial  condition  of  the  carrier,  the  cost  of  its 
real  property  and  equipment,   its  capital  stock  and  other  stock  and 

its  amendments  are  Interstate  Com.  Comm.  v.  Brimson,  154  TJ.  S.  447,  14  Sup. 
Ct.  1125.  38  L.  Ed.  1047  (1S94)  (power  to  compel  testimony) ;  Brown  v.  Walker. 
161  U.  S.  591,  16  Sup.  Ct.  644,  40  L.  Ed.  819  (1S96)  (same) ;  N.  Y.,  etc.,  Ry.  v. 
!  C.  Comm.,  200  U.  S.  361,  26  Sup.  Ct.  272,  50  L.  Ed.  515  (1906)  (carrier's 
own  property  subject  to  public  rates  of  carriage);  TJ.  S.  v.  Del.  &  H.  Co.,  213 
r.  s.  366,  29  Sup.  Ct.  527,  53  L.  Ed.  836  (1909)  (forbidding  transportation  of 
carrier's  own  commodities);  TJ.  S.  v.  Lehigh  Val.  Ry.,  220  TJ.  S.  257,  31  Sup. 
1  !t.  387,  55  L.  Ed.  45S  (1911)  (same — indirect  ownership) ;  Atlantic  C.  L.  Ry. 
v.  Riyerside  Mills,  219  U.  S.  1S6,  31  Sup.  Ct.  164,  55  L.  Ed.  167,  31  L.  R.  A. 
IN.  S.)  7  (1911)  (making  initial  carrier  liable  for  injury  to  freight);  L.  &  N. 
Ky.  y.  Mottley,  219  U.  S.  407,  31  Sup.  Ct.  265,  55  L.  Ed.  297,  34  L.  R.  A.  (X. 
S.)  671  (1911)  (invalidating  prior  bona  fide  life  pass  giyen  in  settlement  of 
damage  claim). 

As  to  the  application  of  the  act  to  various  kinds  of  transportation,  see  New 
York  Cent.  R.  Co.  y.  Hudson  County,  227  U.  S.  24S,  33  Sup.  Ct.  269.  57  L.  Ed. 

(191:!)  (ferries);    Omaha  &  Council  Bluffs  St.  Ry.  v.  I.  C.  Commis,  230  U. 

S.  324,  :;::  Sup,  Ct.  890,  57  L.  Ed.  (1913)  (street  railways):    Texas  &  N. 

O.  R.  Co.  v.  S;,bine  Tram  Co.,  227  TJ.  S.  Ill,  33  Sup.  Ct.  229,  57  L.  Ed.  

(1913)  (interstate  shipments  on  local  hills  of  lading — cases);  Texas  &  Pac.  Ry. 
v-  t;  S.,  205  Fed,  380  (1913)  (intrastate  rates  discriminating  against  inter- 
state traffic,  whether  fixed  by  carrier  or  state) — compare  Minnesota  Rate  Cases,, 
sine,  p.  1174. 


Ch.  18)  REGULATION    OF    COMMERCE  1241 

securities  owned  by  it,  together  with  all  special  funds  and  current 
assets  and  liabilities,  as  well  as  its  funded  indebtedness,  with  collateral 
security  covering  same;  and  as  to  finances  with  respect  to  the  op- 
erations of  the  carrier  for  the  current  year,  giving  the  revenue  of  the 
company  and  its  source,  whether  from  transportation,  and  what  kind, 
or  from  outside  operations,  and  all  expenses,  detailed,  with  a  state- 
ment as  to  the  net  income  or  deficit  from  the  various  sources,  and 
the  report  contains  a  profit  and  loss  account  and  a  general  balance 
sheet.  The  report  further  requires  certain  statistical  information,  as 
follows:  The  routes  of  the  carrier  and  their  mileage;  a  general  de- 
scription of  the  equipment  owned,  leased,  or  chartered  by  the  car- 
rier ;  the  amount  of  traffic,  both  passenger  and  freight,  and  mileage 
and  revenue  statistics,  together  with  a  separation  of  freight  into  the 
quantity  of  the  various  products  transported,  showing  also  whether 
originating  on  the  carrier's  line  or  received  from  a  connecting  line ; 
and  a  general  description  of  any  separate  business  carried  on  by  the 
carrier.  But  such  report  is  no  broader  than  the  annual  report  of 
such  carriers,  as  prescribed  by  the  act,  for  §  20  provides  that : 

"Such  annual  reports  shall  show  in  detail  the  amount  of  capital 
stock  issued,  the  amounts  paid  therefor,  and  the  manner  of  payment 
for  the  same ;  the  dividends  paid,  the  surplus  fund,  if  any,  and  the 
number  of  stockholders ;  the  funded  and  floating  debts  and  the  in- 
terest paid  thereon ;  the  cost  and  value  of  the  carrier's  'property, 
franchises,  and  equipments ;  the  number  of  employees  and  the  sal- 
aries paid  each  class;  the  accidents  to  passengers,  employees,  and 
other  persons,  and  the  causes  thereof;  the  amounts  expended  for 
improvements  each  year,  how  expended,  and  the  character  of  such 
improvements;  the  earnings  and  receipts  from  each  branch  of  busi- 
ness and  from  all  sources ;  the  operating  and  other  expenses ;  the 
balances  of  profit  and  loss ;  and  a  complete  exhibit  of  the  financial 
operations  of  the  carrier  each  year,  including  an  annual  balance 
sheet.  Such  reports  shall  also  contain  such  information  in  relation 
to  rates  or  regulations  concerning  fares  or  freights,  or  agreements, 
arrangements,  or  contracts  affecting  the  same,  as  the  Commission 
may  require." 

As  to  the  accounts,  the  statute  permits  the  Commission,  in  its 
discretion,  for  the  purpose  of  enabling  it  the  better  to  carry  out  the 
purposes  of  the  act,  to  prescribe  a  period  of  time  within  which  such 
common  carriers  shall  have  a  uniform  system  of  accounts  and  the 
manner  in  which  such  accounts  shall  be  kept.  The  Commission  may. 
the  statute  further  provides,  in  its  discretion,  prescribe  the  forms  of 
all  accounts,  records,  and  memoranda  to  be  kept  by  the  common  car- 
riers, to  which  accounts  the  Commission  shall  have  access.  And  the 
act  makes  it  unlawful  for  the  carriers  to  keep  any  accounts,  records, 
or  memoranda  other  than  those  prescribed  by  the  Commission. 

We  think  this  section  contains  ample  authority  for  the  Commi-- 
sion  to  require  a  system  of  accounting  as  provided  in  its  orders,  and 


1242  THE   FEDERAL   GOVERNMENT  (Part  .°> 

a  report  in  the  form  shown  to  have  been  required  by  the  order  of 
the  Commission.  It  is  true  that  the  accounts  required  to  be  kept 
are  general  in  their  nature,  and  embrace  business  other  than  such 
as  is  necessary  to  the  discharge  of  the  duties  required  in  carrying 
passengers  and  freight  in  interstate  commerce  by  joint  arrangement 
between  the  railroad  and  the  water  carrier,  but  the  Commission  is 
charged  under  the  law  with  the  supervision  of  such  rates  as  to  their 
reasonableness,  and  with  the  general  duty  of  making  reports  to  Con- 
gress which  might  require  a  knowledge  of  the  business  of  the  car- 
rier beyond  that  which  is  strictly  of  the  character  mentioned.  If  the 
Commission  is  to  successfully  perform  its  duties  in  respect  to  reason- 
able rates,  undue  discriminations,  and  favoritism,  it  must  be  informed 
as  to  the  business  of  the  carriers  by  a  system  of  accounting  which 
will  not  permit  the  possible  concealment  of  forbidden  practices  in 
accounts  which  it  is  not  permitted  to  see,  and  concerning  which  it 
can  require  no  information.  It  is  a  mistake  to  suppose  that  the  re- 
quiring of  information  concerning  the  business  methods  of  such  cor- 
porations, as  shown  in  its  accounts,  is  a  regulation  of  business  not 
within  the  jurisdiction  of  the  Commission,  as  seems  to  be  argued 
for  the  complainants.  The  object  of  requiring  such  accounts  to  be 
kept  in  a  uniform  way,  and  to  be  open  to  the  inspection  of  the  Com- 
mission, is  not  to  enable  it  to  regulate  the  affairs  of  the  corporations 
not  within  its  jurisdiction,  but  to  be  informed  concerning  the  busi- 
ness methods  of  the  corporations  subject  to  the  act,  that  it  may 
properly  regulate  such  matters  as  are  really  within  its  jurisdiction. 
Further,  the  requiring  of  information  concerning  a  business  is  not 
regulation  of  that  business.  The  necessity  of  keeping  such  accounts 
has  been  developed  in  the  reports  of  the  Commission,  and  has  been 
the  subject  of  great  consideration.  It  caused  the  employment  of 
those  skilled  in  such  matters,  and  has  resulted  in  the  adoption  of  a 
general  form  of  accounting  which  will  enable  the  Commission  to  ex- 
amine into  the  affairs  of  the  corporations,  with  a  view  to  discharg- 
ing its  duties  of  regulation  concerning  them.     *     *     * 

The  learned  commerce  court  was  of  the  opinion  that  the  Commis- 
sion might  require  accounts  and  reports,  so  far  as  the  business  of 
the  water  carriers  with  reference  to  joint  rates  by  rail  and  water  un- 
der a  common  arrangement  was  concerned,  and  remanded  the  cases 
to  the  Commission  for  revision  of  their  orders  upon  that  basis.  But 
it  is  argued  for  the  Commission,  and  it  seems  to  us,  with  great  force, 
that  it  would  be  impracticable  to  make  such  separation  in  any  system 
of  accounting.  It  is  a  matter  of  general  knowledge,  of  which  we 
may  take  judicial  notice,  that  traffic  of  all  kinds  is  conducted  upon 
the  same  ship  and  passage.  A  boat  may  leave  a  lake  port  carrying 
passengers  and  freight  destined  for  ports  within  the  state  and  for 
ports  beyond  the  state,  and  as  a  part  of  the  freight  for  carriage  em- 
brace some  carried  under  the  terms  of  joint  arrangements  made  with 
connecting  railroad  carriers.     How  would  it  be  practicable  to  sepa- 


Cll.  18)  REGULATION    OF    COMMERCE!  1243 

rate  the  items  of  expense  entailed  in  the  carriage  of  these  various 
classes?  It  is  done  upon  one  boat,  with  one  set  of  officers  and  crew, 
and  must,  in  the  nature  of  things,  be  under  one  general  bill  of  ex- 
pense,— at  least,  it  would  seem  impracticable  to  separate  it  into  its 
items,  so  as  to  show  the  expense  of  that  which  it  is  contended  is  alone 
within  the  terms  of  the  act,  as  construed  by  the  carriers.1 

We  think  the  act  should  be  given  a  practical  construction,  and  one 
which  will  enable  the  Commission  to  perform  the  duties  required  of 
it  by  Congress ;  and,  conceding  for  this  purpose  that  the  regulating 
power  of  the  Commission  is  limited,  so  far  as  rates  are  concerned, 
to  joint  rates  of  the  character  named  in  §  1,  it  is  still  essential  that, 
to  enable  the  Commission  to  perform  its  required  duties,  even  with 
respect  to  such  rates,  and  to  make  reports  to  Congress  of  the  busi- 
ness of  carriers  subject  to  the  terms  of  the  act,  it  should  be  informed 
as  to  the  matters  contained  in  the  report.  Congress,  in  §  20,  has 
authorized  the  Commission  to  inquire  as  to  the  business  which  the 
carrier  does,  and  to  require  the  keeping  of  uniform  accounts,  in  or- 
der that  the  Commission  may  know  just  how  the  business  is  carried 
on,  with  a  view  to  regulating  that  which  is  confessedly  within  its 
power.     *     *     * 

As  to  one  of  the  corporations,  it  is  said  that  its  business  includes 
not  only  the  carriage  of  passengers  and  freight,  but  that  it  owns  and 
operates  in  connection  therewith  certain  amusement  parks.  The  re- 
port in  controversy,  as  to  business  other  than  commerce,  requires  a 
general  description  of  such  outside  operations,  and  also  a  statement 
of  the  income  from  and  the  expenses  of  the  same.  As  we  have  said, 
if  the  Commission  is  to  be  informed  of  the  business  of  the  corpora- 
tion, so  far  as  its  bookkeeping  and  reports  are  concerned,  it  must 
have  full  knowledge  and  full  disclosures  thereof,  in  order  that  it  may 
ascertain  whether  forbidden  practices  and  discriminations  are  con- 
cealed, even  unintentionally,  in  certain  accounts,  and  whether  charges 
of  expense  are  made  against  one  part  of  a  business  which  ought  to 
be  made  against  another. 

Bookkeeping,  it  is  said,  is  not  interstate  commerce.  True,  it  is 
not.  But  bookkeeping  may  and  ought  to  show  how  a  business 
wdiich,  in  part,  at  least,  is  interstate  commerce,  is  carried  on,  in  order 
that  the  Commission,  charged  with  the  duty  of  making  reasonable 
rates  and  prohibiting  unfair  and  unreasonable  ones,  may  know  the 
nature  and  extent  of  the  business  of  the  corporation,  the  cost  of 
its  interstate  transactions,  and  otherwise  to  inform  itself  so  as  to  ena- 
ble it  to  properly  regulate  the  matters  which  are  within  its  author- 
ity.    *     *     * 

Judgment  reversed. 

[Lurton  and  Lamar,  JJ.,  dissented.]' 

1  But  compare  Minnesota  Rate  Cases,  ante,  at  pp.  ."02,  !>03. 


1244  THE   FEDERAL   GOVERNMENT  (Part  3 


McDERMOTT  v.  WISCONSIN. 

(Supreme  Court  of  Uuited  States,  1913.     22S  U.  S.  115,  33  Sup.  Ct.  431,  57 
L.  Ed. .) 

[Error  to  the  Supreme  Court  of  Wisconsin.  A  Wisconsin  statute 
required  all  "corn  syrup"  offered  for  sale  in  the  state,  if  containing 
over  75  per  cent,  of  glucose,  to  be  labeled  "Glucose  flavored  with," 
etc.,  and  forbade  any  other  label  indicating  a  saccharine  substance. 
Under  the  federal  Fo'od  and  Drugs  Act  (34  Stat.  768,  c.  3915,  U.  S. 
Comp.  St.  Supp.  1911,  p.  1354)  this  commodity  in  interstate  com- 
merce was  lawfully  labeled  "Corn  Syrup."  McDermott,  a  retail  mer- 
chant in  Wisconsin,  bought  and  received  from  Chicago,  in  a  wooden 
box,  twelve  half-gallon  cans  of  said  corn  syrup,  labeled  only  as  re- 
quired by  the  federal  law,  took  the  cans  from  the  box,  and  placed 
them  on  his  shelves  for  retail  sale.  For  this,  he  was  convicted  in  the 
Dane  county  Circuit  Court  of  violating  the  state  statute,  and  the 
conviction  was  affirmed  by  the  state  Supreme  Court.] 

Mr.  Justice  Day.  *  *  *  It  is  insisted  that  the  federal  Food 
and  Drugs  Act,  passed  under  the  authority  of  the  Constitution,  has 
taken  possession  of  this  field  or  regulation,  and  that  the  state  act  is 
a  wrongful  interference  with  the  exclusive  power  of  Congress  over 
interstate  commerce.     *     *     * 

Congress  *  *  *  has  the  right  not  only  to  pass  laws  which 
shall  regulate  legitimate  commerce  among  the  states  and  with  foreign 
nations,  but  has  full  power  to  keep  the  channels  of  such  commerce 
free  from  the  transportation  of  illicit  or  harmful  articles,  to  make 
such  as  are  injurious  to  the  public  health  outlaws  of  such  commerce, 
and  to  bar  them  from  the  facilities  and  privileges  thereof.  *  *  * 
The  Food  and  Drugs  Act  was  passed  by  Congress  *  *  *  to  pre- 
vent the  facilities  of  such  commerce  being  used  to  enable  such  arti- 
cles to  be  transported  throughout  the  country  from  their  place  of 
manufacture  to  the   people  who   consume  and  use  them.     *     *     * 

Section  2  of  the  act  provides  that  "the  introduction  into  any  state 
or  territory  or  the  District  of  Columbia  from  any  other  state  or  ter- 
ritory or  the  District  of  Columbia  *  *  *  of  any  article  of  food 
or  drugs  which  is  adulterated  or  misbranded,  within  the  meaning  of 
this  act,  is  hereby  prohibited."  *  *  *  [Here  follows  a  statement 
of  the  penal  clause  of  the  act  and  references  to  §§  7  and  8  of  it,  de- 
fining  "adulterated"  and  "misbranded."] 

That  the  word  "package,"  or  its  equivalent  expression,  as  used  by 
Congress  in  §§  7  and  8  in  defining  what  shall  constitute  adulteration 
and  what  shall  constitute  misbranding  within  the  meaning  of  the  act, 
clearly  refers  to  the  immediate  container  of  the  article  which  is  in- 
tended for  consumption  by  the  public,  there  can  be  no  question. 
*  *  *  Within  the  limitations  of  its  right  to  regulate  interstate 
commerce,  Congress  manifestly  is  aiming  at  the  contents  of  the  pack- 


Ch.  18)  REGULATION    OF    COMMERCE  1245 

age  as  it  shall  reach  the  consumer,  for  whose  protection  the  act  was 
primarily  passed,  and  it  is  the  branding  upon  the  package  which 
contains  the  article  intended  for  consumption  itself  which  is  the  sub- 
ject-matter of  regulation.  Limiting  the  requirements  of  the  act  as 
to  adulteration  and  misbranding  simply  to  the  outside  wrapping  or 
box  containing  the  packages  intended  to  be  purchased  by  the  con- 
sumer, so  that  the  importer,  by  removing  and  destroying  such  cov- 
ering, could  prevent  the  operation  of  the  law  on  the  imported  arti- 
cle yet  unsold,  would  render  the  act  nugatory  and  its  provisions 
wholly  inadequate  to  accomplish  the  purposes  for  which  it  was 
passed.     *     *     * 

When  delivered  for  shipment  and  when  received  through  the  chan- 
nels of  interstate  commerce,  the  cans  in  question  bore  brands  or  la- 
bels which  were  supposed  to  comply  with  the  requirements  of  the  act 
of  Congress.  *  *  *  The  label  upon  the  unsold  article  is,  in  the 
one  case,  the  evidence  of  the  shipper  that  he  has  complied  with  the 
act  of  Congress,  while  in  the  other,  by  its  misleading  and  false  char- 
acter, it  furnishes  the  proof  upon  which  the  federal  authorities  de- 
pend to  reach  and  punish  the  shipper  and  to  condemn  the 
goods.     *     *     * 

While  in  this  situation,  the  goods  being  unsold,  as  a  condition  of 
their  legitimate  sale  within  the  state,  and  also  of  their  being  in  the 
possession  of  the  importer  for  the  purpose  of  sale  and  of  being  ex- 
posed and  offered  for  sale  by  him,  the  Wisconsin  statute  provides 
that  they  shall  bear  the  label  required  by  the  state  law  and  none 
other  (which  represents  a  saccharine  substance,  as  do  the  labels  in 
these  cases).  In  others  words,  it  is  essential  to  a  legal  exercise  of 
possession  of  and  traffic  in  such  goods  under  the  state  law  that  labels 
which  presumably  meet  with  the  requirements  of  the  federal  law,  and 
for  the  determination  of  the  correctness  of  which  Congress  has  pro- 
vided efficient  means,  shall  be  removed  from  the  packages  before  the 
first  sale  by  the  importer.  In  this  connection  it  might  be  noted  that, 
as  a  practical  matter,  at  least,  the  first  time  the  opportunity  of  in- 
spection by  tl  e  federal  authorities  arises  in  cases  like  the  present  is 
when  the  goods,  after  having  been  manufactured,  put  up  in  pa 
form  and  boxed  in  one  state,  and  having  been  transported  in  inter- 
state commerce,  arrive  at  their  destination,  are  delivered  to  the  con- 
signee, unboxed,  and  placed  by  him  upon  the  shelves  of  his  store  for 
sale.  Conceding  to  the  state  the  authority  to  make  regulations  con- 
sistent with  the  federal  law  for  the  further  protection  of  its  citizens 
against  impure  and  misbranded  food  and  .drugs,1  we  think  to  permit 
such  regulation  as  is  embodied  in  this  statute  is  to  permit  a  state  to 

i  As  to  the  kind  of  additional  regulations  competent  to  the  states  under  the 
federal  act  considered  in  the  principal  ease,  see  Savage  v.  Jones,  225  U.  s. 
50]  (1912)  (packages  of  feeding  stuff  for  animals  required  to  bear  tag 
weight,  trade-name,  Dame  and  location  of  manufacturer,  and  a  guaranteed 
analysis  of  composition);  Standard  Stock  Food  Co.  v.  Wright.  225  r.  s.  nio, 
32  Sup.  Ct.  784,  '^  L.  Ed.  HOT  1 11)12)  (similar  statute). 


IL'46  THE   FEDERAL   GOVERNMENT  (Part  3 

discredit  and  burden  legitimate  federal  regulations  of  interstate  com- 
merce, to  destroy  rights  arising  out  of  the  federal  statute  which  have 
accrued  both  to  the  government  and  the  shipper,  and  to  impair  the 
effect  of  a  federal  law  which  has  been  enacted  under  the  Constitu- 
tional power  of  Congress  over  the  subject. 

To  require  the  removal  or  destruction  before  the  goods  are  sold 
of  the  evidence  which  Congress  has  by  the  Food  and  Drugs  Act,  as 
we  shall  see,  provided  may  be  examined  to  determine  the  compliance 
or  noncompliance  with  the  regulations  of  the  federal  law,  is  beyond 
the  power  of  the  state.  The  Wisconsin  act  which  permits  the  sale 
of  articles  subject  to  the  regulations  of  interstate  commerce  only 
upon  condition  that  they  contain  the  exclusive  labels  required  by  the 
statute  is  an  act  in  excess  of  its  legitimate  power. 

It  is  insisted,  however,  that,  since  at  the  time  when  the  state  act 
undertook  to  regulate  the  branding  of  these  goods,  namely,  when  in 
the  possession  of  the  plaintiffs  in  error,  and  held  upon  their  shelves 
for  sale,  the  cans  had  been  removed  from  the  boxes  in  which  they 
were  shipped  in  interstate  commerce,  they  had  therefore  passed  be- 
yond the  jurisdiction  of  Congress,  and  their  regulation  was  exclu- 
sively a  matter  for  state  legislation.  This  assertion  is  based  upon 
the  original-package  doctrine  as  it  is  said  to  have  been  laid  down  in 
the  former  decisions  in  this  court.  *  *  *  [Here  follows  a  quota- 
tion from  Brown  v.  Maryland,  ante,  at  p.  1042,  in  which  the  term 
"original  package"  was  used.] 

That  doctrine  has  been  many  times  applied  in  the  decisions  of  this 
court  in  defining  the  line  of  demarcation  which  shall  separate  the 
federal  from  the  state  authority  where  the  sovereign  power  of  the 
nation  or  state  is  involved  in  dealing  with  property.  And  where  it 
has  been  found  necessary  to  decide  the  boundary  of  federal  author- 
ity, it  has  been  generally  held  that,  where  goods  prepared  and  packed 
for  shipment  in  interstate  commerce  are  transported  in  such  com- 
merce, and  delivered  to  the  consignee,  and  the  package  by  him  sepa- 
rated into  its  component  parts,  the  power  of  federal  regulation  has 
ceased  and  that  of  the  state  may  be  asserted.  [Citing  cases.]  In  the 
view,  however,  which  we  take  of  this  case,  it  is  unnecessary  to  enter 
upon  any  extended  consideration  of  the  nature  and  scope  of  the  prin- 
ciples involved  in  determining  what  is  an  original  package.  For, 
1  keeping  within  its  constitutional  limitations  of  authority, 
Congress  may  determine  for  itself  the  character  of  the  means  neces- 
sary to  make  its  purpose  effectual,  in  preventing  the  shipment  in  in- 
terstate commerce  of  articles  of  a  harmful  character,  and  to  this  end 
may  provide  the  means  of  inspection,  examination,  and  seizure  neces- 
sary to  enforce  the  prohibitions  of  the  act,  and  when  §  2  has  been 
violated,  the  federal  authority,  in  enforcing  either  §  2  or  §  10,  may 
follow  the  adulterated  or  misbranded  article  at  least  to  the  shelf  of 
the  importer.     *     *     * 


Ch.  18)  REGULATION    OF    COMMERCE  1247 

[Referring  to  §  10  of  the  act:]  To  make  the  provisions  of  the 
act  effectual,  Congress  has  provided  not  only  for  the  seizure  of  the 
goods  while  being  actually  transported  in  interstate  commerce,  but 
has  also  provided  for  such  seizure  after  such  transportation  and  while 
the  goods  remain  "unloaded,  unsold,  or  in  original  unbroken  pack- 
ages." The  opportunity  for  inspection  en  route  may  be  very  inade- 
quate. The  real  opportunity  of  government  inspection  may  only 
arise  when,  as  in  the  present  case,  the  goods  as  packed  have  been 
removed  from  the  outside  box  in  which  they  were  shipped,  and  re- 
main, as  the  act  provides,  "unsold."  It  is  enough,  by  the  terms  of 
the  act,  if  the  articles  are  unsold,  whether  in  original  packages  or 
not.     *     *     * 

The  doctrine  of  original  package  had  its  origin  in  the  opinion  of 
Chief  Justice  Marshall  in  Brown  v.  Maryland,  already  referred  to. 
It  was  intended  to  protect  the  importer  in  the  right  to  sell  the  im- 
ported goods  which  was  the  real  object  and  purpose  of  importation. 
To  determine  the  time  when  an  article  passes  out  of  the  interstate 
into  state  jurisdiction  for  the  purpose  of  taxation  is  entirely  different 
from  deciding  when  an  article  which  has  violated  a  federal  prohibi- 
tion becomes  immune.  The  doctrine  was  not  intended  to  limit  the 
right  of  Congress,  now  asserted,  to  keep  the  channels  of  interstate 
commerce  free  from  the  carriage  of  injurious  or  fraudulently  brand- 
ed articles,  and  to  choose  appropriate  means  to  that  end.  The  legis- 
lative means  provided  in  the  federal  law  for  its  own  enforcement  may 
not  be  thwarted  by  state  legislation  having  a  direct  effect  to  impair 
the  efficient  exercise  of  such  means. 

Judgment  reversed.2 


SOUTHERN  RY.  CO.  v.  UNITED  STATE?  (1911)  222  U.  S. 
20,  26,  27,  32  Sup.  Ct.  2,  56  L.  Ed.  72,  Mr.  Justice  Van  Devantku 
(upholding  the  imposition  of  a  penalty  upon  defendant  company  for 
hauling  upon  its  interstate  railroad  in  intrastate  traffic  three  cars  not 
equipped  with  safety  couplers  as  required  by  the  federal  Safety  Ap- 
pliance Act  of  1893  as  amended  in  1903  [27  Stat.  531,  c.  196,  U.  S. 
Comp.  St.  1901,  p.  3174;  32  Stat.  943,  c.  976,  U.  S.  Comp.  St.  Supp. 
1911,  p.  1314]): 

"It  must  be  held  that  the  original  act,  as  enlarged  by  the  amenda- 
tory one,  is  intended  to  embrace  all  locomotives,  cars,  and  similar 
vehicles  used  on  any  railroad  which  is  a  highway  of  interstate  com- 
merce. 

"We  come,  then,  to  the  question  whether  these  acts  are  within  the 
power  of  Congress  under  the  commerce  clause  of  the  Constitution, 

2  See  also,  Ilipolite  Egg  Co.  v.  United  States,  220  U.  S.  45.  31  Sup.  Ct  3G4. 
55  L.  Ed,  304  (1911)  (Food  and  Drugs  Act  applies  to  articles  shipped  from  state 
to  state  by  owner  for  his  own  use  in  manufacturing  food  for  sale,  at  least 
where  latter  is  not  to  be  labeled  under  the  act). 


1248  THE   FEDERAL   GOVERNMENT  (Part  3 

considering  that  they  are  not  confined  to  vehicles  used  in  moving  in- 
terstate traffic,  but  embrace  vehicles  used  in  moving  intrastate  traffic. 
The  answer  to  this  question  depends  upon  another,  which  is,  Is  there 
a  real  or  substantial  relation  or  connection  between  what  is  required 
by  these  acts  in  respect  of  vehicles  used  in  moving  intrastate  traffic, 
and  the  object  which  the  acts  obviously  are  designed  to  attain ;  name- 
ly, the  safety  of  interstate  commerce  and  of  those  who  are  employed 
in  its  movement?  Or,  stating  it  in  another  way,  Is  there  such  a  close 
or  direct  relation  or  connection  between  the  two  classes  of  traffic, 
when  moving  over  the  same  railroad,  as  to  make  it  certain  that  the 
safety  of  the  interstate  traffic  and  of  those  who  are  employed  in  its 
movement  will  be  promoted  in  a  real  or  substantial  sense  by  apply- 
ing the  requirements  of  these  acts  to  vehicles  used  in  moving  the 
traffic  which  is  intrastate  as  well  as  to  those  used  in  moving  that 
which  is  interstate?  If  the  answer  to  this  question,  as  doubly  stated, 
be  in  the  affirmative,  then  the  principal  question  must  be  answered  in 
the  same  way.  And  this  is  so,  not  because  Congress  possesses  any 
power  to  regulate  intrastate  commerce  as  such,  but  because  its  power 
to  regulate  interstate  commerce  is  plenary,  and  competently  may  be 
exerted  to  secure  the  safety  of  the  persons  and  property  transported 
therein  and  of  those  who  are  employed  in  such  transportation,  no 
matter  what  may  be  the  source  of  the  dangers  which  threaten  it. 
That  is  to  say,  it  is  no  objection  to  such  an  exertion  of  this  power 
that  the  dangers  intended  to  be  avoided  arise,  in  whole  or  in  part, 
out  of  matters  connected  with  intrastate  commerce. 

"Speaking  only  of  railroads  which  are  highways  of  both  interstate 
and  intrastate  commerce,  these  things  are  of  common  knowledge : 
Both  classes  of  traffic  are  at  times  carried  in  the  same  car,  and  when 
this  is  not  the  case,  the  cars  in  which  they  are  carried  are  frequently 
commingled  in  the  same  train  and  in  the  switching  and  other  move- 
ments at  terminals.  Cars  are  seldom  set  apart  for  exclusive  use  in 
moving  either  class  of  traffic,  but  generally  are  used  interchangeably 
in  moving  both;  and  the  situation  is  much  the  same  with  trainmen, 
switchmen,  and  like  employees,  for  they  usually,  if  not  necessarily, 
have  to  do  with  both  classes  of  traffic.  Besides,  the  several  trains  on 
the  same  railroad  are  not  independent  in  point  of  movement  and  safe- 
ty, but  are  interdependent;  for  whatever  brings  delay  or  disaster  to 
one,  or  results  in  disabling  one  of  its  operatives,  is  calculated  to  im- 
pede the  progress  and  imperil  the  safety  of  other  trains.  And  so 
the  absence  of  appropriate  safety  appliances  from  any  part  of  any 
train  is  a  menace  not  only  to  that  train,  but  to  others.  • 

"These  practical  considerations  make  it  plain,  as  we  think,  that  the 
questions  before  stated  must  be  answered  in  the  affirmative."  l 

i  The  obligation  imposed  by  the  federal  Safety  Appliance  law  is  an  absolute 
one,  not  discharged  by  the  mere  exercise  of  due  care  to  observe  it.  St.  Louis, 
etc.,  Ry.  v.  Taylor,  210  TJ.  S.  2S1,  28  Sup.  Ct.  616,  52  L.  Ed.  1061  (190S);  C. 
B.  &  Q.  Ry.  v.  U.  S.,  220  U.  S.  559,  31  Sup.  Ct.  612,  55  L.  Ed.  5S2  (1911). 

Every  railroad  that  transports  goods  upon  any  part  of  a  continuous  inter- 


Ch.  18)  REGULATION    OF    COMMERCE  l_'l!) 

state  journey  Is  within  the  act,  even  though  its  part  of  all  carriage  is  wholly 
within  a  State,  upon  loeal  Mils  of  lading,  and  though  no  tars  can  be 
ii  from  ui her  mails  on  account  of  differences  in  gauge,  r.  S.  v.  Colo., 
etc.,  By.,  157  Fed.  32L  85  G.  C.  A.  27,  15  L.  It.  A.  (N.  S.)  167,  13  Ann.  Cas. 
893  1 1907);  1'ae.  Coast  Ry.  v.  U.  S.,  17:;  Fed.  1 18,  its  C.  C.  A.  31  (1909).  Contra  : 
D.  8.  v.  Geddes,  131  Fed.  452",  05  C.  C.  A.  :>2U  1 1904); 

The   original  act  of  lb'Xi  was  limited   in   its  application   to   cars  "u 
moving  interstate  traffic."    As  to  what  constituted  this,  see  Johnson  v.   So. 
Pac.  Ry.,  196  V.  S.  1,  25  Sup.  Ct  158,  49  L.  Ed.  363  (1904);    Dells  v.  St.  L.  & 
F.  Ry.,  220  D.  S.  5*U,  31  Sup.  Ct.  017.  55  L.  Ed.  590  (1911). 

i  EDI  UAL  HOUBS  or  Sebvice  Act— This  Act  of  1907  (31  Stat.  1415.  . 
r*.  S.  Comp.  St.  Supp.  1911,  p.  131*1)  limits  the  hours  of  labor  of  employees  of 
railroads  engaged  in  interstate  transportation  who  are  actually  engaged  In  or 
connected    with  the  movement  of  any  train.     In  Bait  &  O.   Ry.   v.  Ii 
( 'on, in..  221  V.  S.  612,  618,  019,  31  Sup.  Ct.  621,  55  L.  Ed.  S7S  (1911)  this  was 
upheld,  Hughes,  J.,  saying  : 

"The  argument,  undoubtedly,  involves  the  consideration  that  the  interstate 
and  intrastate  operations  of  Interstate  carriers  are  so  interwoven  that  it  is 
utterly  impracticable  for  them  to  divide  their  employees  in  such  maimer  that 
the  duties  of  those  who  are  engaged  in  connection  with  interstate  commerce 
shall  be  contined  to  that  commerce  exclusively.  And  thus,  many  en  i 
who  have  to  do  with  the  movement  of  trains  in  Interstate  transportation  are. 
by  virtue  of  practical  necessity,  also  employed  in  intrastate  transportation. 

"This  consideration,  however,   lends  do   support  to  the  contention  that   the 
statute  is  invalid.    For  there  cannot  be  denied  to  Congress  the  effei 
of  Its  constitutional  authority.    By  virtue  of  its  power  to  regulate  Interstate 
and  foreign  commerce,  Congress  may  enact  laws  for  the  safeguarding  of  the 
persons  and  property  that  are  transported  in  that  coma. 
who  axe  employed  In  transporting  them.    .Tohnson  v.  Southern  P.  Co.,  196  D. 
S.   1,   49   I..   Ed.    363,   25   Sup.  Ct.    158;     Adair   v.    United  States,   208    D.    S. 
177,  178,  52  L.  Ed.  443,  444,  28  Sup.  Ct  277,   L3  Ann.  Cas.  764;    St.  Louis,  I. 
M.  &  S.  it.  Co.  v.  Taylor,  210  U.  S.  281,  52  I..  Ed.  1001,  28  Sup.  Ct  016;    Chi- 
cago, B.  &  Q.  R.  Co.  v.   L'nitcd  States,  decided  May   15,  1911  [220  O. 
55  1..  I'd.  582,  31  Sup.  Ct.  6121.    The  fundamental  question  here  is  wh 
restriction  upon  the  hours  of  labor  of  employees  who  are  connected  with  the 
movement  of  trains  in  interstate  transportation  is  comprehended  within  this 
sphere   of   authorized   legislation.      This  question   admits   of  but  one   a 
The  length  of  hours   of  service  has  direct   relation  to   the  effii 
human  agencies  upon  which  protection  to  life  and  property  necessarily  depends. 
This  has  been  repeatedly  emphasized  In  official  reports  of  the  Interstate  Com- 
merce Commission,  and  is  a  matter  so  plain  as  to  require  no  elaboration,    lu 
its  power  suitably  to  provide  for  the  safety  of  employees  and  travelers,  Con- 
gress was  not   Limited  to  the  enactment  of  laws  relating  to   mechanical   ap- 
pliances, but  it  was  also  competent   to  consider,  and  to  endeavor  to 
the  dangers  incident  to  the  strain  of  excessive  hours  of  duty  on  the  pert  of 
engineers,  conductors,  train  despatchers,  telegraphers,  and  other  pers 
braced  within  the  class  defined  by  the  act.    And  in  imposing  restrictions  hav- 
ing reasonable  relation  to  this  end  there  is  no  interference  with  liberty  of 
contract  as  guaranteed  by  the  Constitution.    Chicago,  B.  &  Q.  R.  Co.  v.  Mc- 
Guire,  219  U.  S.  549,  55  L.  Ed.  32S,  31  Sup.  Ct  259. 

"If,  then,  it  he  assumed,  as  it  must  he,  that,  in  the  furtherance  of  its  pur- 
pose, Congress  can  limit  the  hours  of  labor  of  employees  engaged  in  interstate 
transportation,  it  follows  that  this  power  cannot  he  defeated  either  by  pro- 
longing the  period  of  service  through  other  requirements  of  the  carriers,  or 
by  the  commanding  of  duties  relating  to  Interstate  and  intrastate  opera 

And  in  Nor.  Pac.  Ry.  v.  Washington,  222  1'.  s.  370,  375,  32  Sup.  Ct  160,  5C 
L.  Ed.  237  (1912),  White,  C.  J.,  applying  the  same  act,  said  : 

"The  train,  although  moving  t  rom  one  point  to  another  in  the  state  of  Wash 
iugton,  was  hauling  merchandise  from  points  outside  of  the  state,  deal 
points  within  the  state,  and  from  points  within  the  state  to  points  In 
Columbia,  as  welt  as  in  carrying  merchandise  which  had  originated 

Of  the  stale,   and    was   in   transit   through    the   state  to   a    foreign   destination. 
This  transportation  was  interstate  commerce,  and  the  train  was  an  i 
train,  despite  the  fact  that  it  may  also  have  been  carrying  some  loeal   fr  light 
11  all  (  Ionst.Tj. — 79 


1250  THE  FEDERAL  GOVERNMENT  (Part  3 


SECOND  EMPLOYERS'  LIABILITY  CASES. 

(Supreme  Court  of  United  States,  1912.     223  U.  S.  1,  32  Sup.  Ct.  1C9,  5e  L. 
Ed.   327,  3S   L.    R.    A.    [N.   S.]   44.) 

[Error  to  the  Supreme  Court  of  Connecticut  and  to  the  United 
States  Circuit  Courts  for  the  Districts  of  Minnesota  and  of  Massachu- 
setts. The  three  cases  were  suits  against  railroads  for  personal  in- 
juries to  employees,  brought  under  the  federal  Employers'  Liability 
Act  of  1908  (35  Stat.  65,  c.  149,  U.  S.  Comp.  St.  Supp.  1911,  p.  1322), 
which  declared  that  "every  common  carrier  by  railroad,  while  en- 
gaging in  commerce  between  any  of  the  several  states  or  territories, 

*  *  *  shall  be  liable  in  damages  [for  injury  or  death  suffered  by 
any  person]  while  he  is  employed  by  such  carrier  in  such  commerce, 

*  *  *  such  injury  or  death  resulting  in  whole  or  in  part  from  the 
negligence  of  any  of  the  officers,  agents,  or  employees  of  such  car- 
rier, or  by  reason  of  any  defect  or  insufficiency,  due  to  its  negligence, 
in  its  cars,  engines,  appliances,  machinery,  track,  roadbed,  works, 
boats,  wharves,  or  other  equipment."  Beneficiaries  of  the  action  were 
designated  in  case  of  death,  and  provision  was  made  for  survival  of 
the  action  to  designated  persons.  The  defences  of  fellow  service,  con- 
tributory negligence,  and  assumed  risk  were  abrogated  or  modified,  as 
indicated  in  the  opinion  below.  The  Connecticut  court  declared  the 
act  invalid  and  the  other  two  courts  upheld  it.] 

Mr.  Justice  Van  Devanter.  *  *  *  Some  propositions  bearing 
upon  the  extent  and  nature  of  [the  federal]  power  [to  regulate  com- 
merce] have  come  to  be  so  firmly  settled  as  no  longer  to  be  open  to 
dispute,  among  them  being  these  : 

1.  The  term  "commerce"  comprehends  more  than  the  mere  ex- 
change of  goods.  It  embraces  commercial  intercourse  in  all  its 
branches,  including  transportation  of  passengers  and  property  by  com- 
mon carriers,  whether  carried  on  by  water  or  by  land. 

2.  The  phrase  "among  the  several  states"  marks  the  distinction,  for 
the  purpose  of  governmental  regulation,  between  commerce  which 
concerns  two  or  more  states  and  commerce  which  is  confined  to  a  sin- 
gle state  and  does  not  affect  other  states, — the  power  to  regulate  the 
former  being  conferred  upon  Congress  and  the  regulation  of  the  lat- 
ter remaining  with  the  states  severally. 

3.  "To  regulate,"  in  the  sense  intended,  is  to  foster,  protect,  control, 
and  restrain,  with  appropriate  regard  for  the  welfare  of  those  who  are 
immediately  concerned  and  of  the  public  at  large. 

4.  This  power  over  commerce  among  the  states,  so  conferred  upon 

Tn  view  of  the  unity  and  indivisibility  of  the  service  of  the  train  crew  ami 
the  paramount  character  of  the  authority  of  Congress  to  regulate  commerce, 
the  act  of  Congress  was  exclusively  controlling." 

As  to  the  scope  of  the  liability  imposed  for  injuries  occurring  to  employees 
during  any  period  of  over-time  under  this  act  see  St.  Louis,  etc.,  Ry.  v.  Mc 
Wbirter,  229  D.  S.  265,  33  Sup.  Ct.  858,  57  L.  Ed. (1913). 


Cll.  18)  EEGDLATION    OF    COMMERCE  1-">1 

Congress,  is  complete  in  itself,  extends  incidentally  to  every  instru- 
ment and  agent  by  which  such  commerce  is  carried  on,  may  be  exert- 
ed to  its  utmost  extent  over  every  part  of  such  commerce,  and  is  sub- 
ject to  no  limitations  save  such  as  are  prescribed  in  the  Constitution. 
But,  of  course,  it  does  not  extend  to  any  matter  or  thing  which  does 
not  have  a  real  or  substantial  relation  to  some  part  of  such  com- 
merce. 

5.  Among  the  instruments  and  agents  to  which  the  power  extends 
are  the  railroads  over  which  transportation  from  one  state  to  another 
is  conducted,  the  engines  and  cars  by  which  such  transportation  is 
effected,  and  all  who  are  in  any  wise  engaged  in  such  transportation, 
whether  as  common  carriers  or  as  their  employees. 

6.  The  duties  of  common  carriers  in  respect  of  the  safety  of  their 
employees,  while  both  are  engaged  in  commerce  among  the  states, 
and  the  liability  of  the  former  for  injuries  sustained  by  the  latter,  while 
both  are  so  engaged,  have  a  real  or  substantial  relation  to  such  com- 
merce, and  therefore  are  within  the  range  of  this  power.  [Citing 
cases.] 

As  is  well  said  in  the  brief  prepared  by  the  late  Solicitor  General : 
"Interstate  commerce — if  not  always,  at  any  rate  when  the  commerce 
is  transportation — is  an  act.  Congress,  of  course,  can  do  anything 
which,  in  the  exercise  by  itself  of  a  fair  discretion,  may  be  deemed  ap- 
propriate to  save  the  act  of  interstate  commerce  from  prevention  or 
interruption,  or  to  make  that  act  more  secure,  more  reliable,  or  more 
efficient.  The  act  of  interstate  commerce  is  done  by  the  labor  of  men 
and  with  the  help  of  things ;  and  these  men  and  things  are  the  agents 
and  instruments  of  the  commerce.  If  the  agents  or  instruments  are 
destroyed  while  they  are  doing  the  act,  commerce  is  stopped  ;  if  the 
agents  or  instruments  are  interrupted,  commerce  is  interrupted ;  if 
the  agents  or  instruments  are  not  of  the  right  kind  or  quality,  com- 
merce in  consequence  becomes  slow  or  costly  or  unsafe  or  otherwise 
inefficient :  and  if  the  conditions  under  which  the  agents  or  instru- 
ments do  the  work  of  commerce  are  wrong  or  disadvantageous,  those 
bad  conditions  may  and  often  will  prevent  or  interrupt  the  act  of  com- 
merce or  make  it  less  expeditious,  less  reliable,  less  economical,  and 
less  secure.  Therefore,  Congress  may  legislate  about  the  agents  and 
instruments  of  interstate  commerce,  and  about  the  conditions  under 
which  those  agents  and  instruments  perform  the  work  of  interstate 
commerce,  whenever  such  legislation  bears,  or,  in  the  exercise  of  a  fair 
legislative  discretion,  can  be  deemed  to  bear,  upon  the  reliability  or 
promptness  or  economy  or  security  or  utility  of  the  interstate  com 
merce  act." 

In  view  of  these  settled  propositions,  it  does  not  admit  of  doubt  that 
the  answer  to  the  first  of  the  questions  before  stated  must  be  that  Con- 
gress, in  the  exertion  of  its  power  over  interstate  commerce,  may  regu 
late  the  relations  of  common  carriers  by  railroad  and  their  employee* 


[252  THE  FEDERAL  GOVERNMENT  (Part  3 

while  both  are  engaged  in  such  commerce,  subject  always  to  the  lim- 
s  prescribed  in  the  Constitution,  and  to  the  qualification  that 
the  particulars  in  which  those  relations  are  regulated  must  have  a  real 
or  substantial  connection  with  the  interstate  commerce  in  which  the 
carriers  and  their  employees  are  engaged. 

We  come,  then,  to  inquire  whether  Congress  has  exceeded  its  pow- 
er in  that  regard  by  prescribing  the  regulations  embodied  in  the  pres- 
ent act.  It  is  objected  that  it  has,  (1)  because  the  abrogation  of  the 
fellow-servant  rule,  the  extension  of  the  carrier's  liability  to  cases  of 
death,  and  the  restriction  of  the  defenses  of  contributory  negligence 
and  assumption  of  risk,1  have  no  tendency  to  promote  the  safety  of  the 
employees,  or  to  advance  the  commerce  in  which  they  are  engaged; 
(2)  because  the  liability  imposed  for  injuries  sustained  by  one  em- 
ployee through  the  negligence  of  another,  although  confined  to  in- 
stances where  the  injured  employee  is  engaged  in  interstate  com- 
merce, is  not  confined  to  instances  where  both  employees  are  so  en- 
gaged.    *     *     * 

Briefly  stated,  the  departures  from  the  common  law  made  by  the 
portions  of  the  act  against  which  the  first  objection  is  leveled  are 
these :  (a)  The  rule  that  the  negligence  of  one  employee  resulting  in 
injury  to  another  was  not  to  be  attributed  to  their  common  employer 
is  displaced  by  a  rule  imposing  upon  the  employer  responsibility  for 
such  an  injury,  as  was  done  at  common  law  when  the  injured  person 
was  not  an  employee ;  (b)  the  rule  exonerating  an  employer  from  li- 
for  injury  sustained  by  an  employee  through  the  concurring 
negligence  of  the  employer  and  the  employee  is  abrogated  in  all  in- 
stances where  the  employer's  violation  of  a  statute  enacted  for  the 
safety  of  his  employees  contributes  to  the  injury,  and  in  other  instanc- 
es is  displaced  by  the  rule  of  comparative  negligence,  whereby  the  ex- 
oneration is  only  from  a  proportional  part  of  the  damages  correspond- 
ing to  the  amount  of  negligence  attributable  to  the  employee ;  (c)  the 
rule  that  an  employee  was  deemed  to  assume  the  risk  of  injury, "even  if 
due  to  the  employer's  negligence,  where  the  employee  voluntarily  en- 
tered or  remained  in  the  service  with  an  actual  or  presumed  knowledge 
of  the  conditions  out  of  which  the  risk  arose,  is  abrogated  in  all  in- 
stances where  the  employer's  violation  of  a  statute  enacted  for  the 
safety  of  his  employees  contributed  to  the  injury;  and  (d)  the  rule  de- 
riving a  right  of  action  for  the  death  of  one  person,  caused  by  the 
ful  act  or  neglect  of  another,  is  displaced  by  a  rule  vesting  such 
a  right  of  action  in  the  personal  representatives  of  the  deceased,  for 
the  benefit  of  designated  relatives. 

uses  were  entirely  abrogated  where  the  employer's  violation  of 

si  at  ute  contributed  to  the  injury,  and  in  other  cases  the  defense  of 

contril  utory  negligence  was  displaced  by  the  rule  of  "comparative  negligence." 

■  of  applying  the  latter  rule,  see  Norfolk,  etc.,  Ry.  v.  Earnest, 

229  r.  s.  u  l,  :;:;  Sup.  Ct  654,  57  L.  Ed. (1913). 


Ch.  18)  REGULATION'   OF   COMMERCE  1253 

Of  the  objection  to  these  changes  it  is  enough  to  observe :     *     *     * 

Second.  The  natural  tendency  of  the  changes  described  is  to  impel 
the  carriers  to  avoid  or  prevent  the  negligent  acts  and  omissions  which 
are  made  the  bases  of  the  rights -of  recovery  which  the  statute  creates 
and  defines  ;  and  as  whatever  makes  for  that  end  tends  to  promote  the 
of  the  employees  and  to  advance  the  commerce  in  which  they 
are  engaged,  we  entertain  no  doubt  that  in  making  those  changes 
Congress  acted  within  the  limits  of  the  discretion  confided  to  it  by  the 
Constitution.  Lottery  Case  (Champion  v.  Ames)  188  U.  S.  321,  353, 
355,  47  L.  Ed.  492,  500,  501,  23  Sup.  Ct.  321 ;  Atlantic  Coast  Line  R. 
Co.  v.  Riverside  Mills,  219  U.  S.  186,  203,  55  L.  Ed.  167,  181,  31  L.  R. 
A.  (N.  S.)  7,  31  Sup.  Ct.  164. 

We  are  not  unmindful  that  that  end  was  being  measurably  attained 
through  the  remedial  legislation  of  the  several  states,  but  that  legisla- 
tion has  been  far  from  uniform,  and  it  undoubtedly  rested  with  Con- 
gress to  determine  whether  a  national  law,  operating  uniformly  in  all 
the  states,  upon  all  carriers  by  railroad  engaged  in  interstate  com- 
merce, would  better  subserve  the  needs  of  that  commerce.  The  Lotta- 
wanna  (Rodd  v.  Heartt),  21  Wall.  55S,  5S1,  582,  22  L.  Ed.  654,  664: 
Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  378,  379,  37  L.  Ed. 
772,  777,  778,  13  Sup.  Ct.  914. 

The  second  objection  proceeds  upon  the  theory  that,  even  although 
Congress  has  power  to  regulate  the  liability  of  a  carrier  for  injuries 
sustained  by  one  employee  through  the  negligence  of  another,  where 
all  are  engaged  in  interstate  commerce,  that  power  does  not  embrace 
instances  where  the  negligent  employee  is  engaged  in  intrastate  com- 
merce. But  this  is  a  mistaken  theory,  in  that  it  treats  the  source  of  the 
injury,  rather  than  its  effect  upon  interstate  commerce,  as  the  criterion 
of  congressional  power.  As  was  said  in  Southern  R.  Co.  v.  United 
States,  222  U.  S.  20,  27,  56  L.  Ed.  72,  32  Sup.  Ct.  2,  that  power  is 
plenary,  and  competently  may  be  exerted  to  secure  the  safety  of  in- 
terstate transportation  and  of  those  who  are  employed  therein,  no  mat- 
ter what  the  source  of  the  dangers  which  threaten  it.  The  present  act, 
unlike  the  one  condemned  in  Emplovers'  Liabilitv  Cases  (Howard  v. 
Illinois  C.  R.  Co.)  207  U.  S.  463,  52  L.  Ed.  297,  28  Sup.  Ct.  141,  deals 
only  with  the  liability  of  a  carrier  engaged  in  interstate  commerce  for 
injuries  sustained  by  its  employees  while  engaged  in  such  commerce. 
And  this  being  so.  it  is  not  a  valid  objection  that  the  act  embraces  in- 
stances where  the  causal  negligence  is  that  of  an  employee  engaged 
in  intrastate  commerce;  for  such  negligence,  when  operating  injuri- 
ously upon  an  employee  engaged  in  interstate  commerce,  has  the  same 
effect  upon  that  commerce  as  if  the  negligent  employee  were  also  en- 
gaged therein.2     *     *     * 

-  Accord:  Watson  v.  St.  Louis,  etc.,  Ky..  1G9  Fed.  942  (1909)  (well  reasoned 
opinion) :  Pedersen  v.  Delaware,  etc,  K.  Co.,  229  U.  S.  146,  33  Sup.  Ct.  C4N 
57  L.  Ed.  (11)1.;). 


1254  THE  FEDERAL  GOVERNMENT  (Part  o 

[Mere  follows  the  extract  printed  ante,  p.  328;   and  the  one  printed 
ante,  p.  950.] 
Judgments  affirmed  or  reversed  accordingly.8 

3  The  first  federal   Employers'   Liability  Act  was   held   inoperative  in   the 

states  because  its  benefits  were  interpreted  by  a  majority  of  the  court  as  not 

s  actually  engaged  in  interstate  commerce,  but  included 

ployees  of  interstate  carriers  whatever  their  occupations.     Employers' 

tj   Cases,  207  U.  S.  463,  49S,  499,  502,  503,  28  Sup.  Ct.  141,  145,  147, 

52  I..  Ed.  297  (1908),  White,  J.,  saying: 

"Without  stopping  to  consider  the  numerous  instances,  where,  although  a 
common  carrier  is  engaged  in  interstate  commerce,  such  carrier  may,  in  the 
nature  of  things,  also  transact  business  not  interstate  commerce,  although 
such  local  business  may  indirectly  be  related  to  interstate  commerce,  a  few 
Illustrations  showing  the  operation  of  the  statute  as  to  matters  wholly  inde- 
pendent of  interstate  commerce  will  serve  to  make  clear  the  extent  of  the 
power  which  is  exerted  by  the  statute.  Take  a  railroad  engaged  in  interstate 
ice,  having  a  purely  local  branch  operated  wholly  within  a  state.  Take 
again  the  same  road  having  shops  for  repairs,  and,  it  may  be,  for  construc- 
tion work,  as  well  as  a  large  accounting  and  clerical  force,  and  having,  it  may 
be,  storage  elevators  and  warehouses,  not  to  suggest,  besides,  the  possibility 
of  its  being  engaged  in  other  independent  enterprises.  Take  a  telegraph  com- 
pany engaged  in  the  transmission  of  interstate  and  local  messages.  Take  an 
express  company  engaged  in  local  as  well  as  in  interstate  business.  Take  a 
trolley  line  moving  wholly  within  a  state  as  to  a  large  part  of  its  business, 
and  yet,  as  to  the  remainder,  crossing  the  state  line.     »     *     • 

"It  remains  only  to  consider  the  contention  *  *  •  that  the  act  is  con- 
stitutional although  it  embraces  subjects  not  within  the  power  of  Congress 
to  regulate  commerce,  because  one  who  engages  in  interstate  commerce  there- 
by submits  all  his  business  concerns  to  the  regulating  power  of  Congress.  To 
state  the  proposition  is  to  refute  it.  It  assumes  that,  because  one  engages 
in  interstate  commerce;  he  thereby  endows  Congress  with  power  not  delegated 
to  it  by  the  Constitution;  in  other  words,  with  the  right  to  legislate  concern- 
ing matters  of  purely  state  concern.  It  rests  upon  the  conception  that  the 
Constitution  destroyed  that  freedom  of  commerce  which  it  was  its  purpose  to 
preserve,  since  it  treats  the  right  to  engage  in  interstate  commerce  as  a  priv- 
ilege which  cannot  be  availed  of  except  upon  such  conditions  as  Congress  may 
prescribe,  even  although  the  conditions  would  be  otherwise  beyond  the  power 
of  Congress.  It  is  apparent  that  if  the  contention  were  well  founded  it  would 
extend  the  power  of  Congress  to  every  conceivable  subject,  however  inherently 
local,  would  obliterate  all  the  limitations  of  power  imposed  by  the  Constitu- 
tion, and  would  destroy  the  authority  of  the  states  as  to  all  conceivable  mat- 
ters which,  from  the  beginning,  have  been,  and  must  continue  to  be,  under 
their  control  so  long  as  the  Constitution  endures." 

The  act  was  held  valid,  however,  as  to  carriers  in  the  District  of  Columbia 
and  the  territories.  El  Paso,  etc.,  Rv.  v.  Gutierrez.  215  U.  S.  87,  30  Sup.  Ct. 
21,  r.l  I,.  Ed.  10G  (1909). 

in  Pedersen  v.  Del.,  Lack.  &  W.  Ry.,  229  U.  S.  146,  151,  152,  154,  155,  33 

648,  G49.  G50.  57  L  Ed.  (1913),  the  question  was  discussed,  when 

.in  employee  of  a  carrier  was  engaged  in  interstate  commerce,  within  the 
second  act.  Plaintiff,  while  carrying  bolts  from  a  tool  car  to  a  railroad  bridge, 
to  be  used  a  few  hours  later  in  repairing  the  bridge,  was  negligently  injured 
by  an  intrastate  passenger  train  on  the  same  road.  It  was  held  he  could  re- 
under  the  act,  Van  Devanter,  J.,  saying: 

"Tracks  and  bridges  are  as  indispensable  to  interstate  commerce  by  rail- 
read  as  are  engines  and  cars;  and  sound  economic  reasons  unite  with  settled 
rules  of  law  in  demanding  that  all  of  these  instrumentalities  be  kept  in  repair. 
"  The  work  of  keeping  such  instrumentalities  in  a  proper  state  of  re- 
pair while  thus  used  is  so  closely  related  to  such  commerce  as  to  be  in  prac- 
tice and  in  legal  contemplation  a  part  of  it.  The  contention  to  the  contrary 
proceeds  upon  the  assumption  that  interstate  commerce  by  railroad  can  be 
-•■pa rated  into  its  several  elements,  and  the  nature  of  each  determined  regard- 
less of  its  relation  to  others  or  to  the  business  as  a  whole.     But  this  is  an  er- 


CIl.  18)  REGULATION    OF    COMMERCE  1-~>~> 

nmeous  assumption.  The  true  test  always  Is:  Is  the  work  In  question  a  parr 
of  the  interstate  commerce  In  which  the  carrier  Is  engaged?  *  *  •  Of 
course,  we  arc  not  here  concerned  with  the  COl  I   I  ra<  Its,  brld 

gines,  or  cars  which  have  not  as  yet  become  Instrumentalities  In  snch  com- 
merce, but  only  with  the  work  of  maintaining  them  in  proper  condition  after 
they  have  become  such  instrumentalities  and  during  their  use  as  such. 

"True,  a  track  or  bridge  may  be  used  in  both  interstate  and  intrastate  com- 
merce, but  when  it  Is  so  used  It  is  none  the  less  an  Instrumentality  of  the 
former;    nor  does  its  double  use  prevent  the  employment  of  those  who  are 
:  in  its  repair  or  in  keeping  it  in  suitable  condition  for  use  from  being 
tin  employment  in  interstate  commerce. 

"The  point  is  made  that  the  plaintiff  was  not,  at  the  time  of  his  injury. 
■  1  in  removing  the  old  girder  and  inserting  the  new  one,  but  was  merely 
carrying  to  the  place  where  that  work  was  to  be  done  some  of  the  materials 
to  be  used  therein.  We  think  there  is  no  merit  in  this.  It  was  necessary  to 
the  repair  of  the  bridge  that  the  materials  be  at  hand,  and  the  act  of  taking 
them  there  was  a  part  of  that  work.  In  other  words,  it  was  a  minor  task 
which  "as  essentially  a  part  of  the  larger  one,  as  Is  the  case  when  an  engineer 
takes  his  engine  from  the  roundhouse  to  the  track  on  which  are  the  cars  he 
is  to  haul  in  interstate  commerce." 

I. .imar,  J.  (with  whom  concurred  Holmes  and  Lurton,  JJ.)  dissented,  saying: 

"When  Congress  itself  limits  the  operation  of  the  statute  to  persons  injured 
while  employed  in  Interstate  commerce,  the  statute  does  not  extend  to  its  in- 
eidents.  and  is  confined  to  transportation.  It  does  not  Include  manufacturing, 
building,  repairing,  for  they  are  not  commerce,  whether  performed  by  a  private 
person,  a  railroad,  or  its  agents.  It  is  conceded  that  a  line  must  be  drawn 
between  those  employees  of  the  carrier  who  are  employed  In  commerce  and 
those  engaged  in  other  departments  of  its  business.  It  must  be  drawn  so  as 
to  take  in,  on  one  side,  those  engaged  in  transportation,  which  is  commerce: 
otherwise  there  is  no  logical  reason  why  it  should  not  include  every  agent 
of  the  company;  for  there  is  no  other  test  by  which  to  determine  when  he 
must  sue  under  the  state  statute  and  when  under  the  act  of  Congress ;  for  if 
a  man  on  his  way  to  repair  a  bridge  is  engaged  in  interstate  commerce,  then 
the  man  in  the  shop  who  made  the  bolts  to  be  used  in  repairing  the  bridge 
is  likewise  so  engaged.  If  they  are.  then  the  man  who  paid  them  their 
and  the  bookkeeper  who  entered  those  payments  in  the  accounts,  are  similarly 
engaged.  For  they  are  all  employed  by  the  carrier,  and  the  work  of  each 
contributes  to  its  success  in  hauling  freight  and  passengers." 

See,  also.  St.  Louis,  etc.,  Ry.  v.  Scale.  229  D.  S.  156,  33  Sup.  Ct.  651,  57  L. 

Kd.  (1913)  (act  includes  employee  who  takes  numbers  of.  labels,  and  seals 

up  cars  in  freight  yard) ;  I.amphere  v.  Oregon,  etc.,  Co.,  193  Fed.  248  (1911), 
reversed  in  196  Fed.  336,  16  C.  C.  A.  156  (1912);  and  cases  cited  in  both 
opinions. 

The  present  federal  act  has  superseded  all  state  legislation  prescribing  the 
liability  of  carriers  for  injuries  to  their  employees  while  engaged  In  interstate 
commerce,  and  if  the  federal  act  affords  no  remedy  for  such  an  injury,  none 
exists  anywhere.     Michigan  Cent.  Ry.  v.  Vreeland,  227  U.  S.  59.  :;::  Sup.  ct. 

192.  57  L.  Ed.  (1913).     The  first  act,  being  invalid  as  to  the  affirmative 

regulation  intended  by  Congress,  likewise  failed  to  indicate  an  intention  to 
deprive  the  states  of  power  over  any  part  of  Its  subiect-matier.  Chicago, 
etc.,  By.  v.  Hackett,  228  U.  S.  559,  566,  567,  33  Sup.  Ct.  5S1,  57  L.  Ed.  — 
(1913). 

The  federal  act  forbids  any  contracting  out  of  It  between  employer  and  em- 
ployees, and  invalidates  all  existing  contracts  providing  a  different  remedy 
for  injured  employees.  Philadelphia,  etc.,  Ry.  v.  Schubert,  224  U.  S.  603,  32 
Sup.  Ct.  5S9,  56  L.  Ed.  911  (1912). 


1256  THE  FEDERAL  GOVERNMENT  (Part  3 

ADAIR  v.  UNITED  STATES  (1908)  208  U.  S.  161,  176,  178-180, 
188,  189,  190,  191,  28  Sup.  Ct.  277,  281-283,  286,  2S7,  52  L.  Ed.  436, 
13  Ami.  Cas.  764,  Mr.  Justice  Harlan  (see  p.  473,  ante,  for  the  facts 
of  this  .  i 

[After  holding  that  the  statute  violated  the  fifth  amendment — ante 
pp.  474,  475  :]  "But  it  is  suggested  that  the  authority  to  make  it  a  crime 
for  an  agent  or  officer  of  an  interstate  carrier,  having  authority  in  the 
premises  from  his  principal,  to  discharge  an  employee  from  service  to 
such  carrier,  simply  because  of  his  membership  in  a  labor  organiza- 
tion, can  be  referred  to  the  power  of  Congress  to  regulate  interstate 
commerce,  without  regard  to  any  question  of  personal  liberty  or  right 
of  property  arising  under  the  fifth  amendment.  This  suggestion  can 
have  no  bearing  in  the  present  discussion  unless  the  statute,  in  the 
particular  just  stated,  is,  within  the  meaning  of  the  Constitution,  a 
ition  of  commerce  among  the  states.     *     *     * 

"Manifestly,  any  rule  prescribed  for  the  conduct  of  interstate  com- 
merce, in  order  to  be  within  the  competency  of  Congress  under  its 
power  to  regulate  commerce  among  the  states,  must  have  some  real  or 
substantial  relation  to  or  connection  with  the  commerce  regulated. 
But  what  possible  legal  or  logical  connection  is  there  between  an  em- 
ployee's membership  in  a  labor  organization  and  the  carrying  on  of  in- 
terstate commerce  ?  Such  relation  to  a  labor  organization  cannot  have, 
in  itself  and  in  the  eye  of  the  law,  any  bearing  upon  the  commerce 
hich  the  employee  is  connected  by  his  labor  and  services.  Labor 
associations,  we  assume,  are  organized  for  the  general  purpose  of  im- 
proving or  bettering  the  conditions  and  conserving  the  interests  of  its 
members  as  wage-earners, — an  object  entirely  legitimate  and  to  be 
commended  rather  than  condemned.  But  surely  those  associations,  as 
labor  organizations,  have  nothing  to  do  with  interstate  commerce,  as 
such.  One  who  engages  in  the  service  of  an  interstate  carrier  will,  it 
must  be  assumed,  faithfully  perform  his  duty,  whether  he  be  a  mem- 
ber or  not  a  member  of  a  labor  organization.  His  fitness  for  the  posi- 
tion  in  which  he  labors  and  his  diligence  in  the  discharge  of  his  duties 
cannot,  in  law  or  sound  reason,  depend  in  any  degree  upon  his  being 
or  not  being  a  member  of  a  labor  organization.  It  cannot  be  assumed 
that  his  fitness  is  assured,  or  his  diligence  increased,  by  such  member- 
ship, or  that  he  is  less  fit  or  less  diligent  because  of  his  not  being  a 
member  of  such  an  organization.  It  is  the  employee  as  a  man,  and 
not  as  a  member  of  a  labor  organization,  who  labors  in  the  service  of 
an  interstate  carrier. 

"Will  it  be  said  that  the  provision  in  question  had  its  origin  in  the 
apprehension,  on  the  part  of  Congress,  that,  if  it  did  not  show  more 
consideration  for  members  of  labor  organizations  than  for  wage-earn- 
ers who  were  not  members  of  such  organizations,  or  if  it  did  not  in- 
sert in  the  statute  some  such  provision  as  the  one  here  in  question, 
members  of  labor  organizations  would,  by  illegal  or  violent  measures, 


Ch.  18)  REGULATION    OF   COMMERCE  l-">7 

interrupt  or  impair  the  freedom  of  commerce  among  the  states  ?  We 
will  not  indulge  in  any  such  conjectures,  nor  make  them,  in  whole  or 
in  part,  the  hasis  of  our  decision.  We  could  not  do  so  consistently 
with  the  respect  due  to  a  co-ordinate  department  of  the  government. 
We  could  not  do  so  without  imputing  to  Congress  the  purpose  to  ac- 
cord to  one  class  of  wage-earners  privileges  withheld  from  another 
class  of  wage-earners,  engaged,  it  may  he,  in  the  same  kind  of  labor 
and  serving  the  same  employer.  Nor  will  we  assume,  in  our  consider- 
ation of  this  case,  that  members  of  labor  organizations  will,  in  any 
considerable  numbers,  resort  to  illegal  methods  for  accomplishing  any 
particular  object  they  have  in  view. 

"Looking  alone  at  the  words  of  the  statute  for  the  purpose  of  ascer- 
taining its  scope  and  effect,  and  of  determining  its  validity,  we  hold 
that  there  is  no  such  connection  between  interstate  commerce  and 
membership  in  a  labor  organization  as  to  authorize  Congress  to  make 
it  a  crime  against  the  United  States  for  an  agent  of  an  interstate  car- 
rier to  discharge  an  employee  because  of  such  membership  on  his  part. 
If  such  a  power  exists  in  Congress  it  is  difficult  to  perceive  why  it 
might  not,  by  absolute  regulation,  require  interstate  carriers,  under 
penalties,  to  employ,  in  the  conduct  of  its  interstate  business,  only 
members  of  labor  organizations,  or  only  those  who  are  not  members 
of  such  organizations, — a  power  which  could  not  be  recognized  as  ex- 
isting under  the  Constitution  of  the  United  States.  No  such  rule  of 
criminal  liability  as  that  to  which  we  have  referred  can  be  regarded  as, 
in  any  just  sense,  a  regulation  of  interstate  commerce."     *     *     * 

[Moody,  J,,  took  no  part  in  the  decision  of  the  case.] 

Mr.  Justice  McKenna,  dissenting: 

"Counsel  makes  a  great  deal  of  the  difference  between  direct  and  in- 
direct effect  upon  interstate  commerce,  and  assert  that  §  10  is  an  indi- 
rect regulation  at  best,  and  not  within  the  power  of  Congress  to  enact. 
Many  cases  are  cited,  which,  it  is  insisted,  sustain  the  contention.  I 
cannot  take  time  to  review  the  cases.  I  have  already  alluded  to  the 
contention,  and  it  is  enough  to  say  that  it  gives  too  much  isolation  to 
§  10.  The  section  is  part  of  the  means  to  secure  and  make  effective 
the  scheme  of  arbitration  set  forth  in  the  statute.  The  contention,  be- 
sides, is  completely  answered  by  Howard  v.  Illinois  C.  R.  Co.  [207  U. 
S.  463.  28  Sup.  Ct.  141,  52  L.  Ed.  297].  In  that  case,  as  we  have 
seen,  the  power  of  Congress  was  exercised  to  establish  a  rule  of 
liability  of  a  carrier  to  his  employees  for  personal  injuries  received 
in  his  service.  It  is  manifest  that  the  kind  or  extent  of  such  liabil- 
ity is  neither  traffic  nor  intercourse,  the  transit  of  persons  nor  the 
carrying  of  things.  Indeed,  such  liability  may  have  wider  applica- 
tion than  to  carriers.  It  may  exist  in  a  factory;  it  may  exist  on  a 
farm ;  and,  in  both  places,  or  in  commerce,  its  direct  influence  might 
be  hard  to  find  or  describe.  And  yet  this  court  did  not  hesitate  to 
pronounce  it  to  be  within  the  power  of  Congress  to  establish.     'The 


12.18  THE    FEDERAL   GOVERNMENT  (Part  3 

primary  object,'  it  was  said  in  Johnson  v.  Southern  P.  Co.,  196 
U.  S.  1,  49  L.  Ed.  363,  25  Sup.  Ct.  158,  of  the  Safety  Appliance 
Act,  'was  to  promote  the  public  welfare  by  securing  the  safety  of  em- 
ployees and  travelers.'  The  rule  of  liability  for  injuries  is  even  more 
roundabout  in  its  influence  on  commerce,  and  as  much  so  as  the  prohi- 
bition of  §  10.  To  contend  otherwise  seems  to  me  to  be  an  oversight 
of  the  proportion  of  things.  A  provision  of  law  which  will  prevent,  or 
tend  to  prevent,  the  stoppage  of  every  wheel  in  every  car  of  an  entire 
railroad  system,  certainly  has  as  direct  influence  on  interstate  com- 
merce as  the  way  in  which  one  car  may  be  coupled  to  another,  or  the 
rule  of  liability  for  personal  injuries  to  an  employee."     *     *     * 

Mr.  Justice  Holmes,  dissenting: 

"I  also  think  that  the  statute  is  constitutional,  and,  but  for  the  deci- 
sion of  my  brethren,  I  should  have  felt  pretty  clear  about  it. 

"As  we  all  know,  there  are  special  labor  unions  of  men  engaged  in 
the  service  of  carriers.  These  unions  exercise  a  direct  influence  upon 
the  employment  of  labor  in  that  business,  upon  the  terms  of  such  em- 
ployment, and  upon  the  business  itself.  Their  very  existence  is  di- 
rected specifically  to  the  business,  and  their  connection  with  it  is,  at 
least,  as  intimate  and  important  as  that  of  safety  couplers,  and,  I 
should  think,  as  the  liability  of  master  to  servant, — matters  which,  it 
is  admitted,  Congress  might  regulate,  so  far  as  they  concern  commerce 
among  the  states.  I  suppose  that  it  hardly  would  be  denied  that  some 
of  the  relations  of  railroads  with  unions  of  railroad  employees  are 
closely  enough  connected  with  commerce  to  justify  legislation  by  Con- 
gress. If  so,  legislation  to  prevent  the  exclusion  of  such  unions  from 
employment  is  sufficiently  near. 

"The  ground  on  which  this  particular  law  is  held  bad  is  not  so  much 
that  it  deals  with  matters  remote  from  commerce  among  the  states,  as 
that  it  interferes  with  the  paramount  individual  rights  secured  by  the 
fifth  amendment."  *  *  *  [The  remainder  of  the  opinion,  upon 
this  point,  appears  ante,  p.  477.]  * 

i  In  Patterson  v.  The  Eudora,  190  U.  S.  169,  23  Sup.  Ct.  821,  47  L.  Ed.  1002 
(1903),  it  was  held  that  Congress  could  forbid  the  payment  of  advance  wages 
to  any  seaman  shipping  at  our  ports  upon  any  vessel,  foreign  or  domestic,  en- 
gaged  in  interstate  or  foreign  commerce. 

Compare  Federated,  etc.,  Ry.  Ass'n  v.  New  So.  Wales  Ry.  Ass'n,  4  Com.  L. 
Rep.  488,  544,  545  (Australia,  190G)  (discussing  limitations  of  federal  govern 
ment  in  regulating  wages  and  terms  of  engagement  of  persons  employed  in 
interstate  railway  traffic  on  state-owned  railways). 


Ch.  18)  REGULATION    OF    COMMERCE  12539 


NORTHERN  PAC.  RY.  CO.  v.  WASHINGTON. 

I  Supreme  Court  of  Uuited  States,  19)2.     222  U.  S.  37U,  32  Sup.  Ct  1G0,  00  L. 
Ed.  237.) 

[  Error  to  the  Supreme  Court  of  Washington.  On  March  4,  1907 
(34  Stat.  1415,  c.  2939,  U.  S.  Comp.  St.  Supp.  1911,  p.  1321),  was  ap- 
proved the  federal  Hours  of  Service  Act,  regulating  the  hours  of 
labor  of  interstate  railroad  employees  engaged  in  moving  trains.  The 
act  provided  it  should  take  effect  one  year  after  its  passage.  On 
June  12,  1907  (Laws  1907,  c.  20)  a  law  of  the  state  of  Washington 
became  effective,  regulating  the  hours  of  service  of  railway  em- 
ployees in  the  state.  The  state  courts  upheld  the  award  of  a  penalty 
against  defendant  company  for  violating  the  state  law  in  July,  1907, 
in  moving  a  local  train  carrying  some  interstate  freight,  on  the  ground 
the  federal  law  was  not  yet  operative.] 

Mr.  Chief  Justice  White.  *  *  *  Conceding  the  paramount 
power  of  Congress,  the  operative  force  of  the  state  law  was  solely 
maintained  over  the  interstate  commerce  in  question  because  of  the 
provision  of  the  act  of  Congress  providing  that  it  should  not  take 
effect  until  one  year  after  its  passage.  As  a  result,  the  act  was  treated 
as  not  existing  until  the  expiration  of  a  year  from  its  passage.    *    *    * 

But  we  are  of  opinion  that  this  view  is  not  compatible  with  the  para- 
mount authority  of  Congress  over  interstate  commerce.  It  is  ele- 
mentary, and  such  is  the  doctrine  announced  by  the  cases  to  which  the 
court  below  referred,  that  the  right  of  a  state  to  apply  its  police  power 
for  the  purpose  of  regulating  interstate  commerce,  in  a  case  like  this, 
exists  only  from  the  silence  of  Congress  on  the  subject,  and  ceases 
when  Congress  acts  on  the  subject,  or  manifests  its  purpose  to  call  into 
play  its  exclusive  power.  This  being  the  conceded  premise  upon 
which  alone  the  state  law  could  have  been  made  applicable,  it  results 
that  as  the  enactment  by  Congress  of  the  law  in  question  was  an  as- 
sertion of  its  power,  by  the  fact  alone  of  such  manifestation  that  sub- 
ject was  at  once  removed  from  the  sphere  of  the  operation  of  tbe 
authority  of  the  state.  To  admit  the  fundamental  principle  and  yet 
to  reason  that  because  Congress  chose  to  make  its  prohibitions  take 
effect  only  after  a  year,  the  matter  with  which  Congress  dealt  re- 
mained subject  to  state  power,  is  to  cause  the  act  of  Congress  to  de- 
stroy itself;  that  is,  to  give  effect  to  the  will  of  Congress  as  embodied 
in  the  postponing  provision  for  the  purpose  of  overriding  and  render- 
ing ineffective  the  expression  of  the  will  of  Congress  to  bring  the 
subject  within  its  control, — a  manifestation  arising  from  the  mere 
fact  of  the  enactment  of  the  statute.     *     *     * 

But  if  we  pass  these  considerations  and  consider  the  issue  before 
us  as  one  requiring  merely  an  interpretation  of  the  statute,  we  are  of 
opinion  that  it  becomes  manifest  that  it  would  cause  the  statute  to 
destrov  itself  to  give  to  the  clause  postponing  its  operation   for  one 


jo^q  THE  FEDERAL  GOVERNMENT  (Part  3 

he  meaning  which  must  be  affixed  to  it  in  order  to  hold  that, 
during  the  year  of  postponement,  state  police  laws  applied.  In  the 
first  place,  no  conceivable  reason  has  been,  or  we  think  can  be,  sug- 
for  the  postponing  provision,  if  it  was  contemplated  that  the 
tions  of  state  laws  should  apply  in  the  meantime.  This  is  true 
e  if  it  be  that  it  was  contemplated  that  the  subject  dealt  with 
should  be  controlled  during  the  year  by  state  laws,  the  postponement 
of  the  prohibitions  of  the  act  could  accomplish  no  possible  purpose. 
This  is  well  illustrated  by  this  case,  where,  by  the  ruling  below,  a 
state  regulation  substantially  similar  to  that  contained  in  the  act  of 
Congress  is  made  applicable.  In  the  second  place,  the  obvious  sug- 
gestion is  that  the  purpose  of  Congress  in  giving  time  was  to  enable 
the  necessary  adjustments  to  be  made  by  the  railroads  to  meet  the 
new  conditions  created  by  the  act, — a  purpose  which  would  of  course 
be  frustrated  by  giving  to  the  provision  as  to  postponement  a  signifi- 
cance which  would  destroy  the  very  reason  which  caused  it  to  be 
enacted.  Finally,  the  convictions  which  arise  from  the  fact  of  the 
postponement  are  made  plain  by  a  report  on  the  bill,  made  to  the 
House  of  Representatives  by  the  Committee  on  Interstate  and  For- 
eign Commerce,  wherein  it  was  said  (Report  No.  7641,  dated  Feb- 
ruary 16,  1907,  p.  6) : 

"Owing  to  the  probable  necessity  of  changing  in  some  instances 
division  points,  entailing  the  removal  of  employees,  and  to  permit 
ample  time  to  readjust  themselves  to  the  requirements  of  the  law,  it  is 
not  to  become  operative  for  one  year  after  its  approval." 

Judgment  reversed.1 

i  In  Southern  Ry.  v.  Reid,  222  U.  S.  424,  436,  437,  32  Sup.  Ct.  140,  142,  56 
L.  Ed.  257  (1012),  McKenua,  J.,  .said: 

"It  is  well  settled  that  if  the  state  and  Congress  have  a  concurrent  power, 
that  of  the  state  is  superseded  when  the  power  of  Congress  is  exercised.    The 
question  occurs:     To  what  extent  and  how  directly  must  it  be  exercised  to 
have  such  effect?    It  was  decided  iu  Missouri  P.  R.  Co.  v.  Larabee  Flour  Mills 
Co.,  211  U.  S.  612,  53  L.  Ed.  352,  29  Sup.  Ct.  214,  that  the  mere  creation  of  the 
Interstate  Commerce  Commission  and  the  grant  to  it  of  a  large  measure  of 
control  over  interstate  commerce  does  not,  in  the  absence   of  action   by   it, 
change  the  rule  that  Congress  by  nonaction  leaves  power  in  the  states  over 
merely  incidenta)  matters.     'In  other  words,'  and  we  quote  from  the  opinion, 
re  giant  by  Congress  to  the  Commission  of  certain  national  powers  in 
respect  to  interstate  commerce  does  not  of  itself,  and  in  the  absence  of  ac- 
tion by   the  Commission,  interfere  with  the  authority  of  the  state  to  inaUe 
those  regulations  conducive  to   the  welfare  and  convenience  of  its  citizens. 
*     •     *     Dntil  specific  action  by  Congress  or  the  Commission,  the  control  of 
the  state  over  those  incidental  matters  remains  undisturbed.'    The  duty  which 
in  the  state  court  was  the  duty  of  a  railroad  company  engaged 
in  interstate  eninmerce  to  afford  equal  local  switching  service  to  its  shippers, 
notwithstanding  the  cars  concerning  which  the  service  was  claimed  were  even- 
cl  in  interstate  commerce.    This  duty  was  declared  to  be  a 
-law  duty  which  the  state  might,  'at  least,  iu  the  absence  of  congres- 
i,  compel  a  carrier  to  discharge.' 
"The  principle  of  that  case,  therefore,  requires  us  to  find  specific  action  ei- 
ther b  i  the  interstate  commerce  act,  or  by  the  Commission,  cov- 
ering  the  matters  which  the  statute  of  North  Carolina  attempts  to  regulate." 
rights  under  state  laws  have  been  held  to  be  super- 
seded i.  .illations  are:     Texas  &  Pac.  Ry.  v.  Abilene  Oil  Co.,  204 


Ch.  18)  REGULATION    OF    COMMERCE  12G1 


SECTION  7.— FEDERAL  MARITIME  AUTHORITY* 


THE  DANIEL  BALL  (1871)  10  Wall.  557,  563,  564,  19  L.  Ed. 
999,  Mr.  Justice  Field  (holding  Grand  river,  flowing  into  Lake 
Michigan  after  a  course  wholly  within  the  state  of  Michigan,  to  he  a 
"navigable  water  of  the  United  States,"  within  a  statute  requiring 
steamers  upon  such  waters  to  have  federal  licenses) : 

"Upon  [this]  question  we  entertain  no  doubt.  The  doctrine  of  the 
common  law  as  to  the  navigability  of  waters  has  no  application  in 
this  country.  Here  the  ebb  and  flow  of  the  tide  do  not  constitute 
the  usual  test,  as  in  England,  or  any  test  at  all  of  the  navigability  of 
waters.  There  no  waters  are  navigable  in  fact,  or  at  least  to  any 
considerable  extent,  which  are  not  subject  to  the  tide,  and  from  this 
circumstance  tide  water  and  navigable  water  there  signify  substantially 
the  same  thing.  But  in  this  country  the  case  is  widely  different. 
Some  of  our  rivers  are  as  navigable  for  many  hundreds  of  miles  above 
as  they  are  below  the  limits  of  tide  water,  and  some  of  them  are  navi- 
gable for  great  distances  by  large  vessels,  which  are  not  even  affected 
bv  the  tide  at  any  point  during  their  entire  length.  The  Genesee  Chief, 
12  How.  457,  13  L.  Ed.  1058;  Hine  v.  Trevor,  4  Wall.  555,  18  L.  Ed. 
451.  A  different  test  must,  therefore,  be  applied  to  determine  the 
navigability  of  our  rivers,  and  that  is  found  in  their  navigable  capaci- 
ty. Those  rivers  must  be  regarded  as  public  navigable  rivers  in  law 
which  are  navigable  in  fact.  And  they  are  navigable  in  fact  when  they 
are  used,  or  are  susceptible  of  being  used,  in  their  ordinary  condition, 
as  highways  for  commerce,  over  which  trade  and  travel  are  or  may  be 
conducted  in  the  customary  modes  of  trade  and  travel  on  water.  And 
they  constitute  navigable  waters  of  the  United  States  within  the  mean- 
ing of  the  acts  of  Congress,  in  contradistinction  from  the  navigable 
waters  of  the  states,  when  they  form  in  their  ordinary  condition  by 

U.  S.  426,  27  Sup.  Ct.  350,  51  L.  Ed.  553,  9  Ann.  Cas.  1075  (1007)  (recovery  of 
i   charge  from  carrier) ;    Robinson  v.  B.  &  O.  Ry.,  222  U.  S.  506,  32 
Sup.  Ct.  114,  56  L.  Ed.  2SS  (1012)  (same);  So.  Ry.  v.  Reld,  above  cited 
for  delay  in  shipment);   Baltimore  &  O.  Ry.  v.  U.  S.,  215  D.  S.  181,  30 
nil,  5i  £,.  Ed.  292  (1910)  (car  discrimination).     See  also  Michigan  Cent  Ry. 
v.  Vreeland,  ante,  p.  1255,  note.    Compare  L.  &  N.  Ry.  v.  Cool;  Co.,  223  U.  S. 
70,  52  Sup.  ct.   ISO,  50  L.  Ed.  355  (1912),  and  Galveston,  etc.,  Ry.  v.  R 
223  U.  S.  481,  52  Sup.  Ct  205,  56  L.  Ed.  516  (1912). 

l'o\v;.i:  oi'  Co.\'i;ni:ss  OVER  Commkuii:  wun   INDIAN  TRIBES. — F   i 

orer  this  co  .  though  conducted  wholly  within  the  borders  of  a  single 

state,  is  as  complete  as  the  control  over  commerce  that  is  inters) 
See  the  note,  ante,  p.  1061,  under  Gibbons  v.  Ogden  :    Ex  parte  Webb,  225  r.  s 
663,  32  sup.  Ct  769,  56  L.  Ed.  12  is  (1912)  (cases);  and  United  states  v.  P 
229  I  .  s.  226,  33  Sup.  Ct.  630,  57  L.  Ed.  —  (1913)  (cases). 

•Some  <>t'  the  cases  in  this  section  logically  belong  under  Jurisdiction  of  Fed- 
eral Courts,  Chapter  XX.  section  l.  post,  but  they  are  placed  here  for  reason  ■ 

of  convenient i  account  of  their  Intimate  connection  with  the  federal  sub 

stunt  no  power  over  maritime  matters. 


1262  THE   FEDERAL  GOVERNMENT  (Part  3 

themselves,  or  by  uniting-  with  other  waters,  a  continued  highway 
over  which  commerce  is  or  may  be  carried  on  with  other  states  or 
foreign  countries  in  the  customary  modes  in  which  such  commerce  is 
conducted  by  water. 

"If  we  apply  this  test  to  Grand  river,  the  conclusion  follows  that  it 
must  be  regarded  as  a  navigable  water  of  the  United  States.  From  the 
conceded  facts  in  the  case  the  stream  is  capable  of  bearing  a  steamer 
of  one  hundred  and  twenty-three  tons  burden,  laden  with  merchandise 
and  passengers,  as  far  as  Grand  Rapids,  a  distance  of  forty  miles  from 
its  mouth  in  Lake  Michigan.  And  by  its  junction  with  the  lake  it 
forms  a  continued  highway  for  commerce,  both  with  other  states  and 
with  foreign  countries,  and  is  thus  brought  under  the  direct  control  of 
Congress  in  the  exercise  of  its  commercial  power. 

"That  power  authorizes  all  appropriate  legislation  for  the  protection 
or  advancement  of  either  interstate  or  foreign  commerce,  and  for  that 
purpose  such  legislation  as  will  insure  the  convenient  and  safe  naviga- 
tion of  all  the  navigable  waters  of  the  United  States,  whether  that 
legislation  consists  in  requiring  the  removal  of  obstructions  to  their 
use,  in  prescribing  the  form  and  size  of  the  vessels  employed  upon 
them,  or  in  subjecting  the  vessels  to  inspection  and  license,  in  order 
to  insure  their  proper  construction  and  equipment.  'The  power  to 
regulate  commerce,'  this  court  said  in  Gilman  v.  Philadelphia,  3  Wall. 
724,  18  L.  Ed.  96  'comprehends  the  control  for  that  purpose,  and  to 
the  extent  necessary,  of  all  navigable  waters  of  the  United  States 
which  are  accessible  from  a  state  other  than  those  in  which  they  lie. 
For  this  purpose  they  are  the  public  property  of  the  nation,  and  subject 
to  all  the  requisite  legislation  of  Congress.'  "  1 

[The  remainder  of  this  case  is  printed  ante,  p.  1069.] 

i  Canals,  constructed  by  a  state  wholly  within  its  borders,  constitute  nav- 
igable waters  of  the  United  .States  if  connecting  with  such  waters,  and  are 
subject  to  the  federal  admiralty  jurisdiction.  Ex  parte  Boyer,  109  U.  S.  629, 
:;  Sup.  Ct.  434,  27  L.  Ed.  1056  (18S4);  The  Robert  W.  Parsons,  191  U.  S.  17, 
24   Sup.  <t.  8,  48  L.  Ed.  7::  (1903)  (Erie  canal). 

In  The  Montello,  20  Wall.  430,  440-443,  22  L.  Ed.  391  (1874),  Davis,  J.,  said 
the  Fox  river  a  navigable  water  of  the  United  States)  : 

"It  is  true,  without  the  improvements  by  locks,  canals,  and  dams,  Fox  river, 
its  entire  length,  could  not  be  navigated  by  steamboats  or  sail  vessels, 
but  it  is  equally  true  that,  it  formed,  in  connection  with  the  Wisconsin,  one 
of  the  earliest  and  most  important  channels  of  communication  between  the 
Upper  Mississippi  and  the  lakes.  *  *  *  In  more  modern  times,  and  since 
lement  of  the  country,  and  before  the  improvements  resulting  in  an  un- 
broken navigation  were  undertaken,  a  large  interstate  commerce  has  been  suc- 
cessfully carried  on  through  this  channel.  This  was  done  by  means  of  Dur- 
ham boats,  which  were  vessels  from  seventy  to  one  hundred  feet  in  length, 
with  n  am,  and  drew  when  loaded  two  to  two  and  one-half  feet 

of  water.  These  boats,  propelled  by  animal  power,  were  able  to  navigate  the 
entire  length  of  Fox  river,  with  the  aid  of  a  few  portages,  and  would  readily 
carry  a  very  con  Ldi  rable  tonnage.     *     *     * 

"The  true  test  of  the  navigability  of  a  stream  does  not  depend  on  the  mode 
by  which  commerce  is.  or  may  be,  conducted,  nor  the  difficulties  attending 
navigation.  If  this  were  so.  the  public  would  be  deprived  of  the  use  of  many 
of  the  large  rivers  of  the  country  over  which  rafts  of  lumber  of  great  value 
are  constantly  taken  to  market.     It  would  be  a  narrow  rule  to  hold  that  in 


Ch.  18)  UK'ilJLATION    OF    COMMHBCH  1263 

SHERLOCK  v.  ALLING  (1876)  93  U.  S.  99,  101-104,  23  L.  Ed 
819,  Mr.  Justice  Field  (upholding  an  Indiana  statute  imposing  lia- 
bility for  tortious  death,  as  applied  to  the  owner  of  a  vessel  whose  neg- 
ligent management  caused  the  death  of  a  passenger  in  a  collision  on 
the  Ohio  river  within  Indiana) : 

"It  is  contended  that  the  statute  of  Indiana  creates  a  new  liability, 
and  could  not,  therefore,  be  applied  to  cases  where  the  injuries  com- 
plained of  were  caused  by  marine  torts,  without  interfering  with  the 
exclusive  regulation  of  commerce  vested  in  Congress.  The  position  of 
the  defendants,  as  we  understand  it,  is,  that  as  by  both  the  common 
and  maritime  law  the  right  of  action  for  personal  torts  dies  with  the 
person  injured,  the  statute  which  allows  actions  for  such  torts,  when 
resulting  in  the  death  of  the  person  injured,  to  be  brought  by  the  per- 
sonal representatives  of  the  deceased,  enlarges  the  liability  of  parties 
of  such  torts,  and  that  such  enlarged  liability,  if  applied  to  cases  of 
marine  torts,  would  constitute  a  new  burden  upon  commerce.     *     *     * 

"In  the  present  case  *  *  *  [the  Indiana]  statute  imposes  no 
tax,  prescribes  no  duty,  and  in  no  respect  interferes  with  any  regula- 
tions for  the  navigation  and  use  of  vessels.     It  only  declares  a  general 

this  country,  unless  a  river  was  capable  of  being  navigated  by  steam  or  sail 
vessels,  it  could  not  be  treated  as  a  public  highway.  The  capability 
by  the  public  for  purposes  of  transportation  and  commerce  affords  the  true 
criterion  of  the  navigability  of  a  river,  rather  thau  the  extent  and  manner 
of  that  use.  if  it  bo  capable  in  its  Datura]  state  of  being  used  for  purposes 
of  commerce,  no  matter  in  what  mode  the  commerce  may  be  conducted,  it  Is 
navigable  in  fact,  and  becomes  in  law  a  public  river  or  highway.  Vessels 
of  any  kind  that  can  lloat  upon  the  water,  whether  propelled  by  animal  power, 
by  the  wind,  or  by  the  agency  of  steam,  are,  or  may  become,  the  mode  by 
which  a  vast  commerce  can  be  conducted,  and  it  would  he  a  mischievous  rule 
that  would  exclude  either  in  determining  the  navigability  of  a  river.  It  is 
not.  however,  as  Chief  Justice  Shaw  said,  'every  small  creek  in  which  a  fish- 
ing skill'  or  gunning  c:moe  can  be  made  to  float  at  high  water  which  is  deemed 
navigable,  but,  In  order  to  give  it  the  character  of  a  navigable  stream,  it 
must  be  generally  and  commonly  useful  to  some  purpose  of  trade  or  agricul- 
ture.'   (|Kowe  v.  Granite  Bridge  Corporation]  21  Pick.  [Mass.]  844.)    »    •    • 

"Indeed,  there  are  but  few  of  our  freshwater  rivers  which  did  not  origi- 
nally present  serious  obstructions  to  an  uninterrupted  navigation.  In  some 
cases,  like  the  Fox  river,  they  may  be  so  great  while  they  last  as  to  prevent 
the  use  o?  the  best  instrumentalities  for  carrying  on  commerce,  but  the  vital 
tad  essentia]  point  is  whether  the  natural  navigation  of  the  river  is  such 
that  it  affords  a  channel  for  useful  commerce.  If  this  he  so  the  river  is  mo 
Igable  in  fact,  although  its  navigation  may  be  encompassed,  with  difficulties 
by  reason  of  natural  barriers,  such  as  rapids  and  sand-bars." 

For  various  practical  illustrations  of  these  tests,  see  St  Anthony  Co.  v. 

C re.,  168  I",  s.  349,  359,  is  Sup.  Ct.  157.  42  L.  Ed.   iot  (1897);  'u.  S.  v. 

Uio  Grande  Co.,  114  U.  S.  690,  19  sup.  Ct  770,  43  L.  Ed.  1136  (1899);  Leovv 
v.  U.  S.,  177  U.  S.  621,  20  Sup.  Ct.  797,   11  L.  Ed.  !>14'(1U00). 

For  certain  distinctions  sometimes  taken  In  various  stair  decisions  and  stat- 
utes between  streams  that  arc  navigable  and  those  that  are  "floatable"  (for 
raits  or  Logs),  see  Veazle  v.  Dwinel,  50  Me.  179  (1862);  Gwaltney  v.  Scottish 
Timber  Co.,  Ill  N.  C.547,  16  S.  E,  692  (1S92)  (citing  cases). 

"The  law.  as  settled  by  a  long  line  Of  decisions  In  this  state,  is  that  streams 
n:  sufficient  capacity  to  Hoal  larket  are  navigable." — Cassoday,  .!..  in 

Falls  Mfg.  Co.  v.  Oconto  Imp.  Co.,  87  Wis.  134,  149,  58  N.  W.  257  (1894).  Com- 
pare Schulte  v.  Warren,  218  III.  108,  119,  75  N,  B.  7s::.  13  I..  K.  A.  (N.  S.)  745 
(1905),  contra. 


L264  the  federal  government  (Part  3 

principle  respecting  the  liability  of  all  persons  within  the  jurisdiction 
of  the  state  for  torts  resulting  in  the  death  of  parties  injured.  And  in 
the  application  of  the  principle  it  makes  no  difference  where  the  injury 
complained  of  occurred  in  the  state,  whether  on  land  or  on  wa- 
ter.    *     *     * 

"With  reference  to  a  great  variety  of  matters  touching  the  rights 
and  liabilities  of  persons  engaged  in  commerce,  either  as  owners  or 
navigators  of  vessels,  the  laws  of  Congress  are  silent,  and  the  laws  of 
the  state  govern.  The  rules  for  the  acquisition  of  property  by  persons 
engaged  in  navigation,  and  for  its  transfer  and  descent,  are,  with  some 
exceptions,  those  prescribed  by  the  state  to  which  the  vessels  belong ; 
and  it  may  be  said,  generally,  that  the  legislation  of  a  state,  not  di- 
rected against  commerce  or  any  of  its  regulations,  but  relating  to  the 
rights,  duties,  and  liabilities  of  citizens,  and  only  indirectly  and  remote- 
ly affecting  the  operations  of  commerce,  is  of  obligatory  force  upon 
citizens  within  its  territorial  jurisdiction,  whether  on  land  or  water,  or 
engaged  in  commerce,  foreign  or  interstate,  or  in  any  other  pursuit. 
In  our  judgment,  the  statute  of  Indiana  falls  under  this  class.  Until 
Congress,  therefore,  makes  some  regulation  touching  the  liability  of 
parties  for  marine  torts  resulting  in  the  death  of  the  persons  injured, 
we  are  of  opinion  that  the  statute  of  Indiana  applies,  giving  a  right  of 
action  in  such  cases  to  the  personal  representatives  of  the  deceased, 
and  that,  as  thus  applied,  it  constitutes  no  encroachment  upon  the  com- 
mercial power  of  Congress." 


In  re  GARNETT. 

(Supreme  Court  of  United  States,  1891.     141  U.  S.  1,  11  Sup.  Ct.  840.  35  L. 
Ed.  631.) 

[Petition  for  a  writ  of  prohibition  to  be  directed  to  the  federal  Dis- 
trict Court  of  the  Eastern  Division  of  the  Southern  District  of  Geor- 
gia. A  federal  statute  limited  the  liability  of  the  owners  of  American 
vessels  for  certain  losses  to  the  value  of  their  interest  in  the  vessel  and 
cargo.  One  Lawton,  owner  of  a  vessel  plying  in  inland  navigation 
upon  the  Savannah  river  between  Georgia  and  South  Carolina,  was 
sued  by  Garnett  and  others  in  a  Georgia  court  for  the  loss  of  goods  by 
lire  upon  his  vessel;  and  Lawton  filed  a  libel  in  the  aforesaid  federal 
court  to  obtain  the  benefit  of  the  limited  liability  law.  A  demurrer  to 
the  libel  having  been  overruled,  this  petition  was  brought,  alleging  the 
invalidity  of  the  law,  as  applied  to  such  a  vessel,  engaged  chiefly  in  in- 
ternal commerce.] 

Mr.  Justice  Bradley.  *  *  .*  It  is  unnecessary  to  invoke  the 
power  given  to  Congress  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  states,  in  order  to  find  authority  to  pass  the  law 
in  question.  The  act  of  Congress  which  limits  the  liability  of  ship- 
owners was  passed  in  amendment  of  the  maritime  law  of  the  country, 
and  the  power  to  make  such  amendments  is  coextensive  with  that  law. 


Ch.  IS)  i:egi;lath>.\  OF  COMMBECE  12(J5 

It  is  not  confined  to  the  boundaries  or  class  of  subjects  which  limit  and 
characterize  the  power  to  regulate  commerce ;  but,  in  maritime  mat- 
ters, it  extends  to  all  matters  and  places  to  which  the  maritime  law  ex- 
tends. The  subject  has  frequently  been  up  for  consideration  by  this 
court  for  many  years  past,  and  but  one  view  has  been  expressed.  It 
was  gone  over  so  fullv,  however,  in  the  late  case  of  Butler  v.  Steam- 
ship Co.,  130  U.  S.  527,  9  Sup.  Ct.  612,  32  Sup.  Ct.  1017,  that  we  can- 
not do  better  than  to  quote  a  single  passage  from  the  opinion  of  the 
court  in  that  case.     We  there  said: 

"The  law  of  limited  liability,  as  we  have  frequently  had  occasion  to 
assert,  was  enacted  by  Congress  as  a  part  of  the  maritime  law  of  this 
country,  and  therefore  it  is  coextensive,  in  its  operation,  with  the 
whole  territorial  domain  of  that  law.  Norwich  Co.  v.  Wright,  13 
Wall.  104,  127,  20  L.  Ed.  585;  The  Lottawanna,  21  Wall.  558,  577, 
22  L.  Ed.  654;  The  Scotland,  105  U.  S.  24,  29,  31,  26  L.  Ed.  1001 ; 
Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578,  593,  3 
Sup.  Ct.  379,  617,  27  L.  Ed.  1038.  In  The  Lottawanna  we  said:  'It 
cannot  be  supposed  that  the  framers  of  the  Constitution  contemplated 
that  the  law  should  forever  remain  unalterable.  Congress  undoubted- 
ly has  authority  under  the  commercial  power,  if  no  other,  to  introduce 
such  changes  as  are  likely  to  be  needed.'1    Page  577.     *     *     * 

"In  The  Scotland  this  language  was  used:  'But  it  is  enough  to  say 
that  the  rule  of  limited  responsibility  is  now  our  maritime  rule.  It  is 
the  rule  by  which,  through  the  act  of  Congress,  we  have  announced 
that  we  propose  to  administer  justice  in  maritime  cases.'  Page  31. 
Again,  in  the  same  case  (page  29),  we  said:  'But,  while  the  rule 
adopted  by  Congress  is  the  same  as  the  rule  of  the  general  maritime 
law,  its  efficacy  as  a  rule  depends  upon  the  statute,  and  not  upon  any 
inherent  force  of  the  maritime  law.  As  explained  in  The  Lottawanna, 
the  maritime  law  is  only  so  far  operative  as  law  in  any  country  as  it 
is  adopted  by  the  laws  and  usages  of  that  country ;  and  this  particular 
rule  of  the  maritime  law  had  never  been  adopted  in  this  country  until 
it  was  enacted  by  statute.  Therefore,  while  it  is  now  a  part  of  our 
maritime  law,  it  is,  nevertheless,  statute  law.'     *     *     * 

"These  quotations  are  believed  to  express  the  general,  if  not  unani- 
mous, views  of  the  members  of  this  court  for  nearly  twenty  years  past ; 
and  they  leave  us  in  no  doubt  that,  while  the  general  maritime  law, 
with  slight  modifications,  is  accepted  as  law  in  this  country,  it  is  sub- 

i  The  opinion  from  which  this  quotation  is  made  continues :  "The  scope 
of  the  maritime  law,  and  that  of  commercial  regulation,  are  not  cotem 
n  is  true,  but  the  latter  embraced  much  the  largest  portion  of  ground  cov- 
ered by  the  former.  Under  it,  Congress  has  regulated  the  registry,  enrollment. 
license,  and  nationality  of  ships  and  vessels;  the  method  of  recording  bills 
of  sale  and  mortgages  thereon;  the  rights  and  duties  of  seamen;  the  limita 
tions  of  the  responsibility  of  shipowners  for  die  negligence  and  misconduct 
of  their. captains  and  crews;  and  many  other  things  of  a  character  truly 
mariti ." 

See  also  White's  Bank  v.  Smith,  7  Wall.  040,  0o3,  656,  19  L.  Ed.  211  (1669). 

Hall  Const.L. — 80 


126G  THE  FEDERAL  GOVERNMENT  (Part  I! 

ject  to  such  amendments  as  Congress  may  see  fit  to  adopt.  One  of  the 
modifications  of  the  maritime  law,  as  received  here,  was  a  rejection 
of  the  law  of  limited  liability.  We  have  rectified  that.  Congress  has 
restored  that  article  to  our  maritime  code.  We  cannot  doubt  its  pow- 
er to  do  this.  As  the  Constitution  extends  the  judicial  power  of  the 
United  States  to  'all  cases  of  admiralty  and  maritime  jurisdiction,'  and 
as  this  jurisdiction  is  held  to  be  exclusive,  the  power  of  legislation  on 
the  same  subject  must  necessarily  be  in  the  national  legislature,  and 
not  in  the  state  legislatures.  It  is  true,  we  have  held,  that  the  bounda- 
ries and  limits  of  the  admiralty  and  maritime  jurisdiction  are  matters 
of  judicial  cognizance,  and  cannot  be  affected  or  controlled  by  legis- 
lation, whether  state  or  national.  Chief  Justice  Taney,  in  The  St. 
Lawrence,  1  Black,  522,  526,  527,  17  L.  Ed.  180;  The  Lottawanna,  21 
Wall.  55S,  575,  576,  22  L.  Ed.  654.  But  within  these  boundaries  and 
limits  the  law  itself  is  that  which  has  always  been  received  as  maritime 
law  in  this  country,  with  such  amendments  and  modifications  as  Con- 
gress may  from  time  to  time  have  adopted.  It  being  clear,  then,  that 
the  law  of  limited  liability  of  ship-owners  is  a  part  of  our  maritime 
code,  the  extent  of  its  territorial  operation  (as  before  intimated)  can- 
not be  doubtful.  It  is  necessarily  coextensive  with  that  of  the  general 
admiralty  and  maritime  jurisdiction,  and  that  by  the  settled  law  of  this 
country  extends  wherever  public  navigation  extends, — on  the  sea  and 
the  great  inland  lakes,  and  the  navigable  waters  connecting  therewith. 
Waring  v.  Clarke,  5  How.  441,  12  L.  Ed.  226;  The  Genesee  Chief  v. 
Fitzhugh,  12  How.  443,  13  L.  Ed.  1058;  Jackson  v.  The  Magnolia,  20 
How.  296,  15  L.  Ed.  909;  The  Commerce,  1  Black,  574,  17  L.  Ed. 
107."    Pages  575-577.     *     *     * 

The  admiralty  and  maritime  jurisdiction  granted  to  the  federal  gov- 
ernment by  the  Constitution  of  the  United  States  is  not  limited  to  tide- 
waters, but  extends  to  all  public  navigable  lakes  and  rivers.  In  some 
of  the  cases  it  was  held  distinctly  that  this  jurisdiction  does  not  de- 
pend on  the  question  of  foreign  or  interstate  commerce,  but  also  exists 
where  the  voyage  or  contract,  if  maritime  in  character,  is  made  and  to 
be  performed  wholly  within  a  single  state.  Mr.  Justice  Clifford,  in  the 
opinion  of  the  court  in  The  Belfast  [7  Wall.  624,  19  L.  Ed.  266],  said : 
"Principal  subjects  of  admiralty  jurisdiction  are  maritime  contracts 
and  maritime  torts,  including  captures  jure  belli,  and  seizures  on  wa- 
ter for  municipal  and  revenue  forfeitures.  (1)  Contracts,  claims,  or 
service,  purely  maritime  and  touching  rights  and  duties  appertaining 
to  commerce  and  navigation,  are  cognizable  in  the  admiralty.  (2) 
Torts  or  injuries  committed  on  navigable  waters,  of  a  civil  nature,  are 
also  cognizable  in  the  admiralty  courts.  Jurisdiction  in  the  former 
case  depends  upon  the  nature  of  the  contract,  but  in  the  latter  depends 
entirely  upon  locality.  *  *  *  Navigable  rivers,  which  empty  into 
the  sea,  or  into  the  bays  and  gulfs  which  form  a  part  of  the  sea,  are 
but  arms  of  the  sea,  and  are  as  much  within  the  admiralty  and  mari- 


I 


Ch.  18)  REGULATION   OF   COMMERCE  1267 

time  jurisdiction  of  the  United  States  as  the  sea  itself.  Difficulties  at- 
tend every  attempt  to  define  the  exact  limits  of  admiralty  jurisdiction, 
but  it  cannot  be  made  to  depend  upon  the  power  of  Congress  to  regu- 
late commerce,  as  conferred  in  the  Constitution.  They  are  entirely 
distinct  things,  having  no  necessary  connection  with  one  another,  and 
are  conferred,  in  the  Constitution,  by  separate  and  distinct  grants." 

Jackson  v.  The  Magnolia  [20  How.  296,  15  L.  Ed.  909]  was  a  case 
of  collision  between  two  steamboats  on  the  Alabama  river,  far  above 
tide-water,  and  within  the  jurisdiction  of  a  county.  A  libel  in  admi- 
ralty was  filed  by  one  of  the  parties  in  the  district  court  of  the  United 
States,  which  was  dismissed  on  the  ground  of  want  of  jurisdiction. 
This  court  reversed  the  decree  and  maintained  the  admiralty  jurisdic- 
tion.   Mr.  Justice  Grier,  delivering  the  opinion  of  the  court,  said  : 

"Before  the  adoption  of  the  present  Constitution,  each  state,  in  the 
exercise  of  its  sovereign  power,  had  its  own  court  of  admiralty,  having 
jurisdiction  over  the  harbors,  creeks,  inlets,  and  public  navigable  wa- 
ters connected  with  the  sea.  This  jurisdiction  was  exercised  not  only 
over  rivers,  creeks,  and  inlets,  which  were  boundaries  to  or  passed 
through  other  states,  but  also  where  they  were  wholly  within  the  state. 
Such  a  distinction  was  unknown,  nor  (as  it  appears  from  the  decision 
of  this  court  in  the  case  of  Waring  v.  Clarke,  5  How.  441,  12  L.  Ed. 
226)  had  these  courts  been  driven  from  the  exercise  of  jurisdiction 
over  torts  committed  on  navigable  water  within  the  body  of  a  county, 
by  the  jealousy  of  the  common-law  courts.  When,  therefore,  the  ex- 
ercise of  admiralty  and  maritime  jurisdiction  over  its  public  rivers, 
ports,  and  havens  was  surrendered  by  each  state  to  the  government  of 
the  United  States,  without  an  exception  as  to  subjects  or  places,  this 
court  cannot  interpolate  one  into  the  Constitution,  or  introduce  an  ar- 
bitrary distinction  which  has  no  foundation  in  reason  or  prece- 
dent."    *     *     * 

Writ  denied.2 

2  The  tidal  test  of  the  locality  of  admiralty  jurisdiction  was  early 
in   this   country,   following    English   precedents.     The  Thomas   Jefferson,    10 
Wheat  428,  r>  L.  Ed.  358  (1825).    This  was  overruled  in  The  Genesee  Chief. 
12  How.  443,  13  L.  Ed.  1058  (1851),  and  the  test  of  actual  navigability  was  laid 
down.     The  federal  courts  also  linally  took  a  more  enlarged  view  of  the  sub- 
ject-matter  of  the  jurisdiction  than  did  the  English  decisions  between    1600 
1800  and  the  early  federal  decisions.    Ins.  Co.  v.  Dunham,  11  Wall.  1.  uo  L. 
Ed.  90  (1S71).    A  good  brief  history  of  the  fluctuations  of  doctrine  in  these 
matters  is  given   In  The  Lottavranna,  21    Wall.  558,  683  589,   22  I..   Bd.  654 
(1875),     in  De  I.ovio  v.  Bolt,  2  Gall.  398,  Fed.  t'as.  No.  3,776  (1815)  is 
orate  history  of  the  English  admiralty  jurisdiction  by  Mr.  Justice  Story. 

In  The  Robert  W.  Parsons,  191  U.  s.  IT,  30,  32,  33,  24  Sup.  Ct  8,  12,  13,  IS 
L.  Ed.  7.°.  (1903),  Brown,  J.,  said  (holding  canal  boats  drawn  by  horses  to  b< 
s"  within  the  meaning  of  admiralty  law):  "In  fact,  neither  size,  form, 
equipment,  nor  means  of  propulsion  are  determinative  factors  upon  the  ques 
tion  of  jurisdiction,  which  regards  only  the  purpose  for  which  the  craft  was 
constructed,  and  the  business  in  which  it  is  engaged.  *  *  *  The  modern 
law  of  England  and  America  rules  out  of  the  admiralty  jurisdiction  all  vessels 
propelled  By  oars,  simply  because  they  are  the  smallest  class  and  beneath  the 
dignity  of  a  court  of  admiralty:    hut  long  within  the  historic  period,  and  for 


12QS  THE   :      .  GOVERNMENT  (Part  3 


WORKMAN  v.  MAYOR,  ETC.,  OF  THE  CITY  OF  NEW 
YORK. 

(Supreme  Court  of  United  States,  1900.     179  C.  S.  552,  21   Sup.  Ct.  212,  45 
L.  Ed.  314.) 

[Certiorari  to  the  United  States  Circuit  Court  of  Appeals  for  the 
I  Circuit.  A  steam  fire-boat  owned  by  the  city  of  New  York, 
while  engaged  in  extinguishing  a  fire,  negligently  struck  and  damaged 
a  British  vessel  owned  by  Workman  and  moored  at  a  dock  in  New 
York  City.  Workman  filed  an  admiralty  suit  in  personam  against  the 
city  and  others,  in  the  federal  District  Court,  and  there  obtained  a  de- 
cree for  damages  against  the  city.  This  was  reversed  in  the  Circuit 
Court  of  Appeals  upon  the  ground  that,  by  the  local  unwritten  munic- 
ipal law  of  New  York  state,  a  city  was  not  liable  for  the  negligence  of 
the  members  of  its  fire  department,  who  were  discharging  general  gov- 
ernmental functions  not  relating  to  the  exercise  of  the  city's  purely 
corporate  powers.] 

Air.  fustice  White.  *  *  *  In  examining  the  question  whether 
the  local  law  of  New  York  must  prevail,  though  in, conflict  with  the 
maritime  law,  it  must  be  borne  in  mind  that  the  issue  is  not — as  was 
the  case  in  Detroit  v.  Osborne  (1890)  135  U.  S.  492,  34  L.  Ed.  260,  10 
Sup.  Ct.  1012, — whether  the  local  law  governs  as  to  a  controversy 
arising  in  the  courts  of  common  law  or  of  equity  of  the  United  States, 
but,  Does  the  local  law,  if  in  conflict  with  the  maritime  law,  control  a 
court  of  admiralty  of  the  United  States  in  the  administration  of  mari- 
time rights  and  duties,  although  judicial  power  with  respect  to  such 
subjects  has  been  expressly  conferred  by  the  Constitution  (art.  3,  §  2) 
upon  the  courts  of  the  United  States? 

The  proposition,  then,  which  we  must  first  consider  may  be  thus 
stated :  Although  by  the  maritime  law  the  duty  rests  upen  courts  of 
admiralty  to  afford  redress  for  every  injury  to  person  or  property 
where  the  subject-matter  is  within  the  cognizance  of  such  courts,  and 
when  the  wrongdoer  is  amenable  to  process,  nevertheless  the  admiralty 
courts  must  deny  all  relief  whenever  redress  for  a  wrong  would  not  be 
afforded  by  the  local  law  of  a  particular  state  or  the  course  of  decisions 
therein.     *     *     * 

If  it  be  true  that  the  principles  of  the  general  maritime  law  giving 
relief  for  every  character  of  maritime  tort  where  the  wrongdoer  is 
subject  to  the  jurisdiction  of  admiralty  courts  can  be  overthrown  by 

at  least  seven  hundred  years,  the  triremes  and  quadriremes  of  the  Greek  and 
:  navies  were  the  largest  and  most  powerful  vessels  afloat." 
.  \l  Admiralty  Jurisdiction  over  Foreign  Waters. — The  federal  ju- 
risdiction, both  judicial  and  legislative,  extends  to  American  vessels  not  only 
while  upon  the  high  seas  but  also  while  upon  navigable  waters  within  the  ter- 
i  jurisdiction  of  foreign  nations.     Panama  R.  Co.  v.   Napier  Shipping 
i  Us  S.  280,  17  Sup.  Ct.  572,  41  L.  Ed.  1004  (1S97)  (civil  tort  in  foreign 
United  States  v.  Rodgers,  150  U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed. 
1 1  iTl  (1893)  (federal  statutory  crime  in  foreign  waters). 


Cll.  18)  REGULATION    OF    COMMEHCH  1360 

conflicting  decisions  of  state  courts,  it  would  follow  that  there  would 
be  no  general  maritime  law  for  the  redress  of  wrongs,  as  such  law 
would  be  necessarily  one  thing  in  one  state  and  one  in  another;  one 
thing  in  one  port  of  the  United  States  and  a  different  thing  in  some 
other  port.  As  the  power  to  change  state  laws  or  state  decisions  rests 
with  the  state  authorities  by  which  such  laws  are  enacted  or  decisions 
rendered,  it  would  come  to  pass  that  the  maritime  law  affording  relief 
for  wrongs  done,  instead  of  being  general  and  ever  abiding,  would  be 
purely  local — would  be  one  thing  to-day  and  another  thing  to-morrow. 
That  the  confusion  to  result  would  amount  to  the  abrogation  of  a  uni- 
form maritime  law  is  at  once  patent.     *     *     * 

[After  adverting  to  the  injustice  of  the  alleged  local  rule  of  law  ex- 
empting the  municipality,  the  court  quotes  from  Lord  Chancellor  Cran- 
worth,  in  Mersey  Docks,  etc.,  v.  Gibbs,  L.  R.  1  H.  L.  122:]  "It  would 
be  a  strange  distinction  to  persons  coming  with  their  ships  to  different 
ports  of  this  country,  that  in  some  ports,  if  they  sustain  damage  by  the 
negligence  of  those  who  have  the  management  of  the  docks,  they  will 
be  entitled  to  compensation,  and  in  others  they  will  not ;  such  a  dis- 
tinction arising,  not  from  any  visible  difference  in  the  docks  them- 
selves, but  from  some  municipal  difference  in  the  constitution  of  the 
bodies  by  whom  the  docks  are  managed." 

And  still  later,  in  deciding  the  case  of  Currie  v.  McKnight  [1897] 
A.  C.  97,  the  House  of  Lords  declared  that  while  the  admiralty  law 
as  known  in  England  differs  from  the  common  law  of  England,  and 
the  common  law  of  Scotland  differs  from  the  common  law  of  England, 
because  they  were  derived  from  divergent  sources,  yet  the  admiralty 
laws  were  derived  both  by  Scotland  and  England  from  the  same 
source,  and  "it  would  be  strange  as  well  as  in  the  highest  degree  in- 
convenient if  a  different  maritime  law  prevailed  in  two  different  parts 
of  the  same  island." 

Potential,  however,  as  may  be  these  arguments,  predicated  on  the 
inherent  injustice  of  the  doctrine  contended  for,  and  the  serious  incon- 
venience which  must  result  from  an  attempt  to  apply  it,  we  are  not 
thereby  relieved  from  considering  the  question  in  a  more  fundamental 
aspect.  In  doing  so,  it  becomes  manifest  that  the  decisions  of  this 
court  overthrow  the  assumption  that  the  local  law  or  decisions  of  a 
state  can  deprive  of  all  rights  to  relief,  in  a  case  where  redress  is  af- 
forded by  the  maritime  law,  and  is  sought  to  be  availed  of  in  a  cause 
of  action  maritime  in  its  nature  and  depending  in  a  court  of  admiralty 
of  the  United  States. 

In  The  Key  City  (1872)  14  Wall.  653,  660,  sub  nom.  Young  v.  The 
Key  City,  20  L.  Ed.  896,  898,  it  was  held  that  federal  courts  of  ad- 
miralty were  not  governed  by  state  statutes  of  limitation  in  the  en- 
■  nt  of  maritime  liens.    In  The  Lottaw.-m  2\  Wall.  55S. 

22  L.  Ed.  654,  *  *  *  speaking  through  .Mr.  justice  Bradlev,  the 
court  said  (pp.  572,  573,  574,  L.  Ed.  p.  661) : 

"Whilst  it  is  true  that  the  great  mass  of  maritime  law  is  the  same 


1270  THE  FEDERAL   GOVERNMENT  (Part  3 

in  all  commercial  countries,  yet,  in  each  country,  peculiarities  exist  ei- 
ther as  to  some  of  the  rules  or  in  the  mode  of  enforcing  them.  Espe- 
cially is  this  the  case  on  the  outside  boundaries  of  the  law,  where  it 
comes  in  contact  with  or  shades  off  into  the  local  or  municipal  law  of 
the  particular  country,  and  affects  only  its  own  merchants  or  people  in 
their  relations  to  each  other.     *     *     * 

"That  we  have  a  maritime  law  of  our  own,  operative  throughout  the 
United  States,  cannot  be  doubted.  The  general  system  of  maritime 
law  which  was  familiar  to  the  lawyers  and  statesmen  of  the  country 
when  the  Constitution  was  adopted,1  was  most  certainly  intended  and 
referred  to  when  it  was  declared  in  that  instrument  that  the  judicial 
power  of  the  United  States  shall  extend  'to  all  cases  of  admiralty  and 
maritime  jurisdiction.'     *     *     * 

"One  thing,  however,  is  unquestionable ;  the  Constitution  must  have 
referred  to  a  system  of  law  coextensive  with,  and  operating  uniformly 
in,  the  whole  country.  It  certainly  could  not  have  been  the  intention 
to  place  the  rules  and  limits  of  maritime  law  under  the  disposal  and 
regulation  of  the  several  states,  as  that  would  have  defeated  the  uni- 
formity and  consistency  at  which  the  Constitution  aimed  on  all  sub- 
jects of  a  commercial  character  affecting  the  intercourse  of  the  states 
with  each  other  or  with  foreign  states."     *     *     * 

True,  it  is  well  settled  that  in  certain  cases  where  a  lien  is  given  by 
a  state  statute,  the  admiralty  courts  will  enforce  rights  so  conferred 
when  not  in  absolute  conflict  with  the  admiralty  law.  The  Lottawanna 
(1875)  21  Wall.  558,  sub  nom.  Rodd  v.  Heartt,  22  L.  Ed.  654.  More- 
over, it  has  been  decided  that  although  at  the  time  of  the  adoption  of 
the  Constitution,  in  courts  of  admiralty  as  in  courts  of  common  law, 
a  cause  of  action  for  a  personal  injury  abated  by  the  death  of  the  in- 
jured party,  nevertheless,  when,  by  a  state  statute,  a  right  of  recovery 
in  such  a  case  was  conferred,  the  admiralty  courts  would  recognize  and 
administer  the  appropriate  relief.  The  Albert  Dumois  (1900)  177 
U.  S.  257-259,  44  L.  Ed.  761,  20  Sup.  Ct.  595,  and  cases  cited.  But 
such  cases  afford  no  foundation  for  the  proposition  that  state  laws 
or  decisions  can  deprive  an  individual  of  a  right  of  recovery  for  a  mari- 
time wrong  which,  under  the  general  principles  of  the  admiralty  law, 
he  undoubtedly  possessed,  and  can  destroy  the  symmetry  and  effi- 
ciency of  that  law  by  engrafting  therein  a  principle  which  violates  the 
imperative'  command  of  such  law  that  admiralty  courts  must  admin- 
ister redress  for  every  maritime  wrong  in  every  case  where  they 
have  jurisdictional  power  over  the  person  by  whom  the  wrong  has 
been  committed.  The  cases  in  question,  on  the  contrary,  but  illus- 
trate the  alacrity  with  which  admiralty  courts  adopt  statutes  granting 
the  right  to  relief  where  otherwise  it  could  not  be  administered  by  a 
maritime  court,  and   they  hence  do  not  support  the  contention  that 

i  As  to  the  scope  of  the  admiralty  jurisdiction  in  the  colonial  courts,  see 
Waring  v.  Clarke,  5  How.  441,  454  ff..  12  L.  Ed.  226  (1847);  The  Lottawanna, 
21   Wall.  55S,  599-601,  22  L,   Ed.   654  (1S75). 


Ch.  18)  REGULATION    OF   COMMERCE  1-"1 

there  is  a  want  of  power  in  admiralty  courts  to  give  redress  in  every 
case  within  their  jurisdiction  where  the  duty  to  do  so  is  imposed  by 
the  maritime  law.     *    *     * 

It  being  then  settled  that  the  local  decisions  of  one  or  more  states 
cannot,  as  a  matter  of  authority,  abrogate  the  maritime  law,  we  are 
brought  to  consider  whether,  under  the  maritime  law,  the  city  of 
New  York  was  liable  for  the  injury  inflicted  by  the  fire-boat.  *  *  * 
[Under  the  maritime  law  the  city  was  held  liable.] 

Decree   of   District   Court   affirmed.2 

[Gray,  Brewer,  Shiras,  and  Peckham,  JJ.,  dissented  in  an  opin- 
ion by  Gray,  upon  the  ground  that  the  maritime  law  imposed  no 
such  liability  upon  cities.] 


THE  ROANOKE  (1903)  189  U.  S.  185,  193-199,  23  Sup.  Ct.  491, 
47  L.  Ed.  770,  Mr.  Justice  Brown  (holding  invalid  the  statute  of 
Washington  discussed  below) : 

"The  following  propositions  may  be  considered  as  settled : 

"1.  That  by  the  maritime  law,  as  administered  in  England  and  in 
this  country,  a  lien  is  given  for  necessaries  furnished  a  foreign  vessel 
upon  the  credit  of  such  vessel ;  *  *  *  and  that  in  this  particu- 
lar the  several  states  of  this  Union  are  treated  as  foreign  to  each 
other.     *     *     * 

"2.  That  no  such  lien  is  given  for  necessaries  furnished  in  the  home 
port  of  the  vessel  or  in  the  port  in  which  the  vessel  is  owned,  regis- 
tered, enrolled,  or  licensed,  and  the  remedy  in  such  case,  though  en- 
forceable in  the  admiralty,  is  in  personam  only.     *     *     * 

"3.  That  it  is  competent  for  the  states  to  create  liens  for  necessaries 
furnished  to  domestic  vessels,  and  that  such  liens  will  be  enforced  by 
the  courts  of  admiralty  under  their  general  jurisdiction  over  the  sub- 
ject of  necessaries.1     *     *     * 

2  For  the  distinction  between  maritime  and  non-maritime  torts,  see  Martin 
v.  West,  222  U.  S.  191,  196,  197,  32  Sup.  Ct  42,  56  L.  Ed.  159,  3G  L.  R.  A. 
(N.  S.)  592  (1911)  (cases). 

i  "The  fundamental  reasons  on  which  these  propositions  rest  may  be  sum- 
med up  thus:  The  admiralty  and  maritime  jurisdiction  is  conferred  on  the 
courts  of  the  United  States  by  the  Constitution,  and  cannot  be  enlarged  or  re- 
stricted by  the  legislation  of  a  state.  No  state  legislation,  therefore,  can 
bring  within  the  admiralty  jurisdiction  of  the  national  courts  a  subject  not 
maritime  in  its  nature.  But  wheu  a  riizht,  maritime  in  its  nature,  and  to  be 
enforced  by  process  in  the  nature  of  admiralty  process,  has  been  given  by  the 
statute  of  a  state,  the  admiralty  courts  of  the  United  States  have  jurisdiction, 
and  exclusive  jurisdiction,  to  enforce  that  right  according  to  their  own  rules 
of  procedure."— Gray,  J.,  in  The  J.  E.  BumbeU,  148  U.  S.  1,  12,  13,  13  Sup. 
<  t.  IDS.  37  L.  Ed.  345  (1S93).  See  also  The  Clide,  167  U.  S.  606,  17  Sup.  Ct. 
930.  42  I*  Ed.  296  (1897). 

"Wherever  any  lien  is  tvlven  by  a  state  statute  for  a  cause  of  action  cog- 
nizable in  admiralty,  eituer  in  rem  or  in  personam,  proceedings  in  rem  to 
enforce  such  lien  are  within  the  exclusive  jurisdiction  of  the  admiralty  courts. 

"But  the  converse  of  this  proposition  is  equally  true,  that  if  a  Hen  upon  a 
vessel  be  created  for  a  claim  over  which  a  court  of  admiralty  has  no  juris- 


[272  THE  FEDERAL  GOVERNMENT  (Part  3 

"The  question  involved  in  this  case,  however,  is  whether  the  states 
may  create  such  liens  as  against  foreign  vessels  (vessels  owned  in  other 
states  or  countries),  and  under  such  circumstances  as  would  not  au- 
thorize a  lien  under  the  general  maritime  law.  The  question  is  one 
of  very  considerable  importance,  as  it  involves  the  power  of  each 
state,  which  a  vessel  may  visit  in  the  course  of  a  long  voyage,  to  im- 
pose liens  under  wholly  different  circumstances  and  upon  wholly  dif- 
ferent conditions.     *     *     * 

"The  injustice  of  permitting  such  claims  to  be  set  up  is  plainly  ap- 
parent. The  master  is  the  agent  of  the  vessel  and  its  owner  in  more 
than  the  ordinary  sense.  During  the  voyage  he  is  in  fact  the  alter  ego 
of  his  principal.  He  is  intrusted  with  an  uncontrolled  authority  to 
provide  for  the  crew,  and  for  the  preservation  and  repair  of  the  ship. 
He  engages  the  cargoes,  receives  the  freight,  hires  and  pays  his  crew, 
and  is  intrusted,  perhaps  for  years,  with  the  command  and  disposition 
of  the  vessel.  With  full  authority  to  bind  the  vessel,  his  position  is 
such  that  it  is  almost  impossible  for  him  to  acquaint  himself  with  the 
laws  of  each  individual  state  he  may  visit,  and  he  has  a  right  to  sup- 
pose that  the  general  maritime  law  applies  to  him  and  his  ship,  wher- 
ever she  may  go,  unhampered  by  laws  which  are  mainly  intended  for 
local  application,  or  for  domestic  vessels.  Local  laws,  such  as  the  one 
under  consideration,  ordinarily  protect  the  ship  by  requiring  notice 
of  the  claim  to  be  filed  in  some  public  office,  limiting  the  time  to  a  few 
weeks  or  months  within  which  the  laborer  or  subcontractor  may  pro- 
ceed against  her,  requiring  notice  to  be  given  of  the  claim,  before  the 
contractor  himself  has  been  paid,  and  limiting  his  recovery  to  the 
amount  remaining  unpaid  at  the  time  such  notice  is  received.     The 

diction  in  any  form,  such  lien  may  be  enforced  in  the  courts  of  the  state. 
Tims,  as  the  admiralty  jurisdiction  does  not  extend  to  a  contract  for  building 
a  vessel,  or  to  work  done  or  materials  furnished  in  its  construction, — The 
Jefferson  (People's  Ferry  Co.  v.  Beers,  20  How.  393,  15  L.  Ed.  961) ;  The  Cap- 
itol (Roach  v.  Chapman,  22  How.  129,  16  L.  Ed.  291),— we  held  in  Edwards 
v.  Elliott,  21  Wall.  532,  22  L.  Ed.  487,  that,  in  respect  to  such  contracts,  it 
was  competent  for  the  states  to  enact  such  laws  as  their  legislatures  might 
di  -in  just  and  expedient,  and  to  provide  for  their  enforcement  in  rem.     *     »     * 

"The  true  distinction  between  such  proceedings  as  are  and  such  as  are  not 
Invasions  of  the  exclusive  admiralty  jurisdiction  is  this:  If  the  cause  of  ac- 
tion be  one  cognizable  in  admiralty,  and  the  suit  be  in  rem  against  the  thing 
Itself,  though  a  monition  be  also  issued  to  the  owner,  the  proceeding  is  essen- 
tially one  in  admiralty.  If,  upon  the  other  hand,  the  cause  of  action  be  not 
one  of  which  a  court  of  admiralty  has  jurisdiction,  or  if  the  suit  be  in  per- 
sonam against  an  individual  defendant,  with  an  auxiliary  attachment  against 
a  particular  thing,  or  against  the  property  of  the  defendant  in  general,  it  is 
essentially  a  proceeding  according  to  the  course  of  the  common  law,  and  with- 
in the  saving  clause  of  the  statute  (§  563)  of  a- common-law  remedv." — Brown. 
,T..  in  Knapp,  etc.,  Co.  v.  McCaffrey,  177  U.  S.  638,  642,  643,  6-!S,  20  Sup.  Ct 
824,  11  I,.  Ed,  921  (1900).  See  this  case  also  for  the  distinction  between  ac- 
tions in  rem  and  in  personam  in  admiralty,  and  for  the  meaning  of  the  stat- 
utory pi  -' to  suitors     *     *     *     the  right  of  a  common-law  remedy." 

A  lien  upon  vessels,  both  foreign  and  domestic,  for  non-maritime  suits  in 
personam  at  law  or  in  equity  In  the  state  courts  is  valid.  Martin  v.  West. 
12  Sup.  Ct.  42,  50  L.  Ed.  159.  36  L.  R.  A.  (N.  S.)  592  (1911) 
(non-maritime  tort). 


Ch.  18)  REGULATION    OF    COMMERCE  127.'! 

statute  of  Washington,  however,  provides  for  an  absolute  lien  upon 
the  ship  for  work  done  or  material  furnished  at  the  request  of  the 
contractor  or  subcontractor,  and  makes  no  provision  for  the  protection 
of  the  owner  in  case  the  contractor  has  been  paid  the  full  amount  of 
his  bill  before  notice  of  the  claim  of  the  subcontractor  is  received.  The 
finding  in  this  case  is  that  the  contractor,  who  had  agreed,  in  conso- 
nance with  the  usual  course  of  business,  to  make  the  repairs  upon 
this  vessel,  had  been  paid  in  full  by  the  claimant.  The  injustice  of 
holding  the  ship  under  the  circumstances  is  plainly  manifest. 

"Not  only  is  the  statute  in  question  obnoxious  to  the  general  mari- 
time law  in  declaring  every  contractor  and  subcontractor  an  agent  of 
the  owner,  but  it  establishes  a  new  order  of  priority  in  payment  of 
liens,  abolishes  the  ancient  and  equitable  rule  regarding  'stale  claims.' 
and  permits  the  assertion  of  a  lien  at  any  time  within  three  years,  re- 
gardless of  the  fact  that  the  vessel  may  have  been  sold  to  a  bona  fide 
purchaser,  not  only  without  notice  of  the  claim,  but  without  the  possi- 
bility of  informing  himself  by  a  resort  to  the  public  records.  It  also 
gives,  or  at  least  creates  the  presumption  of,  a  lien,  though  the  mate- 
rials be  furnished  upon  the  order  of  the  owner  in  person.  *  *  * 
|  I  lore  are  cited,  against  the  validity  of  the  statute,  The  Chusan,  2 
Story,  455,  Fed.  Cas.  No.  2,717,  and  The  Lyndhurst  (D.  C.)  48  Fed. 
839.] 

"While  no  case  involving  this  precise  question  seems  to  have  arisen 
in  this  court,  we  have  several  times  had  occasion  to  hold  that  where 
Congress  has  dealt  with  a  subject  within  its  exclusive  power,  or  where 
such  exclusive  power  is  given  to  the  federal  courts,  as  in  cases  of  ad- 
miralty and  maritime  jurisdiction,  it  is  not  competent  for  states  to  in- 
vade that  domain  of  legislation,  and  enact  laws  which  in  any  way 
trench  upon  the  power  of  the  federal  government.  Cases  arising  in 
cither  branches  of  the  law  furnish  apt  analogies.  The  principle  is 
stated  in  a  nutshell  by  Chief  Justice  Marshall  in  Sturges  v.  Crownin- 
shield,  4  Wheat.  122,  193,  4  L.  Ed.  529,  548:  *  *  *  'That  when- 
ever the  terms  in  which  a  power  is  granted  to  Congress,  or  the  nature 
of  the  power,  required  that  it  should  be  exercised  exclusively  by  Con- 
gress, the  subject  is  as  completely  taken  from  the  state  legislatures 
as  if  they  had  been  expressly  forbidden  to  act  on  it.'  *  *  *  [Here 
are  cited  some  instances  of  state  laws  attempting  invalidly  to  regulate 
commerce  or  national  banks.] 

"Bearing  in  mind  that  exclusive  jurisdiction  of  all  admiralty  and 
maritime  cases  is  vested  by  the  Constitution  in  the  federal 
which  arc  thereby  made  judges  of  the  scope  of  such  jurisdiction, 
subject,  of  course,  to  congressional  legislation,  the  statute  of  the  state 
of  Washington,  in  so  far  as  it  attempts  to  control  the  administration  oi 
the  maritime  law  by  creating  and  superadding  conditions  for  the  bene- 
fit of  a  particular  class  of  creditors,  and  thereby  depriving  the  owners 
of  vessels  of  defenses  to  which  they  would  otherwise  have  been  en- 


1274  THE  FEDERAL  GOVERN MKNT  (Part  3 

titled,  is  an  unlawful  interference  with  that  jurisdiction,  and  to  that 
extent  is  unconstitutional  and  void."2 
[Harlan,  J.,  concurred  in  the  result.] 


OLD  DOMINION  S.  S.  CO.  v.  GILMORE. 

(Supreme  Court  of  United  States,  1907.     207  U.  S.  398,  28  Sup.  Ct.  133,  52 
L.  Ed.  264.) 

[Certiorari  to  the  federal  Circuit  Court  of  Appeals  for  the  Second 
Circuit.  A  Delaware  statute,  assumed  to  apply  to  torts  at  sea  as 
well  as  on  land,  gave  a  cause  of  action  for  the  unlawful  or  negligent 
death  of  any  person.  In  a  negligent  collision  on  the  high  seas  be- 
tween vessels  owned  by  two  Delaware  corporations  several  persons 
were  killed,  and  in  a  proceeding,  under  a  federal  statute,  to  limit  the 
liability  of  the  owner  of  one  of  them,  these  death  claims  were  al- 
lowed in  the  federal  District  Court  for  the  Southern  District  of  New 
York,  and  the  decree  was  affirmed  by  the  Circuit  Court  of  Appeals.] 

Mr.  Justice  Holmes.  *  *  *  Apart  from  the  subordination  of 
the  state  of  Delaware  to  the  Constitution  of  the  United  States,  there 
is  no  doubt  that  it  would  have  had  power  to  make  its  statute  ap- 
plicable to  this  case.  When  so  applied,  the  statute  governs  the  re- 
ciprocal liabilities  of  two  corporations,  existing  only  by  virtue  of  the 
laws  of  Delaware,  and  permanently  within  its  jurisdiction,  for  the 
consequences  of  conduct  set  in  motion  by  them  there,  operating  out- 
side the  territory  of  the  state,  it  is  true,  but  within  no  other  territorial 
jurisdiction.  If  confined  to  corporations,  the  state  would  have  pow- 
er to  enforce  its  law  to  the  extent  of  their  property  in  every  case. 
But  the  same  authority  would  exist  as  to  citizens  domiciled  within 
the  state,  even  when  personally  on  the  high  seas,  and  not  only  could 
be  enforced  by  the  state  in  case  of  their  return,  which  their  domicil 
by  its  very  meaning  promised,  but,  in  proper  cases,  would  be  recog- 
nized in  other  jurisdictions  by  the  courts  of  other  states.  In  short, 
the  bare  fact  of  the  parties  being  outside  the  territory,  in  a  place 
belonging  to  no  other  sovereign,  would  not  limit  the  authority  of  the 
state,  as  accepted  by  civilized  theory.  No  one  doubts  the  power  of 
England  or  France  to  govern  their  own  ships  upon  the  high  seas. 

The  first  question,  then,  is  narrowed  to  whether  there  is  anything 
in  the  structure  of  the  national  government  and  under  the  Constitu- 
tion of  the  United  States  that  takes  away  or  qualifies  the  authority 
that  otherwise  Delaware  would  possess, — a  question  that  seems  to 
have  been  considered  doubtful  in  Butler  v.  Boston  &  S.  S.  S.  Co., 

2  Accord:  The  .7.  E.  Rumbell,  148  U.  S.  1,  13  Sup.  Ct.  498,  37  L.  Ed.  345 
(1893)  (state  statute  cannot  give  local  mortgage  a  preference  over  maritime 
lien — semble).  See  the  cases  cited  in  Workman  v.  New  York,  179  U.  S.  552, 
586,  21  Sup.  Ct  212,  45  L.  Ed.  314  (1900). 


CIl.  18)  REGULATION    OF    COJUfERCB  127") 

130  U.  S.  527,  558,1  32  L.  Ed.  1017,  1024,  9  Sup.  Ct.  612.  It  has 
two  branches:  First,  whether  the  state  law  is  valid  for  any  purpose; 
and,  next,  whether,  if  valid,  it  will  be  applied  in  the  admiralty.  We 
will  take  them  up  in  order. 

The  power  of  Congress  to  legislate  upon  the  subject  has  been  de- 
rived both  from  the  power  to  regulate  commerce  and  from  the  clause 
in  the  Constitution  extending  the  judicial  power  to  "all  cases  of  ad- 
miralty and  maritime  jurisdiction."  Art.  3,  §  2.  130  U.  S.  557,  9 
Sup.  Ct.  612,  32  L.  Ed.  1017.  The  doubt  in  this  case  arises  as  to  the 
power  of  the  states  where  Congress  has  remained  silent. 

That  doubt,  however,  cannot  be  serious.  The  grant  of  admiralty 
jurisdiction,  followed  and  construed  by  the  judiciary  act  of  1789  [1 
Stat,  at  L.  77,  chap.  20,  §  9],  "saving  to  suitors,  in  all  cases,  the  right 
of  a  common-law  remedy  where  the  common  law  is  competent  to  give 
it"  (Rev.  Stat.  §  563,  d.  8,  U.  S.  Comp.  Stat.  1901,  p.  457),  leaves 
open  the  common-law  jurisdiction  of  the  state  courts  over  torts  com- 
mitted at  sea.  This,  we  believe,  always  has  been  admitted.  Martin 
v.  Hunter,  1  Wheat.  304,  337,  4  L.  Ed.  97,  105 ;  The  Hine  v.  Trevor 
(The  Ad.  Hine  v.  Trevor)  4  Wall.  555,  571,  18  L.  Ed.  451,  456;  Leon 
v.  Galceran,  11  Wall.  185,  20  L.  Ed.  74;  Manchester  v.  Massachusetts, 
139  U.  S.  240,  262,  35  L.  Ed.  159,  166,  11  Sup.  Ct.  559.  And  as  the 
state  courts  in  their  decisions  would  follow  their  own  notions  about 
the  law  and  might  change  them  from  time  to  time,  it  would  be 
strange  if  the  state  might  not  make  changes  by  its  other  mouthpiece, 
the  legislature.  The  same  argument  that  deduces  the  legislative  pow- 
er of  Congress  from  the  jurisdiction  of  the  national  courts,  tends  to 
establish  the  legislative  power  of  the  state  where  Congress  has  not 
acted.  Accordingly,  it  has  been  held  that  a  statute  giving  damages 
for  death  caused  by  a  tort  might  be  enforced  in  a  state  court,  al- 
though the  tort  was  committed  at  sea.  American  S.  B.  Co.  v.  Chace, 
16  Wall.  522,  21  L.  Ed.  369.  So  far  as  the  objection  to  the  state  law 
is  founded  on  the  admiralty  clause  in  the  Constitution,  it  would  seem 
not  to  matter  whether  the  accident  happened  near  shore  or  in  mid- 
ocean,  notwithstanding  some  expressions  of  doubt.  The  same  con- 
clusion was  reached  in  McDonald  v.  Mallory,  77  N.  Y.  546,  33  Am. 
Rep.  664,  where  the  death  occurred  on  the  high  seas.  Sherlock  v. 
Ailing,  93  U.  S.  99,  23  L.  Ed.  819,  reinforces  Chace's  Case,  and  an- 
swers any  argument  based  on  the  power  of  Congress  over  com- 
merce.    *     *     * 

We  pass  to  the  other  branch  of  the  first  question, — whether  the 
state  law,  being  valid,  will  be  applied  in  the  admiralty.     Being  valid. 

i  "It  might  t>e  a  much  more  serious  question  whether  a  state  law  can  have 
force  to  create  a  liability  in  n  maritime  case  at  all.  within  the  dominion  of 
the  admiralty  and  maritime  jurisdiction,  where  neither  the  general  maritime 
law  nor  an  act  of  Congress  £s  created  such  a  liability." — Bradley,  J.,  in 
Butler  v.  Hoston  &  S.  SS.  Co.,  130  U.  S.  527.  558,  9  Sup.  Ct  612,  32  L.  Ed. 
1017  QSS9). 


1270  THE   F*ERAL   GOVERNMENT  (Part  o 

it  created  an  obligatio, — a  personal  liability  of  the  owner  of  the  Ham- 
ilton to  the  claimants.  Sinter  v.  Mexican  Nat.  R.  Co.,  194  U.  S. 
120,  126,  48  L.  Ed.  900,  902,  24  Sup.  Ct.  581.  This,  of  course,  the 
admiralty  would  not  disregard,  but  would  respect  the  right  when 
>re  it  in  any  legitimate  way.  Ex  parte  McNiel,  13  Wall. 
1.624,626.  It  might  not  give  a  proceeding  in  rem, 
since  the  statute  does  not  purport  to  create  a  lien.  It  might  give  a 
proceeding  in  personam.  The  Corsair  (Barton  v.  Brown)  145  U. 
S.  335,  347,  36  L.  Ed.  727,  731,  12  Sup.  Ct.  949.  If  it  gave  the  lat- 
ter, the  result  would  not  be,  as  suggested,  to  create  different  laws 
for  different  districts.  The  liability  would  be  recognized  in  all.  Nor 
would  there  be  produced  any  lamentable  lack  of  uniformity.  Courts 
constantly  enforce  rights  arising  from  and  depending  upon  other 
laws  than  those  governing  the  local  transactions  of  the  jurisdiction 
in  which  they  sit.  But  we  are  not  concerned  with  these  considera- 
tions. In  this  case  the  statutes  of  the  United  States  have  enabled 
the  owner  to  transfer  its  liability  to -a  fund  and  to  the  exclusive  ju- 
risdiction of  the  admiralty,  and  it  has  done  so.  That  fund  is  being 
distributed.  In  such  circumstances  all  claims  to  which  the  admiralty 
does  not  deny  existence  must  be  recognized,  whether  admiralty  liens 
or  not.  This  is  not  only  a  general  principle  (Andrews  v.  Wall,  3 
How.  56S,  573,  11  L.  Ed.  729,  731;  The  J.  E.  Rumbell,  148  U.  S.  1, 
15,  37  L.  Ed.  345,  34S,  13  Sup.  Ct.  498;  admiralty  rule  43;  The 
Galam,  2  Moore,  P.  C.  C.  N.  S.  216,  236),  but  is  the  result  of  the  stat- 
ute which  provides  for,  as  well  as  limits,  the  liability,  and  allows  it 
to  be  proved  against  the  fund  (The  Albert  Dumois,  177  U.  S.  240, 
260,  44  L.  Ed.  751,  762,  20  Sup.  Ct.  595).     *     *     * 

We  are  of  opinion  that  all  the  claimants  are  entitled  to  the  full 
benefits  of  a  statute  "granting  the  right  to  relief  where  otherwise  it 
could  not  be  administered  by  a  maritime  court."  Workman  v.  New 
York,  179  U.  S.  552,  563,  45  L.  Ed.  314,  321,  21  Sup.  Ct.  212. 

Decree  affirmed. 


Ch    19)  INTERGOVERNMENTAL    HKLATIONS  1277 

CHAPTER  XIX 
INTERGOVERNMENTAL  RELATIONS 


SECTION  1.— BETWEEN  STATES— BETWEEN  STATES 
AND  OTHER  DOMESTIC  TERRITORY 


BUCKNER  v.  FINLEY  (1829)  2  Pet.  586,  590,  591,  7  L.  Ed.  528, 
Mr.  Justice  Washington  (holding  a  bill  of  exchange  drawn  in 
Maryland  upon  a  drawee  in  Louisiana  to  be  a  foreign  bill) : 

"Sir  William  Blackstone,  in  his  Commentaries  (vol.  2,  p.  467)  dis- 
tinguishes inland  from  foreign  bills,  by  defining  the  former  as  bills 
drawn  by  a  merchant  residing  abroad,  upon  his  correspondent  in  Eng- 
land, or  vice  versa ;  and  the  latter,  as  those  drawn  by  one  person  on 
another,  when  both  drawer  and  drawee  reside  within  the  same  king- 
dom.    *     *     * 

"Applying  this  definition  to  the  political  character  of  the  several 
states  of  this  Union  in  relation  to  each  other,  we  are  all  clearly  of 
opinion  that  bills  drawn  in  one  of  these  states,  upon  persons  living  in 
any  other  of  them,  partake  of  the  character  of  foreign  bills  and  ought 
to  be  so  treated.  For  all  national  purposes,  embraced  by  the  federal 
Constitution,  the  states  and  the  citizens  thereof  are  one,  united  under 
the  same  sovereign  authority  and  governed  by  the  same  laws.  In  all 
other  respects,  the  states  are  necessarily  foreign  to  and  independent  of 
each  other,  their  Constitutions  and  forms  of  government  being,  al- 
though republican,  altogether  different,  as  are  their  laws  and  institu- 
tions. This  sentiment  was  expressed  with  great  force  by  the  president 
of  the  Court  of  Appeals  of  Virginia,  in  the  case  of  Warder  v.  Arell,  2 
Wash.  298,  1  Am.  Dec.  488,  where  he  states  that,  in  cases  of  contracts, 
the  laws  of  a  foreign  country  where  the  contract  was  made  must  gov- 
ern ;  and  then  adds  as  follows :  'The  same  principle  applies,  though 
with  no  greater  force,  to  the  different  states  of  America ;  for,  I 
they  form  a  confederated  government,  yet  the  several  states  retain 
their  individual  sovereignties,  and,  with  respect  to  their  municipal  reg- 
ulations, are' to  each  other  foreign.'  "* 

i  Accord:  Bank  of  Augusta  v.  Earle,  IS  Pet  nio,  10  L.  Ed.  274  (1S39) 
(corporations  of  one  state  are  foreign  in  the  others).  See  O.  &  Miss.  By.  v. 
Wheeler,  1  Black,  286,  17  L.  Ed.   L30  I 

Rach  state  may  tax  the  obligations  of  other  states  held  within  Its  Jurisdic- 
tion, Bonaparte  v.  Appeal  Tax  Court,  101  U.  S.  682,  26  L.  Ed.  845  (1882);  or 
franchises  jaunted  by  otber  states  and  exercised  within  it,  W.  U.  Teleg.  Co. 


1278  THE  FEDERAL  GOVERNMENT  (Part  3 

v.  Missouri,  mo  U.  S.  412,  23  Sup.  Ct  730,  47  L.  Ed.  1116  (1903).     Compare 
a  v.  Charleston,  post,  p.  1284:   California  v.  Cent.  Pae.  Ry.,  post,  p.  1311. 

i    CIONAL   i'l.n\  [SIONS  GOVEENING  RELATIONS  BETWEEN  THE  STATES. 

The  discussion  of  the  privileges  and  immunities  secured  to  citizens  of  each 
state  in  other  states  by  Const,  art.  TV,  §  2,  par.  1,  logically  belongs  here,  but 
for  reasons  of  convenience  it  has  been  treated  in  Chapter  VII,  ante,  as  part  of 
the  historic  development  of  our  fundamental  constitutional  guaranties. 

The  "full  faith  and  credit"  clause  (article  IV,  §  1)  belongs  more  appropriate- 
ly to  the  subject  of  Conflict  of  Laws,  and  so  is  not  treated  in  this  collection 
of  cases.  Similarly,  the  topic  of  the  interstate  rendition  of  fugitives  from 
justice  (article  IV,  §  2,  par.  2)  is  left  to  Criminal  Procedure;  and  the  provi- 
■  regarding  the  interstate  rendition  of  fugitives  from  service  or  labor 
(article  IV,  §  2,  par.  3)  is  now  happily  obsolete  (unless  perhaps  it  be  still  ap- 
plicable to  soldiers  or  sailors — see  Robertson  v.  Baldwin,  ante,  p.  154).  As 
to  its  former  scope,  see  Prigg  v.  Pennsylvania,  16  Pet.  539,  10  L.  Ed.  1060 
(1842). 

Suits  between  states  are  treated  in  Chapter  XX,  §  4,  post,  where  are  dis- 
cussed the  existence  and  enforceability  of  a  variety  of  quasi-international 
obligations  between  states. 

There  remains  under  this  section  heading  the  clause  (article  I,  §  10,  par. 
3)  forbidding  a  state,  without  the  consent  of  Congress,  to  enter  into  any  agree- 
ment or  compact  with  another  state.  This  refers  only  to  agreements  having 
a  substantial  tendency  to  increase  the  political  power  or  influence  of  the 
states  concerned.  Virginia  v.  Tennessee.  148  U.  S.  503,  13  Sup.  Ct.  72S,  37 
L.  Ed.  537  (1893).  See,  also,  Green  v.  Biddle,  8  Wheat.  1,  S5-87,  5  L.  Ed.  547 
(1823);    Stearns  v.  Minnesota,  ante,  p.  1024,  note. 

Here  may  also  be  mooted  the  question  whether  a  state  may,  either  by  in- 
dependent action  or  in  accordance  with  interstate  agreement,  exercise  its  pow- 
ers of  eminent  domain  over  property  within  its  borders,  on  behalf  of  another 
state.  See  Trombley  v.  Humphrey,  23  Mich.  471,  9  Am.  Rep.  94  (1871);  Kohl 
v.  U.  S.,  91  U.  S.  367,  373,  374,  23  L.  Ed.  449  (1876);  Gilmer  v.  Lime  Point,  18 
i  ;il.  229,  252,  253  (1S61) ;  Columbus  Water  Co.  v.  Long,  121  Ala.  245,  25  South. 
702  (189S) ;  Randolph,  Em.  Dom.  §  29;  C.  F.  Randolph  in  2  Col.  L.  Rev.  376- 
::S4;   C.  N.  Gregory  in  21  Harv.  L.  Rev.  23. 

Relations  Between  the  States  and  Other  Domestic  Territory.  —The 
full  governmental  powers  possessed  by  the  United  States  in  the  territories 
and  District  of  Columbia  [see  Downes  v.  Bidwell.  ante,  at  pages  996,  997] 
includes,  owing  to  the  nature  of  our  federal  system,  a  measure  of  control  of 
the  relations  between  these  divisions  and  the  states  that  is  doubtless  at  least 
as  wide  as  the  federal  control  of  relations  between  the  states  themselves. 
See,  for  instance,  Embrey  v.  Palmer,  107  U.  S.  3,  2  Sup.  Ct  25,  27  L.  Ed.  346 
(1883)  (states  required  to  give  full  faith  and  credit  to  public  acts,  records,  and 
judicial  proceedings  of  territories  and  District  of  Columbia) ;  Atchison,  etc., 
Ry.  v.  Sowers,  213  U.  S.  55,  29  Sup.  Ct.  397,  53  L.  Ed.  695  (1909)  (same);  New 
York  ex  rel.  Kopel  v.  Bingham,  211  TJ.  S.  468,  29  Sup.  Ct  190,  53  L.  Ed.  2S6 
i  L909)  (states  required  to  deliver  up  territorial  fugitives  from  justice);  Hauley 
v.  K.  C.  Ry.,  1S7  U.  S.  617,  619,  23  Sup.  Ct.  214,  47  L.  Ed.  333  (1903)  (regula- 
tion of  commerce  crossing  territorial  lines);  Gibbons  v.  Ogden,  ante,  p.  1061, 
note  (same);  Grether  v.  Wright,  75  Fed.  742.  23  C.  C.  A.  49S  (1896)  (District 
of  Columbia  bonds  exempted  from  state  taxation) ;  Lyons  v.  Bank  of  Discount 
(C.  C.)  154  Fed.  391  (1907)  (general  discussion  —  cases). 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1270 

SECTION    2.— BETWEEN    STATES   AND  UNITED   STATES 


McCULLOCH  v.  MARYLAND. 
(Supreme  Court  of  United  States,  1819.    4  Wheat.  316,  4  L.  Ed.  579.) 

[The  facts  and  first  part  of  the  opinion  appear  ante,  pp.  921-30. 
The  remainder,  dealing  with  the  power  of  Maryland  to  tax  the  local 
United  States  branch  bank,  follows :] 

Mr.  Chief  Justice  Marshall.  *  *  *  That  the  power  of  taxa- 
tion is  one  of  vital  importance ;  that  it  is  retained  by  the  states ;  that 
it  is  not  abridged  by  the  grant  of  a  similar  power  to  the  government  of 
the  Union ;  that  it  is  to  be  concurrently  exercised  by  the  two  govern- 
ments: are  truths  which  have  never  been  denied.  But,  such  is  the 
paramount  character  of  the  Constitution,  that  its  capacity  to  withdraw 
any  subject  from  the  action  of  even  this  power,  is  admitted.  The 
states  are  expressly  forbidden  to  lay  any  duties  on  imports  or  exports. 
except  what  may  be  absolutely  necessary  for  executing  their  inspection 
laws.  If  the  obligation  of  this  prohibition  must  be  conceded — if  it 
may  restrain  a  state  from  the  exercise  of  its  taxing  power  on  imports 
and  exports;  the  same  paramount  character  would  seem  to  restrain, 
as  it  certainly  may  restrain,  a  state  from  such  other  exercise  of  this 
power,  as  is  in  its  nature  incompatible  with,  and  repugnant  to,  the 
constitutional  laws  of  the  Union.  A  law,  absolutely  repugnant  to  an- 
other, as  entirely  repeals  that  other  as  if  express  terms  of  repeal  were 
used. 

On  this  ground  the  counsel  for  the  bank  place  its  claim  to  be  ex- 
empted from  the  power  of  a  state  to  tax  its  operations.  There  is  no 
express  provision  for  the  case,  but  the  claim  has  been  sustained  on  a 
principle  which  so  entirely  pervades  the  Constitution,  is  so  intermixed 
with  the  materials  which  compose  it,  so  interwoven  with  its  web,  so 
blended  with  its  texture,  as  to  be  incapable  of  being  separated  from  it, 
without  rending  it  into  shreds. 

This  great  principle  is,  that  the  Constitution  and  the  laws  made  in 
pursuance  thereof  are  supreme ;  that  they  control  the  Constitution  and 
laws  of  the  respective  states,  and  cannot  be  controlled  by  them.  From 
this,  which  may  be  almost  termed  an  axiom,  other  propositions  are 
deduced  as  corollaries,  on  the  truth  or  error  of  which,  and  on  their 
application  to  this  case,  the  cause  has  been  supposed  to  depend.  These 
are,  1st.  That  a  power  to  create  implies  a  power  to  preserve.  2d.  That 
a  power  to  destroy,  if  wielded  by  a  different  hand,  is  hostile  to,  and 
incompatible  with,  these  powers  to  create  and  to  preserve.  3d.  That 
where  this  repugnancy  exists,  that  authority  which  is  supreme  must 
control,  not  yield  to  that  over  which  it  is  supreme.     *     *     * 


[280  rni:  FEDERAL  government  (Part  3 

The  power  of  Congress  to  create,  and  of  course  to  continue,  the 
bank,  was  the  subject  of  the  preceding  part  of  this  opinion;  and  is  no 
longer  to  be  considered  as  questionable. 

the  power  of  taxing  it  by  the  states  may  be  exercised  so  as  to 
destroy  it,  is  too  obvious  to  be  denied.  But  taxation  is  said  to  be  an 
absolute  power,  which  acknowledges  no  other  limits  than  those  ex- 
pressly prescribed  in  the  Constitution,  and  like  sovereign  power  of 
every  other  description,  is  trusted  to  the  discretion  of  those  who  use  it. 
But  the  very  terms  of  this  argument  admit  that  the  sovereignty  of  the 
state,  in  the  article  of  taxation  itself,  is  subordinate  to,  and  may  be 
controlled  by,  the  Constitution  of  the  United  States.  How  far  it  has 
been  controlled  by  that  instrument  must  be  a  question  of  construction. 
In  making  this  construction,  no  principle  not  declared,  can  be  admissi- 
ble, which  would  defeat  the  legitimate  operations  of  a  supreme  gov- 
ernment. It  is  of  the  very  essence  of  supremacy  to  remove  all  obsta- 
cles to  its  action  within  its  own  sphere,  and  so  to  modify  every  power 
vested  in  subordinate  governments,  as  to  exempt  its  own. operations 
from  their  own  influence.  This  effect  need  not  be  stated  in  terms.  It 
is  so  involved  in  the  declaration  of  supremacy,  so  necessarily  implied 
in  it,  that  the  expression  of  it  could  not  make  it  more  certain.  We 
must,  therefore,  keep  it  in  view  while  construing  the  Constitution. 

The  argument  on  the  part  of  the  state  of  Maryland,  is,  not  that  the 
states  may  directly  resist  a  law  of  Congress,  but  that  they  may  exer- 
cise their  acknowledged  powers  upon  it,  and  that  the  Constitution 
leaves  them  this  right  in  the  confidence  that  they  will  not  abuse  it. 

Before  we  proceed  to  examine  this  argument,  and  to  subject  it  to 
the  test  of  the  Constitution,  we  must  be  permitted  to  bestow  a  few  con- 
siderations on  the  nature  and  extent  of  this  original  right  of  taxation, 
which  is  acknowledged  to  remain  with  the  states.  It  is  admitted  that 
the  power  of  taxing  the  people  and  their  property  is  essential  to  the 
very  existence  of  government,  and  may  be  legitimately  exercised  on 
the  objects  to  which  it  is  applicable,  to  the  utmost  extent  to  which  the 
government  may  choose  to  carry  it.  The  only  security  against  the 
abuse  of  this  power,  is  found  in  the  structure  of  the  government  it- 
self. In  imposing  a  tax  the  legislature  acts  upon  its  constituents. 
This  is  in  general  a  sufficient  security  against  erroneous  and  oppressive 
taxation. 

The  people  of  a  state,  therefore,  give  to  their  government  a  right  of 
taxing  themselves  and  their  property,  and  as  the  exigencies  of  govern- 
ment cannot  be  limited,  they  prescribe  no  limits  to  the  exercise  of  this 
right,  resting  confidently  on  the  interest  of  the  legislator,  and  on  the 
influence  of  the  constituents  over  their  representative,  to  guard  them 
against  its  abuse.  But  the  means  employed  by  the  government  of  the 
Union  have  no  such  security,  nor  is  the  right  of  a  state  to  tax  them 
sustained  by  the  same  theory.  Those  means  are  not  given  by  the  peo- 
ple of  a  particular  state,  not  given  by  the  constituents  of  the  legisla- 
ture, which  claim  the  right  to  tax  them,  but  by  the  people  of  all  the 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1281 

states.  They  are  given  by  all,  for  the  benefit  of  all — and  upon  theory, 
should  be  subjected  to  that  government  only  which  belongs  to  all. 

It  may  be  objected  to  this  definition,  that  the  power  of  taxation  is 
not  confined  to  the  people  and  property  of  a  state.  It  may  be  exer- 
cised upon  every  object  brought  within  its  jurisdiction.  This  is  true. 
But  to  what  source  do  we  trace  this  right  ?  It  is  obvious,  that  it  is  an 
incident  of  sovereignty,  and  is  co-extensive  with  that  to  which  it  is  an 
incident.  All  subjects  over  which  the  sovereign  power  of  a  state  ex- 
tends, are  objects  of  taxation ;  but  those  over  which  it  does  not  ex- 
tend, are,  upon  the  soundest  principles,  exempt  from  taxation.  This 
proposition  may  almost  be  pronounced  self-evident. 

The  sovereignty  of  a  state  extends  to  everything  which  exists  by 
its  own  authority,  or  is  introduced  by  its  permission ;  but  does  it  ex- 
tend to  those  means  which  are  employed  by  Congress  to  carry  into 
execution  powers  conferred  on  that  body  by  the  people  of  the  United 
States?  We  think  it  demonstrable  that  it  does  not.  Those  powers  are 
not  given  by  the  people  of  a  single  state.  They  are  given  by  the  peo- 
ple of  the  United  States,  to  a  government  whose  laws,  made  in  pursu- 
ance of  the  Constitution,  are  declared  to  be  supreme.  Consequently, 
the  people  of  a  single  state  cannot  confer  a  sovereignty  which  will  ex- 
tend over  them. 

If  we  measure  the  power  of  taxation  residing  in  a  state,  by  the  ex- 
tent of  sovereignty  which  the  people  of  a  single  state  possess,  and  can 
confer  on  its  government,  we  have  an  intelligible  standard,  applicable 
to  every  case  to  which  the  power  may  be  applied.  We  have  a  princi- 
ple which  leaves  the  power  of  taxing  the  people  and  property  of  a 
state  unimpaired;  which  leaves  to  a  state  the  command  of  all  its  re- 
sources, and  which  places  beyond  its  reach,  all  those  powers  which  are 
conferred  by  the  people  of  the  United  States  on  the  government  of  the 
Union,  and  all  those  means  which  are  given  for  the  purpose  of  carry- 
ing those  powers  into  execution.  We  have  a  principle  which  is  safe 
for  the  states,  and  safe  for  the  Union.  We  are  relieved,  as  we  ought 
to  be,  from  clashing  sovereignty ;  from  interfering  powers ;  from  a 
repugnancy  between  a  right  in  one  government  to  pull  down  what 
there  is  an  acknowledged  right  in  another  to  build  up;  from  the  in- 
compatibility of  a  right  in  one  government  to  destroy  what  there  is  a 
right  in  another  to  preserve.  We  are  not  driven  to  the  perplexing  in- 
quiry, so  unfit  for  the  judicial  department,  what  degree  of  taxation  is 
the  legitimate  use,  and  what  degree  may  amount  to  the  abuse  of  the 
power.  The  attempt  to  use  it  on  the  means  employed  by  the  govern- 
ment of  the  Union,  in  pursuance  of  the  Constitution,  is  itself  an  abuse, 
because  it  is  the  usurpation  of  a  power,  which  the  people  of  a  single 
state  cannot  give. 

We  find,  then,  on  just  theory,  a  total  failure  of  this  original  right  to 
tax  the  means  employed  by  the  government  of  the  Union,  for  the  exe- 
IIat.i.  ConstX. — SI 


12S2  THE    FEDERAL    GOVERNMENT  (Part  3 

cution  of  its  powers.  The  right  never  existed,  and  the  question  wheth- 
er it  has  been  surrendered,  cannot  arise.  But,  waiving  this  theory  for 
the  present,  let  us  resume  the  inquiry,  whether  this  power  can  be  ex- 
ercised by  the  respective  states,  consistently  with  a  fair  construction 
of  the  Constitution? 

That  the  power  to  tax  involves  the  power  to  destroy;  that  the  power 
to  destroy  may  defeat  and  render  useless  the  power  to  create;  that 
there  is  a  plain  repugnance,  in  conferring  on  one  government  a.  power 
to  control  the  constitutional  measures  of  another,  which  other,  with 
respect  to  those  very  measures,  is  declared  to  be  supreme  over  that 
which  exerts  the  control,  are  propositions  not  to  be  deneid.  But  al 
inconsistencies  are  to  be  reconciled  by  the  magic  of  the  word  "conn 
dence."  Taxation,  it  is  said,  does  not  necessarily  and  unavoidably  de- 
stroy. To  carry  it  to  the  excess  of  destruction  would  be  an  abuse,  to 
presume  which,  would  banish  that  confidence  which  is  essential  to  all 
government. 

But  is  this  a  case  of  confidence?  Would  the  people  of  any  one 
state  trust  those  of  another  with  a  power  to  control  the  most  insignifi- 
cant operations  of  their  state  government  ?  We  know  they  would  not. 
Why,  then,  should  we  suppose  that  the  people  of  any  one  state  should 
be  willing  to  trust  those  of  another  with  a  power  to  control  the  opera- 
tions of  a  government  to  which  they  have  confided  their  most  impor- 
tant and  most  valuable  interests?  In  the  legislature  of  the  Union 
alone,  are  all  represented.  The  legislature  of  the  Union  alone,  there- 
fore, can  be  trusted  by  the  people  with  the  power  of  controlling  meas- 
ures which  concern  all,  in  the  confidence  that  it  will  not  be  abused. 
This,  then,  is  not  a  case  of  confidence,  and  we  must  consider  it  as  it 
really  is. 

If  we  apply  the  principle  for  which  the  state  of  Maryland  contends, 
to  the  Constitution  generally,  we  shall  find  it  capable  of  changing  to- 
tally the  character  of  that  instrument.  We  shall  find  it  capable  of 
arresting  all  the  measures  of  the  government,  and  of  prostrating  it  at 
the  foot  of  the  states.  The  American  people  have  declared  their  Con- 
stitution, and  the  laws  made  in  pursuance  thereof,  to  be  supreme;  but 
this  principle  would  transfer  the  supremacy,  in  fact,  to  the  states. 

If  the  states  may  tax  one  instrument,  employed  by  the  government 
in  the  execution  of  its  powers,  they  may  tax  any  and  every  other  in- 
strument. They  may  tax  the  mail ;  they  may  tax  the  mint ;  they  may 
tax  patent  rights ;  they  may  tax  the  papers  of  the  custom-house ;  the} 
may  tax  judicial  process;  they  may  tax  all  the  means  employed  by  th< 
government,  to  an  excess  which  would  defeat  all  the  ends  of  govern- 
ment. This  was  not  intended  by  the  American  people.  They  did  not 
design  to  make  their  government  dependent  on  the  states. 

Gentlemen  say,  they  do  not  claim  the  right  to  extend  state  taxation 
to  these  objects.  They  limit  their  pretensions  to  property.  But  on 
what  principle  is  this  distinction  made?    Those  who  make  it  have  fur- 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1283 

nished  no  reason  for  it,  and  the  principle  for  which  they  contend  de- 
nies it.  They  contend  that  the  power  of  taxation  has  no  other  limit 
than  is  found  in  the  10th  section  of  the  1st  article  of  the  Constitution; 
that,  with  respect  to  everything  else,  the  power  of  the  states  is  su- 
preme, and  admits  of  no  control.  If  this  be  true,  the  distinction  be- 
tween property  and  other  subjects  to  which  the  power  of  taxation  is 
applicable,  is  merely  arbitrary,  and  can  never  be  sustained.  This  is 
not  all.  If  the  controlling  power  of  the  states  be  established;  if  their 
supremacy  as  to  taxation  be  acknowledged ;  what  is  to  restrain  their 
exercising  this  control  in  any  shape  they  may  please  to  give  it?  Their 
sovereignty  is  not  confined  to  taxation.  That  is  not  the  only  mode  in 
which  it  might  be  displayed.  The  question  is,  in  truth,  a  question  of 
supremacy;  and  if  the  right  of  the  states  to  tax  the  means  employed 
by  the  general  government  be  conceded,  the  declaration  that  the  Con- 
stitution, and  the  laws  made  in  pursuance  thereof,  shall  be  the  supreme 
law  of  the  land,  is  empty  and  unmeaning  declamation.     *     *     * 

[After  referring  to  the  arguments  of  the  "Federalist":]  It  has  also 
been  insisted,  that,  as  the  power  of  taxation  in  the  general  and  state 
governments  is  acknowledged  to  be  concurrent,  every  argument  which 
would  sustain  the  right  of  the  general  government  to  tax  banks  char- 
tered by  the  states,  will  equally  sustain  the  right  of  the  states  to  tax 
banks  chartered  by  the  general  government. 

But  the  two  cases  are  not  on  the  same  reason.  The  people  of  all 
the  states  have  created  the  general  government,  and  have  conferred 
upon  it  the  general  power  of  taxation.  The  people  of  all  the  states, 
and  the  states  themselves,  are  represented  in  Congress,  and,  by  their 
representatives,  exercise  this  power.  When  they  tax  the  chartered  in- 
stitutions of  the  states,  they  tax  their  constituents;  and  these  taxes 
must  be  uniform.  But  when  a  state  taxes  the  operations  of  the  gov- 
ernment of  the  United  States,  it  acts  upon  institutions  created,  not  by 
their  own  constituents,  but  by  people  over  whom  they  claim  no  con- 
trol. It  acts  upon  the  measures  of  a  government  created  by  others  as 
well  as  themselves,  for  the  benefit  of  others  in  common  with  them- 
selves. The  difference  is  that  which  always  exists,  and  always  must 
xist,  between  the  action  of  the  whole  on  a  part,  and  the  action  of  a 
■art  on  the  whole — between  the  laws  of  a  government  declared  to  be 
supreme,  and  those  of  a  government  which,  when  in  opposition  to 
those  laws,  is  not  supreme.  But  if  the  full  application  of  this  argu- 
ment could  be  admitted,  it  might  bring  into  question  the  right  of  Con- 
gress to  tax  the  state  banks,  and  could  not  prove  the  right  of  the 
states  to  tax  the  Bank  of  the  United  States. 

The  court  has  bestowed  on  this  subject  its  most  deliberate  consider- 
ation. The  result  is  a  conviction  that  the  states  have  no  power,  by 
taxation  or  otherwise,  to  retard,  impede,  burden,  or  in  any  manner 
control,  the  operations  of  the  constitutional  laws  enacted  by  Congress 
to  carry  into  execution  the  powers  vested  in  the  general  government. 


1284  THE    FEDERAL    GOVERNMENT  (Part  3 

This  is,  we  think,  the  unavoidable  consequence  of  that  supremacy 
which  the  Constitution  has  declared.  We  are  unanimously  of  opinion, 
that  the  law  passed  by  the  legislature  of  Maryland,  imposing  a  tax  on 
the  Hank  of  the  United  States,  is  unconstitutional  and  void. 

This  opinion  does  not  deprive  the  states  of  any  resources  which 
they  originally  possessed.  It  does  not  extend  to  a  tax  paid  by  the 
real  property  of  the  bank,  in  common  with  the  other  real  property 
within  the  state,  nor  to  a  tax  imposed  on  the  interest  which  the  citi- 
zens of  Maryland  may  hold  in  this  institution,  in  common  with  other 
property  of  the  same  description  throughout  the  state.  But  this  is  a 
tax  on  the  operations  of  the  bank,  and  is,  consequently,  a  tax  on  the 
operation  of  an  instrument  employed  by  the  government  of  the  Union 
to  carry  its  powers  into  execution.  Such  a  tax  must  be  unconstitu- 
tional. 

Judgment  reversed.1 


WESTON  v.  CITY  COUNCIL  OF  CHARLESTON. 

(Supreme  Court  of  United  States,  1829.     2  Pet  449,  7  L.  Ed.  481.) 

[Error  to  the  Constitutional  Court  of  South  Carolina.  A  Charles- 
ton city  ordinance  of  1823  taxed  certain  moneyed  personal  estate,  in- 
cluding United  States  bonds  ("stock"),  one-fourth  of  one  per  cent.  A 
prohibition  restraining  said  taxation  upon  United  States  bonds,  granted 
by  the  local  Court  of  Common  Pleas,  was  reversed  by  the  state  Con- 
stitutional Court  and  this  writ  was  taken.] 

Mr.  Chief  Justice  Marshall.  *  *  *  Is  the  stock  issued  for 
loans  made  to  the  government  of  the  United  States  liable  to  be  taxed 
by  states  and  corporations? 

Congress  has  power  "to  borrow  money  on  the  credit  of  the  United 
States."  The  stock  it  issues  is  the  evidence  of  a  debt  created  by  the 
exercise  of  this  power.  The  tax  in  question  is  a  tax  upon  the  con- 
tract subsisting  between  the  government  and  the  individual.     It  bears 

i  Accord:  Osborn  v.  Bank  of  U.  S.,  9  Wheat.  738,  6  L.  Ed.  204  (1824)  (same 
point  re-argued).  So  also  of  any  state  tax  on  the  business  of  a  private  con- 
done for  the  United  States,  Teleg.  Co.  v.  Texas,  10o  U.  S.  4G0,  26  L. 
Ed.  1067  (1882);  Williams  v.  Talladega,  226  U.  S.  404,  417-419,  33  Sup.  Ct.  116, 
57  L.  Ed. (1912) ;  or  of  laws  attempting  to  exclude  from  a  state  any  cor- 
poration employed  by  the  United  States,  Pembina  Co.  v.  Pennsylvania,  ante, 
at  page 

In   Canada  banks  chartered  by  the  Dominion  government  have  been  held 

y  the  provincial  governments.    Bank  of  Toronto  v.  Lambe,  12  A.  C. 

87).      In  Australia   the  principle  of  McCulloch  v.    Maryland  has  been 

held   applicable  to  the   relations  between  the  Commonwealth   and  the  state 

D'Emden  v.  Pedder,  1  Com.  L.  R.  91  (1904)   (state  tax  on  fed- 

cer's  receipt  for  salary);    Deakin  v.  Webb,  1  Com.   L.   R.  5S5  (1904) 

(state  Income  tax  on  federal  officer's  salary),  affirmed  in  Baxter  v.  Com'rs,  4 

Com.  L.  R.  1087  (1907)  [despite  contrary  opinion  of  Privy  Council  on  appeal 

from  a  state  court  in  Webb  v.  Outrim    (1907)  A.  C.  811,  and  an  appeal  to  the 

Privy  Council  denied  in  Flint  v.  Webb,  4  Com.  L.  R.  1178  (1907);    Com.  v.  N. 

S.  Wales.  3  Cum.  L.  R.  807  (1906)  (state  tax  on  deed  of  land  to  Commonwealth). 


Ch.  19)  IHTERGOVEBNMENTAL   EOLATIONS  1235 

directly  upon  that  contract,  while  subsisting  and  in  full  force.  The 
power  operates  upon  the  contract  the  instant  it  is  framed,  and  must 
imply  a  right  to  affect  that  contract.  If  the  states  and  corporations 
throughout  rhe  Union  possess  the  power  to  tax  a  contract  for  the  loan 
of  money,  what  shall  arrest  this  principle  in  its  application  to  every 
other  contract?  What  measure  can  government  adopt  which  will  not 
be  exposed  to  its  influence? 

But  it  is  unnecessary  to  pursue  this  principle  through  its  diversified 
application  to  all  the  contracts,  and  to  the  various  operations  of  gov- 
ernment. No  one  can  be  selected  which  is  of  more  vital  interest  to  the 
community  than  this  of  borrowing  money  on  the  credit  of  the  United 
States.  No  power  has  been  conferred  by  the  American  people  on  their 
government,  the  free  and  unburdened  exercise  of  which  more  deeply 
affects  every  member  of  our  republic.  In  war,  when  the  honor,  the 
safety,  the  independence  of  the  nation  are  to  be  defended,  when  all 
its  resources  are  to  be  strained  to  the  utmost,  credit  must  be  brought 
in  aid  of  taxation,  and  the  abundant  revenue  of  peace  and  prosperity 
must  be  anticipated  to  supply  the  exigencies,  the  urgent  demands  of 
the  moment.  The  people,  for  objects  the  most  important  which  can 
occur  in  the  progress  of  nations,  have  empowered  their  government  to 
make  these  anticipations,  "to  borrow  money  on  the  credit  of  the 
United  States."  Can  anything  be  more  dangerous,  or  more  injurious, 
than  the  admission  of  a  principle  which  authorizes  every  state  and 
every  corporation  in  the  Union  which  possesses  the  right  of  taxation, 
to  burden  the  exercise  of  this  power  at  their  discretion  ? 

If  the'  right  to  impose  the  tax  exists,  it  is  a  right  which  in  its  nature 
acknowledges  no  limits.  It  may  be  carried  to  any  extent  within  the 
jurisdiction  of  the  state  or  corporation  which  imposes  it,  which  the 
will  of  each  state  and  corporation  may  prescribe.  A  power  which  is 
given  by  the  whole  American  people  for  their  common  good,  which  is 
to  be  exercised  at  the  most  critical  periods  for  the  most  important  pur- 
poses, on  the  free  exercise  of  which  the  interests  certainly,  perhaps  the 
liberty  of  the  whole  may  depend;  may  be  burdened,  impeded,  if  not 
arrested,  by  any  of  the  organized  parts  of  the  confederacy. 

In  a  society  formed  like  ours,  with  one  supreme  government  for 
national  purposes,  and  numerous  state  governments  for  other  pur- 
poses, in  many  respects  independent,  and  in  the  uncontrolled  exercise 
of  many  important  powers,  occasional  interferences  ought  not  to  sur- 
prise us.  The  power  of  taxation  is  one  of  the  most  essential  to  a 
state,  and  one  of  the  most  extensive  in  its  operation.  The  attempt  to 
maintain  a  rule  which  shall  limit  its  exercise,  is  undoubtedly  among 
the  most  delicate  and  difficult  duties  which  can  devolve  on  those  whose 
province  it  is  to  expound  the  supreme  law  of  the  land  in  its  application 
to  the  cases  of  individuals.  This  duty  has  more  than  once  devolve. i 
on  this  court.     In  the  performance  of  it  we  have  considered  it  as  a 


1286  THE    FEDERAL    GOVERNMENT  (Part  3 

necessary  consequence  from  the  supremacy  of  the  government  of  the 
whole,  that  its  action  in  the  exercise  of  its  legitimate  powers,  should 
be  free  and  unembarrassed  by  any  conflicting  powers  in  the  possession 
of  its  parts;  that  the  powers  of  a  state  cannot  rightfully  be  so  exer- 
cised as  to  impede  and  obstruct  the  free  course  of  those  measures 
which  the  government  of  the  states  united  may  rightfully  adopt. 

This  subject  was  brought  before  the  court  in  the  case  of  McCulloch 
v.  State  of  Maryland,  4  Wheat.  316,  4  L.  Ed.  579,  when  it  was  thor- 
oughly argued  and  deliberately  considered.  *  *  *  The  court  said 
in  that  case,  that  "the  states  have  no  power  by  taxation,  or  otherwise, 
to  retard,  impede,  burden,  or  in  any  manner  control  the  operation  of 
the  constitutional  laws  enacted  by  Congress,  to  carry  into  execution 
the  powers  vested  in  the  general  government." 

We  retain  the  opinions  which  were  then  expressed.  A  contract 
made  by  the  government  in  the  exercise  of  its  power,  to  borrow  money 
on  the  credit  of  the  United  States,  is  undoubtedly  independent  of  the 
will  of  any  state  in  which  the  individual  who  lends  may  reside,  and  is 
undoubtedly  an  operation  essential  to  the  important  objects  for  which 
the  government  was  created.  It  ought,  therefore,  on  the  principles 
settled  in  the  case  of  McCulloch  v.  State  of  Maryland,  to  be  exempt 
from  state  taxation,  and  consequently  from  being  taxed  by  corpora- 
tions deriving  their  power  from  states. 

It  is  admitted  that  the  power  of  the  government  to  borrow  money 
cannot  be  directly  opposed,  and  that  any  law  directly  obstructing  its 
operation  would  be  void ;  but  a  distinction  is  taken  between  direct  op- 
position and  those  measures  which  may  consequentially  affect  .it;  that 
is,  that  a  law  prohibiting  loans  to  the  United  States  would  be  void,  but 
a  tax  on  them  to  any  amount  is  allowable.  It  is,  we  think,  impossible 
not  to  perceive  the  intimate  connection  which  exists  between  these 
two  modes  of  acting  on  the  subject. 

It  is  not  the  want  of  original  power  in  an  independent  sovereign 
state,  to  prohibit  loans  to  a  foreign  government,  which  restrains  the 
legislature  from  direct  opposition  to  those  made  by  the  United  States. 
The  restraint  is  imposed  by  our  Constitution.  The  American  people 
have  conferred  the  power  of  borrowing  money  on  their  government, 
and  by  making  that  government  supreme,  have  shielded  its  action,  in 
the  exercise  of  this  power,  from  the  action  of  the  local  governments. 
The  grant  of  the  power  is  incompatible  with  a  restraining  or  control- 
ling power,  and  the  declaration  of  supremacy  is  a  declaration  that  no 
such  restraining  or  controlling  power  shall  be  exercised.  The  right 
to  tax  the  contract  to  any  extent,  when  made,  must  operate  upon  the 
power  to  borrow  before  it  is  exercised,  and  have  a  sensible  influence 
on  the  contract.  The  extent  of  this  influence  depends  on  the  will  of 
a  distinct  government.  To  any  extent,  however  inconsiderable,  it  is 
a  burden  on  the  operations  of  government.  It  may  be  carried  to  an 
extent  which  shall  arrest  them  entirely. 


Ch.  lit)  INTERGOVERNMENTAL   RELATIONS  1287 

It  is  admitted  by  the  counsel  for  the  defendants,  that  the  power  to 
tax  stock  must  affect  the  terms  on  which  loans  will  be  made ;  but  this 
objection,  it  is  said,  has  no  more  weight  when  urged  against  the  ap- 
plication of  an  acknowledged  power  to  government  stock,  than  if 
urged  against  its  application  to  lands  sold  by  the  United  States.  The 
distinction  is,  we  think,  apparent.  When  lands  are  sold,  no  connection 
remains  between  the  purchaser  and  the  government.  The  lands  pur- 
chased become  a  part  of  the  mass  of  property  in  the  country  with  no 
implied  exemption  from  common  burdens.  All  lands  are  derived  from 
the  general  or  particular  government,  and  all  lands  are  subject  to  tax- 
ation.  Lands  sold  are  in  the  condition  of  money  borrowed  and  repaid. 
Its  liability  to  taxation  in  any  form  it  may  then  assume  is  not  ques- 
tioned. The  connection  between  the  borrower  and  the  lender  is  dis- 
solved. It  is  no  burden  on  loans,  it  is  no  impediment  to  the  power  of 
borrowing,  that  the  money,  when  repaid,  loses  its  exemption  from  tax- 
ation. But  a  tax  upon  debts  due  from  the  government,  stands,  we 
think,  on  very  different  principles  from  a  tax  on  lands  which  the  gov- 
ernment has  sold.     *     *     * 

It  has  been  supposed  that  a  tax  on  stock  comes  within  the  excep- 
tions stated  in  the  case  of  McCulloch  v.  State  of  Maryland.  We  do 
not  think  so.  The  Bank  of  the  United  States  is  an  instrument  essen- 
tial to  the  fiscal  operations  of  the  government,  and  the  power  which 
might  be  exercised  to  its  destruction  was  denied.  But  property  ac- 
quired by  that  corporation  in  a  state  was  supposed  to  be  placed  in  the 
same  condition  with  property  acquired  by  an  individual.  The  tax  on 
government  stock  is  thought  by  this  court  to  be  a  tax  on  the  contract, 
a  tax  on  the  power  to  borrow  money  on  the  credit  of  the  United 
States,  and  consequently  to  be  repugnant  to  the  Constitution.     *     *     * 

Judgment  reversed.1 

[Johnson  and  Thompson,  JJ.,  gave  dissenting  opinions.] 

i  Accord:  The  Banks  v.  The  Mayor,  7  Wall.  16,  19  L.  Ed.  57  (1S69)  (United 
States  certificates  of  indebtedness  not  payable  Immediately);  runic  y.  Super- 
visors, 7  Wall.  26,  19  L.  I'M.  60  (]  tender  notes,  exempted  by  Con- 
press):  Grethor  v.  Wright,  7.".  Fed.  742.  2::  C.  C.  A.  49s  (1896)  (District  of 
Columbia  bonds  exempted  by  Congress).  United  States  notes  and  certificates, 
payable  on  demand  and  circulating  as  money,  are  now  subiect  to  state  taxa- 
tion (Act  Aug.  13,  1894,  c.  281,  28  Stat.  278  [U.  S.  Comp.  St  1901,  p.  239S]) ; 
as  arc  government  Checks  anil  warrants,  Ribernia  Society  v.  San  Francisco, 
200  U.  S.  .".10.  26  Sup.  Ct  20.-,.  50  L.  Ed.  495,  4  Ann.  Cas.  0M4  (1906). 

Conversely,  the  United  States  cannot  levy  an  income  tax  upon  the  interest 
from  state  or  municipal  securities.  Pollock  v.  Farmers'  L.  &  T.  Co.,  157  U. 
s.  129,  588-686,  15  Sup.  Ct.  C73,  39  L.  Ed.  1108  (1S95)  (all  judges  concurring) : 
nor  compel  the  states  to  receive  federal  legal  tender  notes  in  payment  of  state 
taxes,  Lane  Co.  v.  Oregon,  7  Wall.  71,  19  L.  Ed.  101  (1S69)  (semble). 


12S8  THE    FEDERAL    GOVERNMENT  (Part  3 

HOME  SAVINGS  BANK  v.  DES  MOINES  (i907)  205  U.  S. 
503,  514-519,  27  Sup.  Ct.  571,  51  L.  Ed.  901,  Mr.  Justice  Moody 
^holding,  under  an  Iowa  tax  law  assessing  shares  of  stock  of  state 
banks  to  the  banks  and  not  to  the  individual  stockholders,  that  the 
value  of  United  States  bonds  owned  by  the  banks  must  be  deducted 
from  said  assessment): 

[After  referring  to  Weston  v.  Charleston;  ante,  p.  1284:]  "From 
that  time  no  one  has  questioned  the  immunity  of  national  securities 
from  state  taxation.  It  may  well  be  doubted  whether  Congress  has 
the  power  to  confer  upon  the  state  the  right  to  tax  obligations  of  the 
United  States.1  However  this  may  be,  Congress  has  never  yet  at- 
tempted to  confer  such  a  right.  *  *  *  That  the  tax  upon  the 
property  of  a  bank  in  which  United  States  securities  are  included  is 
beyond  the  power  of  the  state,  and,  what  perhaps  is  of  lesser  moment, 
within  the  prohibition  of  the  statutory  law,  hardly  needs  to  be  proved 
by  authority.  But  the  authority  is  clear  and  conclusive.  *  *  * 
[Here  are  stated  Bank  of  Commerce  v.  New  York,  2  Black,  620,  17 
L.  Ed.  451,  and  Bank  Tax  Case,  2  Wall.  200,  17  L.  Ed.  793.] 

"The  case  at  bar  cannot  be  distinguished  in  principle  from  these 
cases.  In  the  first  case  the  tax  was  on  the  capital  stock  at  its  actual 
value ;  in  the  second  case  on  the  amount  of  the  capital  stock  and  the 
surplus  earnings ;  and,  in  the  case  at  bar,  on  the  shares  of  the  stock, 
taking  into  account  the  capital,  surplus,  and  undivided  earnings.  It 
would  be  difficult  for  the  most  ingenious  mind  and  the  most  accom- 
plished pen  to  state  any  distinction  between  these  three  laws,  except 
in  the  manner  by  which  they  all  sought  the  same  end, — the  taxation  of 
the  property  of  the  bank.     *     *     * 

"It  is,  however,  contended  that  although  these  cases  have  not  been 
overruled,  distinctions  have  been  drawn  in  later  cases  which  are  ap- 
plicable here.  *  *  *  These  cases  relate  to  the  right  of  the  state  to 
tax  at  their  full  value  shares  of  stock  as  the  property  of  the  share- 
holders. Although  the  states  may  not,  in  any  form,  levy  a  tax  upon 
United  States  securities,  they  may  tax,  as  the  property  of  their  own- 
ers, the  shares  of  banks  and  other  corporations  whose  assets  consist 
in  whole  or  in  part  of  such  securities,  and,  in  valuing  the  shares 
for  the  purposes  of  taxation,  is  not  necessary  to  deduct  the  value 
of  the  national  securities  held  by  the  corporation  whose  shares  are 
taxed.     *     *     * 

"This  distinction,  now  settled  beyond  dispute,  was  mentioned  in 
McCulloch  V.  Maryland,  4  Wheat.  316,  4  L.  Ed.  579,  where,  in  the 
opinion  of  Chief  Justice  Marshall  declaring  a  tax  upon  the  circulation 
of  a  branch  bank  of  the  United  States  beyond  the  power  of  the  state 

i  But  see  Chaplin  v.  Comm'r,  12  Com.  L.  R.  375  (Australia,  1911)  (Coimnon- 
wealth  may  authorize  state  taxation  of  federal  salaries;  previously  held  in- 
valid without  such  authority). 


Ch.  19)  INTERGOVERNMENTAL   RELATIONS  1289 

of  Maryland,  it  was  said  that  the  opinion  did  not  extend  'to  a  tax  im- 
posed on  the  interest  which  the  citizens  of  Maryland  may  hold  in  this 
institution,  in  common  with  other  property  of  the  same  description 
throughout  the  state.'  The  distinction  appears,  however,  to  have  been 
first  made  the  basis  of  a  decision  in  Van  Allen  v.  Assessors  (Churchill 
v.  Utica),  3  Wall.  573,  18  L.  Ed.  229,  *  *  *  [arising  under  a  fed- 
eral statute  of  1864  permitting  state  taxation  of  the  shares  of  national 
banks.  This  tax  was  upheld,  even  when  all  of  the  capital  of  the  bank- 
was  invested  in  non-taxable  United  States  securities],  a  majority  of 
the  court     *     *     *     saying  by  Mr.  Justice  Nelson: 

"  'The  tax  on  the  shares  is  not  a  tax  on  the  capital  of  the  bank. 
The  corporation  is  the  legal  owner  of  all  the  property  of  the  bank, 
real  and  personal ;  and,  within  the  powers  conferred  upon  it  by  the 
charter,  and  for  the  purposes  for  which  it  was  created,  can  deal  with 
the  corporate  property  as  absolutely  as  a  private  individual  can  deal 
with  his  own.  *  *  *  The  interest  of  the  shareholder  entitles  him 
to  participate  in  the  net  profits  earned  by  the  bank  in  the  employment 
of  its  capital,  during  the  existence  of  its  charier,  in  proportion  to  the 
number  of  his  shares ;  and,  upon  its  dissolution  or  termination,  to  his 
proportion  of  the  property  that  may  remain  of  the  corporation  after 
the  payment  of  its  debts.  This  is  a  distinct,  independent  interest  or 
property,  held  by  the  shareholder  like  any  other  property  that  may  be- 
long to  him.'     *     *     * 

"The  Van  Allen  Case  has  settled  the  law  that  a  tax  upon  the  own- 
ers of  shares  of  stock  in  corporations,  in  respect  of  that  stock,  is  not  a 
tax  upon  United  States  securities  which  the  corporations  own.  Ac- 
cordingly, such  taxes  have  been  sustained  by  this  court,  whether  levied 
upon  the  shares  of  national  banks  by  virtue  of  the  congressional  per- 
mission, or  upon  shares  of  state  corporations  by  virtue  of  the  power 
inherent  in  the  state  to  tax  the  shares  of  such  corporation.  The  tax 
assessed  to  shareholders  may  be  required  by  law  to  be  paid  in  the  first 
instance  by  the  corporations  themselves,  as  the  debt  and  in  behalf  of 
the  shareholder,  leaving  to  the  corporation  the  right  to  reimbursement 
for  the  tax  paid  from  their  shareholders,  either  under  some  express 
statutory  authority  for  their  recovery  or  under  the  general  principle  of 
law  that  one  who  pays  the  debt  of  another,  at  his  request,  can  recover 
the  amount  from  him.  First  Nat.  Bank  v.  Kentucky,  9  Wall.  353.  1(> 
L.  Ed.  701.  [Citing  other  cases.]  The  theory  sustaining  these  cases 
is  that  the  tax  was  not  upon  the  corporations'  holdings  of  bonds,  but 
on  the  shareholders'  holdings  of  stock;  and  an  examination  of  them 
shows  that  in  every  case  the  tax  was  assessed  upon  the  property  of 
the  shareholders,  and  not  upon  the  property  of  the  corporation.  There 
is  nothing  in  them  which  justifies  the  tax  under  consideration  here, 
levied,  as  has  been  shown,  on  the  corporate  property.     *     *     * 

"It  is  said  that  where  a  tax  is  levied  upon  a  corporation,  measured 
by  the  value  of  the  shares  in  it,  it  is  equivalent  in  its  effect  to  a  tax 


1 2D0  tttf:  federal  government  (Part  3 

(clearly  valid)  upon  the  shareholders  in  respect  of  their  shares,  be- 
being  paid  by  the  bank,  the  burden  falls  eventually  upon  the 
shareholders  in  proportion  to  their  holdings.  It  was  upon  this  view 
that  the  lower  court  rested  its  opinion.  But  the  two  kinds  of  taxes 
are  not  equivalent  in  law,  because  the  state  has  the  power  to  levy  one, 
and  has  not  the  power  to  levy  the  other.  The  question  here  is  one  of 
power,  and  not  of  economics.  If  the  state  has  not  the  power  to  levy 
this  tax,  we  will  not  inquire  whether  another  tax,  which  it  might  law- 
fully impose,  would  have  the  same  ultimate  incidence.  Precisely  the 
same  argument  was  made  and  rejected  in  Owensboro  Nat.  Bank  v. 
Owensboro,  173  U.  S.  664,  43  L.  Ed.  850,  19  Sup.  Ct.  537."  *  *  * 
[Fuller,  C.  J.,  and  Harlan  and  Peckham,  JJ.,  dissented.] 


HOME  INS.  CO.  v.  NEW  YORK. 

(Snprome  Court  of  United  States,  1S89.     134  U.  S.  504,  10  Sup.  Ct.  593,  33  L. 
Ed.  1025.) 

[Error  to  the  Supreme  Court  of  New  York.  A  New  York  statute 
of  1881  taxed  certain  corporations  upon  their  "corporate  franchise  or 
business"  at  the  rate  of  one-fourth  mill  upon  their  corporate  stock  for 
each  one  per  cent,  of  dividend  declared,  this  rate  being  reduced  where 
dividends  were  less  than  6  per  cent.  About  two-thirds  of  the  capital 
stock  of  the  Home  Insurance  Company  being  invested  in  United  States 
bonds,  it  claimed  a  proportionate  reduction  in  the  amount  of  its  tax 
under  this  law.  The  judgment  of  the  Court  of  Appeals  denying  this 
claim  was  entered  in  the  state  Supreme  Court  and  this  writ  taken.] 

Mr.  Justice  Field.  The  contention  of  the  plaintiff  in  error  is  that 
i  lie  tax  in  question  was  levied  upon  its  capital  stock,  and  therefore 
invalid  so  far  as  the  bonds  of  the  United  States  constitute  a  part  of 
that  stock.  If  that  contention  were  well  founded,  there  would  be  no 
question  as  to  the  invalidity  of  the  tax.  That  the  bonds  or  obligations 
of  the  United  States  for  the  payment  of  money  cannot  be  the  subject 
of  taxation  by  a  state,  is  familiar  law,  settled  by  numerous  adjudica- 
tions of  this  court.     *     *     * 

Looking  now  at  the  tax  in  this  case  upon  the  plaintiff  in  error,  we 
are  unable  to  perceive  that  it  falls  within  the  doctrines  of  any  of  the 
cases  cited,  to  which  we  fully  assent,  not  doubting  their  correctness  in 
any  particular.  It  is  not  a  tax,  in  terms,  upon  the  capital  stock  of  the 
company,  nor  upon  any  bonds  of  the  United  States  composing  a  part 
of  that  stock.  The  statute  designates  it  as  a  tax  upon  the  "corporate 
franchise  or  business"  of  the  company,  and  reference  is  only  made  to 
its  capital  stock  and  dividends  for  the  purpose  of  determining  the 
amount  of  the  tax  to  be  exacted  each  year.  By  the  term  "corporate 
franchise  or  business,"  as  here  used,  we  understand  is  meant  (not  re- 
ferring to  corporations  sole,  which  are  not  usually  created  for  com- 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1291 

mercial  business)  the  right  or  privilege  given  by  the  state  to  two  or 
more  persons  of  being  a  corporation,  that  is,  of  doing  business  in  a 
corporate  capacity,  and  not  the  privilege  or  franchise  which,  when  in- 
corporated, the  company  may  exercise. 

The  right  or  privilege  to  be  a  corporation,  or  to  do  business  as  such 
a  body,  is  one  generally  deemed  of  value  to  the  corporators,  or  it  would 
not  be  sought  in  such  numbers  as  at  present.  It  is  a  right  or  privilege 
by  which  several  individuals  may  unite  themselves  under  a  common 
name,  and  act  as  a  single  person,  with  a  succession  of  members,  with- 
out dissolution  or  suspension  of  business,  and  with  a  limited  individual 
liability.  The  granting  of  such  right  or  privilege  rests  entirely  in  the 
discretion  of  the  state,  and,  of  course,  when  granted,  may  be  accom- 
panied with  such  conditions  as  its  legislature  may  judge  most  befitting 
to  its  interests  and  policy.  It  may  require,  as  a  condition  of  the  grant 
of  the  franchise,  and  also  of  its  continued  exercise,  that  the  corpora- 
tion pay  a  specific  sum  to  the  state  each  year  or  month,  or  a  specific 
portion  of  its  gross  receipts,  or  of  the  profits  of  its  business,  or  a  sum 
to  be  ascertained  in  any  convenient  mode  which  it  may  prescribe. 
The  validity  of  the  tax  can  in  no  way  be  dependent  upon  the  mode 
which  the  state  may  deem  fit  to  adopt  in  fixing  the  amount  for  any 
year  which  it  will  exact  for  the  franchise.  No  constitutional  objection 
lies  in  the  way  of  a  legislative  body  prescribing  any  mode  of  measure- 
ment to  determine  the  amount  it  will  charge  for  the  privileges  it  be- 
stows.    *     *     * 

The  tax  in  the  present  case  would  not  be  affected  if  the  nature  of 
the  property  in  which  the  whole  capital  stock  is  invested  were  changed, 
and  put  into  real  property  or  bonds  of  New  York,  or  of  the  other 
states.  From  the  very  nature  of  the  tax,  being  laid  upon  a  franchise 
given  by  the  state,  and  revocable  at  pleasure,  it  cannot  be  affected  in 
any  way  by  the  character  of  the  property  in  which  its  capital  stock  is 
invested.  The  power  of  the  state  over  its  corporate  franchise,  and  the 
conditions  upon  which  it  shall  be  exercised,  is  as  ample  and  plenary 
in  the  one  case  as  in  the  other.     *     *     * 

This  doctrine  of  the  taxability  of  the  franchises  of  a  corporation 
without  reference  to  the  character  of  the  property  in  which  its  capital 
stock  or  its  deposits  are  invested  is  sustained,  by  the  judgments  in  So- 
net v  v.  Coite  and  Institution  v.  Massachusetts,  which  were  before  this 
court  at  the  December  term,  1867.  6  Wall.  594,  18  L.  Ed.  897;  6 
Wall.  611,  18  L.  Ed.  907.  *  *  *  [In  these  cases  taxes  upon  sav- 
ings banks  were  sustained  measured  by  the  amount  of  their  deposits, 
regardless  of  the  investment  of  part  thereof  in  United  States  bonds.] 
In  Hamilton  Co.  v.  Massachusetts,  6  Wall.  632,  18  L.  Ed.  904,  a  stat- 
ute of  Massachusetts  which  required  corporations  having  a  capital 
stock  divided  into  shares  to  pay  a  tax  of  a  certain  percentage  upon 
the  excess  of  the  market  value  of  such  stock  over  the  value  of  its  real 
estate  and  machinery  was  sustained  as  a  statute  imposing  a  franchise 
tax,  notwithstanding  a  portion  of  the  property  which  went  to  make  the 


[292  THE  FEDERAL  GOVERNMENT  (Part  3 

excess  of  the  market  value  consisted  of  securities  of  the  United  States 
*     *     * 

In  this  case,  we  hold,  as  well  upon  general  principles  as  upon  the 
authority  of  the  first  two  cases  cited  from  6  Wall,  that  the  tax  for 
which  the  suit  is  brought  is  not  a  tax  on  the  capital  stock  or  prop- 
erty of  the  company,  but  upon  its  corporate  franchise,  and  is  not, 
•re,  subject  to  the  objection  stated  by  counsel,  because  a  por- 
tion of  its  capital  stock  is  invested  in  securities  of  the  United 
States.     *     *     * 

Judgment  affirmed.1 

[.Miller  and  Harlan,  JJ.,  dissented.] 

i  Accord:  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107,  31  Sup.  Ct.  342,  55  L. 
Ed,  389,  Ann.  Cas.  1912B,  1312  (1911)  (federal  lax  on  privilege  of  doing  busi- 
ness in  corporate  form,  measured  by  total  income,  part  of  which  came  from 
land  or  state  bonds).  See  extract  in  note  to  Pollock  v.  F.  L.  &  T.  Co.,  ante, 
p.  10&>. 

In  Plummer  v.  Coler,  178  TJ.  S.  115,  135,  136-13S,  20  Sup.  Ct.  829,  837,  83S, 
11   1.    Ed.  998  (1900),  a  state  inheritance  tax  upon  United  States  bonds  was 
Shiras,  J.,  saying: 
(in   principle,  if  a  tax  on  inheritances,  composed  in  whole  or  in  part  of 
federal  securities,   would,    by   deterring   individuals   from   investing  therein, 
thus  lessening  the  demand  for  such  securities,  be  regarded  as  there- 
fore unlawful,  it.  must  likewise  follow  that,  for  the  same  reasons,  a  tax  upon 
corporate   franchises   measured   by  the  value  of  the  corporation's  property. 
ed  in  whole  or  in  part  of  United  States  bonds,  would  also  be  unlawful. 
«     *     * 

"It  is  further  contended  that  there  is  a  vital  difference  between  the  indi- 
vidual and  the  corporation:  that  the  individual  exists  and  carries  on  his 
operations  under  natural  power  and  of  common  right,  while  the  corporation 
is  an  artificial  being,  created  by  the  state  and  dependent  upon  the  state  for 
i he  continuance  of  its  existence,  and  subject  to  regulations  and  to  the  imposi- 
tion oi  burdens  upon  it  by  the  state,  not  at  all  applicable  to  natural  persons. 

"Without  undertaking  to  go  beyond  what  has  already  been  decided  by  this 
court  in  Mager  v.  Grima,  8  How.  490,  12  L.  Ed.  1168  (1850);  in  Scholey  v. 
Rew,  23  Wall.  331,  23  L.  Ed.  99  (1S75),  and  in  United  States  v.  Perkins,  163 
U.  S.  C25,  41  L.  Ed.  287,  16  Sup.  Ct.  1073  (1S96),  and  in  the  other  cases  here- 
tofore cited,  we  may  regard  it  as  established  that  the  relation  of  the  indi- 
vidual citizen  and  resident  to  the  state  is  such  that  his  right,  as  the  owner  of 
property,  to  direct  its  descent  by  will,  or  by  permitting  its  descent  to  be  reg- 
ulated by  the  statute,  and  his  right,  as  legatee,  devisee,  or  heir,  to  receive 
the  property  of  his  testator  or  ancestor,  are  rights  derived  from  and  reg- 
ulated by  the  state,  and  we  are  unable  to  perceive  any  sound  distinction  that 
can  be  drawn  between  the  power  of  the  state  in  imposing  taxes  upon  fran- 
chises of  corporations,  composed  of  individual  persons,  and  in  imposing  taxes 
upon  the  right  or  privilege  of  individuals  to  avail  themselves  of  the  right 
and  to  receive  property  under  the  statutes  regulating  the  descent  of 
the  property  of  decedents.  And,  at  all  events,  the  mischief  apprehended,  of 
ng  the  borrowing  power  of  the  government  by  state  taxation,  is  the 
same  whether  that  taxation  be  imposed  upon  corporate  franchises  or  upon 
the  privilege  created  and  regulated  by  the  statutes  of  inheritance.     *     *     * 

"It  may  be  opportune  to  mention  that,  even  while  we  have  been  considering 
this  case,  the  United  States  government  has  negotiated  a  public  loan  of  large 
amount  at  a  lower  rate  of  interest  than  ever  before  known.  From  this  it  may 
be  permissible  to  infer  that  the  existence  of  legislation,  whether  state  or  fed- 
eral. Including  federal  securities  as  part  of  the  mass  of  private  property  sub 
Inheritance  taxes,  has  not  practically  injured  or  impaired  the  borrowing 
power  of  the  government" 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  120-1 

NORTH  DAKOTA  v.  HANSON  (1910)  215  U.  S.  515,  524-527, 
30  Sup.  Ct.  179,  54  L.  Ed.  307,  Mr.  Justice  White  (holding  invalid 
a  state  statute  requiring  every  holder  of  a  federal  retail  liquor  license 
to  print  at  his  own  expense  a  notice  thereof  for  three  weeks  in  official 
newspapers,  to  keep  posted  in  his  establishment  an  affidavit  of  said 
publication,  and  to  pay  a  fee  of  $10  for  filing  a  copy  of  said  license 
with  state  officials,  the  statute  being  designed  to  furnish  information 
to  aid  in  the  enforcement  of  the  state  laws  against  illegal  liquor  selling. 
The  federal  regulations  required  holders  of  such  licenses  to  keep  them 
conspicuously  in  their  establishments,  and  required  collectors  of  in- 
ternal revenue  to  keep  in  their  offices  for  public  inspection  the  names 
of  such  license  holders) : 

"Under  the  construction  placed  upon  the  statute  by  the  court  below 
we  see  no  escape  from  the  conclusion  that  it  immediately  and  directly 
places  a  burden  upon  the  lawful  taxing  power  of  the  United  States, 
or,  what  is  equivalent  thereto,  places  the  burden  upon  the  person  who 
pays  the  United  States  tax,  solely  because  of  the  payment  of  such  tax, 
and  wholly  without  reference  to  the  doing  by  the  person  of  any  act 
within  the  state  which  is  subject  to  the  regulating  authority  of  the  state. 
*     *     * 

"It  is  clear  that,  in  principle,  a  state  may  not  so  exert  its  police 
power  as  to  directly  hamper  or  destroy  a  lawful  authority  of  the  gov- 
ernment of  the  United  States.  *  *  *  [In]  United  States  v.  Sny- 
der, 149  U.  S.  210,  37  L.  Ed.  705,  13  Sup.  Ct.  846,  *  *  *  a  cir- 
cuit court  of  the  United  States  had  refused  to  enforce,  in  favor  of  the 
United  States,  a  lien  upon  real  estate  for  taxes  under  the  internal  rev- 
enue laws,  on  the  ground  that  the  lien,  or  assessment  for  the  tax,  had 
not  been  recorded  in  the  mortgage  records  for  the  parish  of  Orleans, 
where  the  real  estate  in  question  was  situated,  as  required  by  the  laws 
of  Louisiana,  and  that  the  proceeding  to  enforce  the  lien  had  not  been 
brought  within  the  period  fixed  by  the  state  law.  *  *  *  In  de- 
ciding that  this  view  was  unsound,  it  was  said : 

"  'The  power  of  taxation  has  always  been  regarded  as  a  necessary 
and  indispensable  incident  of  sovereignty.  A  government  that  cannot, 
by  self-administered  methods,  collect  from  its  subjects  the  means  nec- 
essary to  support  and  maintain  itself  in  the  execution  of  its  functions, 
is  a  government  merely  in  name.  If  the  United  States,  proceeding  in 
one  of  their  own  courts,  in  the  collection  of  a  tax  admitted  to  be  le- 
gitimate, can  be  thwarted  by  the  plea  of  a  state  statute  prescribing 
that  such  a  tax  must  be  assessed  and  recorded  under  state  regulation, 
and  limiting  the  time  within  which  such  tax  shall  be  a  lien,  it  would 
follow  that  the  potential  existence  of  the  government  of  the  United 
States  is  at  the  mercy  of  state  legislation.' 

"Undoubtedly,  as  suggested  by  the  court  below,  there  are  decisions 
of  state  courts  holding  that,  in  a  proceeding  to  enforce  a  penalty  or 
to  punish  for  a  violation  of  a  state  law  as  to  the  sale  of  liquor,  the 


1294  THE  FEDERAL  GOVERNMENT  (Part  3 

payment  of  the  special  United  States  tax  and  taking  of  a  receipt  there- 
for by  the  defendant  may  be  offered  in  evidence,  and  creates  a  prima 
facie  presumption  that  the  person  paying  the  tax  and  holding  the  re- 
ceipt was  engaged  in  the  business  of  selling  liquor.1  Without  in  any- 
wise intimating  an  opinion  as  to  the  soundness  of  the  decisions  thus 
referred  to,  and  assuming  only  for  the  purpose  of  the  argument  their 
correctness,  we  yet  fail  to  see  how  in  any  respect  they  can  be  consid- 
ered persuasive  as  to  the  compatibility  of  the  statute  here  under  con- 
sideration with  the  Constitution  of  the  United  States.     *     *     * 

"The  act  here  in  question  is  directly  antagonistic  to  the  legislation  of 
Congress  concerning  the  subject  with  which  the  state  statute  deals, 
since  that  statute  adds  onerous  burdens  and  conditions  in  addition  to 
those  for  which  the  act  of  Congress  provides,  and  which  burdens  are 
therefore,  inconsistent  with  the  paramount  right  of  Congress  to  exert, 
within  the  limits  of  the  Constitution,  an  untrammeled  power  of  taxa- 
tion." 2 

[Fuller,  C.  J.,  and  McKenna  and  Holmes,  JJ.,  dissented.] 

i  See  the  eases  in  23  Cye.  255,  and  compare  the  federal  legislation  referred 
to  in  Oklahoma  v.  Gulf.  etc..  Ry.,  220  U.  S.  290,  293,  31  Sup.  Ot.  437,  55  L.  Ed. 
469,  Ann.  Cas.  1912C.  524  (1911). 

The  United  States  may  forbid  its  officers  to  furnish  for  use  in  state  courts 
or  criminal  proceedings  any  returns  or  records,  or  copies  thereof,  or  informa- 
tion gained  therefrom,  which  such  officers  have  obtained  or  hold  in  their  offi- 
cial capacities.  In  re  Weeks  (D.  C.)  S2  Fed.  729  (1S97);  In  re  Comingore 
(D.  C.)  96  Fed.  552  (1899)  (eases),  affirmed  in  Boske  v.  Comingore,  177  U.  S. 
459,  20  Sup.  Ct.  701,  44  L.  Ed.  S46  (1900).  See  the  argument  contra  in  In  re 
Hirsch  (D.  C.)  74  Fed.  928  (1896). 

2  State  Control  of  Federal  Agents  or  Agencies. — In  Ohio  v.  Thomas. 
173  U.  S.  276,  19  Sup.  Ct.  453.  43  L.  Ed.  699  (1S99)  it  was  hold  that  a  state 
could  not  regulate  the  use  of  oleomargarine  in  a  federal  soldiers'  home  on 
land  not  ceded  to  the  United  States. 

As  regards  banks  organized  under  the  present  National  Bank  Act.  it  lias 
been  said:  "The  states  can  exercise  no  control  over  them  nor  in  any  wise 
affect  their  operation,  except  in  so  far  as  Congress  may  see  proper  to  admit." — 
Farmers'  Bank  v.  Dearing,  91  U.  S.  29,  34,  23  L.  Ed.  196  (1875),  by  Swayne,  .1. 
(penalty  for  usury).  S<>  Tiffany  v.  Nat.  Bank.  18  Wall.  409.  21  L.  I'd.  862  (1874) 
irate  of  interest) :  Davis  v.  Elmira  Sav.  Bank,  161  U.  S.  275,  16  Sup.  Ct.  502, 
10  L.  Ed.  700  (1S9C)  (distribution  of  assets  in  insolvency);  Easton  v.  Iowa, 
188  U.  S.  220,  2.".  Sup.  Ct.  28S.  47  L.  Ed.  452  (190;',)  (fraudulent  acceptance  of 
deposits).  See  Schlesinger  v.  Gilhooly,  189  N.  Y.  1,  SI  N.  E.  619,  12  Ann.  Cas. 
L138  (1907)  (when  a  note  is  absolutely  void  under  slate  law  lor  usury  between 
Lginal  parties,  can  Congress  provide  that  its  subsequent  transfer  to  a 
national  bank  shall  validate  it  against  all  parties?). 

Compare  Nat.  Bank  v.  Commonwealth,  post,  p.  1302,  note. 

As  to  how  far  federal  agents  or  officers  wfiile  discharging  federal  duties 
are  exempt  from  state  arrest,  see  U.  S.  v.  Kirhy,  7  Wall.  482,  19  L.  Ed.  278 
(1869)  (criminal  arrest) ;  U.  S.  v.  Harvey,  Fed.  Cas.  No.  15.320  (1845)  (civil 
arrest),  explained  in  U.  S.  v.  Kirby,  above;  Ex  parte  Murray  (O.  C.)  35  Fed. 
496  (1SSS)  (civil  arrest).  See.  also,  V.  S.  v.  Baird  (D.  C.)  So  Fed.  633  (1S97I 
(exemption  of  federal  witness  from  state  criminal  arrest) ;  U.  S.  v.  Barney. 
Fed.  (as.  No.  14,525  (before  1810)  (innkeeper's  lien  not  enforceable  against 
horses  while  actually  carrying  mail). 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  129.") 

THE  COLLECTOR  v.  DAY. 
(Supreme  Court  of  United  States,  1871.    U  WalL  113,  20  L.  Ed.  122.) 

[Error  to  the  federal  Circuit  Court  for  Massachusetts.  Federal 
statutes  of  1864-67  levied  a  5  per  cent,  tax  upon  all  incomes  of  resi- 
dents of  the  United  States  over  $1,000.  Day,  a  Massachusetts  probate 
judge,  was  assessed  upon  his  judicial  salary,  and,  paying  the  tax  under 
protest,  sued  to  recover  it  back  from  the  collector.  From  a  judgment 
for  Day  this  writ  was  taken.] 

Mr.  Justice  Nelson.  The  case  presents  the  question  whether  or 
not  it  is  competent  for  Congress,  under  the  Constitution  of  the  United 
States,  to  impose  a  tax  upon  the  salary  of  a  judicial  officer  of  a  State? 

In  Dobbins  v.  Commissioners  of  Erie  County,  16  Pet.  435,  10  L* 
Ed.  1022,  it  was  decided  that  it  was  not  competent  for  the  legislature 
of  a  state  to  levy  a  tax  upon  the  salary  or  emoluments  of  an  officer  of 
the  United  States.  The  decision  was  placed  mainly  upon  the  ground 
that  the  officer  was  a  means  or  instrumentality  employed  for  carrying 
into  effect  some  of  the  legitimate  powers  of  the  government,  which 
could  not  be  interfered  with  by  taxation  or  otherwise  by  the  states, 
and  that  the  salary  or  compensation  for  the  service  of  the  officer  was 
inseparably  connected  with  the  office;  that  if  the  officer,  as  such,  was 
exempt,  the  salary  assigned  for  his  support  or  maintenance  while  hold- 
ing the  office  was  also,  for  like  reasons,  equally  exempt.1  *  *  * 
We  shall  now  proceed  to  show  that,  upon  the  same  construction  of 
that  instrument,  and  for  like  reasons,  that  government  is  prohibited 
from  taxing  the  salary  of  the  judicial  officer  of  a  state.     *     *     * 

The  general  government,  and  the  states,  although  both  exist  within 
the  same  territorial  limits,  are  separate  and  distinct  sovereignties,  act- 
ing separately  and  independently  of  each  other,  within  their  respective 
spheres.  The  "former  in  its  appropriate  sphere  is  supreme;  but  the 
states  within  the  limits  of  their  powers  not  granted,  or,  in  the  language 
of  the  tenth  amendment,  "reserved,"  are  as  independent  of  the  gen- 
eral government  as  that  government  within  its  sphere  is  independent 
of  the  states.  *  *  *  Upon  looking  into  the  Constitution,  it  will 
be  found  that  but  a  few  of  the  articles  in  that  instrument  could  be  car- 
ried into  practical  effect  without  the  existence  of  the  states. 

Two  of  the  great  departments  of  the  government,  the  executive  and 
legislative,  depend  upon  the  exercise  of  the  powers,  or  upon  the  people 
of  the  states.  The  Constitution  guarantees  to  the  states  a  republican 
form  of  government,  and  protects  each  against  invasion  or  domestic 
violence.  Such  being  the  separate  and  independent  condition  of  the 
states  in  our  complex  system,  as  recognized  by  the  Constitution,  and 

i  Accord:  DeaUin  v.  Webb,  1  Com.  L.  Rep.  585  (Australia,  1004)  (state  in- 
come tax  on  federal  officer's  salary),  and  cases  cited  therewith  in  note  1  to 
McCulloch  v.  Maryland,  ante.  p.  12S4.  Contra:  Abbott  v.  St.  John,  40  Can. 
s.  c.  597  (Canada,  1908)  (similar  tacts). 

of  course  Hie  federal  government  may  validly  authorize  state  taxation  of 
federal  salaries.    Chaplin  \.  Comm'r,  il'  Com.  I..  EL  375  (Australia,  1911). 


1296  THE  FEDERAL  GOVERNMENT  (Part  3 

the  existence  of  which  is  so  indispensable,  that,  without  them,  the  gen- 
eral government  itself  would  disappear  from  the  family  of  nations, 
it  would  seem  to  follow,  as  a  reasonable,  if  not  a  necessary  conse- 
quence, that  the  means  and  instrumentalities  employed  for  carrying  on 
the  operations  of  their  governments,  for  preserving  their  existence, 
and  fulfilling  the  high  and  responsible  duties  assigned  to  them  in  the 
Constitution,  should  be  left  free  and  unimpaired,  should  not  be  liable 
to  be  crippled,  much  less  defeated,  by  the  taxing  power  of  another 
government,  which  power  acknowledges  no  limits  but  the  will  of  the 
legislative  body  imposing  the  tax.  And,  more  especially,  those  means 
and  instrumentalities  which  are  the  creation  of  their  sovereign  and  re- 
served rights,  one  of  which  is  the  establishment  of  the  judicial  de- 
partment, and  the  appointment  of  officers  to  administer  their  laws. 
Without  this  power,  and  the  exercise  of  it,  we  risk  nothing  in  saying 
that  no  one  of  the  states  under  the  form  of  government  guaranteed 
by  the  Constitution  could  long  preserve  its  existence.  A  despotic  gov- 
ernment might.  We  have  said  that  one  of  the  reserved  powers  was 
that  to  establish  a  judicial  department;  it  would  have  been  more  ac- 
curate, and  in  accordance  with  the  existing  state  of  things  at  the  time, 
to  have  said  the  power  to  maintain  a  judicial  department.  All  of  the 
thirteen  states  were  in  the  possession  of  this  power,  and  had  exercised 
it  at  the  adoption  of  the  Constitution ;  and  it  is  not  pretended  that  any 
grant  of  it  to  the  general  government  is  found  in  that  instrument. 
It  is,  therefore,  one  of  the  sovereign  powers  vested  in  the  states  by 
their  constitutions,  which  remained  unaltered  and  unimpaired,  and  in 
respect  to  which  the  state  is  as  independent  of  the  general  government 
as  that  government  is  independent  of  the  states. 

The  supremacy  of  the  general  government,  therefore,  so  much  re- 
lied on  in  the  argument  of  the  counsel  for  the  plaintiff  in  error,  in  re- 
spect to  the  question  before  us,  cannot  be  maintained.  The  two  gov- 
ernments are  upon  an  equality,  and  the  question  is  whether  the  power 
"to  lay  and  collect  taxes"  enables  the  general  government  to  tax  the 
salary  of  a  judicial  officer  of  the  state,  which  officer  is  a  means  or  in- 
strumentality employed  to  carry  into  execution  one  of  its  most  im- 
portant functions,  the  administration  of  the  laws,  and  which  concerns 
the  exercise  of  a  right  reserved  to  the  states? 

We  do  not  say  the  mere  circumstance  of  the  establishment  of  the 
judicial  department,  and  the  appointment  of  officers  to  administer  the 
laws,  being  among  the  reserved  powers  of  the  state,  disables  the  gen- 
eral government  from  levying  the  tax,  as  that  depends  upon  the  ex- 
press power  "to  lay  and  collect  taxes,"  but  it  shows  that  it  is  an  orig- 
inal inherent  power  never  parted  with,  and,  in  respect  to  which,  the  su- 
premacy of  that  government  does  not  exist,  and  is  of  no  importance  in 
determining  the  question ;  and  further,  that  being  an  original  and  re- 
served power,  and  the  judicial  officers  appointed  under  it  being  a  means 
or  instrumentality  employed  to  carry  it  into  effect,  the  right  and  neces- 
sity of  its  unimpaired  exercise,  and  the  exemption  of  the  officer  from 
taxation  by  the  general  government  stand  upon  as  solid  a  ground,  and 


Ch.  19)  iNTF.i:r:ovi;i!NMi:NTAL  relations  1297 

are  maintained  by  principles  and  reasons  as  cogent,  as  those  which  led 
to  the  exemption  of  the  federal  officer  in  Dobbins  v.  Commissioners 
of  Erie  from  taxation  by  the  state;  for,  in  this  respect,  that  is,  in  re- 
spect to  the  reserved  powers,  the  state  is  as  sovereign  and  independent 
as  the  general  government.  And  if  the  means  and  instrumentalities 
employed  by  that  government  to  carry  into  operation  the  powers 
granted  to  it  are,  necessarily,  and,  for  the  sake  of  self-preservation, 
exempt  from  taxation  by  the  states,  why  are  not  those  of  the  states 
depending  upon  their  reserved  powers,  for  like  reasons,  equally  ex- 
empt from  federal  taxation?  Their  unimpaired  existence  in  the  one 
case  is  as  essential  as  in  the  other.  It  is  admitted  that  there  is  no  ex- 
press provision  in  the  Constitution  that  prohibits  the  general  govern- 
ment from  taxing  the  means  and  instrumentalities  of  the  states,  nor 
is  there  any  prohibiting  the  states  from  taxing  the  means  and  instru- 
mentalities of  that  government.  In  both  cases  the  exemption  rests 
upon  necessary  implication,  and  is  upheld  by  the  great  law  of  self- 
preservation  ;  as  any  government,  whose  means  employed  in  conduct- 
ing its  operations,  if  subject  to  the  control  of  another  and  distinct  gov- 
ernment, can  exist  only  at  the  mercy  of  that  government.     Of  what 

avail  are  these  means  if  another  power  may  tax  them  at  discretion? 
«     *     * 

Judgment  affirmed.2 

[Bradley,  J.,  gave  a  dissenting  opinion.] 

2  Accord :    Ambrosini  v.  U.  S.,  187  U.  S.  1,  23  Sup.  Ct  1,  47  L.  Ed.  49  (1902) 
(federal  tax  on  bond  required  by  state  to  insure  good  conduct  of  holder  "f 
state  liquor  license — semble);    Flfield  v.   Close,  15  Mich.  505  (1867)   (federal 
tax  on  legal  process  in  state  courts).     Compare  Melcher  v.  Boston,  9   .Mid 
I  Mass.)   t::.  77.  78  (1845). 

It  has  been  held  that  Congress  cannot  exclude  from  evidence  in  state  courts 
documents  left  unstamped  in  violation  of  federal  revenue  laws,  People  v. 
Gates,  41?  N.  Y.  40  (1870);  nor  make  such  documents  ineffective  to  convey  title 
under  state  laws.  Moore  v.  Moore.  17  X.  Y.  467,  7  Am.  Rep.  166  (1872);  though 
the  ordinary  penalties  of  fine  and  imprisonment  mav  be  Imposed.  Bee  Nlcol 
v.  Ames,  173  U.  S.  509,  523.  19  Sup.  Ct.  522.  43  I,.  Ed.  7Mi  (1S99).  Compare 
W.  U.  Teleg.  Co.  v.  Massachusetts,  125  U.  S.  530,  554,  8  Sup.  Ct  961,  31  L. 
E.l.  790  (1888). 

Under  the  Australian  Constitution  the  doctrine  of  the  principal  case  is  fully 
accepted  as  a  corollary  to  that  of  McCulloch  v.  Maryland.  Federated  Govt. 
By.  Ass'n  v.  N.  S.  Wales  Ey.  Ass'n,  4  Com.  L.  R.  488  (1906)  (Commonwealth 
cannot  regulate  terms  of  employment  on  state-owned  railways  engaged  in  in- 
terstate traffic).  Compare  Atty.  Gen.  of  X.  8.  Wales  v.  Collector  of  Customs, 
5  Com.  E.  R.  818  (1908)  (Commonwealth  can  levy  import  duty  on  steel  rails  Im- 
ported by  state  for  Its  railways). 

As  to  what  persons  are  "officers"  of  the  state  or  federal  srovernments  with- 
in  tbe  rule  of  the  principal  case,  see  Whitehouse  v.  Langdon,  10  N.  H.  331 
(1839)  (contractor  to  carry  mail   is   not);    Melcher  v.   Boston,  9   -Mete.  (Mass. 
7::  (1845)  (nor  a  clerk  of  a  local  postmaster);    state  v.  Bell.  61  X.  C.  76 
(nor  a  licensee  under  federal  excise  laws). 

As  to  when  income  from  a  non-taxable  source  becomes  taxable  as  "cash  in 
hand,"  see  Murray  v.  Charleston,  96  U.  S.  432,  446,  24  L.  Ed.  760  (1878);  Bi 
bernla  Society  v.  San  Francisco,  200  U.  S.  310,  316,  26  Sup.  Ct.  265.  50  I.. 
Ed,  185,  A  Ann.  ('as.  934  (1906);  X.  Y.  v.  Wells.  208  D.  S.  14,  28  Sup.  Ct  193, 
52  I,.  Ed.  870  (1908);  Purnell  v.  Page,  133  X.  C.  126,  129,  46  S.  E  534  (1903) 
Dyer  v.  Melrose,  197  Mass.  99,  83  N.  E.  6,  125  Am.  St.  Bep.  330  (1908),  annotai 
ed  in  34  L.  R.  A.  (X.  SJ  1215,  121ft 
Hall  Oonst.L      82 


1298  THE  FEDERAL  GOVERNMENT  (Part  3 

RAILROAD  COMPANY  v.  PENISTON. 
(.Supreme  Court  of  United  States,  1S73.    18  Wall:  5,  21  L.  Ed.  787.) 

[Appeal  from  federal  Circuit  Court  for  Nebraska.  In  1862  Con- 
gress incorporated  the  Union  Pacific  Railroad  Company  to  build  a 
railroad  between  the  Missouri  river  and  the  Pacific  coast,  which,  as 
constructed,  crossed  Nebraska  from  east  to  west.  Nebraska  became 
a  state  in  1867,  and  in  1869  taxed  all  of  the  property  of  the  said  rail- 
road within  the  state.  The  company  resisted  that  portion  of  the  tax 
imposed  in  Lincoln  county,  and  its  bill  for  an  injunction  was  denied  in 
the  above  court.    Other  facts  appear  in  the  opinion.] 

Mr.  Justice  Strong.  *  *  *  Before  the  adoption  of  the  Con- 
stitution of  the  United  States,  each  of  the  states  possessed  unlimited 
power  to  tax,  either  directly  or  indirectly,  all  persons  and  property 
within  [its]  jurisdiction.  *  *  *  The  Constitution  contains  no  ex- 
press restriction  of  this  power  other  than  a  prohibition  to  lay  any  duty 
of  tonnage,  or  any  impost  or  duty  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  the  state's  inspection  laws. 
*     *     * 

There  are,  we  admit,  certain  subjects  of  taxation  which  are  with- 
drawn from  the  power  of  the  states,  not  by  any  direct  or  express  pro- 
vision of  the  federal  Constitution,  but  by  what  may  be  regarded  as  its 
necessary  implications.  They  grow  out  of  our  complex  system  of 
government,  and  out  of  the  fact  that  the  authority  of  the  national  gov- 
ernment is  legitimately  exercised  within  the  states.  While  it  is  true 
that  government  cannot  exercise  its  power  of  taxation  so  as  to  destroy 
the  state  governments,  or  embarrass  their  lawful  action,  it  is  equally 
true  that  the  states  may  not  levy  taxes  the  direct  effect  of  which  shall 
be  to  hinder  the  exercise  of  any  powers  which  belong  to  the  national 
government.  The  Constitution  contemplates  that  none  of  those  powers 
may  be  restrained  by  state  legislation.  But  it  is  often  a  difficult  ques- 
tion whether  a  tax  imposed  by  a  state  does  in  fact  invade  the  domain 
of  the  general  government,  or  interfere  with  its  operations  to  such  an 
extent,  or  in  such  a  manner  as  to  render  it  unwarranted.  It  cannot 
be  that  a  state  tax  which  remotely  affects  the  efficient  exercise  of  a 
federal  power  is  for  that  reason  alone  inhibited  bv  the  Constitution. 
To  hold  that  would  be  to  deny  to  the  states  all  power  to  tax  persons  or 
property.  Every  tax  levied  by  a  state  withdraws  from  the  reach  of 
federal  taxation  a  portion  of  the  property  from  which  it  is  taken,  and 
to  that  extent  diminishes  the  subject  upon  which  federal  taxes  may  be 
laid.  The  states  are,  and  they  must  ever  be,  coexistent  with  the  na- 
tional government.  Neither  may  destroy  the  other.  Hence  the  fed- 
eral Constitution  must  receive  a  practical  construction.  Its  limitations 
and  its  implied  prohibitions  must  not  be  extended  so  far  as  to  destroy 
the  necessary  powers  of  the  states,  or  prevent  their  efficient  exercise. 

These  observations  are  directly  applicable  to  the  case  before  us.  It 
is  insisted  on  behalf  of  the  plaintiffs  that  the  tax  of  which  they  com- 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1299 

plain  has  been  laid  upon  an  agent  of  the  general  government  consti- 
tuted and  organized  as  an  instrument  to  carry  into  effect  the  powers 
vested  in  that  government  by  the  Constitution,  and  it  is  claimed  that 
such  an  agency  is  not  subject  to  state  taxation.  That  the  Union  Pa- 
cific Railroad  Company  was  created  to  subserve,  in  part  at  least,  the 
lawful  purposes  of  the  national  government ;  that  it  was  authorized 
to  construct  and  maintain  a  railroad  and  telegraph  line  along  the  pre- 
scribed route,  and  that  grants  were  made  to  it,  and  privileges  con- 
ferred upon  it,  upon  condition  that  it  should  at  all  times  transmit  des- 
patches over  its  telegraph  line,  and  transport  mails,  troops,  and  mu- 
nitions of  war,  supplies  and  public  stores,  upon  the  railroad  for  the 
government,  whenever  required  to  do  so  by  any  department  thereof, 
and  that  the  government  should  at  all  times  have  the  preference  in  the 
use  of  the  same  for  all  the  purposes  aforesaid,  must  be  conceded. 
Such  are  the  plain  provisions  of  its  charter.     *     *     * 

The  charter  also  contains  other  provisions  looking  to  a  supervision 
and  control  of  the  road  and  telegraph  line,  with  the  avowed  purpose 
of  securing  to  the  government  the  use  and  benefit  thereof  for  postal 
and  military  purposes.  It  is  unnecessary  to  mention  these  in  detail. 
They  all  look  to  a  purpose  of  Congress  to  secure  an  agency  competent 
and  under  obligation  to  perform  certain  offices  for  the  general  gov- 
ernment. Notwithstanding  this,  the  railroad  and  the  telegraph  line 
are  neither  in  whole  nor  in  part  the  property  of  the  government.  The 
ownership  is  in  the  complainants,  a  private  corporation,  though  exist- 
ing for  the  performance  of  public  duties.  The  government  owns  none 
of  its  stock,  and  though  it  may  appoint  two  of  the  directors,  the  right 
thus  to  appoint  is  plainly  reserved  for  the  sole  purpose  of  enabling 
the  enforcement  of  the  engagements  which  the  company  assumed,  the 
engagements  to  which  we  have  already  alluded. 

Admitting,  then,  fully,  as  we  do,  that  the  company  is  an  agent  of 
the  general  government,  designed  to  be  employed,  and  actually  em- 
ployed, in  the  legitimate  service  of  the  government,  both  military  ami 
postal,  does  it  necessarily  follow  that  its  property  is  exempt  from  state 
taxation? 

In  Thomson  v.  Union  Pacific  Railway  Company,  9  Wall.  579,  19 
L.  Ed.  792,  after  much  consideration,  we  held  that  the  property  of 
that  company  was  not  exempt  from  state  taxation,  though  their  rail- 
road was  part  of  a  system  of  roads  constructed  under  the  direction 
and  authority  of  the  United  States,  and  largely  for  the  uses  and  pur- 
poses of  the  general  government.  *  *  *  A  state  tax  upon  the 
property  of  the  company,  its  roadbed,  rolling-stock,  and  personalty  ir 
general,  was  ruled  by  this  court  not  to  be  in  conllict  with  the  federal 
Constitution.  It  may.  therefore,  be  considered  as  settled  that  no  con- 
stitutional implications  prohibit  a  state  tax  upon  the  property  of  an 
agent  of  the  government  merely  because  it  is  the  property  of  such  an 
agent.  A  contrary  doctrine  would  greatly  mibarrass  the  states  in  the 
collection  of  their  necessary  revenue  without   any  corresponding  ad- 


L300  THE    FEDERAL    GOVERNMENT  (Part  3 

vantage  to  the  United  States.  A  very  large  proportion  of  the  property 
within  the  states  is  employed  in  execution  of  the  powers  of  the  gov- 
ernment. It  belongs  to  governmental  agents,  and  it  is  not  only  used, 
but  it  is  necessary  for  their  agencies.  United  States  mails,  troops,  and 
munitions  of  war  are  carried  upon  almost  every  railroad.  Telegraph 
lines  are  employed  in  the  national  service.  So  are  steamboats,  horses, 
stage-coaches,  foundries,  ship-yards,  and  multitudes  of  manufactur- 
ing establishments.  They  are  the  property  of  natural  persons,  or  of 
corporations,  who  are  instruments  or  agents  of  the  general  govern- 
ment, and  they  are  the  hands  by  which  the  objects  of  the  government 
are  attained.  Were  they  exempt  from  liability  to  contribute  to  the 
revenue  of  the  states  it  is  manifest  the  state  governments  would  be 
paralyzed.  While  it  is  of  the  utmost  importance  that  all  the  powers 
vested  by  the  Constitution  of  the  United  States  in  the  general  govern- 
ment should  be  preserved  in  full  efficiency,  and  while  recent  events 
have  called  for  the  most  unembarrassed  exercise  of  many  of  those 
powers,  it  has  never  been  decided  that  state  taxation  of  such  property 
is  impliedly  prohibited. 

It  is,  however,  insisted  that  the  case  of  Thomson  v.  Union  Pacific 
Railroad  Company  differs  from  the  case  we  have  now  in  hand  in  the 
fact  that  it  was  incorporated  by  the  territorial  Legislature  and  the 
Legislature  of  the  state  of  Kansas,  while  these  complainants  were  in- 
corporated by  Congress.  We  do  not  perceive  that  this  presents  any 
reason  for  the  application  of  a  rule  different  from  that  which  was  ap- 
plied in  the  former  case.  *  *  *  The  United  States  have  no  more 
ownership  of  the  road  authorized  by  Congress  than  they  had  in  the 
road  authorized  by  Kansas.  If  the  taxation  of  either'is  unlawful,  it  is 
because  the  states  cannot  obstruct  the  exercise  of  national  powers. 
As  was  said  in  Weston  v.  Charleston,  2  Pet.  467,  7  L.  Ed.  481,  they 
cannot,  by  taxation  or  otherwise,  "retard,  impede,  burden,  or  in  any 
manner  control  the  operation  of  the  constitutional  laws  enacted  by 
Congress  to  carry  into  execution  the  powers  vested  in  the  general 
government."  The  implied  inhibition,  if  any  exists,  is  against  such  ob- 
struction, and  that  must  be  the  same  whether  the  corporation  whose 
property  is  taxed  was  created  by  Congress  or  by  a  state  Legislature. 

Nothing,  we  think,  in  the  past  decisions  of  this  court  is  inconsistent 
with  the  opinions  we  now  hold.  *  *  *  In  [McCulloch  v.  Mary- 
land, ante,  p.  1279]  the  tax  held  unconstitutional  was  laid  upon  the 
notes  of  the  bank.  The  institution  was  prohibited  from  issuing  notes 
at  all  except  upon  stamped  paper  furnished  by  the  state,  and  to  be 
paid  for  on  delivery,  the  stamp  upon  each  note  being  proportioned  to 
its  denomination.  The  tax,  therefore,  was  not  upon  any  property  of 
the  bank,  but  upon  one  of  its  operations,  in  fact,  upon  its  right  to  ex- 
ist as  created.  It  was  a  direct  impediment  in  the  way  of  a  govern- 
mental operation  performed  through  the  bank  as  an  agent.  It  was  a 
very  different  thing,  both  in  its  nature  and  effect,  from  a  tax  on  the 
property  of  the  bank.     No  wonder,  then,  that  it  was  held  illegal.     But 


Ch.  19)  intergovi;i;nmi;ntai,  relations  1301 

even  in  that  case  the  court  carefully  limited  the  effect  of  the  decision. 
Tl  docs  not  extend,  said  the  Chief  Justice,  to  a  tax  paid  by  the  real 
property  of  the  bank,  in  common  with  the  other  real  property  in  the 
state,  nor  to  a  tax  imposed  on  the  interest  which  the  citizens  of  Mary- 
land may  hold  in  the  institution,  in  common  with  the  other  property 
of  the  same  description  throughout  the  state.     *     *     * 

In  Osborn  v.  Bank  [9  Wheat.  738,  6  L.  Ed.  20  +  ]  the  tax  held  un- 
constitutional was  a  tax  upon  the  existence  of  the  bank — upon  its 
right  to  transact  business  within  the  state  of  Ohio,  *  *  *  but  at 
the  same  time  it  was  declared  by  the  court  that  the  local  property  of 
the  bank  might  be  taxed,  and,  as  in  McCulloch  v.  Maryland,  a  dif- 
ference was  pointed  out  between  a  tax  upon  its  property  and  one  upon 
its  action.  *  *  *  This  distinction,  so  clearly  drawn  in  the  earlier 
decisions,  between  a  tax  on  the  property  of  a  governmental  agent,  and 
a  tax  upon  the  action  of  such  agent,  or  upon  his  right  to  be,  has  ever 
since  been  recognized.  All  state  taxation  which  does  not  impair  the 
agent's  efficiency  in  the  discharge  of  his  duties  to  the  government  has 
been  sustained  when  challenged,  and  a  tax  upon  his  property  generally 
has  not  been  regarded  as  beyond  the  power  of  a  state  to  impose. 

It  is,  therefore,  manifest  that  exemption  of  federal  agencies  from 
state  taxation  is  dependent,  not  upon  the  nature  of  the  agents,  or  upon 
the  mode  of  their  constitution,  or  upon  the  fact  that  they  are  agents, 
but  upon  the  effect  of  the  tax ;  that  is,  upon  the  question  whether 
the  tax  does  in  truth  deprive  them  of  power  to  serve  the  government 
as  they  were  intended  to  serve  it,  or  does  hinder  the  efficient  exercise 
of  their  power.  A  tax  upon  their  property  has  no  such  necessary  ef- 
fect. It  leaves  them  free  to  discharge  the  duties  they  have  undertaken 
to  perform.  A  tax  upon  their  operations  is  a  direct  obstruction  to  the 
exercise  of  federal  powers. 

In  this  case  the  tax  is  laid  upon  the  property  of  the  railroad  com- 
pany precisely  as  was  the  tax  complained  of  in  Thomson  v.  Union 
Pacific.  It  is  not  imposed  upon  the  franchises  or  the  right  of  the 
company  to  exist  and  perform  the  functions  for  which  it  was  brought 
into  being.  Nor  is  it  laid  upon  any  act  which  the  company  has  been 
authorized  to  do.  It  is  not  the  transmission  of  despatches,  nor  the 
transportation  of  United  States  mails,  or  troops,  or  munitions  of  war, 
that  is  taxed,  but  it  is  exclusively  the  real  and  personal  property  of  the 
agent,  taxed  in  common  with  all  other  property  in  the  state  of  a  sim- 
ilar character.  It  is  impossible  to  maintain  that  this  is  an  interference 
with  the  exercise  of  any  power  belonging  to  the  general  government, 

and    if    it    is   not,   it   is   prohibited   by    no   constitutional    implication. 

*     *     * 

Decree  affirmed.1 

ii  Accord:    Gromer  v.  Standard  Dredging  Co.,  224  U.  S.  302.  32  Sup.  Ct  499, 
56  L.  Ed.  801  (1912)  (tax  on  property  brought  Into  Jurisdiction  and  thi 
«olelv  in  performing  contract  with  D.  S>;    Baltimore  Shipbuilding  Co.  \.  Bal- 


1302  THE  FEDERAL  GOVERNMENT  (Part  3 

[SwaynE,  J.,  gave  a  concurring  opinion.  Bradley,  J.,  gave  a  dis- 
senting opinion,  in  which  Field,  J.,  concurred.  Hunt,  J.,  also  dis- 
sented.] 

tiruore,  195  U.  S.  375,  25  Sup.  Ct.  50,  49  L.  Ed.  242  (1904)  (tax  on  property  of 
which  U.  S.  has  certain  right  of  use).  The  same  principle  applies  to  income 
from  a  non-taxable  source  after  it  has  become  "cash  in  hand."  See  the  cases 
in  last  paragraph  of  note  2  to  Collector  v.  Day,  ante,  p.  1297.  But  compare 
Phila.  SS.  Co.  v.  Pennsylvania,  ante,  p.  1104. 

In  Thomson  v.  Pacific  Railroad,  9  Wall.  579,  5S8,  589,  591,  19  L.  Ed.  792 
(1S70),  Chase,  C.  J.,  said:  "We  do  not  doubt  that  *  *  *  Congress  may 
*  *  *  make  or  authorize  contracts  with  individuals  or  corporations  for 
services  to  the  government,  *  *  *  and  may  exempt,  in  its  discretion,  the 
agencies  employed  in  such  services  from  any  state  taxation  which  will  really 
prevent  or  impede  the  performance  of  them ;  *  *  *  but  it  will  be  safe  to 
conclude,  in  general,  in  reference  to  persons  and  state  corporations  employed 
in  government  service,  that  when  Congress  has  not  interposed  to  protect  their 
property  from  state  taxation,  such  taxation  is  not  obnoxious  to  that  objec- 
tion." 

In  Nat.  Bank  v.  Commonwealth,  9  Wall.  353,  3G2.  19  L.  Ed.  701  (1870),  Miller, 
J.,  said  (upholding  the  collection  from  the  bank  of  the  state  tax  upon  national 
bank  shares  authorized  by  Congress): 

"The  agencies  of  the  federal  government  are  only  exempted  from  state  legis- 
lation, so  far  as  that  legislation  may  interfere  with  or  impair  their  efficiency 
in  performing  the  functions  by  which  they  are  designed  to  serve  that  gov- 
ernment. Any  other  rule  would  convert  a  principle  founded  alone  in  the  ne- 
cessity of  securing  to  the  government  of  the  United  States  the  means  of  ex- 
ercising its  legitimate  powers,  into  an  unauthorized  and  unjustifiable  inva- 
sion of  the  rights  of  the  states.  The  salary  of  a  federal  officer  may  not 
be  taxed;  he  may  be  exempted  from  any  personal  service  which  interferes 
with  the  discharge  of  his  official  duties;  because  those  exemptions  are  es- 
sential to  enable  him  to  perform  those  duties.  But  he  is  subject  to  all 
the  laws  of  the  state  which  affect  his  family  or  social  relations,  or  his  prop- 
erty, and  he  is  liable  for  punishment  for  crime,  though  that  punishment 
be  imprisonment  or  death.  So  of  the  banks.  They  are  subject  to  the  laws 
of  the  state,-  and  are  governed  in  their  daily  course  of  business  far  more  by 
the  laws  of  the  state  than  of  the  nation.  All  their  contracts  are  governed 
and  construed  by  state  laws.  Th»ir  acquisition  and  transfer  of  property,  their 
right  to  collect  their  debts,  and  their  liability  to  be  sued  for  debts,  are  all 
based  on  state  law.  It  is  only  when  the  state  law  incapacitates  the  banks  from 
discharging  their  duties  to  the  government  that  it  becomes  unconstitutional. 
We  do  not  see  the  remotest  probability  of  this  in  their  being  required  to  pay 
the  tax  which  their  stockholders  owe  to  the  state  for  the  shares  of  their  cap- 
ital stock,  when  the  law  of  the  federal  government  authorizes  the  tax." 

So  Waite  v.  Dowley,  94  U.  S.  527,  24  L.  Ed.  181  (1S77)  (cashier  of  national 
bank  required  by  state  to  furnish  list  of  stockholders  for  taxation;  the  fed- 
eral government  having  interposed  no  objection).  See  the  cases  in  note  1  to 
North  Dakota  v.  Hanson,  ante,  p.  1294. 

A  state  may  regulate  the  local  rates  of  an  interstate  railroad  operated  un- 
der a  federal  charter.  Reagan  v.  Mercantile  Tr.  Co.,  154  U.  S.  413,  14  Sup. 
Ct.  1060,  38  L.  Ed.  102S  (1S94);  Smyth  v.  Ames,  169  U.  S.  466,  519-522,  IS  Sup. 
Ct.  418,  42  L.  Ed.  819  (189S). 


Ch.  19)  INTDHGOVBENMENTAIi    RELATION'S  130:' 


VAN  BROCKLIN  v.  TENNESSEE. 

(Supreme  Court  of  United   States,   1886.     117   U.   S.    151,  6  Sup    Ct.  670,  29 
L.  Ed.  845.) 

[Error  to  the  Supreme  Court  of  Tennessee.  In  1864  three  lots  of 
land  near  Memphis,  Tennessee,  were  sold  by  auction  for  federal  direct 
taxes  and  were  conveyed  to  the  United  States.  In  1870  the  former 
owner  sold  the  lots  to  Van  Brocklin,  and  in  1877  the  United  States 
recovered  possession  of  two  of  them  in  an  action  of  ejectment,  the 
third  being  then  redeemed  by  Van  Brocklin  by  payment  of  back  taxes 
and  penalties.  In  1878  the  other  two  lots  were  sold  and  conveyed  to 
one  Stacy  by  the  United  States.  The  state  filed  a  bill  to  foreclose  its 
lien  for  state  taxes  on  this  land  from  1864  to  1S77-J78,  and  the  state 
Supreme  Court  entered  a  decree  in  its  favor,  whereupon  this  writ  was 
brought.] 

Mr.  Justice  Gray.  *  *  *  The  judgment  of  the  supreme  court 
of  Tennessee  rests  upon  the  position  that  these  lands,  although  law- 
fully purchased  by  the  United  States,  and  owned  by  the  United  Stales 
at  the  time  of  being  taxed  under  the  laws  of  the  state,  were  not  ex- 
empt from  state  taxation,  because  they  had  not  been  expressly  ceded 
by  the  state  to  the  United  States.  We  are  unable  to  reconcile  this  po- 
sition with  a  just  view  of  the  rights  and  powers  conferred  upon  the 
national  government  by  the  Constitution  of  the  United  States.  The 
importance  of  the  subject,  and  the  consideration  due  to  the  opinion  of 
that  learned  court,  make  it  proper  to  state  somewhat  fully  the  grounds 
of  our  conclusion.     *     *     * 

The  United  States  do  not  and  cannot  hold  property,  as  a  monarch 
may,  for  private  or  personal  purposes.1  All  the  property  and  revenues 
of  the  United  States  must  be  held  and  applied,  as  all  taxes,  duties, 
imposts,  and  excises  must  be  laid  and  collected,  "to  pay  the  debts  and 
provide  for  the  common  defense  and  general  welfare  of  the  United 
States."  Const,  art.  1.  §  8,  cl.  1 ;  Dobbins  v.  Erie  Co.  Com'rs,  16  Pet. 
435,  448,  10  L.  Ed.  1022.  The  principal  reason  assigned  in  Buchanan 
v.  Alexander,  4  How.  20,  11  L.  Ed.  857,  for  holding  that  money  in  the 

i  How  federal  property  shall  be  administered  is  entirely  in  the  discretion 
of  Congress,  which  may  open  public  land  to  settlement,  withdraw  it  there- 
'from,  or  change  the  use  thereof  at  pleasure,  exercising  meanwhile  the  rights 
Incident  to  private  ownership.  Light  v.  i'.  s.,  l'l'o  c.  s.  523,  31  Sup.  Ct  4S5, 
55  L.  Ed.  570  (1911)  (eases).  So  of  land  held  in  trust  tor  Indians,  although 
citizens.  Hallow.  II  v.  V.  S.,  221  II.  S.  317,  31  Sup.  Ct  5S7.  55  L.  Ed.  750 
(1911).  And  in  the  furtherance  of  Its  proprietary  rights  (Twin  Falls  Canal 
Co.  v.  Foote  [C.  C.l  192  Fed.  583,  594  [1911])  the  United  States  may  take 
privately  owned  land  in  a  state  by  eminent  domain  to  construct  irrigatiou 
works  tor  the  benefit  of  federal  public  land.  Burley  v.  v.  s.,  iT'.t  Fed.  l,  102 
C.  C.  A.  429,  3,'5  I,,  it.  A.  i.Y  S.)  807  (1910);  D.  S,  v.  O'Neill  (D.  C.)  19S  Fed. 
I'.TT  (1912)  (federal  proceedings  for  this  purpose  not  limited  by  state  law  or 
proi  'dure). 


1304  THE    FEDERAL    GOVERNMENT  (Part  3 

hands  of  a  purser,  due  to  seamen  in  the  navy  for  wages,  could  not  be 
attached  by  their  creditors  in  a  state  court  was :  "The  funds  of  the 
government  are  specifically  appropriated  to  certain  national  objects, 
and  if  such  appropriations  may  be  diverted  and  defeated  by  state 
process  or  otherwise,  the  functions  of  the  government  may  be  sus- 
pended."    *     *     * 

In  the  Articles  of  Confederation  of  1778  it  had  been  expressly  stip- 
ulated that  "no  imposition,  duties,  or  restriction  shall  be  laid  by  any 
state  on  the  property  of  the  United  States."  *  *  *  The  Constitu- 
tion, creating  a  more  perfect  union,  and  increasing  the  powers  of  the 
national  government,  expressly  authorized  the  Congress  of  the  United 
States  "to  lay  and  collect  taxes,  duties,  imposts,  and  excises  to  pay  the 
debts  and  provide  for  the  common  defense  and  general  welfare  of  the 
United  States;"  "to  exercise  exclusive  legislation  over  all  places  pur- 
chased, by  the  consent  of  the  legislature  of  the  state  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 
other  needful  buildings ;"  and  to  "dispose  of  and  make  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging  to 
the  United  States."  *  *  *  No  further  provision  was  necessary  to 
secure  the  lands  or  other  property  of  the  United  States  from  taxation 
by  the  states.     *     *     * 

[After  referring  to  provisions  in  the  acts  admitting  Ohio,  Indiana, 
and  Illinois  to  the  Union,  by  which  lands  therein  sold  by  Congress 
should  be  exempt  from  state  taxation  for  five  years  after  such  sale ; 
and  after  referring  to  a  dictum  of  McLean,  J.,  in  U.  S.  v.  R.  R. 
Bridge  Co.,  6  McLean,  517,  531-533,  Fed.  Cas.  No.  16,114,  implying 
a  power  in  the  states  to  tax  the  federal  public  lands  if  not  restrained 
by  compact:]  The  question  in  issue  in  that  case  was  not  of  the  state's 
right  of  taxation,  but  of  its  right  of  eminent  domain  for  the  construc- 
tion of  roads  and  bridges.  The  decision  of  the  learned  justice  in  fa- 
vor of  the  validity  of  the  exercise  of  that  right  by  a  state  over  lands 
of  the  United  States,  without  the  consent  of  the  United  States,  mani- 
fested either  by  an  express  act  of  Congress,  or  by  the  assent  of  a  de- 
partment or  officer  vested  by  law  with  the  power  of  disposing  of  lands 
of  the  United  States,  appears  to  have  been  based  upon  the  theory  that 
the  United  States  can  hold  land  as  a  private  proprietor  for  other  than 
public  objects,  and  upon  a  presumption  of  the  acquiescence  of  Con- 
gress in  the  state's  exercise  of  the  power  as  tending  to  increase  the 
value  of  the  lands;  and  it  finds  some  support  in  dicta  of  Mr.  Justice 
Woodbury,  in  a  case  in  which,  however,  the  exercise  of  the  power  by 
the  state  was  adjudged  to  be  unlawful.  U.  S.  v.  Chicago,  7  How.  185, 
194,  195,  12  L.  Ed.  660.  But  it  can  hardly  be  reconciled  with  the 
views  expressed  by  Congress,  in  acts  concerning  particular  railroads, 
too  numerous  to  be  cited,  as  well  as  in  general  legislation.  Acts  Au- 
gust 4,  1852  (chapter  80),  and  March  3,  1855  (chapter  200,  10  St.  28, 
683 ;)   July  26,  1866  (chapter  262,  §  8,  14  St.  253 ;   Rev.  St.  §  2477), 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1305 

When  that  question  shall  be  brought  into  judgment  here,  it  will  require 
and  will  receive  the  careful  consideration  of  the  court.2     *     *     * 

[After  referring  to  various  provisions  in  acts  admitting  other  states 
to  the  Union,  to  court  decisions,  and  to  state  legislation:]  Whether 
the  property  of  one  of  the  states  of  the  Union  is  taxable  under  the 
laws  of  that  state  depends  upon  the  intention  of  the  state  as  mani- 
fested by  those  laws.  But  whether  the  property  of  the  United  States 
shall  be  taxed  under  the  laws  of  a  state  depends  upon  the  will-  of  its 
owner,  the  United  States,  and  no  state  can  tax  the  property  of  the 
United  States  without  their  consent.     *     *     * 

[After  stating  two  unreported  cases  decided  in  this  court  in  1849 
by  an  equal  division  of  the  judges,  upholding  state  taxation  of  the  fed- 
eral custom  house  in  Portland,  Maine,  and  of  the  mint  in  Philadelphia, 
both  owned  by  the  United  States  but  the  former  not  purchased  with 
the  consent  of  the  state  legislature:]  But  the  two  decisions  above 
mentioned,  by  an  equal  division  of  this  court,  and  with  no  evidence  of 
the  reasons  which  influenced  any  of  the  judges,  have  no  weight  as  au- 
thority in  any  other  case ;  and  we  have  no  hesitation  in  saying  that  a 
tax  imposed  under  authority  of  a  state  upon  a  building  used  as  a  cus- 
tom-house or  a  mint,  and  the  land  on  which  it  stands,  owned  by  the 
United  States,  cannot  be  supported,  consistently  with  the  principles  af- 
in  McCulloch  v.  Maryland,  especially  in  4  Wheat.  432,  4  L.  Ed. 
579,  above  cited,  or  with  the  recent  judgments  of  this  court.     *     *     * 

[After  quoting  from  R.  R.  Co.  v.  Peniston,  ante,  p.  1298,  and  Col- 
lector v.  Day,  ante,  p.  1295 :]  Applying  the  same  principles,  this  court, 
in  U.  S.  v.  Railroad  Co.,  17  Wall.  322,  21  L.  Ed.  597,  held  that  a  mu- 
nicipal corporation  within  a  state  could  not  be  taxed  by  the  United 
States  on  the  dividends  or  interest  of  stock  or  bonds  held  by  it  in  a 

^  In  Pacific  R.  R.  Removal  Cases,  115  U.  S.  1,  5  Sup.  Ct  111.*?,  29  L.  Ed. 
319  (18S5)  it  was  apparently  assumed  that  a  state  niipht  condemn  part  of 
the  depot  grounds  of  a  federal  railway  corporation  in  order  to  Widen  B 
street;  and  in  Union  Pac.  Ry.  v.  Burlington,  etc.,  Ry.  (C.  C.)  3  Fed.  106 
(1880),  and  Union  Pac.  Ry.  v.  Leavenworth,  etc.,  Ry.  (C.  C.)  29  Fed.  72s  (1887), 
this  was  decided  as  to  the  condemnation  of  a  right  of  way  for  the  i 
"i'  another  railroad.  See,  also,  the  reasoning  in  Ft.  Leavenworth  Rv.  v.  Lowe. 
114  U.  S.  525,  5  Sup.  ct.  995,  2!)  I..  Ed.  264  (1885),  and  extract  .into.  p.  HIT. 
Compare  Mo.  Pac.  Ry.  v.  Townsend,  190  U.  S.  207,  23  Sup.  Ct.  G71,  47  L. 
Ed.    10 II    (1903). 

It  is  generally  assumed  that  the  United  States  may  condemn  state  property 
for    federal    purposes.      See    St.    Louis  v.    Western    Union    Tel.    Co..    MS    U.    S. 

92,  101,  13  Sup.  ct.  485,  ::7  L.  Ed.  380  (1893);  Stockton  v.  Halt.,  etc.,  Rv. 
(C.  C.)  32  Fed.  9.  17-19  (1SS7).  In  U.  s.  v.  Gettysburg  Elec.  Rv..  160  U.  S. 
668,  Hi  Snp.  Ct.  427,  40  L.  Ed.  570  (1896)  the  United  States  took  for  a  park 
the  route  of  a  state  electric  road;  and  in  Nahant  v.  (J.  S.,  136  Fed.  273,  70 
C.  C.  A.  641,  69  L.  R.  A.  723  (1905)  it  took  for  fortification  purposes  the  public 
streets  and  the  appurtenant  water  and  sewer  pipes  of  a  Massachusetts  City. 
See  the  very  sensible  remarks  in  Randolph,  Em.  Dom.  §  60,  as  to  the  adjust- 
ni. 'Hi  of  conflicting  state  and  federal  purposes  in  such  eases. 

As  to  the  power  of  a  state  voluntarily  to  assist  the  federal  government  in 
the  exercise  of  various  functions,  see  Ft  Leavenworth  Ry.  v.  I. owe,  ante,  p, 
917.   note;     Second    Kinployers'    Liability  Cases,   ante,    p.   953,    M"'''    -;     Gilmer 

r.  Dime  Point,   18  Cal,  229  (1801);    Trombley  v.  Humphrey,  23  Mich.  471,  9 
1.  in  (1871). 


1306  THE  FEDERAL  GOVERNMENT  (Part  3 

railroad  or  canal  company,  because  the  municipal  corporation  was  a 
representative  of  the  state,  created  by  the  state  to  exercise  a  limited 
portion  of  its  powers  of  government,  and  therefore  its  revenues,  like 
those  of  the  state  itself,  were  not  taxable  by  the  United  States.  The 
revenues  thus  adjudged  to  be  exempt  from  federal  taxation  were  not 
themselves  appropriated  to  any  specific  public  use,  nor  derived  from 
property  held  by  the  state  or  by  the  municipal  corporation  for  any  spe- 
cific public  use,  but  were  part  of  the  general  income  of  that  corpora- 
tion, held  for  the  public  use  in  no  other  sense  than  all  property  and  in- 
come, belonging  to  it  in  its  municipal  character,  must  be  so  held.  The 
reasons  for  exempting  all  the  property  and  income  of  a  state,  or  of  a 
municipal  corporation,  which  is  a  political  division  of  the  state,  from 
federal  taxation,  equally  require  the  exemption  of  all  the  property  and 
income  of  the  national  government  from  state  taxation.     *     *     * 

The  United  States  acquired  the  title  to  all  the  land  now  in  question 
under  the  express  authority  of  acts  of  Congress,  and  by  proceedings, 
the  validity  of  which  is  clearly  established  by  a  series  of  decisions  of 
this  court.  *  *  *  The  provisions  authorizing  the  United  States  to 
sell  the  land  for  non-payment  of  the  taxes  assessed  thereon,  and  to 
purchase  the  land  for  the  amount  of  the  taxes  if  no  one  would  bid  a 
higher  price,  were  necessary  and  proper  means  for  carrying  into  effect 
the  power  to  lay  and  collect  the  taxes ;  and  so  were  the  provisions  au- 
thorizing the  United  States  afterwards  to  sell  the  land,  to  apply  the 
proceeds  to  the  payment  of  the  taxes,  and  to  hold  any  surplus  for  the 
benefit  of  the  former  owner.  While  the  United  States  owned  the  land 
struck  off  to  them  for  the  amount  of  the  taxes  because  no  one  would 
pay  more  for  it,  and  until  it  was  sold  by  the  United  States  for  a  great- 
er price,  or  was  redeemed  by  the  former  owner,  the  United  States  held 
the  entire  title  as  security  for  the  payment  of  the  taxes ;  and  it  could 
not  be  known  how  much,  if  anything,  beyond  the  amount  of  the  taxes 
the  land  was  worth.  To  allow  land,  lawfully  held  by  the  United  States 
as  security  for  the  payment  of  taxes  assessed  by  and  due  to  them,  to 
be  assessed  and  sold  for  state  taxes,  would  tend  to  create  a  conflict  be- 
tween the  officers  of  the  two  governments,  to  deprive  the  United 
States  of  a  title  lawfully  acquired  under  express  acts  of  Congress,  and 
to  defeat  the  exercise  of  the  constitutional  power  to  lay  and  collect 
taxes  to  pay  the  debts  and  provide  for  the  common  defense  and  gen- 
eral welfare  of  the  United  States.  *  *  *  All  the  assessments 
were  unlawful,  because  made  while  the  land  was  owned  by  the  United 
States.  The  assessments,  being  unlawful,  created  no  lien  upon  the 
land.  Those  taxes,  therefore,  cannot  be  collected,  even  since  the  plain- 
tiffs in  error  have  redeemed  or  purchased  the  land  from  the  United 
States.     *     *     * 

Decree  reversed." 

a  Accord :  No.  Pac.  Ry.  v.  Traill  County,  115  D.  S.  600,  6  Sup.  Ct  201,  29 
L.  Ed.  477  (1SS5)  (federal  land  grant  to  railroad  not  taxable  by  state  while 
U.  S.  retains  title  as  security  for  costs  of  survey  unpaid  by  grantee) ;    Tuckel 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1307 

CRANDALL  v.  NEVADA  (186S)  6  Wall.  35,  43.  44,  18  L.  Ed. 
745.  Mr.  Justice  Miller  (holding  invalid  a  Nevada  statute  taxing  ev- 
ery passenger  leaving  the  state  one  dollar) : 

"The  people  of  these  United  States  constitute  one  nation.  They 
have  a  government  in  which  all  of  them  are  deeply  interested.  This 
government  has  necessarily  a  capital  established  by  law,  where  its 
principal  operations  are  conducted.  Here  sits  its  legislature,  composed 
of  senators  and  representatives,  from  the  states  and  from  the  people 
of  the  states.  Here  resides  the  President,  directing,  through  thou- 
sands of  agents,  the  execution  of  the  laws  over  all  this  vast  country. 
Here  is  the  seat  of  the  supreme  judicial  power  of  the  nation,  to  which 
all  its  citizens  have  a  right  to  resort  to  claim  justice  at  its  hands. 
Here  are  the  great  executive  departments,  administering  the  offices  of 
the  mails,  of  the  public  lands,  of  the  collection  and  distribution  of  the 
public  revenues,  and  of  our  foreign  relations.  These  are  all  estab- 
lished and  conducted  under  the  admitted  powers  of  the  federal  govern- 
ment. That  government  has  a  right  to  call  to  this  point  any  or  all  of 
its  citizens  to  aid  in  its  service,  as  members  of  the  Congress,  of  the 
courts,  of  the  executive  departments,  and  to  fill  all  its  other  offices ; 
and  this  right  cannot  be  made  to  depend  upon  the  pleasure  of  a  state 
over  whose  territory  they  must  pass  to  reach  the  point  where  these 
services  must  be  rendered.  The  government,  also,  has  its  offices  of 
secondary  importance  in  all  other  parts  of  the  country.  On  the  sea- 
coasts  and  on  the  rivers  it  has  its  ports  of  entry.  In  the  interior  it 
has  its  land  offices,  its  revenue  offices,  and  its  sub-treasuries.  In  all 
these  it  demands  the  services  of  its  citizens,  and  is  entitled  to  bring 
them  to  those  points  from  all  quarters  of  the  nation,  and  no  power 
can  exist  in  a  state  to  obstruct  this  right  that  would  not  enable  it  to 
defeat  the  purposes  for  which  the  government  was  established. 

"The  federal  power  has  a  right  to  declare  and  prosecute  wars,  and. 
as  a  necessary  incident,  to  raise  and  transport  troops  through  and  over 
the  territory  of  any  state  of  the  Union.  If  this  right  is  dependent  in 
any  sense,  however  limited,  upon  the  pleasure  of  a  state,  the  govern- 
ment itself  may  be  overthrown  by  an  obstruction  to  its  exercise. 
Much  the  largest  part  of  the  transportation  of  troops  during  the  late 

v.  Ferguson,  22  Wall.  527.  572,  22  L.  Ed.  805  (1S75)  (U.  S.  owner  of  equitable 
Interest) ;  U.  S.  v.  Rickert,  1SS  U.  S.  4152,  23  Sup.  Ct.  478,  47  L.  Ed.  532  (1903) 
(land  hold  in  trust  by  U.  S.  for  separate  allottees  of  Indian  tribe). 

But  the  states  may  tax  property  of  which  the  United  States  holds  a  bare 
legal  title  without  governmental  or  beneficial  Interest,  Wis.  Cent.  Ry.  v.  Price 
County,  133  U.  S.  490,  10  Sup.  Ct.  341,  33  L.  Ed.  GS7  (18S9) ;    or  of  which  it 

has  reserved  merely  a  right  of  use,   with  a  power  of  forfeiture  for  c li- 

tion  broken,  Bait  Shipbuilding  Co.  v.  Baltimore,  195  U.  S.  375,  25  Sup.  Ct 
50,  49  L.  Ed.  242  (1904). 

Congress  can  control  the  descent  of  equitable  Interests  In  public  lands  be- 
tore  issuance  of  patent  McCune  v.  Essdg,  199  U.  S.  382,  26  Sup.  Ct  78,  50  I* 
Ed.  237  (1905);  and  can  forbid  the  acquisition  by  adverse  possession  under 
state  law  of  any  title  to  a  railroad  right  of  way  granted  by  it.  Mo.  Pac.  Ry. 
v.  Townsend,  190  U.  S.  267,  23  Sup.  Ct  671,  47  L.  Ed.  1044  (1903). 


1308  THE    FEDERAL    GOVERNMENT  (Part  3 

rebellion  was  by  railroads,  and  largely  through  states  whose  people 
were  hostile  to  the  Union.  If  the  tax  levied  by  Nevada  on  railroad 
passengers  had  been  the  law  of  Tennessee,  enlarged  to  meet  the  wish- 
es of  her  people,  the  treasury  of  the  United  States  could  not  have  paid 
the  tax  necessary  to  enable  its  armies  to  pass  through  her  territory. 

"But  if  the  government  has  these  rights  on  her  own  account,  the  citi- 
zen also  has  correlative  rights.  He  has  the  right  to  come  to  the  seat 
of  government  to  assert  any  claim  he  may  have  upon  that  government, 
or  to  transact  any  business  he  may  have  with  it.  To  seek  its  protec- 
tion, to  share  its  offices,  to  engage  in  administering  its  functions.  He 
has  a  right  to  free  access  to  its  sea-ports,  through  which  all  the  opera- 
tions of  foreign  trade  and  commerce  are  conducted,  to  the  sub-treas- 
uries, the  land  offices,  the  revenue  offices,  and  the  courts  of  justice  in 
the  several  states,  and  this  right  is  in  its  nature  independent  of  the 
will  of  any  state  over  whose  soil  he  must  pass  in  the  exercise  of  it." 

[Clifford,  J.,  and  Chase,  C.  J.,  dissented  from  the  reasons  for  the 
decision,  supporting  it  under  the  commerce  clause.] 

LIMITATION'S     UPON     STATE     INTERFERENCE     WITH     PRIVATE    RlGIITS     DERIVED 

from  Federal  Constitution  or  Government.— A  state  may  not  prohibit,  tax, 
or  otherwise  unduly  burden  by  conditions  precedent  or  other  regulations  the 
private  exercise  of  any  right  derived  from  the  federal  Constitution  or  gov- 
ernment. In  addition  to  the  rights  mentioned  in  the  principal  case  as  thus 
protected,  see  those  enumerated  in  the  Slaughter  House  Cases,  ante,  at  pp. 
222,  223 ;  Twining  v.  New  Jersey,  211  U.  S.  78,  97,  29  Sup.  Ct.  14,  53  L.  Ed. 
97  (1908) ;  and  Logan  v.  United  States,  ante,  p.  948,  and  notes.  As  to  the 
right  to  vote  for  members  of  either  branch  of  Congress  (now  enlarged  by  the 
seventeenth  amendment),  or  for  presidential  electors,  see  Ex  parte  Yarbrough, 
ante,  p.  145.  and  notes;  as  to  suing  in  the  federal  courts,  see  Security  Ins. 
Co.  v.  Prewitt,  ante,  p.  254,  and  cases  cited  therein;  Herndon  v.  Chicago,  etc.. 
Rv.,  ante,  p.  2(51,  note;  David  Lupton's  Sons  Co.  v.  Automobile  Club,  225 
U.  S.  489,  32  Sup.  Ct.  711,  56  L.  Ed.  1177  (1912)  [compare  Diamond  Glue  Co. 
v.  U.  S.  Glue  Co.,  1S7  U.  S.  611,  23  Sup.  Ct.  206,  47  L.  Ed.  328  (1903)];  as 
to  the  right  to  engage  in  foreign  and  interstate  commerce,  see  the  cases  in 
chapter  XVIII,  sees.  3,  4.  and  5,  ante,  passim;  and  as  to  patent  rights,  see 
California  v.  Cent  Pac.  Ry.,  post,  p.  1312,  note  2. 


SNYDER  v.  BETTMAN  (1903)  190  U.  S.  249,  250-254,  23  Sup.  Ct. 
803,  47  L.  Ed.  1035,  Mr.  Justice  Brown  (upholding  a  federal  tax  of 
10  per  cent,  upon  a  legacy  to  the  city  of  Springfield,  Ohio) : 

"This  case  involves  the  single  question  whether  it  is  within  the  power 
of  the  federal  government  *  *  *  to  impose  a  succession  tax  upon 
a  bequest  to  a  municipal  corporation  of  a  state  for  a  corporate  and 
public  purpose.  The  case  is,  to  a  certain  extent,  the  converse  of  those 
of  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup. 
Ct.  1073,  and  Plummer  v.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20 
Sup.  Ct.  829.  In  the  first  of  these  we  held  it  to  be  within  the  com- 
petency of  the  state  of  New  York  to  impose  a  similar  tax  upon  a  be- 
quest to  the  federal  government,  incidentally  deciding  that  the  in- 
heritance tax  of  the  state  was  'in  reality  a  limitation  upon  the  power 
of  a  testator  to  bequeath  his  property  to  whom  he  pleases,  a  declara- 


Cll.  19)  INTEItGOVEIINMENTAL    RELATIONS  1809 

tion  that,  in  the  exercise  of  that  power,  he  shall  contribute  a  certain 
percentage  to  the  public  use'  j1  and  (2)  that  the  tax  was  not  a  tax 
upon  the  property  itself,  but  upon  its  transmission  by  will  or  descent. 
In  Plummer  v.  Coler  we  held  the  incidental  fact  that  the  property  be- 
queathed is  composed  in  whole  or  in  part  of  federal  securities  did  not 
invalidate  the  state  tax.     *     *     * 

"It  is  insisted,  however,  that  the  case  under  consideration  is  dis- 
tinguished from  those  above  cited,  in  the  fact  that  the  inheritance  tax 
of  New  York  was  but  a  condition  annexed  to  the  power  of  a  testator 
to  dispose  of  his  property  by  will,  and  that  such  power,  being  purely 
statutory,  the  state  has  the  right  to  annex  such  conditions  to  it  as  it 
pleases.  The  case,  then,  really  resolves  itself  into  the  question  whether 
the  authority  to  lay  a  succession  tax  arises  solely  from  the  power  to 
regulate  the  descent  of  property,  or,  as  well  from  the  independent 
general  power  to  tax,  or,  as  expressed  in  the  Constitution,  art.  1,  §  8, 
'to  lay  and  collect  taxes,  duties,  imposts,  and  excises.'     *     *     * 

"In  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  747, 
the  question  involved  here,  as  to  the  power  of  Congress  to  levy  a  suc- 
cession tax,  was  considered,  and  it  was  said  by  Mr.  Justice  White  (p. 
56,  L.  Ed.  p.  975,  Sup.  Ct.  753) :  'The  proposition  that  it  cannot  rests 
upon  the  assumption  that,  since  the  transmission  of  property  by  death 
is  exclusively  subject  to  the  regulating  authority  of  the  several  states, 
therefore  the  levy  by  Congress  of  a  tax  on  inheritances  or  legacies  in 
any  form  is  beyond  the  power  of  Congress,  and  is  an  interference  by 
the  national  government  with  a  matter  which  falls  alone  within  the 
reach  of  state  legislation.'  This  proposition  was  pronounced  a  fallacy 
(p.  59,  L.  Ed.  p.  977,  Sup.  Ct.  p.  755) :  'In  legal  effect,  then,  the  prop- 
osition upon  which  the  argument  rests  is  that  wherever  a  right  is  sub- 
ject to  exclusive  regulation,  by  either  the  government  of  the  United 
States  on  the  one  hand  or  the  several  states  on  the  other,  the  exercise 
of  such  rights  as  regulated  can  alone  be  taxed  by  the  government  hav- 
ing the  mission  to  regulate.'  i     *     *     * 

i  Accord  :  U.  S.  v.  Fox,  94  D.  S.  315,  24  L.  Ed.  192  (1S77)  (state  mav  forbid 
devise  of  land  to  U.  S.). 

-At  ITS  D.  S.  CO.  20  Sup.  Ct.  755,  44  L.  Ed.  989,  this  opinion  continues: 
"Certainly,  a  tax  placed  upon  an  inheritance  or  legacy  diminishes,  to  lhe 
extent  ol  the  tax,  the  value  of  the  right  to  inherit  or  receive,  but  this  is  a 
burden  <ast  upon  the  recipient,  and  not  upon  the  power  of  the  state  to  regu- 
his  distinction  shows  the  Inapplicability  to  the  case  in  hand  of  the 
statement  made  by  Mr.  Chief  Justice  Marshall  in  McCulloch  v.  Maryland.  4 
Wheat.  431,  4  Ij.  Ed.  607  (1S19),  'that  the  power  to  tax  involves  the  power 
to  destroy.'  This  principle  is  pertinent  only  when  there  is  no  power  to  tax 
a  particular  subject,  and  has  no  relation  to  a  case  where  such  right  exists. 
In  other  words,  the  power  to  destroy  which  may  be  the  consequence  of  tax- 
ation is  a  reason  why  the  right  to  tax  should  be  confined  to  subjects  which 
may  be  lawfully  embraced  therein,  even  although  it  happens  that  in  some 
particular  instance  no  great  harm  may  be  caused  by  the  exercise  of  the  tax- 
in.'  authority  as  to  a  subject  which  is  beyond  Its  scope.  But  this  reasoning 
has  no  application  to  a  lawful  tax.  for  if  it  had  there  would  be  an  end  of  all 
taxation;  that  Is  to  say,  if  a  lawful  tax  can  be  defeated  because  the  power 
Is  manifested  by  its  imposition  may  when  further  exercised  be  destruc- 
tive, it  would  follow  that  every  lawful  tax  would  become  unlawful,  and  there- 


1310  THE  FEDERAL  GOVERNMENT  (Part  3 

"This  case  must  be  regarded  as  definitely  establishing  the  doctrine 
that  the  power  to  tax  inheritances  does  not  arise  solely  from  the  power 
to  regulate  the  descent  of  property,  but  from  the  general  authority  to 
impose  taxes  upon  all  property  within  the  jurisdiction  of  the  taxing 
power.  It  has  usually  happened  that  the  power  has  been  exercised 
by  the  same  government  which  regulates  the  succession  to  the  prop- 
erty taxed ;  but  this  power  is  not  destroyed  by  the  dual  character  of 
our  government,  or  by  the  fact  that,  under  our  Constitution,  the  dev- 
olution of  property  is  determined  by  the  laws  of  the  several  states. 
*     *     * 

"If  it  be  true  that  it  is  beyond  the  power  of  Congress  to  impose  an 
inheritance  tax  because  the  descent  of  property  is  regulated  by  state 
statutes,  it  would  be  difficult  to  support  its  power  to  impose  stamp 
taxes  upon  commercial  and  legal  instruments,  since  the  conveyance, 
regulation,  and  transmission  of  all  property  is  governed  by  the  laws 
of  the  several  states.  *  *  *  [Here  reference  is  made  to'  federal 
stamp  duties,  beginning  as  early  as  1797,  imposed  upon  documents 
connected  with  the  devolution  of  the  property  of  a  deceased  person.] 
Not  only  this,  but  the  same  statute  [12  Stat.  432,  483,  c.  119,  U.  S. 
Comp.  St.  1901,  p.  186  (1862)]  imposed  a  tax  upon  writs,  or  other  orig- 
inal process,  by  which  suits  are  commenced  in  any  court  of  record, 
exempting  only  processes  issued  by  justices  of  the  peace,  or  in  suits 
begun  by  the  United  States  or  any  state.  This  act  was  treated  as  ap- 
plicable to  the  state  courts,  although  its  constitutionality  may  well  be 
doubted.8 

"Referable  to  the  same  principle  is  the  power  of  Congress  to  tax 
occupations  which  can  only  be  carried  on  by  permission  of  the  state 
authorities  and  under  conditions  prescribed  by  its  laws, — such,  for  in- 
stance, as  the  profession  of  a  lawyer  or  physician,  or  the  business  of 
dealing  in  spirituous  liquors,  for  which  licenses  are  required  under  the 
laws  of  nearly  all  the  states.  While  the  power  of  Congress  to  impose 
such  taxes  may  never  have  been  expressly  affirmed  by  this  court,  it 
does  not  seem  to  have  been  seriously  questioned.     *     *     * 

"Conceding  fully  that  Congress  has  no  power  to  impose  a  burden 
upon  a  state  or  its  municipal  corporations,  the  question  in  each  case 
is  whether  the  tax  is  direct  or  incidental ;  since  we  have  had  frequent 
occasion  to  hold  that  the  imposition  of  a  tax  may  indirectly  affect  the 
value  of  property  to  the  amount  of  the  tax  without  being  legally  ob- 
jectionable as  a  direct  burden  upon  such  property.  *  *  *  [Refer- 
ring to  Van  Allen  v.  The  Assessors,  3  Wall.  573,  18  L.  Ed.  229,  and 
Home  Ins.  Co.  v.  New  York,  ante,  p.  1290.] 

fore  no  taxation  whatever  could  be  levied.  Under  our  constitutional  system 
both  the  national  and  the  state  governments,  moving  in  their  respective  orbits, 
have  a  common  authority  to  tax  many  and  diverse  objects,  but  this  does  not 
cause  the  exercise  of  its  lawful  attributes  by  one  to  be  a  curtailment  of  the 
powers  of  government  of  the  other,  for  if  it  did  there  would  practically  be 
an  end  of  the  dual  system  of  government  which  the  Constitution  established." 
*  See  cases  in  note  2,  Collector  v.  Day,  ante,  p.  1297. 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1311 

"Having  determined,  then,  that  Congress  has  the  power  to  tax  suc- 
cessions ;  that  the  states  have  the  same  power,  and  that  such  power 
extends  to  bequests  to  the  United  States,  it  would  seem  to  follow 
logically  that  Congress  has  the  same  power  to  tax  the  transmission  of 
property  by  legacy  to  states  or  their  municipalities,  and  that  the  exer- 
cise of  that  power  in  neither  case  conflicts  with  the  proposition  that 
neither  the  federal  nor  the  state  government  can  tax  the  property  or 
agencies  of  the  other,  since,  as  repeatedly  held,  the  taxes  imposed  are 
not    upon    property,    but    upon    the    right    to    succeed    to    property.'' 

[White,  J.,  gave  a  dissenting  opinion,  concurred  in  by  Fuller, 
C.  J.,  and  Peckham,  ]." 


CALIFORNIA  v.  CENTRAL  PACIFIC  RAILROAD  COM- 
PANY (1888)  127  U.  S.  1,  40,  41,  8  Sup.  Ct.  1073.  1080,  32  L.  Ed. 
150,  Mr.  Justice  Bradley  (holding  invalid  a  tax  levied  by  California 
upon  franchises  to  construct  and  operate  a  railroad  conferred  by  act 
of  Congress  upon  a  California  corporation): 

"Assuming,  then,  that  the  Central  Pacific  Railroad  Company  has  re- 
ceived the  important  franchises  referred  to  by  grant  of  the  United 
States,  the  question  arises  whether  they  are  legitimate  subjects  of  tax- 
ation by  the  state.  They  were  granted  to  the  company  for  national 
purposes,  and  to  subserve  national  ends.  It  seems  very  clear  that  the 
state  of  California  can  neither  take  them  away,  nor  destroy  nor 
abridge  them,  nor  cripple  them  by  onerous  burdens.  Can  it  tax  them  ? 
It  may  undoubtedly  tax  outside  visible  property  of  the  company,  sit- 
uated with  the  state.  That  is  a  different  thing.  But  may  it  tax  fran- 
chises which  are  the  grant  of  the  United  States?  In  our  judgment,  it 
cannot.  What  is  a  franchise?  Under  the  English  law,  Blackstone  de- 
fines it  as  'a  royal  privilege,  or  branch  of  the  Icing's  prerogative,  sub- 
sisting in  the  hands  of  a  subject.'  2  Comm.  37.  Generalized,  and  di- 
vested of  the  special  form  which  it  assumes  under  a  nonarchical  gov- 
ernment based  on  feudal  traditions,  a  franchise  is  a  right,  privilege,  or 
power  of  public  concern,  which  ought  not  to  be  exercised  by  private 
individuals  at  their  mere  will  and  pleasure,  but  should  be  reserved  for 
public  control  and  administration,  either  by  the  government  directly, 
or  by  public  agents,  acting  under  such  conditions  and  regulations  as 
the  government  may  impose  in  the  public  interest,  and  for  the  public 
security.1  [Here  follows  the  extract  printed  as  the  latter  part  of  the 
first  paragraph  of  the  portion  of  this  case  printed  ante,  pp.  618,  6!  9.) 

"In  view  of  this  description  of  the  nature  of  a  franchise,  how  can 
it  be  possible  that  a  franchise  granted  by  Congress  can  be  subject  to 
taxation  by  a  state  without  the  consent  of  Congress?  Taxation  is  a 
burden,  and  may  be  laid  so  heavily  as  to  destroy  the  thing  taxed,  or 

i  Distinsruisn  between  a  franchise  and  mere  licensing  or  regulation.     Hen- 
derson  Bdg.  Co.  v.   Kentucky.  160  U.  S.  150,  17  Sup    Ct   532,  41    I.     I 
(1897). 


1312  THE  FEDERAL  GOVERNMENT  (Part  3 

render  it  valueless.  As  Chief  Justice  Marshall  said  in  McCulloch  v. 
Man-land,  4  Wheat.  316,  4  L.  Ed.  579,  'The  power  to  tax  involves  the 
power  to  destroy.'  Recollecting  the  fundamental  principle  that  the 
Constitution,  laws,  and  treaties  of  the  United  States  are  the  supreme 
law  of  the  land,  it  seems  to  us  almost  absurd  to  contend  that  a  power 
given  to  a  person  or  corporation  by  the  United  States  may  be  sub- 
jected to  taxation  by  a  state.  The  power  conferred  emanates  from 
and  is  a  portion  of  the  power  of  the  government  that  confers  it.  To 
tax  it  is  not  only  derogatory  to  the  dignity,  but  subversive  of  the  pow- 
ers, of  the  government,  and  repugnant  to  its  paramount  sovereignty."2 


SOUTH  CAROLINA  v.  UNITED  STATES. 

(Supreme  Court  of  United  States,  1905.     199  U.  S.  437,  26  Sup.  Ct.  110,  50 
L.  Ed.  261,  4  Ann.  Cas.  737.) 

[Appeal  from  Court  of  Claims  from  a  judgment  denying  to  South 
Carolina  the  right  to  recover  certain  sums  exacted  from  the  state  dis- 
pensers of  liquor  there  under  the  federal  internal  revenue  laws.  Other 
facts  appear  in  the  opinion.] 

Mr.  Justice  Brewer.  The  important  question  in  this  case  is  wheth- 
er persons  who  are  selling  liquor  are  relieved  from  liability  for  the  in- 
ternal revenue  tax  by  the  fact  that  they  have  no  interest  in  the  profits 
of  the  business,  and  are  simply  the  agents  of  a  state  which,  in  the  ex- 
ercise of  its  sovereign  power,  has  taken  charge  of  the  business  of  sell- 
ing intoxicating  liquors.     *     *     * 

Upon  this  proposition  counsel  for  appellant  rely.  There  being  no 
constitutional  limit  as  to  the  amount  of  a  license  tax,  and  the  power 

2  Accord :  People  v.  Assessors,  156  N.  Y.  417.  51  N.  E.  269,  42  L.  E.  A.  290 
(1898)  (attempted  state  taxation  of  patent  rights);  In  re  Sheffield  (C.  C.)  64 
Fed.  S33  (1S94)  (same);  McCuIloeh  v.  Maryland,  4  Wheat.  336,  432,  4  L.  Ed. 
579  (1819)  (same— semble).  See  Ind.  Mfg.  Co.  v.  Koehne,  1SS  U.  S.  681,  690, 
23  Sup.  Ct.  452,  47  L.  Ed.  651  (1903).  Compare  Cent.  Pac.  R.  Co.  v.  California, 
162  U.  S.  91,  16  Sup.  Ct.  766.  40  L.  Ed.  903  (1S96)  (state  may  tax  state  fran- 
chise of  corporation  also  having  federal  franchise). 

State  Control  over  Patents  and  Patented  Articles. — While  the  patent 
right  may  probably  not  be  taxed  by  a  state  (see  cases  cited  above),  the 
patented  article  itself  may  be  thus  taxed  or  regulated.  Patterson  v.  Ken- 
tucky. 97  U.  S.  501,  24  L.  Ed.  1115  (1879)  (prohibition  of  use)  ;  Webber  v. 
Virginia,  103  U.  S.  344,  347,  349,  26  L.  Ed.  565  (1881)  (taxation),  in  which 
Field,  J.,  said  : 

"It  is  only  the  right  to  the  invention  or  discovery,  the  incorporeal  right, 
which  the  state  cannot  interfere  with.  *  *  *  The  right  of  property  in 
the  physical  substance,  which  is  the  fruit  of  the  discovery,  is  altogether  dis- 
tinct from  the  right  in  the  discovery  itself.  «  »  *  The  use  of  the  tangible 
property  which  comes  into  existence  by  the  application  of  the  discovery  is 
not  beyond  the  control  of  state  legislation." 

As  to  a  state's  power  over  various  incidents  of  the  sale  or  licensing  of  pat- 
ent rights,  see  Allen  v.  Riley,  203  U.  S.  347.  27  Sup.  Ct.  95,  51  L.  Ed.  216.  8 
Ann.  Cas.  137  (1906);  Opinion  of  Justices,  193  Mass.  605,  81  N.  E.  142  (1907); 
Henry  v.  Dick  Co.,  224  U.  S.  1,  32  Sup.  Ct.  364,  56  L.  Ed.  645  (1912) ;    Bauer 

v.  O'Donnell,  229  U.  S.  1,  33   Sup.  Ct.  616,   57  L.  Ed.  (1913).     Compare 

Standard  Mfg.  Co.  v.  U.  S.,  226  U.  S.  20,  33  Sup.  Ct.  9,  57  L.  Ed. a'JVJ). 


Ch.  10)  i.NTi;uf;ovi;i:.\MKNTAL  relations  1313 

to  tax  being  the  power  to  destroy,  if  Congress  can  enforce  such  a  tax 
against  a  state,  it  may  destroy  this  effort  of  the  state,  in  the  exercise 
of  its  police  power,  to  control  the  sale  of  liquor.  It  cannot  be  doubted 
that  the  regulation  of  the  sale  of  liquor  comes  within  the  scope  of  the 
police  power,  and  equally  true  that  the  police  power  is,  in  its  fullest  and 
broadest  sense,  reserved  to  the  states ;  that  the  mode  of  exercising 
that  power  is  left  to  their  discretion,  and  is  not  subject  to  national 
supervision.  But,  if  Congress  may  tax  the  agents  of  the  state  charged 
with  the  duty  of  selling  intoxicating  liquors,  it  in  effect  assumes  a 
certain  control  over  this  police  power,  and  thus  may  embarrass  and 
even  thwart  the  attempt  of  the  state  to  carry  on  this  mode  of  regula- 
tion. 

We  are  not  insensible  to  the  force  of  this  argument,  and  appreciate 
the  difficulties  which  it  presents ;  but  let  us  see  to  what  it  leads.  Each 
state  is  subject  only  to  the  limitations  prescribed  by  the  Constr 
and  within  its  own  territory  is  otherwise  supreme.  Its  internal  affairs 
are  matters  of  its  own  discretion.  The  Constitution  provides  that 
"the  United  States  shall  guarantee  to  every  state  in  this  Union  a  re- 
publican form  of  government."  Art.  4,  §  4.  That  expresses  the  full 
limit  of  national  control  over  the  internal  affairs  of  a  state. 

The  right  of  South  Carolina  to  control  the  sale  of"  liquor  by  the  dis- 
pensary system  has  been  sustained.  Vance  v.  W.  A.  Vandercook  Co., 
170  U.  S.  438,  42  L.  Ed.  1100.  18  Sup.  Ct.  674.  The  profits  from  the 
business  in  the  year  1901,  as  appears  from  the  findings  of  fact  were 
over  half  a  million  of  dollars.  Mingling  the  thought  of  profit  with  the 
necessity  of  regulation  may  induce  the  state  to  take  possession,  in  like 
manner,  of  tobacco,  oleomargarine,  and  all  other  objects  of  internal 
revenue  tax.  If  one  state  finds  it  thus  profitable,  other  states  may  fol- 
low, and  the  whole  body  of  internal  revenue  tax  be  thus  stricken 
down. 

More  than  this.  There  is  a  large  and  growing  movement  in  the 
country  in  favor  of  the  acquisition  and  management  by  the  public  of 
what  are  termed  "public  utilities,"  including  not  merely  therein  the 
supply  of  gas  and  water,  but  also  the  entire  railroad  system.  Would 
the  state,  by  taking  into  possession  these  public  utilities,  lose  its  repub- 
lican form  of  government? 

We  may  go  even  a  step  further.  There  are  some  insisting  that  the 
state  shall  become  the  owner  of  all  property  and  the  manager  of  all 
business.  Of  course,  this  is  an  extreme  view,  but  its  advocates  are 
earnestly  contending  that  thereby  the  best  interests  of  all  citizens  will 
be  subserved.  If  this  change  should  be  made  in  any  state,  how  much 
would  that  state  contribute  to  the  revenue  of  the  nation?  If  this  ex- 
treme action  is  not  to  be  counted  among  the  probabilities,  consider  the 
of  one  much  less  so.  Suppose  a  state  assumes,  under  its  police 
power,  the  control  of  all  those  matters  subject  to  the  internal  revenue 
II.ui  l 


I'.'Ai  THE  FEDEEAL  GOVERN.MENT  (Part  3 

lax,  and  also  engages  in  the  business  of  importing  all  foreign  goods. 
The  same  argument  which  would  exempt  the  sale  by  a  state  of  liquor, 
tobacco,  etc.,  from  a  license  tax,  would  exempt  the  importation  of 
merchandise  by  a  state  from  import  duty.1  While  the  state  might  not 
prohibit  importations,  as  it  can  the  sale  of  liquor,  by  private  individ- 
uals, yet,  paying  no  import  duty,  it  could  undersell  all  individuals,  and 
so  monopolize  the  importation  and  sale  of  foreign  goods. 

Obviously,  if  the  power  of  the  state  is  carried  to  the  extent  sug- 
gested, and  with  it  is  relief  from  all  federal  taxation,  the  national  gov- 
ernment would  be  largely  crippled  in  its  revenues.  Indeed,  if  all  the 
states  should  concur  in  exercising  their  powers  to  the  full  extent,  it 
would  be  almost  impossible  for  the  nation  to  collect  any  revenues.  In 
other  words,  in  this  indirect  way  it  would  be  within  the  competency  of 
the  states  to  practically  destroy  the  efficiency  of  the  national  govern- 
ment. *  *  *  We  are  to  find  in  the  Constitution  itself  the  full  pro- 
tection to  the  nation,  and  not  to  rest  its  sufficiency  on  either  the  gen- 
erosity or  the  neglect  of  any  state. 

There  is  something  of  a  conflict  between  the  full  power  of  the  na- 
tion in  respect  to  taxation  and  the  exemption  of  the  state  from  fed- 
eral taxation  in  respect  to  its  property  and  a  discharge  of  all  its  func- 
tions. Where  and  how  shall  the  line  between  them  be  drawn?  We 
have  seen  that  the  full  power  of  collecting  license  taxes  is  in  terms 
granted  to  the  national  government,  with  only  the  limitations  of  uni- 
formity and  the  public  benefit.  The  exemption  of  the  state's  property 
and  its  functions  from  federal  taxation  is  implied  from  the  dual  char- 
acter of  our  federal  system  and  the  necessity  of  preserving  the  state 
in  all  its  efficiency.  In  order  to  determine  to  what  extent  that  impli- 
cation will  go  we  must  turn  to  the  condition  of  things  at  the  time  the 
Constitution  was  framed.  What,  in  the  light  of  that  condition,  did 
the  framers  of  the  convention  intend  should  be  exempt?  Certain  is  it 
that  modern  notions  as  to  the  extent  to  which  the  functions  of  a  state 
may  be  carried  had  then  no  hold.  Whatever  Utopian  theories  may 
have  been  presented  by  any  writers  were  regarded  as  mere  creations 
of  fancy,  and  had  no  practical  recognition.  It  is  true  that  monopolies 
in  respect  to  certain  commodities  were  known  to  have  been  granted  by 
absolute  monarchs,  but  they  were  not  regarded  as  consistent  with  An- 
glo-Saxon ideas  of  government.     *     *     * 

Looking,  therefore,  at  the  Constitution  in  the  light  of  the  conditions 
surrounding  at  the  time  of  its  adoption,  it  is  obvious  that  the  framers, 
in  granting  full  power  over  license  taxes  to  the  national  government, 
meant  that  that  power  should  be  complete ;  and  never  thought  that  the 
states,  by  extending  their  functions,  could  practically  destroy  it. 

If  we  look  upon  the  Constitution  in  the  light  of  the  common  law, 
we  are  led  to  the  same  conclusion.  All  the  avenues  of  trade  were  open 
to  the  individual.     The  government  did  not  attempt  to  exclude  him 

i  See  Atty.  Gen.  v.  Collector,  rited  in  note  3,  helow. 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1315 

from  any.  Whatever  restraints  were  put  upon  him  were  mere  police 
regulations  to  control  his  conduct  in  the  business,  and  not  to  exclude 
him  therefrom.  The  government  was  no  competitor,  nor  did  it  as- 
sume to  carry  on  any  business  which  ordinarily  is  carried  on  by  in- 
dividuals. Indeed,  every  attempt  at  monopoly  was  odious  in  the  eyes 
of  the  common  law,  and  it  mattered  not  how  that  monopoly  arose, 
whether  from  grant  of  the  sovereign  or  otherwise.  The  framers  of 
the  Constitution  were  not  anticipating  that  a  state  would  attempt  to 
monopolize  any  business  heretofore  carried  on  by  individuals. 

Further,  it  may  be  noticed  that  the  tax  is  not  imposed  on  any  prop- 
erty belonging  to  the  state,  but  is  a  charge  on  a  business  before  any 
profits  are  realized  therefrom.  In  this  it  is  not  unlike  the  taxes  sus- 
tained in  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287, 
16  Sup.  Ct.  1073,  and  Snyder  v.  Bettman  [ante.  p.  130?].     *     *     * 

It  is  also  worthy  of  remark  that  the  cases  in  which  the  invalidity  of 
a  federal  tax  has  been  affirmed  were  those  in  which  the  tax  was  at- 
tempted to  be  levied  upon  property  belonging  to  the  state,  or  one  of 
its  municipalities,  or  was  a  charge  upon  the  means  and  instrumental- 
ities employed  by  the  state,  in  the  discharge  of  its  ordinary  functions 
as  a  government.  *  *  *  [After  a  reference  to  Veazie  Bank  v. 
Fenno,  8  Wall.  533,  19  L.  Ed.  482,  here  follow  quotations  from  Col- 
lector v.  Day,  ante,  p.  1295;  U.  S.  v.  Bait.  &  U.  Ry.,  stated  ante  at 
page  1305;   and  Ambrosini  v.  U.  S.,  cited  ante,  p.  1297,  note  2.] 

These  decisions,  while  not  controlling  the  question  before  us,  in- 
dicate that  the  thought  has  been  that  the  exemption  of  state  agencies 
and  instrumentalities  from  national  taxation  is  limited  to  those  which 
are  of  a  strictly  governmental  character,  and  does  not  extend  to  those 
which  are  used  by  the  state  in  the  carrying  on  of  an  ordinary  private 
business. 

In  this  connection  may  be  noticed  the  well-established  distinction  be- 
tween the  duties  of  a  public  character  cast  upon  municipal  corpora- 
tions, and  those  which  relate  to  what  may  be  considered  their  private 
business,  and  the  different  responsibility  resulting  in  case  of  negli- 
gence in  respect  to  the  discharge  of  those  duties.  *  *  *  [Here 
follow  quotations  from  Oliver  v.  Worcester,  102  Mass.  4S9,  3  Am. 
Rep.  4S5 ;  Lloyd  v.  New  York,  5  N.  Y.  369.  55  Am.  Dec.  347 ;  and 
Western  Saw  Soc.  v.  Philadelphia,  31  Pa.  175.]  * 

Xow,  if  it  be  well  established,  as  these  authorities  say,  that  there  is 
a  clear  distinction  as  respects  responsibility  for  negligence  between 
the  powers  granted  to  a  corporation  for  governmental  purposes  and 
those  in  aid  of  private  business,  a  like  distinction  may  be  recognized 
when  we  are  asked  to  limit  the  full  power  of  imposing  excises  granted 
to  the  national  government  by  an  implied  inability  to  impede  or  em- 

'  For  a  somewhat  analogous  distinction  as  to  the  extent  of  municipal  rights 
and  control  over  property  hold  in  a  proprietary  as  contrasted  with  a  govern- 
mental capacity,  see  Mt  Hope  Cemetery  v.  Boston,  158  Haas.  509,  33  N    E 
605,  35  Am.  St.  Rep.  515  (1893);    Hunter  v.  Pittsburgh,  207  U.  S.  161,  179 
181.  28  Sup    Ct  40,  r>2  T..  Ed.  151   (1907)  :    -4S  L.  R.  A.   IS.-,  IT.,  note. 


1316  THE    FEDERAL    GOVERNMENT  (Part  3 

barrass  a  state  in  the  discharge  of  its  functions.  It  is  reasonable  to 
hold  that,  while  the  former  may  do  nothing  by  taxation  in  any  form  to 
prevent  the  full  discharge  by  the  latter  of  its  governmental  functions, 
yet,  whenever  a  state  engages  in  a  business  which  is  of  a  private  na- 
ture, that  business  is  not  withdrawn  from  the  taxing  power  of  the 
nation.     *     *     * 

Judgment  affirmed.3 

[White,  J.,  gave  a  dissenting  opinion,  in  which  concurred  Peck- 
ham  and  McKenna,  JJ.] 


FLINT  v.  STONE  TRACY  CO.  (1911)  220  U.  S.  107, 152,  153, 155- 
158,  171,  172,  31  Sup.  Ct.  342,  349,  55  L.  Ed.  389,  Ann.  Cas.  1912B, 
1312,  Mr.  Justice  Day  (upholding  a  federal  excise  tax  upon  the  doing 
of  business  in  the  United  States  by  any  corporation  or  joint  stock  com- 
pany, equivalent  to  1  per  cent,  of  its  net  income  above  $5,000) : 

"It  is  next  contended  that  the  attempted  taxation  is  void  because  it 
levies  a  tax  upon  the  exclusive  right  of  a  state  to  grant  corporate  fran- 
chises, because  it  taxes  franchises  which  are  the  creation  of  the  state 
in  its  sovereign  right  and  authority.  This  proposition  is  rested  upon 
the  implied  limitation  upon  the  powers  of  national  and  state  govern- 
ments to  take  action  which  encroaches  upon  or  cripples  the  exercise  of 
the  exclusive  power  of  sovereignty  in  the  other.  It  has  been  held  in 
a  number  of  cases  that  the  state  cannot  tax  franchises  created  by  the 
United  States  or  the  agencies  or  corporations  which  are  created  for 
the  purpose  of  carrying  out  governmental   functions  of  the  United 

»  In  Federated  Govt.  Ry.  Ass'n  v.  N.  S.  Wales  Ry.  Ass'n,  4  Com.  L.  R.  4S8, 
53S-539  (Australia,  1900),  Griffith,  G.  J.,  said  (after  referring  to  the  principal 
case  in  connection  with  the  doctrine  of  non-interference  by  the  federal  gov- 
ernment with  state  instrumentalities) : 

"The  argument  as  presented  to  us  is  that  state  instrumentalities  for  the 
purpos.es  of  the  doctrine  in  question  are  limited  to  those  which  are,  strictly 
speaking,  of  what  was  called  in  argument  a  'governmental'  character,  and 
that  the  business  of  common  carriers  is  not  a  part  of  any  of  the  recognized 
branches  of  government,  legislative,  judicial,  aud  executive.  We  apprehend, 
however,  that  the  execution  and  administration  of  the  laws  of  the  state  is 
in  the  strictest  sense  a  governmental  function,  and  that  no  rule  can  be  for- 
mulated, because  there  is  no  authority  competent  to  formulate  it,  which  shall 
prescribe  what  functions  the  state  shall  undertake  in  the  supposed  exercise 
of  its  duty  to  promote  the  well-being  of  its  people.  There  is  high  authority, 
both  ancient  and  modern,  for  holding  that  the  construction  and  maintenance 
of  roads  and  means  of  communication  is  one  of  the  most  important,  as  it  is 
necessarily  one  of  the  first,  of  the  functions  of  government.  *  *  *  Apart, 
however,  from  this  general  consideration,  we  are  of  opinion  that  in  the  year 
1900,  when  the  Constitution  was  adopted,  the  construction  and  maintenance 
of  railways  was  in  fact  generally  regarded  as  a  governmental  function  in  all 
the  Australian  colonies." 

[It  was  accordingly  held  that  the  construction  and  maintenance  of  state 
railroads  was  a  proper  governmental  function  of  the  Australian  states  and 
as  such  was  protected  from  certain  federal  interference  under  the  above- 
mentioned  doctrine.] 

Compare  Atty.  Gen.  of  N.  S.  Wales  v.  Collector,  5  Com.  L.  R.  SIS  (190S) 
(Australian  Commonwealth  may  levy  import  duty  on  steel  rails  imported  by 
state  for  its  railways). 


Ch.  19)  INTERGOVERNMENTAL    RELATIONS  1317 

States.  McCulloch  v.  Maryland,  4  Wheat.  316,  4  L.  Ed.  579;  Osbonr 
v.  Bank  of  United  States,  9  Wheat.  738,  6  L.  Ed.  204;  Union  P.  R. 
Co.  v.  Peniston,  18  Wall.  5,  21  L.  Ed.  787;  California  v.  Central  P. 
R.  Co.,  127  U.  S.  1,  32  L.  Ed.  150,  2  Inters.  Com.  Rep.  153,  8  Sup. 
Ct.  1073. 

"An  examination  of  these  cases  will  show  that  in  each  case  where 
the  tax  was  held  invalid,  the  decision  rested  upon  the  proposition  that 
the  corporation  was  created  to  carry  into  effect  powers  conferred  upon 
the  federal  government  in  its  sovereign  capacity,  and  the  attempted 
taxation  was  an  interference  with  the  effectual  exercise  of  such  powers. 

"In  Osborn  v.  Bank  of  United  States,  supra,  a  leading  case  upon  the 
subject,  whilst  it  was  held  that  the  Bank  of  the  United  States  was  not 
a  private  corporation,  but  a  public  one,  created  for  national  purposes, 
and  therefore  beyond  the  taxing  power  of  the  state,  Chief  Justice  Mar- 
shall, in  delivering  the  opinion  of  the  court,  conceded  that  if  the  cor- 
poration had  been  originated  for  the  management  of  an  individual 
concern,  with  private  trade  and  profit  for  its  great  end  and  principal 
object,  it  might  be  taxed  by  the  state.  *  *  *  [Here  follows  a 
quotation  from  this  case,  9  Wheat,  at  859,  860.] 

"While  the  tax  in  this  case,  as  we  have  construed  the  statute,  is  im- 
posed upon  the  exercise  of  the  privilege  of  doing  business  in  a  cor- 
porate capacity,  as  such  business  is  done  under  authority  of  state  fran- 
chises, it  becomes  necessary  to  consider  in  this  connection  the  right  of 
the  federal  government  to  tax  the  activities  of  private  corporations 
which  arise  from  the  exercise  of  franchises  granted  by  the  state  in 
creating  and  conferring  powers  upon  such  corporations.  We  think  it 
is  the  result  of  the  cases  heretofore  decided  in  this  court,  that  such 
business  activities,  though  exercised  because  of  state-created  franchis- 
es, are  not  beyond  the  taxing  power  of  the  United  States.  *  *  * 
[Citing  Mich.  C.  Rv.  v.  Slack,  100  U.  S.  595,  25  L.  Ed.  647;  U.  S.  v. 
Erie  Ry.,  106  U.  S.  327,  1  Sup.  Ct.  223,  27  L.  Ed.  151 ;  Spreckels  Ref. 
Co.  v.  McClain,  192  U.  S.  397,  24  Sup.  Ct.  376,  48  L.  Ed.  496.]  The 
question  was  raised  and  decided  in  the  case  of  Veazie  Bank  v.  Fenno, 
8  Wall.  533,  19  L.  Ed.  4S2.  In  that  well-known  case  a  tax  upon  the 
notes  of  a  state  bank  issued  for  circulation  was  sustained.  Mr.  Chief 
Justice  Chase,  in  the  course  of  the  opinion,  said: 

"  'Is  it,  then,  a  tax  on  a  franchise  granted  by  a  state,  which  Congress, 
upon  any  principle  exempting  the  reserved  powers  of  the  states  from 
impairment  by  taxation,  must  be  held  to  have  no  authority  to  lay  and 
collect? 

"  'We  do  not  say  that  there  may  not  be  such  a  tax.  It  may  be  ad- 
mitted that  the  reserved  rights  of  the  states,  such  as  the  right  to  pass 
laws,  to  give  effect  to  laws  through  executive  action,  to  administer 
justice  through  the  courts,  and  to  employ  all  necessary  agencies  for 
legitimate  purposes  of  state  government,  are  not  proper  subjects  of 
the  taxing  power  of  Congress.     But  it  cannot  be  admitted  that  fran- 


1318  THE   FEDERAL   GOVERNMENT  (Part  ?< 

chises  granted  by  a  state  are  necessarily  exempt  from  taxation;  for 
franchises  are  property,  often  very  valuable  and  productive  property ; 
and  when  not  conferred  for  the  purpose  of  giving  effect  to  some  re- 
served power  of  a  state,  seem  to  be  as  properly  objects  of  taxation  as 
any  other  property. 

"  'But  in  the  case  before  us  the  object  of  taxation  is  not  the  fran- 
chise of  the  bank,  but  property  created,  or  contracts  made  and  issued 
under  the  franchise,  or  power  to  issue  bank  bills.  A  railroad  com- 
pany, in  the  exercise  of  its  corporate  franchises,  issues  freight  receipts, 
bills  of  lading,  and  passenger  tickets ;  and  it  cannot  be  doubted  that 
the  organization  or  railroads  is  quite  as  important  to  the  state  as  the 
organization  of  banks.  But  it  will  hardly  be  questioned  that  these  con- 
tracts of  the  company  are  objects  of  taxation  within  the  powers  of 
Congress,  and  not  exempted  by  any  relation  to  the  state  which  granted 
the  charter  of  the  railroad.  And  it  seems  difficult  to  distinguish  the 
taxation  of  notes  issued  for  circulation  from  the  taxation  of  these 
railroad  contracts.  Both  descriptions  of  contracts  are  means  of  profit 
to  the  corporations  which  issue  them ;  and  both,  as  we  think,  may 
properly  be  made  contributory  to  the  public  revenue.'    (Pp.  547,  548.) 

■'It  is  true  that  the  decision  in  the  Veazie  Bank  Case  was  also 
placed,  in  a  measure,  upon  the  authority  of  the  United  states  to  control 
the  circulating  medium  of  the  country,  but  the  force  of  the  reasoning 
which  we  have  quoted  has  not  been  denied  or  departed  from.  *  *  * 
[Here  follow  references  to  Thomas  v.  U.  S.,  192  U.  S.  363,  24  Sup. 
Ct.  305,  48  L.  Ed.  481,  and  Nicol  v.  Ames,  173  U.  S.  509,  19  Sup.  Ct. 
522,  43  L.  Ed.  786.1 

"When  the  Constitution  was  framed,  the  right  to  lay  excise  taxes 
was  broadly  conferred  upon  the  Congress.  At  that  time  very  few  cor- 
porations existed.  If  the  mere  fact  of  state  incorporation,  extending 
now  to  nearly  all  branches  of  trade  and  industry,  could  withdraw  the 
legitimate  objects  of  federal  taxation  from  the  exercise  of  the  power 
conferred,  the  result  would  be  to  exclude  the  national  government 
from  many  objects  upon  which  indirect  taxes  could  be  constitutionally 
imposed.  Let  it  be  supposed  that  a  group  of  individuals,  as  partners, 
were  carrying  on  a  business  upon  which  Congress  concluded  to  lay  an 
excise  tax.  If  it  be  true  that  the  forming  of  a  state  corporation  would 
defeat  this  purpose,  by  taking  the  necessary  steps  required  by  the  state 
law  to  create  a  corporation  and  carrying  on  the  business  under  rights 
granted  by  a  state  statute,  the  federal  tax  would  become  invalid  and 
that  source  of  national  revenue  be  destroyed,  except  as  to  the  business 
in  the  hands  of  individuals  or  partnerships.  It  cannot  be  supposed 
that  it  was  intended  that  it  should  be  within  the  power  of  individuals 
acting  under  state  authority  to  thus  impair  and  limit  the  exertion  of 
authority  which  may  be  essential  to  national  existence.  *  *  * 
[Here  reference  is  made  to  So.  Carolina  v.  U.  S.,  ante.  p.    1312.] 


Ch.  19)  INTEnOOVERNMKXTAL    RELATIONS  131 1> 

"The  cases  unite  in  exempting  from  federal  taxation  the  means  and 
instrumentalities  employed  in  carrying  on  the  governmental  opera- 
tions of  the  state.  The  exercise  of  such  rights  as  the  establishment  of 
a  judiciary,  the  employment  of  officers  to  administer  and  execute  the 
laws,  and  similar  governmental  functions,  cannot  be  taxed  by  the  fed- 
eral government.  The  Collector  v.  Day,  11  Wall.  113.  20  L.  Ed.  122 : 
United  States  v.  Baltimore  &  O.  R.  Co.,  17  Wall.  322,  21  L.  Ed.  597; 
Ambrosini  v.  United  States,  187  U.  S.  1,  47  L.  Ed.  49,  23  Sup.  Ct.  1, 
12  Am.  Crim.  Rep.  699. 

"But  this  limitation  has  never  been  extended  to  the  exclusion  of  the 
activities  of  a  merely  private  business  from  the  federal  taxing  power, 
although  the  power  to  exercise  them  is  derived  from  an  act  of  incor- 
poration by  one  of  the  states.  We  therefore  reach  the  conclusion  that 
the  mere  fact  that  the  business  taxed  is  done  in  pursuance  of  authority 
granted  by  a  state  in  the  creation  of  private  corporations  does  not  ex- 
empt it  from  the  exercise  of  federal  authority  to  levy  excise  taxes 
upon  such  privileges.     *     *     * 

"We  come  to  the  question,  Is  a  so-called  public-service  corporation, 
such  as  the  Coney  Island  and  Brooklyn  Railroad  Company,  in  case 
No.  409,  and  the  Interborough  Rapid  Transit  Company,  No.  442,  ex- 
empted from  the  operation  of  this  statute?  In  the  case  of  South  Caro- 
lina v.  United  States,  199  U.  S.  437,  50  L.  Ed.  261,  26  Sup.  Ct.  110. 
4  Ann.  Cas.  737,  this  court  held  that  when  a  state,  acting  within  its 
lawful  authority,  undertook  to  carry  on  the  liquor  business,  it  did  not 
withdraw  the  agencies  of  the  state,  carrying  on  the  traffic,  from  the 
operation  of  the  internal  revenue  laws  of  the  United  States.  If  a 
state  may  not  thus  withdraw  from  the  operation  of  a  federal  taxing 
law  a  subject-matter  of  such  taxation,  it  is  difficult  to  see  how  the 
incorporation  of  companies  whose  service,  though  of  a  public  nature, 
is,  nevertheless,  with  a  view  to  private  profit,  can  have  the  effect  of 
denying  the  federal  right  to  reach  such  properties  and  activities  for 
the  purposes  of  revenue. 

"It  is  no  part  of  the  essential  governmental  functions  of  a  state  to 
provide  means  of  transportation,  supply  artificial  light,  water,  and  the 
like.1  These  objects  are  often  accomplished  through  the  medium  of 
private  corporations,  and  though  the  public  may  derive  a  benefit  from 
such  operations,  the  companies  carrying  on  such  enterprises  are  nev- 
ertheless private  companies,  whose  business  is  prosecuted  for  private 
emolument  and  advantage.  For  the  purpose  of  taxation  they  stand 
upon  the  same  footing  as  other  private  corporations  upon  which  spe- 
cial franchises  have  been  conferred. 

"The  true  distinction  is  between  the  attempted  taxation  of  those 
operations  of  the  states  essential  to  the  execution  of  its  governmental 
functions,  and  which  the  state  can  only  do  itself,  and  those  activities 

i  But  sop  Fed.  Govt.  Hy.  Ass'n  v.  N.  s.  Wales  Ry.  Ass'n,  ante,  p.  1316, note 


1320  THE  FEDERAL  GOVERNMENT  (Part  3 

which  are  of  a  private  character.  The  former,  the  United  States  may 
not  interfere  with  by  taxing  the  agencies  of  the  state  in  carrying  out 
its  purposes ;  the  latter,  although  regulated  by  the  state,  and  exercising 
delegated  authority,  such  as  the  right  of  eminent  domain,  are  not  re- 
moved from  the  field  of  legitimate  federal  taxation.  Applying  this 
principle,  we  are  of  opinion  that  the  so-called  public-service  corpora- 
tions represented  in  the  cases  at  bar  are  not  exempt  from  the  tax  in 
question." 


Ch.  20)  JURISDICTION   OF   FEDERAL   CODRTS  1321 

CHAPTER  XX 

Jurisdiction  of  federal  courts 


SECTION  1.— IN  GENERAL* 


COHENS  v.  VIRGINIA  (1821)  6  Wheat.  264,  37S,  5  L.  Ed.  257, 
Mr.  Chief  Justice  Marshall: 

"The  second  section  of  the  third  article  of  the  Constitution  defines 
the  extent  of  the  judicial  power  of  the  United  States.  Jurisdiction  is 
given  to  the  courts  of  the  Union  in  two  classes  of  cases.  In  the  first, 
their  jurisdiction  depends  on  the  character  of  the  cause,  whoever  may 
be  the  parties.  *  *  *  This  clause  extends  the  jurisdiction  of  the 
court  to  all  the  cases  described,  without  making  in  its  terms  any  ex- 
ception whatever,  and  without  any  regard  to  the  condition  of  the 
party.  If  there  be  any  exception,  it  is  to  be  implied  against  the  ex- 
press words  of  the  article. 

"In  the  second  class,  the  jurisdiction  depends  entirely  on  the  char- 
acter of  the  parties.  *  *  *  If  these  be  the  parties,  it  is  entirely 
unimportant  what  may  be  the  subject  of  controversy.  Be  it  what  it 
may,  these  parties  have  a  constitutional  right  to  come  into  the  courts 
of  the  Union." 


KANSAS  v.  COLORADO  (1907)  206  U.  S.  46,  81-83,  27  Sup.  Ct. 
655,  51  L  Ed.  956,  Mr.  Justice  Brewer: 

"In  the  Constitution  are  provisions  in  separate  articles  for  the  three 
great  departments  of  government, — legislative,  executive,  and  judicial. 
But  there  is  this  significant  difference  in  the  grants  of  powers  to  these 
departments :  The  first  article,  treating  of  legislative  powers,  does  not 
make  a  general  grant  of  legislative  power.  It  reads:  'Article  1,  §  1. 
All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress.' 
etc. ;  and  then,  in  article  8,  mentions  and  defines  the  legislative  powers 
that  are  granted.  By  reason  of  the  fact  that  there  is  no  general  grant 
of  legislative  power  it  has  become  an  accepted  constitutional  rule  that 
this  is  a  government  of  enumerated  powers.     *     *     * 

•For  a  reference  to  the  principal  past  and  present  statutory  provisions  reg 
ulating  tin'  jurisdiction  "I'  the  federal  courts,  see  the  tatter  part  of  the  note 
to  Provident  Life  Assurance  Society  v.  i  ord,  post  at  p.  1338. 

AiiMiiiAi.TY  Ji'Hisim  noN.— This  jurisdiction  of  the  federal  courts  is  dis- 
cussed passim,  In  the  eases  under  chapter  XVIII,  section  7,  ante.  pp.  1201- 
1278. 


132S  THE   FEDERAL   GOVERNMENT  (Part  3 

"On  the  other  hand,  in  article  3,  which  treats  of  the  judicial  depart- 
ment *  *  *  we  find  that  §  1  reads  that  'the  judicial  power  of 
the  United  States  shall  be  vested  in  one  Supreme  Court,  and  in  such 
inferior  courts  as  the  Congress  may  from  time  to  time  ordain  and  es- 
tablish.' By  this  is  granted  the  entire  judicial  power  of  the  nation. 
Section  2,  which  provides  that  'the  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitution,  the  laws  of 
the  United  States,'  etc.,  is  not  a  limitation  nor  an  enumeration.  It  is 
a  definite  declaration. — a  provision  that  the  judicial  power  shall  extend 
to — that  is,  shall  include — the  several  matters  particularly  mentioned, 
leaving  unrestricted  the  general  grant  of  the  entire  judicial  power. 
There  may  be,  of  course,  limitations  on  that  grant  of  power,  but,  if 
there  are  any,  they  must  be  expressed ;  for  otherwise  the  general  grant 
would  vest  in  the  courts  all  the  judicial  power  which  the  new  nation 
was  capable  of  exercising.     *     *     * 

"Speaking  generally,  it  may  be  observed  that  the  judicial  power  of 
a  nation  extends  to  all  controversies  justiciable  in  their  nature,  and  the 
parties  to  which  or  the  property  involved  in  which  may  be  reached  by 
judicial  process,  and,  when  the  judicial  power  of  the  United  States 
was  vested  in  the  Supreme  and  other  courts,  all  the  judicial  power 
which  the  nation  was  capable  of  exercising  was  vested  in  those  tribu- 
nals ;  and  unless  there  be  some  limitations  expressed  in  the  Constitu- 
tion it  must  be  held  to  embrace  all  controversies  of  a  justiciable  nature 
arising  within  the  territorial  limits  of  the  nation,  no  matter  who  may 
be  the  parties  thereto.     *     *     * 

"These  considerations  lead  to  the  propositions  that  when  a  legisla- 
tive power  is  claimed  for  the  national  government  the  question  is 
whether  that  power  is  one  of  those  granted  by  the  Constitution,  either 
in  terms  or  by  necessary  implication;  whereas,  in  respect  to  judicial 
functions,  the  question  is  whether  there  be  any  limitations  expressed 
in  the  Constitution  on  the  general  grant  of  national  power."  * 

i  Consider  the  appellate  jurisdiction  exercised  by  the  federal  Supreme  Court 
over  eases  from  territorial  and  insular  courts  that  involve  no  federal  ques- 
tion* or  other  ground  of  jurisdiction  specified  in  art.  Ill,  §  2,  par.  1.  See 
Freeborn  v.  Smith,  2  Wall.  160.  17  L.  Ed.  922  (1865);  Simms  v.  Simms,  175  TJ.  S. 
162,  20  Sup.  Ct  5S,  44  L.  Ed.  115  (1S99) ;  Royal  Ins.  Co.  v.  Martin,  192  U.  S.  149, 
24  Sup.  Ct.  247,  4S  L.  Ed.  3S5  (1904);  De  La  Rama  v.  De  La  Kama.  201  V. 
S.  303,  26  Sup.  Ct.  4S5,  50  L.  Ed.  765  (1906).  For  the  purposes  of  this  juris- 
diction the  interpretation  of  the  laws  of  territories  or  dependencies,  at  least 
where  not  enacted  under  federal  authority,  does  not  necessarily  involve  a 
federal  question.  Ortega  v.  Lara,  202  U.  S.  339.  26  Sup.  Ct  707,  50  L.  Ed. 
1055  (1906)  (Porto  Rican  law  existing  at  time  of  cession). 

That  part  of  art.  Ill,  §  1,  which  requires  the  judges  both  of  the  Supreme 
and  inferior  federal  courts  to  hold  office  during  good  behavior,  applies  as  a 
limitation  upon  the  power  of  the  United  States  in  this  regard  only  in  the 
states,  and  perhaps  in  the  District  of  Columbia  (see  James  v.  United  States. 
202  U.   S.  401,  26   Sup.  Ct.  6S5,   50  L.  Ed.  1079  [1906]).     Elsewhere,  in  the 

•"Federal  question"  is  a  phrase  commonly  used  to  designate  questions  concerning  the 
effect  or  operation  of  the  federal  Constitution,  treaties,  statutes,  commissions,  or  of  any 
authority  exercised  under  the  federal  government.  Murdock  v.  Memphis,  20  Wall.  590. 
018,  22  L.    Ed 


Ch.  20)  JURISDICTION    OF    FEDERAL,   COURTS  132:5 

M  \RTIX  v.  HUNTER'S  LESSEE  (1816)  1  Wheat.  304,  337,  338, 
349,  350,  4  L.  Ed.  97,  Mr.  Justice  Story  (upholding  a  writ  of  error 
from  the  federal  Supreme  Court  to  the  Virginia  Court  of  Appeals  in 
a  civil  case) : 

"Appellate  jurisdiction  is  given  by  the  Constitution  to  the  Supreme 
Court  in  all  cases  where  it  has  not  original  jurisdiction,  subject,  how- 
ever, to  such  exceptions  and  regulations  as  Congress  may  prescribe.* 
It  is,  therefore,  capable  of  embracing  every  case  enumerated  in  the 
Constitution,  which  is  not  exclusively  to  be  decided  by  way  of  original 
jurisdiction.  But  the  exercise  of  appellate  jurisdiction  is  far  from  be- 
ing limited  by  the  terms  of  the  Constitution  to  the  Supreme  Court. 
There  can  be  no  doubt  that  Congress  may  create  a  succession  of  infe- 
rior tribunals,  in  each  of  which  it  may  vest  appellate  as  well  as  orig- 
inal jurisdiction.  The  judicial  power  is  delegated  by  the  Constitution 
in  the  most  general  terms,  and  may,  therefore,  be  exercised  by  Con- 
gress under  every  variety  of  form,  of  appellate  or  original  jurisdic- 
tion. And  as  there  is  nothing  in  the  Constitution  which  restrains  or 
limits  this  power,  it  must,  therefore,  in  all  other  cases,  subsist  in  the 
utmost  latitude  of  which,  in  its  own  nature,  it  is  susceptible. 

"As,  then,  by  the  terms  of  the  Constitution,  the  appellate  jurisdiction 
is  not  limited  as  to  the  Supreme  Court,  and  as  to  this  court  it  may  be 

"incorporated"  territories  and  in  our  insular  possessions,  the  judicial  powers 
of  the  national  government  are  exercised  by  Judges  appointed  tor  terms  of 
years  only.  American  ins.  Co.  v.  Canter,  1  Pet.  511,  7  I..  Ed.  242  (1828); 
discussed  by  Brown,  J.,  in  Downes  v.  BidwelL,  ante  at  pp.  991-892.    Compare 

Die  language  of  .Marshall.  C.  J.,  in  that  case:  "These  courts  are  not  consti- 
tutional courts  in  which  the  judicial  power  conferred  by  the  Constitution  on 
the  general  government  can  he  deposited,  [but]  they  are  legislative  courts 
created  in  virtue  of  the  [power  of  Congress  to  govern  the  territories],"  with 
the  language  of  Brewer,  J.,  in  the  principal  case,  and  the  cases  cited  in  the 
Mrst  paragraph  of  this  note. 

The  provisions  of  the  Constitution  (art.  Ill,  §  2,  par.  ".  and  Amends.  V, 
VI,  and  VII)  requiring  grand  and  trial  juries  in  criminal  and  civil  cases  In 
the  federal  courts  apply  in  the  "incorporated"  territories  and  the  I>istriot 
Of  Columbia.      Hawaii   v.  Mankiehi,   190  D.   8.   197,  23   Sup.   Ct   787,    IT    I      Bd. 

L016  (1903]  (assumed  as  to  -rand  jury):    Thompson  v.  Utah,   170  r.  s.  343, 
L8  Sup.  Ct.  620,  42  L.  Ed  1061  (1898)  (criminal  and  civil  trial  juries 
Capital   Trae.   Co.    v.   Hof.   171   1'.    S.    1.    1!)   Sup.   Ct.   580,   4,'i   I,.    1..I.   873   (1899) 
(District  of  Columlia) ;    but  not  in  "unincorporated"  territory,  Dorr  v.  United 
states,  ante.  p.  mi::. 

1  "The  appellate  jurisdiction  of  this  court  is  not  derived  from  acts  of  Con- 
gress, it  is.  strictly  speaking,  conferred  by  the  Constitution.  But  it  is  con- 
ferred "with  such  exceptions  and  under  such  regulations  as  Congress  shall 
make.'  *  •  •  In  *  •  *  Durrousseau  v.  V.  S..  1;  Cranen.  812,  ::  I,. 
Ed.  232  (1S10),  •  •  •  the  court  said  •  •  •  that  the  Judicial  Art  was 
an  exercise  of  the  power  given  by  the  Constitution  to  Congress  'of  making 
exceptions  to  the  appellate  jurisdiction  of  the  Supreme  Court.'  'They  have 
described  affirmatively  *  •  »  its  jurisdiction,  and  this  affirmative  de 
BCription  has  been  understood  to  imply  a  negation  of  the  exercise  of  such 
appellate  power  as  is  not  comprehended  within  it.'" — Ex  parte  IfeOardle  7 
Wall.  50(1.  512,  COS,  19  I..  Bd.  264  (1869),  by  chase,  c.  .1. 

Congress  may  forbid  the  exercise  of  further  appellate  jurisdiction  by  the 
Supreme  Court  in  a  case,  before  judgment  is  pronounced,  even  after  it  has 
been  argued  ami  submitted,     Id.  ."1  1. 


1324  TOE    FEDERAL   GOVERNMENT  (Part  3 

exercised  in  all  other  cases  than  those  of  which  it  has  original  cogni- 
zance, what  is  there  to  restrain  its  exercise  over  state  tribunals  in  the 
enumerated  cases?  The  appellate  power  is  not  limited  by  the  terms  of 
the  third  article  to  any  particular  courts.  The  words  are,  'the  judi- 
cial power  (which  includes  appellate  power)  shall  extend  to  all  cases,' 
etc.,  and  'in  all  other  cases  before  mentioned  the  Supreme  Court  shall 
have  appellate  jurisdiction.'  It  is  the  case,  then,  and  not  the  court, 
that  gives  the  jurisdiction.     *     *     * 

"We  are  referred  to  the  power  which  it  is  admitted  Congress  pos- 
sess to  remove  suits  from  state  courts  to  the  national  courts.  *  *  * 
This  power  of  removal  is  not  to  be  found  in  express  terms  in  any  part 
of  the  Constitution;  if  it  be  given,  it  is  only  given  by  implication,  as 
a  power  necessary  and  proper  to  carry  into  effect  some  express  power. 
The  power  of  removal  is  certainly  not,  in  strictness  of  language,  an 
exercise  of  original  jurisdiction ;  it  presupposes  an  exercise  of  orig- 
inal jurisdiction  to  have  attached  elsewhere.  The  existence  of  this 
power  of  removal  is  familiar  in  courts  acting  according  to  the  course 
of  the  common  law  in  criminal  as  well  as  civil  cases,  and  it  is  exer- 
cised before  as  well  as  after  judgment.  But  this  is  always  deemed  in 
both  cases  an  exercise  of  appellate,  and  not  of  original  jurisdiction.2 
If,  then,  the  right  of  removal  be  included  in  the  appellate  jurisdiction, 
it  is  only  because  it  is  one  mode  of  exercising  that  power,  and  as  Con- 
gress is  not  limited  by  the  Constitution  to  any  particular  mode,  or  time 
of  exercising  it,  it  may  authorize  a  removal  either  before  or  after  judg- 
ment. The  time,  the  process,  and  the  manner,  must  be  subject  to  its 
absolute  legislative  control.  A  writ  of  error  is,  indeed,  but  a  process 
which  removes  the  record  of  one  court  to  the  possession  of  another 
court,  and  enables  the  latter  to  inspect  the  proceedings,  and  give  such 
judgment  as  its  own  opinion  of  the  law  and  justice  of  the  case  may 
warrant.  There  is  nothing  in  the  nature  of  the  process  which  forbids 
it  from  being  applied,  by  the  legislature,  to  interlocutory  as  well  as 
final  judgments.  And  if  the  right  of  removal  from  state  courts  exists 
before  judgment,  because  it  is  included  in  the  appellate  power,  it  must, 
for  the  same  reason,  exist  after  judgment.  And  if  the  appellate  pow- 
er by  the  Constitution  does  not  include  cases  pending  in  state  courts, 

2  "Whether  removal  from  a  state  to  a  federal  court  is  an  exercise  of  appel- 
late jurisdiction,  as  laid  down  in  Story's  Commentaries  on  the  Constitution, 
sec.  1745,  or  an  indirect  mode  of  exercising  original  jurisdiction,  as  intimated 
in  Railway  Company  v.  Whitton,  13  Wall.  270,  20  L.  Ed.  57  (1S71),  we  need 
not  now  inquire.  Be  it  one  or  the  other,  it  was  ruled  in  the  case  last  cited 
to  be  constitutional."— Tennessee  v.  Davis,  100  U.  S.  257,  265,  25  L.  Ed.  648 
(1SS0).  by  Strong,  J. 

In  Marbury  v.  Madison,  1  Cranch,  137,  175,  2  L.  Ed.  60  (1803),  Marshall, 
C.  J.,  said:  "It  is  the  essential  criterion  of  appellate  jurisdiction  that  it  re- 
vises and  corrects  the  proceedings  in  a  cause  already  instituted,  and  does  not 
create  that  cause." 

For  the  distinction  between  original  and  appellate  jurisdiction  in  the  issue 
of  various  writs,  see  Virginia  v.  Rives,  100  U.  S.  313.  327-329,  25  L.  Ed.  667 
(1S80)  (mandamus) ;  Ex  parte  Watldns,  7  Pet.  568,  8  L.  Ed.  7S6  (1S33)  (habeas 
corpus);   Ex  parte  Vallandigham,  1  Wall.  243,  17  L.  Ed.  5S9  (1S64)  (certiorari). 


Ch.20)  JURISDICTION    <>F    PflDBBAL    COURTS 

the  right  of  removal,  which  is  but  a  mode  of  exercising  that  power, 
cannot  be  applied  to  them.  Precisely  the  same  objections,  therefore, 
exist  as  to  the  right  of  removal  before  judgment,  as  after,  and  both 
tand  or  fall  together.  Xor,  indeed,  would  the  force  of  the  ar- 
guments on  either  side  materially  vary,  if  the  right  of  removal  were 
an  exercise  of  original  jurisdiction.  It  would  equally  trench  upon  the 
jurisdiction  and  independence  of  state  tribunals."  *        m 


ELLIS  v.  DAVIS  (1883)  109  U.  S.  485,  496-498,  3  Sup.  Ct.  327. 
27  L.  Ed.  1006,  Mr.  Justice  Matthews  (discussing  the  jurisdiction  of 
tiie  lower  federal  courts  over  suits  contesting  the  validity  of  wills,  un- 
der the  section  of  the  Judiciary  Act  conferring  jurisdiction  of  "suits 
of  a  civil  nature  at  common  law  or  in  equity"  between  citizens  of  dif- 
ferent states) : 

"Where  provision  is  made  by  the  laws  of  a  state,  as  is  the  case  in 
many,  for  trying  the  question  of  the  validity  of  a  will  already  admit- 
ted to  probate,  by  a  litigation  between  parties  in  which  that  is  the  sole 
question,  with  the  effect,  if  the  judgment  shall  be  in  the  negative,  of 
rendering  the  probate  void  for  all  purposes  as  between  the  parties  and 
those  in  privity  with  them,  it  may  be  that  the  courts  of  the  United 
States  have  jurisdiction,  under  existing  provisions  of  law,  to  admin- 
ister the  remedy  and  establish  the  right  in  a  case  where  the  contro- 
versy is  wholly  between  citizens  of  different  states.  The  judicial  pow- 
er of  the  United  States  extends,  by  the  terms  of  the  Constitution,  'to 
controversies  between  citizens  of  different  states;'  and  on  the  suppo- 
sition, which  is  not  admitted,  that  this  embraces  only  such  as  arise  in 
cases  'in  law  and  equity,'  it  does  not  necessarily  exclude  those  which 
may  involve  the  exercise  of  jurisdiction  in  reference  to  the  proof  and 
validity  of  wills.  The  original  probate,  of  course,  is  mere  matter  of 
state  regulation,  and  depends  entirely  upon  the  local  law;  for  it  is  that 
law  which  confers  the  power  of  making  wills,  and  prescribes  the  con- 
ditions upon  which  alone  they  may  take  effect ;  and  as,  by  the  law  in 
all  the  stales,  no  instrument  can  be  effective  as  a  will  until  proved,  no 
Eights  in  relation  to  it,  capable  of  being  contested  between  parties,  can 
arise  until  preliminary  probate  has  been  first  made.  Jurisdiction  as  to 
wills,  and  their  probate  as  such,  is  neither  included  in  nor  ex 
out  of  the  grant  of  judicial  power  to  the  courts  of  the  United  States. 

»  Accord:  Cohens  v.  Virginia,  c>  Wheat.  264,  '<  L.  Ed.  L'.'T  (1821)  (removal  ol 
criminal  state  courts  after  Judgment);    Chic,  etc.,  Ry.  v.  Whit) 

13  Wall.  -Ti>.  20  I..  Ed.  .">7i  (1S72)  (removal  of  civil  case  before  trial);    Ten 
nessee  v.  Davis,  100  U.  S.  --"7.  25  I  ival  of  crimii 

trial).    [Sec  the  dissent  i> f  Clifford,  .!..  in  this  case  at  pp.  297-299,  and 
of  Field,  .1.,  in  Virginia  v.  Rives,  W0  I'.  S.  al  337,  338,  25  I..   Ed.  667  (1SS 

le  of  the  practical  difficulties  in  exercising  federal  jurisdiction 
cases  al  this  stage].     In  geni  rai,  see  also  The  .Muses  Taylor,  4  Wall   U 
430,  18  1..   Ed.  397  I  I  f 


1326  THE   FEDERAL  GOVERNMENT  (Part  3 

So  far  as  it  is  ex  parte  and  merely  administrative,  it  is  not  conferred, 
and  it  cannot  be  exercised  by  them  at  all  until,  in  a  case  at  law  or  in 
equity,  its  exercise  becomes  necessary  to  settle  a  controversy  of  which 
a  court  of  the  United  States  may  take  cognizance  by  reason  of  the 
citizenship  of  the  parties. 

"It  has  been  often  decided  by  this  court  that  the  terms  'law'  and 
'equity,'  as  is  tised  in  the  Constitution,  although  intended  to  mark  and 
fix  the  distinction  between  the  two  systems  of  jurisprudence  as  known 
and  practiced  at  the  time  of  its  adoption,  do  not  restrict  the  jurisdic- 
tion conferred  by  it  to  the  very  rights  and  remedies  then  recognized 
and  employed,  but  embrace  as  well  not  only  rights  newly  created  by 
statutes  of  the  states,  as  in  cases  of  actions  for  the  loss  occasioned  to 
survivors  by  the  death  of  a  person  caused  by  the  wrongful  act,  neg- 
lect, or  default  of  another  (Ry.  Co.  v.  Whitton,  13  Wall.  287,  20  L. 
Ed.  571;  Dennick  v.  Railroad  Co.,  103  U.  S.  16,  26  L.  Ed.  439),  but 
new  forms  of  remedies  to  be  administered  in  the  courts  of  the  United 
States,  according  to  the  nature  of  the  case,  so  as  to  save  to  suitors  the 
right  of  trial  by  jury  in  cases  in  which  they  are  entitled  to  it,  accord- 
ing to  the  course  and  analogy  of  the  common  law.1  Ex  parte  Boyd, 
105  U.  S.  647,  26  L.  Ed.  1200;  Boom  Co.  v.  Patterson,  98  U.  S.  406, 
25  L.  Ed.  206. 

"In  Hyde  v.  Stone,  20  How.  170-175,  15  L.  Ed.  874,  it  was  said 
by  Mr.  Justice  Campbell,  delivering  its  opinion,  that  'the  court  has  re- 
peatedly decided  that  the  jurisdiction  of  the  courts  of  the  United  States 
over  controversies  between  citizens  of  different  states  cannot  be  im- 
paired by  the  laws  of  the  states,  which  prescribe  the  modes  of  redress 
in  their  courts,  or  which  regulate  the  distribution  of  their  judicial 
power.' 

i  "Although  the  statute  of  a  state  or  territory  may  not  restrict  or  limit  the 
equitable  jurisdiction  of  the  federal  courts,  and  may  not  directly  enlarge  such 
jurisdiction,  it  may  establish  new  rights  or  privileges  which  the  federal  courts 
may  enforce  on  their  equity  or  admiralty  side,  precisely  as  they  may  en- 
force a  new  right  of  action  given  by  statute  upon  their  common-law  side. 
*  *  *  It  was  also  said  in  Davia  v.  Gray,  16  Wall.  223,  231,  21  L.  Ed.  447 
(1873),  that  'a  party,  by  going  into  a  national  court,  does  not  lose  any  right 
or  appropriate  remedy  of  which  he  might  have  availed  himself  in  the  state 
courts  of  the  same  locality.  The  wise  policy  of  the  Constitution  gives  him  a 
choice  of  tribunals.'  "—Cowley  v.  No.  Pac.  Ry.,  159  U.  S.  569,  5S2,  583,  16 
Sup.  L't.  127,  40  L.  Ed.  263  (1895)  by  Brown,  J. 

"The  question  whether  the  remedy  in  the  federal  courts  should  be  by  action 
at  law  or  by  suit  in  equity  depends  upon  the  nature  of  the  remedy  given  by 
the  statutes  of  the  state." — Fourth  Nat.  Bank  v.  Erancklyn,  120  U.  S.  747. 
756,  7  Sup.  Ct.  757,  30  L.  Ed.  825  (1SS7)  by  Gray,  J. 

A  state  remedy,  however,  will  not  be  so  administered  in  the  federal  courts 
as  to  deprive  a  party  of  a  jury  trial  in  cases  falling  fairly  under  the  seventh 
amendment.  Holland  v.  Challen,  110  U.  S.  15,  25,  3  Sup.  Ct.  495,  28  L.  Ed. 
52  (1884);  Greelev  v.  Lowe.  155  U.  S.  58,  75,  15  Sup.  Ct.  24,  39  L.  Ed.  On 
(1894).  See  Gormiey  v.  Clark,  134  U.  S.  33S,  10  Sup.  Ct.  554,  33  L.  Ed.  909 
(1890). 

Right  to  Jury  Trial  in  the  Federal  Courts. — See  Const,  art.  Ill,  §  1. 
par.  3;  amends.  VI  and  VII.  As  to  the  scope  of  the  guaranty  of  jury  tria/ 
in  criminal  cases,  see  Thompson  v.  Utah  and  notes,  ante  pp.  193-19S:  as  to 
civil  cages,  see  ante.  p.  275.  note. 


Ch.  20)  jurisdiction  of  federal  courts  1327 

"In  Payne  v.  Hook,  7  Wall.  425,  19  L.  Ed.  260,  it  was  decided  that 
the  jurisdiction  of  the  circuit  court  of  the  United  States,  in  a  case  for 
equitable  relief,  was  not  excluded  because  by  the  laws  of  the  state  the 
matter  was  within  the  exclusive  jurisdiction  of  its  probate  courts; 
but,  as  in  all  other  cases  of  conflict  between  jurisdictions  of  independ- 
ent and  concurrent  authority,  that  which  has  first  acquired  possession 
of  the  res,  which  is  the  subject  of  the  litigation,  is  entitled  to  admin- 
ister it.2     Williams  v.  Benedict,  8  How.  107,  12  L.  Ed.  1007;    Bank 

-  "Tlio  point  of  the  decision  in  Freeman  v.  Howe    [24  How.  450,  1G  I,.  Ed. 
749  (1861)],  is  that  when  property  is  taken  and  held  under  process,  mesne  or 
final,  of  a  court  of  the  United  States,  it  is  in   t lie  custody  of  the  law,  and 
within  the  exclusive  jurisdiction  of  the  court  from  which  the  pi 
sued,  for  the  |  the  writ;    that  the  possessioo  of  the 

be  disturbed  by  process  from  any  state  court,  because  to  disturb  thai 
sion  would  be  to  invade  the  jurisdiction  of  the  court  by  whose  command  it  i- 
beld,  and   to   violate  the  law  which  that  jurisdiction  is  appointed   to 
later;    that  any  person,  not  a  party  to  the  6ult  or  judgment,  whose  property 
.i   wrongfully,   hut   under  color   of   process,   taken  and   withheld,   may 
prosecute,  by   ancillary  proceedings,  in    the  curt   whence  the  pr 
his  remedy  for  restitution  of  the  property   or  its  proceeds,  while  remaining 
in  the  control  of  that  curt;    hut  that  all  other  remedies  to  which  he  may  be 
entitled,  against  officers  or  parties,  not  Involving  the  withdrawal  of  the  prop- 
erty  or  its  proceeds  from   the  custody  of  the  officer  and  the  jurisdiction   of 
the  court,  he  may  pursue  in  any  tribunal,  state  or  federal,  having  jurisdic- 
tion over  the  parties  and  the  subject-matter.     And,  vice  versa,  the  same  prin- 
ciple protects  the  possession  of  property  while  thus  held  by  process  Issuing 
from   state   courts,   against   any   disturbance  under  process  of  the  courts  of 
i  in'  United  Siates.  excepting,  of  course,  those  cases  wherein  the  latl   I 

risdiction  for  the  purpose  of  enforcing  the  supremacy  of  the  Constitu- 
tion and  laws  of  the  United  States.     •     •     • 

i  in    forbearance   which   courts  of  co-ordinate  jurisdiction,   administered 
under  a  sin_-!o  system,  exercise  towards  each  other,   whereby  coutlicts  are 
1    by  avoiding  interference  with  the  process  of  each  other,  is  a  prin- 
ciple of  comity  with  perhaps  no  higher  sanction  than  the  utility  which  comes 
from  concord;    but  between   state  courts  and   those  of  the  United   St 

thing  more.  It  is  a  principle  of  right  and  of  law,  and  therefore  of 
necessity.  It  leaves  nothing  to  discretion  or  mere  convenience.  These  courts 
do  not  belong  to  the  same  system,  so  far  as  their  jurisdiction  Is  concurrent; 
and  although  they  co-exist  in  the  same  space,  they  are  Independent,  and  have 
no  common  superior.  They  exercise  jurisdiction,  It  is  true,  within  thi 
territory,  hut  not  in  the  same  plane:  and  when  one  takes  Into  its  jurisdic- 
tion a  specific  thing,  that  res  is  as  much  withdrawn  from  the  judicial  power 
of  the  other  as  If  it  had  been  carried  physically  into  a  different  territorial 
sovereignty.  To  attempt  to  seize  it  by  a  foreign  process  Is  futile  and  void. 
I'h-  regulation  of  process,  and  the  decision  of  questions  relating  to  it.  are 
part  of  the  jurisdiction  of  the  court  from  which  it  issues.  The  jurisdiction 
of  a  court.'  said  Chief  Justice  Marshall,  'is  not  exhausted  by  the  rendition 
of  its  judgment,  but  continues  until  that  judgment  shall  be  satisfied.  Many 
questions  arise  on  the  process,  subsequent  to  the  judgment,  in  which  jurisdic- 
tion is  to  be  exercised.'  Waymau  v.  Southard.  10  Wheat  1.  >>  I..  Ed.  253 
(1825)."— Matthews,  J.,  in  Oovell  v.  Heyman,  ill  U.  S.  170,  179,  180,  l^u.  183, 
■1  Sup.  Ct  355,  28  L.  Ed.  390  (1884). 

I:     Totter  v.  Sabln,  148  r.  s.   iTf;.  13  Sup.  <'t.  1008,  ■"•:  I..  Ed.  815 
(1S93)  (receiver);    fivers  v.  MeAuley,  i  m  y.  g 

867  (1803)  (administrator);  Ex  parte  Johnson,  hit  U.  S.  120,  125,  17  Sup.  ct. 
785,  42  I..  Ed.  in:;  (If  ner  in  custody).     The  principle  is  extended  to 

cases  whose  progress  Is  likely  to  require  the  court  to  take  possession  of  prop- 
erty. Farmers'  L.  &  T.  Co.  v.  Lake  St.  By.,  177  I".  S.  51,  20  Sup.  Ct.  504.  4! 
1..  Ed.  667  (1900). 

The  state  courts  cannot  enjoin  proceedings  in  the  federal  courts.  Moran  v. 
Slur;.'.-.  154  I'.  S.  256,  267,  268,  II  Sup.  ft.  1019,  38  I..  Ed.  981   (1894);    and 


1328  THE  FEDERAL  GOVERNMENT  (Part  3 

of  Tennessee  v.  Horn,  17  How.  160,  15  L.  Ed.  70;  Yonley  v.  Laven- 
der, 21  'Wall.  276,  22  L.  Ed.  536;  Taylor  v.  Carryl,  20  How.  583,  15 
L.  Ed.  102S;  Freeman  v.  Howe,  24  How.  454,  16  L.  Ed.  749;  Hook 
v.  Payne,  14  Wall.  255,  20  L.  Ed.  887. 

"It  was  said  by  this  court  in  Gaines  v.  Fuentes,  92  U.  S.  10-18,  23 
L.  Ed.  524,  Mr.  Justice  Field  delivering  its  opinion,  that  'the  Consti- 
tution imposes  no  limitation  upon  the  class  of  cases  involving  contro- 
versies between  citizens  of  different  states,  to  which  the  judicial  pow- 
er of  the  United  States  may  be  extended;  and  Congress  may,  there- 
fore, lawfully  provide  for  bringing,  at  the  option  of  either  of  the  par- 
ties, all  such  controversies  within  the  jurisdiction  of  the  federal  judi- 
ciary.' And,  referring  to  the  nature  of  suits  which,  as  in  that  case, 
sought  to  annul  the  probate  of  a  will  and  adjudge  it  to  be  invalid,  the 
court  further  said  (page  20:)  'And  if  by  the  law  obtaining  in  the 
state,  customary  or  statutory,  they  can  be  maintained  in  a  state  court, 
whatever  designation  that  court  may  bear,  we  think  they  may  be  main- 
tained by  original  process  in  a  federal  court,  where  the  parties  are,  on 
the  one  side,  citizens  of  Louisiana,  and,  on  the  other,  citizens  of  oth- 
er states.'  "a 

agreements  made  or  conditions  imposed  by  a  state  to  prevent  a  resort  to  the 
federal  courts  are  invalid,  ante,  p.  130$,  note.  Nor  will  the  federal  courts  en- 
join proceedings  in  the  state  courts,  Feck  v.  Jenness,  7  How.  612,  621,  625, 
12  L.  Ed.  84  (1849) ;  Harkrader  v.  Wadley,  172  U.  S.  148,  19  Sup.  Ct.  119, 
43  L.  Ed.  399  (1S98) ;  except  to  protect  their  own  prior  jurisdiction  properly 
acquired.  Julian  v.  Central  Trust  Co.,  193  U.  S.  93,  112,  24  Sup.  Ct.  399,  48 
L.  Ed.  C29  (1904) ;  Moran  v.  Sturges,  154  U.  S.  256,  267-273,  14  Sup.  Ct.  1019, 
38  L.  Ed.  9S1  (1894)  (may  state  courts  do  the  same?);  or  to  prevent  the  en- 
forcement of  Invalid  state  statutes,  Ex  parte  Young,  209  U.  S.  123.  161-163, 
28  Sup.  Ct.  441,  52  L.  Ed.  714,  13  L.  R.  A.  (N.  S.)  932,  14  Ann.  Cas.  764  (1908); 
or  iu  bankruptcy  proceedings,  Chapman  v.  Brewer,  114  TJ.  S.  158,  172,  173,  5 
Sup.  Ct.  799,  29  L.  Ed.  S3  (18S5).  For  the  application,  between  state  and  fed- 
eral courts  of  the  same  state,  of  the  general  rule  that  as  between  two  courts 
of  concurrent  jurisdiction  the  first  to  obtain  jurisdiction  of  a  controversy 
may  retain  it  until  its  jurisdiction  is  exhausted,  see  Starr  v.  Chic,  etc.,  Rv. 
(C.  C.)  110  Fed.  3,  6  (1901)  (cases) ;  42  L.  R.  A.  440-465,  note  (1S9S).  In  no 
ease  do  injunctions  issue  against  courts,  but  only  against  litigants.  Ex  parte 
Young,  post,  at  p.  1385. 

s  Later  in  this  opinion,  Field.  J.,  continued  (92  U.  S.  at  21,  22):  "There 
are,  it  is  true,  in  several  decisions  of  this  court,  expressions  of  opinion  that 
the  federal  courts  have  no  probate  jurisdiction,  referring  particularly  to  the 
establishment  of  wills ;  and  such  is  undoubtedly  the  case  under  the  existing 
legislation  of  Congress.  The  reason  lies  in  the  nature  of  the  proceeding  to 
probate  a  will  as  one  in  rem,  which  does  not  necessarily  involve  any  con- 
troversy between  parties :  indeed,  in  the  majority  of  instances,  no  such  con- 
troversy exists.  In  its  initiation  all  persons  are  cited  to  appear,  whether  of 
the  state  where  the  will  is  offered,  or  of  other  states.  From  its  nature,  and 
from  the  want  of  parties,  or  the  fact  that  all  the  world  are  parties,  the  pro- 
ceeding is  not  within  the  designation  of  cases  at  law  or  in  equity  between 
parties  of  different  states,  of  which  the  federal  courts  have  concurrent  juris- 
diction with  the  state  courts  under  the  Judiciary  Act;  but  whenever  a  con- 
troversy in  a  suit  between  such  parties  arises  respecting  the  validity  or  con- 
struction of  a  will,  or  the  enforcement  of  a  decree  admitting  it  to  probate, 
there  is  no  more  reason  why  the  federal  courts  should  not  take  jurisdiction 
of  the  case  than  there  is  that  they  should  not  take  jurisdiction  of  any  other 
controversy  between  the  parties." 

Similarly,   a   railroad   may  bring  or  remove  into  the  federal  courts  the  ju- 


Ch.  20)  jurisdiction  of  federal  courts  1320 

OSBORN  et  al.  v.  PRESIDENT,  ere,  OF  THE  BANK  OF 
THE  UNITED  STATES. 

(Supreme  Court  of  United  States,  1824.     9  Wheat.  738,  6  L.  Ed.  204.) 

[Appeal  from  the  federal  Circuit  Court  for  Ohio.  The  Bank  of  the 
United  States,  chartered  by  Congress,  brought  suit  in  said  court,  as 
authorized  by  its  charter,  to  restrain  Osborn  and  others,  state  officers, 
from  collecting  a  state  tax  upon  the  bank.  The  defendants  appealed 
from  a  decree  against  them.] 

dicial  hearing  which  at  some  stage  is  indispensable  in  all  rate  regulation 
controversies,  no  matter  what  special  or  exclusive  tribunals  a  state  may  have 
provided  therefor. 

"if  Hip  railroads  were  required  to  take  no  active  steps  until  they  could 
bring  a  writ  of  error  from  this  court  to  the  supreme  court  of  appeals  after 
a  final  judgment,  they  would  come  here  with  the  facts  already  found  against 
them.  But  the  determination  as  to  their  rights  turns  almost  wholly  upon 
the  facts  to  he  found.  Whether  their  property  was  taken  unconstitutionally 
depends  upon  the  valuation  of  the  property,  the  income  to  he  derived  from 
the  proposed  rate,  and  the  proportion  between  the  two, — pure  matters  ol 
fact.  When  those  are  settled  the  law  is  tolerably  plain.  All  their  constltu 
Honal  rights,  we  repeat,  depend  upon  what  the  facts  are  found  to  be.  They 
are  not  to  be  forbidden  to  try  those  facts  before  a  court  of  their  own  choos- 
ing, if  otherwise  competent  'A  state  cannot  tie  up  a  citizen  of  another  state, 
having  property  within  its  territory  invaded  by  unauthorized  acts  of  its  own 
officers,  to  suits  for  redress  in  its  own  courts.'  Reagan  v.  Farmers'  Loan  & 
T.  Co.,  154  r.  S.  362,  391,  38  L.  Ed.  1014,  1021,  4  Inters.  Com.  Rep.  560,  14 
Sup.  Ct  1017  [1894];  Smyth  v.  Ames,  1G9  U.  S.  406,  517,  42  L.  Ed.  819,  838, 
18  Sup.  Ct  418  [189S]."— I'rentls  v.  Atl.  Coast  Line,  211  U.  S.  210,  228,  -•' 
Sup.  Ct  67,  53  L.  Ed.  150  (1908)  by  Holmes,  J. 

Suits  at  Law  pu  ih  EQUITY.— The  federal  statutes  confine  the  jurisdiction 
of  the  lower  federal  courts,  dependent  upon  diverse  citizenship,  to  "suits  of 
a  civil  nature  at  common  law  or  in  equity."  Judic.  Act  March  3.  1911,  C. 
231,  §§  24,  28,  36  Stat.  1091,  1094  (U.  S.  Comp.  St.  Supp.  1911,  pp.  135,  140). 
As  to  how  far  certain  proceedings  of  an  ex  parte  or  administrative  nature,  or 
which  affect  the  domestic  relationships,  are  excluded  from  this  category,  Bee 
O'Oallaghan  v.  O'Brien,  199  U.  S.  89,  25  Sup.  Ct  727,  50  L.  Ed.  101  (190(9 
(probate  and  settlement  of  estates);  Waterman  v.  Canal-La.  Hank.  215  U. 
S.  33,  30  Sup.  Ct  10,  54  L.  Ed.  SO  (1909)  (same);  Upshur  Co.  v.  Rich,  135 
r.  S.  ic.T.  10  Sup.  Ct  651,  34  C  Ed.  196  (1890)  (assessment  of  taxes);  Madt- 
sonvllle  Co.  v.  St.  Bernard  Co..  196  U.  S.  239,  25  Sup.  Ct  251,  49  L.  Ed.  462 
(1905)  (eminent  domain);  Re  Burrus,  136  D.  S.  586,  10  Sup.  Ct  850,  34  L. 
Ed.  500  (1890)  (custody  of  children);  Slmms  v.  Slmms,  175  V.  s.  162  167, 
20  Sup.  Ct.  58,  44  L.  Ed.  115  (1899)  (divorce).  Compare  Rosenbaum  v.  Bauer. 
120  r.  S.  450,  7  ,Sup.  Ct.  633,  30  L.  Ed.  743  (1887)  (original  mandamus  pro- 
ling). 

"A  proc ling,  not  In  a  court  of  justice,  but  carried  on  by  executive  officers 

in  the  exercise  of  their  proper  functions,  as  in  the  valuation  of  property  for 
the  just  distribution  of  taxes  or  assessments,  is  purely  administrative  in  its 
character,  and  cannot  In  any  Jusl  sense,  be  called  a  'suit':  and  an  appeal  in 
such  a   case,  to  a  board   of  assessors  doners  having  no  judicial 

powers,  and  only  authorized  to  determine  questions  of  quantity,  proportion, 

and   value,  is  not  a   suit;    but  SUCh   an   appeal  may   become  a   suit,   if  made   to 

a  court  or  tribunal  having  power  to  determine  questions  or  law  and  fact 

either  with  or  without  a  jury,  and  there  are  parties  litigant  to  contest  the 
case  "u  the  one  side  and  the  other."     Upshur  Co.  v.  Rich,  135  U.  S.  at  177. 
10  Sup.  Ct.  651,  34  L.  Ed.  196,  by  Bradley,  J. 
Hall  Const. L. — S4 


1330  THE  FEDERAL  GOVERNMENT  (Part  3 

Mr.  Chief  Justice  Marshall.  *  *  *  We  will  now  consider  the 
constitutionality  of  the  clause  in  the  act  of  incorporation,  which  au- 
thorizes the  bank  to  sue  in  the  federal  courts.     *     *     * 

The  third  article  [of  the  Constitution]  declares,  "that  the  judicial 
power  shall  extend  to  all  cases  in  law  and  equity  arising  under  this 
Constitution,  the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority."  This  clause  enables  the  Judi- 
cial Department  to  receive  jurisdiction  to  the  full  extent  of  the  Con- 
stitution, laws,  and  treaties  of  the  United  States,  when  any  question 
respecting  them  shall  assume  such  a  form  that  the  judicial  power  is 
capable  of  acting  on  it.  That  power  is  capable  of  acting  only  when 
the  subject  is  submitted  to  it  by  a  party  who  asserts  his  rights  in  the 
form  prescribed  by  law.  It  then  becomes  a  case,1  and  the  Constitu- 
tion declares  that  the  judicial  power  shall  extend  to  all  cases  arising 
under  the  Constitution,  laws,  and  treaties  of  the  United  States. 

The  suit  of  The  Bank  of  the  United  States  v.  Osborn  and  others  is 
a  case,  and  the  question  is,  whether  it  arises  under  a  law  of  the  United 
States.  The  appellants  contend  that  it  does  not,  because  several  ques- 
tions may  arise  in  it  which  depend  on  the  general  principles  of  the 
law,  not  on  any  act  of  Congress.  If  this  were  sufficient  to  withdraw 
a  case  from  the  jurisdiction  of  the  federal  courts,  almost  every  case, 
although  involving  the  construction  of  a  law,  would  be  withdrawn ; 
and  a  clause  in  the  Constitution  relating  to  a  subject  of  vital  impor- 
tance to  the  government,  and  expressed  in  the  most  comprehensive 
terms,  would  be  construed  to  mean  almost  nothing.  There  is  scarcely 
any  case  every  part  of  which  depends  on  the  Constitution,  laws,  or 
treaties  of  the  United  States.     *     *     *  ♦ 

In  those  cases  in  which  original  jurisdiction  is  given  to  the  Supreme 
Court,  the  judicial  power  of  the  United  States  cannot  be  exercised  in 
its  appellate  form.2  In  every  other  case  the  power  is  to  be  exercised 
in  its  original  or  appellate  form,  or  both,  as  the  wisdom  of  Congress 
may  direct.  With  the  exception  of  these  cases  in  which  original  ju- 
risdiction is  given  to  this  court,  there  is  none  to  which  the.  judicial 
power  extends,  from  which  the  original  jurisdiction  of  the  inferior 
courts  is  excluded  by  the  Constitution.3     Original  jurisdiction,  so  far 

i  As  to  what  constitutes  a  "case"  or  "controversy,"  see  also  Interst.  Com. 
Couim.  v.  Brimson,  ante,  p.  70;  Muskrat  v.  U.  S.,  ante  at  pp.  41-43;  and  for 
the  meaning  of  "action,"  "suit,"  or  "cause,"  see  Ex  parte  Milligan,  4  Wall. 
■2,  112,  113,  18  L.  Ed.  281  (1866);  Upshur  County  v.  Rich,  135  U.  S.  467,  10 
Sup.  Ct.  651,  34  L.  Ed.  196  (1890). 

2  But  if  a  case  involves  a  subject  matter  within  the  Supreme  Court's  ap- 
pellate jurisdiction  (as,  if  it  arises  under  the  Constitution  or  laws  of  the 
United  States)  this  jurisdiction  may  be  exercised  if  the  suit  has  originated 
elsewhere,  even  though  it  might  have  originated  in  the  Supreme  Court  on 
account  of  the  parties  thereto.  Cohens  v.  Virginia,  6  Wheat.  264,  392—405,  5 
L.  Ed.  257  (1821). 

s  It  has  since  been  authoritatively  said  that  the  original  jurisdiction  of  the 
Supreme  Court  is  not  exclusive,  but  that  Congress  may  permit  a  concurrent 
jurisdiction  to   the  lower   federal   courts.   R.'lrs   v.   Preston,   111   U.    S.    252,    1 


Cll.  20)  JURISDICTION    OF    FEDERAL    COURT8  1331 

as  the  Constitution  gives  a  rule,  is  coextensive  with  the  judicial  power. 
We  find  in  the  Constitution  no  prohibition  to  its  exercise,  in  every  case 
in  which  the  judicial  power  can  be  exercised.  It  would  be  a  very  bold 
construction  to  say  that  this  power  could  be  applied  in  its  appellate 
form  only,  to  the  most  important  class  of  cases  to  which  it  is  appli- 
cable. 

The  Constitution  establishes  the  Supreme  Court,  and  defines  its  ju- 
risdiction. It  enumerates  cases  in  which  its  jurisdiction  is  original 
and  exclusive;  and  then  defines  that  which  is  appellate;  but  does  not 
insinuate  that,  in  any  such  case,  the  power  cannot  be  exercised  in  its 
original  form  by  courts  of  original  jurisdiction.  It  is  not  insinuated 
that  the  judicial  power,  in  cases  depending  on  the  character  of  the 
cannot  be  exercised  in  the  first  instance  in  the  courts  of  the 
Union,  but  must  first  be  exercised  in  the  tribunals  of  the  state;  tri- 
bunals over  which  the  government  of  the  Union  has  no  adequate  con- 
trol, and  which  may  be  closed  to  any  claim  asserted  under  a  law  of 
the  United  States.  We  perceive,  then,  no  ground  on  which  the  prop- 
osition can  be  maintained,  that  Congress  is  incapable  of  giving  the 
circuit  courts  original  jurisdiction,  in  any  case  to  which  the  appellate 
jursdiction  extends. 

We  ask,  then,  if  it  can  be  sufficient  to  exclude  this  jurisdiction,  that 
the  case  involves  questions  depending  on  general  principles?  A  cause 
may  depend  on  several  questions  of  fact  and  law.  Some  of  these  may 
depend  on  the  construction  of  a  law  of  the  United  States;  others  on 
principles  unconnected  with  that  law.  If  it  be  a  sufficient  foundation 
for  jurisdiction,  that  the  title  or  right  set  up  by  the  party,  may  be  de- 
feated by  one  construction  of  the  Constitution  or  law  of  the  United 
States,  and  sustained  by  the  opposite  construction,  provided  the  facts 
necessary  to  support  the  action  be  made  out,  then  all  the  other  ques- 
tions must  be  decided  as  incidental  to  this,  which  gives  that  jurisdic- 
tion. Those  other  questions  cannot  arrest  the  proceedings.  Under 
this  construction,  the  judicial  power  of  the  Union  extends  effectivelv 
and  beneficially  to  that  most  important  class  of  cases,  which  depend  on 
the  character  of  the  cause.  On  the  opposite  construction,  the  judicial 
power  never  can  be  extended  to  a  whole  case,  as  expressed  by  the 
Constitution,  but  to  those  parts  of  cases  only  which  present  the  particu- 

sup.  Ct  407,28  L.  Ed.  410  (1884)  (consuls);   Anns  v.  Kansas,  111  r.  s.  148,  i 
Sup.  Ct  437,  28  I..  Ed.  482  (1884)  states);    or  to  the  state  courts,  Delafleld 
v.  Illinois.  2  Hill  (X.  Y.i  159  (1841).    So  the  Judiciary  Act  at  1789,  1   - 
c.  -jo.  S  t8;    and  of  1911,  36  Stat  1150,  e.  281,  §  23:1  (U.  S.  Clomp,  st.  Supp 
1911,  p.  227). 

tu>  original  jurisdiction  of  the  Supremo  Court  cannot  be  enlarged  by 
99 .  Marbury   v.  Madison.  1   Crancb,  137,  17:;  it..  2   1,.  Bid.   80 

■'    thai    COUri   may   '  •■  required  tO  sit   as  circuit   Judg 

erclsing  a  wide  original  Jurisdiction  In  the  Inferior  federal  courts,  Stuart  v 
Laird,  1  Craneh,  299,  2  L.  Bd.  118  (1803).  See  the  history  of  the  latter  prac 
tice  in  Thayer,  John  Marshall.  60,  67. 

For  the  extent  of  the  Original  jurisdiction  of  the  Supreme  Court  in  cases 
where  a  state  Is  a  party,  see  United  states  v.  Texas,  post,  p,  1400;  and  Cal- 
ifornia v.   SO.    I'ac.  CO.,  post.  p.    1402,   in its  2. 


L332  THE   FEDERAL   GOVERNMENT  (Part  3 

lar  question  involving  the  construction  of  the  Constitution  or  the  law. 
We  say,  it  never  can  be  extended  to  the  whole  case,  because,  if  the 
circumstance  that  other  points  are  involved  in  it  shall  disable  Congress 
from  authorizing  the  courts  of  the  Union  to  take  jurisdiction  of  the 
original  cause,  it  equally  disables  Congress  from  authorizing  those 
courts  to  take  jurisdiction  of  the  whole  cause,  on  an  appeal,  and  thus 
will  be  restricted  to  a  single  question  in  that  cause;  and  words  obvi- 
ously intended  to  secure  to  those  who  claim  rights  under  the  Consti- 
tution, laws,  or  treaties  of  the  United  States,  a  trial  in  the  federal 
courts,  will  be  restricted  to  the  insecure  remedy  of  an  appeal  upon  an 
insulated  point,  after  it  has  received  that  shape  which  may  be  given 
to  it  by  another  tribunal,  into  which  he  is  forced  against  his  will. 

We  think,  then,  that  when  a  question  to  which  the  judicial  power 
of  the  Union  is  extended  by  the  Constitution,  forms  an  ingredient  of 
the  original  cause,  it  is  in  the  power  of  Congress  to  give  the  circuit 
courts  jurisdiction  of  that  cause,  although  other  questions  of  fact  or 
of  law  may  be  involved  in  it.4 

The  case  of  the  bank  is,  we  think,  a  very  strong  case  of  this  de- 
scription. The  charter  of  incorporation  not  only  creates  it,  but  gives  it 
every  faculty  which  it  possesses.  The  power  to  acquire  rights  of  any 
description,  to  transact  business  of  any  description,  to  make  contracts 
of  any  description,  to  sue  on  those  contracts,  is  given  and  measured  by 
its  charter,  and  that  charter  is  a  law  of  the  United  States.  This  being 
can  acquire  no  right,  make  no  contract,  bring  no  suit,  which  is  not  au- 
thorized by  a  law  of  the  United  States.  It  is  not  only  itself  the  mere 
creature  of  a  law,  but  all  its  actions  and  all  its  rights  are  dependent  on 
the  same  law.  Can  a  being,  thus  constituted,  have  a  case  which  does 
not  arise  literally,  as  well  as  substantially,  under  the  law? 

*  When  a  case  is  brought  or  removed  into  a  federal  court  before  trial  upon 
the  ground  of  a  single  fedei'al  question,  which,  at  an  early  stage  in  the  pro- 
ceedings, is  decided  against  the  party  invoking  the  court's  jurisdiction,  ju- 
risdiction is  still  retained  to  render  judgment  upon  all  other  questions  in 
the  case.  Omaha  Horse  Ry.  v.  Cable  Tramway  Co.  (C.  C.)  32  Fed.  727  (1887) ; 
So.  Pac.  Ry.  v.  California,  118  U.  S.  109,  112,  113,  6  Sup.  Ct.  903,  30  L.  Ed. 
in.:  ilvsG).  But  the  federal  question  alleged  to  exist  must  really  involve  a 
substantial  controversy  of  this  character.  Id.  If  it  is  frivolous  or  already 
clearly  foreclosed  by  decisions  the  case  will  be  dismissed.  Sbreveport  v. 
Cole,  129  U.  S.  36,  9  Sup.  Ct.  210,  32  L.  Ed.  589  (1889);  Bool:  51  (L.  Ed.) 
231-234,  note  (cases);  Judic.  Act  1911,  §  37.  As  to  how  doubtful  a  question 
must  be  to  involve  a  genuine  controversy,  see  L.  &  N.  Ry.  v.  Melton,  218  U. 
S.  36,  49,  50,  30  Sup.  Ct.  676,  54  L.  Ed.  921  (1910).  The  same  test  is  applied 
to  cases  taken  to  the  Supreme  Court  on  writ  of  error  from  state  courts  after 
judgment  Id.;  Wilson  v.  North  Carolina,  169  U.  S.  586,  595,  18  Sup.  Ct. 
435,  42  L.  Ed.  865  (1S9S).  The  federal  Judiciary  acts  relating  to  the  latter 
cases  have  always  confined  the  Supreme  Court  to  the  examination  of  the 
federal  questions  only,  in  the  case.  Murdock  v.  Memphis,  20  Wall.  090,  22 
L.  Ed.  429  (1875).  See  New  Orleans  Waterworks  Co.  v.  La.  Sugar  Co..  ante, 
at  p.  790,  and  note  2,  for  an  illustration  of  the  mode  in  which  cases  containing 
both  state  and  federal  questions  are  dealt  with  under  this  jurisdiction.  As 
to  whether  the  federal  appellate  jurisdiction  may  constitutionally  be  extend- 
ed to  the  entire  case,  or  not,  if  it  contains  a  single  federal  question,  as  the 
original  jurisdiction  may,  see  the  argument  of  B.  R.  Curtis  in  Murdock  v 
Memphis.  22  L.   Ed.  (U.  S.)  435,  436. 


Cb.20)  JURISDICTION    OF    PEDBRAIi   •oi:;ts  1333 

Take  the  case  of  a  contract,  which  is  put  as  the  strongest  against  the 
bank.  When  a  bank  sues,  the  first  question  which  presents  itself,  and 
which  lies  at  the  foundation  of  the  cause,  is,  has  this  legal  entity  a 
right  to  sue?  Has  it  a  right  to  come,  not  into  this  court  particularly, 
but  into  any  court?  This  depends  on  a  law  of  the  United  States.  The 
next  question  is,  has  this  being  a  right  to  make  this  particular  con- 
tract? If  this  question  be  decided  in  the  negative,  the  cause  is  deter- 
mined against  the  plaintiff;  and  this  question,  too,  depends  entirely  on 
a  law  of  the  United  States.  These  are  important  questions,  and  they 
exist  in  every  possible  case.  The  right  to  sue,  if  decided  once,  is  de- 
cided forever ;  but  the  power  of  Congress  was  exercised  antecedently 
to  the  first  decision  on  that  right,  and,  if  it  was  constitutional  then,  it 
cannot  cease  to  be  so  because  the  particular  question  is  decided.  It 
may  be  revived  at  the  will  of  the  party,  and  most  probably  would  be 
renewed,  were  the  tribunal  to  be  changed.  But  the  question  respecting 
the  right  to  make  a  particular  contract,  or  to  acquire  a  particular  prop- 
erty, or  to  sue  on  account  of  a  particular  injury,  belongs  to  every  par- 
ticular case,  and  may  be  renewed  in  every  case.  The  question  forms 
an  original  ingredient  in  every  cause.  Whether  it  be  in  fact  relied  on 
or  not,  in  the  defense,  it  is  still  a  part  of  the  cause,  and  may  be  relied 
on.  The  right  of  the  plaintiff  to  sue  cannot  depend  on  the  defense 
which  the  defendant  may  choose  to  set  up.  His  right  to  sue  is  ante- 
rior to  that  defense,  and  must  depend  on  the  state  of  things  when  the 
action  is  brought.  The  questions  which  the  case  involves,  then,  must 
determine  its  character,  whether  those  questions  be  made  in  the  cause 
or  not.     *     *     * 

The  clause  giving  the  bank  a  right  to  sue  in  the  circuit  courts  of  the 
United  States  stands  on  the  same  principle  with  the  acts  authorizing 
officers  of  the  United  States  who  sue  in  their  own  names,  to  sue  in  the 
courts  of  the  United  States.  The  Postmaster-General,  for  example. 
cannot  sue  under  that  part  of  the  Constitution  which  gives  jurisdic- 
tion to  the  federal  courts  in  consequence  of  the  character  of  the  party, 
nor  is  he  authorized  to  sue  by  the  Judiciary  Act  ( 1  Stat.  73).  He 
comes  into  the  courts  of  the  Union  under  the  authority  of  an  act  of 
Congress,  the  constitutionality  of  which  can  only  be  sustained  by  the 
admission  that  his  suit  is  a  case  arising  under  a  law  of  the  United 
States.  If  it  be  said  that  it  is  such  a  case,  because  a  law  of  the  United 
States  authorizes  the  contract  and  authorizes  the  suit,  the  same  rea- 
sons exist  with  respect  to  a  suit  brought  by  the  bank.  That.  too.  is 
such  a  case;  because  that  suit,  too,  is  itself  authorized,  and  is  brought 
on  a  contract  authorized  by  a  law  of  the  United  States.  It  depends 
absolutely  on  that  law,  and  cannot  exist  a  moment  without  its  au- 
thority. 

If  it  be  said  that  a  suit  brought  by  the  bank  may  depend  in  fact  al- 
together on  questions  unconnected  with  any  law  of  the  U 
it  is  equally  true,  with  respect  to  suits  brought  by  the    Postmaster- 


1334  THE  FEDERAL  GOVERNMENT  (Part  3 

General.  The  plea  in  bar  may  be  payment,  if  the  suit  be  brought  on 
a  bond,  or  non  assumpsit,  if  it  be  brought  on  an  open  account,  and  no 
other  question  may  arise  than  what  respects  the  complete  discharge  of 
the  demand.  Yet  the  constitutionality  of  the  act  authorizing  the  Post- 
master-General to  sue  in  the  courts  of  the  United  States  has  never 
been  drawn  into  question.  It  is  sustained  singly  by  an  act  of  Congress, 
standing  on  that  construction  of  the  Constitution  which  asserts  the 
right  of  the  legislature  to  give  original  jurisdiction  to  the  circuit  courts, 
in  cases  arising  under  a  law  of  the  United  States. 

The  clause  (1  Stat.  322),  in  the  patent  law,  authorizing  suits  in  the 
circuit  courts,  stands,  we  think,  on  the  same  principle.  Such  a  suit 
is  a  case  arising  under  a  law  of  the  United  States.  Yet  the  defendant 
may  not,  at  the  trial,  question  the  validity  of  the  patent,  or  make  any 
point  which  requires  the  construction  of  an  act  of  Congress.  He  may 
rest  his  defence  exclusively  on  the  fact  that  he  has  not  violated  the 
right  of  the  plaintiff.  That  this  fact  becomes  the  sole  question  made 
in  the  cause,  cannot  oust  the  jurisdiction  of  the  court,  or  establish  the 
position,  that  the  case  does  not  arise  under  a  law  of  the  United  States. 

It  is  said  that  a  clear  distinction  exists  between  the  party  and  the 
cause ;  that  the  party  may  originate  under  a  law  with  which  the  cause 
has  no  connection ;  and  that  Congress  may,  with  the  same  propriety, 
give  a  naturalized  citizen,  who  is  the  mere  creature  of  a  law,  a  right 
to  sue  in  the  courts  of  the  United  States,  as  give  that  right  to  the  bank. 
This  distinction  is  not  denied ;  and  if  the  act  of  Congress  was  a  sim- 
ple act  of  incorporation,  and  contained  nothing  more,  it  might  be  en- 
titled to  great  consideration.  But  the  act  does  not  stop  with  incorpo- 
rating the  bank.  It  proceeds  to  bestow  upon  the  being  it  has  made,  all 
the  faculties  and  capacities  which  that  being  possesses.  Every  act  of 
the  bank  grows  out  of  this  law,  and  is  tested  by  it.  To  use  the  lan- 
guage of  the  Constitution,  every  act  of  the  bank  arises  out  of  this  law. 

A  naturalized  citizen  is,  indeed,  made  a  citizen  under  an  act  of  Con- 
gress, but  the  act  does  not  proceed  to  give,  to  regulate,  or  to  prescribe 
his  capacities.  He  becomes  a  member  of  the  society,  possessing  all 
the  rights  of  a  native  citizen,  and  standing,  in  the  view  of  the  Consti- 
tution, on  the  footing  of  a  native.  The  Constitution  does  not  author- 
ize Congress  to  enlarge  or  abridge  those  rights.  *  *  *  There  is, 
then,  no  resemblance  between  the  act  incorporating  the  bank  and  the 
general  naturalization  law  (2  Stat.  153).     *     *     * 

Decree  affirmed.6 

[Johnson,  J.,  gave  a  dissenting  opinion.] 

5  Accord  (federal  corporations):  Pacific  Ry.  Removal  Cases,  115  TJ.  S.  1, 
5  Sup.  Ct.  1113,  29  L.  Ed.  319  (1S85)  (railroads)  [compare  Oregon,  etc.,  Ry. 
v.  Skottowe,  162  TJ.  S.  490,  16  Sup.  Ct.  869,  40  L.  Ed.  1048  (1896)  (under  later 
statute);  and  Texas,  etc.,  Ry.  v.  Cody,  166  U.  S.  606,  17  Sup.  Ct.  703,  41  L. 
Ed.  1132  (1897)] ;  Butler  v.  Nat.  Home,  144  U.  S.  64,  12  Sup.  Ct.  581,  36  L. 
Ed.  346  C1892)  (soldiers'  home);  Sup.  Lodge  K.  of  P.  v.  Kalinski,  163  U.  S. 
289,  16  Sup.  Ct.  1047,  41  L.  Ed.  163  (1896)  (insurance  company  domiciled  in 
District  of  Columbia*-     See  Matter  of  Dunn,  212  TJ.  S.  374.  29  Sup.  Ct.  299. 


CIl.  20)  JURISDICTION    OF    rBDBBAL   COUIUS  1835 

THE  MAYOR  v.  COOPER  (1868)  6  Wall.  247,  251  -253,  18  L. 
Ed.  851,  Mr.  Justice  Swayni:: 

"How  jurisdiction  shall  be  acquired  by  the  inferior  courts,  whether 
it  shall  be  original  or  appellate,  or  original  in  part  and  appellate  in 
part,  and  the  manner  of  procedure  in  its  exercise  after  it  has  been 
acquired,  are  not  prescribed  [by  the  Constitution j.     *     *     * 

"As  regards  all  courts  of  the  United  States  inferior  to  [the  Supreme 
Court],  two  things  are  necessary  to  create  jurisdiction,  whether  orig- 

53  L.  Ed.  558  (1909).  So  also  all  congressional  legislation  for  the  District  of 
Columbia,  even  though  of  a  local  character.  Cohens  v.  Virginia,  6  Wheat 
264,  lU.iff.,  5  L.  Ed.  257  (1821). 

"So  far  as  the  judgment  of  the  state  court  against  the  validity  of  an  au- 
thority set  up  hy  the  defendants  under  the  Dnited  States  necessarily  involves 
the  decision  of  a  question  of  law,  it  must  tie  reviewed  hy  this  court,  whether 
that  question  depends  upon  the  Constitution,  laws,  or  treaties  of  the  United 
States,  or  upon  the  local  law,  or  upon  principles  of  general  jurisprudence. 
For  Instance,  if  a  marshal  of  the  United  States  takes  personal  property  upon 
attachment  on  mesne  process  issued  by  a  court  of  the  Dnited  states,  and  Is 
sued  in  an  action  of  trespass  in  a  state  court  hy  one  claiming  title  in  the 
property,  and  sets  up  his  authority  under  the  United  States,  and  Judgment  is 
rendered  against  him  in  the  highest  court  of  the  state,  he  may  bring  the  case 
by  writ  of  error  to  this  court;  and  as  his  justification  depends  upon  the 
question  whether  the  title  to  the  property  was  in  the  defendant  in  attach- 
ment or  in  the  plaintiff  in  the  action  of  trespass,  this  court,  upon  the  writ 
of  error,  has  the  power  to  decide  that  question,  so  far  as  it  is  one  of  law, 
even  if  it  depends  upon  local  law  or  upon  general  principles.  Buck  v.  Col- 
hath,  3  Wall.  334,  is  L.  Ed.  25T  (1866);  Etberidge  v.  Sperry,  139  U.  S.  266,  11 
Sup.  Ct.  565,  35  I..  Ed.  171  (1891) ;  Bock  v.  Perkins,  139  U.  S.  628,  11  Sup.  Ct. 
677,  35  L.  Ed.  314  (1891)."— Stanley  v.  Schwalby,  162  U.  S.  255,  278,  -J79.  40 
\j.   Ed.  960  (1896)  hy  Cray,  J. 

Accord:  Suits  hy  or  against  a  federal  officer  In  his  official  character,  Son- 
nentheil  v.  Christian,  etc.,  Co.,  172  U.  S.  401,  404,  405,  19  Sup.  Ct  238,  43  U. 
Ed.  492  (1899);  A.uten  v.  U.  S.  Bank.  174  U.  S.  125,  140,  141,  19  SUp.  Ct  628, 
13  1..  Ed.  920  (1899);  same,  of  a  receiver  (liniointed  by  a  federal  court,  Tex. 
&  Pac.  Ry.  v.  Cox,  145  U.  S.  593,  12  Sup.  Ct.  905,  36  I..  Ed.  829  (1892)  (fed- 
eral corporation);  Milwaukee,  etc.,  Hy.  v.  Soutter,  2  Wall.  609.  17  L.  Ed. 
888  (1865)  (state  corporation);  MeNulta  v.  Lochridge,  141  U.  S.  327,  331,  12 
Sup.  Ct.  11,  35  L.  Ed.  796  (1891)  (same);  Ex  parte  Tyler,  149  U.  S.  164,  13 
Sup.  Ct.  785.  37  L.  Ed.  6s9  (1893)  (same)  [now  changed  by  statute,  Gable- 
man  v.  Peoria,  etc.,  Ry.,  179  U.  S.  335.  21  Sup.  Ct  171,  45  L.  Ed.  220  (1900)Ji 
same,  of  a  fair,  at  assignee  in  bankruptcy,  McKenna  v.  Simpson,  129  U.  S.  506, 
510,  511,  9  Sup.  Ct  365,  32  I„  Ed.  771  (1889)  [under  present  statutes,  if  fed- 
eral officers  choose  to  sue  in  state  courts  they  may  lose  federal  appellate 
rights  except  upon  actual  federal  controversies  in  suit,  Id.;  Capital  Bank  v. 
First  Nat  Bank,  172  U.  S.  425,  19  Sup.  Ct  202,  43  L..Ed.  502  (1899)];  suits 
on  bonds  gircn  by  federal  officers  or  in  proceedings  in  federal  courts,  Feibet- 
man  v.  Packard,  109  U.  S.  421,  3  Sup.  Ct.  2S9,  27  L.  Ed.  984  (1883);  Tullock 
v.  Mulvane.  1st  0.  S.  197,  22  Sup.  Ct.  372,  46  L.  Ed.  657  (1902);  rights  of 
■  •/  law,  Rouse  v.  Bornsby,  161  u.  s.  588,  590,  16  Sup.  Ct 
610,  40  L.  Ed.  S17  (1896)  [though  of  course  Congress  may  permit  or  require 
these  to  be  brought  In  the  state  courts.  Blackburn  v.  Portland,  etc.;  Co.  175 
r.  s.  571,  l'u  Sup.  Ct  222,  44  L.  Ed.  276  (1900);  Judic.  Act  1911,  §  28,  las) 
proviso]. 

Congress  may  probably  fix  the  period  of  limitation,  even  in  the  state 
courts,  for  any  action  that  it  could  require  to  he  brought  in  a  federal  court. 
Stewart  \.  Eahn,  n  Wall.  493,  20  L.  Ed.  176  (1871);  Mitchell  v.  Clark  un  U 
s.  633,  I  sup.  Ct  170.  312,  28  1..  Ed.  279  (1884) 


1336  THE  FEDERAL   GOVERNMENT  (Part  3 

inal  or  appellate.  The  Constitution  must  have  given  to  the  court  the 
capacity  to  take  it,  and  an  act  of  Congress  must  have  supplied  it. 
Their  concurrence  is  necessary  to  vest  it.1  It  is  the  duty  of  Congress 
to  act  for  that  purpose  up  to  the  limits  of  the  granted  power.  They 
may  fall  short  of  it,  but  cannot  exceed  it.  To  the  extent  that  such 
action  is  not  taken,  the  power  lies  dormant.  It  can  be  brought  into 
activity  in  no  other  way.  Jurisdiction,  original  or  appellate,  alike  com- 
prehensive in  either  case,  may  be  given.  The  constitutional  boundary 
line  of  both  is  the  same.  Every  variety  and  form  of  appellate  juris- 
diction within  the  sphere  of  the  power,  extending  as  well  to  the  courts 
of  the  states  as  to  those  of  the  nation,  is  permitted.  There  is  no  dis- 
tinction in  this  respect  between  civil  and  criminal  causes.  Both  are 
within  its  scope.  Nor  is  it  any  objection  that  questions  are  involved 
which  are  not  all  of  a  federal  character.  If  one  of  the  latter  exist, 
if  there  be  a  single  such  ingredient  in  the  mass,  it  is  sufficient.  That 
element  is  decisive  upon  the  subject  of  jurisdiction.  'A  case  in  law 
or  equity  consists  of  the  right  of  the  one  party  as  well  as  the  other, 
and  may  be  truly  said  to  arise  under  the  Constitution  or  a  law  of  the 
United  States  whenever  its  correct  decision  depends  upon  the  right 
construction  of  either.' 

"The  rule  applies  with  equal  force  where  the  plaintiff  claims  a  right, 
and  where  the  defendant  claims  protection,  by  virtue  of  one  or  the 
other.  Martin  v.  Hunter's  Lessee,  1  Wheat.  314,  4  L.  Ed.  97  (1816); 
Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257  (1821);  Osborn  v. 
Bank  of  United  States,  9  Wheat.  821,  6  L.  Ed.  204  (1824)."  * 

i  The  original  jurisdiction  of  the  Supreme  Court  is  the  only  jurisdiction 
possessed  by  a  federal  court  of  which  Congress  cannot  deprive  it.  U.  S.  v. 
iludson,  7  Cranch,  32,  33,  3  L.  Ed.  259  (1812);  ante,  p.  1323,  note  to  Martin  v. 
Hunter.  In  the  absence  of  congressional  regulation  of  the  mode  of  procedure 
in  exercising  this  jurisdiction,  the  Supreme  Court  may  regulate  it  by  its  own 
rules.  Florida  v.  Georgia,  17  How.  478,  15  L.  Ed.  181  (1855).  Qurere  as  to 
a  similar  power  over  its  appellate  procedure?  See  Ex  parte  McCardle,  7 
Wall.  506,  513,  19  L.  Ed.  264  (1869). 

2  The  federal  circuit  courts  in  a  state  are  not  technically  inferior  courts 
in  the  common-law  sense,  McCormick  v.  Sullivaut,  10  Wheat.  102.  6  L.  Ed. 
300  (1S25) ;  Turner  v.  Bank  of  No.  Am.,  4  Dall.  S,  1  L.  Ed.  718  (1799) ;  though, 
being  of  limited  jurisdiction,  their  jurisdiction  must  affirmatively  appear  on 
their  records  In  every  stage  of  a  case,  Id.;  Bors  v.  Preston,  111  U.  S.  252,  4 
Sup.  Ct.  407,  28  L.  Ed.  419  (1884).  A  similar  affirmative  showing  of  juris- 
diction must  be  made  iu  cases  taken  on  writs  of  error  from  state  courts 
to  the  federal  Supreme  Court.  Detroit  City  Ry.  v.  Guthard,  114  U.  S.  133, 
5  Sup.  Ct.  811,  29  L.  Ed.  118  (1885).  As  to  what  constitutes  the  "record"  un- 
der former  and  present  Judiciarv  Acts,  see  Armstrong  v.  Athens  Co.,  16  Pet. 
2S1,  10  L.  Ed.  9G5  (1842) ;  Murdock  v.  Memphis,  20  Wall.  590,  22  L.  Ed.  429 
(1875). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COCRT3  1887 

PROVIDENT  SAVINGS  LIFE  ASSUR.  SOC.  v.  FORD  (1885.) 
114  U.  S.  635,  641,  642,  5  Sup.  Ct.  1104,  1107,  29  L.  Ed.  261,  Mr. 
Justice  Bradley  (denying  that  a  suit  in  a  state  court  upon  a  judgment 
obtained  in  a  federal  court  could  necessarily  be  removed  to  a  federal 
court  under  the  Act  of  1875) : 

"It  is  suggested,  however,  that  a  suit  on  a  judgment  recovered  in  a 
United  States  court  is  necessarily  a  suit  arising  under  the  laws  of 
the  United  States,  as  much  so  as  if  the  plaintiff  or  defendant  were 
a  corporation  of  the  United  States ;  and  hence  that  such  a  suit  is 
removable  under  the  act  of  March  3,  1S75.     *     *     * 

"What  is  a  judgment,  but  a  security  of  record  showing  a  debt  due 
from  one  person  to  another?  It  is  as  much  a  mere  security  as  a  treas- 
ury note,  or  a  bond  of  the  United  States.  If  A.  brings  an  action 
against  B.,  trover  or  otherwise,  for  the  withholding  of  such  securities, 
it  is  not  therefore  a  case  arising  under  the  laws  of  the  United  States, 
although  the  whole  value  of  the  securities  depends  upon  the  fact  of 
their  being  the  obligations  of  the  United  States.  So,  if  A.  have  title 
to  land  by  patent  of  the  United  States  and  brings  an  action  against 
B.  for  trespass  or  waste,  committed  by  cutting  timber,  or  by  mining 
and  carrying  away  precious  ores,  or  the  like,  it  is  not  therefore  a 
case  arising  under  the  laws  of  the  United  States.  It  is  simply  the 
case  of  an  ordinary  right  of  property  sought  to  be  enforced.  A  suit 
on  a  judgment  is  nothing  more,  unless  some  question  is  raised  in  the 
case  (as  might  be  raised  in  any  of  the  cases  specified)  distinctly  in- 
volving the  laws  of  the  United  States, — such  a  question,  for  example, 
as  was  ineffectually  attempted  to  be  raised  by  the  defendant  in  this 
case.  If  such  a  question  were  raised,  then  it  is  conceded  it  would  be  a 
case  arising  under  the  laws  of  the  United  States. 

"These  considerations  show  a  wide  distinction,  as  it  seems  to  us,  be- 
tween the  case  of  a  suit  merely  on  a  judgment  of  a  United  States 
court,  and  that  of  a  suit  by  or  against  a  United  States  corporation  : 
which  latter,  according  to  the  masterly  analysis  of  Chief  Justice 
Marshall  in  Osborn  v.  Bank,  9  Wheat.  73S.  6  L.  Ed.  204,  is  pervaded 
from  its  origin  to  its  close  by  United  States  law  and  United  States 
authority."  l 

'  Litigation  over  the  ownership  of  property  originally  acquired  from  or 
under  authority  of  the  United  States  does  not  necessarily  involve  a  federal 
'question,  if  there  is  no  controversy  regarding  such  acquisition  or  authority 
..r  their  legal  effect.  Hastings  v.  Jackson,  112  I'.  8.  233,  6  Sup.  Ct  n::.  28 
u  Ed.  7i_'  (1884)  (land  titles);  Blackburn  v.  Portland  Co..  1 7r>  r.  s.  r,:i,  r.T'.t 

681,   20  Sup.  Ct.  SS2.    it   I..  Ed.  278  (19 ame— cases);    Shoshone  Co.  v. 

Hutter,  177  U.  S.  505,  20  Sup.  Ct.  726,  4t  \,.  Bd,  864  (1900)   (same); 
v.  Davis,  170  U.  S.  36,  18  Sup.  Ct.  50<».  -i'J  I..  K.l.  939  ii-:i-i  (national  bank 
stock);    Avery  v.  Popper,   17'.»  V.  S.  305,  21   Sup.  Ct.  94,  46  I..   Bd.  203  (1900) 
(property  bought  at  utlon  Bale).    So,  questions  regarding  the  title 

erty  prior  to  its  alleged  acquisition  under  the  United  SI 
v.  Wilson,  t.i.-,  U.  s.   ins,  26  sup.  C(.  94,   i;i  L,  g)d.  266  (1904).     s,,.  qnestl  •   - 
regarding  contracts  concerning  property  or  rights  acquired  under  the  United 
states,    i.e  sassier  v.  Kennedy,  !-'■"■  U.  s.  521,  8  sup.  ct.  -.'ii.  :;i  i..  Bd   26a 


1338  THE   FEDERAL   GOVERNMENT  (Part  3 


HOOE  v.  JAMIESON. 

(Supreme  Court  of  the  United  States,  1897.     166  TJ.  S.  395,  17  Sup   Ct.  596, 
41  L.  Ed.  1049.) 

[Error  to  the  federal  Circuit  Court  for  the  Western  District  of  Wis- 
consin to  review  the  judgment  stated  below.] 

Mr.  Chief  Justice  Fuller.  This  was  an  action  of  ejectment, 
brought  in  the  circuit  court  of  the  United  States  for  the  Western  dis- 
trict of  Wisconsin,  by  the  complaint  in  which  plaintiffs  in  error  alleged 
that  they  resided  in  and  were  citizens  of  the  city  of  Washington,  D. 
C,  and  that  defendants  all  resided  in  and  were  citizens  of  the  state  of 
Wisconsin.  Defendants  moved  to  dismiss  the  action  on  the  ground 
that  the  circuit  court  had  no  jurisdiction,  as  the  controversy  was  not 
between  citizens  of  different  states.  The  circuit  court  ordered  that  the 
action  be  dismissed  unless  plaintiffs  within  five  days  thereafter  should 
so  amend  their  complaint  as  to  allege  the  necessary  jurisdictional  facts. 
Plaintiffs  then  moved  for  leave  to  amend  their  complaint  by  averring 
that  three  of  them  were,  when  the  suit  was  commenced,  and  continued 
to  be,  citizens  of  the  District  of  Columbia,  but  that  one  of  them  was 
a  citizen  of  the  state  of  Minnesota,  and  that  each  was  the  owner  of  an 
undivided  one-fourth  of  the  lands  and  premises  described  in  the  com- 
plaint, and  that  they  severally  claimed  damages  and  demanded  judg- 
ment.    This  motion  was  denied,  and  the  action  dismissed.     *     *     * 

The  judicial  power  extends  under  the  Constitution  to  controver- 
sies between  citizens  of  different  states,  and  the  judiciary  act  of  1789 
provided,  as  does  the  act  of  March  3,  1887,  as  corrected  by  the  act 
of  August  13,  1888  (25  Stat.  433,  c.  866),  that  the  circuit  courts  of  the 
United  States  should  have  original  cognizance  of  all  suits  of  a  civil 
nature  at  common  law  or  in  equity  in  which  there  should  be  a  con- 
troversy between  citizens  of  different  states. 

We  see  no  reason  for  arriving  at  any  other  conclusion  than  that 

(1887)  (national  bank  stock) ;  Marsh  v.  Nichols,  etc.,  Co.,  140  TJ.  S.  344,  11 
Sup.  Ct.  798,  35  L.  Ed.  413  (1S91)  (patent  rights). 

Most  or  all  of  the  decisions  denying  the  jurisdiction  of  the  federal  courts 
have  been  based  upon  the  construction  of  the  various  federal  Judiciary  Acts, 
the  principal  ones  of  which  were  enacted  in  1789,  1S67,  1875,  1SS7-S8,  1S01, 
and  1911.  All  of  them  have  restricted  the  federal  jurisdiction  in  many  par- 
ticulars far  within  its  constitutional  limits,  and  no  act  regulating  the  juris- 
diction of  the  lower  federal  courts  or  the  appellate  jurisdiction  of  the  Su- 
preme Court  has  ever  been  declared  invalid.  The  constitutional  limits  of 
such  legislation  have  therefore  been  little  judicially  discussed. 

The  present  Federal  Judicial  Code  (36  Stat.  10S7  [U.  S.  Comp.  St.  Supp. 
1911,  p.  12S])  governing  the  organization,  jurisdiction,  and  (in  part)  the  pro- 
cedure of  the  federal  courts  was  enacted  March  3,  1911,  and  took  effect  Jan- 
uary 1,  1912.  Its  sections  of  general  importance  dealing  with  jurisdiction 
and  related  matters  are  as  follows:  District  Courts — §§  24-68;  Circuit  Courts 
of  Appeal— §§  128-135;  Commerce  Court— §§  206-214;  Supreme  Court— §§ 
233-253;    General  Provisions— §§  256,  261-271. 

The  new  federal  Rules  of  Equity  Practice,  promulgated  by  the  Supreme 
Court  on  November  4,  1912.  and  effective  February  1,  1913.  appear  in  226  U. 
S.  629-673,  33  Sup.  Ct.  v-xlii. 


Ch.  20)  JURISDICTION    OF    FF.DERAL    COURTS  1339 

announced  by  Chief  Justice  Marshall  in  Hepburn  v.  Ellzey,  2  Cranch, 
445,  2  L.  Ed.  332  (Feb.  term,  1805),  "that  the  members  of  the  Ameri- 
can confederacy  only  are  the  states  contemplated  in  the  Constitution" ; 
that  the  District  of  Columbia  is  not  a  state  within  the  meaning  of  that 
instrument,  and  that  the  courts  of  the  United  States  have  no  jurisdic- 
tion of  cases  between  citizens  of  the  District  of  Columbia  and  citizens 
of  a  state. 

In  Strawbridge  v.  Curtiss,  3  Cranch,  267,  2  L.  Ed.  435,  it  was  held 
that,  if  there  be  two  or  more  joint  plaintiffs  and  two  or  more  joint 
defendants,  each  of  the  plaintiffs  must  be  capable  of  suing  each  of 
the  defendants  in  the  courts  of  the  United  States  in  order  to  support 
the  jurisdiction;  and  in  Smith  v.  Lyon,  133  U.  S.  315,  10  Sup.  Ct. 
303,  33  L.  Ed.  635,  Strawbridge  v.  Curtiss  was  followed,  and  it  was 
decided  that  under  the  acts  of  18S7  and  1888  the  circuit  court  has 
not  jurisdiction,  on  the  ground  of  diverse  citizenship,  if  there  are  two 
plaintiffs  to  the  action  who  are  citizens  of  and  residents  in  different 
states  and  the  defendant  is  a  citizen  of  and  resident  in  a  third  state, 
and  the  action  is  brought  in  the  state  in  which  one  of  the  plaintiffs 
resides. 

New  Orleans  v.  Winter,  1  Wheat.  91,  4  L.  Ed.  44,  was  an  action  in 
ejectment,  brought  by  two  plaintiffs  claiming  as  joint  heirs,  and  it 
appeared  that  one  of  them  was  a  citizen  of  the  state  of  Kentucky, 
and  that  the  other  was  a  citizen  of  the  territory  of  Mississippi.  It  was 
held  that  jurisdiction  could  not  be  maintained,  and  Chief  Justice 
Marshall,  delivering  the  opinion  of  the  court,  said:  "Gabriel  Winter, 
then,  being  a  citizen  of  the  Mississippi  territory,  was  incapable  or 
maintaining  a  suit  alone  in  the  circuit  court  of  Louisiana.  Is  his  case 
mended  by  being  associated  with  others  who  are  capable  of  suing  in 
that  court?  In  the  case  of  Strawbridge  v.  Curtiss  it  was  decided  that, 
where  a  joint  interest  is  prosecuted,  the  jurisdiction  cannot  be  sus- 
tained unless  each  individual  be  entitled  to  claim  that  jurisdiction.  In 
this  case  it  has  been  doubted  whether  the  parties  might  elect  to  sue 
jointly  or  severally.  However  this  may  be,  having  elected  to  sue  joint- 
ly, the  court  is  incapable  of  distinguishing  their  case,  so  far  as  re- 
spects jurisdiction,  from  one  in  which  they  were  compelled  to  unite." 

In  Iron  Co.  v.  Stone,  121  U.  S.  631,  7  Sup.  Ct.  1010,  30  L.  Ed.  1020, 
the  interests  of  the  parties  being  separate  and  distinct,  but  depending 
on  one  contract,  plaintiffs  elected  to  sue  on  the  common  obligation, 

and  the  case  was  dismissed  under  the  rule  in  New  Orleans  v.  Winter. 

*     *     * 

Many  other  decisions  are  to  the  same  effect,  and  in  the  late  case  of 
Merchants'  Cotton-Press  &  Storage  Co.  v.  Insurance  Co.  of  North 
America,  151  U.  S.  368,  384.  14  Sup.  Ct.  367,  372,  38  L.  Ed.  195,  the 
rule  in  New  Orleans  v.  Winter  was  applied,  and  it  was  held  that  "the 
voluntary  joinder  of  the  parties  has  the  same  effect,  for  purposes  of 
jurisdiction,  as  if  they  had  been  compelled  to  unite." 

In  the  case  at  bar  no  application  was  made  for  leave  to  discontinue 


1340  THE  FEDERAL  GOVERNMENT  (Part  3 

as  to  the  three  plaintiffs  who  were  citizens  of  the  District  of  Columbia, 
and  to  amend  the  complaint  and  proceed  with  the  cause  in  favor  of 
that  one  of  the  plaintiffs  alleged  to  be  a  citizen  of  Minnesota.  Juris- 
diction of  the  case  as  to  four  plaintiffs  could  not  be  maintained  on 
the  theory  that  when  the  trial  terminated  it  might  be  retained  as  to  one. 
Judgment  affirmed.1 


OHIO  &  M.  R.  CO.  v.  WHEELER. 
(Supreme  Court  of  United  States,  1S62.    1  Black,  2S6,  17  L.  Ed.  130.) 

[Certificate  of  division  of  opinion  from  the  federal  Circuit  Court 
for  Indiana  in  a  suit  upon  a  stock  subscription  stated  below.] 

Mr.  Chief  Justice  Taney.  *  *  *  The  declaration  states  that 
the  plaintiffs  are  "a  corporation,  created  by  the  laws  of  the  states  of 
Indiana  and  Ohio,  having  its  principal  place  of  business  in  Cincinnati, 
in  the  state  of  Ohio ;  that  the  corporation  is  a  citizen  of  the  state  of 
Ohio,  and  Henry  D.  Wheeler,  the  defendant,  is  a  citizen  of  the  state 
of  Indiana."     The  defendant  pleaded  to  the  jurisdiction  of  the  court, 

'  Where  diverse  citizenship  has  been  the  ground  of  federal  jurisdiction, 
the  federal  statutes  have  always  been  construed  to  require  all  of  the  par- 
ties plaintiff  to  an  indivisible  controversy  to  be  citizens  of  different  states 
from  each  of  the  parties  defendant.  California  v.  So.  Pac.  Co.,  157  U.  S.  229, 
259,  260,  15  Sup.  Ct.  591,  39  L.  Ed.  6S3  (1S95) ;  Cochran  v.  Montgomery  Co.,  199 
U.  S.  260,  26  Sup.  Ct.  58,  50  L.  Ed.  1S2.  4  Ann.  Cas.  451  (1900).  Whether 
Congress  could  confer  a  jurisdiction  where  some  of  the  parties  ou  each  side 
were  citizens  of  the  same  state  has  never  been  decided.  California  v.  So. 
Pac.  Co.,  above,  at  pp.  260,  261. 

In  applying  the  above  rule  the  parties  are  aligned  according  to  their  real 
Interests  iu  the  controversy  and  not  according  to  their  formal  relation  to  it 
on  the  pleadings.  Removal  Cases,  100  TJ.  S.  457,  46S,  409,  25  L.  Ed.  593 
(1S79);  Wilson  v.  Oswego  Twp.,  151  U.  S.  56,  14  Sup.  Ct.  259,  38  L.  Ed.  70 
(1894)  (cases).  The  fraudulent  joinder  of  an  improper  defendant  will  not 
prevent  a  removal  to  the  federal  courts  by  the  real  defendant,  Wecker  v. 
Nat,  etc.,  Co.,  204  U.  S.  176,  27  Sup.  Ct.  184,  51  L.  Ed.  430,  9  Ann.  Cas.  757 
(1907) ;  but,  if  plaintiff  really  has  a  cause  of  action  against  several  defendants 
jointly  he  may  join  them  in  a  single  suit,  though  the  object  and  effect  of  this 
be  to  prevent  part  of  them  from  removing  the  case  to  a  federal  court,  Chic, 
etc.,  Ry.  v.  Willard,  220  TJ.  S.  413,  31  Sup.  Ct.  460,  55  L.  Ed.  521  (1911)  (tort 
action  against  railroad,  joining  negligent  employe) ;  Chic,  etc.,  Ey.  v.  Schwy- 
hart,  227  U.  S.  1S4,  33  Sup.  Ct.  250,  57  L.  Ed. (1913)  (same). 

The  transfer  of  an  interest  or  a  change  of  domicil  for  the  sole  purpose  of 
giving  jurisdiction  to  the  federal  courts  does  not  defeat  the  jurisdiction,  if 
the  transfer  or  change  is  genuine  and  absolute;  otherwise  it  does.  Morris 
v.  Gilmer,  129  U.  S.  315,  9  Sup.  Ct  289,  32  L.  Ed.  690  (1SS9) ;  Crawford  v. 
Neal,  144  U.  S.  5S5,  12  Sup.  Ct.  759,  36  L.  Ed.  552  (1892). 

If  a  party  has  a  genuine  legal  interest  iu  a  cause  of  action  his  motive  in 
seeking  the  federal  courts  is  immaterial,  Blair  v.  Chicago.  201  U.  S.  400,  44S, 
449,  26  Sup.  Ct.  427.  50  L.  Ed.  S01  (1906)  (cases);  even  though  he  be  indem- 
nified against  liability  for  costs  and  counsel  fees  by  other  interested  parties 
not  themselves  eligible  to  the  federal  courts,   Wheeler  v.  Denver,  229  TJ.  S. 

342,  33  Sup.  Ct.  842.  57  L.  Ed.  (1913),  distinguishing  Cashman  v.  Amador 

Canal  Co.,  118  TJ.  S.  58,  6  Sup.  Ct.  926,  30  L.  Ed.  72  (18S6).     Compare  New 

.Hampshire  v.  Louisiana,  108  TJ.  S.  76,  2  Sup.  Ct.  176,  27  L.  Ed.  656  (1883). 

See,  also.  Hawes  v.   Oakland,   104  TJ.  S.  450,  26  L.  Ed.   827   (1SS2)  (collusive 

stockholders'  bills) ;    Judie.  Act  1911,  §  37  (TJ.  S.  Comp.  St.  Supp.  1911,  p.  146). 


Ch    20)  JURISDICTION    OF    FEDERAL   COURTS  1341 

averring  that  he  was  a  citizen  of  the  state  of  Indiana,  and  that  the 
plaintiffs  were  a  body  politic  and  corporate,  created,  organized,  and 
existing  in  the  same  state,  under  and  by  virtue  of  an  act  of  assembly 
of  the  state.  The  plaintiffs  demurred  to  this  plea;  and  the  judge6  be- 
ing opposed  in  opinion  upon  the  question  whether  their  court  had 
jurisdiction,  ordered  their  division  of  opinion  to  be  certified  to  this 
court. 

A  brief  reference  to  cases  heretofore  decided  will  show  how  the 
question  must  be  answered.  And,  as  the  subject  was  fully  considered 
and  discussed  in  the  cases  to  which  we  are  about  to  refer,  it  is  unneces- 
sary to  state  here  the  principles  and  rules  of  law  which  have  hereto- 
fore governed  the  decisions  of  the  court,  and  must  decide  the  ques- 
tion now  before  us. 

In  the  case  of  the  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  10  L.  Ed. 
274,  the  court  held  that  the  artificial  person  or  legal  entity  known  to 
the  common  law  as  a  corporation  can  have  no  legal  existence  out  of 
the  bounds  of  the  sovereignty  by  which  it  is  created ;  that  it  exists 
only  in  contemplation  of  law,  and  by  force  of  law ;  and  where  that 
law  ceases  to  operate,  the  corporation  can  have  no  existence.  It  must 
dwell  in  the  place  of  its  creation. 

It  had  been  decided,  in  the  case  of  Bank  of  U.  S.  v.  Deveaux.  5 
Cranch,  61,  3  L.  Ed.  38,  long  before  the  case  of  Bank  of  Augusta  v. 
Earle  came  before  the  court,  that  a  corporation  is  not  a  citizen,  within 
the  meaning  of  the  Constitution  of  the  United  States,  and  cannot 
maintain  a  suit  in  a  court  of  the  United  States  against  the  citizen  of 
a  different  state  from  that  by  which  it  was  chartered,  unless  the  per- 
sons who  compose  the  corporate  body  are  all  citizens  of  that  state. 
But,  if  that  be  the  case,  they  may  sue  by  their  corporate  name,  aver- 
ring the  citizenship  of  all  of  the  members;  and  such  a  suit  would  be 
d  as  the  joint  suit  of  the  individual  persons,  united  together  in 
the  corporate  body,  and  acting  under  the  name  conferred  upon  them, 
for  the  more  convenient  transaction  of  business,  and  consequently  en- 
titled to  maintain  a  suit  in  the  courts  of  the  United  States  against  a 
citizen  of  another  state.1 

i  In  tills  case  Marshall,  C.  J.,  said  (5  Cranch,  S7.  SS) :  "However  true  the 
fad  may  be  that  th  tribunals  ol  the  state  will  administer  Justice  as  Impar- 
tially as  those  of  tin'  nation  to  parties  of  every  description,  it  Is  not  less  true 
thai  the  Constitution  Itself  either  entertains  apprehension  on  tins  subject, 
or  views  with  such  Indulgence  the  possible  fears  and  apprehensions  of  suit- 
ors, that  it  has  established  national  tribunals  for  the  decision  of  contro 
between  aliens  and  citizens,  or  between  citizens  of  different  states.  Aliens 
ns  of  different  states  are  not  less  susceptible  of  these  apprehensions, 
nor  ran  they  he  supposed  to  he  less  the  objects  of  constitutional  provision 
because  they  were  allowed  to  sue  by  a  corporate  name.  That  name.  Indeed, 
cannot  be  an  alien  or  a  citizen,  but  the  persons  whom  it  represents  may  be 
the  one  or  the  other,  anil  the  controversy  is.  in  fact  and  in  law,  between 
suing  in  their  corporate  character,  by  their  corporate  names, 
for  a  corporate  right,  and  the  Individual  against  whom  the  suit  may  be  in- 
stituted. Substantially  and  essentially  the  parties  In  -  where 
i                       i  the  corporation  are  aliens  or  citizens  of  a  diffen  i 


1342  THE  FEDERAL  GOVERNMENT  (Part  3 

This  question,  as  to  the  character  of  a  corporation,  and  the  jurisdic- 
tion of  the  courts  of  the  United  States,  in  cases  wherein  they  were 
sued,  or  brought  suit  in  their  corporate  name,  was  again  brought  be- 
fore the  court  in  the  case  of  Louisville,  Cincinnati  &  Charleston  Rail- 
road Company  v.  Letson,  reported  in  2  How.  497,  11  L.  Ed.  353,  and 
the  court  in  that  case,  upon  full  consideration,  decided,  that  where  a 
corporation  is  created  by  the  laws  of  a  state,  the  legal  presumption  is, 
that  its  members  are  citizens  of  the  state  in  which  alone  the  cor- 
porate body  has  a  legal  existence ;  and  that  a  suit  by  or  against  a 
corporation,  in  its  corporate  name,  must  be  presumed  to  be  a  suit  by 
or  against  citizens  of  the  state  which  created  the  corporate  body;  and 
that  no  averment  or  evidence  to  the  contrary  is  admissible,  for  the 
purposes  of  withdrawing  the  suit  from  the  jurisdiction  of  a  court  of 
the  United  States.2 

The  question,  however,  was  felt  by  this  court  to  be  one  of  great 
difficulty  and  delicacy ;  and  it  was  again  argued  and  maturely  consid- 
ered in  the  case  of  Marshall  v.  Baltimore  &  Ohio  Railroad  Company, 
16  How.  314,  14  L.  Ed.  953,  as  will  appear  by  the  report,  and  the  de- 
cision in  the  case  of  The  Louisville,  Cincinnati,  and  Charleston  Rail- 
road Company  v.  Letson  reaffirmed.3  And  again,  in  the  case  of  Cov- 
ington Drawbridge  Company  v.  Shepherd  and  others,  20  How.  232, 
15  L.  Ed.  896,  the  same  question  of  jurisdiction  was  presented,  and 
the  rule  laid  down  in  the  two  last-mentioned  cases  fully  maintained. 
After  these  successive  decisions,  the  law  upon  this  subject  must  be  re- 
garded as  settled ;  and  a  suit  by  or  against  a  corporation  in  its  corpo- 
rate name,  as  a  suit  by  or  against  citizens  of  the  state  which  created  it. 

It  follows  from  these  decisions  that  this  suit  in  the  corporate  name 
is.  in  contemplation  of  law,  the  suit  of  the  individual  persons  who 
compose  it,  and  must,  therefore,  be  regarded  and  treated  as  a  suit  in 
which  citizens  of  Ohio  and  Indiana  are  joined  as  plaintiffs  in  an  ac- 
tion against  a  citizen  of  the  last-mentioned  state.     Such  an  action  can- 

the  opposite  party,  come  within  the  spirit  and  terras  of  the  jurisdiction  con- 
ferred by  the  Constitution  on  the  national  tribunals." 

-  The  purpose  and  limits  of  this  presumption  are  discussed  in  Doctor  v. 
Harrington,  196  U.  S.  579,  25  Sup.  Ct.  355,  49  L.  Ed.  606  (1905)  (suit  by  New 
Jersey  stockholder  against  his  New  York  corporation). 

3  In  this  case  (an  individual  plaintiff  suing  a  corporation  of  another  state 
in  the  federal  courts),  Grier,  J.,  said  (16  How.  at  328) :  "Nor  is  it  reasonable 
that  representatives  of  numerous  unknown  and  ever-changing  associates 
should  be  permitted  to  allege  the  different  citizenship  of  one  or  more  of  these 
stockholders,  in  order  to  defeat  the  plaintiff's  privilege.  *  *  *  xhe  per- 
sons who  act  under  these  faculties,  and  use  this  corporate  name,  may  be 
justly  presumed  to  be  resident  in  the  state  which  is  the  necessary  habitat 
of  the  corporation,  and  where  alone  they  can  be  made  subject  to  suit;  and 
should  be  estopped  in  equity  from  averring  a  different  domicil  as  against 
those  who  are  compelled  to  seek  them  there,  and  can  find  them  there  and 
nowhere  else.  If  it  were  otherwise  it  would  be  in  the  power  of  every  corpo- 
ration, by  electing  a  single  director  residing  in  a  different  state,  to  deprive 
citizens  of  other  states,  with  whom  they  have  controversies,  of  this  consti- 
tutional privilege,  and  compel  them  to  resort  to  state  tribunals  in  cases  in 
which,  of  all  others,  such  privilege  may  be  considered  most  valuable." 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1343 

not  be  maintained  in  a  court  of  the  United  States,  where  jurisdiction 
of  the  ca^e  depends  altogether  on  the  citizenship  of  the  parties.  And, 
in  such  a  suit,  it  can  make  no  difference  whether  the  plaintiffs  sue 
in  their  own  proper  names,  or  by  the  corporate  name  and  style  by 
which  they  are  described. 

The  averments  in  the  declaration  would  seem  to  imply  that  the 
plaintiffs  claim  to  have  been  created  a  corporate  body,  and  to  have 
been  endued  with  the  capacities  and  faculties  it  possesses  by  the  co- 
operating legislation  of  the  two  states,  and  to  be  one  and  the  same 
legal  being  in  both  states.  If  this  were  the  case,  it  would  not  affect 
the  question  of  jurisdiction  in  this  suit.  But  such  a  corporation  can 
have  no  legal  existence  upon  the  principles  of  the  common  law,  or 
under  the  decision  of  this  court  in  the  case  of  the  Bank  of  Augusta  v. 
Earle,  before  referred  to. 

It  is  true  that  a  corporation  by  the  name  and  style  of  the  plain- 
tiffs appears  to  have  been  chartered  by  the  states  of  Indiana  and  Ohio, 
clothed  with  the  same  capacities  and  powers,  and  intended  to  accom- 
plish the  same  objects,  and  it  is  spoken  of  in  the  laws  of  the  states 
as  one  corporate  body,  exercising  the  same  powers  and  fulfilling  the 
same  duties  in  both  states.  Yet  it  has  no  legal  existence  in  either  state, 
except  by  the  law  of  the  state.  And  neither  state  could  confer  on  it 
a  corporate  existence  in  the  other,  nor  add  to  or  diminish  the  powers 
to  be  there  exercised.  It  may,  indeed,  be  composed  of  and  represent, 
under  the  corporate  name,  the  same  natural  persons.  But  the  legal 
entity  or  person,  which  exists  by  force  of  law,  can  have  no  existence 
beyond  the  limits  of  the  state  or  sovereignty  which  brings  it  into  life 
and  endues  it  with  its  faculties  and  powers.  The  President  and  Di- 
rectors of  the  Ohio  and  Mississippi  Railroad  Company  is,  therefore, 
a  distinct  and  separate  corporate  body  in  Indiana  from  the  corporate 
body  of  the  same  name  in  Ohio,  and  they  cannot  be  joined  in  a  suit  as 
one  and  the  same  plaintiff,  nor  maintain  a  suit  in  that  character  against 
a  citizen  of  Ohio  or  Indiana  in  a  circuit  court  of  the  United  States. 
*     *     * 

Answer  so  certified.* 

*  For  the  purposes  of  federal  jurisdiction,  municipal  corporations  of  a  state 
are  also  Its  citizens.  Mercer  Co.  v.  Cowles,  7  Wall.  118,  19  L.  Ed.  86 
hut  not  the  state  itself,  though  it  may  be  a  political  corporation.  Postal  Teleg 
Co.  v.  Alabama,  156  D.  8.  482,  16  Sup.  Ct.  192.  39  L.  Ed.  281  (1894);  nor  va- 
rious associations,  hoards,  or  joint-stock  companies,  organized  under  state 
laws  with  some  of  the  attributes  of  corporations,  Thomas  v.  Hoard  of  Trus- 
tees, 195  O.  S.  207.  25  Sup.  Ct.  21.  49  L.  Ed.  K',0  (1904)  (o 

A  territorial  corporation  becomes  a  citizen  of  that  state  when  it  is  admitted 
to  the  Onion,  Kansas  Pac.  Ry.  v.  Atchison,  etc..  Ry.,  112  r.  s.  in,  5  Snp. 
Ct  208,  28  L.  Ed.  79-1  (18S4) ;  Shulthis  v.  McDougal.  225  U.  S.  561,  .32  Sup 
Ct  704,  5G  L.  Ed.  1205  (1912):  and  a  Spanish  corporation  doing  business  only 
in  Porto  Rico  hecame  a  citizen  of  that  dependency  upon  its  cession,  Martin./ 
v.  La  Asociaclon,  etc.,  de  Ponce,  213  U.  S.  20,  29  Sup.  Ct.  327,  53  L.  Ed  67! 
(1909). 

As  to  the  citizenship  of  corporations  of  one  state  which  voluntarily  or  com- 
pulsorily  reincorporate  also  in  other  states,  see  St  L.,  etc..  Ry.  v.  Jai 
O.  s.  545,  16  Sup.  Ct.  621,  40  i..  Ed.  802  (1896);    So.  By.  v.  Allison,  190   D. 


1344  THE    FEDERAL   GOVERNMENT  (Part  3 

SECTION  2.— ADMINISTRATION  OF  STATE  LAW; 


GREEN  v.  NEAL'S  LESSEE. 
(Supreme  Court  of  United  States,  1S32.    6  Pet  291,  8  L.  Ed.  402.) 

[Error  to  the  federal  Circuit  Court  for  West  Tennessee.  A  Ten- 
nessee statute  of  limitations  of  1797  was  construed  by  the  state  courts 
in  1815  not  to  give  title  by  seven  years  of  adverse  possession  unless 
the  occupant  held  under  a  deed  connected  with  i' grant  of  the  land.  In 
Patton's  Lessee  v.  Easton,  1  Wheat.  476,  4  L.  Ed.  139  (1816)  these 
decisions  were  followed  by  the  federal  Supreme  Court,  and  also  in 
Powell's  Lessee  v.  Harman,  2  Pet.  241,  7  L.  Ed.  411  (1829).  In  Gray 
v.  Darby's  Lessee,  Mart.  &  Y.  (Tenn.)  396  (1825)  the  older  Tennessee 
cases  were  overruled  by  the  state  Supreme  Court,  and  the  statute  of 
1797  was  held  not  to  require  the  occupant's  deed  to  be  connectea  with 
a  grant.  In  a  subsequent  ejectment  action  in  the  federal  court  by 
Neal  against  Green,  the  federal  decision  upon  this  point  was  followed, 
and  this  writ  of  error  was  taken.] 

Mr.  Justice  McLean.  *  *  *  Since  this  decision  [Gray  v.  Dar- 
by's Lessee,  cited  above],  the  law  has  been  considered  as  settled  in 
Tennessee;  and  there  has  been  so  general  an  acquiescence  in  all  the 
courts  of  the  state,  that  the  point  is  not  now  raised  or  discussed. 
This  construction  has  become  a  rule  of  property  in  the  state,  and  nu- 
merous suits  involving  title  have  been  settled  by  it.  Had  this  been  the 
settled  construction  of  these  statutes  when  the  decision  was  made  by 
this  court,  in  the  case  of  Patton's  Lessee  v.  Easton,  there  can  be  no 
doubt  that  that  opinion  would  have  conformed  to  it.  But  the  ques- 
tion is  now  raised,  whether  this  court  will  adhere  to  its  own  decision, 
made  under  the  circumstances  stated,  or  yield  to  that  of  the  judicial 
tribunals  of  Tennessee.  This  point  has  never  before  been  directly  de- 
cided by  this  court,  on  a  question  of  general  importance.  The  cases 
are  numerous  where  the  court  have  adopted  the  constructions  given  to 
the  statute  of  a  state  by  its  supreme  judicial  tribunal ;  but  it  has  never 
been  decided  that  this  court  will  overrule  their  own  adjudication,  es- 
tablishing an  important  rule  of  property,  where  it  has  been  founded  on 
the  construction  of  a  statute  made  in  conformity  to  the  decisions  of 
the  state  at  the  time,  so  as  to  conform  to  a  different  construction 
adopted  afterwards  by  the  state. 

S.  326,  23  Sup.  Ct.  713,  47  L.  Ed.  1078  (1003) ;   Patch  v.  Wabash  Ry.,  207  U.  S. 
277,  28  Sup.  Ct.  80,  52  L.  Ed.  204,  12  Ann.  Cas.  51S  (1907). 

As  .to  when  the  organization  of  a  corporation  and  the  transfer  to  it  of 
property  in  litisarion  will  be  held  a  fraud  upon  the  jurisdiction,  see  Lehigh, 
etc.,  Co.  v.  Kelly,  160  U.  S.  327,  16  Sup.  Ct.  307,  40  L.  Ed.  444  (1895);  Millei 
&  Lux  v.  East  Side  Co.,  211  U.  S.  293,  29  Sup.  Ct  111,  53  L.  Ed.  ISO  (190S) 
Compare  p.  1344.  ante,  note  to  Hooe  v.  Jamieson. 


Ch.  20)  jurisdiction  of  federal  courts  l''l.~ 

This  is  a  question  of  grave  import,  and  should  be  approached  with 
great  deliberation.  It  is  deeply  interesting  in  every  point  of  view  in 
which  it  may  be  considered.  As  a  rule  of  property  it  is  important ; 
and  equally  so,  as  it  regards  the  system  under  which  the  powers  of 
this  tribunal  are  exercised.  It  may  be  proper  to  examine  in  what  light 
the  decisions  of  the  state  courts,  in  giving  a  construction  to  their  own 
statutes,  have  been  considered  by  this  court.     *     *     * 

The  Supreme  Court  holds  in  the  highest  respect  decisions  of  state 
courts  upon  local  laws  forming  rules  of  property.  Shipp  v.  Miller's 
Heirs,  2  Wheat.  316,  4  L.  Ed.  248.  In  construing  local  statutes  re- 
specting real  property,  the  courts  of  the  Union  are  governed  by  the 
decisions  of  the  state  tribunals.  Thatcher  v.  Powell,  6  Wheat.  119. 
5  L.  Ed.  221.  The  court  says,  in  the  case  of  Elmendorf  v.  Taylor 
et  al.,  10  Wheat.  152,  6  L.  Ed.  289,  "that  the  courts  of  the  United 
States,  in  cases  depending  on  the  laws  of  a  particular  state,  will,  in 
general,  adopt  the  construction  which  the  courts  of  the  state  have 
given  to  those*  laws."  "This  course  is  founded  upon  the  principle, 
supposed  to  be  universally  rec  ionized,  that  the  judicial  department 
of  every  government,  where  such  department  exists,  is  the  appro- 
priate organ  for  construing  the  legislative  acts  of  that  government." 

In  Shelby  v.  Guy,  11  Wheat.  361,  6  L.  Ed.  495,  the  court  again  de- 
clares, that  "the  statute  laws  of  the  states  must  furnish  the  rule  of 
decision  of  the  federal  courts,  as  far  as  they  comport  with  the  Con- 
stitution of  the  United  States,  in  all  cases  arising  within  the  respec- 
tive states;  and  a  fixed  and  r  nstruction  of  their  respective 
statute  laws,  in  their  own  courts,  makes  a  part  of  such  statute  law." 
The  court  again  says,  in  Jackson  ex  dem.  St.  John  v.  Chew,  12 
153,  6  L.  Ed.  583,  "that  this  court  adopts  the  local  law  of 
real  property,  as  ascertained  by  the  decisions  of  the  state  courts. 
whether  these  decisions  are  grounded  on  the  construction  of  the 
statutes  of  the  state,  or  form  a  part  of  the  unwritten  law  of  the  state.1 
which  has  become  a  fixed  rule  of  property."  Quotations  might  be 
multiplied,  but  the  above  will  show  that  this  court  has  uniformly 
adopted  the  decisions  of  the  state  tribunals  respectively,  in  the  con- 

'  Lccord  'as  to  unwritten  real  property  law):  Beauregard  v.  New  Orleans, 
IS  How.  -err.  .-(rj.  1.-,  i..  ]•■(•.  h;:i  ns--,i:  Walker  v.  N.  Mex.,  etc.,  Ry.,  185 
r.  s.  593,  17  Sup.  Ct  121,  n  L.  Ed.  837  (1897)  (surface  water) 
Oo.  v.  Board  Water  Com'rs,  168  D.  8.  349,  18  Bup.  Ct.  157,  42  I..  Ed.  197  (1897) 
i  rights);  De  Vaughn  v.  Hutchinson,  165  D.  S.  566,  570,  IT  Sum.  ct. 
461,  it  L.  Ed.  s-jT  (1897)  (rule  In  Shelley's  Case),  Shims,  .!..  saying: 

"it  is  ii  principle  I  Uehed  thai  to  the  law  of  the  state  in  which 

id  is  situated  we  must  look  for  the  rules  which  govern  its 
alienation,    and    transfer,   and   for   the   effect   and    construction    of   wi 
other  conveyai 

As  to  the  distinction  between  cases  where  the  construction  of  words  in 
or  wills  has  become  n  settled  rule  of  property  In  a  state,  and 
whale   particular   devises    have    received    Individual    constructions 
courts,  see  Barber  v.  Pitts.,  etc.,  Ry.,  166  r.  S.  83,  99,  100,  17  Sup.  Ct 
I,.  Ed.  921!  (1897). 

II  A!  r.  COWBT.L. — 86 


1346  THE  FEDERAL  GOVERNMENT  (Part  3 

struction  of  their  statutes,  [and]  that  this  has  been  done  as  a  matter 
of  principle,  in  all  cases  where  the  decision  of  a  state  court  has  be- 
come a  rule  of  property. 

In  a  great  majority  of  the  causes  brought  before  the  federal  tribu- 
nals, they  are  called  to  enforce  the  laws  of  the  states.  The  rights 
of  parties  are  determined  under  those  laws,  and  it  would  be  a  strange 
perversion  of  principle,  if  the  judicial  exposition  of  those  laws,  by 
the  state  tribunals,  should  be  disregarded.  These  expositions  con- 
stitute the  law,  and  fix  the  rule  of  property.  Rights  are  acquired 
under  this  rule,  and  it  regulates  all  the  transactions  which  come  with- 
in its  scope. 

It  is  admitted  in  the  argument,  that  this  court,  in  giving  a  con- 
struction to  a  local  law,  will  be  influenced  by  the  decisions  of  the 
local  tribunals ;  but  it  is  contended  that  when  such  a  construction 
shall  be  given  in  conformity  to  those  decisions,  it  must  be  considered 
final.  That  if  the  state  shall  change  the  rule,  it  does  not  comport 
either  with  the  consistency  or  dignity  of  this  tribunal  to  adopt  the 
change.  Such  a  course,  it  is  insisted,  would  recognize  in  the  state 
courts  a  power  to  revise  the  decisions  of  this  court,  and  fix  the 
rule  of  property  differently  from  its  solemn  adjudications.  That 
the  federal  court,  when  sitting  within  a  state,  is  the  court  of  that 
state,2  being  so  constituted  by  the  Constitution  and  laws  of  the 
Union ;  and  as  such,  has  an  equal  right  with  the  state  courts  to  fix 
the  construction  of  the  local  law. 

On  all  questions  arising  under  the  Constitution  and  laws  of  the 
Union,  this  court  may  exercise  a  revising  power,  and  its  decisions 
are  final  and  obligatory  on  all  other  judicial  tribunals,  state  as  well 
as  federal.  A  state  tribunal  has  a  right  to  examine  any  such  ques- 
tions and  to  determine  them,  but  its  decisions  must'  conform  to  that 
of  the  Supreme  Court,  or  the  corrective  power  may  be  exercised. 
But  the  case  is  very  different  where  a  question  arises  under  a  local 
law.  The  decision  of  this  question  by  the  highest  judicial  tribunal 
of  a  state  should  be  considered  as  final  by  this  court ;  not  because 
the  state  tribunal,  in  such  a  case,  has  any  power  to  bind  this  court; 

2  Accord:  Beauregard  v.  New  Orleans,  18  How.  497,  502,  15  L.  Ed.  469 
(1855);  MadlsonviUe  Co.  v.  St.  Bernard  Co.,  196  U.  S.  239,  255,  256,  25  Sup. 
Ct  251,  49  L.  Ed.  462  (1905),  Harlan,  X,  saying: 

"The  original  jurisdiction  of  the  circuit  courts,  whatever  may  be  ordained 
by  slate  legislation,  extends  to  suits  in  which  there  is  a  controversy  between 
.'itizens  of  different  states.  The  exercise  by  the  circuit  courts  of  the  United 
States  of  the  jurisdiction  thus  conferred  upon  them  is  pursuant  to  the  su- 
preme law  of  the  land,  and  will  not,  in  any  proper  sense,  entrench  upon  the 
dignity,  authority,  or  autonomy  of  the  states;  for  each  state,  by  accepting 
the  Constitution,  has  agreed  that  the  courts  of  the  United  States  may  exert 
whatever  judicial  power  can  be  constitutionally  conferred  upon  them.  In  the 
exercise  of  that  power  a  circuit  court  of  the  United  States,  sitting  within 
the  limits  of  a  state,  and  having  jurisdiction  of  the  parties,  is,  for  every  prac- 
tical purpose,  a  eourt  of  that  state.  Its  function,  under  such  circumstances, 
is  to  enforce  the  rights  of  parties  according  to  the  law  of  the  state,  taking 
care,  always,  as  the  state  courts  must  take  care,  not  to  infringe  any  right 
secured  by  the  Constitution  and  the  laws  of  the  United  States." 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1347 

but  because,  in  the  language  of  the  court,  in  the  case  of  Shelby  et 
al.  v.  Guy,  11  Wheat.  361,  6  L.  Ed.  495,  "a  fixed  and  received  con- 
struction by  a  state,  in  its  own  courts,  makes  a  part  of  the  statute 
law." 

The  same  reason  which  influences  this  court  to  adopt  the  con- 
struction given  to  the  local  law,  in  the  first  instance,  is  not  less 
strong  in  favor  of  following  it  in  the  second,  if  the  state  tribunals 
should  change  the  construction.  A  reference  is  here  made,  not  to  a 
single  adjudication,3  but  to  a  series  of  decisions  which  shall  settle 
the  rule.  Are  not  the  injurious  effects  on  the  interests  of  the  citi- 
zens of  a  state  as  great  in  refusing  to  adopt  the  change  of  construc- 
tion, as  in  refusing  to  adopt  the  first  construction?  A  refusal  in 
the  one  case  as  well  as  in  the  other  has  the  effect  to  establish,  in  the 
state,  two  rules  of  property. 

Would  not  a  change  in  the  construction  of  a  law  of  the  United 
States,  by  this  tribunal,  be  obligatory  on  the  state  courts?  The  stat- 
ute, as  last  expounded,  would  be  the  law  of  the  Union ;  and  why 
may  not  the  same  effect  be  given  to  the  last  exposition  of  a  local 
law  by  the  state  court?  The  exposition  forms  a  part  of  the  local 
law,  and  is  binding  on  all  the  people  of  the  state,  and  its  inferior 
judicial  tribunals.  It  is  emphatically  the  law  of  the  state,  which  the 
federal  court,  while  sitting  within  the  state,  and  this  court,  when  a 
case  is  brought  before  them,  are  called  to  enforce.  If  the  rule  as 
settled  should  prove  inconvenient  or  injurious  to  the  public  interests, 
the  legislature  of  the  state  may  modify  the  law  or  repeal  it. 

If  the  construction  of  the  highest  judicial  tribunal  of  a  state  form 
a  part  of  its  statute  law,  as  much  as  an  enactment  by  the  legislature, 
how  can  this  court  make  a  distinction  between  them?  There  could 
be  no  hesitation  in  so  modifying  our  decisions  as  to  conform  to  any 
legislative  alteration  in  a  statute ;  and  why  should  not  the  same  rule 
apply  where  the  judicial  branch  of  the  state  government,  in  the  ex- 
ercise of  its  acknowledged  functions,  should,  by  construction,  give 
a  different  effect  to  a  statute,  from  what  had  at  first  been  given  to 
it.  The  charge  of  inconsistency  might  be  made  with  more  force 
and  propriety  against  the  federal  tribunals  for  a  disregard  of  this 
rule,  than  by  conforming  to  it.  They  profess  to  be  bound  by  the 
local  law ;  and  yet  they  reject  the  exposition  of  that  law  which  forms 
a  part  of  it.  It  is  no  answer  to  this  objection  that  a  different  expo- 
sition was  formerly  given  to  the  act  which  was  adopted  by  the  federal 
court.  The  inquiry  is,  what  is  the  settled  law  of  the  state  at  the  time 
the  decision  is  made.  This  constitutes  the  rule  of  property  within 
the  state,  by  which  the  rights  of  litigant  parties  must  be  determined. 

<  The  federal  courts  will  not  necessarily  follow  a  single  state  d 
which  appears  Inadvertent  or  not  really  to  settle  the  local  law.  Shelby  v. 
Guy,  11  Wheat.  361,  3GG-300,  C  L.  Ed,  495  (1826);  Suydam  v.  Williamson'.  21 
How.  4L'7.  16  L.  Ed.  ~i-  (1861)  (explaining  Williamson  v.  Berry,  8  How.  495, 
i  I  i.  Ed  1170(1850));  Mohr  v.  Manlerre,  101  TJ.  S.  U7,  26  L.  Ed.  1052  (18S0) ; 
Hardin  v.  Jordan,  140  I".  S.  871,  11  Sup   Ct  808,  838,  85  L.  Ed.    128  (1801). 


1348  THE    FEDERAL    GOVERNMENT  (Part  3 

As  the  federal  tribunals  profess  to  be  governed  by  this  rule,  they 
can  never  act  inconsistently  by  enforcing  it.  If  they  change  their 
decision,  it  is  because  the  rule  on  which  that  decision  was  founded 
has  been  changed. 

The  case  under  consideration  illustrates  the  propriety  and  necessity 
of  this  rule.  It  is  now  the  settled  law  of  Tennessee  that  an  adverse 
possession  of  seven  years,  under  a  deed  for  land  that  has  been  granted, 
will  give  a  valid  title.  But  by  the  decision  of  this  court  such  a  pos- 
session, under  such  evidence  of  right,  will  not  give  a  valid  title.  In 
addition  to  the  above  requisites,  this  court  have  decided  that  the  tenant 
must  connect  his  deed  with  a  grant.  It  therefore  follows  that  the  oc- 
cupant whose  title  is  protected  under  the  statutes  before  a  state  tribu- 
nal, is  unprotected  by  them  before  the  federal  court.  The  plaintiff  in 
ejectment,  after  being  defeated  in  his  action  before  a  state  court,  on 
the  above  construction,  to  insure  success  has  only  to  bring  an  action  in 
the  federal  court.  This  may  be  easily  done  by  a  change  of  his  resi- 
dence, or  a  bona  fide  conveyance  of  the  land. 

Here  is  a  judicial  conflict  arising  from  two  rules  of  property  in  the 
same  state,  and  the  consequences  are  not  only  deeply  injurious  to  the 
citizens  of  the  state,  but  calculated  to  engender  the  most  lasting  dis- 
contents. It  is  therefore  essential  to  the  interests  of  the  country,  and 
to  the  harmony  of  the  judicial  action  of  the  federal  and  state  govern- 
ments, that  there  should  be  but  one  rule  of  property  in  a  state.     *     *     * 

Judgment  reversed.4 

[Baldwin,  J.,  dissented.] 


SWIFT  v.  TYSON  (1842)  16  Pet.  1,  16,  IS,  19,  10  L.  Ed.  865, 
Mr  Justice  Story  (upholding  an  action  brought  in  the  New  York- 
federal  court  by  an  indorsee  of  a  bill  of  exchange  against  the  acceptor 
who  had  been  defrauded  by  the  drawer): 

"In  the  present  case,  the  plaintiff  is  a  bona  fide  holder  without 
notice  for  what  the  law  deems  a  good  and  valid  consideration,  that  is, 
for  a  pre-existing  debt ;  and  the  only  real  question  in  the  cause  is, 
whether,  under  the  circumstances  of  the  present  case,  such  a  pre- 
existing debt  constitutes   a   valuable  consideration    in   the   sense   of 

*  Accord  (interpretation  of  state  statutes  or  constitutions):  Elmendorf  v. 
Taylor,  10  Wheat.  1.12,  150,  160,  6  L.  Ed.  289  (1S25) ;  Leffingwell  v.  Warren,  2 
Black,  599,  17  L.  Ed.  201  (1862);  South  Ottowa  v.  Perkins,  94  U.  S.  200.  24 
I>.  Ed.  154  (1S77)  (existence  of  statute);  Union  Bank  v.  Bank  of  Kansas 
City.  136  U.  S.  223,  10  Sup.  Ct.  1013,  34  L.  Ed.  341  (1S90)  (assignment  for 
creditors);  and  particularly  all  questions  as  to  the  existence,  powers,  <>r 
liabilities  of  state  municipalities,  officers,  or  tribunals,  Claiborne  Co.  v. 
Brooks,  111  TJ.  S.  400,  4  Sup.  Ct.  4S9.  28  L.  Ed.  470  i  S84) ;  Norton  v. 
Shelby  Co.,  118  U.  S.  425,  6  Sup.  Ct.  1121,  30  L.  Ed.  17S  (1SSC);  Detroit  v. 
Osborne,  135  V.  S.  402,  10  Sup.  Ct.  1012,  34  L.  Ed.  2G0  (1890).  The  dictum 
to  the  contrary  in  Olcott  v.  Supervisors,  16  Wall.  G7S,  21  L.  Ed.  382  (187;!)  is 
clearly  wrong,  as  is  also  what  is  said  in  Williamson  v.  Berry,  8  How.  495, 
543,  12  L.  Ed.  1170  (1S50). 


Ch.  20)  JURISDICTION    OF    FEDERAL   COURTS  134!' 

the  general  rule  applicable  to  negotiable  instruments.  We  say,  un- 
der the  circumstances  of  the  present  case,  for  the  acceptance  having 
been  made  in  New  York,  the  argument  on  behalf  of  the  defendant  is, 
that  the  contract  is  to  be  treated  as  a  New  York  contract,  and  there- 
fore to  be  governed  by  the  laws  of  New  York,  as  expounded  by  its 
courts,  as  well  upon  general  principles,  as  by  the  express  provisions 
of  the  34th  section  of  the  Judiciary  Act  of  1789,  c.  20.  And  then  it  is 
further  contended  that,  by  the  law  of  New  York,  as  thus  expounded 
by  its  courts,  a  pre-existing  debt  docs  not  constitute,  in  the  sense  of  the 
general  rule,  a  valuable  consideration  applicable  to  negotiable  instru- 
ments.    *    *     * 

[After  discussing  the  New  York  cases:]  "But,  admitting  the  doc- 
trine to  be  fully  settled  in  New  York,  it  remains  to  be  considered 
whether  it  is  obligatory  upon  this  court,  if  it  differs  from  the  prin- 
ciples established  in  the  general  commercial  law.  It  is  observable 
that  the  courts  of  New  York  do  not  found  their  decisions  upon  this 
point  upon  any  local  statute  or  positive,  fixed  or  ancient  local  usage ; 
but  they  deduce  the  doctrine  from  the  general  principles  of  commercial 
law.  ft  is,  however,  contended  that  the  34th  section  of  the  Judiciary 
Act  of  1789,  c.  20,  furnishes  a  rule  obligatory  upon  this  court  to  fol- 
low the  decisions  of  the  state  tribunals  in  all  cases  to  which  they  apply. 
That  section  provides  'that  the  laws  of  the  several  states,  except  where 
the  Constitution,  treaties,  or  statutes  of  the  United  States  shall  other- 
wise require  or  provide,  shall  be  regarded  as  rules  of  decision  in  trials 
at  common  law  in  the  courts  of  the  United  States,  in  cases  where 
they  apply.'  In  order  to  maintain  the  argument,  it  is  essential,  there- 
fore, to  hold  that  the  word  'laws,'  in  this  section,  includes  within  the 
scope  of  its  meaning  the  decisions  of  the  local  tribunals.  In  the  or- 
dinary use  of  language,  it  will  hardly  be  contended  that  the  decisions 
of  courts  constitute  laws.  They  are,  at  most,  only  evidence  of  what 
the  laws  are,  and  are  not  of  themselves  laws.  They  are  often  re-ex- 
amined,  reversed,  and  qualified  by  the  courts  themselves,  whenever 
they  are  found  to  be  either  defective,  or  ill-founded  or  otherwise  in- 
correct. The  laws  of  a  state  are  more  usually  understood  to  mean 
the  rules  and  enactments  promulgated  by  the  legislative  authority 
thereof,  or  long-established  local  customs  having  the  force  of  laws. 

"In  all  the  various  cases,  which  have  hitherto  come  before  us  for 
decision,  this  court  have  uniformly  supposed  that  the  true  interpreta- 
tion of  the  34th  section  limited  its  application  to  state  laws  strictly 
local ;  that  is  to  say,  to  the  positive  statutes  of  the  state,  and  the  con- 
struction thereof  adopted  by  the  local  tribunals,  and  to  rights  and  ti- 
tles to  things  having  a  permanent  locality,  such  as  the  rights  and  titles 
to  real  estate,  and  other  matters  immovable  and  intraterritorial  in 
their  nature  and  character.  It  never  has  been  supposed  by  us  that  the 
section  did  apply,  or  was  designed  to  apply,  to  questions  of  a  more 
general  nature,  not  all  dependent  upon  local  statutes  or  local  usages 
of  a  fixed  and  permanent  operation,  as,  for  example,  to  the  construe- 


1350  THE  FEDERAL  GOVERNMENT  (Part  3 

tion  of  ordinary  contracts  or  other  written -instruments,  and  especially 
to  questions  of  general  commercial  law,  where  the  state  tribunals  are 
called  upon  to  perform  the  like  functions  as  ourselves,  that  is,  to  as- 
certain, upon  general  reasoning  and  legal  analogies,  what  is  the  true 
exposition  of  the  contract  or  instrument,  or  what  is  the  just  rule  fur- 
nished by  the  principles  of  commercial  law  to  govern  the  case.  And 
we  have  not  now  the  slightest  difficulty  in  hqlding  that  this  section, 
upon  its  true  intendment  and  construction,  is  strictly  limited  to  local 
statutes  and  local  usages  of  the  character  before  stated,  and  does  not 
extend  to  contracts  and  other  instruments  of  a  commercial  nature, 
the  true  interpretation  and  effect  whereof  are  to  be  sought,  not  in  the 
decisions  of  the  local  tribunals,  but  in  the  general  principles  and  doc- 
trines of  commercial  jurisprudence.  Undoubtedly,  the  decisions  of 
the  local  tribunals  upon  such  subjects  are  entitled  to,  and  will  receive, 
the  most  deliberate  attention  and  respect  of  this  court;  but  they 
cannot  furnish  positive  rules,  or  conclusive  authority,  by  which  our 
own  judgments  are  to  be  bound  up  and  governed.  The  law  respect- 
ing negotiable  instruments  may  be  truly  declared,  in  the  language  of 
Cicero,  adopted  by  Lord  Mansfield  in  Luke  v.  Lyde,  2  Burr.  R.  882, 
887,  to  be  in  a  great  measure,  not  the  law  of  a  single  country  only, 
but  of  the  commercial  world.  'Non  erit  alia  lex  Romje,  alia  Athenis, 
alia  nunc,  alia  posthac,  sed  et  apud  omnes  gentes,  et  omni  tempore,  una 
eademque  lex  obtinebit.' 

"It  becomes  necessary  for  us,  therefore,  upon  the  present  occasion, 
to  express  our  own  opinion  of  the  true  result  of  the  commercial  law 
upon  the  question  now  before  us.  And  we  have  no  hesitation  in 
saying,  that  a  pre-existing  debt  does  constitute  a  valuable  considera- 
tion in  the  sense  of  the  general  rule  already  stated,  as  applicable  to 
negotiable  instruments."  l 

[Catron,  ].,  expressed  no  opinion  upon  the  latter  point  in  the 
case,  so  far  as  concerned  instruments  taken  as  collateral  security 
only.] 

i  Accord  (negotiable  paper) :  R.  R.  Co.  v.  Nat.  Bank,  102  U.  S.  14,  26  L. 
Ed.  61  (1SS0);  Pana  v.  Bowler,  107  U.  S.  529,  2  Sup.  Ct.  704,  27  L.  Ed.  424 
(1SS3)  (municipal  bonds  irregularly  issued). 

Other  subjects,  which  have  been  held  to  be  governed  by  principles  of  com- 
mercial law  or  of  "general  jurisprudence"  upon  which  the  federal  courts  ex- 
ercise an  independent  judgment,  are : 

Insurance:  Carpenter  v.  Prov.  Ins.  Co..  16  Pet  495,  511,  512,  10  L.  Ed. 
1044  (1S42)  (construction  of  fire  policy) ;  Washburn  Co.  v.  Reliance  Co.,  179 
U.  S.  1,  21  Sup.  Ct.  1,  45  L.  Ed.  49  (1900)  (same— marine). 

Carriers:  N.  Y.  C.  Ry.  v.  Lockwood,  17  Wall.  357,  21  L.  Ed.  627  (1873) 
(contract  exemption  for  negligent  carriage  invalid) ;  Liverpool,  etc.,  Co.  v. 
Phenix  Co.,  129  U.  S.  397,  9  Sup.  Ct  469,  32  L,.  Ed.  788  (1SS9)  (same— in  ad- 
miralty) ;  Myrick  v.  Mich.  Cent.  Ry.,  107  U.  S.  102,  1  Sup.  Ct.  425,  27  L.  Ed. 
325  (1883)  (construction  of  contract  of  carriage) ;  Bait.  &  O.  Ry.  v.  Baugh, 
149  U.  S.  368,  13  Sup.  Ct.  914,  37  L.  Ed.  772  (1893)  (liability  in  tort  to  em- 
ployees—cases);  L.  S.,  etc.,  Ry.  v.  Prentice,  147  U.  S.  101,  106,  13  Sup.  Ct 
261,  37  L.  Ed.  97  (1893)  (liability  to  passenger  for  punitive  damages).  Gray. 
J.,  saying:  "This  question,  like  others  affecting  the  liability  of  a  railroad 
corporation  as  a  common  carrier  of  goods  or  passengers,     *     *     *     is  a  ques- 


Ch.  20)  JURISDICTION    OK    FEDERAL    COURTS  lu.jl 

BUCHER  v.  CHESHIRE  R.  CO. 

(Supreme  Court  of  United  States,  1SSS.     125  O.  S.  555,  8  Sup.  Ct.  974.  31   L. 
Ed.   795.) 

[Error  to  the  federal  Circuit  Court  for  Massachusetts.  Plaintiff 
0  recover  for  injuries  due  to  defendant's  negligence  while  plain- 
tilt"  was  traveling  on  defendant's  road  on  Sunday  in  violation  of  a 
state  statute.  Numerous  Massachusetts  decisions  held  plaintiffs  own 
illegal  conduct  a  defence  in  such  cases.  The  trial  court  so  instructed 
the  jury,  and  from  a  judgment  for  defendant  this  writ  was  taken.] 

Mr.  Justice  Miller.  *  *  *  If  the  proposition,  as  established  by 
the  repeated  decisions  of  the  highest  court  of  that  state,  were  one 
which  we  ourselves  believed  to  be  a  sound  one,  there  would  be  no 
difficulty  in  agreeing  with  that  court,  and,  consequently,  affirming 
the  ruling  of  the  circuit  judge  in  the  present  case.  But  without  enter- 
ing into  the  argument  of  that  subject,  we  are  bound  to  say  that  we  do 
not  feel  satisfied,  that  upon  any  general  principles  of  law  by  which 
the  courts  that  have  adopted  the  common-law  system  are  governed, 
that  this  is  a  true  exposition  of  that  law.     *    *    * 

The  question  then  arises,  how  far  is  this  court  bound  to  follow  the 
decisions  of  the  Massachusetts  supreme  court  on  that  subject?  The 
Congress  of  the  United  States,  in  the  act  by  which  the  federal  courts 
were  organized,  enacted  that  "the  laws  of  the  several  states,  except 
where  the  Constitution,  treaties  or  statutes  of  the  United  States  oth- 
erwise require  or  provide,  shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law,  in  the  courts  of  the  United  States,  in  cases  where 
they  apply."  Rev.  St.  §  721  (U.  S.  Comp.  St.  1901,  p.  581);  Judiciary 
Act,  §  34,  1  U.  S.  St.  at  Large,  92.  This  statute  has  been  often  the 
subject  of  construction  in  this  court,  and  its  opinions  have  not  always 

Hon  not  of  local  law,  but  of  general  Jurisprudence,  upon  which  this  court,  In 
the  absence  of  express  statute  regulating  the  subject,  will  exercise  its  own 
judgment,  uncontrolled  by  the  decisions  of  the  courts  of  the  several  states" 

International  law  and  conflict  of  laws:  Dred  Scott  v.  Sandford,  19  How. 
393,  803,  IS  L.  Ed.  691  (1857]  (status  of  former  slave),  by  Curtis,  J.,  in  indi- 
vidual opinion:  Huntington  v.  Attrill,  14G  U.  S.  657,  6S3,  13  Sup.  Ct.  224,  36 
L.  Ed.  1123  (1892)  (extraterritorial  enforcement  of  penal  laws).  Compare  the 
.  Saunders,  ante,  at  pp.  801-804,  regarding  enforcement 
of  local  bankruptcy  laws  in  courts  of  other  jurisdictions. 

Chicago  v.  Robbins,  2  Black,  41S,  17  L.  Ed.  298  (1863)  (responsibility  of 
landowner  for  dangerous  area  abutting  on  highway)  would  probably  not  be 
followed  to-day.  So,  also,  Olcott  V.  Supervisors,  16  Wall.  678,  21  L.'  Ed.  382 
(1873)   ipifblic  use  for  taxation  under  state  constitution). 

state  statutes  changing  am  of  the  above  rules  of  commercial  or  general 
jurisprudence  are,  however,  bli  ling  upon  the  federal  courts.  Phlpps  v.  Hard 
m.-,  70  Fed.  468,  17  C.  0.  A.  203,  SO  L.  R,  a  513  (1895)  (negotiable  paper- 
7.  Nat  Bank,  149  r.  s.  ■_  Ct  900,  37  L 

Ed.  743  (1893)  (same);  X.  Y.  Ins.  Co.  v.  cravens.  178  I".  S.  389,  20  Sup.  CI 
982,  44  L.  Ed.  1116  (1900)  (insurance  policy);  Chic.,  etc.,  Rv.  v.  Solan.  169 
C.  s.  L88,  186,  137,  18  Sup.  Ct  289,  42  I..  Ed.  888  (1898)  (liability  of  carrier). 

Should  a  federal  court  follow  ;\  variant  local  construction  of  a  state  stat- 
ute intended  to  male  uniform  the  various  state  laws  of  negotiable  paper? 
Forrest  v.  Safety  Co.  (C.  C.)  174  Fed.  345,  34S  (1909). 


1352  THE    FEDERAL    GOVERNMENT  (Part  3 

been  expressed  in  language  that  is  entirely  harmonious.  What  are  the 
laws  of  the  several  states  which  are  to  be  regarded  "as  rules  of  deci- 
sion in  trials  at  common  law,"  is  a  subject  which  has  not  been  ascer- 
tained and  defined  with  that  uniformity  and  precision  desirable  in  a 
matter  of  such  great  importance. 

The  language  of  the  statute  limits  its  application  to  cases  of  trials 
at  common  law.  There  is,  therefore,  nothing  in  the  section  which 
requires  it  to  be  applied  to  proceedings  in  equity,1  or  in  admiralty ; 
nor  is  it  applicable  to  criminal  offenses  against  the  United  States  (see 
U.  S..v.  Reid,  12  How.  361,  13  L.  Ed.  1023),  or  where  the  Constitu- 
tion, treaties,  or  statutes  of  the  United  States  require  other  rules  of 
decision.  But  with  these,  and  some  other  exceptions  which  will  be  re- 
ferred to  presently,  it  must  be  admitted  that  it  does  provide  that  the 
laws  of  the  several  states  shall  be  received  in  the  courts  of  the  United 
States,  in  cases  where  they  apply,  as  the  rules  of  decision  in  trials  at 
common  law.  It  has  been  held  by  this  court  that  the  decisions  of  the 
highest  court  of  the  state  in  regard  to  the  validity  or  meaning  of  the 
Constitution  of  that  state,  or  its  statutes,  are  to  be  considered  as  the 
law  of  that  state,  within  the  requirement  of  this  section.     *     *     * 

It  is  also  well  settled  that  where  a  course  of  decisions,  whether 
founded  upon  statutes  or  not,  have  become  rules  of  property  as  laid 
down  by  the  highest  courts  of  the  state,  by  which  is  meant  those  rules 
governing  the  descent,  transfer,  or  sale  of  property,  and  the  rules 
which  affect  the  title  and  possession  thereto,  they  are  to  be  treated  as 
laws  of  that  state  by  the  federal  courts.  The  principle  also  applies  to 
the  rules  of  evidence.2  In  Ex  parte  Fisk,  113  U.  S.  720,  5  Sup.  Ct. 
724,  28  L.  Ed.  1117,  the  court  said:  "It  has  been  often  decided  in  this 
court  that  in  actions  at  law  in  the  courts  of  the  United   States  the 

i  The  federal  courts  follow  their  own  interpretation  of  the  general  unwrit- 
ten rules  of  equity,  Neves  v.  Seott,  13  How.  26S,  14  L.  Ed.  140  (1851) ;  and, 
so  far  as  procedure  and  the  form  of  remedies  are  concerned,  even  state  stat- 
utes are  not  compulsive  upon  this  jurisdiction  as  it  exists  uuder  present 
acts  of  Congress,  Miss.  Mills  v.  Cohn,  150  U.  S.  202,  14  Sup.  Ct.  75,  37  L.  Ed. 
1052  (lS0.r;> :  Kirby  v.  Lake  Shore,  etc.,  Ry.,  120  U.  S.  130.  7  Sup.  Ct.  430,  30 
L.  Ed.  569  (1SS7)  (statute  of  limitations  against  concealed  fraud). 

But  equity  rules  which  are  really  substantive  rules  of  right  or  property 
are  treated  by  the  federal  courts  like  other  rules  of  property  established  by 
state  statutes  or  decisions.  Fisher  v.  Shropshire,  147  TJ.  S.  133,  13  Sup.  Ct. 
201,  37  L.  Ed.  109  (1S93)  (vendor's  lien);  Dupree  v.  Mansur,  214  U.  S.  161,  29 
Sup.  Ct  54S,  53  L.  Ed.  950  (1909)  (bar  of  debt  releasing  security) ;  [but  see 
James  v.  Gray,  131  Fed.  401,  65  C.  C.  A.  3S5  (1904),  annotated  1  L.  R.  A. 
(X.  S.)  321].  And  state  statutes  altering  them  will  be  enforced  by  the  federal 
courts.  Mo.,  etc.,  Tr.  Co.  v.  Krumseig,  172  U.  S.  351,  19  Sup.  Ct.  179,  43  L. 
Ed.  474  (1S99). 

2  See  Camden,  etc.,  Ry.  v.  Stetson,  177  U.  S.  172,  20  Sup.  Ct.  617,  44  L.  Ed. 
721  (1900).  But  Congress  has  full  power  to  regulate  all  matters  touching  the 
procedure  of  the  federal  courts.  Wayman  v.  Southard,  10  Wheat.  1,  6  L. 
Ed.  253  (1825)  (process  and  execution):  Conn.  Ins.  Co.  v.  Schaefer,  94  U.  S. 
457.  24  L.  Ed.  251  (1877)  (evidence  and  competencv  of  witnesses) ;  Ex  parte 
Bisk,  113  U.  S.  713,  5  Sup.  Ct.  724,  28  L.  Ed.  1117  (1SS5)  (same,  and  rules  of 
practice) ;  Mitchell  v.  Clark,  110  TJ.  S.  633,  4  Sup.  Ct.  170,  312.  2S  L.  Ed.  279 
(18S4)  (limitation  of  actions). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  13.":: 

rules  of  evidence  and  the  law  of  evidence  generally  of  the  state  pre- 
vail in  those  courts."  See,  also,  Wilcox  v.  Hunt,  13  Pet.  378,  10  L.  Ed. 
209;   Ryan  v.  Bindley,  1  Wall.  66,  17  L.  Ed.  559. 

There  are  undoubtedly  exceptions  to  the  principle  that  the  decisions 
of  the  state  courts,  as  to  what  are  the  laws  of  that  state,  are  in  all 
cases  binding  upon  the  federal  courts.  The  case  of  Swift  v.  Tyson, 
16  Pet.  1,  10  L.  Ed.  865,  which  has  been  often  followed,  established 
the  principle  that  if  this  court  took  a  different  view  of  what  the  law 
was  in  certain  classes  of  cases  which  ought  to  be  governed  by  the  gen- 
eral principles  of  commercial  law,  from  the  state  court,  it  was  not 
bound  to  follow  the  latter.  There  is,  therefore,  a  large  field  of  juris- 
prudence left  in  which  the  question  of  how  far  the  decisions  of  state 
courts  constitute  the  law  of  those  states  is  an  embarrassing  one. 

There  is  no  common  law  of  the  United  States,3  and  yet  the  main 
body  of  the  rights  of  the  people  of  this  country  rest  upon  and  are  gov- 
erned by  principles  derived  from  the  common  law  of  England,  and 
established  as  the  laws  of  the  different  states.  Each  state  of  the 
Union  may  have  its  local  usages,  customs,  and  common  law.  Whea- 
ton  v.  Peters.  8  Pet.  591,  8  L.  Ed.  1055;  Pennsylvania  v.  Bridge  Co., 
13  How.  518,  14  L.  Ed.  249.  When,  therefore,  in  an  ordinary  trial 
in  an  action  at  law  we  speak  of  the  common  law  we  refer  to  the  law 
of  the  state  as  it  has  been  adopted  by  statute  or  recognized  by  the 
courts  as  the  foundation  of  legal  rights.  It  is  in  regard  to  decisions 
made  by  the  state  courts  in  reference  to  this  law,  and  defining  what 
is  the  law  of  the  state  as  modified  by  the  opinions  of  its  own  courts, 
by  the  statutes  of  the  state,  and  the  customs  and  habits  of  the  peo- 
ple, that  the  trouble  arises. 

It  may  be  said  generally  that  wherever  the  decisions  of  the  state 
courts  relate  to  some  law  of  a  local  character,  which  may  have  be- 
come established  by  those  courts,  or  has  always  been  a  part  of  the 
law  of  the  state,  that  the  decisions  upon  the  subject  are  usually  con- 
clusive, and  always  entitled  to  the  highest  respect  of  the  federal 
courts.  The  whole  of  this  subject  has  recently  been  very  ably  re- 
viewed in  the  case  of  Burgess  v.  Seligman,  107  U.  S.  20.  2  Sup.  Ct.  10. 
27  L.  Ed.  359.  Where  such  local  law  or  custom  has  been  established 
by  repeated  decisions  of  the  highest  courts  of  a  state  it  becomes  also 
the  law  governing  the  courts  of  the  United  States  sitting  in  that  state. 

We  are  of  opinion  that  the  adjudications  of  the  supreme  court  of 
Massachusetts,  holding  that  a  person  engaged  in  travel  on  the  Sab- 
bath  day,  contrary  to  the  statute  of  the  state,  being  thus  in  the  act 
of  violating  a  criminal  law  of  the  state,  shall  not  recover  against  a 
corporation  upon  whose  road  he  travels  for  the  negligence  of  its  serv- 
ants, thereby  establish  this  principle  as  a  local  law  of  that  state,  de- 
claring, as  they  do,  the  effect  of  its  statute  in  its  operation  upon  the 
obligation  of  the  carrier  of  p  The  decisions  on  this  sub- 

*  See  Western  Union  Co.  v.  Cnll  Co.,  ante,  p.  117S,  note. 


1354  THE   FEDERAL  GOVERNMENT  (Part  3 

jcct  by  the  Massachusetts  court  are  numerous  enough  and  of  suffi- 
ciently long  standing  to  establish  the  rule,  so  far  as  they  can  establish 
it,  and  we  think  that,  taken  in  connection  with  the  relation  which  they 
bear  to  the  statute  itself,  though  giving  an  effect  to  it  which  may  not 
meet  the  approval  of  this  court,  they  nevertheless  determine  the  law  ot 
Massachusetts  on  that  subject. 

Judgment  affirmed.4 

[Field  and  Harlan,  JJ.,  dissented.] 


GELPCKE  v.  DUBUQUE. 
(Supreme  Court  of  United  States,  1864.    1  Wall.  175,  17  h.  Ed.  520.) 

[Error  to  the  federal  District  Court  for  Iowa.  Plaintiff,  a  citizen 
of  another  state,  sued  the  city  of  Dubuque  upon  the  interest  coupons 
of  certain  bonds  issued  by  it  in  1857  for  railroad  stock  under  au- 
thority of  an  Iowa  statute.  Judgment  was  given  for  defendant,  fol- 
lowing a  decision  of  the  Iowa  Supreme  Court  in  1862  declaring  a 
similar  statute  to  be  in  violation  of  the  state  constitution.] 

Mr.  Justice  Swayne.  *  *  *  It  is  claimed  "that  the  Legislature 
of  Iowa  had  no  authority  under  the  Constitution  to  authorize  mu- 
nicipal corporations  to  purchase  stock  in  railroad  companies,  or  to 
issue  bonds  in  payment  of  such  stock."  *  *  *  All  these  objections 
have  been  fully  considered  and  repeatedly  overruled  by  the  Supreme 
Court  of  Iowa.  Dubuque  County  v.  Dubuque  &  Pacific  R.  R.  Co.,  4 
G.  Greene,  1 ;  State  v.  Bissell,  4  G.  Greene,  328 ;  Clapp  v.  Cedar) 
County,  5  Iowa,  15,  68  Am.  Dec.  678;  Ring  v.  County  of  Johnson, 
6  Iowa,  265;  McMillen  v.  Boyles,  6  Iowa,  304;  McMillen  v.  Coun- 
ty Judge  of  Lee  Co.,  6  Iowa,  393 ;  Games  v.  Robb,  8  Iowa,  193 ; 
State  v.  Board  of  Equalization  of  County  of  Johnson,  10  Iowa,  157, 
74  Am.  Dec.  381.  The  earliest  of  these  cases  was  decided  in  1853, 
the  latest  in  1859.  The  bonds  were  issued  and  put  upon  the  market 
between  the  periods  named.  These  adjudications  cover  the  entire 
ground  of  this  controversy.     They  exhaust   the  argument  upon  the 

*  Accord:    Etheridge  v.  Sperry,  139  U.  S.  266,  11  Sup.  Ct.  565,  35  L.  Ed.  171 

(1N91)  (validity  of  chattel  mortgage)  ["They  are  instruments  for  the  transfer 
of  property,  and  the  rules  for  the  transfer  of  property  are  primarily,  at 
least,  a  matter  of  state  regulation." — Id.  277] ;  Dooley  v.  Pease,  180  U.  S. 
126,  21  Sup.  Ct.  329,  45  L.  Ed.  457  (1901)  (sale  without  change  of  possession); 
Hartford  Ins.  Co.  v.  Chic,  etc.,  Ry.,  175  U.  S.  91,  100,  20  Sup.  Ct.  33,  37,  44 
L.  Ed.  84  (1899)  (contract  exempting  railway  for  negligently  igniting  a  ware- 
house on  its  right  of  way),  Gray,  J.,  saying: 

"Questions  of  public  policy  as  affecting  the  liability  for  acts  done,  or  upon 
contracts  made  and  to  be  performed,  within  one  of  the  states  of  the  Union, — 
when  not  controlled  by  the  Constitution,  laws,  or  treaties  of  the  United  States. 
or  by  the  principles  of  the  commercial  or  mercantile  law  or  of  general  juris- 
prudence, of  national  or  universal  application, — are  governed  by  the  law  of 
the  state  as  expressed  in  its  own  Constitution  and  statutes,  or  declared  by 
its  highest  court." 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1366 

subject.  We  could  add  nothing  to  what  they  contain.  We  shall  be 
governed  by  them,  unless  there  be  something  which  takes  the  case 
out  of  the  established  rule  of  this  court  upon  that  subject. 

It  is  urged  that  all  these  decisions  have  been  overruled  by  the  su- 
preme court  of  the  state,  in  the  later  case  of  the  State  of  Iowa,  ex 
relatione  v.  County  of  Wapello,  13  Iowa,  390,1  and  it  is  insisted  that 
in  cases  involving  the  construction  of  a  state  law  or  constitution, 
this  court  is  bound  to  follow  the  latest  adjudication  of  the  highest 
court  of  the  state.  Leffingwcll  v.  Warren,  2  Black,  599,  17,L.  Ed.  261, 
is  relied  upon  as  authority  for  the  proposition.  In  that  case  this 
court  said  it  would  follow  "the  latest  settled  adjudications."  Whether 
the  judgment  in  question  can,  under  the  circumstances,  be  deemed 
to  come  within  that  category,  it  is  not  now  necessary  to  determine. 
It  cannot  be  expected  that  this  court  will  follow  every  such  oscilla- 
tion, from  whatever  cause  arising,  that  may  possibly  occur.  The 
earlier  decisions,  we  think,  are  sustained  by  reason  and  authority. 
They  are  in  harmony  with  the  adjudications  of  sixteen  states  of  the 
Union.  Many  of  the  cases  in  the  other  states  are  marked  by  the  pro- 
foundest  legal  ability. 

The  late  case  in  Iowa,  and  two  other  cases  of  a  kindred  character 
in  another  state,  also  overruling  earlier  adjudications,  stand  out,  as 
far  as  we  are  advised,  in  unenviable  solitude  and  notoriety.  How- 
ever we  may  regard  the  late  case  in  Iowa  as  affecting  the  future,  it 
can  have  no  effect  upon  the  past.  "The  sound  and  true  rule  is,  that 
if  the  contract,  when  made,  was  valid  by  the  laws  of  the  state  as  then 
expounded  by  all  departments  of  the  government,  and  administered 
in  its  courts  of  justice,  its  validity  and  obligation  cannot  be  impaired 
by  any  subsequent  action  of  legislation,  or  decision  of  its  courts  alter- 
ing the  construction  of  the  law."  Ohio  Life  &  Trust  Co.  v.  Debolt,  16 
How.  432,  14  L,  Ed.  997.2 

The  same  principle  applies  where  there  is  a  change  of  judical  de- 
cision as  to  the  constitutional  power  of  the  legislature  to  enact  the 
law.  To  this  rule,  thus  enlarged,  we  adhere.  It  is  the  law  of  this 
court.  It  rests  upon  the  plainest  principles  of  justice.  To  hold  other- 
wise would  be  as  unjust  as  to  hold  that  rights  acquired  under  a  stat- 
ute may  be  lost  by  its  repeal.    The  rule  embraces  this  case.    *     *     * 

We  are  not  unmindful  of  the  importance  of  uniformity  in  the  de- 
cisions of  this  court,  and  those  of  the  highest  local  courts,  giving  con- 
structions to  the  laws  and  constitutions  of  their  own  states.  It  is  the 
settled  rule  of  this  court  in  such  cases  to  follow  the  decisions  of  the 

i  In  1S70  this  case  and  others  following  It  between  lsr;2-lS70  were  in  turn 
overruled  in  Iowa  and  the  former  rule  re-established.  Stewart  v.  Supervisors, 
::0  Iown.  0,  1  Am.  Rep.  23S. 

i  "Whatever  may  be  thought  of  the  constitutionality  of  a  statute,  if  it 
were  a  new  question,  there  may,  by  concurrence  of  legislative,  judicial,  and 
popular  action,  become  impressed  upon  bonds  issued  thereunder  an  unim- 
peachable validity."— Pleasant  Township  v.  .Etna  ins.  Co.,  138  U.  S.  67,  71, 
11  Sup   Ct  216,  34  L.  Ed.  864  (1891),  by  Brewer,  J. 


1356  THE   FEDERAL   GOVERNMENT  (Part  3 

state  courts.     But  there  have  been  heretofore,  in  the  judicial  history 
of  this  court,  as  doubtless  there  will  be  hereafter,  many  exceptional 
cases.     We  shall  never  immolate  truth,  justice,  and  the  law,  because 
a  slate  tribunal  has  erected  the  altar  and  decreed  the  sacrifice. 
Judgment  reversed. 

Mr.  Justice  Miller,  dissenting.  *  *  *  [After  referring  to  the 
general  principle  that  this  court  follows  the  constructions  placed  upon 
local  statutes  by  state  courts:]  The  only  special  charge  which  this 
court  has  over  contracts,  beyond  any  other  court,  is  to  declare  ju- 
dicially whether  the  statute  of  a  state  impairs  their  obligation.  No 
such  question  arises  here,3  for  the  plaintiff  claims  under  and  by 
virtue  of  the  statute  which  is  here  the  subject  of  discussion.  Neither 
is  there  any  question  of  the  obligation  of  contracts,  or  the  right  to 
enforce  them.  The  question  goes  behind  that.  We  are  called  upon, 
not  to  construe  a  contract,  nor  to  determine  how  one  shall  be  en- 
forced, but  to  decide  whether  there  ever  was  a  contract  made  in  the 
case.  To  assume  that  there  was  a  contract,  which  contract  is  about 
to  be  violated  by  the  decisions  of  the  state  court  of  Iowa,  is  to  beg 
the  very  question  in  dispute.  In  deciding  this  question  the  court  is 
called  upon,  as  the  court  in  Iowa  was,  to  construe  the  Constitution  of 
the  state.  It  is  a  grave  error  to  suppose  that  this  court  must,  or 
should,  determine  this  upon  any  principle  which  would  not  be  equally 
binding  on  the  courts  of  Iowa,  or  that  the  decision  should  depend 
upon  the  fact  that  certain  parties  had  purchased  bonds  which  were 
supposed  to  be  valid  contracts,  when  they  really  were  not. 

The  supreme  court  of  Iowa  is  not  the  first  or  the  only  court  which 
has  changed  its  rulings  on  questions  as  important  as  the  one  now  pre- 
sented. I  understand  the  doctrine  to  be  in  such  cases,  not  that  the 
law  is  changed,  but  that  it  was  always  the  same  as  expounded  by  the 
later  decision,  and  that  the  former  decision  was  not,  and  never  had 
been,  the  law,  and  is  overruled  for  that  very  reason.  The  decision  of 
this  court  contravenes  this  principle,  and  holds  that  the  decision  of  the 

»  There  being  no  federal  question  in  such  a  case,  because  no  effect  is  given 
to  a  statute  passed  subsequent!!/  to  the  alleged  contract,  the  federal  Supreme 
Court  has  no  jurisdiction  on  writs  of  error  to  state  courts  to  compel  the 
earlier  state  decisions  to  be  followed.  Cent.  Land  Co.  v.  Laidley,  159  U.  S. 
103,  111.  112,  16  Sup.  Ct.  80.  40  L.  Ed.  91  (1895):  Bacon  v.  Texas.  163  U.  S. 
207,  220-222.  16  Sup.  Ct.  1023,  41  L.  Ed.  132  (1S96).  The  original  jurisdiction 
federal  courts,  where  it  exists  in  such  cases,  is  based  on  diverse  eiti- 
Qip.     See,  also,  p.  384,  note  1. 

Whore  the  interpretation  of  a  state  statute  itself  forms  part  of  a  federal 
i.  then  the  Supreme  Court  construes'  it  independently  of  the  state 
courts,  even  on  writ  of  error  to  the  latter.  >.'ew  Orleans  W.  Co.  v.  La.  Sugar 
Co.,  ante.  p.  788  (statutory  contract  alleged  impaired  by  later  law);  Hunting- 
ton v.  Attrill,  140  U.  S.  657,  683.  6S4,  13  Sup.  Ct.  224,  36  L.  Ed.  1123  (1892) 
(statutory  liability  under  full  faith  and  credit  clause):  U.  S.  v.  Bellingham 
Boom  Co.,  176  TJ.  S.  211,  20  Sup.  Ct.  343,  44  L.  Ed.  437  (1900)  (state  statute 
measuring  federal  right) ;  Fauntleroy  v.  Lum,  210  U.  S.  230,  28  Sup.  Ct.  641, 
52  L.  Ed.  1039  (1908)  (jurisdiction  of  state  court  under  faith  and  credit 
clause). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1351 

court  makes  the  law,  and  in  fact,  that  the  same  statute  or  constitution 
means  one  thing  in  1853,  and  another  thing  in  1S59.  For  it  is  im- 
pliedly conceded,  that  if  these  bonds  had  been  issued  since  the  more 
recent  decision  of  the  Iowa  court,  this  court  would  nut  hoi  . 

valid.'      *      *      * 


BURGESS  v.  SELIGMAN  (18S3)  107  U.  S.  20,  33-35,  2  Sup.  Ct.  10, 
27  L.  Ed.  359.  Mr.  Justice  Bradley  (refusing,  on  error  to  a  federal 
Circuit  Court  in  .Missouri,  to  reverse  its  decision  regarding  a  statutory 
liability  of  corporate  stockholders  and  to  follow  a  contrary  decision 
of  a  state  court  subsequently  rendered) : 

do  not  consider  ourselves  bound  to  follow  the  decisions  of  the 
state  court  in  this  case.     When  the  transactions  in  controversy  oc- 
and  when  the  case  was  under  the  consideration  of  the  circuit 
court,  no  construction  of  the  statute  had  been  given  by  the  state  tri- 
bunals contrary  to  that  given  by  the  circuit  court.    The  federal  courts 
have  an  independent  jurisdiction  in  the  administration  of  state  laws. 
co-ordinate  with,  and  not  subordinate  to,  that  of  the  state  coin, 
are   bound   to   exercise    their   own  judgment  as  to  the  meanin 
effect  of  those  laws.    The  existence  of  two  co-ordinate  jurisdictions 
in  the  same  territory  is  peculiar,  and  the  results  would  be  anoi 
and  inconvenient  but  for  the  exercise  of  mutual  respect  and  defer- 
ence.    Since  the  ordinary  administration  of  the  law  is  carried  on  by 

*  It  had  previously  been  held  that  an  original  construction  of  a  state  con- 

Btitutiou  bj    the  federal  Supreme  Court,  upon  the  faith  of  which  contracts 

had  been  made,  would  not  be  overruled  as  to  such  contrails  by  the  federal 

courts,   mererj    on   account  of  a  subsequent   contrary  Interpretation   by   the 

lurts.    Rowan  v.  Runnels,  •">  How.  134,  12  U  Ed.  85  (1847). 

Bonds  aimed  under  a  contract  prior  to  the  changed  stare  decisions,  al- 
though actually  issued  later,  are  protected  in  the  federal  courts.  Taylor  v. 
rpsllantl,  105  r.  S.  60,  26  I..  Ed.  1008  (1882). 

in  Douglass  v.  rike  County.  101  U.  S.  r,77.  687,  25  L.  Ed.  968  (1880),  Walte, 
O.  .T.,  said:  "We  recognize  fully,  not  only  the  right  of  a  state  court,  bul  its 
duty  to  change  its  decisions  whenever,  in  its  Judgment,  the  necessity  arises. 

do  this  for  new  reasons,  or  because  of  a  change  of  opinion  in 
to  old  ones:  and  ordinarily  we  will  follow  them,  e  ■. 

rights  vested  before  the  change  was  made.    »    »    *    The  new  decisions  would 
be  binding  in  respect  to  all  issues  of  bonds  after  they  were  i 

-   "f  the  state  courts 
iral  courts  will  follow  the  latter.  Douglass  v.  I':' 
pervisors  v.  U.  S  .  18  Wall.  71.  21  L.  Ed.  771  11^7"):   as  they  will  also  il 
the  later  Btat  contracts  instead  of  avoiding  them,  Wade 

to..  174  U.  S.  -too,  509,  510,  19  sup.  ct.  - 
[compare  Fairfield  v.  Gallatin  Co.,  100  D.  S.  17.  25  L.  I'd.  544  (1879)1; 
'i  ho  federal  Supreme  Court  may  overrule  its  own  decisions  after  pi 
i    in   reliance   thereon,   i; 
former  error.     Roberts  v.  Lewis.  158  I'.  S.  867,  14  Sup.  Ct.  945,  3S  I..  Ed.  717 
(1894).     See.  also,  Strydam  v.  Williamson,  24  How.  il'7.  16  L.  ; 

The  doctrine  of  Gelpcke  v.  Dubuque  applies  only  in  favor  of  ri::h!< 
upon  the  faith  of  a  ruling  actually  necessary  to  the  decision  of  the 

State   ease,    not    to   mere   tticta    n<>r    i,     e    ■  i    distinguishable   '-'rounds. 

Carroll  v.  Carroll's  Lessee,  it;  How.  275,   H  1.    Ed.  936  (1S53);  Pleasant 
ship  v.  .Ktna  Ins.  Co.,  138  C.  s.  67,  II  Sup.  ct.  215,  "!  L.  Ed.  B6-J  (1 


1358  THE  FEDERAL  GOVERNMENT  (Part  3 

the  state  courts,  it  necessarily  happens  that  by  the  course  of  their 
ons  certain  rules  are  established  which  become  rules  of  property 
and  action  in  the  state,  and  have  all  the  effect  of  law,  and  which  it 
would  be  wrong  to  disturb.  This  is  especially  true  with  regard  to  the 
law  of  real  estate,  and  the  construction  of  state  Constitutions  and 
statutes.  Such  established  rules  are  always  regarded  by  the  federal 
courts,  no  less  than  by  the  state  courts  themselves,  as  authoritative 
declarations  of  what  the  law  is. 

"but  where  the  law  has  not  been  thus  settled,  it  is  the  right  and  duty 
of  the  federal  courts  to  exercise  their  own  judgment;  as  they  also 
always  do  in  reference  to  the  doctrines  of  commercial  law  and  gen- 
eral jurisprudence.  So,  when  contracts  and  transactions  have  been 
entered  into,  and  rights  have  accrued  thereon  under  a  particular  state 
of  the  decisions,  or  when  there  has  been  no  decision  of  the  state  tri- 
bunals, the  federal  courts  properly  claim  the  right  to  adopt  their  own 
interpretation  of  the  law  applicable  to  the  case,  although  a  different 
interpretation  may  be  adopted  by  the  state  courts  after  such  rights 
have  accrued.  But  even  in  such  cases,  for  the  sake  of  harmony  and 
to  avoid  confusion,  the  federal  courts  will  lean  towards  an  agreement 
of  views  with  the  state  courts  if  the  question  seems  to  them  balanced 
with  doubt.  Acting  on  these  principles,  founded  as  they  are  on  comity 
and  good  sense,  the  courts  of  the  United  States,  without  sacrificing 
their  own  dignity  as  independent  tribunals,  endeavor  to  avoid,  and 
in  most  cases  do  avoid,  any  unseemly  conflict  with  the  well-considered 
decisions  of  the  state  courts.  As,  however,  the  very  object  of  giving 
to  the  national  courts  jurisdiction  to  administer  the  laws  of  the  states 
in  controversies  between  citizens  of  different  states  was  to  institute 
independent  tribunals,  which,  it  might  be  supposed,  would  be  unaffect- 
ed by  local  prejudices  and  sectional  views,1  it  would  be  a  dereliction  of 
their  duty  not  to  exercise  an  independent  judgment  in  cases  not  fore- 
closed by  the  previous  adjudication.  *  *  *  [Here  citations  are 
given  to  all  prior  cases  in  this  court  (nearly  sixty  in  number)  bearing 
upon  the  subject.] 

"In  the  present  case,  as  already  observed,  when  the  transactions  in 
question  took  place,  and  when  the  decision  of  the  circuit  court  was 
rendered,  not  only  was  there  no  settled  construction  of  the  statute  on 
the  point  under  consideration,  but  the  Missouri  cases  referred  to 
arose  upon  the  identical  transactions  which  the  circuit  court  was  called 
upon,  and  which  we  are  now  called  upon,  to  consider.  It  can  hardly 
be  contended  that  the  federal  court  was  to  wait  for  the  state  courts 
to  decide  the  merits  of  the  controversy  and  then  simply  register  their 
decision;  or  that  the  judgment  of  the  circuit  court  should  be  reversed 
merely  because  the  state  court  has  since  adopted  a  different  view. 
If  we  could  see  fair  and  reasonable  ground  to  acquiesce  in  that  view, 

i  See  the  reasoning  of  Johnson,  J.,  in  Ogden  v.  Saunders,  ante,  at  pp.  S01- 
804. 


Ch.  20)  JURISDICTION    OF    PEDSBlXi    COUET8  1869 

we  should  gladly  do  so;  but  in  the  exercise  of  that  independent 
inent  which  it  is  our  duty  to  applj  .  we  arc  forced  to  a  dif- 

ferent conclusion."  2 

*  Accord  (Supreme  Court  will  not  reverse  lower  federal  decision  merely  on 
account  of  intervening  contrary  state  courl  decision):  Pease  v.  Peck,  18  How. 
595,  15  L.  Ed.  518  (1856)  (existence  of  statute);  Morgan  v.  Curtenius,  ->> 
Bow.  1,  15  L.  Ed.  823  (1859)  (real  property  statute);  Roberts  v.  Bolles,  101 
i  .  s.  U9,  25  L.  Ed.  880  (1880)  (municipal  bonds).  See,  however,  Bauserman 
v.  Blunt,  147  U.  S.  647,  655,  050.  13  Sup.  Ct  100,  37  L.  Ed.  316  (1S93)  (.statute 
of  limitations)  and  the  cases  there  commented  upon. 

Likewise  the  federal  courts  exercise  an  independent  Judgment  upon  state 
statutes  or  constitutions,  even  against  a  prior  state  decision,  if  the  rights  In 
litigation  became  vested  before  the  state  decision.  Stanley  Co.  v.  Coler,  190 
r.  s.  437,  23  sup.  Ct  811,  47  L.  Ed.  1120  (inn:;)  (municipal  bonds);  c;t.  South- 
ern Hotel  Co.  v.  Jones,  103  U.  S.  532,  24  Sup.  Ct.  570.  4s  I..  Ed.  778  (1904) 
(mechanics'  lien).  Quiere  as  to  the  existence  of  the  exception  apparently 
alleged  in  that  ease  at  page  546. 

in  the  New  York  Elevated  Railroad  cases  (stated  in  Sauer  v.  N.  Y.,  ante,  at 
pp.  710-748)  die  New  York  courts  held  that  an  abul  b  public  street, 

under  a  municipal  grant  containing  a  covenant  that  the  street  should  con- 
tinue as  other  streets,  had  an  easement  of  light,  air,  and  access  over  said 
street  which  could  nut  be  impaired  by  an  elevated  railroad  in  the  street, 
without  compensation.  In  a  later  .New  York  case  (173  N.  Y.  511),  66  X.  E 
558  [1903])  the  doctrine  of  the  former  cases  was  held  inapplicable  where  ,i 
railroad,  already  in  the  occupation  of  a  trench  in  a  street  which  cut 
access  across  the  street,  was  compelled  by  statute  to  elevate  its  tracks  on  a 
viaduct  30  feet  above  the  street.  Plaintiff,  who  owned  abutting  property 
originally  conveyed  to  prior  grantees  by  the  city,  with  the  abo 
covenant,  took  the  case  to  the  federal  Supreme  Court  on  writ  of  error  in 
Muhlker  v.  N.  Y.,  etc..  By.,  197  I'.  S.  541.  25  Sup.  Ct.  522,  49  I-  Ed.  872 
(1005).  In  reversing  the  state  decision,  McKenua,  J.,  said  in  this  case  at 
pages  570,  571 : 

"We  are  not  called  upon  to  discuss  the  power,  or  the  limitations  upon  the 
power,  of  the  courts  of  New  York  to  declare  rules  of  property  or  change  or 
modify  their  decisions,  but  only  to  decide  that  such  power  cannot  be  exercised 
to  take  away  rights  which  have  been  acquired  by  contract  and  have  come 
under  the  protection  of  the  Constitution  of  the  United  States.  And  vre  de- 
termine for  ourselves  the  existence  and  extent  of  such  contract.  This  is  a 
truism;  and  when  there  is  a  diversity  of  state  decisions  the  Bret  in  time 
may  constitute  the  obligation  of  the  contract  and  the  measure  of  rights  un- 
der it  Hence  the  importance  of  the  Elevated  Railroad  Cases  and  the  doc- 
trine they  had  pronounced  when  the  plaintiff  acquired  his  property.  He 
bought  under  their  assurance,  and  that  these  decisions  might  have  been  dif- 
ferent, or  that  the  plaintiff  might  have  balanced  the  chances  of  the  com- 
mercial advantage  between  the  right  to  have  the  street  remain  open  and  the 
expectation  that  it  would  remain  so,  is  too  intangible  to  estimate." 

Holmes.  .1.,  dissenting,  said  (at  pages  57,_'-576): 

"The  plaintiff's  rights,  whether  expressed  in  terms  of  property  or  of  con- 
tract, are  all  a  construction  of  the  courts,  deduced  by  way  of  consequence 
from  dedication  to  and  trusts  for  the  purposes  of  a  public  street.  They  never 
were  granted  to  him  or  his  predecessors  in  express  words  or  probably,  by  any 
.  onsdous  implication.  If  at  the  outset  the  New  York  courts  had  decided  Hint. 
apart  from  statute  or  express  grant,  the  abutters  on  a  street  had  only  the 
rights  of  the  public  and  no  private  easement  of  any  kind,  it  would  have  been 
in  no  way  amazing.  *  *  *  Again,  more  narrowly,  if  the  .New  York 
courts  had  held  that  an  easement  or  light  and  air  could  be  created  only  by 
express  words,  ami  that  the  laying  out  or  dedication  of  a  street,  or  the  grant 
of  a  bouse  bounding  upon  one,  gave  no  such  casement  to  abutters,  they  would 
not  have  been  alone  in  the  world   of  the  common   law.     »     *     • 

"If  the  decisions,  which  I  say  conceivably  might  have  been  made,  bad  been 

made  as  to  the  common   law.   they   would   have  Infringed   no    rights  under  the 

Constitution  of  the  United  States.     So  much,  1  presume,  would  he  admitted 


1300  THE   FEDERAL   GOVERNMENT  (Part  3 

by  everyone.  But,  if  that  be  admitted,  I  ask  myself  what  has  happened  to 
cut  down  the  power  of  the  same  courts  as  against  that  same  Constitution  at 
nt  day.  So  far  as  I  know  the  only  thiug  which  has -happened  is 
that  they  have  decided  the  Elevated  Railroad  Cases,  to  which  I  have  referred. 
It  is  on  that  ground  alone  that  we  are  asked  to  review  the  decision  of  the 
court  of  appeals  upon  what  otherwise  would  be  purely  a  matter  of  local  law. 
In  other  words,  we  are  asked  to  extend  to  the  present  case  the  principle  of 
e  v.  Dubuque,  1  Wall.  175,  17  L.  Ed.  520  [1864],  and  Louisiana  v.  Pils- 
bury,  105  U.  S.  278,  26  L.  Ed.  1090  [1882],  as  to  public  bonds  bought  on  the 
faith  of  a  decision  that  they  were  constitutionally  issued.  That  seems  to  me 
a  great,  unwarranted,  and  undesirable  extension  of  a  doctrine  which  it  took 
this  court  a  good  while  to  explain. 

"The  doctrine  now  is  explained,  however,  not  to  mean  that  a  change  in 
the  decision  impairs  the  obligation  of  contracts  (Burgess  v.  Seligmau,  107 
D.  S.  20,  34,  2  Sup.  Ct.  10,  27  L.  Ed.  359  [1883];  Stanly  County  v.  Coler,  190 
U.  S.  4:;7,  444.  445,  2.".  Sup.  Ct  811,  47  L.  Ed.  1126,  1131,  1132  [1903];  and 
certainly  never  has  been  supposed  to  mean  that  all  property  owners  in  a 
state  have  a  vested  right  that  no  general  proposition  of  law  shall  be  reversed, 
changed,  or  modified  by  the  courts  if  the  consequence  to  them  will  be  more 
or  less  pecuniary  loss.  I  know  of  no  constitutional  principle  to  prevent  the 
complete  reversal  of  the  Elevated  Railroad  Cases  to-morrow  if  it  should  seem 
proper  to  the  court  of  appeals.  See  Central  Land  Co.  v.  Laidley,  159  U.  S.  103, 
10  Sup.  Ct  SO,  40  L.  Ed.  91  [1S95]. 

"But  I  conceive  that  the  plaintiff  in  error  must  go  much  further  than  to  say 
that  my  last  proposition  is  wrong.  I  think  he  must  say  that  he  has  a  consti- 
tutional right,  not  only  that  the  state  courts  shall  not  reverse  their  earlier 
decisions  upon  a  matter  of  property  rights,  but  that  they  shall  not  distinguish 
them  unless  the  distinction  is  so  fortunate  as  to  strike  a  majority  of  this 
court  as  sound.  For  the  court  of  appeals  has  not  purported  to  overrule  the 
Elevated  Railroad  Cases.  It  simply  has  decided  that  the  import  and  the 
intent  of  those  eases  does  not  extend  to  the  case  at  bar.     *     *     * 

[After  referring  to  certain  distinctions  between  the  Elevated  Railroad  cases 
and  the  present  one :]  "The  foregoing  distinctions  seem  to  me  not  wanting  in 
good  sense.  »  *  *  But  I  am  not  discussing  the  question  whether  they  are 
sound.  *  •  *  I  am  considering  what  there  is  in  the  Constitution  of  the 
United  States  forbidding  the  court  of  appeals  to  hold  them  sound.  I  think 
there  is  nothing;  and  there  being  nothing,  and  the  New  York  decision  ob- 
viously not  having  been  given  its  form  for  the  purpose  of  evading  this  court, 
I  think  we  should  respect  and  affirm  it,  if  we  do  not  dismiss  the  case. 

"What  the  plaintiff  claims  is  really  property,  a  right  in  rem.  It  is  called 
contract  merely  to  bring  it  within  the  contract  clause  of  the  Constitution.  It 
seems  to  me  a  considerable  extension  of  the  power  to  determine  for  ourselves 
what  the  contract  is,  which  we  have  assumed  when  it  is  alleged  "that  the  ob- 
ligation of  a  contract  has  been  impaired,  to  say  that  we  will  make  the  same 
independent  determination  when  it  is  alleged  that  property  is  taken  without 
due  compensation.  But  it  seems  to  me  that  it  does  not  help  the  argument. 
The  rule  adopted  as  to  contract  is  simply  a  rule  to  prevent  an  evasion  of  the 
constitutional  limit  to  the  power  of  the  states,*  and,  it  seems  to  me,  should 
not  be  extended  to  a  case  like  this.  Bearing  in  mind  that,  as  I  have  said,  the 
plaintiff's  rights,  however  expressed,  are  wholly  a  construction  of  the  courts, 
I  cannot  believe  that  whenever  the  14th  Amendment,  or  article  1,  §  10,  is 
set  up,  we  are  free  to  go  behind  the  local  decisions  on  a  matter  of  land  law, 
and,  on  the  ground  that  we  decide  what  the  contract  is,  declare  rights  to  ex- 
ist which  we  should  think  ought  to  be  implied  from  a  dedication  or  location 
if  we  were  the  local  courts.  *  *  *  If  we  are  bound  by  local  decisions  as 
to  local  rights  in  real  estate,  then  we  equally  are  bound  by  the  distinctions 
and  the  limitations  of  those  rights  declared  by  the  local  courts." 


Cll.  20)  JURISDICTION   OF    PBDEEAL   COUBTS  1301 


KUHN  v,  FAIRMONT  COAL  CO. 

(Supreme  Court  of  Uuited  States,  1910.     215  D.  S.  340,  30  Sup.  Ct  140,  5  i 
L.  Ed.  228.) 

[Question  certified  from  federal  Circuit  Court  of  Appeals  for  Fourth 
Circuit.  In  1889,  Kuhn,  a  citizen  of  Ohio,  conveyed  to  one  Camden  all 
the  coal  under  a  tract  of  land  in  West  Virginia  owned  by  Kuhn,  grant- 
ing also  the  right  to  enter  said  land,  to  remove  the  coal,  and  to  make 
all  necessary  structures,  ways,  and  openings  for  this  purpose.  Cam- 
den's interest  in  said  coal  passed  to  defendant,  a  West  Virginia  corpo- 
ration, in  January,  1906,  and  the  latter  in  taking  out  the  coal  left  the 
surface  of  Kuhn's  land  unsupported  so  that  it  fell,  for  which,  on  Jan- 
uary 18,  1906,  Kuhn  sued  defendant  in  the  federal  Circuit  Court  for 
\\  est  Virginia.  A  similar  suit  had  been  brought  by  one  Griffin  in  the 
state  courts  in  1902,  which  was  decided  for  the  defendant  by  the  state 
supreme  court  in  November,  1905.  A  rehearing  was  granted,  and  on 
March  27,  1905,  final  judgment  was  given  against  Griffin.  Kuhn's 
suit  was  decided  against  him  on  demurrer  by  the  federal  court  on 
April  16,  1907,  and  he  appealed  to  the  Circuit  Court  of  Appeals.  Un- 
til the  decision  in  the  Griffin  case  there  was  no  statute,  decision,  or 
local  custom  governing  the  question  in  controversy  in  the  state.  The 
federal  appellate  court  certified  to  the  Supreme  Court  the  question 
whether,  under  these  circumstances,  it  was  bound  by  the  decision  of 
the  state  courts  in  the  Griffin  case.] 

Mr.  Justice  Harlan.  *  *  *  Was  not  the  federal  court  bound 
to  determine  the  dispute  between  the  parties  according  to  its  own  in- 
dependent judgment  as  to  what  rights  were  acquired  by  them  under 
the  contract  relating  to  the  coal?  If  the  federal  court  was  of  opinion 
that  the  coal  company  was  under  a  legal  obligation,  while  taking  out 
the  coal  in  question,  to  use  such  precautions  and  to  proceed  in  such 
way  as  not  to  destroy  or  materially  injure  the  surface  land,  was  it 
bound  to  adjudge  the  contrary  simply  because,  in  a  single  case,  to 
which  Kuhn  was  not  a  party,  and  which  was  determined  after  the 
right  of  the  present  parties  had  accrued  and  become  fixed  under  their 
contract,  and  after  the  injury  complained  of  had  occurred,  the  state 
court  took  a  different  view  of  the  law?  If,  when  the  jurisdiction  of 
the  federal  court  was  invoked,  Kuhn,  the  citizen  of  Ohio,  had,  in  its 
judgment,  a  valid  cause  of  action  against  the  coal  company  for  the 
injury  of  which  he  complained,  was  that  court  obliged  to  subordinate 
its  view  of  the  law  to  that  expressed  by  the  state  court? 

In  cases  too  numerous  to  be  here  cited,  the  general  subject  sue 
by  these  questions  has  been  considered  by  this  court.     *     *     *     [Here 
follow  quotations  from  Burgess  v.  Seligman,  ante,  p.  1357;  and  Buch- 
ei  v.  Cheshire  Ry.,  ante,  p.   1351,  and  citations  of  other  cases.] 

We  take  it,  then  that  it  is  no  longer  to  be  questioned  that  the  fed- 
Hall  Const.L. — 86 


13G2  THE  FEDERAL  GOVERNMENT  (Part  3 

eral  courts,  in  determining  cases  before  them,  are  to  be  guided  by  the 
following  rules :  1.  When  administering  state  laws  and  determining 
rights  accruing  under  those  laws,  the  jurisdiction  of  the  federal  court 
is  an  independent  one,  not  subordinate  to,  but  co-ordinate  and  concur- 
rent with,  the  jurisdiction  of  the  state  courts.  2.  Where,  before  the 
rights  of  the  parties  accrued,  certain  rules  relating  to  real  estate  have 
been  so  established  by  state  decisions  as  to  become  rules  of  property 
and  action  in  the  state,  those  rules  are  accepted  by  the  federal  court  as 
authoritative  declarations  of  the  law  of  the  state.  3.  But  where  the 
lazv  of  the  state  has  not  been  thus  settled,  it  is  not  only  the  right,  but 
the  duty,  of  the  federal  court  to  exercise  its  own  judgment,  as  it  also 
always  does  when  the  case  before  it  depends  upon  the  doctrines  of 
commercial  law  and  general  jurisprudence.  4.  So,  when  contracts  and 
transactions  are  entered  into  and  rights  have  accrued  under  a  particu- 
lar state  of  the  local  decisions,  or  ivhcn  there  has  been  no  decision  by 
the  state  court  on  the  particular  question  involved,  then  the  federal 
courts  properly  claim  the  right  to  give  effect  to  their  own  judgment 
as  to  what  is  the  law  of  the  state  applicable  to  the  case,  even  where  a 
different  view  has  been  expressed  by  the  state  court  after  the  rights  of 
parties  accriied.  But  even  in  such  cases,  for  the  sake  of  comity  and 
to  avoid  confusion,  the  federal  court  should  always  lean  to  an  agree- 
ment with  the  state  court  if  the  question  is  balanced  with  doubt. 
*     *     * 

It  would  seem  that  according  to  those  principles,  now  firmly  estab- 
lished, the  duty  was  upon  the  federal  court,  in  the  present  case, 
to  exercise  its  independent  judgment  as  to  what  were  the  relative 
rights  and  obligations  of  the  parties  under  their  written  contract.  The 
question  before  it  was  as  to  the  liability  of  the  coal  company  for  an 
injury  arising  from  the  failure  of  that  corporation,  while  mining  and 
taking  out  the  coal,  to  furnish  sufficient  support  to  the  overlying  or 
surface  land.  Whether  such  a  case  involves  a  rule  of  property  in  any 
proper  sense  of  those  terms,  or  only  a  question  of  general  law,  within 
the  province  of  the  federal  court  to  determine  for  itself,  the  fact  ex- 
ists that  there  had  been  no  determination  of  the  question  by  the  state 
court  before  the  rights  of  the  parties  accrued  and  became  fixed  under 
their  contract,  or  before  the  injury  complained  of.  In  either  case,  the 
federal  court  was  bound  under  established  doctrines  to  exercise  its 
own  independent  judgment,  with  a  leaning,  however,  as  just  suggest- 
ed, for  the  sake  of  harmony,  to  an  agreement  with  the  state  court,  if 
the  question  of  law  involved  was  deemed  to  be  doubtful.  If,  before 
the  rights  of  the  parties  in  this  case  were  fixed  by  written  contract,  it 
had  become  a  settled  rule  of  law  in  West  Virginia,  as  manifested  by 
decisions  of  its  lrghest  court,  that  the  grantee  or  his  successors  in  such 
a  deed  as  is  here  involved  was  under  no  legal  obligation  to  guard  the 
surface  land  of  the  grantor  against  injury  resulting  from  the  mining 
and  removal  of  the  coal  purchased,  a  wholly  different  question  would 
have  been  presented. 


Ch.  20)  JURISDICTION    OP    FEDERAL    COURTS  1888 

There  are  adjudged  cases  involving  the  meaning  of  written  con- 
tracts having  more  or  less  connection  with  land  that  were  not  regarded 
as  involving  a  rule  in  the  law  of  real  estate,  but  as  only  presenting 
questions  of  general  law,  touching  which  the  federal  courts  have  always 
exercised  their  own  judgment,  and  in  respect  to  which  they  are  not 
bound  to  accept  the  views  of  the  state  courts.  *  *  *  [Here  fol- 
low discussions  of  Chicago  v.  Robbins,  2  Black,  418,  17  L.  Ed.  298 
(1863);  Lane  v.  Vick,  3  How.  464,  11  L.  Ed.  681  (1845);  Foxcroft  v. 
Mallett,  4  How.  353,  11  L.  Ed.  100S  (1846);  Russell  v.  Southard,  12 
How.  139,  13  L.  Ed.  927  (1851);  Yates  v.  Milwaukee,  10  Wall.  497. 
19  L.  Ed.  984  (1871);  Louisville  Tr.  Co.  v.  Cincinnati,  76  Fed.  296, 
22  C.  C.  A.  334  (1S96);  Gt.  So.  Hotel  Co.  v.  Jones,  193  U.  S.  532.  24 
Sup.  Ct.  576,  48  L.  Ed.  778  (1904);  East  Cent.  Co.  v.  Central  Eureka 
Co.,  204  U.  S.  266,  27  Sup.  Ct.  258,  51  L.  Ed.  476  (1907);  and  Brine 
v.  Hartford  Ins.  Co.,  96  U.  S.  627,  24  L.  Ed.  858  (1878).] 

The  question  here  involved  as  to  the  scope  and  effect  of  the  writ- 
ing given  by  Kuhn  to  Camden  does  not  depend  upon  any  statute  of 
West  Virginia,  nor  upon  any  rule  established  by  a  course  of  decisions 
made  before  the  rights  of  parties  accrued.  So  that  the  words  above 
quoted  from  East  Central  Eureka  Min.  Co.  v.  Central  Eureka  Min.  Co. 
["The  construction  and  effect  of  a  conveyance  between  private  parties 
is  a  matter  as  to  which  we  follow  the  court  of  the  state"]  must  not 
be  interpreted  as  applicable  to  a  case  like  the  one  before  us,  nor  as 
denying  the  authority  and  duty  of  the  federal  court,  when  determining 
the  effect  of  conveyances  or  written  instruments  between  private  par- 
ties, citizens  of  different  states,  to  exercise  its  own  independent  judg- 
ment where  no  authoritative  state  decision  had  been  rendered  by  the 
state  court  before  the  rights  of  the  parties  accrued  and  became  fixed. 
lion  answered  in  negative. 

Mr.  Justice  Hoi.mks  [with  whom  concurred  White  and  Mc- 
Kkxxa,  JJ.],  dissenting.  This  is  a  question  of  the  title  to  real  estate. 
It  does  not  matter  in  what  form  of  action  it  arises,  the  decision  must 
be  the  same  in  an  action  of  tort  that  it  would  be  in  a  writ  of  right. 
The  title  to  real  estate  in  general  depends  upon  the  statutes  and  de- 
cisions of  the  state  within  which  it  lies.  I  think  it  a  thing  to  be  re- 
gretted if,  while  in  the  great  mass  of  cases  the  state  courts  finally  de- 
termine who  is  the  owner  of  land,  how  much  he  owns,  and  what  he 
5  by  his  deed,  the  courts  of  the  United  States,  when  by  ac- 
cident and  exception  the  same  question  comes  before  them,  do  not  fol- 
low what,  for  all  ordinary  purposes,  is  the  law. 

I  admit  that  plenty  of  language  can  be  found  in  the  earlier  cases  to 
support  the  present  decision.  That  is  not  surprising,  in  view  of  the 
uncertainty  and  vacillation  of  the  theory  upon  which  Swift  v.  Tyson, 
16  Pet.  1,  10  L.  Ed.  865  (1842)  and  the  later  extensions  of  its  doctrine, 
have  proceeded.  But  I  suppose  it  will  be  admitted  on  the  other  side 
that  even   the  independent   jurisdiction   of   the   circuit  courts   of   the 


l.'iG4  the  federal  government  (Part  3 

United  States  is  a  jurisdiction  only  to  declare  the  law,  at  least,  in 
a  case  like  the  present,  and  only  to  declare  the  law  of  the  state.  It 
is  not  an  authority  to  make  it.  Swift  v.  Tyson  was  justified  on  the 
ground  that  that  was  all  that  the  state  courts  did.  But,  as  has  been 
pointed  out  by  a  recent  accomplished  and  able  writer,  that  fiction  had 
to  be  abandoned  and  was  abandoned  when  this  court  came  to  decide 
the  municipal-bond  cases,  beginning  with  Gelpcke  v.  Dubuque,  1  Wall. 
175,  17  L.  Ed.  520  (1864).  Gray,  Nature  &  Sources  of  the  Law,  §§ 
535-550.  In  those  cases  the  court  followed  Chief  Justice  Tanev  in 
Ohio  L.  Ins.  &  T.  Co.  v.  Debolt,  16  How.  416,  14  L.  Ed.  997  (1853), 
in  recognizing  the  fact  that  decisions  of  state  courts  of  last  resort 
malce  law  for  the  state.  The  principle  is  that  a  change  of  judicial  de- 
cision after  a  contract  has  been  made  on  the  faith  of  an  earlier  one 
the  other  way  is  a  change  of  the  law. 

The  cases  of  the  class  to  which  I  refer  have  not  stood  on  the  ground 
that  this  court  agreed  with  the  first  decision,  but  on  the  ground  that 
the  state  decision  made  the  law  for  the  state,  and  therefore  should  be 
given  only  a  prospective  operation  when  contracts  had  been  entered 
into  under  the  law  as  earlier  declared.  Douglass  v.  Pike  County,  101 
U.  S.  677,  25  L.  Ed.  968  (1880);  Green  County  v.  Conness,  109  U. 
S.  104,  3  Sup.  Ct.  69,  27  L.  Ed.  872  (18S3).  In  various  instances  this 
court  has  changed  its  decision  or  rendered  different  decisions  on  sim- 
ilar facts  arising  in  different  states,  in  order  to  conform  to  what  is 
recognized  as  the  local  law.  Fairfield  v.  Gallatin  County,  100  U.  S. 
47,  25  L.  Ed.  544  (1879). 

Whether  Swift  v.  Tyson  can  be  reconciled  with  Gelpcke  v.  Du- 
buque, I  do  not  care  to  inquire.  I  assume  both  cases  to  represent 
settled  doctrines,  whether  reconcilable  or  not.  But  the  moment  you 
leave  those  principles  which  it  is  desirable  to  make  uniform  through- 
out the  United  States,  and  which  the  decisions  of  this  court  tend  to 
make  uniform,  obviously  it  is  most  undesirable  for  the  courts  of  the 
United  States  to  appear  as  interjecting  an  occasional  arbitrary  excep- 
tion to  a  rule  that  in  every  other  case  prevails.  I  never  yet  have  heard 
a  statement  of  any  reason  justifying  the  power,  and  I  find  it  hard  to 
imagine  one.  The  rule  in  Gelpcke  v.  Dubuque  gives  no  help  when  the 
contract  or  grant  in  question  has  not  been  made  on  the  faith  of  a  pre- 
vious declaration  of  law.  I  know  of  no  authority  in  this  court  to  say 
that,  in  general,  state  decisions  shall  make  law  only  for  the  future. 
Judicial  decisions  have  had  retrospective  operation  for  near  a  thousand 
years.  There  were  enough  difficulties  in  the  way,  even  in  cases  like 
Gelpcke  v.  Dubuque,  but  in  them  there  was  a  suggestion  or  smack  of 
constitutional  right.  Here  there  is  nothing  of  that  sort.  It  is  said  that 
we  must  exercise  our  independent  judgment — but  as  to  what?  Surely, 
as  to  the  law  of  the  states.  Whence  does  that  law  issue?  Certainly 
not  from  us.  But  it  does  issue,  and  has  been  recognized  by  this  court 
as  issuing,  from  the  state  courts  as  well  as  from  the  state  legislatures. 
When  we  know  what  the  source  of  the  law  has  said  that  it  shall  be, 


Ch.  20)  JURISDICTION   OF    IT.M'.K.W.   COURTS  1365 

our  authority  is  at  an  end.    The  law  of  a  state  does  not  become  some- 
thing outside  of  the  state  court,  and  independent  of  it,  by  being  called 
-nm in  law.     Whatever  it  is  called,  it  is  the  law  as  declared  by 
ite  judges,  and  nothing  else. 
If,  as    I    1)  licve,  my   reasoning  is  correct,  it  justifies  our  stopping 
when  we  come  to  a  kind  of  case  that,  by  nature  and  necessity,  is  pe- 
culiarly local,  and  one  as  to  which  the  latest  intimations,  and,  indeed, 
u  .  of  this  court  are  wholly  in  accord  with  what  I  think  to  be 
sound  law.     *     *     *     It  is  admitted  that  we  are  bound  by  a  settled 
course  of  decisions,  irrespective  of  contract,  because  they  make  the 
law.    I  see  no  reason  why  we  are  less  bound  by  a  single  one.1 

'The  federal  Circuit  Court  of  Appeals  finally  followed  the  West  Virginia 
.  l'ritchard.  J.,  saying:  "It  must  Ik-  borne  in  mind  that  the  decision 
of  the  West  Virginia  Court  of  Appeals  will  he  held  by  the  courts  of  that 
state  to  be  a  rule  of  property  in  that  state  in  all  suits  that  may  he  instituted 
between  citizens  of  said  state.  If  this  court  should  decide  otherwise,  we 
would  have  a  condition  in  that  state,  which  would  he  without  a  parallel  iu 
judicial  procedure.  Under  such  circumstances,  we  would  have  one  rule  of 
property  by  which  citizens  of  West  Virginia  would  be  governed  and  an  en- 
tirely different  rule  of  property  where  a  suit  was  instituted  by  a  nonresident 
di"  West  Virginia  in  the  federal  court.  This  would  necessarily  result  in  a 
great  injustice  and  lead  to  interminable  confusion;  and,  on  that  account,  we 
would  he  inclined  to  adopt  the  rule  of  the  West  Virginia  Supreme  Court  of 
Appeals,  even  if,  in  view  of  the  peculiar  provisions  of  the  conveyance  by 
which  the  land  in  controversy  was  transferred,  we  did  not  find  ourselves 
In  accord  with  that  tribunal." — Kuhn  v.  Fairmont  Coal  Co.,  179  Fed.  191, 
210,  102  C.  C.  A.  457  (1910).  See,  also,  Fretts  v.  Shriver  (C.  C.)  181  Fed.  279 
(1010)  (construction  of  contract  as  option  or  sale). 

Conflicting  State  and  Federal  Decisions  in  Australia.— I'nder  the 
Australian  Constitution  (§  74)  no  appeal  lies  as  of  right  to  the  British  Privy 
Council  from  the  decisions  of  the  federal  High  Court  upon  constitutional 
questions;  but,  under  the  British  Orders  in  Council  of  June  9,  1S60,  such  an 
appeal  lies  from  the  decisions  of  Australian  state  courts  upon  all  questions. 
If  a  constitutional  question  is  decided  one  way  by  the  High  Court 
other  way  by  the  Privy  Council,  and  neither  will  yield,  there  is  no  way  to 
secure  uniformity  in  future  decisions  save  by  a  federal  statute  excluding  the 
state  courts  from  all  jurisdiction  of  such  questions.  The  situation  is  pie 
larallel  to  that  existing  between  the  state  and  federal  courts  in  the 
United  States  under  the  doctrines  of  Swirt  v.  Tyson,  .into.  p.  1348;  i 
v.  Dubuque,  ante,  p.  1354;  and  the  cases  that  are  corollaries  of  these  doctrines, 
except  that  it  involves  federal  questions  Instead  of  those  of  state  law.  Such 
a  situation  arose  in  Australia  In  1904-7  regarding  the  validity  of  state  in- 
come taxation  of  a  federal  officer's  salary,  which  was  upheld  by  the  Privy 
Council  and  declared  invalid  by  the  High  Court,  until  a  federal  statute  finally 
permitted  it.    Seethe  progress  of  i  h-'  controve  all  stages  in:    Wol 

lastou's  Case,  28  Vict.  L.  K.  357  (1902);  In  re  Income  Tax  Acts,  29  Vict  L. 
l:.  7  is  (1904);  Deakin  v.  Webb,  l  Com.  I.,  l:..  5S5  (1904);  Outtrim's  Case 
[1905]   Vict.  L.  K.  463;    Webb  v.  Outrim.  11907]  A.  C.  si;    Baxter  v.  c 

L.  R.  1087  (1907);    Flint  v.  Webb,  4  Com.  T..  R.  11  lomm'rs 

v.  Baxter,  [1908]  a.  c  214  [see  Aity.  Cen.  X.  S.  Wales  v.  Collector  (1909) 
A.  C.  315J;    Chaplin  v.  Comm'r,  12  Com.  L.  R.  375  tlUll). 


1366  THE  FEDERAL  GOVERNMENT  (Part  3 


SECTION  3.— IMMUNITY  OF  SOVEREIGN  FROM  PRIVATE 
SUIT— ELEVENTH  AMENDMENT 


HANS  v.  LOUISIANA. 

(Supreme  Court  of  United  States,  1890.     134  U.  S.  1,  10  Sup.  Ct.  504,  33  L. 
Ed.  842.) 

[Error  to  the  federal  Circuit  Court  for  the  Eastern  District  of  Lou- 
isiana. In  1874  Louisiana  issued  certain  bonds,  and  by  constitutional 
amendment  pledged  the  proceeds  of  a  certain  special  tax  for  their  pay- 
ment. In  1879  the  new  state  constitution  repudiated  these  obligations 
and  forbade  state  officers  to  fulfill  them.  Hans,  a  citizen  of  Louisiana, 
sued  the  state  in  the  above  federal  court  to  recover  the  interest  due 
upon  some  of  said  bonds  held  by  him,  alleging  that  said  provisions  of 
the  new  constitution  violated  the  federal  Constitution  by  impairing  the 
obligation  of  these  bond  contracts.  The  state  denied  the  court's  juris- 
diction and  the  suit  was  dismissed.] 

Mr.  Justice  Bradley.  *  *  *  The  question  is  presented  whether 
a  state  can  be  sued  in  a  circuit  court  of  the  United  States  by  one  of 
its  own  citizens  upon  a  suggestion  that  the  case  is  one  that  arises  un- 
der the  Constitution  or  laws  of  the  United  States. 

The  ground  taken  is  that  under  the  Constitution,  as  well  as  under 
the  act  of  Congress  passed  to  carry  it  into  effect,  a  case  is  within  the 
jurisdiction  of  the  federal  courts,  without  regard  to  the  character  of 
the  parties,  if  it  arises  under  the  Constitution  or  laws  of  the  United 
States,  or,  which  is  the  same  thing,  if  it  necessarily  involves  a  question 
under  said  Constitution  or  laws.  The  language  relied  on  is  that  clause 
of  the  third  article  of  the  Constitution,  which  declares  that  "the  judi- 
cial power  of  the  United  States  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority;" 
and  the  corresponding  clause  of  the  act  conferring  jurisdiction  upon 
the  circuit  court,  which,  as  found  in  the  act  of  March  3,  1875,  is  as 
follows,  to  wit:  "That  the  circuit  courts  of  the  United  States  shall 
have  original  cognizance,  concurrent  with  the  courts  of  the  several 
states,  of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
*  *  arising  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made,  or  which  shall  be  made,  under  their  authority." 

It  is  said  that  these  jurisdictional  clauses  make  no  exception  arising 
from  the  character  of  the  parties,  and  therefore  that  a  state  can  claim 
no  exemption  from  suit,  if  the  case  is  really  one  arising  under  the  Con- 
stitution, laws,  or  treaties  of  the  United  States.  It  is  conceded  that, 
where  the  jurisdiction  depends  alone  upon  the  character  of  the  par- 


Cll.  20)  JURISDICTION    OF    FEDERAL    COURTS  1367 

ties,  a  controversy  between  a  state  and  its  own  citizens  is  not  embraced 
within  it;  but  it  is  contended  that,  though  jurisdiction  does  not  exist 
on  that  ground,  it  nevertheless  does  exist  if  the  case  itself  is  one  which 
necessarily  involves  a  federal  question;  and,  with  regard  to  ordinary 
parties,  this  is  undoubtedly  true.  The  question  now  to  be  decided  is 
whether  it  is  true  where  one  of  the  parties  is  a  state,  and  is  sued  as  a 
defendant  by  one  of  its  own  citizens. 

That  a  state  cannot  be  sued  by  a  citizen  of  another  state,  or  of  a 
foreign  state,  on  the  mere  ground  that  the  case  is  one  arising  under 
the  Constitution  or  laws  of  the  United  States,  is  clearly  established  by 
the  decisions  of  this  court  in  several  recent  cases.  Louisiana  v.  Jumel, 
107  U.  S.  711,  2  Sup.  Ct.  128.  27  L.  Ed.  448;  Hagood  v.  Southern, 
117  U.  S.  52,  6  Sup.  Ct.  608,  29  L.  Ed.  805;  In  re  Ayers,  123  U.  S. 
443,  8  Sup.  Ct.  164,  31  L.  Ed.  216.  *  *  *  This  court  held  that  the 
suits  were  virtually  against  the  states  themselves,  and  were  consequent- 
ly violative  of  the  eleventh  amendment  of  the  Constitution,  and  could 
not  be  maintained.  It  was  not  denied  that  they  presented  cases  arising 
under  the  Constitution;  but,  notwithstanding  that,  they  were  held  to 
be  prohibited  by  the  amendment  referred  to. 

In  the  present  case  the  plaintiff  in  error  contends  that  he,  being  a 
citizen  of  Louisiana,  is  not  embarrassed  by  the  obstacle  of  the  eleventh 
amendment,  inasmuch  as  that  amendment  only  prohibits  suits  against 
a  state  which  are  brought  by  the  citizens  of  another  state,  or  by  citi- 
zens or  subjects  of  a  foreign  state.  It  is  true  the  amendment  does  so 
read,  and,  if  there  were  no  other  reason  or  ground  for  abating  his  suit, 
it  might  be  maintainable ;  and  then  we  should  have  this  anomalous 
result,  that,  in  cases  arising  under  the  Constitution  or  laws  of  the 
United  States,  a  state  may  be  sued  in  the  federal  courts  by  its  own 
citizens,  though  it  cannot  be  sued  for  a  like  cause  of  action  by  the 
citizens  of  other  states,  or  of  a  foreign  state ;  and  may  be  thus  sued  in 
the  federal  courts,  although  not  allowing  itself  to  be  sued  in  its  own 
courts.  If  this  is  the  necessary  consequence  of  the  language  of  the 
Constitution  and  the  law,  the  result  is  no  less  startling  and  unexpected 
than  was  the  original  decision  of  this  court,  that,  under  the  language 
of  the  Constitution  and  of  the  judiciary  act  of  1789,  a  state  was  liable 
to  be  sued  by  a  citizen  of  another  state  or  of  a  foreign  country.  That 
decision  was  made  in  the  case  of  Chisholm  v.  Georgia,  2  Dall.  419,  1 
I..  Ed,  440,  and  created  such  a  shock  of  surprise  throughout  the  coun- 
try that,  at  the  first  meeting  of  Congress  thereafter,  the  eleventh 
amendment  to  the  Constitution  was  almost  unanimously  proposed,  and 
was  in  due  course  adopted  by  the  legislatures  of  the  states.    - 

This  amendment,  expressing  the  will  of  the  ultimate  sovereignty  of 
the  whole  country,  superior  to  all  legislatures  and  all  courts,  actually 
reversed  the  decision  of  the  supreme  court.  It  did  not  in  terms  pro- 
hibit suits  by  individuals  against  the  states,  but  declared  that  the  Con- 
stitution should  not  be  construed  to  import  any  power  to  authorize  the 


13G8  THE  FEDERAL  GOVERNMENT  (Part  3 

bringing  of  such  suits.  The  language  of  the  amendment  is  that  "the 
judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit,  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  state,  or  by  citizens  or  subjects 
of  any  foreign  state."  The  supreme  court  had  construed  the  judicial 
power  as  extending  to  such  a  suit,  and  its  decision  was  thus  overruled. 
The  court  itself  so  understood  the  effect  of  the  amendment,  for  after 
its  adoption  Attorney  General  Lee,  in  the  case  of  Hollingsworth  v. 
Virginia  (3  Dall.  378,  1  L.  Ed.  644),  submitted  this  question  to  the 
court,  "whether  the  amendment  did  or  did  not  supersede  all  suits  de- 
pending, as  well  as  prevent  the  institution  of  new  suits,  against  any 
one  of  the  United  States,  by  citizens  of  another  state."  Tilghman  and 
Rawle  argued  in  the  negative,  contending  that  the  jurisdiction  of  the 
court  was  unimpaired  in  relation  to  all  suits  instituted  previously  to 
the  adoption  of  the  amendment.  But  on  the  succeeding  day,  the  court 
delivered  an  unanimous  opinion  "that,  the  amendment  being  constitu- 
tionally adopted,  there  could  not  be  exercised  any  jurisdiction,  in  any 
case,  past  or  future,  in  which  a  state  was  sued  by  the  citizens  of  an- 
other state,  or  by  citizens  or  subjects  of  any  foreign  state." 

This  view  of  the  force  and  meaning  of  the  amendment  is  important. 
It  shows  that,  on  this  question  of  the  suability  of  the  states  by  indi- 
viduals, the  highest  authority  of  this  country  was  in  accord  rather 
with  the  minority  than  with  the  majority  of  the  court  in  the  decision 
of  the  case  of  Chisholm  v.  Georgia ;  and  this  fact  lends  additional  in- 
terest to  the  able  opinion  of  Mr.  Justice  Iredell  on  that  occasion. 
*  *  *  [He]  contended  that  it  was  not  the  intention  to  create  new 
and  unheard  of  remedies,  by  subjecting  sovereign  states  to  actions  at 
the  suit  of  individuals  (which  he  conclusively  showed  was  never  done 
before),  but  only,  by  proper  legislation,  to  invest  the  federal  courts 
with  jurisdiction  to  hear  and  determine  controversies  and  cases,  be- 
tween the  parties  designated,  that  were  properly  susceptible  of  litiga- 
tion in  courts. 

Looking  back  from  our  present  stand-point  at  the  decision  in  Chis- 
holm v.  Georgia,  we  do  not  greatly  wonder  at  the  effect  which  it  had 
upon  the  country.  Any  such  power  as  that  of  authorizing  the  federal 
judiciary  to  entertain  suits  by  individuals  against  the  states  had  been 
expressly  disclaimed,  and  even  resented,  by  the  great  defenders  of  the 
Constitution  while  it  was  on  its  trial  before  the  American  people.  As 
some  of  their  utterances  are  directly  pertinent  to  the  question  now  un- 
der consideration,  we  deem  it  proper  to  quote  them.  *  *  *  [Here 
follow  quotations  to  this  effect  from  Hamilton  in  the  Federalist,  No. 
81,  and  from  Madison  and  Marshall  in  the  Virginia  convention  of  rati- 
fication ;  3  Ell.  Deb.  533,  555.] 

It  seems  to  us  that  these  views  of  those  great  advocates  and  de- 
fenders of  the  Constitution  were  most  sensible  and  just,  and  they 
apply  equally  to  the  present  case  as  to  that  then  under  discussion. 


Ch.  20)  JURISDICTION    or    FEDERAL   COURTS  1869 

The  letter  is  appealed  to  now,  as  it  was  then,  as  a  ground  for  sus- 
taining a  suit  brought  by  an  individual  against  a  state.  The  reason 
against  it  is  as  strong  in  this  case  as  it  was  in  that.  It  is  an  attempt 
to  strain  the  Constitution  and  the  law  to  a  construction  never  imag- 
ined or  dreamed  of.  Can  we  suppose  that,  when  the  eleventh  amend- 
ment was  adopted,  it  was  understood  to  be  left  open  for  citizens 
of  a  state  to  sue  their  own  state  in  the  federal  courts,  while  the  idea 
of  suits  by  citizens  of  other  states,  or  of  foreign  states,  was  indig- 
nantly repelled?  Suppose  that  Congress,  when  proposing  the 
eleventh  amendment,  had  appended  to  it  a  proviso  that  nothing 
therein  contained  should  prevent  a  state  from  being  sued  by  its 
own  citizens  in  cases  arising  under  the  Constitution  or  laws  of  the 
United  States,  can  we  imagine  that  it  would  have  been  adopted  by 
the  states?  The  supposition  that  it  would  is  almost  an  absurdity  on 
its  face. 

The  truth  is  that  the  cognizance  of  suits  and  actions  unknown  to 
the  law,  and  forbidden  by  the  law,  was  not  contemplated  by  the 
Constitution  when  establishing  the  judicial  power  of  the  United 
States.  Some  things,  undoubtedly,  were  made  justifiable  which  were 
not  known  as  such  at  the  common  law ;  such,  for  example,  as  contro- 
versies between  states  as  to  boundary  lines,  and  other  questions  ad- 
mitting of  judicial  solution.  *  *  *  Of  other  controversies  between 
a  state  and  another  state  or  its  citizens,  which,  on  the  settled  prin 
ciples  of  public  law,  are  not  subjects  of  judicial  cognizance,  this  court 
has  often  declined  to  take  jurisdiction.  See  Wisconsin  v.  Insurance 
Co.,  127  U.  S.  265,  2S8,  289,  8  Sup.  Ct.  1370,  32  L,  Ed.  239,  and 
cases  there  cited. 

The  suability  of  a  state,  without  its  consent,  was  a  thing  unknown 
to  the  law.  This  has  been  so  often  laid  down  and  acknowledged  by 
courts  and  jurists  that  it  is  hardly  necessary  to  be  formally  asserted. 
It  was  fully  shown  by  an  exhaustive  examination  of  the  old  law  by 
Mr.  Justice  Iredell  in  his  opinion  in  Chisholm  v.  Georgia;  and  it 
has  been  conceded  in  every  case  since,  where  the  question  has,  in 
any  way,  been  presented.     *     *     * 

[After  referring  to  various  authorities  to  this  effect:]  "It  may 
be  accepted  as  a  point  of  departure  unquestioned,"  said  Mr.  Justice 
Miller  in  Cunningham  v.  Railroad  Co.,  109  U.  S.  446,  451,  3  Sup. 
Ct.  292,  609,  27  L.  Ed.  992.  "that  neither  a  state  nor  the  United 
States  can  be  sued  as  defendant  in  any  court  in  this  country  with- 
out their  consent,  except  in  the  limited  class  of  cases  in  which 
a  state  may  be  made  a  party  in  the  supreme  court  of  the  United 
by  virtue  of  the  original  jurisdiction  conferred  on  this  court 
by  the  Constitution." 

Undoubtedly  a  state  may  be  sued  by  its  own  consent,  as  was  the 
case  in  Curran  v.  Arkansas,  15  How.  304,  309,  14  L.  Ed.  705,  and 
in  Clark  v.  Barnard,  108  U.  S.  436,  447,  2  Sup.  Ct.  878,  27  L.  Ed. 
780.     The  suit   in  the   former   case   was   prosecuted   by  virtue  of  a 


1370  THE  FEDERAL   GOVERNMENT  (Part  ?> 

state  law  which  the  legislature  passed  in  conformity  to  the  Constitu- 
tion of  that  state.  But  this  court  decided,  in  Beers  v.  Arkansas,  20 
How.  527,  15  L.  Ed.  991,  that  the  state  could  repeal  that  law  at 
any  time;  that  it  was  not  a  contract  within  the  terms  of  the  Con- 
stitution prohibiting  the  passage  of  state  laws  impairing  the  obliga- 
tion of  a  contract.1     *     *     * 

To  avoid  misapprehension,  it  may  be  proper  to  add  that,  although 
the  obligations  of  a  state  rest  for  their  performance  upon  its  honor 
and  good  faith,  and  cannot  be  made  the  subjects  of  judicial  cogni- 
zance unless  the  state  consents  to  be  sued  or  comes  itself  into  court, 
yet,  where  property  or  rights  are  enjoyed  under  a  grant  or  contract 
made  by  a  state,  they  cannot  wantonly  be  invaded.  While  the  state 
cannot  be  compelled  by  suit  to  perform  its  contracts,  any  attempt 
on  its  part  to  violate  property  or  rights  acquired  under  its  contracts 
may  be  judicially  resisted,  and  any  law  impairing  the  obligation  of 
contracts  under  which  such  property  or  rights  are  held  is  void  and 
powerless  to  affect  their  enjoyment. 

It  is  not  necessary  that  we  should  enter  upon  an  examination  of 
the  reason  or  expediency  of  the  rule  which  exempts  a  sovereign 
state  from  prosecution  in  a  court  of  justice  at  the  suit  of  individuals. 
This  is  fully  discussed  by  writers  on  public  law.  It  is  enough  for 
us  to  declare  its  existence.  The  legislative  department  of  a  state 
represents  its  polity  and  its  will,  and  is  called  upon  by  the  highest 
demands  of  natural  and  political  law  to  preserve  justice  and  judg- 
ment, and  to  hold  inviolate  the  public  obligations.  Any  departure 
from  this  rule,  except  for  reasons  most  cogent,  (of  which  the  legis- 
lature, and  not  the  courts,  is  the  judge,)  never  fails  in  the  end  to  in- 
cur the  odium  of  the  world,  and  to  bring  lasting  injury  upon  the 
state  itself.  But  to  deprive  the  legislature  of  the  power  of  judging 
what  the  honor  and  safety  of  the  state  may  require,  even  at  the  ex- 
pense of  a  temporary  failure  to  discharge  the  public  debts,  would 
be  attended  with  greater  evils  than  such  failure  can  cause. 

Judgment  affirmed.2 

[Harlan,  J.,  concurred  in  the  result,  dissenting  as  to  the  disapproval 
of  Chisholm  v.  Georgia.] 

1  A  slate  may  consent  to  be  sued  in  Its  own  courts  only,  but  cannot  deny 
a  federal  review  of  any  federal  questions  involved  in  the  final  judgment  there- 
in. Smith  v.  Reeves,  178  U.  S.  436,  445,  20  Sup.  Ct.  919,  44  I.,.  Ed.  1140  (1900). 
A  state  may  waive  the  benefit  of  the  Eleventh  Amendment  Clark  v.  Barnard, 
108  U.  S.  436,  2  Sup.  Ct.  878,  27  L.  Ed.  780  (1S83). 

2  Accord:  Smith  v.  Reeves,  178  TJ.  S.  436,  20  Sup.  Ct  919,  44  L.  Ed.  1140 
(1900)  (suit  against  state  by  federal  corporation). 

For  a  discussion  of  the  history  and  principle  of  the  doctrine  that  govern- 
ment is  exempt  from  suit,  see  U.  S.  v.  Lee,  106  U.  S.  196,  205-207,  1  Sup. 
Ct.  240,  27  L.  Ed.  171  (1882) ;  and  for  English  and  American  methods  of  re- 
dressing claims  against  the  state,  see  U.  S.  v.  O'Keefe,  11  Wall.  178,  20  L. 
Ed.  131  (1871).  A  similar  exemption  is  by  the  rules  of  public  lavr  accorded 
to  sovereigns  when  sued  in  a  foreign  jurisdiction.    Mighell  v.  Sultan  of  Johore, 


Ch.  20)  JURISDICTION    OF    FEDERAL    C0UUT3  1^71 


In  re  AYERS. 

(Supreme  Court  of  United  States,   1887.     123  U.  S.  413,  8  Sup.   Ct   104,  31 
L.  Ed.  216.) 

[Petitions  for  habeas  corpus.  Virginia  issued  bonds  in  1871  and 
1879  bearing  negotiable  interest  coupons  which  the  state  contracted 
should  be  received  at  par  in  payment  of  taxes.  After  the  failure  of 
one  attempt  by  the  state  to  repudiate  these  obligations,  Cooper  and 
others,  British  aliens,  bought  $100,000  par  value  of  said  coupons  for 
$30,000,  to  sell  them  to  Virginia  tax  payers.  In  1887  a  Virginia  stat- 
ute forbade  the  acceptance  of  these  coupons  for  taxes  until  their  gen- 
uineness had  been  established  in  a  suit  for  taxes  brought  against  each 
person  who  tendered  them  in  payment  thereof,  and  the  state's  attor- 
neys were  ordered  to  bring  such  suits  against  those  who  tendered  said 
coupons.  Said  aliens  filed  a  bill  in  the  federal  Circuit  Court  for  the 
Eastern  District  of  Virginia  and  obtained  an  injunction  against  the 
bringing  of  such  suits  by  said  officers  under  this  statute.    Ayers,  the 

[1S94]  1  Q.  B.  149  (breach  of  promise  suit  against  sovereign  of  an  East  In- 
dian province  residing  In  England). 

In  Kawananakoa  v.  Polyblank,  205  V.  S.  349,  853,  354,  27  Sup.  Ct.  526,  51 
L.  Ed.  834  (1907)  the  territory  of  Hawaii,  upon  which  Congress  had  conferred 
general  legislative  powers  in  local  matters,  was  held  not  subject  to  private 
suit  without  Its  consent,  Holmes,  J.,  saying: 

"A  sovereign  Is  exempt  from  suit,  not  because  of  any  formal  conception 
of  obsolete  theory,  but  on  the  logical  and  practical  ground  that  there  can 
be  no  legal  right  as  against  the  authority  that  makes  the  law  on  which  the 
right  depends.  •  *  *  As  the  ground  Is  thus  logical  and  practical,  the 
doctrine  is  not  confined  to  powers  that  are  sovereign  in  the  full  sense  of  Ju- 
ridical theory,  but  naturally  Is  extended  to  those  that,  in  actual  administra- 
tion, originate  and  change  at  their  will  the  law  of  contract  and  property, 
from  which  persons  within  the  jurisdiction  derive  their  rights.  A  suit  pre- 
supposes that  the  defendants  are  subject  to  the  law  Invoked.  Of  course  it 
cannot  be  maintained  unless  they  are  so.  But  that  is  not  the  case  with  a 
territory  of  the  United  States,  because  the  territory  itself  is  the  fountain 
from  which  rights  ordinarily  flow.  It  is  true  that  Congress  might  intervene, 
just  as,  in  the  case  of  a  state,  the  Constitution  does,  and  the  power  that  can 
alter  the  Constitution  might.  But  the  rights  that  exist  are  nut  created  bj 
Congress  or  the  Constitution,  except  to  the  extent  of  certain  limitations  of 
power.  The  District  of  Columbia  is  different,  because  there  the  body  of 
private  rights  is  created  and  controlled  by  Congress,  and  not  by  a  legislature 
of  the  District  [Metropol.  Hy.  v.  Dist.  Col.,  132  U.  S.  1,  10  Sup.  Ct  19,  33  L. 
Ed.  l'.;i  (1SS9).]" 

The  same  has  been  held  regarding  Porto  Rico.  Porto  Rico  v.  Rosalv  y 
Castillo,  227  C.  S.  270,  n::  Sup  Ct  352,  57  L.  Ed.  —  (1013). 

The  Eleventh  Amendment  protects  only  the  states,  not  their  politic 
divisions  or  municipal  corporations.  Lincoln  Co.  v.  Lulling,  133  V.  S.  529,  10 
Sup.  Ct.  303,  31!  L.  Ed.  700  (1890).  It  does  not  exclude  the  appellate  juris- 
ts d  n  of  the  federal  Supreme  Court  over  cases  iu  which  defendants  are  sued 
by  states  in  state  courts.  Cohens  v.  Virginia,  o  Wheat  264,  5  I..  Ed.  2S7 
(1821).  Nor  does  it  prevent  a  defendant  sued  by  a  state  from  using  a  set-off 
or  counterclaim  against  the  state,  arising  out  of  an  Independent  transaction, 
where  the  state  has  contracted  that  such  a  defence  may  be  made.  Virginia 
Coupon  Cases,  ill  O.  S.  269,  300,  5  sup.  ct.  80S,  29  i..  Ed.  186  (1885);  Me- 
Gahey  v.  Virginia,  135  U.  S.  C02,  685,  10  Sup.  CL  972,  (1S90).  Compare 
Prloleau  v.  U.  S.,  2  Eq.  059  (Eng.,  1SG0). 


j;j72  THE    FEDERAL   GOVERNMENT  (Part  3 

attorney-general,  and  others,  disobeyed  this  order,  and  were  taken  into 
custody  for  contempt,  for  discharge  from  which  they  obtained  this 
writ,  alleging  the  Circuit  Court's  want  of  jurisdiction  for  its  order 
under  the  eleventh  amendment.] 

Mr.  Justice  Matthews.  *  *  *  It  must  be  regarded  as  the  set- 
tled doctrine  of  this  court,  established  by  its  recent  decisions,  "that  the 
question  whether  a  suit  is  within  the  prohibition  of  the  eleventh 
amendment  is  not  always  determined  by  reference  to  the  nominal  par- 
ties on  the  record."  Poindexter  v.  Greenhow,  114  U.  S.  270,  287,  5 
Sup.  Ct.  903,  962,  29  L.  Ed.  182.  *  *  *  [After  discussing  various 
cases:]  It  is  therefore  not  conclusive  of  the  principal  question  in  this 
case  that  the  state  of  Virginia  is  not  named  as  a  party  defendant. 
Whether  it  is  the  actual  party,  in  the  sense  of  the  prohibition  of  the 
Constitution,  must  be  determined  by  a  consideration  of  the  nature  of 
the  case  as  presented  on  the  whole  record.     *     *     * 

It  is  to  be  observed  that  the  only  personal  act  on  the  part  of  the  pe- 
titioners sought  to  be  restrained  by  the  original  order  of  June  6,  1887, 
in  pursuance  of  the  prayer  of  the  bill,  is  the  bringing  of  any  suit  un- 
der the  act  of  May  12,  1887,  against  any  person  who  had  tendered  tax- 
receivable  coupons  in  payment  of  taxes  due  to  the  state  of  Virginia. 
Any  such  suit  must,  by  the  statute,  be  brought  in  the  name  of  the  state 
and  for  its  use.  *  *  *  [Here  follow  arguments  tending  to  deny 
the  right  of  coupon-holders  to  be  free  from  suit  for  taxes,  provided 
the  tender  of  the  coupons  was  preserved  as  a  defence,  and  question- 
ing the  right  of  complainants  in  the  injunction  suit  legally  to  object  to 
the  bringing  of  such  tax  suits  against  their  assignees  of  coupons.] 

The  substance  of  the  bill  *  *  *  does  not  allege  any  grounds  of 
equitable  relief  against  the  individual  defendants  for  any  personal 
wrong  committed  or  threatened  by  them.  It  does  not  charge  against 
them  in  their  individual  character  anything  done  or  threatened  which 
constitutes,  in  contemplation  of  law,  a  violation  of  personal  or  prop- 
erty rights,  or  a  breach  of  contract  to  which  they  are  parties.  The 
relief  sought  is  against  the  defendants,  not  in  their  individual  but  in 
their  representative  capacity,  as  officers  of  the  state  of  Virginia.  The 
acts  sought  to  be  restrained  are  the  bringing  of  suits  by  the  state  of 
Virginia  in  its  own  name,  and  for  its  own  use.  If  the  state  had  been 
made  a  defendant  to  this  bill  by  name,  *  *  *  [and]  if  a  decree 
could  have  been  rendered  enjoining  the  state  from  bringing  suits 
against  its  taxpayers,  it  would  have  operated  upon  the  state  only 
through  the  officers  who  by  law  were  required  to  represent  it  in  bring- 
ing such  suits,  viz.,  the  present  defendants,  its  attorney  general,  and 
the  commonwealth's  attorneys  for  the  several  counties.  For  a  breach 
of  such  an  injunction,  these  officers  would  be  amenable  to  the  court  as 
proceeding  in  contempt  of  its  authority,  and  would  be  liable  to  punish- 
ment therefor  by  attachment  and  imprisonment. 

The  nature  of  the  case,  as  supposed,  is  identical  with  that  of  the 


Ch.  20)  JURISDICTION   OF    FEDERAL   COURTS  1373 

case  as  actually  presented  in  the  bill,  with  the  single  exception  that 
the  state  is  not  named  as  a  defendant.  How  else  can  the  state  be  for- 
bidden by  judicial  process  to  bring  actions  in  its  name,  except  by  con- 
straining the  conduct  of  its  officers,  its  attorneys,  and  its  agents?  And 
if  all  such  officers,  attorneys,  and  agents  are  personally  subjected  to 
the  process  of  the  court,  so  as  to  forbid  their  acting  in  its  behalf,  how 
can  it  be  said  that  the  state  itself  is  not  subjected  to  the  jurisdiction 
of  the  court  as  an  actual  and  real  defendant?     *     *     * 

The  principal  authority  relied  upon  to  maintain  this  proposition  is 
the  judgment  of  this  court  in  the  case  of  Osborn  v.  Bank,  9  V 
738,  6  L.  Ed.  204.  *  *  *  But  the  act  of  the  legislature  of  Ohio, 
declared  to  be  unconstitutional  and  void  in  that  case,  had  for  its  sole 
purpose  the  levy  and  collection  of  an  annual  tax  of  $50,000  upon  each 
office  of  discount  and  deposit  of  the  bank  of  the  United  States  within 
that  state,  to  be  collected,  in  case  of  refusal  to  pay,  by  the  auditor  of 
state  by  a  levy  upon  the  money,  bank-notes,  or  other  goods  and  chat- 
tels, the  property  of  the  bank;  to  seize  which  it  was  made  lawful,  un- 
der the  warrant  of  the  auditor,  for  the  person  to  whom  it  was  directed 
to  enter  the  bank  for  the  purpose  of  finding  and  seizing  property  to 
satisfy  the  same.  The  wrong  complained  of  and  sought  to  be  pre- 
vented by  the  injunction  prayed  for  was  this  threatened  seizure  of  the 
property  of  the  bank.  An  actual  seizure  thereof,  in  violation  of  the 
injunction,  was  treated  as  a  contempt  of  the  court,  for  which  the  par- 
ties were  attached,  and  the  final  decree  of  the  circuit  court  restored 
the  property  taken  to  the  possession  of  the  complainant.1     *     *     * 

The  very  ground  on  which  it  was  adjudged  not  to  be  a  suit  against 
the  state,  and  not  to  be  one  in  which  the  state  was  a  necessary  party, 
was  that  the  defendants  personally  and  individually  were  wrong-doers, 
against  whom  the  complainants  had  a  clear  right  of  action  for  the  re- 
covery of  the  property  taken,  or  its  value,  and  that,  therefore,  it  was 
a  case  in  which  no  other  parties  were  necessary.  The  right  asserted 
and  the  relief  asked  were  against  the  defendants  as  individuals.  They 
sought  to  protect  themselves  against  personal  liability  by  their  official 
character  as  representatives  of  the  state.  This  they  were  not  permit- 
ted to  do,  because  the  authority  under  which  they  professed  to  act 
was  void.     *     *     *     The  vital  principle  in  all  such  cases  is  that  the 

i  In  this  case  Marshall,  C.  J.,  said  <ri  Wheat,  at  paces  842,  843):  "The  ob- 
jection la  that,  as  the  real  party  cannot  be  brought  before  the  court,  a  suit 
cannot  be  sustained  against  the  agents  of  that  parly;  anil  cases  ha 
cited  to  show  that  a  court  of  chancery  will  not  make  a  decree  unless  all  those 
who  are  substantially  Interested  be  made  parties  to  the  suit  This  is  cer- 
tainly true  where  it  is  in  the  power  of  the  plaintiff  to  make  them  parties. 
lmt  if  the  person  who  is  the  real  principal,  the  person  who  is  the  true  source 
of  the  mischief,  by  whose  power  and  for  whose  advantage  it  is  done,  be  him- 
self above  the  law.  be  exempt  from  all  judicial  process,  it  would  be  subversive 
of  die  best  established  principles  t"  say  that  the  laws  could  not  afford  the 
same  remedies  against  the  agent  employed  in  doinc  the  wrong  which  they 
would  afford  against  him  could  his  principal  be  joined  in  the  suit.  It  is 
admitted  that  oftheprincl  mmunicated  to  the  agent." 


1374  THE  FEDERAL  GOVERNMENT  (Part  3 

defendants,  though  professing  to  act  as  officers  of  the  state,  are  threat- 
ening a  violation  of  the  personal  or  property  rights  of  the  complain- 
ant, for  which  they  are  personally  and  individually  liable.     *     *     * 

[After  quoting  from  Poindexter  v.  Greenhow,  114  U.  S.  270,  2S2, 
288,  5  Sup.  Ct.  903,  29  L.  Ed.  185:]  This  principle  is  illustrated  and 
enforced  by  the  case  of  U.  S.  v.  Lee,  106  U.  S.  196,  1  Sup.  Ct.  240, 
27  L.  Ed.  171. 2  In  that  case  the  plaintiffs  had  been  wrongfully  dis- 
possessed of  their  real  estate  by  defendants  claiming  to  act  under  the 
authority  of  the  United  States.  That  authority  could  exist  only  as  it 
was  conferred  by  law,  and  as  they  were  unable  to  show  any  lawful 
authority  under  the  United  States  it  was  held  that  there  was  nothing 
to  prevent  the  judgment  of  the  court  against  them  as  individuals,  for 
their  individual  wrong  and  trespass.  This  feature  will  be  found,  on 
an  examination,  to  characterize  every  case  where  persons  have  been 
made  defendants  for  acts  done  or  threatened  by  them  as  officers  of 
the  government,  either  of  a  state  or  of  the  United  States,  where  the 
objection  has  been  interposed  that  the  state  was  the  real  defendant, 
and  has  been  overruled.  The  action  has  been  sustained  only  in  those 
instances  where  the  act  complained  of,  considered  apart  from  the  of- 
ficial authority  alleged  as  its  justification,  and  as  the  personal  act  of 
the  individual  defendant,  constituted  a  violation  of  right  for  which  the 
plaintiff  was  entitled  to  a  remedy  at  law  or  in  equity  against  the  wrong- 
doer in  his  individual  character.3 

The  present  case  stands  upon  a  footing  altogether  different.  Ad- 
mitting all  that  is  claimed  on  the  part  of  the  complainants  as  to  the 
breach  of  its  contract  on  the  part  of  the  state  of  Virginia  by  the  acts 
of  its  general  assembly  referred  to  in  the  bill  of  complaint,  there  is 
nevertheless  no  foundation  in  law  for  the  relief  asked.  For  a  breach 
of  its  contract  by  the  state,  it  is  conceded  there  is  no  remedy  by  suit 
against  the  state  itself.  This  results  from  the  eleventh  amendment  to 
the  Constitution,  which  secures  to  the  state  immunity  from  suit  by  in- 
dividual citizens  of  other  states  or  aliens.  This  immunity  includes  not 
only  direct  actions  for  damages  for  the  breach  of  the  contract  brought 
against  the  state  by  name,  but  all  other  actions  and  suits  against  it, 
whether  at  law  or  in  equity.    A  bill  in  equity  for  the  specific  perform- 

2  The  leading  case,  the  land  being  actually  in  use,  under  orders  of  the 
President,  as  a  federal  fort  and  cemetery.  See  the  extract  from  the  opinion 
of  Miller,  J.,  printed  ante,  pp.  112,  113,  note. 

a  See,  also,  Poindexter  v.  Greenhow,  114  TJ.  S.  270,  5  Sup.  Ct.  903,  962,  29 
L.  Ed.  185  (18S5)  and  Tindal  v.  Wesley,  167  TJ.  S.  204,  17  Sup.  Ct.  770,  42 
L.  Ed.  137  (1S97).  Similar  relief  will  be  granted  where  the  injury  to  plain- 
tiffs interests  from  threatened  illegal  official  action  is  intangible.  Davis  v. 
Gray,  16  Wall.  203,  21  L.  Ed.  447  (1873)  (cloud  on  title);  Pennoyer  v.  Mc- 
Connaughy,  140  U.  S.  1,  11  Sup.  Ct  699,  35  L.  Ed.  363  (1S91)  (same); 
Board  of  Liquidation  v.  McComb,  92  U.  S.  531,  23  L.  Ed.  623  (1S76)  (mis- 
use of  certain  class  of  state  bonds) ;  Am.  Sch.  Magnetic  Healing  v.  McAn- 
nulty,  187  U.  S.  94,  23  Sup.  Ct.  33,  47  L.  Ed.  90  (1902)  (exclusion  from  mails). 
But  compare  Oregon  v.  Hitchcock,  202  U.  S.  60,  26  Sup.  Ct.  568,  50  L.  Ed. 
935  (1906). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1375 

ance  of  the  contract  against  the  state  by  name,  it  is  admitted  could  not 
be  brought.  In  Hagood  v.  Southern,  117  U.  S.  52,  6  Sup.  Ct.  608,  29 
Sup.  Ct.  805,  it  was  decided  that  in  such  a  bill,  where  the  state  was 
not  nominally  a  party  to  the  record,  brought  against  its  officers  and 
agents,  having  no  personal  interest  in  the  subject-matter  of  the  suit, 
and  defending  only  as  representing  the  state,  where  "the  things  re- 
quired by  the  decree  to  be  done  and  performed  by  them  are  the  very 
things  which,  when  done  and  performed,  constitute  a  performance  of 
the  alleged  contract  by  the  state,"  the  court  was  without  jurisdiction, 
because  it  was  a  suit  against  a  state. 

The  converse  of  that  proposition  must  be  equally  true,  because  it  is 
contained  in  it;  that  is,  a  bill,  the  object  of  which  is  by  injunction,  in- 
directly, to  compel  the  specific  performance  of  the  contract,  by  forbid- 
ding all  those  acts  and  doings  which  constitute  breaches  of  the  con- 
tract, must  also,  necessarily,  be  a  suit  against  the  state.  In  such  a  case, 
though  the  state  be  not  nominally  a  party  on  the  record,  if  the  defend- 
ants are  its  officers  and  agents,  through  whom  alone  it  can  act  in  doing 
and  refusing  to  do  the  things  which  constitute  a  breach  of  its  contract, 
the  suit  is  still,  in  substance,  though  not  in  form,  a  suit  against  the 
state.     *     *     * 

It  may  be  asked  what  is  the  true  ground  of  distinction,  so  far  as  the 
protection  of  the  Constitution  of  the  United  States  is  invoked,  be- 
tween the  contract  rights  of  the  complainant  in  such  a  suit,  and  other 
rights  of  person  and  of  property.  In  these  latter  cases  it  is  said  thai 
jurisdiction  may  be  exercised  against  individual  defendants,  notwith- 
standing the  official  character  of  their  acts,  while  in  cases  of  the 
former  description  the  jurisdiction  is  denied. 

The  distinction,  however,  is  obvious.  The  acts  alleged  in  the  bill 
as  threatened  by  the  defendants,  the  present  petitioners,  are  violations 
of  the  assumed  contract  between  the  state  of  Virginia  and  the  com- 
plainants, only  as  they  are  considered  to  be  the  acts  of  the  state  of 
Virginia.  The  defendants,  as  individuals,  not  being  parties  to  that 
contract,  are  not  capable  in  law  of  committing  a  breach  of  it.  There 
is  no  remedy  for  a  breach  of  a  contract,  actual  or  apprehended,  ex- 
cept upon  the  contract  itself,  and  between  those  who  are  by  law  par- 
ties to  it.  *  *  *  But  where  the  contract  is  between  the  individual 
and  the  state,  no  action  will  lie  against  the  state,  and  any  action 
founded  upon  it  against  defendants  who  are  officers  of  the  state,  the 
object  of  which  is  to  enforce  its  specific  performance  by  compelling 
those  things  to  be  done  by  the  defendants  which,  when  done,  would 
constitute  a  performance  by  the  state,  or  to  forbid  the  doing  of  those 
things  which,  if  done,  would  be  merely  breaches  of  the  contract  by 
the  state,  is  in  substance  a  suit  against  the  state  itself,  and  equally 
within  the  prohibition  of  the  Constitution. 

It  cannot  be  doubted  that  the  eleventh  amendment  to  the  Constitu- 
tion operates  to  create  an  important  distinction  between  contracts  of  a 


1376  THE   FEDEItAL   GOVERNMENT  (Part  3 

state  with  individuals  and  contracts  between  individual  parties.  In 
the  case  of  contracts  between  individuals,  the  remedies  for  their  en- 
forcement or  breach,  in  existence  at  the  time  they  were  entered  into, 
are  a  part  of  the  agreement  itself,  and  constitute  a  substantial  part 
of  its  obligation.  *  *  *  It  is  different  with  contracts  between  in- 
dividuals and  a  state.  In  respect  to  these,  by  virtue  of  the  eleventh 
amendment  to  the  Constitution,  there  being  no  remedy  by  a  suit 
against  the  state,  the  contract  is  substantially  without  sanction,  ex- 
cept that  which  arises  out  of  the  honor  and  good  faith  of  the  state 
itself,  and  these  are  not  subject  to  coercion.    *    *    * 

The  very  object  and  purpose  of  the  eleventh  amendment  were  to 
prevent  the  indignity  of  subjecting  a  state  to  the  coercive  process  of 
judicial  tribunals  at  the  instance  of  private  parties.  It  was  thought 
to  be  neither  becoming  nor  convenient  that  the  several  states  of  the 
Union,  invested  with  that  large  residuum  of  sovereignty  which  had 
not  been  delegated  to  the  United  States,  should  be  summoned  as  de- 
fendants to  answer  the  complaints  of  private  persons,  whether  citizens 
of  other  states  or  aliens,  or  that  the  course  of  their  public  policy  and 
the  administration  of  their  public  affairs  should  be  subject  to  and 
controlled  by  the  mandates  of  judicial  tribunals,  without  their  con- 
sent, and  in  favor  of  individual  interests.  To  secure  the  manifest 
purposes  of  the  constitutional  exemption  guarantied  by  the  eleventh 
amendment,  requires  that  it  should  be  interpreted,  not  literally  and  too 
narrowly,  but  fairly,  and  with  such  breadth  and  largeness  as  effectual- 
ly to  accomplish  the  substance  of  its  purpose.  In  this  spirit  it  must 
be  held  to  cover,  not  only  suits  brought  against  a  state  by  name,  but 
those  also  against  its  officers,  agents,  and  representatives,  where  the 
state,  though  not  named  as  such,  is,  nevertheless,  the  only  real  party 
against  which  alone  in  fact  the  relief  is  asked,  and  against  which  the 
judgment  or  decree  effectively  operates. 

But  this  is  not  intended  in  any  way  to  impinge  upon  the  principle 
which  justifies  suits  against  individual  defendants,  who,  under  color 
of  the  authority  of  unconstitutional  legislation  by  the  state,  are  guilty 
of  personal  trespasses  and  wrongs,  nor  to  forbid  suits  against  officers 
in  their  official  capacity  either  to  arrest  or  direct  their  official  action 
by  injunction  or  mandamus,4  where  such  suits  are  authorized  by  law, 
and  the  act  to  be  done  or  omitted  is  purely  ministerial,  in  the  per- 
formance or  omission  of  which  the  plaintiff  has  a  legal  interest.  *   *  * 

■»  No  mandamus  will  Issue  to  compel  state  officers  to  do  acts  in  performance 
of  contracts  repudiated  by  the  state.  Louisiana  v.  Jumel,  107  U.  S.  711,  2 
Sup.  Ct.  12S,  27  L.  Ed.  448  (1883)  (payment  of  money  out  of  state  treasury). 
See  Bradley,  J.,  dissenting,  in  Va.  Coupon  Cases,  114  U.  S.  269,  336.  337,  5 
Sup.  Ct.  903,  962,  29  L.  Ed.  185  (18S5).  But  where  the  existing  state  law, 
unrepudiated  by  de  facto  legislative  action,  Imposes  ministerial  duties  upon 
state  officers,  mandamus  proceedings  to  compel  the  performance  of  such  du- 
ties do  not  violate  the  Eleventh  Amendment.  Rolston  v.  Mo.  Fund  Com'rs, 
120  U.  S.  390,  411,  7  Sup.  Ct.  599,  30  L.  Ed.  721  (1S87).  See,  also,  Board  of 
Liquidation  v.  McComb,  92  U.  S.  531,  541,  23  L.  Ed.  623  (1876),  as  qualified 
by  the  above  cases. 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1377 

Nor  need  it  be  apprehended  that  the  construction  of  the  eleventh 
amendment,  applied  in  this  case,  will  in  anywise  embarrass  or  ob- 
struct the  execution  of  the  laws  of  the  United  States,  in  cases  where 
officers  of  a  state  are  guilty  of  acting  in  violation  of  them  under  color 
of  its  authority.  The  government  of  the  United  States,  in  the  en- 
forcement of  its  laws,  deals  with  all  persons  within  its  territorial 
jurisdiction  as  individuals  owing  obedience  to  its  authority.  The  pen- 
alties of  disobedience  may  be  visited  upon  them  without  regard  to  the 
character  in  which  they  assume  to  act,  or  the  nature  of  the  exemption 
they  may  plead  in  justification.  Nothing  can  be  interposed  between 
the  individual  and  the  obligation  he  owes  to  the  Constitution  and  laws 
of  the  United  States,  which  can  shield  or  defend  him  from  their 
just  authority,  and  the  extent  and  limits  of  that  authority  the  govern- 
ment of  the  United  States,  by  means  of  its  judicial  power,  inter- 
prets and  applies  for  itself.  If,  therefore,  an  individual,  acting  under 
the  assumed  authority  of  a  state,  as  one  of  its  officers,  and  under 
color  of  its  laws,  comes  into  conflict  with  the  superior  authority  of  a 
valid  law  of  the  United  States,  he  is  stripped  of  his  representative 
character,  and  subjected  in  his  person  to  the  consequences  of  his  in- 
dividual conduct.  The  state  has  no  power  to  impart  to  him  any  im- 
munity from  responsibility  to  the  supreme  authority  of  the  United 
States.    *     *     * 

Petitioners  discharged.6 

[Field,  J.,  gave  a  concurring  opinion,  and  Harlan,  J.,  a  dissent- 
ing one.] 

o  In  Tennoyer  v.  McConnaughy,  140  U.  S.  1,  16-18,  11  Sup.  Ct.  600.  35  T-. 
Ed.  363  (1891)  mii  Oregon  statute  had  illegally  revoked  a  contract  with  the 
Btnte  under  which  plaintiff  acquired  rights  in  certain  laud,  and  plaintiff  se- 
cured  an  Injunction  against  the  resale  of  said  land  by  the  state  land  commis- 
sioners, including  the  governor,    Lamar,  J.,  Bald: 

'The  dividing  line  between  the  eases  [permitting  suits  against  state  olli- 
cers]  and  the  class  of  cases  in  which  it  has  been  held  that  (lie  stale  is  a   party 

defendant,  and  therefore  not  suable,  by  virtue  of  the  Inhibition  contained  in 
the  eleventh  amendment  to  the  Constitution,  was  adverted  to  in  Cunning- 
bam  v.  Railroad  Co.,  where  it  was  said,  referring  to  the  case  of  Davis  v. 
Cray  |1ii  Wall.  203,  21  1,.  Kd.  447  (1873)]:  'Nor  was  there  in  that  case  any 
affirmative  relief  granted  by  i  order!  ;g  the  governor  and  land  commi 
to  perform  any  act  towards  perfecting  the  title  of  the  company.'  ion  r.  s. 
463,  454,  3  Sup.  Ct.  L'Ox.  coo,  "7  L.  Kd.  002  (1883).  Thus  holding,  by  implica- 
tion, af  least,  (hat  affirmative  relief  would  not  he  granted  against  a  state  offi- 
cer, by  ordering  him  to  do  ami  perform  acts  forbidden  by  the  law  of  this 
stale,  even  though  such  law  might  be  unconstitutional.  The  same  distinction 
was   pointed   out  in    HagOOd   v.    Southern,   which   was   held   to    be,   in   effect,   a 

suit  against  the  state,  1  it  was  said:  'A  broad  line  of  demarkatlon  sepa- 
rates from  such  cases  as  the  present,  in  which  the  decrees  require,  by  af- 
firmative official  action  on  the  part  of  the  defendants,  the  performance  of  an 
Obligation  which  belongs  to  the  state  in  its  political  capacity,  those  in  which 
actions  at  law  or  suits  in  equity  are  maintained  against  defendants  who, 
while  claiming  to  act  as  officers  of  the  state,  violate  and  Invade  the  I 
and  property  rights  of  the  plaintiffs,  under  color  of  authority  uncons 
al  and  void.-  117  V.  s.  52,  70,  <;  Sup.  ct.  616,  29  i<.  Ed.  so:,  (1886).  *  •  • 
"Ibis  suit  is  not  nominally  against  the  governor,  secretary  of  state,  and 
IIai.l  Const.L. — S7 


1378  THE   FEDERAL   GOVERNMENT  (Part  3 

CHRISTIAN  v.  ATLANTIC  &  N.  C.  R.  CO.  (1890)  133  U.  S. 
233,  241-246,  10  Sup.  Ct.  260,  262-264,  33  L.  Ed.  589,  Mr.  Justice 
Bradley  (affirming  the  dismissal  of  a  bill  by  bondholders  of  North 
Carolina  to, enforce  a  lien  given  by  the  state  upon  its  stock  in  de- 
fendant railroad  company  to  secure  said  bonds) : 

"How  the  dividends  due  to  the  state  can  be  seized  and  appropriated 
to  the  payment  "of  the  bonds,  or  how  the  stock  held  and  owned  by 
the  state  can  be  sold  and  transferred,  through  the  medium  of  a  suit 
in  equity,  without  making  the  state  a  party  to  the  suit,  it  is  difficult 
to  comprehend.  *  *  *  The  proposal  is  to  take  the  property  of  the 
state,  and  apply  it  to  the  payment  of  its  debts  due  to  the  plaintiffs, 
and  to  do  it  through  the  instrumentality  of  a  court  of  equity.  The 
ground  on  which  it  is  contended  that  this  may  be  done  is  that  the 
property  is  affected  by  a  pledge,  and  may  therefore  be  dealt  with  in 
rem.  But  a  pledge,  in  the  legal  sense,  requires  to  be  delivered  to  the 
pledgee.  He  must  have  the  possession  of  it.  He  may  then,  in  default 
of  payment  of  the  debt  for  which  the  thing  is  pledged,  sell  it,  for  the 
purpose  of  raising  the  amount,  by  merely  giving  proper  notice  to  the 
pledgeor.     *     *     * 

"The  tenth  section  of  the  act  of  1855,  relied  on  by  the  complainant 
for  creating  a  pledge,  *  *  *  in  addition  to  the  pledge  of  the  public 
faith,  declares  that  all  the  stock  held  by  the  state  in  the  Atlantic  & 
North  Carolina  Railroad  Company  shall  be  pledged  for  the  same 
purpose,  and  any  dividend  of  profit  declared  thereon  shall  be  applied 
to  the  payment  of  the  interest  on  said  bonds.  This  was  nothing 
more  than  a  promise  that  the  stock  should  be  held  and  set  apart  for  the 
payment  of  the  bonds,  and  that  the  dividends  should  be  applied  to  the 
interest.  There  was  no  actual  pledge.  It  was  no  more  of  a  pledge 
than  is  made  by  a  farmer  when  he  pledges  his  growing  crop,  or  his 

treasurer  as  such  officers,  but  against  them  collectively,  as  the  board  of  land 
commissioners.  It  must  also  be  observed  that  the  plaintiff  is  not  seeking  any 
affirmative  relief  against  the  state  or  any  of  its  officers.  He  is  not  asking 
that  the  state  be  compelled  to  issue  patents  to  him  for  the  land  he  claims 
to  have  purchased,  nor  is  he  seeking  to  compel  the  defendants  to  do  and  per- 
form any  acts  in  connection  with  the  subject-matter  of  the  controversy  requi- 
site to  complete  his  title.  All  that  he  asks  is  that  the  defendants  may  be 
restrained  and  enjoined  from  doing  certain  acts  which  he  alleges  are  viola- 
tive of  his  contract  made  with  the  state  when  he  purchased  his  lands.  He 
merely  asks  that  an  injunction  may  issue  against  them  to  restrain  them 
from  acting  under  a  statute  of  the  state  alleged  to  be  unconstitutional,  which 
acts  will  be  destructive  of  his  rights  and  privileges,  and  will  work  irrepara- 
ble damage  and  mischief  to  his  property  rights." 

Compare  also  Board  of  Liquidation  v.  McComb,  92  U.  S.  531,  23  L.  Ed.  62:'. 
(1876),  explained  in  Louisiana  v.  Jumel,  107  U.  S.  711,  725,  726,  2  Sup.  Ct. 
12S,  27  L.  Ed.  448  (1883);  and  Bradley,  J.,  dissenting,  in  Va.  Coupon  Cases, 
114  U.  S.  269,  336,  5  Sup.  Ct.  903,  962,  29  L.  Ed.  1S5  (1885). 

For  suggested  American  analogies  to  the  English  doctrine  of  ministerial 
responsibility  for  all  acts  of  the  sovereign,  see  Langford  v.  U.  S.,  101  U.  S. 
341,  25  L.  Ed.  1010  (1S80) ;  Poiudexter  v.  Greenhow,  114  U.  S.  270,  290-292, 
335,  5  Sup.  Ct.  903,  962,  29  L.  Ed.  185  (1885) ;  W.  D.  Guthrie  in  8  Col.  L.  R. 
189-198  (1908). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURT8  1379 

stock  of  cattle,  for  the  payment  of  a  debt,  without  any  delivery  there- 
of. He  does  not  use  the  word  in  its  technical,  but  in  its  popular,  sense. 
His  language  may  amount  to  a  parol  mortgage,  if  such  a  mortgage  can 
be  created;  but  that  is  all.  So,  in  this  case,  the  pledge  given  by  the 
state  in  a  statute  may  have  amounted  to  a  mortgage,  but  it  could 
amount  to  nothing  more;  and,  if  a  mortgage,  it  did  not  place  the 
mortgagee  in  possession,  but  gave  him  merely  a  naked  right  to  have 
the  property  appropriated  and  applied  to  the  payment  of  his  debt. 

"But  how  is  that  right  to  be  asserted?  If  the  mortgagor  be  a  private 
person,  the  mortgagee  may  cite  him  into  court,  and  have  a  decree  for 
the  foreclosure  and  sale  of  the  property.  The  mortgagor  or  his  as- 
Mgnee  would  be  a  necessary  party  in  such  a  proceeding.  Even  when 
absent,  beyond  the  reach  of  process,  he  must  still  be  made  a  party, 
and  at  least  constructively  cited,  by  publication  or  otherwise.  This 
is  established  by  the  authorities  before  referred  to,  and  many  more 
might  be  cited  to  the  same  effect.  The  proceeding  is  a  suit  against 
the  party  to  obtain,  by  decree  of  court,  the  benefit  of  the  mortgage 
right;  but  where  the  mortgagor  in  possession  is  a  sovereign  state  no 
such  proceeding  can  be  maintained.  The  mortgagee's  right  against 
the  state  may  be  just  as  good  and  valid,  in  a  moral  point  of  view,  as  if 
it  were  against  an  individual.  But  the  state  cannot  be  brought  into 
court,  or  sued  by  a  private  party,  without  its  consent.    *    *    * 

"There  is  a  class  of  cases,  undoubtedly,  in  which  the  interests  of  the 
state  may  be  indirectly  affected  by  a  judicial  proceeding  without  mak- 
ing it  a  party.  Cases  of  this  sort  may  arise  in  courts  of  equity,  where 
property  is  brought  under  its  jurisdiction  for  foreclosure,  or  some 
other  proceeding ;  and  the  state,  not  having  the  title  in  fee,  or  the 
possession  of  the  property,  has  some  lien  upon  it,  or  claim  against  it. 
as  a  judgment  against  the  mortgagor,  subsequent  to  the  mortgage. 
In  such  a  case  the  foreclosure  and  sale  of  the  property  will  not  be 
prevented  by  the  interest  which  the  state  has  in  it,  but  its  right  of  re- 
demption will  remain  the  same  as  before.1  Such  cases  do  not  af- 
fect the  present,  in  which  the  object  is  to  take  and  appropriate  the 
state's  property  for  the  purpose  of  satisfying  its  obligations.  The 
Siren,  7  Wall.  152,  157,  19  L.  Ed.  129;  Briggs  v.  Light  Boat,  11  Allen 
(Mass.)  158,  173. 

"It  remains  true,  therefore,  that  a  bill  will  not  lie  to  effect  a  fore- 
closure and  sale,  or  to  obtain  possession  of  property  belonging  to 
the  state ;  and  for  the  very  plain  reason  that  in  such  a  case  the  state 
is  a  necessary  party,  and  cannot  be  sued.  This  was  distinctly  held  by 
this  court  in  the  case  of  Cunningham  v.  Railroad  Co.,  109  U.  S.  446, 
3  Sup.  Ct.  292,  609,  27  L.  Ed.  '992.  *  *  *  Be  it  true  that  the 
bcnc'iiiolders  have  a  lien  on  said  dividends  and  stock,  it  is  not  a  lien 
that  can  be  enforced  without  suit,  and  that  a  suit  against  the  state. 

i  As  to  cases  of  this  class,  see,  also,  Cunningham  v.  Macon,  etc.,  Ry.,  10!) 
V.  S.  446,  451.  452,  :'.  Sup.  Ot  292,  609,  27  I.    I'M    992  flS 


13S0  THE   FEDERAL   GOVERNMENT  (Part  3 

"We  are  referred  to  a  decision  made  at  the  circuit  by  Chief  Justice 
Waite  in  the  case  of  Swasey  v.  Railroad  Co.,  1  Hughes,  17,  Fed.  Cas. 
No.  13,679,  in  which,  in  a  case  similar  to  the  present,  it  was  held  that, 
inasmuch  as  the  shares  of  stock  belonging  to  the  state  were  pledged 
for  the  payment  of  the  complainants'  bonds,  they  were  held  by  the 
railroad  company  as  trustee  for  the  bondholders  as  well  as  the  state ; 
and  that  if  the  trustee  was  a  party  to  the  suit  it  was  not  necessary 
that  the  state  should  be  a  party.2  *  *  *  [The  Chief  Justice's] 
views  in  the  Swasey  Case  seem  to  have  been  based  on  the  notion  that 
the  stock  of  the  state  was  lodged  in  the  hands  of  the  railroad  com- 
pany as  a  trustee  for  the  parties  concerned,  and  was  not  in  the  hands 
of  the  state  itself,  or  of  its  immediate  officers  and  agents.  But,  if 
the  facts  in  that  case  were  as  he  supposed  them  to  be,  the  facts  in 
the  present  case  are  certainly  different  from  that.  No  stockholder 
of  any  company  ever  had  more  perfect  possession  and  ownership  of 
his  stock  than  the  state  of  North  Carolina  has  of  the  stock  in  question. 
There  may  be  contract  claims  against  it;  but  they  are  claims  against 
the  state,  because  based  solely  on  the  contract  of  the  state,  and  not  on 
possession. 

"We  think  that  the  state  is  an  indispensable  party  to  any  pro- 
ceeding in  equity  in  which  its  property  is  sought  to  be  taken  and 
subjected  to  the  payment  of  its  obligations;  and  that  the  present 
suit  is  of  that  character,  and  cannot  be  sustained."  ' 


INTERNATIONAL  POSTAL  SUPPLY  CO.  v.  BRUCE  (1904) 
194  U.  S.  601,  605,  606,  24  Sup.  Ct:  820,  48  L.  Ed.  1134,  Mr.  Justice 
Holmes  (denying  to  the  patentee  of  a  stamp  canceling  machine  an 
injunction  against  the  use,  by  a  federal  postmaster  under  the  direc- 
tion of  the  Postoffice  Department,  of  an  infringing  machine  of  which 
the  United  States  was  a  lessee  in  possession) : 

"This  case  is  governed  by  Belknap  v.  Schild,  161  U.  S.  10,  40  L. 
Ed.  599,  16  Sup.  Ct.  443.  There  an  injunction  was  sought  against 
the  commandant  of  the  United  States  navy  yard  at  Mare  island, 
California,  and  some  of  his  subordinates,  to  prevent  the  use  of  a 
caisson  gate  in  the  dry  dock  at  that  place,  contrary  to  the  rights  of 
the  plaintiff,  as  patentee.     The  case  was  heard  on  pleas  setting  up 

2  As  to  such  a  possible  case,  see  Louisiana  v.  Jurnel,  107  U.  S.  711,  722-726, 
2  Sup.  Ct.  12S,  27  L.  Ed.  448  (1SS3),  and  Murray  v.  Wilson  Co.,  213  TJ.  S.  151, 
170,  171,  29  Sup.  Ct.  45S,  53  L.  Ed.  742  (1909). 

a  Accord  (as  to  all  private  attempts  to  secure  an  adjudication  binding  the 
sovereign  upon  a  title  alleged  to  be  held  by  a  state  or  the  United  States): 
Stanley  v.  Schwalby,  102  U.  S.  255,  16  Sup.  Ct.  754,  40  L.  Ed.  960  (1896)  (ac- 
tion of  trespass  to  try  title);  Chandler  v.  Dix,  194  D.  S.  590,  24  Sup.  Ct.  766, 
48  L.  Ed.  1129  (1904)  (bill  to  quiet  title).  The  award  of  possession  against 
agents  of  the  government  does  not  bind  the  government  itself  U  S.  v  L-ee 
106  U.  S.  196,  222,  1  Sup.  Ct.  240,  27  L.  Ed.  171  (1882) ;  Tindal  v.  Wesley  167 
U.  S.  201,  223.  17  Sup.  Ct.  770,  42  L.  Ed.  137  (1S97). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1381 

that  the  caisson  gate  was  made  and  used  by  the  United  States  for 
public  purposes,  and,  as  they  were  construed,  that  it  was  the  property 
of  the  United  States.  The  pleas  were  held  bad  as  answers  to  the 
whole  bill,  because  the  bill  also  sought  damages,  and  the  defendants 
might  be  personally  liable,  but  it  was  held  that  an  injunction  could 
not  be  granted,  and  the  bill  was  dismissed,  without  prejudice  to  an 
action  at  law.  Vavasseur  v.  Krupp,  L.  R.  9  Ch.  Div.  351,  was  cited 
for  the  proposition  which  was  made  the  turning  point  of  the  case, 
that  the  court  could  not  interfere  with  an  object  of  property  un- 
less it  had  before  it  the  person  entitled  to  the  thing,  and  this  prop- 
osition was  held  to  extend  to  an  injunction  against  the  use  of  the 
thing  as  well  as  to  a  destruction  of  it  or  to  a  removal  of  the  part 
which  infringed.  It  was  pointed  out  that  the  defendants  had  no 
personal  interest  in  the  continuance  of  the  use,  and  that,  so  far  as  the 
injunction  was  concerned,  the  suit  really  was  against  the  United 
States.  Of  course,  if  those  defendants  were  enjoined,  other  per- 
sons attempting  to  use  the  caisson  gate  would  be,  and  thus  the  in- 
junction practically  would  work  a  prohibition  against  its  use  by  the 
United  States. 

"Belknap  v.  Schild  differed  from  United  States  v.  Bee,  106  U.  S. 
196,  27  L.  Ed.  171,  1  Sup.  Ct.  240,  and  Tindal  v.  Wesley,  167  U. 
S.  204,  42  L.  Ed.  137,  17  Sup.  Ct.  770,  and  also  from  American 
School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S.  94,  47  L.  Ed. 
90,  23  Sup.  Ct.  33,  relied  on  by  the  appellant,  in  the  fact,  among  oth- 
ers, that  the  title  of  the  United  Stales  to  the  caisson  gate  was  admit- 
ted, and  therefore  the  United  Stales  was  a  necessary  party  to  a  suit 
which  was  intended  to  deprive  it  of  the  incident  of  title, — the  right  to 
use  the  gate.  As  the  United  States  could  not  be  made  a  party,  the 
suit  failed.  In  the  case  at  bar  the  United  States  is  not  the  owner 
of  (he  machines,  it  is  true,  but  it  is  a  lessee  in  possession,  for  a 
which  has  not  expired.  It  has  a  property, — a  right  in  rem, — in  the 
machines,  which,  though  less  extensive  than  absolute  ownership, 
has  the  same  incident  of  a  right  to  use  them  while  it  lasts.  This 
right  cannot  be  interfered  with  behind  its  back ;  and,  as  it  cannot  be 
made  a  party,  this  suit,  like  that  of  Belknap  v.  Schild,  must  fail. 
The  answer  to  the  question  certified  must  be  'No.'  Whether  or  not 
a  renewal  of  the  lease  could  be  enjoined  is  not  before  us." 

Mr.  Justice  Harlan   [with  whom  concurred  Picckiiam,  J.],  dis- 
senting:    *     *     * 

"The  United  Slates  is  not  here  sued,  although,  as  in  United 
v.  Lee  [stated  ante,  p.  1374,  and  note  2],  it  may  be  incidentally  af- 
by   the  result.     No   decree   is   asked   against  it.     The   suit   is 
against   Dwi  race,  who   is  proceeding  in    violation  of   the 

plaintiff's  right  of  property,  and  denies  the  power  of  any  court  to 
interfere  with  him,  solely  upon  the  ground  that  what  he  is  doing  is 
under  the  order  and  sanction  of  the  Postoffice  Department.     He  is, 


1382  THE   FEDERAL  GOVERNMENT  (Part  3 

so  to  speak,  in  the  possession  of,  and  wrongfully  using,  the  plaintiff's 
patented  invention,  and  denies  the  right  of  any  court,  by  its  man- 
datory order,  to  prevent  him  from  continuing  in  his  lawless  invasion 
of  a  right  granted  by  the  Constitution  and  laws  of  the  United 
States.     *     *     * 

"It  may  be  said  that  the  patentee  has  a  remedy  in  an  action  for 
damages  against  the  infringer.  But  clearly  such  a  remedy  is  not 
at  all  adequate  or  efficacious.  The  slightest  reflection  will  show  this. 
The  only  effectual  remedy  is  an  injunction  against  him.  *  *  * 
I  am  of  opinion  that  every  officer  of  the  government,  however  high 
his  position,  may  be  prevented  by  injunction,  operating  directly  upon 
him,  from  illegally  injuring  or  destroying  the  property  rights  of  the 
citizen ;  and  this  relief  should  more  readily  be  given  when  the  gov- 
ernment itself  cannot  be  made  a  party  of  record." 


Ex  parte  YOUNG. 

(Supreme  Court  of  United  States,  1908.     209  U.  S.  123,  28  Sup.  Ct  441,  52 
L.  Ed.  714,  13  L.  R.  A.  [N.  S.]  932,  14  Ann.  Cas.  764.) 

[Petition  for  habeas  corpus.  In  1907  Minnesota  by  statute  fixed 
certain  railway  rates  in  the  state,  a  failure  to  observe  which  by  any 
railroad  company  or  its  agents  was  heavily  punished  by  fine  and 
imprisonment.  The  day  before  the  act  took  effect,  certain  stock- 
holders of  railroads  affected  thereby  filed  bills  in  the  federal  circuit 
court  for  Minnesota  against  their  respective  railroad  companies, 
the  members  of  the  state  railroad  commission,  and  E.  T.  Young,  the 
state  attorney-general,  asking  an  injunction  against  observing  or 
attempting  to  enforce  said  rates  on  the  ground  that  they  took  prop- 
erty without  due  process  of  law  in  violation  of  the  federal  Constitu- 
tion. After  a  hearing,  a  preliminary  injunction  was  issued  against 
the  enforcement  of  said  rates,  pending  a  final  hearing.  In  violation 
of  this  order,  Young  began  a  mandamus  suit  against  the  Northern 
Pacific  Railway  to  enforce  said  rates,  and,  upon  being  committed 
for  contempt  therefor,  obtained  this  writ.] 

Mr.  Justice  Peckham.  *  *  *  We  have,  upon  this  record,  the 
case  of  an  unconstitutional  act  of  the  state  legislature  and  an  inten- 
tion by  the  attorney  general  of  the  state  to  endeavor  to  enforce  its 
provisions,  to  the  injury  of  the  company,  in  compelling  it,  at  great 
expense,  to  defend  legal  proceedings  of  a  complicated  and  unusual 
character,  and  involving  questions  of  vast  importance  to  all  employes 
and  officers  of  the  company,  as  well  as  to  the  company  itself.  The 
question  that  arises  is  whether  there  is  a  remedy  that  the  parties  in- 
terested may  resort  to,  by  going  into  a  federal  court  of  equity,  in  a 
case  involving  a  violation  of  the  federal  Constitution,  and  obtaining 
a  judicial  investigation  of  the  problem,  and,  pending  its  solution,  ob- 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1383 

tain  freedom  from  suits,  civil  or  criminal,  by  a  temporary  injunction, 
and,  if  the  question  be  finally  decided  favorably  to  the  contention  of 
the  company,  a  permanent  injunction  restraining  all  such  actions  or 
proceedings.     *     *     * 

The  objection  [is]  that  the  suit  is,  in  effect,  one  against  the  state 
of  Minnesota,  and  that  the  injunction  issued  against  the  attorney 
general  illegally  prohibits  state  action,  either  criminal  or  civil,  to  en- 
force obedience  to  the  statutes  of  the  state.  This  objection  is  to  be 
considered  with  reference  to  the  11th  and  14th  amendments  to  the 
federal  Constitution.  The  11th  amendment  prohibits  the  com- 
mencement or  prosecution  of  any  suit  against  one  of  the  United 
States  by  citizens  of  another  state  or  citizens  or  subjects  of  any 
foreign  state.  The  14th  amendment  provides  that  no  state  shall 
deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law,  nor  shall  it  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

The  case  before  the  circuit  court  proceeded  upon  the  theory  that 
the  orders  and  acts  heretofore  mentioned  would,  if  enforced,  violate 
rights  of  the  complainants  protected  by  the  latter  amendment.  We 
think  that  whatever  the  rights  of  complainants  may  be,  they  are 
iargely  founded  upon  that  amendment,  but  a  decision  of  this  case 
does  not  require  an  examination  or  decision  of  the  question  wheth- 
er its  adoption  in  any  way  altered  or  limited  the  effect  of  the  earlier 
amendment.1  We  may  assume  that  each  exists  in  full  force,  and 
that  we  must  give  to  the  11th  amendment  all  the  effect  it  naturally 
would  have,  without  cutting  it  down  or  rendering  its  meaning  any 
more  narrow  than  the  language,  fairly  interpreted,  would  warrant. 
*  *  *  [Here  follows  a  review  of  the  cases  discussed  in  In  re 
Avers  and  notes,,  ante,  p.  1371.] 

The  injunction  asked  for  in  the  Avers  Case,  123  U.  S.  [443.  8 
Sup.  Ct.  164,  31  L.  Ed.  216]  was  to  restrain  the  state  officers  from 
commencing  suits  under  the  act  of  May  12,  1887  (alleged  to  be  un- 
constitutional), in  the  name  of  the  state  and  brought  to  recover  tax- 
■  es  for  its  use,  on  the  ground  that,  if  such  suits  were  commenced, 
they  would  be  a  breach  of  a  contract  with  the  state.  The  injunction 
was  declared  illegal  because  the  suit  itself  could  not  be  entertained, 
as  it  was  one  against  the  state,  to  enforce  its  alleged  contract.  It 
was  said,  however,  that,  if  the  court  had  power  to  entertain  such  a 
suit,  it  would  have  power  to  grant  the  restraining  order  preventing 
the  commencement  of  suits.  (Page  487.)  It  was  not  stated  that 
the  suit  or  the  injunction  was  necessarily  confined  to  a  case  of  a 
threatened  direct  trespass  upon  or  injury  to  property. 

Whether  the  commencement  of  a  suit  could  ever  be  regarded  as 
an  actionable  injury  to  another,  equivalent,  in  some  cases,  to  a  tres- 

i  See  Prout  v.  Starr.  188  U.  S.  537,  548,  28  Sup.  Ct.  39S.  47  L.  Ed.  584 


1384  THE   FEDERAL   GOVERNMENT  (Part  3 

pass  such  as  is  set  forth  in  some  of  the  foregoing  cases,  has  received 
attention  in  the  rate  cases,  so  called.  *  *  *  [Here  follows  a  dis- 
cussion of  Reagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362,  14  Sup. 
Ct.  1047,  38  L.  Ed.  1014,  and  Smyth  v.  Air.es,  169  U.  S.  466,  IS  Sup. 
Ct.  41S,  42  L.  Ed.  819,  and  references  to  other  cases.] 

The  various  authorities  we  have  referred  to  furnish  ample  justifica- 
tion for  the  assertion  that  individuals  who,  as  officers  of  the  state, 
are  clothed  with  some  duty  in  regard  to  the  enforcement  of  the 
laws  of  the  state,  and  who  threaten  and  are  about  to  commence 
proceedings,  either  of  a  civil  or  criminal  nature,  to  enforce  against 
parties  affected  an  unconstitutional  act,  violating  the  federal  Consti- 
tution, may  be  enjoined  by  a  federal  court  of  equity  from  such  ac- 
tion.    *     *     * 

[After  discussing  Fitts  v.  McGhee,  172  U.  S.  516,  19  Sup.  Ct. 
269,  43  L.  Ed.  535:]  In  making  an  officer  of  the  state  a  party  de- 
fendant in  a  suit  to  enjoin  the  enforcement  of  an  act  alleged  to  be 
unconstitutional,  it  is  plain  that  such  officer  must  have  some  con- 
nection with  the  enforcement  of  the  act,  or  else  it  is  merely  making 
him  a  party  as  a  representative  of  the  state,  and  thereby  attempting 
to  make  the  state  a  party.     *     *     * 

In  the  course  of  the  opinion  in  the  Fitts  Case  the  Reagan  and 
Smyth  Cases  were  referred  to  (with  others)  as  instances  of  state  of- 
ficers specially  charged  with  the  execution  of  a  state  enactment  al- 
leged to  be  unconstitutional,  and  who  commit,  under  its  authority, 
some  specific  wrong  or  trespass,  to  the  injury  of  plaintiff's  rights. 
In  those  cases  the  only  wrong  or  injury  or  trespass  involved  was  the 
threatened  commencement  of  suits  to  enforce  the  statute  as  to  rates, 
and  the  threat  of  such  commencement  was  in  each  case  regarded  as 
sufficient  to  authorize  the  issuing  of  an  injunction  to  prevent  the 
same.  The  threat  to  commence  those  suits  under  such  circum- 
stances was  therefore  necessarily  held  to  be  equivalent  to  any  other 
threatened  wrong  or  injury  to  the  property  of  a  plaintiff  which  had 
theretofore  been  held  sufficient  to  authorize  the  suit  against  the  of- 
ficer. The  being  specially  charged  with  the  duty  to  enforce  the  stat- 
ute is  sufficiently  apparent  when  such  duty  exists  under  the  general 
authority  of  some  law,  even  though  such  authority  is  not  to  be 
round  in  the  particular  act.  It  might  exist  by  reason  of  the  general 
duties  of  the  officer  to  enforce  it  as  a  law  of  the  state.  The  offi- 
cers in  the  Fitts  Case  occupied  the  position  of  having  no  duty  at 
all  with  regard  to  the  act,  and  could  not  be  properly  made  parties 
to  the  suit  for  the  reason  stated.     *     *     * 

It  is  also  argued  that  the  only  proceeding  which  the  attorney  gen- 
eral could  take  to  enforce  the  statute,  so  far  as  his  office  is  con- 
cerned, was  one  by  mandamus,  which  would  be  commenced  by  the 
state,  in  its  sovereign  and  governmental  character,  and  that  the  right 
to  bring  such  action  is  a  necessary  attribute  of  a  sovereign  govern- 
ment.    It  is  contended  that  the  complainants  do  not  complain  and 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1385 

they  care  nothing  about  any  action  which  Mr.  Young  might  take  or 
bring  as  an  ordinary  individual,  but  that  he  was  complained  of  as 
an  officer,  to  whose  discretion  is  confided  the  use  of  the  name  of  the 
state  of  Minnesota  so  far  as  litigation  is  concerned,  and  that  when 
or  how  he  shall  use  it  is  a  matter  resting  in  his  discretion  and  cannot 
be  controlled  by  any  court. 

The  answer  to  all  this  is  the  same  as  made  in  every  case  where  an 
official  claims  to  be  acting  under  the  authority  of  the  state.     The 
act  to  be  enforced  is  alleged  to  be  unconstitutional;  and  if  it  I 
the  use  of  the  name  of  the  state  to  enforce  an  unconstitutional  act 
to  the  injury  of  complainants  is  a  proceeding  without  the  authority 
of,  and  one  which  does  not  affect,  the  state  in  its  sovereign  or 
ernmental  capacity.     It  is  simply  an  illegal  act  upon  the  part  of  a 
state  official  in  attempting,  by  the  use  of  the  name  of  the  si 
enforce  a  legislative  enactment  which   is  void  because  unconstitu- 
tional.    If  the  act  which  the  state  attorney  general  seeks  to  enforce 
be  a  violation  of  the  federal  Constitution,  the  officer,  in  proceeding 
under  such  enactment,  comes  into  conflict  with  the  superior  author- 
ity of  that  Constitution,  and  he  is  in  that  case  stripped  of  his  offi- 
cial or  representative  character  and  is  subjected  in  his  person  to  the 
consequences  of  his  individual  conduct.     *     *     * 

It  is  proper  to  add  that  the  right  to  enjoin  an  individual,  even 
though  a  state  official,  from  commencing  suits  under  circumstances 
already  slated,  does  not  include  the  power  to  restrain  a  court  from 
acting  in  any  case  brought  before  it,  either  of  a  civil  or  criminal  nature. 
nor  does  it  include  power  to  prevent  any  investigation  or  action  by  a 
grand  jury.  The  latter  body  is  part  of  the  machinery  of  a  criminal 
court,  and  an  injunction  against  a  state  court  would  be  a  violation 
of  the  whole  scheme  of  our  government.  If  an  injunction  against 
an  individual  is  disobeyed,  and  he  commences  proceedings  before  a 
grand  jury  or  in  a  court,  such  disobedience  is  personal  only,  and  the 
court  or  jury  can  proceed  without  incurring  any  penalty  on  that 
account.  The  difference  between  the  power  to  enjoin  an  individual 
from  doing  certain  things,  and  the  power  to  enjoin  courts  from  pro- 
ceeding in  their  own  way  to  exercise  jurisdiction,  is  plain,  and  no 
power  to  do  the  latter  exists  because  of  a  power  to  do  the  for- 
mer.   *    *    * 

The  difference  between  [enjoining]  an  actual  and  direct  interfer- 
ence with  tangible  property  and  the  enjoining  of  state  officers  from 
enforcing  an  unconstitutional  act,  is  not  of  a  radical  nature,  and  does 
not  extend,  in  truth,  the  jurisdiction  of  the  courts  over  the  subject- 
matter.  In  the  case  of  the  interference  with  property,  the  person 
enjoined  is  assuming  to  act  in  his  capacity  as  an  official  of  the  state. 
and  justification  for  his  interference  is  claimed  by  reason  of  his  posi- 
tion as  a  state  official.  Such  official  cannot  so  justify  when  acting 
under  an  unconstitutional  enactment  of  the  legislature.  So.  where 
the  state  official,  instead  of  directly   interfering  with   tangible  prop- 


13S6  THE  FEDERAL  GOVERNMENT  (Part  3 

erty,  is  about  to  commence  suits  which  have  for  their  object  the  en- 
forcement of  an  act  which  violates  the  federal  Constitution,  to  the 
great  and  irreparable  injury  of  the  complainants,  he  is  seeking  the 
same  justification  from  the  authority  of  the  state  as  in  other  cases. 
The  sovereignty  of  the  state  is,  in  reality,  no  more  involved  in  one 
case  than  in  the  other.  The  state  cannot,  in  either  case,  impart  to  the 
official  immunity  from  responsibility  to  the  supreme  authority  of 
the  United  States.  See  Re  Ayers,  123  U.  S.  507,  31  L.  Ed.  230,  8 
Sup.  Ct.  164.     *    *     * 

Under  the  federal  habeas  corpus  statute  (§  753,  U.  S.  Rev.  Stat. 
U.  S.  Comp.  Stat.  1901,  p.  592),  *  *  *  persons  in  the  custody  of 
state  officers  for  alleged  crimes  against  the  state  have  been  taken 
from  that  custody  and  discharged  by  a  federal  court  or  judge,  because 
the  imprisonment  was  adjudged  to  be  in  violation  of  the  federal  Con- 
stitution. The  right  to  so  discharge  has  not  been  doubted  by  this 
court,  and  it  has  never  been  supposed  there  was  any  suit  against  the 
state  by  reason  of  serving  the  writ  upon  one  of  the  officers  of  the 
state  in  whose  custody  the  person  was  found.  *  *  *  It  is  some- 
what difficult  to  appreciate  the  distinction  which,  while  admitting  that 
the  taking  of  such  a  person  from  the  custody  of  the  state  by  virtue 
of  service  of  the  writ  on  the  state  officer  in  whose  custody  he  is  found 
is  not  a  suit  against  the  state,  yet  [maintains  that]  service  of  a  writ 
on  the  attorney  general,  to  prevent  his  enforcing  an  unconstitutional 
enactment  of  a  state  legislature,  is  a  suit  against  the  state.    *     *     * 

Petition  dismissed. 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


SECTION  4.— SUITS  BY  OR  BETWEEN  STATES  AND 
UNITED  STATES 


LOUISIANA  v.  TEXAS. 

(Supreme  Court  of  United  States,  1900.     176  U.  S.   1,  20  Sup.  Ct.  251,  44  L. 
Ed.  347). 

[Original  bill  of  complaint  by  Louisiana  against  Texas,  and  Gov- 
ernor Sayers  and  Health  Officer  Blunt  of  the  latter  state,  alleging  in 
substance  a  maladministration  of  the  Texas  quarantine  laws  by  said 
officials  in  the  particulars  set  forth  in  the  opinion  below,  for  the  osten- 
sible purpose  of  preventing  the  introduction  of  yellow  fever  from  New 
Orleans ;  and  asking  an  injunction  against  said  conduct.  Demurrer 
on  the  ground  that  Louisiana  and  Texas  have  no  such  interest  in  the 
controversy  as  to  make  them  proper  parties  to  this  suit.] 

Mr.  Chief  Justice  Fuller.     *     *     *     [After  quoting  the  eleventh 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1387 

amendment:]  Referring  to  this  amendment,  Mr.  Chief  Justice  Waite, 
in  New  Hampshire  v.  Louisiana  and  New  York  v.  Louisiana,  108  U. 
S.  76,  91,  27  L.  Ed.  656,  662,  2  Sup.  Ct.  176,  184,  said:  "The  evident 
purpose  of  the  amendment,  so  promptly  proposed  and  finally  adopted, 
was  to  prohibit  all  suits  against  a  state  by  or  for  citizens  of  other 
states,  or  aliens,  without  the  consent  of  the  state  to  be  sued,  and,  in 
our  opinion,  one  state  cannot  create  a  controversy  with  another  state, 
within  the  meaning  of  that  term  as  used  in  the  judicial  clauses  of  the 
Constitution,  by  assuming  the  prosecution  of  debts  owing  by  the  other 
states  to  its  citizens." 

In  order,  then,  to  maintain  jurisdiction  of  this  bill  of  complaint  as 
against  the  state  of  Texas,  it  must  appear  that  the  controversy  to  be 
determined  is  a  controversy  arising  directly  between  the  state  of  Lou- 
isiana and  the  state  of  Texas,  and  not  a  controversy  in  vindication  of 
the  grievances  of  particular  individuals.     *     *     * 

In  the  absence  of  agreement  it  may  be  that  a  controversy  might 
arise  between  two  states  for  the  determination  of  which  the  original 
jurisdiction  of  this  court  could  be  invoked,  but  there  must  be  a  direct 
issue  between  them,  and  the  subject-matter  must  be  susceptible  of  ju- 
dicial solution.  And  it  is  difficult  to  conceive  of  a  direct  issue  between 
two  states  in  respect  of  a  matter  where  no  effort  at  accommodation 
has  been  made;  nor  can  it  be  conceded  that  it  is  within  the  judicial 
function  to  inquire  into  the  motives  of  a  state  legislature  in  passing  a 
law,  or  of  the  chief  magistrate  of  a  state  in  enforcing  it  in  the  exer- 
cise of  his  discretion  and  judgment.  Public  policy  forbids  the  imputa- 
tion to  authorized  official  action  of  any  other  than  legitimate  motives. 

As  might  be  expected  in  view  of  the  nature  of  the  jurisdiction,  the 
cases  are  few  in  which  the  aid  of  the  court  has  been  sought  in  "con- 
troversies between  two  or  more  states."  They  are  cited  in  Wisconsin 
v.  Pelican  Ins.  Co..  127  U.  S.  265,  32  L.  Ed.  239,  8  Sup.  Ct.  1370,  and 
are  chicflv  controversies  as  to  boundaries.     *    *    * 

In  Re  Debs,  158  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.  Ct.  900,  involv- 
ing a  case  in  the  circuit  court  in  which  the  United  States  had  sought 
relief  by  injunction,  it  was  observed:  "That  while  it  is  not  the  prov- 
ince of  the  government  to  interfere  in  any  mere  matter  of  private  con- 
troversy between  individuals,  or  to  use  its  great  powers  to  enforce  the 
rights  of  one  against  another,  yet,  whenever  the  wrongs  complained  of 
are  such  as  affect  the  public  at  large,  and  are  in  respect  of  matters 
which  by  the  Constitution  are  intrusted  to  the  care  of  the  nation,  and 
concerning  which  the  nation  owes  the  duty  to  all  the  citizens  of  se- 
curing to  them  their  common  rights,  then  the  mere  fact  that  tl 
eminent  has  no  pecuniary  interest  in  the  controversy  is  not  su 
to  exclude  it  from  the  courts,  or  prevent  it  from  taking  measures 
therein  to  fully  discharge  those  constitutional  duties." 

It  is  in  this  aspect  that  the  bill  before  us  is  framed.  Its  gravamen 
is  not  a  special  and  peculiar  injury  such  as  would  sustain  an  action  by 


1388  THE  FEDERAL  GOVERNMENT  (Part  3 

a  private  person,  but  the  state  of  Louisiana  presents  herself  in  the  at- 
titude of  parens  patriae,  trustee,  guardian,  or  representative  of  all  her 
citizens. 

She  does  this  from  the  point  of  view  that  the  state  of  Texas  is  in- 
tentionally absolutely  interdicting  interstate  commerce  as  respects  the 
state  of  Louisiana  by  means  of  unnecessary  and  unreasonable  quaran- 
tine regulations.  Inasmuch  as  the  vindication  of  the  freedom  of  in- 
terstate commerce  is  not  committed  to  the  state  of  Louisiana,  and  that 
state  is  not  engaged  in  such  commerce,  the  cause  of  action  mustibe  re- 
garded, not  as  involving  any  infringement  of  the  powers  of  the  state 
of  Louisiana,  or  any  special  injury  to  her  property,  but  as  asserting 
that  the  state  is  entitled  to  seek  relief  in  this  way  because  the  matters 
complained  of  affect  her  citizens  at  large.  Nevertheless,  if  the  case 
stated  is  not  one  presenting  a  controversy  between  these  states,  the 
exercise  of  original  jurisdiction  by  this  court  as  against  the  state  of 
Texas  cannot  be  maintained.     *     *     * 

The  complaint  here,  however,  is  not  that  the  laws  of  Texas  in  re- 
spect of  quarantine  are  invalid,  but  that  the  Health  officer,  by  rules  and 
regulations  framed  and  put  in  force  by  him  thereunder,  places  an  em- 
bargo in  fact  on  all  interstate  commerce  between  the  state  of  Louisi- 
ana and  the  state  of  Texas,  and  that  the  governor  permits  these  rules 
and  regulations  to  stand  and  be  enforced,  although  he  has  the  power 
to  modify  or  change  them.  The  bill  is  not  rested  merely  on  the  ground 
of  the  imposition  of  an  embargo  without  regard  to  motive,  but  charges 
that  the  rules  and  regulations  are  more  stringent  than  called  for  by 
the  particular  exigency,  and  are  purposely  framed  with  the  view  to 
benefit  the  state  of  Texas,  and  the  city  of  Galveston  in  particular,  at 
the  expense  of  the  state  of  Louisiana,  and  especially  of  the  city  of  New 
Orleans. 

But  in  order  that  a  controversy  between  states,  justiciable  in  this 
court,  can  be  held  to  exist,  something  more  must  be  put  forward  than 
that  the  citizens  of  one  state  are  injured  by  the  maladministration  of 
the  laws  of  another.  The  states  cannot  make  war,  or  enter  into  trea- 
ties, though  they  may,  with  the  consent  of  Congress,  make  compacts 
and  agreements.  When  there  is  no  agreement  whose  breach  might 
create  it,  a  controversy  between  states  does  not  arise  unless  the  action 
complained  of  is  state  action,  and  acts  of  state  officers  in  abuse  or  ex- 
cess of  their  powers  cannot  be  laid  hold  of  as  in  themselves  commit- 
ting one  state  to  a  distinct  collision  with  a  sister  state. 

In  our  judgment  this  bill  does  not  set  up  facts  which  show  that  the 
state  of  Texas  has  so  authorized  or  confirmed  the  alleged  action  of  her 
health  officer  as  to  make  it  her  own,  or  from  which  it  necessarily  fol- 
lows that  the  two  states  are  in  controversy  within  the  meaning  of  the 
Constitution. 

Finally,  we  are  unable  to  hold  that  the  bill  may  be  maintained  as 
presenting  a  case  of  controversy  "between  a  state  and  citizens  of  an- 


Ch.  20)  JURISDICTION   OF   FEDERAL   COURTS  13S9 

other  state."  Jurisdiction  over  controversies  of  that  sort  does  not  em- 
brace the  determination  of  political  questions,  and,  where  no  contro- 
versy exists  between  states,  it  is  not  for  this  court  to  restrain  the  gov- 
ernor of  a  state  in  the  discharge  of  his  executive  functions  in  a  mat- 
ter lawfully  confided  to  his  discretion  and  judgment.  Nor  can  we  ac- 
cept the  suggestion  that  the  bill  can  be  maintained  as  against  the  health 
officer  alone  on  the  theory  that  his  conduct  is  in  violation  or  in  excess 
of  a  valid  law  of  the  state,  as  the  remedy  for  that  would  clearly  lie 
with  the  state  authorities,  and  no  refusal  to  fulfill  their  duty  in  that 
regard  is  set  up.  In  truth  it  is  difficult  to  see  how  on  this  record  there 
could  be  a  controversy  between  the  state  of  Louisiana  and  the  individ- 
ual defendants  without  involving  a  controversy  between  the  states,  and 
such  a  controversy,  as  we  have  said,  is  not  presented. 

Demurrer  sustained.1 

[White,  J.,  concurred  in  the  result,  and  Harlan  and  Brown,  JJ., 
gave  concurring  opinions.] 

i  In  Xew  Hampshire  v.  Louisiana  and  Now  York  v.  Louisiana,  cited  in  the 
principal  case,  the  plaintiff  states  accepted  voluntary  assignments  of  bond 
claims  against  defendant  state  held  by  their  citizens,  and  Hie  suits  brought 
li  eri  on  were  entirely  controlled  and  paid  for  by  the  assignors,  to  whom  the 
plaintiff  states  had  agreed  any  recoveries  should  be  paid.  In  his  opinion, 
Waite,  C.  .1.,  said  (108  U.  S.  at  89-91): 

"It    is  contended,    however,    that,    notwithstanding   the   prohibition   of   the 
amendment,  the  states  may  prosecute  the  suits,  because,  as  the  ' 
and  trustee  of  its  citizens,'  a  state  is  'clothed  with  the  right  and  faculty  of 
making  an  Imperative  demand  upon  another  independent  state  for  the  pay- 
ment of  debts  which  it  owes  to  citizens  of  the  former.'     There  is  no  donbt 
but  one  nation  may,  if  it  sees  fit,  demand  of  another  nation  the  paymei 
debt  owing  by  the  latter  to  a  citizen  of  the  former.    Such  power  is  well  recog- 
nized as  an  incident  of  national  sovereignty,  but  it  involves  also  the  o 
powers  of  levying  war  and  making  treaties.     As  was  said  In  0.  S.  v. 
man,  '.'-   V.  S.   524,  28   L.   Kd.  742,   it'  a   sovereign  assumes  the  responsibility 
enting  the  claim  of  one  of  his  subjects  against   another  sovereign,  the 
prosecution  will  be  'as  one  nation  proceeds  against  another,  not  by  suit  in  the 
courts,  as  of  right,  hut  by  diplomatic  negotiation,  or,  if  need  be,  by  war.' 

"All  the  rights  of  the  states,  as  Independent  nations,  were  surrendered  to 
the  i  aited  states.    *    *    *    Bui  it  is  Bald  that  even  if  a  state,  as  - 
trustee  for  its  citizens,  did  surrender  to  the  national  government   ii 
of  prosecuting  the  claims  of  its  citizens  against  another  state  by  face,  it   got 
in    lieu   the  constitutional  right    of   suit   in    the  national   courts.     Tin 
principle  of  international   law  which  makes  it  the  duty  of  one   nation 

he    collection    of    the   claims  of  its   citizens    against    another   nation,    if 

the  citizens  themselves  have  ample  means  of  redress  without  the  Intervention 

of  their  government.    »    *    *    Under  the  Constitution,  as  it  was  originally 

construed,  a  citizen  of  one  state  could  sue  another  state  in  the  courts  of  the 
United  Slates  for  himself,  and  obtain  the  same  relief  his  slate  could  get  lor 
him  if  it  should  sue.     Certainly,   when   la-  can  sue  for  himself,  there  Is 

for  power  in  bis  state  to  sue  in  bu  behalf,  and  we  cannot   believe  it 

was   (lie  intention  of  the    [|  e   Constitution   to  allow   both   remedies 

in   such  a  case.      *      *      »      In  -tin  r  words,   Hie  giving  of  the  direct    remedy   to 
ten   himself   was  equivalent   to  taking   away   any   indirect    remedy    he 
might   otherwise  have  claimed,  through  the  Intervention  of  his  state,   upon 
any   principle   of  the   law  of   nations.     [|    follows   that    when   the 

pecia)  remedy  ti e  was  no  other  bft.     Nothing  was  added 

to  Hie  Constitution  by    what    was   tlnis  done.      No   power,   taken   away   by   the 

grant  of  the  special   remedy,  was  restored  by  tin 

of  the  amendment   was  simply  to  revoke  the  new  right  that  bad  been  given, 


1390  THE  FEDERAL  GOVERNMENT  (Part  3 

and  leave  the  limitations  to  stand  as  they  were.-  In  the  argument  of  the 
opinions  filed  by  the  several  justices  in  the  Chisholm  Case  [2  Dall.  419,  1  L. 
Ed.  440J  there  is  not  even  an  intimation  that  if  the  citizen  could  not  sue, 
his  state  could  sue  for  him."  [Here  follows  the  extract  printed  in  the  prin- 
ripal  case,  above,  at  p.  13S7.] 

But  where  the  assignment  of  individual  claims  against  a  state  was  made 
absolutely  to  another  state,  the  latter  was  allowed  to  recover  thereon.  South 
Dakota  v.  North  Carolina.  102  D.  S.  2S6,  312,  24  Sup.  Ct.  209.  273,  48  L.  Ed. 
44S  (1904).  Brewer.  J.,  saying  (upholding  a  suit  by  South  Dakota  upon  repudi- 
ated North  Carolina  bonds  donated  to  the  plaintiff  state  by  an  individual 
barred  from  suit  by  the  eleventh  amendment): 

"lias  this  court  jurisdiction  of  such  a  controversy,  and  to  what  extent 
may  it  grant  relief'.'  Obviously,  that  jurisdiction  is  not  affected  by  the  fact 
that  the  donor  of  these  bonds  could  not  invoke  it.  The  payee  of  a  foreign 
bill  of  exchange  may  not  sue  the  drawer  in  the  federal  court  of  a  state  of 
which  both  are  citizens,  but  that  does  not  oust  the  court  of  jurisdiction  of  an 
action  by  a  subsequent  holder  if  the  latter  be  a  citizen  of  another  state.  The 
question  of  jurisdiction  is  determined  by  the  status  of  the  present  parties, 
and  not  by  that  of  prior  holders  of  the  thing  in  controversy.  Obviously,  too 
the  subject-matter  is  one  of  judicial  cognizance.  If  anything  can  be  consid- 
ered as  justiciable  it  is  a  claim  for  money  due  on  a  written  promise  to  pay  ; 
and  if  it  be  justiciable,  does  it  matter  iow  the  plaintiff  acquires  title,  provid- 
ing it  be  honestly  acquired?  It  would  seem  strangely  inconsistent  to  take 
jurisdiction  of  an  action  by  South  Dakota  against  North  Carolina  on  a  prom- 
ise to  pay  made  by  the  latter  directly  to  the  former,  and  refuse  jurisdiction 
of  an  action  on  a  like  promise  made  by  the  latter  to  an  individual,  and  by 
him  sold  or  donated  to  the  former." 

[White,  J.,  gave  a  dissenting  opinion,  in  which  concurred  Fuller,  C.  J.,  and 
McKenna  and  Day,  JJ.]. 

When  West  Virginia  separated  from  Virginia  the  former  agreed  with  the 
latter  to  pay  a  fair  share  of  the  old  state  debt.  Virginia  settled  with  the  old 
creditors  for  two-thirds  of  the  debt  and  was  released  by  them  from  the  re- 
maining one-third,  giving  them  certificates  for  this  "to  be  accounted  for  by 
West  Virginia."  Virginia  took  these  certificates  on  deposit  and  sued  West 
Virginia  to  compel  the  payment  of  the  latter's  share,  for  the  benefit  of  these 
certificate-holders.  A  recoverv  was  allowed,  Holmes,  J.,  saying,  in  Virginia 
v.  West  Virginia,  220  U.  S.  1.  33,  34,  31  Sup.  Ct.  330,  335,  55  L.  Ed.  353  (1911): 

"The  liability  of  West  Virginia  is  a  deep-seated  equity,  not  discharged  by 
changes  in  the  form  of  the  debt,  nor  split  up  by  the  unilateral  attempt  of 
Virginia  to  apportion  specific  parts  to  the  two  states.  If  one  third  of  the 
debt  were  discharged  in  fact,  to  all  intents,  we  perceive  no  reason,  in  what 
has  happened,  why  West  Virginia  should  not  contribute  her  proportion  of  the 
remaining  two  thirds.  But  we  are  of  opinion  that  no  part  of  the  debt  is 
extinguished,  and  further,  that  nothing  has  happened  to  bring  the  rule  of 
New  Hampshire  v.  Louisiana  into  play.  For  even  if  Virginia  is  not  liable, 
she  has  the  contract  of  West  Virginia  to  bear  an  equitable  share  of  the 
whole  debt, — a  contract  in  the  performance  of  which  the  honor  and  credit 
of  Virginia  is  concerned,  and  which  she  does  not  lose  her  right  to  insist  upon 
by  her  creditors  accepting  from  necessity  the  performance  of  her  estimated 
duty  as  confining  their  claims  for  the  residue  to  the  party  equitably  bound. 
Her  creditors  never  could  have  sued  her  if  the  supposed  discharge  had  not 
been  granted,  and  the  discharge  does  not  diminish  her  interest  and  right  to 
have  the  whole  debt  paid  by  the  help  of  the  defendant.  The  suit  is  in  Vir- 
ginia's own  interest,  none  the  less  that  she  is  to  turn  over  the  proceeds." 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1391 


KANSAS  v.   COLORADO. 

(Supreme  Court  of  United  states,   L902.     183  U.  S.  125,  22  Sup.  Ct.  552,  4<; 
L.  Ed.  B38.) 

[Original  bill  of  complaint  by  Kansas  against  Colorado,  alleging 
in  substance  a  large  diversion  of  the  waters  of  the  Arkansas  river 
as  it  flowed  through  Colorado,  made  by  or  under  the  authority  of 
that  state  for  purposes  of  irrigation,  which  so  diminished  the  flow 
of  the  river  below  in  Kansas  as  greatly  to  injure  the  owners  of  ripa- 
rian land,  of  which  Kansas  itself  owned  two  small  parcels  used  by 
it  for  a  soldiers'  home  and  a  reformatory.  An  injunction  was 
prayed  against  any  further  diversion  of  said  river  in  Colorado  by 
that  state,  and  against  the  granting  of  any  further  authority  by 
Colorado  to  private  persons  to  divert  said  water,  except  for  domestic 
use,  Demurrer,  upon  the  ground,  among  others,  that  the  matters  al- 
leged showed  no  controversy  between  states  within  the  meaning  of 
the  Constitution.] 

Mr.  Chief  Justice  Fuller.  *  *  *  By  the  1st  clause  of  §  10 
of  article  1  of  the  Constitution  it  was  provided  that  "no  state  shall 
enter  into  any  treaty,  alliance,  or  confederation ;"  and  by  the  3d 
clause  that  "no  state  shall,  without  the  consent  of  the  Congress, 
*  *  *  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  state,  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay."     *     *     * 

Undoubtedly,  as  remarked  by  Mr.  Justice  Bradley  in  Hans  v. 
Louisiana,  134  U.  S.  1,  15,  33  L.  Ed.  842,  847,  10  Sup.  Ct.  504,  507. 
the  Constitution  made  some  things  justiciable  "which  were  not 
known  as  such  at  the  common  law — such,  for  example,  as  contro- 
versies between  states  as  to  boundary  lines  and  other  questions  ad- 
mitting of  judicial  solution."  And  as  the  remedies  resorted  to  by 
independent  states  for  the  determination  of  controversies  raised  by 
collision  between  them  were  withdrawn  from  the  states  by  the  Con- 
stitution, a  wide  range  of  matters,  susceptible  of  adjustment,  and 
not  purely  political  in  their  nature,  was  made  justiciable  by  that  in- 
strument. 

In  Missouri  v.  Illinois,  180  U.  S.  208.  45  L.  Ed.  497,  21  Sup.  Ct. 
331,  it  was  alleged  that  an  artificial  channel  or  drain  constructed 
by  the  sanitary  district  for  purposes  of  sewerage,  under  authority 
derived  from  the  state  of  Illinois,  created  a  continuing  nuisance 
dangerous  to  the  health  of  the  people  of  the  state  of  Missi  iuri  ;  and  the 
bill  charged  that  the  acts  of  defendants,  if  not  restrained,  would  re- 
sult in  poisoning  the  water  supply  of  the  inhabitants  of  Missouri,  and 
in  injuriously  affecting  that  portion  of  the  bed  of  the  Mississippi 
river  lying  within  its  territory.  In  disposing  of  a  demurrer  to  the 
bill,  numerous  cases  involving  the  exercise  of  original  jurisdiction  by 


1392  THE   FEDERAL   GOVERNMENT  (Part  3 

this  court  were  examined ;   and  the  court,  speaking  through  Mr.  Jus- 
tice Shiras,  said : 

"The  cases  cited  show  that  such  jurisdiction  has  been  exercised  in 
cases  involving  boundaries  and  jurisdiction  over  lands  and  their  in- 
habitants, and  in  cases  directly  affecting  the  property  rights  and  in- 
terests of  a  state.  But  such  cases  manifestly  do  not  cover  the  entire 
field  in  which  such  controversies  may  arise,  and  for  which  the  Consti- 
tution has  provided  a  remedy;  and  it  would  be  objectionable  and, 
indeed,  impossible,  for  the  court  to  anticipate  by  definition  what  con- 
troversies can  and  what  cannot  be  brought  within  the  original  jurisdic- 
tion of  this  court.  An  inspection  of  the  bill  discloses  that  the  nature 
of  the  injury  complained  of  is  such  that  an  adequate  remedy  can  only 
be  found  in  this  court  at  the  suit  of  the  state  of  Missouri.  It  is  true 
that  no  question  of  boundary  is  involved,  nor  of  direct  property 
rights  belonging  to  the  complainant  state,  but  it  must  surely  be  con- 
ceded that  if  the  health  and  comfort  of  the  inhabitants  of  a  state  are 
threatened,  the  state  is  the  proper  party  to  represent  and  defend  them. 
If  Missouri  were  an  independent  and  sovereign  state,  all  must  admit 
that  she  could  seek  a  remedy  by  negotiation,  and,  that  failing,  by  force. 
Diplomatic  powers  and  the  right  to  make  war  having  been  surren- 
dered to  the  general  government,  it  was  to  be  expected  that  upon  the 
latter  would  be  devolved  the  duty  of  providing  a  remedy,  and  that 
remedy,  we  think,  is  found  in  the  constitutional  provisions  we  are 
considering.  The  allegations  of  the  bill  plainly  present  such  a  case. 
The  health  and  comfort  of  the  large  communities  inhabiting  those  parts 
of  the  state  situated  on  the  Mississippi  river  are  not  alone  concerned, 
but  contagious  and  typhoidal  diseases  introduced  in  the  river  com- 
munities may  spread  themselves  throughout  the  territory  of  the  state. 
Moreover,  substantial  impairment  of  the  health  and  prosperity  of  the 
towns  and  cities  of  the  state  situated  on  the  Mississippi  river,  including 
its  commercial  metropolis,  would  injuriously  affect  the  entire  state. 
That  suits  brought  by  individuals,  each  for  personal  injuries,  threat- 
ened or  received,  would  be  wholly  inadequate  and  disproportionate 
remedies,  requires  no  argument."  * 

As  will  be  perceived,  the  court  there  ruled  that  the  mere  fact  that 
a  state  had  no  pecuniary  interest  in  the  controversy  would  not  defeat 
the  original  jurisdiction  of  this  court,  which  might  be  invoked  by  the 
state  as  parens  patriae,  trustee,  guardian,  or  representative  of  all 
or  a  considerable  portion  of  its  citizens;  and  that  the  threatened  pollu- 
tion of  the  waters  of  a  river  flowing  between  states,  under  the  au- 
thority of  one  of  them,  thereby  putting  the  health  and  comfort  of 
the  citizens  of  the  other  in  jeopardy,  presented  a  cause  of  action  justi- 
ciable under  the  Constitution. 

In  the  case  before  us  the  state  of  Kansas  files  her  bill  as  represent- 

i  See  Missouri  v.  Illinois,  200  U.  S.  496,  26  Sup.  Ct.  268,  50  L.  Ed.  572 
(190fl).  dismissing  this  suit  on  the  merits. 


Ch.  20)  JURISDICTION   OF   FEDERAL   COURTS  139-> 

ing  and  on  behalf  of  her  citizens,  as  well  as  in  vindication  of  her 
alleged  rights  as  an  individual  owner,  and  seeks  relief  in  respect  of 
being  deprived  of  the  waters  of  the  river  accustomed  to  flow  through 
and  across  the  state,  and  the  consequent  destruction  of  the  p 
ty  of  herself  and  of  her  citizens  and  injury  to  their  health  and  com- 
fort. The  action  complained  of  is  state  action,  and  not  the  action  of 
state  officers  in  abuse  or  excess  of  their  powers. 

The  state  of  Colorado  contends  that,  as  a  sovereign  and  independent 
state,  she  is  justified,  if  her  geographical  situation  and  material  wel- 
fare demand  it  in  her  judgment,  in  consuming  for  beneficial  purposes 
all  the  waters  within  her  boundaries ;  and  that,  as  the  sources  of  the 
Arkansas  river  are  in  Colorado,  she  may  absolutely  and  wholly  de- 
prive Kansas  and  her  citizens  of  any  use  of  or  share  in  the  waters 
of  that  river.  She  says  that  she  occupies  toward  the  state  of  Kansas 
the  same  position  that  foreign  states  occupy  toward  each  other,  al- 
though she  admits  that  the  Constitution  does  not  contemplate  that 
controversies  between  members  of  the  United  States  may  be  settled 
by  reprisal  or  force  of  arms,  and  that  to  secure  the  orderly  adjust- 
ment of  such  differences  power  was  lodged  in  this  court  to  hear  and 
determine  them.  The  rule  of  decision,  however,  it  is  contended,  is  the 
rule  which  controls  foreign  and  independent  states  in  their  relations 
to  each  other;  that  by  the  law  of  nations  the  primary  and  absolute 
right  of  a  state  is  self-preservation:  that  the  improvement  of  her 
revenues,  arts,  agriculture,  and  commerce  are  incontrovertible  rights 
of  sovereignty ;  that  she  has  dominion  over  all  things  within  her  ter- 
ritory, including  all  bodies  of  water,  standing  or  running,  within  her 
boundary  lines ;  that  the  moral  obligations  of  a  state  to  observe  the 
demands  of  comity  cannot  be  made  the  subject  of  controversy  be- 
tween states;  and  that  only  those  controversies  are  justiciable  in  this 
court  which,  prior  to  the  Union,  would  have  been  just  cause  for  re- 
prisal by  the  complaining  state ;  and  that,  according  to  international 
law,  reprisal  can  only  be  made  when  a  positive  wrong  has  been  in- 
flicted or  rights  stricti  juris  withheld. 

But  when  one  of  our  states  complains  of  the  infliction  of  such  wrong 
or  the  deprivation  of  such  rights  by  another  state,  how  shall  the  ex- 
istence of  cause  of  complaint  be  ascertained,  and  be  accommodated 
if  well  founded?  The  states  of  this  Union  cannot  make  war  upon 
each  other.  They  cannot  "grant  letters  of  marque  and  reprisal." 
They  cannot  make  reprisal  on  each  other  by  embargo.  They  cannot 
enter  upon  diplomatic  relations,  and  make  treaties.     *     *    * 

The  publicists  suggest  as  just  causes  of  war:  defense;  recovery  of 
one's  own ;  and  punishment  of  an  enemy.  But,  as  between  states  of 
this  I  "nion,  who  can  determine  what  would  be  a  just  cause  of  war? 
Comity  demanded  that  navigable  rivers  should  be  free,  and  therefore 
the  freedom  of  the  Mississippi,  the  Rhine,  the  Scheldt,  the  Danube, 
the  St.  Lawrence,  the  Amazon,  and  other  rivers  has  been  at  different 
HaixConsi  I 


1394  THE  FEDERAL  GOVERNMENT  (Part  3 

times  secured  by  treaty;  but  if  a  state  of  this  Union  deprives  another 
state  of  its  rights  in  a  navigable  stream,  and  Congress  has  not  regu> 
latcd  the  subject,  as  no  treaty  can  be  made  between  them,  how  is  the 
matter  to  be  adjusted?     *     *     * 

Without  subjecting  the  bill  to  minute  criticism,  we  think  its  aver- 
ments sufficient  to  present  the  question  as  to  the  power  of  one  state  of 
the  Union  to  wholly  deprive  another  of  the  benefit  of  water  from  a 
river  rising  in  the  former  and,  by  nature,  flowing  into  and  through  the 
latter;  and  that  therefore  this  court,  speaking  broadly,  has  jurisdic- 
tion. *  *  *  Sitting,  as  it  were,  as  an  international,  as  well  as  a 
domestic,  tribunal,  we  apply  federal  law,  state  law,  and  international 
law,  as  the  exigencies  of  the  particular  case  may  demand ; 2  and  we 
are  unwilling  in  this  case  to  proceed  on  the  mere  technical  admissions 
made  by  the  demurrer.  *  *  *  The  result  is  that  in  view  of  the 
intricate  questions  arising  on  the  record,  we  are  constrained  to  forbear 
proceeding  until  all  the  facts  are  before  us  on  the  evidence. 

Demurrer  overruled,  with  leave  to  answer. 

[Gray,  J.,  took  no  part  in  the  decision.] 

2  As  to  the  law  that  may  be  applicable  to  Interstate  disputes,  Brewer,  J., 
said  in  the  principal  litigation  at  a  later  stage,  Kansas  v.  Colorado,  206  U. 
S.  46,  97,  98,  27  Sup.  Ct.  655,  51  L.  Ed.  956  (1907): 

"Nor  is  our  jurisdiction  ousted,  even  if,  because  Kansas  and  Colorado  are 
.states  sovereign  and  independent  in  local  matters,  the  relations  between  them 
depend  in  any  respect  upon  principles  of  international  law.  International 
law  is  no  alien  in  this  tribunal.  »  *  »  [After  quoting  from  the  principal 
case,  above,  the  sentence  to  which  this  note  is  appended:]  One  cardinal  rule, 
underlying  all  the  relations  of  the  states  to  each  other,  is  that  of  equality  of 
right.  Each  state  stands  on  the  same  level  with  all  the  rest.  It  can  impose 
its  own  legislation  on  no  one  of  the  others,  and  is  bound  to  yield  its  own 
views  to  none.  Yet,  whenever,  as  in  the  case  of  Missouri  v.  Illinois  [ISO  U. 
S.  208,  21  Sup.  Ct.  331,  45  L.  Ed.  497],  the  action  of  one  state  reaches,  through 
the  agency  of  natural  laws,  into  the  territory  of  another  state,  the  question 
of  the  extent  and  the  limitations  of  the  rights  of  the  two  states  becomes  a 
matter  of  justiciable  dispute  between  them,  and  this  court  is  called  upon  to 
settle  that  dispute  in  such  a  way  as  will  recognize  the  equal  rights  of  both  and 
at  the  same  time  establish  justice  between  them.  In  other  words,  through 
these  successive  disputes  and  decisions  this  court  is  practically  building  up 
what  may  not  improperly  be  called  interstate  common  law.  This  very  ease 
presents  a  significant  illustration.  *  *  *  Surely  here  is  a  dispute  of  a 
justiciable  nature  which  might  and  ought  to  be  tried  and  determined.  If  the 
two  states  were  absolutely  independent  nations  it  would  be  settled  by  treaty 
or  by  force.  Neither  of  these  ways  being  practicable,  it  must  be  settled  by 
decision  of  this  court." 

[The  bill  in  the  principal  case  was  then  dismissed  on  the  merits,  after  an 
exhaustive  investigation  and  argument.] 

See  also  Grier,  J.,  in  Passaic  Bridge  Cases,  ante,  pp.  1151,  1152,  note. 

As  to  the  rules  applicable  to  suits  between  individuals  for  acts  done  under 
state  authority  in  one  state,  injurious  to  riparian  rights  in  another,  see  G. 
B.  French  and  J.  Smith  in  8  Harv.  L.  Rev.  138;  Pine  v.  Mayor,  etc.,  of  New 
York  (C.  C.)  103  Fed.  337  (1900);  Id..  112  Fed.  98,  50  C.  C.  A.  145  (1901) 
(cases) ;   N.  Y.  City  v.  Pine,  185  V.  S.  93,  22  Sup.  Ct.  592,  46  L.  Ed.  S20  (1902). 

Most  of  the  suits  between  states  of  which  the  federal  Supreme  Court  has 
assumed  jurisdiction  have  involved  boundary  disputes.  See  Rhode  Island  v. 
Massachusetts,  12  Pet.  657.  9  L.  Ed.  1233  (1S38) ;  Virginia  v.  West  Virginia, 
11  Wall.  39,  20  L.  Ed.  67  (1S71).  Other  cases  have  been:  South  Carolina  v. 
Georgia,  93  U.  S.  4.  23  E.  Ed.  782  (1876)  (compact  as  to  use  of  boundary  riv- 


Ch.  20)  JURISDICTION    OF    FKiT.IiAL    COURTS  1395 


GEORGIA  v.  TENNESSEE  COPPER  CO. 

(Supreme  Court  of  United  States,  1007.     20G  U.  S.  230,  27   Sup.  Ct.  618,  f">l 
L.  Ed.  103S,  11  Ann.  Cas.  488.) 

Mr.  Justice  Holmes.  This  is  a  bill  in  equity  filed  in  this  court  by 
the  state  of  Georgia,  in  pursuance  of  a  resolution  of  the  legislature 
and  by  direction  of  the  governor  of  the  state,  to  enjoin  the  defendant 
copper  companies  from  discharging  noxious  gas  from  their  works  in 
Tennessee  over  the  plaintiff's  territory.  It  alleges  that,  in  consequence 
of  such  discharge,  a  wholesale  destruction  of  forests,  orchards,  and 
crops  is  going  on,  and  other  injuries  are  done  and  threatened  in  five 
counties  of  the  state.  It  alleges  also  a  vain  application  to  the  state  of 
Tennessee  for  relief.     A  preliminary  injunction  was  denied.     *     *     * 

The  case  has  been  argued  largely  as  if  it  were  one  between  two 
private  parties;  but  it  is  not.  The  very  elements  that  would  be  relied 
upi  ii  in  a  suit  between  fellow-citizens  as  a  ground  for  equitable  relief 
are  wanting  here.  The  state  owns  very  little  of  the  territory  alleged 
to  be  affected,  and  the  damage  to  it  capable  of  estimate  in  money, 
possibly,  at  least,  is  small.  This  is  a  suit  by  a  state  for  an  injury  to  it 
in  its  capacity  of  quasi-sovereign.  In  that  capacity  the  state  has  an 
interest  independent  of  and  behind  the  titles  of  its  citizens,  in  all  the 
earth  and  air  within  its  domain.  It  has  the  last  word  as  to  whether 
its  mountains  shall  be  stripped  of  their  forests  and  its  inhabitants  shall 
breathe  pure  air.  It  might  have  to  pay  individuals  before  it  could 
utter  that  word,  but  with  it  remains  the  final  power.  The  alleged  dam- 
age to  the  state  as  a  private  owner  is  merely  a  makeweight,  and  we 
may  lay  on  one  side  the  dispute  as  to  whether  the  destruction  of  for- 
ests has  led  to  the  gullying  of  its  roads. 

The  caution  with  which  demands  of  this  sort,  on  the  part  of  a  state, 
for  relief  from  injuries  analogous  to  torts,  must  be  examined,  is  dwelt 

er);  Missouri  v.  Illinois.  180  D.  S.  208,  21  Sup.  Ct.  331,  4.-,  L.  Ed.  1 
(discussed  in  principal  case);  South  Dakota  v.  North  Carolina,  192  II.  S.  286, 
2  I  Sup.  Ct.  2G9,  48  L.  Ed.  44S  (1904)  (see  note,  ante,  p.  1390.  and  mention 
of  case  below  In  this  note);  Virginia  v.  West  Virginia,  206  1".  s.  290,  27  Sup. 
Ct  732,  61  L.  Ed.  IOCS  (19(17);  Id.,  220  U.  S.  1.  31  Sup.  Ct  330,  55  L.  Ed.  363 
(191  n  (see  note,  ante,  p.  1390). 

As  to  interest  in  sncli  suits,  see  U.  S.  v.  North  Carolina,  136  D.  S.  211.  10 
Sup.  Ct.  920,  -'it  I..  I'll.  336  (1890);    South  Dakota  v.  North  Carolina,  192  r.  s. 
286,  321,  21  sup.  Ct.  269,  48   L.  Ed.    its  (1904);   Virginia   v.   West   Virginia. 
220  V.  s.  1,  35,  86,  31  sup.  Ct  330,  55  L.  Ed.  353  (1911);   and  c 
v.  Illinois.  2P2  r.  s.  598,  26  Sup.  Ct  713,  50  L.  Ed.  1160  (1906). 

For  the  procedure  In  instituting  and  conducting  suits  between  states,  see 
c.  F.  Randolph  in  2  Col.  L.  Rev.  303-305;  for  certain  Indulgences  accorded 
by  the  court  to  the  litigants,  In  view  of  their  character,   see  Virginia  v. 
West  Virginia,  220  r.  S.  l.  35,  36,  81  sup.  ct  330,  55  L.  Ed.  353  (1911);    Id 
222   U.  S.  17.  32  Sup.  Ct.  4.  56  I..  Ed.   71    (1911);  and  for  some  observations 

udsments  In  ee  C  P.  Kan 

dolph,  in  2  Col.  L.  Rev.  308-312;  South  Dakota  v.  North  Carolina.  192  r.  S 
2S6,  318-321,  21  Sup.  Ct  269,  48  L.  Ed.  lis  (1904)  (In  which  ease,  however, 
a  mortgage  of  certain  railway  stock,  given  bj  defendant  state  to  secure  the 
debt  was  ordered  to  be  foreclosed  tor  the  benefit  of  plaintiff  state). 


1396  THE   FEDERAL   GOVERNMENT  (Part  3 

upon  in  Missouri  v.  Illinois,  2/0  U.  S.  496,  520,  521,  50  L.  Ed.  572, 
578,  579,  26  Sup.  Ct.  268.  But  it  is  plain  that  some  such  demands 
must  be  recognized,  if  the  grounds  alleged  are  proved.  When  the 
states  by  their  union  made  the  forcible  abatement  of  outside  nuisances 
impossible  to  each,  they  did  not  thereby  agree  to  submit  to  whatever 
might  be  done.  They  did  not  renounce  the  possibility  of  making  rea- 
sonable demands  on  the  ground  of  their  still  remaining  quasi-sovereign 
interests;  and  the  alternative  to  force  is  a  suit  in  this  court.  Missouri 
v.  Illinois,  180  U.  S.  208,  241,  45  L.  Ed.  497,  512,  21  Sup.  Ct.  331. 

Some  peculiarities  necessarily  mark  a  suit  of  this  kind.  If  the  state 
has  a  case  at  all,  it  is  somewhat  more  certainly  entitled  to  specific  re- 
lief than  a  private  party  might  be.  It  is  not  lightly  to  be  required  to 
give  up  quasi-sovereign  rights  for  pay;  and,  apart  from  the  difficulty 
of  valuing  such  rights  in  money,  if  that  be  its  choice  it  may  insist  that 
an  infraction  of  them  shall  be  stopped.  The  states,  by  entering  the 
Union,  did  not  sink  to  the  position  of  private  owners,  subject  to  one 
system  of  private  law.  This  court  has  not  quite  the  same  freedom  to 
balance  the  harm  that  will  be  done  by  an  injunction  against  that  of 
which  the  plaintiff  complains,  that  it  would  have  in  deciding  between 
two  subjects  of  a  single  political  power.  Without  excluding  the  con- 
siderations that  equity  always  takes  into  account,  we  cannot  give  the 
weight  that  was  given  them  in  argument  to  a  comparison  between  the 
damage  threatened  to  the  plaintiff  and  the  calamity  of  a  possible  stop 
to  the  defendants'  business,  the  question  of  health,  the  character  of 
the  forests  as  a  first  or  second  growth,  the  commercial  possibility  or 
impossibility  of  reducing  the  fumes  to  sulphuric  acid,  the  special  adap- 
tation of  the  business  to  the  place. 

It  is  a  fair  and  reasonable  demand  on  the  part  of  a  sovereign  that 
the  air  over  its  territory  should  not  be  polluted  on  a  great  scale  by 
sulphurous  acid  gas,  that  the  forests  on  its  mountains,  be  they  better 
or  worse,  and  whatever  domestic  destruction  they  have  suffered, 
should  not  be  further  destroyed  or  threatened  by  the  act  of  persons 
beyond  its  control,  that  the  crops  and  orchards  on  its  hills  should  not 
be  endangered  from  the  same  source.  If  any  such  demand  is  to  be 
enforced  this  must  be  notwithstanding  the  hesitation  that  we  might 
feel  if  the  suit  were  between  private  parties,  and  the  doubt  whether, 
for  the  injuries  which  they  might  be  suffering  to  their  property,  they 
should  not  be  left  to  an  action  at  law. 

The  proof  requires  but  a  few  words.  It  is  not  denied  that  the  de- 
fendants generate  in  their  works  near  the  Georgia  line  large  quanti- 
ties of  sulphur  dioxid  which  becomes  sulphurous  acid  by  its  mixture 
with  the  air.  It  hardly  is  denied,  and  cannot  be  denied  with  success, 
that  this  gas  often  is  carried  by  the  wind  great  distances  and  over 
great  tracts  of  Georgia  land.  On  the  evidence  the  pollution  of  the 
air  and  the  magnitude  of  that  pollution  are  not  open  to  dispute. 
Without  any  attempt  to  go  into  details  immaterial  to  the  suit,  it  is 
proper  to  add  that  we  are  satisfied,  by  a  preponderance  of  evidence, 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1397 

that  the  sulphurous  fumes  cause  and  threaten  damage  on  so  consider- 
able a  scale  to  the  forests  and  vegetable  life,  if  not  to  health,  within 

lintiff  state,  as  to  make  out  a  case  within  the  requiren, 
Missouri  v.  Illinois,  200  U.  S.  496,1  50  L.  Ed.  572,  26  Sup.  Ct.  268. 
Whether  Georgia,  by  insisting  upon  this  claim,  is  doing  more  harm 
than  good  to  her  own  citizens,  is  for  her  to  determine.  The  possible 
r  to  those  outside  the  state  must  be  accepted  as  a  consequence 
of  her  standing  upon  her  extreme  rights.     *     *     * 

If  the  state  of  Georgia  adheres  to  its  determination,  there  is  no  al- 
ternative to  issuing  an  injunction,  after  allowing  a  reasonable  time  to 
the  defendants  to  complete  the  structures  that  they  now  are  building, 
and  the  efforts  that  they  are  making  to  stop  the  fumes.  The  plaintiff 
may  submit  a  form  of  decree  on  the  coming  in  of  this  court  in  Oc- 
tober next.2 

Injunction  to  issue. 

[Harlan,  J.,  gave  a  concurring  opinion.] 

i  "Before  this  court  ought  to  intervene,  the  case  should  be  of  serious  mag- 
nitude, clearly  and  fully  proved,  and   the  principle  to   be  applied  should   I"' 
one  which  the  court  is  prepared  deliberately  tn  maintain  against  all  consld- 
is  on  the  other  side."— Missouri  v.  Illinois,  200  U.  S.  at  521   (1008),  by 
Holmes,  J. 

-■  "It  is  recognized  that  the  state,  as  quasi-sovereign  and  representative  of 
the  interests  of  the  public,  has  a  standing  in  court  to  protect  the  atmosphere, 
tin'  water,  and  the  forests  within  its  territory,  Irrespective  of  the  assent  or 
dissent  of  the  private  owners  of  the  land  most  immediately  i 
Hudson  Water  Co.  v.  McCarter,  209  U.  S.  349,  355,  28  Sup.  Ct  529,  52  T. 
lOd.  928,  14  Ann.  Cas.  5C0  (190S),  by  Holmes,  J.  See  extract  therefrom,  ante. 
PP.  524,  525,  note. 

Other  cases  where  the  Supreme  Court  has  taken  original  jurisdi. 
suits  by  states  against  citizens  or  corporations  of  other  states  are:  Penn- 
sylvania v.  Wheeling  Bdg.  Co.,  13  How.  518,  11  i..  Ed.  249  (1852)  (plaintiff's 
property  rights  affected);  Wisconsin  v.  Duluth,  96  U.  S.  379,  24  L.  Ed.  668 
(1S7S)  (injury  to  navigation  in  plaintiff's  territory).  See  comment  in  Mis- 
souri v.  Illinois,  ISO  D.  S.  208.  228-230,  21  Sup.  Ct.  331,  45  L.  Ed.  497  (1901). 
ire  In  re  Debs,  ante,  p.  1211. 

In  Oklah a  v.  Atchison,  etc.,  Ry..  220  U.  S.  277.  286,  289,  33  Sup.  Ct.  434, 

55  L.  Ed.  465  (1911),  Harlan.  J.,  said  (denying  original  jurisdiction  of  a  suil 
by  a  state  to  enjoin  a  foreign  railroad  corporation  from  charging  illegal  rates 
within   its  borders): 

"Plainly,  the  xtate,  in  its  corporate  capacity,  would  have  no  such  interest 

in  a  controversy  of  that  kind  as  would  entitle  it  to  vindicate  and  enforce  the 

01  a  particular  shipper  or  illy,  of  ail  shippers, 

bj    an   Original   Suit   brought   in   its  own    name.   In   this   court,    to    restrain   the 

company  from  applying  the  Kansas  rates,  as  such,  to  shippers  generally  in 
the  local  bush  'lioma.     »     *     *     Under  a  contrary  view  that  juris 

diction  could  be  invoked  by  a  state,  bringing  an  original  suit  in  this  court 
against  foreign  corporations  and  citizens  of  other  states,  whenever  the  state 
thought  such  corporations  and  citizens  of  other  states  were  acting  in  viola- 
Ltf   laws  to  the  injury  of  its  people  or  in  the  aggregate; 

although  an  injury  in  violation  of  law,  to  the  property  or  rights  of  particular 

through  the  lions  or  citizens  of  states,  could 

be  reached,  without  the  intervention  of  the  state,  by  suits  instituted  by  the 
persons  directly   or  immediately  injured. 

"We  are  of  opinion  that  the  words  in  the  Constitution  conferring  original 
jurisdiction  on  this  court  in  a  suit  'in  Which  B  State  shall  be  a  party'  are 
not  to  be  Interpreted  as  conferring  s  ich  jurisdiction  In  every  cause  in  which 

the  slate  elects   to   make    11  B   party  plaintiff   Of   record.   ai 


1398  THE   FEDERAL  GOVERNMENT  (Part  3 

OKLAHOMA  v.  GULF,  C.  &  S.  F.  RY.  CO.  et  al.  (1911),  220 
U.  S.  290,  297-300,  31  Sup.  Ct.  437,  55  L.  Ed.  469,  Ann.  Cas.  1912C. 
524,  Mr.  Justice  Harlan  (dismissing  an  original  bill  in  equity  brought 
by  Oklahoma  to  enjoin  persons  and  corporations  of  other  states  from 
violating  its  penal  laws  against  traffic  in  intoxicating  liquors): 

"It  is  manifest  that  the  object  of  this  suit  by  the  state  is,  by  means 
of  an  injunction  issued  by  this  court,  to  prevent  the  defendant  com- 
panies from  violating  the  penal  or  criminal  laws  of  Oklahoma.  It  is, 
therefore,  in  its  essence,  a  suit  to  enforce  those  laws.  But  of  such  a 
suit  this  court  cannot  take  original  cognizance,  although  the  suit  is  in 
form  of  a  civil  nature.  The  Constitution,  after  enumerating,  in  the  first 
clause  of  §  2  of  article  3,  the  cases,  in  law  and  equity,  as  well  as  the 
controversies,  to  which  the  judicial  power  of  the  United  States  shall 
extend,  provides  that  'in  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  state  shall  be  party,  the 
Supreme  Court  shall  have  original  jurisdiction' — in  all  the  other  cases 
enumerated  in  the  article,  the  court  to  have  appellate  jurisdiction,  both 
as  to  law  and  facts,  with  such  exceptions  and  under  such  regulations 
as  Congress  shall  make. 

"The  words  'in  which  a  state  shall  be  party,'  literally  construed, 
would  embrace  original  suits  of  a  civil  nature  brought  by  a  state  in 
this  court  to  enforce  a  judgment  rendered  for  a  violation  of  its  penal 
or  criminal  laws.  But  it  has  been  adjudged,  upon  full  consideration, 
that  that  result  was  inadmissible  under  the  Constitution.  This  will 
appear  from  an  examination  of  the  opinion  and  judgment  in  Wiscon- 
sin v.  Pelican  Ins.  Co.,  127  U.  S.  265,  267,  290,  293,  32  L.  Ed.  239. 
243,  244,  8  Sup.  Ct.  1370.  That  was  an  original  action  brought  in 
this  court  by  the  state  of  Wisconsin  against  the  Pelican  Insurance 
Company  of  Louisiana,  to  recover  the  amount  of  a  judgment  rendered 
in  a  Wisconsin  court  against  that  company  for  certain  penalties  in- 
curred by  it  for  violating  the  laws  of  that  state  relating  to  the  business 
of  fire  insurance  companies.  The  question  was  distinctly  presented 
whether  the  state  could  invoke  the  original  jurisdiction  of  this  court, 
to  enforce  the  collection  of  such  judgment.  It  was  argued  in  that  case 
that  the  suit  was  simply  an  action  of  debt,  founded  upon  a  contract  of 

not  to  protect  its  own  property,  but  only  to  vindicate  the  wrongs  of  some  of 
its  people,  or  to  enforce  its  own  law's  or  public  policy  against  wrongdoers  gen- 
erally." 

So.  also,  Oklahoma  v.  Gulf,  etc.,  Ry.,  220  U.  S.  290.  301,  31  Sup.  Ct.  437,  55 
L.  Ed.  469,  Ann.  Cas.  1912C,  524  (1911). 

It  should  be  noted  that  the  cases  in  this  section  deal  only  with  the  original 
jurisdiction  of  the  Supreme  Court  under  the  Constitution,  art.  Ill,  §  2,  par. 
2.  They  do  not  concern  the  jurisdiction  of  inferior  federal  courts,  under 
acts  of  Congress,  over  suits  brought  in  them,  either  originally  or  by  removal, 
by  states  against  persons  to  enforce  state  laws  in  any  mode  the  state  sees 
tit.  As  regards  such  suits  the  federal  courts  sitting  in  a  state  are  virtually 
state  courts.  Madisonville  Trac.  Co.  v.  St  Bernard  Co.,  196  U.  S.  239,  255, 
25  Sup.  Ct  251,  49  L.  Ed.  462  (1905). 


Ch.  20)  JURISDICTION    OF    FEDERAL    COritTS  1309 

record,  to  wit,  a  judgment,  and  was  therefore  to  be  regarded  only  as 
a  civil  suit,  as  distinguished  from  a  criminal  prosecution.  But  that 
view  was  overruled.  The  court  said  that  notwithstanding  the  com- 
prehensive words  of  the  Constitution,  'the  mere  fact  that  a  state  is 
the  plaintiff  is  not  a  conclusive  test  that  the  controversy  is  one  in 
which  this  court  is  authorized  to  grant  relief  against  another  state  or 
her  citizens.' 

"After  an  examination  of  the  authorities  it  was  further  said,  the 
court  speaking  by  Air.  Justice  Gray:  'The  rule  that  the  courts  of  no 
country  execute  the  penal  laws  of  another  applies  not  only  to  prosecu- 
tions and  sentences  for  crimes  and  misdemeanors,  but  to  all  suits  in 
favor  of  the  state  for  the  recovery  of  pecuniary  penalties  for  any 
violation  of  statutes  for  the  protection  of  its  revenue  or  other  munici- 
pal laws,  and  to  all  judgments  for  such  penalties.  If  this  were  noi 
so,  all  that  would  be  necessary  to  give  ubiquitous  effect  to  a  penal 
law  would  be  to  put  the  claim  for  a  penalty  into  the  shape  of  a  judg- 
ment. Wharton,  Confl.  L.  §  833;  Westlake,  International  Law,  1st 
ed.  §  388;  Piggirtt,  Foreign  Judgm.  209,  210.'  Further:  'From  the 
first  organization  of  the  courts  of  the  United  States,  nearly  a  century 
ago,  it  has  always  been  assumed  that  the  original  jurisdiction  of  this 
court  over  controversies  between  a  state  and  citizens  of  another  state, 
or  of  a  foreign  country,  does  not  extend  to  a  suit  by  a  state  to  recover 
penalties  for  a  breach  of  her  own  municipal  law.  *  *  *  The  real 
nature  of  the  case  is  not  affected  by  the  forms  provided  by  the  law  of 
the  state  for  the  punishment  of  the  offense.  It  is  immaterial  whether, 
by  the  law  of  Wisconsin,  the  prosecution  must  be  by  indictment  or  by 
action,  or  whether,  under  that  law,  a  judgment  there  obtained  for 
the  penalty  might  be  enforced  by  execution,  by  scire  facias,  or  by  a 
new  suit.  In  whatever  form  the  state  pursues  her  right  to  punish  the 
offense  against  her  sovereignty,  every  step  of  the  proceeding  tends  to 
one  end — the  compelling  the  offender  to  pay  a  pecuniary  fine  by  way  of 
punishment  for  the  offense.  This  court,  therefore,  cannot  entertain  an 
original  action  to  compel  the  defendant  to  pay  to  the  state  of  Wis- 
consin a  sum  of  money  in  satisfaction  of  the  judgment  for  that  fine. 
The  original  jurisdiction  of  this  court  is  conferred  by  the  Constitu- 
tion, without  limit  of  the  amount  in  controversy,  and  Congress  has 
never  imposed  (if,  indeed,  it  could  impose)  any  such  limit.  If  this 
court  has  original  jurisdiction  of  the  present  case,  it  must  follow  that 
any  action  upon  a  judgment  obtained  by  a  state  in  her  own  courts 
against  a  citizen  of  another  state,  for  the  recovery  of  any  sum  of 
money,  however  small,  by  way  of  a  fine  for  any  offense,  however 
petty,  against  her  laws,  could  be  brought  in  the  first  instance  in  the 
Supreme  Court  of  the  United  States.  That  cannot  have  been  the  in- 
tention of  the  Convention  in  framing,  or  of  the  people  in  adopting, 
the  federal  Constitution.'  The  principles  announced  in  Wisconsin  v. 
Pelican  Ins.  Co.,  supra,  have  been  recognized  in  many  subsequent  cas- 


1400  THE  FEDERAL  GOVERNMENT  (Part  3 

"Those  principles  must,  in  our  opinion,  determine  the  present  case 
adversely  to  the  state.  Although  the  state  does  not  ask  for  judgment 
against  the  defendant  railroad  company  for  the  penalties  prescribed 
by  the  Oklahoma  statutes  for  violations  of  its  provisions,  she  yet  seeks 
the  aid  of  this  court  to  enforce  a  statute  one  of  whose  controlling 
objects  is  to  impose  punishment  in  order  to  effectuate  a  public  policy 
touching  a  particular  subject  relating  to  the  public  welfare.  The  stat- 
ute, viewed  as  a  whole,  is  to  be  deemed  a  penal  statute.  The  present 
suit,  although  in  form  one  of  a  civil  nature  is,  in  its  essential  char- 
acter, one  to  enforce  by  injunction  regulations  prescribed  by  a  state 
for  violations  of  one  of  its  penal  statutes,  and  is  therefore  one  of 
which  this  court  cannot  take  original  cognizance  at  the  instance  of  the 
state."1     *     *     * 


UNITED  STATES  v.  TEXAS. 

(Supreme  Court  of  United  States,  1S91.     143  U.   S.  621,  12  Sup.  Ct.  4S8,  36 
L.  Ed.  2S5.) 

[Original  bill  by  the  United  States  against  Texas,  pursuant  to  an 
act  of  Congress,  to  determine  the  boundary  between  Texas  and  Okla- 
homa Territory,  this  depending  upon  the  interpretation  of  the  treaty 
of  1819  between  Spain  and  the  United  States.  Texas  demurred  to 
the  jurisdiction  of  the  court.] 

Mr.  Justice  Harlan.  *  *  *  By  the  Articles  of  Confederation, 
Congress  was  made  "the  last  resort  on  appeal  in  all  disputes  and  dif- 
ferences" then  subsisting  or  which  thereafter  might  arise  "between 
two  or  more  states  concerning  boundary,  jurisdiction,  or  any  other 
cause  whatever;"  the  authority  so  conferred  to  be  exercised  by  a 
special  tribunal  to  be  organized  in  the  mode  prescribed  in  those  arti- 
cles, and  its  judgment  to  be  final  and  conclusive.  Article  9.  At  the 
time  of  the  adoption  of  the  Constitution,  there  existed,  as  this  court 
said  in  Rhode  Island  v.  Massachusetts,  12  Pet.  657,  723,  724,  9  L. 
Ed.  1233,  controversies  between  11  states,  in  respect  to  boundaries, 
which  had  continued  from  the  first  settlement  of  the  colonies.  The 
necessity  for  the  creation  of  some  tribunal  for  the  settlement  of  these 
and  like  controversies  that  might  arise,  under  the  new  government  to 
be  formed,  must,  therefore,  have  been  perceived  by  the  trainers  of  the 
Constitution ;  and  consequently,  among  the  controversies  to  which  the 
judicial  power  of  the  United  States  was  extended  by  the  Constitution, 
we  find  those  between  two  or  more  states.  And  that  a  controversy 
between  two  or  more  states,  in  respect  to  boundary,  is  one  to  which, 
under  the  Constitution,  such  judicial  power  extends,  is  no  longer  an 
open  question  in  this  court.     *     *     * 

iSo  also  the  state  courts  cannot  be  required  to  execute  the  penal  laws  of 
the  United  States.  See  ante,  p.  953,  last  paragraph  of  note  2,  Second  Em- 
ployers' Liability  Cases. 


Ch.  20)  JURISDICTION    OF    FEDERAL    COURTS  1401 

[After  citing  and  quoting  from  various  cases  to  this  effect:]  In 
view  of  these  cases,  it  cannot  with  propriety  be  said  that  a  question  of 
try  between  a  territory  of  the  United  States  and  one  of  the 
of  the  Union  is  of  a  political  nature,  and  not  susceptible  of 
judicial  determination  by  a  court  having  jurisdiction  of  such  a  con- 
troversy. The  important  question,  therefore,  is  whether  this  court 
can,  under  the  Constitution,  take  cognizance  of  an  original  suit 
brought  by  the  United  States  against  a  state  to  determine  the  bound- 
ary between  one  of  the  territories  and  such  state.     *     *     * 

The  cases  in  this  court  show  that  the  framers  of  the  Constitution 
did  provide  by  that  instrument  for  the  judicial  determination  of  all 
cases  in  law  and  equity  between  two  or  more  states,  including  those 
involving  questions  of  boundary.  Did  they  omit  to  provide  for  the 
judicial  determination  of  controversies  arising  between  the  United 
States  and  one  or  more  of  the  states  of  the  Union?  This  question  is, 
in  effect,  answered  by  U.  S.  v.  North  Carolina,  136  U.  S.  211,  10  Sup. 
Ct.  920,  34  L,.  Ed.  336.  That  was  an  action  of  debt  brought  in  this 
court  by  the  United  States  against  the  state  of  North  Carolina  upon 
certain  bonds  issued  by  that  state.  The  state  appeared,  the  case  was 
determined  here  upon  its  merits,  and  judgment  was  rendered  for  the 
state.  It  is  true  that  no  question  was  made  as  to  the  jurisdiction  of 
this  court,  and  nothing  was  therefore  said  in  the  opinion  upon  that 
subject.  But  it  did  not  escape  the  attention  of  the  court,  and  the 
judgment  would  not  have  been  rendered  except  upon  the  theory  that 
this  court  has  original  jurisdiction  of  a  suit  by  the  United  States 
against  a  state.1     *     *     * 

[After  quoting  Const,  art.  Ill,  §  2,  pars.  1  and  2:]  It  is  apparent 
upon  the  face  of  these  clauses  that  in  one  class  of  cases  the  jurisdic- 
tion of  the  courts  of  the  Union  depends  "on  the  character  of  the 
whoever  may  be  the  parties,"  and  in  the  other,  on  the  character 
of  the  parties,  whatever  may  be  the  subject  of  controversy.  Cohens 
v.  Virginia,  6  Wheat.  264,  378,  393,  5  L.  Ed.  257.  The  present  suit 
falls  in  each  class;  for  it  is,  plainly,  one  arising  under  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States,  and  also  one  in  which 
the  United  States  is  a  party.  It  is  therefore  one  to  which,  by  the  ex- 
press words  of  the  Constitution,  the  judicial  power  of  the  United 
States  extends.  That  a  circuit  court  of  the  United  States  has  not  juris- 
diction, under  existing  statutes,  of  a  suit  by  the  United  States  against  a 
state,  is  clear ;  for  by  the  Revised  Statutes  it  is  declared — as  was  done 
by  the  judiciary  act  of  1789 — that  "the  supreme  court  shall  have  ex- 
clusive jurisdiction  of  all  controversies  of  a  civil  nature  where  a  state 
is  a  party,  except  between  a  state  and  its  citizens,  or  between  a  state 

'The  court  of  Its  own  motion  will  raise  the  question  of  jurisdiction,  Where 
doubtful.  Minnesota  v.  Hitchcock,  1S5  U.  S.  373,  382,  22  Sup.  Ct.  tT>0,  4G  L. 
Ed.  954  (tin  -2). 


1402  THE  FEDERAL  GOVERNMENT  (Part  3 

and  citizens  of  other  states,  or  aliens,  in  which  latter  cases  it  shall 
have  original,  but  not  exclusive,  jurisdiction.''     Rev.   St.  §  687;    Act 

Sept.  24,  1789,  c.  20,  §  13;  1  St.  p.  80  (U.  S.  Comp.  St.  1901,  p.  565). 
*     *     * 

Unless  a  state  is  exempt  altogether  from  suit  by  the  United  States, 
we  do  not  perceive  upon  what  sound  rule  of  construction  suits  brought 
by  the  United  States  in  this  court — especially  if  they  be  suits,  the  cor- 
rect decision  of  which  depends  upon  the  Constitution,  laws,  or  treaties 
of  the  United  States — are  to  be  excluded  from  its  original  jurisdiction 
as  defined  in  the  Constitution.  That  instrument  extends  the  judicial 
power  of  the  United  States  "to  all  cases,"  in  law  and  equity,  arising 
under  the  Constitution,  laws,  and  treaties  of  the  United  States,  and 
to  controversies  in  which  the  United  States  shall  be  a  party,  and  con- 
fers upon  this  court  original  jurisdiction  "in  all  cases"  "in  which  a 
state  shall  be  party;"  that  is,  in  all  cases  mentioned  in  the  preceding 
clause  in  which  a  state  may  of  right  be  made  a  party  defendant,  as 
well  as  in  all  cases  in  which  a  state  may  of  right  institute  a  suit,  in  a 
court  of  the  United  States.2     The  present  case  is  of  the  former  class. 

2  In  California  v.  So.  Pae.  Co.,  157  U.  S.  229,  257,  258,  261,  15  Sup.  Ct.  591, 
39  L.  Ed.  6S3  (1S95),  the  Supreme  Court  was  held  to  have  no  original  jurisdic- 
tion of  a  suit  by  a  state  against  its  own  citizens  and  those  of  other  states 
joined  as  defendants  even  though  a  federal  question  were  involved,  Fuller,  C. 
J.,  saying: 

"The  language  [of  Const.,  art.  Ill,  §  2,  par.  2],  'in  all  cases  in  which  a 
state  shall  be  party,'  means  in  all  the  cases  above  enumerated  in  which  a 
state  shall  be  a  party,  and  this  is  stated  expressly  when  the  clause  speaks  of 
the  other  cases  where  appellate  jurisdiction  is  to  be  exercised.  This  second 
clause  distributes  the  jurisdiction  conferred  in  the  previous  one  into  original 
and  appellate  jurisdiction,  but  does  not  profess  to  confer  any.  The  original 
jurisdiction  depends  solely  on  the  character  of  the  parties,  and  is  confined  to 
the  cases  in  which  are  those  enumerated  parties,  and  those  only.  Among 
those  in  which  jurisdiction  must  be  exercised  in  the  appellate  form  are  cases 
arising  under  the  Constitution  and  laws  of  the  United  States.     *     *     * 

"Under  the  Constitution  the  cases  in  which  a  state  may  be  a  party  are 
those  between  two  or  more  states;  between  a  state  and  citizens  of  another 
state ;  between  a  state  and  foreign  states,  citizens,  or  subjects ;  and  between 
the  United  States  and  a  state,  as  held  in  U.  S.  v.  Texas,  143  U.  S.  621.  12 
Sup.  Ct  488,  36  L.  Ed.  285  (1891).  *  *  •  The  original  jurisdiction  of  this 
court  in  cases  between  a  state  and  citizens  of  another  state  rests  upon  the 
character  of  the  parties,  and  not  at  all  upon  the  nature  of  the  case. 

"If,  by  virtue  of  the  subject-matter,  a  case  comes  within  the  judicial  power 
of  the  United  States,  it  does  not  follow  that  it  comes  within  the  original  ju- 
risdiction of  this  court.  That  jurisdiction  does  not  obtain  simply  because  a 
state  is  a  party.  Suits  between  a  state  and  its  own  citizens  are  not  included 
within  it  by  the  Constitution,  nor  are  controversies  between  citizens  of  differ- 
ent states. 

"It  was  held  at  an  early  day  that  Congress  could  neither  enlarge  nor  re- 
strict the  original  jurisdiction  of  this  court  Marbury  v.  Madison,  1  Cranch, 
137,  173,  174,  2  L.  Ed.  60  (1803).  And  no  attempt  to  do  so  is  suggested  here. 
The  jurisdiction  is  limited,  and  manifestly  intended  to  be  sparingly  exer- 
cised, and  should  not  be  expanded  by  construction.  What  Congress  may  have 
power  to  do  in  relation  to  the  jurisdiction  of  circuit  courts  of  the  United 
States  is  not  the  question,  but  whether,  where  the  Constitution  provides  that 
this  court  shall  have  original  Jurisdiction  in  cases  in  which  the  state  is  plain- 


Ch.  20)  JURISDICTION    OF    FEDKRAL    COURTS  140:? 

We  cannot  assume  that  the  framers  of  the  Constitution,  while  extend- 
ing the  judicial  power  of  the  United  States  to  controversies  between 
two  or  more  states  of  the  Union,  and  between  a  state  of  the  Union 
and  foreign  states,  intended  to  exempt  a  state  altogether  from  suit 
by  the  general  government.  They  could  not  have  overlooked  the  pos- 
sibility that  controversies  capable  of  judicial  solution  might  arise  be- 
tween the  United  States  and  some  of  the  states,  and  that  the  per- 
manence of  the  Union  might  be  endangered  if  to  some  tribunal  was  not 
intrusted  the  power  to  determine  them  according  to  the  recognized 
principles  of  law.  And  to  what  tribunal  could  a  trust  so  momentous 
be  more  appropriately  committed  than  to  that  which  the  people  of  the 
United  States,  in  order  to  form  a  more  perfect  Union,  establish  jus- 
tice, and  insure  domestic  tranquility,  have  constituted  with  authority 
to  speak  for  all  the  people  and  all  the  states  upon  questions  before  it 
to  which  the  judicial  power  of  the  nation  extends?  It  would  be  diffi- 
cult to  suggest  any  reason  why  this  court  should  have  jurisdiction  to 
determine  questions  of  boundary  between  two  or  more  states,  but  not 
jurisdiction  of  controversies  of  like  character  between  the  United 
States  and  a  state.     *     *     * 

[After  referring  to  Hans  v.  Louisiana,  ante,  p.  1366:]  That  ca3e, 
and  others  in  this  court  relating  to  the  suability  of  states,  proceeded 
upon  the  broad  ground  that  "it  is  inherent  in  the  nature  of  sovereignty 
not  to  be  amenable  to  the  suit  of  an  individual  without  its  consent." 

The  question  as  to  the  suability  of  one  government  by  another  gov- 
ernment rests  upon  wholly  different  grounds.  Texas  is  not  called  to 
the  bar  of  this  court  at  the  suit  of  an  individual,  but  at  the  suit  of 
the  government  established  for  the  common  and  equal  benefit  of  the 
people  of  all  the  states.  The  submission  to  judicial  solution  of  con- 
troversies arising  between  these  two  governments,  "each  sovereign, 
with  respect  to  the  objects  committed  to  it,  and  neither  sovereign  with 
respect  to  the  objects  committed  to  the  other"  (McCulloch  v.  State  of 
Maryland,  4  Wheat.  316,  400,  410,  4  L.  Ed.  579),  but  both  subject  to 
the  supreme  law  of  the  land,  does  no  violence  to  the  inherent  nature 
of  sovereignty.  The  states  of  the  Union  have  agreed,  in  the  Consti- 
tution, that  the  judicial  power  of  the  United  States  shall  extend  to 
all  cases  arising  under  the  Constitution,  laws,  and  treaties  of  the 
United  States,  without  regard  to  the  character  of  the  parties  (exclud- 
ing, of  course,  suits  against  a  state  by  its  own  citizens  or  by  citizens 
of  other  states,  or  by  citizens  or  subjects  of  foreign  states),  and  equal- 
ly to  controversies  to  which  the  United  States  shall  be  a  party,  with- 
out regard  to  the  subject  of  such  controversies,  and  that  this  court 
may  exercise  original  jurisdiction  in  all  such  cases  "in  which  a  state 

tiff  and  citizens  of  another  state  defendants,  that  Jurisdiction  can  he  held  to 
embrace  a  suit  hot  ween  a  state  and  citizens  of  another  state  and  of  the  same 
state.  We  are  of  opinion  that  our  original  Jurisdiction  cannot  be  thus  ex- 
tended." 

See  Cohens  v.  Virginia,  R  Wheat  264.  392-394.  398.  .•>  h.   Kd.  2.r.7  (1821). 


1402 


THE   FEDERAL   GOVERNMENT 


(Part  3 


and  citizens  of  other  states,  or  aliens,  in  which  latter  cases  it  shall 
have  original,  but  not  exclusive,  jurisdiction."  Rev.  St.  §  687;  Act 
Sept.  24,  1789,  c.  20,  §  13;  1  St.  p.  80  (U.  S.  Comp.  St.  1901,  p.  565). 
*     *     * 

Unless  a  state  is  exempt  altogether  from  suit  by  the  United  States, 
we  do  not  perceive  upon  what  sound  rule  of  construction  suits  brought 
by  the  United  States  in  this  court — especially  if  they  be  suits,  the  cor- 
rect decision  of  which  depends  upon  the  Constitution,  laws,  or  treaties 
of  the  United  States — are  to  be  excluded  from  its  original  jurisdiction 
as  defined  in  the  Constitution.  That  instrument  extends  the  judicial 
power  of  the  United  States  "to  all  cases,"  in  law  and  equity,  arising 
under  the  Constitution,  laws,  and  treaties  of  the  United  States,  and 
to  controversies  in  which  the  United  States  shall  be  a  party,  and  con- 
fers upon  this  court  original  jurisdiction  "in  all  cases"  "in  which  a 
state  shall  be  party;"  that  is,  in  all  cases  mentioned  in  the  preceding 
clause  in  which  a  state  may  of  right  be  made  a  party  defendant,  as 
well  as  in  all  cases  in  which  a  state  may  of  right  institute  a  suit- in  a 
court  of  the  United  States.2     The  present  case  is  of  the  former  class. 


2  In  California  v.  So.  Pac.  Co.,  157  U.  S.  229,  257,  258,  261,  15  Sup.  Ct.  591, 
39  L.  Ed.  6S3  (1895),  the  Supreme  Court  was  held  to  have  no  original  Jurisdic- 
tion of  a  suit  by  a  state  against  its  own  citizens  and  those  of  other  states 
joined  as  defendants  even  though  a  federal  question  were  involved,  Fuller,  C. 
J.,  saying: 

"The  language  [of  Const.,  art.  Ill,  §  2,  par.  2],  'in  all  cases  in  which  a 
state  shall  be  party,'  means  in  all  the  cases  above  enumerated  in  which  a 
state  shall  be  a  party,  and  this  is  stated  expressly  when  the  clause  speaks  of 
the  other  cases  where  appellate  jurisdiction  is  to  be  exercised.  This  second 
clause  distributes  the  jurisdiction  conferred  in  the  previous  one  into  original 
and  appellate  jurisdiction,  but  does  not  profess  to  confer  any.  The  original 
jurisdiction  depends  solely  on  the  character  of  the  parties,  and  is  confined  to 
the  cases  in  which  are  those  enumerated  parties,  and  those  only.  Among 
those  in  which  jurisdiction  must  be  exercised  in  the  appellate  form  are  cases 
arising  under  the  Constitution  and  laws  of  the  United  States.     •     *     * 

"Under  the  Constitution  the  cases  in  which  a  state  may  be  a  party  are 
those  between  two  or  more  states;  between  a  state  and  citizens  of  another 
state ;  between  a  state  and  foreign  states,  citizens,  or  subjects ;  and  between 
the  United  States  and  a  state,  as  held  in  U.  S.  v.  Texas,  143  U.  S.  621,  12 
Sup.  Ct  4S8,  36  L.  Ed.  2S5  (1S91).  *  »  *  The  original  jurisdiction  of  this 
court  in  cases  between  a  state  and  citizens  of  another  state  rests  upon  the 
character  of  the  parties,  and  not  at  all  upon  the  nature  of  the  case. 

"If,  by  virtue  of  the  subject-matter,  a  case  comes  within  the  judicial  power 
of  the  United  States,  it  does  not  follow  that  it  comes  within  the  original  ju- 
risdiction of  this  court.  That  jurisdiction  does  not  obtain  simply  because  a 
state  is  a  party.  Suits  between  a  state  and  its  own  citizens  are  not  included 
within  it  by  the  Constitution,  nor  are  controversies  between  citizens  of  differ- 
ent states. 

"It  was  held  at  an  early  day  that  Congress  could  neither  enlarge  nor  re- 
strict the  original  jurisdiction  of  this  court  Marbury  v.  Madison,  1  Cranch, 
137,  173,  174,  2  L.  Ed.  60  (1S03).  And  no  attempt  to  do  so  is  suggested  here. 
The  jurisdiction  is  limited,  and  manifestly  intended  to  be  sparingly  exer- 
cised, and  should  not  be  expanded  by  construction.  What  Congress  may  have 
power  to  do  in  relation  to  the  jurisdiction  of  circuit  courts  of  the  United 
States  is  not  the  question,  but  whether,  where  the  Constitution  provides  that 
this  court  shall  have  original  Jurisdiction  in  cases  in  which  the  state  is  plain- 


APPENDIX    I 


[CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA]1 


Wb  the  People  of  the  United  States,  In  Order  to  form  a  more  perfect  Union, 
establish  Justice,  insure  domestic  Tranquility,  provide  for  the  common  de- 
fence, promote  the  general  Welfare,  and  secure  the  Blessings  of  Liberty 
to  ourselves  and  our  Posterity,  do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America. 

ARTICLE.  I. 

Section.  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and  House  of  ltep- 
resentatives. 

Section.  2.  [1.]  The  House  of  Representatives  shall  be  composed  of  Mem- 
bers chosen  every  second  Year  by  the  People  of  the  several  States,  and  the 
Electors  in  each  State  shall  have  the  Qualifications  requisite  for  Electors  of 
the  most  numerous  Branch  of  the  State  Legislature. 

[2]  No  Person  shall  be  a  Representative  who  shall  not  have  attained  to 
of  twenty  live  Years,  and  been  seven  Years  a  Citizen  of  the  United 
States,  ami  who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  In 
which  he  shall  be  chosen. 

[3.]  Representatives  and  direct  Taxes  shall  be  apportioned  among  the  sev- 
eral States  which  may  be  included  within  this  Union,  according  to  their  re- 
spective Numbers,  which  shall  be  determined  by  adding  to  the  whole  Number 
of  free  Persons,  including  those  bound  to  Service  for  a  Term  of  Years,  and 
excluding  Indians  not  taxed,  three  fifths  of  all  other  Persons.*  The  actual 
Enumeration  shall  be  made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of   the    United    States,    and   within    every   subsequent   Term    of   ten 

1  TlTis  copy  of  the  Constitution  (through  Amendment  XV)  is  reprinted  from 
American  History  Leaflet  .No.  S,  published  by  Parker  1'.  Simmons,  New  York  City. 
It  was  prepared  by  Professors  Albert  B.  Hart  and  Edward  Chanuing,  of  Har- 
vard 1  Diversity  :  and  is  stated  to  be  the  result  of  a  careful  comparison  with  the 
original  manuscripts  of  the  Constitution  and  Amendments  on  February  10,  11, 
1893,  and  to  In-  intended  to  be  absolutely  exact  in  word,  spelling,  capitalization, 
mimI    punctuation.      It    is   here    used    by    permission   of   the    editors   and    pul 

One  error  in  spelling  and  one  in  paragraphing  have  been  corrected  by  a  com- 
parison with  the  fa. --simile  text  of  the  Constitution  published  in  Carson's 
History  of  the  Celebration  of  the  lOOth  Anniversary  of  the  Constitution, 
and  the  signatures  of  the  signers  have  also  '  been  corrected  i  v  this  text. 
Three  of  the  editors'  original  notes  are  retained,  marked  "Ed."  The  other  notes 
are  by  the  editor  of  this  Casebook.  The  words  and  figures  inclosed  in  1 
do  not  appear  in  the  original  manuscripts  and  are  inserted  for  conveniens, 
reference,   most  of  them  being  thus  used   in  Leaflet  No.  8.     The  text  of  Amend 

2  Superseded  by  Amend.  XIV,  [§  2]— Ed. 

(1  105) 


1406  APPENDIX  I — U.  8.  CONSTITUTION  (Art.  I 

Tears,  In  such  Manner  as  they  shall  by  Law  direct.  The  Number  of  Repre- 
sentatives shall  not  exceed  one  for  every  thirty  Thousand,  but  each  State 
shall  have  at  Least  one  Representative;  and  until  such  enumeration  shall  be 
made,  the  State  of  New  Hampshire  shall  be  entitled  to  chuse  three,  Massa- 
chusetts eight,  Rhode-Island  and  Providence  Plantations  one,  Connecticut 
five,  New-York  six,  New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Mary- 
land six,  Virginia  ten,  North  Carolina  five,  South  Carolina  five,  and  Georgia 
three. 

[4.]  When  vacancies  happen  in  the  Representation  from  any  State,  the  Ex- 
ecutive Authority  thereof  shall  issue  Writs  of  Election  to  fill  such  Vacancies-. 

[5.]  The  House  of  Representatives  shall  chuse  their  Speaker  and  other  Of- 
ficers ;    and  shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  [1.]  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six  Years; 
and  each  Senator  shall  have  one  Vote.     [Superseded  by  Amend.  XVII.] 

12.]  Immediately  after  they  shall  be  assembled  in  Consequence  of  the  first 
Election,  they  shall  be  divided  as  equally  as  may  be  into  three  Classes.  The 
Seats  of  the  Senators  of  the  first  Class  shall  be  vacated  at  the  Expiration  of 
the  second  Year,  of  the  second  Class  at  the  Expiration  of  the  fourth  Year, 
and  of  the  third  Class  at  the  Expiration  of  the  sixth  Year,  so  that  one  third 
may  be  chosen  every  second  Year;  and  if  Vacancies  happen  by  Resignation, 
or  otherwise,  during  the  Recess  of  the  Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  Appointments  until  the  next  Meeting  of  the 
Legislature,  which  shall  then  fill  such  Vacancies. 

[3.]  No  Person  shall  be  a  Senator  who  shall  not  have  attained  to  the  Age 
of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the  United  States,  and  who 

ments  XVI  and  XVII  has  been  taken  from  the  official  certifications  of  adoption 
issued  by  Secretaries  of  State  Knox  and  Bryan  on  February  25,  1913,  and  on 
May  31,  1913. 

Impobtant  Events  Leading  to  Union  under  Constitution. 

May,  1754.  Meeting  at  Albany  of  25  commissioners  from  seven  colonies,  under 
instructions  from  the  British  Board  of  Trade,  to  consider  plans  for  a  de- 
fensive union  of  the  colonies  against  the  French. 

October,  1765.  "Stamp  Act  Congress,"  composed  of  delegates  from  nine  states, 
met  at  New  York  to  protest  against  British  colonial  taxation. 

September  5 — October  20,  1774.  First  Continental  Congress,  composed  of  dele- 
gates from  12  colonies,  met  at  Philadelphia  and  recommended  peaceful  con- 
certed action  against  British   taxation  and  coercion. 

April  19,  1775.     Beginning  of  Revolution.     Battle  of  Lexington  and  Concord. 

May  10,  1775.  Second  Continental  Congress  met  at  Philadelphia  and  assumed 
direction  of  the  war.  Recommended  the  formation  of  revolutionary  colonial 
governments. 

July  4,  1776.     Declaration  of  Independence  by  Congress. 

November  15,  1777.     Articles  of  Confederation  proposed  by  Congress. 

March  1,  1781.  Confederation  became  operative  by  ratification  of  the  last  state, 
Maryland. 

September  3,  1783.  Conclusion  of  treaty  of  peace  with  Great  Britain,  ratified 
by  Congress  on   January   14,  1784. 

July  13,  17S7.  Passage  by  Congress  of  Ordinance  of  17S7  for  government  of 
Northwest  Territory  ceded  to  Congress  by  various  states,  17S0-1787. 

September,  17S6.  Meeting  at  Annapolis  of  commissioners  from  five  states  to 
consider  the  trade  of  the  United  States.  A  convention  of  all  the  states  rec- 
ommended. 

February  21,  1787.  Declaration  by  Congress  in  favor  of  a  convention  of  dele- 
gates from  the  states  to  revise  the  Articles  of  Confederation  and  report  tc 
Congress  the  changes  necessary. 

May  25— September  17.  1787.  Meeting  at  Philadelphia  of  delegates  from  all  of 
the  states  except  Rhode  Island.  The  Constitution  agreed  upon  and  laid  be- 
fore Congress  with  the  recommendation  that  it  be  submitted  to  conventions 
of  delegates  chosen  by  the  people  of  each  state  as  directed  by  its  lesislature, 
and  that  when  nine  states  had  ratified  it  Congress  should  enact  the  neces- 
sary provisions  for  putting  it  into  operation. 

September  28,  17S7.  Congress  submitted  the  Constitution  to  the  states,  as  rec 
ommended.     For   subsequent  steps   in  its  adoption,  see  note  5,  below. 


Art.  I)  APPENDIX  I — U.  8.  CONSTITUTION  1407 

shall  not,  when  elected,  be  an  Inhabitant  of  that  State  for  which  he  shall  be 
chosen. 

[4.  J  The  Vice  President  of  the  United  States  shall  be  President  of  the  Senate, 
but  shall  have  no  Vote,  unless  they  be  equally  divided. 

[5.]  The  Senate  shall  chuse  their  other  Officers,  and  also  a  President  pro 
tempore,  in  the  Absence  of  the  Vice  President,  or  when  he  shall  exercise  the 
Office  of  President  of  the  United  States, 

[•;.  1  The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments.  When 
sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation.  When  the 
President  of  the  United  States  is  tried,  the  Chief  Justice  shall  preside:  And 
no  Person  shall  be  convicted  without  the  Concurrence  of  two  thirds  of  the 
Members  present 

[7.]  Judgment  in  Cases  of  Impeachment  shall  not  extend  further  than  to 
removal  from  Office,  and  disqualification  to  hold  and  enjoy  any  Office  of 
honor,  Trust  or  Profit  under  the  United  States  :  but  the  Party  convicted  shall 
nevertheless  be  liable  and  subject  to  Indictment,  Trial,  Judgment  and  Pun- 
ishment, according  to  Law. 

Section.  4.  [1.]  The  Times,  Places  and  Manner  of  holding  Elections  for  Sen- 
ators and  Representatives,  shall  be  prescribed  in  each  State  by  the  Legislature 
thereof;  but  the  Congress  may  at  any  time  by  Law  make  or  alter  such  Regu 
latious,  except  as  to  the  Places  of  chusing  Senators. 

[2.]  The  Congress  shall  assemble  at  least  once  in  every  Year,  and  su'h  Meet- 
ing shall  be  on  the  first  Monday  in  December,  unless  they  shall  by  Law  ap- 
point a  different  Day. 

Section.  5.  [1.]  Each  House  shall  be  the  Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  .Members,  and  a  Majority  of  each  shall  constitute 
a" Quorum  to  do  Business;  but  a  smaller  Number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of  absent  Members.  In 
such  Manner,  and  under  such  Penalties  as  each  House  may  provide. 

[2.]  Each  House  may  determine  the  Rules  of  its  Proceedings,  punish  Its 
Members  for  Disorderly  Behaviour,  and.  with  the  Concurrence  of  two  thirds, 
expel  a  Member. 

|.;  1  Bach  House  shall  keep  a  Journal  of  its  Proceedings,  and  from  time 
to  time  publish  the  same,  excepting  such  Parts  as  may  in  their  Judgment 
require  Secrecy;  and  the  Yeas  and  Xa.vs  of  the  Members  of  either  House  on 
any  question  shall,  at  the  Desire  of  one  fifth  of  those  Present,  be  entered  on 
the  Journal. 

[4.]  Neither  House,  during  the  Session  of  Congress,  shall,  without  the  Con- 
sent of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  Place 
than  that  in  which  the  two  Houses  shall  be  sitting. 

[ON.  0.  [l.J  The  Senators  and  Representatives  shall  receive  a  Compensa- 
tion for  their  Services,  to  be  ascertained  by  Law,  and  paid  out  of  the  Treasury 
of  the  United  States.  They  shall  In  all  Cases,  except  Treason.  I'elony  and 
Breach  of  the  Peace,  be  privileged  from  Arrest  during  their  Attendance  at 
the  Session  of  their  respective  Houses,  and  in  going  to  and  returning  from 
the  same;  and  for  any  Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

[2.]  No  Senator  or  Representative  shall,  during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  civil  Office  under  the  Authority  of  the  United 
States,  which  shall  have  been  created,  or  the  Emoluments  whereof  shall  have 
been  encreased  during  such  time;  and  no  Person  holding  any  Office  under 
the  United  States,  shall  be  a  member  of  either  House  during  his  Continuance 
in  Office. 

Section.  7.  [1.]  All  Bills  for  raising  Revenue  shall  originate  in  the  House 
of  Representatives;  but  the  Senate  may  propose  or  concur  with  Amendments 
as  on  other  Bills. 

[2.]  Every  Bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate,  shall,  before  it  become  a  Law,  be  presented   to  the  President  of 


1408  APPENDIX  I — U.  S.  CONSTITUTION  (Art.  I 

the  United  States ;  If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return 
it.  with  his  Objections  to  that  ftouse  in  which  it  shall  have  originated,  who 
shall  enter  the  Objections  at  large  on  their  Journal,  and  proceed  to  recon- 
sider it.  If  after  such  Reconsideration  two  thirds  of  that  House  shall  agree 
to  pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections,  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved  by  two 
thirds  of  that  House,  it  shall  become  a  Law.  But  in  all  such  Cases  the  Votes 
of  both  Houses  shall  be  determined  by  yeas  and  Nays,  and  the  Names  of  the 
Persons  voting  for  and  against  the  Bill  shall  be  entered  on  the  Journal  of 
each  House  respectively.  If  any  Bill  shall  uot  be  returned  by  the  President 
within  ten  Days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him, 
the  same  shall  be  a  Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the 
Congress  by  their  Adjournment  prevent  its  Return,  in  which  Case  it  shall  not 
be  a  Law. 

[3.]  Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the  Sen- 
ate and  House  of  Representatives  may  be  necessary  (except  on  a  question  of 
Adjournment)  shall  be  presented  to  the  President  of  the  United  States ;  and 
before  the  same  shall  take  Effect,  shall  be  approved  by  him,  or  being  dis- 
approved by  him,  shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules  and  Limitations  prescribed  in  the  Case 
of  a  Bill. 

Section.  8.  The  Congress  shall  have  Power  [1.]  To  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  common  De- 
fence and  general  Welfare  of  the  United  States;  but  all  Duties,  Imposts  and 
Excises  shall  be  uniform  throughout  the  United  States; 

[2.]  To  borrow  Money  on  the  credit  of  the  United  States; 

[3.]  To  regulate  Commerce  with  foreign  Nations,  and  among  the  several 
States,  and  with  the  Indian  Tribes ; 

[4.]  To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws  on 
the  subject  of  Bankruptcies  throughout  the  United  States; 

[5.]  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and 
fix  the  Standard  of  Weights  and  Measures; 

[G.]  To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and  cur- 
rent Coin  of  the  United  States ; 

[".]  To  establish  Post  Offices  and  post  Roads; 

[8.]  To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for 
limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  their  respec- 
tive Writings  and  Discoveries; 

[9.]  To  constitute  Tribunals  inferior  to  the  supreme  Court; 

[10.]  To  define  and  punish  Piracies  and  Felonies  committed  on  the  high 
Sims,  and  Offences  against  the  Law  of  Nations; 

[11.]  To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make 
Rules  concerning  Captures  on  Land  and  Water; 

[12.]  To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to  that 
Use  shall  be  for  a  longer  Term  than  two  Tears; 

[13.]  To  provide  and  maintain  a  Navy; 

[14.]  To  make  Rules  for  the  Government  and  Regulation  of  the  land  and 
naval  Forces; 

[15.]  To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the 
Union,  suppress  Insurrections  and  repel  Invasions; 

[16.]  To  provide  for  organizing,  arming,  and  disciplining,  the  Militia,  and 
for  governing  such  Part  of  them  as  may  be  employed  in  the  Service  of  the 
United  States,  reserving  to  the  States  respectively,  the  Appointment  of  the 
Officers,  and  the  Authority  of  training  the  Militia  according  to  the  discipline 
prescribed  by  Congress ; 

[17.]  To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such 
District  (not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  particular 
States,  and  the  Acceptance  of  Congress,  become  the  Seat  of  the  Government 


Art.  11)  APPENDIX  I — U.  8.  CONSTITUTION  L409 

of  the  United  States,  and  to  exercise  like  Authority  over  all  Places  purchased 
by  the  Consent  of  the  Legislature  of  the  State  In  which  the  same  shall  be,  for 
action  of  Forts,   Magazines,  Arsenals,  dock- Yards,  and  other   needful 
Buildings; — And 

[18.1  To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying 
into  Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by  this  Con- 
stitution in  the  Government  of  the  United  States,  or  In  any  Department  or 
i  ifflcer  thereof. 

SECTION.  0.  [1.]  The  Migration  or  Importation  of  such  Persons  as  any  of  the 

States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the 

:ss  prior  to  the  Year  one  thousand  eight  hundred  and  eight,  but  a  Tax 

or  duty  may  be  imposed  on  such  Importation,  not  exceeding  ten  dollars  for 

each  Person. 

[2.]  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended,  an 
less  when  In  Cases  of  Rebellion  or  Invasion  the  public  Safety  may  require  it. 

[3.]  No  Hill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

I  1. 1  Xo  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless  in  Proportion 
to  the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

15.]  No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

[6.]  No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or  Rev- 
enue to  the  Ports  of  one  State  over  those  of  another:  nor  shall 
to.  or  from,  one  State,  he  obliged  to  enter,  clear,  or  pay  Duties  In  another. 

IT.)  No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequent 
propriations  made  by  Law;   and  a  regular  Statement  and  Account  of  tli"  Re- 
ceipts and  Expenditures  of  all  public  Money  shall  be  published  from 
time. 

[8.]  No  Title  of  Nobility  shall  be  granted  by  the  United  States:     Ami   no 
Person  holding  any  Office  of  Profit  or  Trust  under  them,  shall,  with 
Consent  of  the  Congress,  accept  of  any  present,  Emolument,  Office,  or  I 
any  kind  whatever,  from  any  King,  Prince,  or  foreign  State. 

Section.  10.  [1.]  No  State  shall  enter  into  any  Treaty,  Alliance,  or  Confed- 
eration; grant  Letters  of  Marque  and  Reprisal;  coin  Money;  emit  Bills  of 
Credit;  make  any  Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of 
Debts;  pass  any  Bill  of  Attainder,  ex  post  facto  Law,  or  Law  impairing  the 
Obligation  of  Contracts,  or  grant  any  Title  of  Nobility. 

[2.]  No  State  shall,  without  the  Consent  of  the  Congress,  lay  any   I 
or  Duties  on  Imports  or  Exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  Laws:    and  the  net  Produce  of  all  Du; 
Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall  be  for  the  Use  of  the 
Treasury  of  the  United  States;    and  all  such  Laws  shall  be  subject  to  the 
Revision  and  Controul  of  the  Congress. 

[3.]  No  State  shall,  without  the  Consent  of  Congress,  lay  any  Duty  of  Ton- 
nage, keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into  any 
ment  or  Compact  with  another  State,  or  with  a  foreign  Power,  or  el 
War,  unless  actually  Invaded,  or  in  such  imminent  Danger  as  will  not  admit 
of  delay. 

ARTICLE.  II. 

Section.  1.  [1.]  The  executive  Power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  Office  during  the  Term  of  four 
Years,  and,  together  with  the  Vice  President,  chosen  for  tin.'  same  Term,  be 
elected,  as  follows 

[2.]  Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof 
may  direct,  a  Number  of  Electors,  equal  to  the  whole  Number  of  Senators  and 
Representatives  to  which  the  State  may  be  entitled  In  the  Congress:  but  no 
Hall  Const.L—  89 


1410  APPENDIX  I— U.  8.  CONSTITUTION  (Art.  1J 

Senator  or  Representative,  or  Person  holding  an  Office  of  Trust  or  Profit  un- 
der the  United  States,  shall  he  appointed  an  Elector. 

[3.]  The  Electors  shall  meet  iu  their  respective  States,  and  vote  by  Ballot 
for  two  Persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the  same 
State  with  themselves.  And  they  shall  make  a  List  of  all  the  Persons  voted 
for,  aud  of  the  Number  of  Votes  for  each;  which  List  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  Seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  President  of  the  Senate 
shall,  in  the  Presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  Certificates,  and  the  Votes  shall  then  be  counted.  The  Person  having  the 
greatest  Number  of  Votes  shall  be  the  President,  if  such  Number  be  a  Ma- 
jority of  the  whole  Number  of  Electors  appointed;  and  if  there  be  more  than 
one  who  haye  such  Majority,  and  have  an  equal  Number  of  Votes,  then  the 
House  of  Representatives  shall  immediately  chuse  by  Ballot  one  of  them  for 
President;  and  if  no  Person  have  a  Majority,  then  from  the  five  highest  on 
the  List  the  said  House  shall  in  like  Manner  chuse  the  President.  But  iu 
chusing  the  President,  the  Votes  shall  be  taken  by  States,  the  Representation 
from  each  State  having  one  Vote;  A  quorum  for  this  Purpose  shall  consist  of  a 
Member  or  Members  from  two  thirds  of  the  States,  and  a  Majority  of  all  the 
States  shall  be  necessary  to  a  Choice.  In  every  Case,  after  the  Choice  of  the 
President,  the  Person  having  the  greatest  Number  of  Votes  of  the  Electors 
shall  be  the  Vice  President.  But  if  there  should  remain  two  or  more  who 
have  equal  Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the  Vice  Presi 
dent,  s  ' 

[4.]  The  Congress  may  determine  the  Time  of  chusing  the  Electors,  and  the 
Day  on  which  they  shall  give  their  Votes;  which  Day  shall  be  the  same 
throughout  the  United  States. 

[5.]  No  Person  except  a  natural  horn  Citizen,  or  a  Citizen  of  the  United 
States,  at  the  time  of  the  Adoption  of  this  Constitution,  shall  be  eligible  t" 
the  Office  of  President;  neither  shall  any  Person  be  eligible  to  that  Office  who 
shall  not  have  attained  to  the  Age  of  thirty  five  Years,  and  been  fourteen 
Years  a  Resident  within  the  United  States. 

[6.]  In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his  Death, 
Resignation,  or  Inability  to  discharge  the  Powers  and  Duties  of  the  said 
Office,  the  Same  shall  devolve  on  the  Vice  President,  and  the  Congress  may 
by  Law  provide  for  the  Case  of  Removal,  Death,  Resignation,  or  Inability, 
both  of  the  President  and  Vice  President,  declaring  what  Officer  shall  then  act 
as  President,  and  such  Officer  shall  act  accordingly,  until  the  Disability  be 
removed,  or  a  President  shall  be  elected. 

[7.]  The  President  shall,  at  stated  Times,  receive  for  his  Services,  a  Com- 
pensation, which  shall  neither  be  encreased  nor  diminished  during  the  Period 
for  which  he  shall  have  been  elected,  and  he  shall  not  receive  within  that  Pe- 
riod any  other  Emolument  from  the  United  States,  or  any  of  them. 

[8.]  Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  fol- 
lowing Oath  or  Affirmation: — "I  do  solemnly  swear  (or  affirm)  that  I  will 
faithfully  execute  the  Office  of  President  of  the  United  States,  and  will  to  the 
best  of  my  Ability,  preserve,  protect  and  defend  the  Constitution  of  the  United 
States." 

Sectiox.  2.  [1.]  The  President  shall  be  Commander  in  Chief  of  the  Army 
and  Navy  of  the  United  States,  and  of  the  Militia  of  the  several  States,  when 
called  into  the  actual  Service  of  the  United  States;  he  may  require  the  Opin- 
ion, in  writing,  of  the  principal  Officer  in  each  of  the  executive  Departments, 
upon  any  Subject  relating  to  the  Duties  of  their  respective  Offices,  and  he 
shall  have  Power  to  grant  Reprieves  and  Pardons  for  Offences  against  the 
United  States,  except  in  Cases  of  Impeachment. 

[2.]  He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the  Sen- 

a  Superseded  by  Amend.  XTL— Ed. 


Art.  HI)  APPENDIX  I — U.  8.  CONSTITUTION  1411 

ate,  to  make  Treaties,  provided  two  thirds  of  the  Senators  present  concur; 
and  he  shall  nominate,  and  1  > >-  and  with  t lie  Advice  and  Consent  of  t ii«-  Sen 
ate,  shall  appoint  Ambassadors,  other  public  Ministers  and  C01 

apreme  Court,  and  all  other  Officers  of  the  United  States,  wb 
poiutments  are  not  herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished  by  Law:    but  the  Congress  may  by  Law  vest  the  Appointment  of  such 
Inferior  Officers,  as  they  think  proper,  in  the  President  alone,  In  the  Courts 
of  Law,  or  in  the  Heads  of  Departments. 

[3.]  The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  bap- 
Inn  during  the  Recess  of  the  Senate,  by  granting  Commissions  which  shall 
expire  at  the  End  of  their  next  Session. 

Se<  riON.  ■':.  lie  shall  from  time  to  time  give  to  the  Congress  Information 
of  the  State  of  the  Union,  and  ri  their  Consideration  such 

ures  as  he  shall  judge  necessary  and  expedient;  be  may,  on  extraordinary 
Occasions,  convene  both  Houses,  or  either  of  them,  and  in  Case  of  Disagree- 
ment between  them,  with  Respect  to  the  Time  of  Adjournment,  he  may  ad- 
journ them  to  such  Time  as  he  shall  think  proper;  he  shall  receive  Ai 
dors  and  other  public  Ministers;  he  shall  take  Care  that  the  Laws  he  faith- 
fully executed,  and  shall  Commission  all  the  Officers  of  the  United  SI 

Section.  4.  The  President,  Vice  President  and  all  civil  Officers  of  the 
I'liited  states,  shall  be  removed  from  Office  on  Impeachment  for,  aud  Convic- 
tion of,  Treason,  Bribery,  or  other  high  Crimes  and  Misdemeanors 

ARTICLE    III. 

Section.  1.     The  Judicial  Power  of  the  United  States,  shall  be  vested  In  one 
supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and   establish,     The  Judges,   both  of  the  supreme  and 
Courts,  shall  hold  their  Offices  during  good  Behaviour,  aud  shall,  al 
Times,  receive  for  their  Services,  a  i  'ompensation,  which  shall  not  be  dimin- 
ished during  their  Continuance  in  Office. 

Section-.  2.  11.1  The  judicial   Power  shall  extend  to  all   Cases,  in  Law  and 
Equity,  arising  under  this  Constitution,   the  Laws  of  the  United   States,  and 
Treaties  made,  or  which  shall  be  made,  under  their  Authority; — to  all  Cases 
affecting  Ambassadors,  other  public  Ministers  and  Consuls; — to  all  ( 
admiralty  and  maritime  Jurisdiction; — to  Controversies  to  which  thi 
Stales  shall  he  a   Tarty; — to  Controversies  between  two  or  more  States; — be- 

i  siate  and  Citizens  of  another  State;* — between  Citizens  ol 
ent  States,— between  Citizens  of  the  same  State  claiming  Lands  under  Grants 
of  different  SI  i  etween  a  state,  or  the  Citizens  thereof,  and 

States.  Citizens  or  Subjects, 

l-.|  lii  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls, 
and  those  in  which  a  State  shall  he  Party,  the  supreme  Court  shall  have  orig- 
inal Jurisdiction.  In  all  the  other  Cases  before  mentioned,  the  supreme  Court 
shall  have  appellate  Jurisdiction,  both  as  to  Law  and   Fact,    with  such   QxceP 

tions.  and  under  such  R  e  the  Congress  shall  make. 

[8.]  The  Trial   of  all   Crimes,   except   in   Cases   of    !  Dt,   shall  be  In- 

jury: and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes  shall 
have  been  committed;  but  when  not  committed  within  any  State,  the  Trial 
shall  be  at  such   Place  or   Places  as  the  Congress  may   by   Law   have  directed 

Section.  3.  [1.]  Treason  against   the  United  states,  shall  consist  only  in 

levying  War  against  them,  or  in  adhering  to  their  Enemies,  giving  them  Ait! 
and  Comfort  No  Person  shall  be  convicted  of  Treason  unless  on  the  Test! 
mony  of  two  Witnesses  t ■  >  the  same  overt  Act.  or  on  Confession  in  open  Court. 
[2.]  The  Congress  shall  have  Tower  to  declare  the  Punishment  of  Treason, 
but  no  Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  Forfeiture 
except  during  the  Life  of  the  Person  attainted. 

«  See  Amend.   XL 


1412  APPENDIX  I — U.  S.  CONSTITUTION  (Art.  IV 


ARTICLE.  IV. 

Section.  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the  pub- 
lic Acts,  Records,  and  judicial  Proceedings  of  every  other  State.  And  the 
Congress  may  by  general  Laws  prescribe  the  Manner  in  which  such  Acts, 
Records  and  Proceedings  shall  be  proved,  and  the  Effect  thereof. 

Section.  2.  [1.]  The  Citizens  of  each  State  shall  be  entitled  to  all  Privileges 
and  Immunities  of  Citizens  in  the  several  States. 

[2.]  A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime, 
who  shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on  Demand 
of  the  executive  Authority  of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  Jurisdiction  of  the  Crime. 

[3.]  No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws 
thereof,  escaping  into  another,  shall,  in  Consequence  of  any  Law  or  Regulation 
therein,  be  discharged  from  such  Service  or  Labour,  but  shall  be  delivered  up 
on  Claim  of  the  Party  to  whom  such  Service  or  Labour  may  be  due. 

Section.  3.  [1.]  New  States  may  be  admitted  by  the  Congress  into  this 
Union ;  but  no  new  State  shall  be  formed  or  erected  within  the  Jurisdiction 
of  any  other  State;  nor  any  State  be  formed  by  the  Junction  of  two  or  more 
States,  or  Parts  of  States,  without  the  Consent  of  the  Legislatures  of  the 
States  concerned  as  well  as  of  the  Congress. 

[2.]  The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful 
Rules  and  Regulations  respecting  the  Territory  or  other  Property  belonging  tc 
the  United  States;  and  nothing  in  this  Constitution  shall  be  so  construed  as 
to.  Prejudice  any  Claims  of  the  United  States,  or  of  any  particular  State. 

Section.  4.  The  United  States  shall  guarantee  to  every  State  in  this  Union 
a  Republican  Form  of  Government,  and  shall  protect  each  of  them  against  In- 
vasion; and  on  Application  of  the  Legislature,  or  of  the  Executive  (when  the 
Legislature  cannot  be  convened)  against  domestic  Violence. 

ARTICLE.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it  neces- 
sary, shall  propose  Amendments  to  this  Constitution,  or,  on  the  Application 
of  the  Legislatures  of  two  thirds  of  the  several  States,  shall  call  a  Convention 
for  proposing  Amendments,  which,  in  either  Case,  shall  be  valid  to  all  Intents 
and  Purposes,  as  Part  of  this  Constitution,  when  ratified  by  the  Legislatures 
of  three  fourths  of  the  several  States,  or  by  Conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  Mode  of  Ratification  may  be  proposed  by  the 
Congress ;  Provided  that  no  Amendment  which  may  be  made  prior  to  the  Year 
One  thousand  eight  hundred  and  eight  shall  in  any  Manner  affect  the  first 
and  fourth  Clauses  in  the  Ninth  Section  of  the  first  Article;  and  that  no 
State,  without  its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the 
Senate. 

ARTICLE.  VI. 

[1.]  All  Debts  contracted  and  Engagements  entered  into,  before  the  Adop- 
tion of  this  Constitution,  shall  be  as  valid  against  the  United  States  under 
this  Constitution,  as  under  the  Confederation. 

[2.]  This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be 
made  in  Pursuance  thereof;  and  all  Treaties  made,  or  which  shall  be  made, 
under  the  Authority  of  the  United  States,  shall  be  the  supreme  Law  of  the 
Land ;  and  the  Judges  in  every  State  shall  be  bound  thereby,  any  Thing  in 
the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwithstanding. 

[3.]  The  Senators  and  Representatives  before  mentioned,  and  the  Members 
of  the  several  State  Legislatures,  and  all  executive  and  judicial  Officers,  both 
of  the  United  States  and  of  the  several   States,  shall  be  bound  by  Oath  or 


Art.  VII) 


AITKNDIX   I — U.  S.  CONSTITUTION 


Mi:: 


Affirmation,  to  support  this  Constitution;  but  no  religious  Test  shall  ever  be 
required  as  a  Qualification  to  any  Qffice  or  public  Trust  under  the  United 
.States. 

ARTICLE.  VII. 

Conventions  of  nine  States,  shall  be  sufficient  for 
Constitution  between  the  States  so  ratifying  the 

done   in  Convention   by  the   Unanimous  Consent  of  tnc 
States  present  the  Seventeenth  Day  of  September  In  the 
Year    of    our    I^ord    one    thou'-and    seven    hundred    and 
Eighty    seven    and    of    the    Independance    of    the    I 
Stads   of    America   the    Twelfth    In    Wltne»N    v 
We  have  hereunto  subscribed  our  names. 

Go    WASHINGTON - 
Presidt  and  deputy  from  Virginia. 

New  BampslUre, 


The  Ratification  of  the 
tablisbment  of  this 
Same.* 

[Note    of    the    draughtsman 
as    to    Interlineations   in    the 
text  of   the    manuscript.] 
Attest 

William    Jackson 

tary. 

Ih  Imrare. 
.1  Oi    Read 
j  Ginning  Bedford  jun 
J  John    Dickinson 

j  RlCIIABD    BASSETT 

|Jaco:  Broom 

Maryland, 

[James  McHenry 
J  Dan  of  St  Tuos.  Jenifer 
|Danl  Carroll 

Virginia. 
(John  Blair — 
/James  Madison   Jb. 


{John  Lanodon       ) 
Nicholas    Oilman  J 

Massachittetti. 

{Nathaniel  Gobiiam 
Rufus  Kino 

Connecticut. 

|  Wii :  Saml.  Johnson 
|  Roger  Sherman 

Sew  York. 
Alexander  Hamilton 


North  Carolina. 

\\'m.  Blount 
'  rlchd.   dobbs  spaight 
|  lie  Williamson 

South  Carolina, 
I  J.  Rutledoe 
Charles  Cotesworth 

j       I'lNC'KNEY 

IChables  Pinckney 
Pierce  Butler. 


Ceorgia, 


(William  Few 
A br  Baldwin 


New  Jersey. 

{Wil:   Livingston 
David  Bbearlet 
Wm:  Patebson. 
Jona:  Dayton 

Pennsylvania. 
B  Fbanklin 

TiiuMAS    MiU'LIN 

robt  mobris 
Geo.    Clymei: 
Tiios  FitzSimons 
Jared    Ingersoul 
.1a mks   Wilson. 
Gouv   Morris 


'  The  states  ratified  the  Constitution  in  the  following  order: 


See  2  Doc.  Hist.  Const.. 


Delaware December   7,  1787 

Pennsylvania December  12,  i^s| 

New  Jersey December  18,  1787 

Georgia January   2,  1788 

Connecticut January    '.'.  1  CSS 

Massachusetts February    8,  1  7  88 

Maryland April  26,  lTs^ 

taken  on   April  26,  but  official 
ratification     signed    by    delegates    on 
By  an  act  of  September  13,  17SS.  the  Congress  of  the  Confederation  appointed 
(be  first  Wednesday  in  January  next  for  the  appointment  of  presidential 


April  28,  178 

104.   121.) 

South    Carolina May    28,  178S 

New   Hampshire June   21,  i.sv 

Virginia lone    26,  L7SS 

New  lork Fulj  26,  178S 

North  Carolina. .  .November  21,  1789 

Rhode   Island May   29,  1790 


1414  APPENDIX  I — u.  s.  constitution  (Am.  Art.  I 

ARTICLES  in  addition  to  and  Amendment  of  the  Constitution  of  the  United 
States  of  America,  proposed  by  Congress,  and  ratified  by  the  Legislatures 
of  the  several  States,  pursuant  to  the  fifth  Article  of  the  original  Consti- 
tution.* 

[ARTICLE  I.]' 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof:  or  abridging  the  freedom  of  speech,  or  of 
the  press;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  Government  for  a  redress  of  grievances. 

[ARTICLE  II.] 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a  free  State, 
the  right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

[ARTICLE  III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the 
consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed 
by  law. 

[ARTICLE  IV.] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and 
no  Warrants  shall  issue,  but  upon  probable  cause,  supported  by  Oath  or  af- 
firmation, and  particularly  describing  the  place  to  be  searched,  and  the  per- 
sons or  things  to  be  seized. 

[ARTICLE  V.] 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  Infamous 
ciinie,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual  service 
in  time  of  War  or  public  danger;  nor  shall  any  person  be  subject  for  the 
same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  coin- 
in  the  states  that  had  by  then  ratified  the  Constitution;  the  first  Wednesday 
in  February  for  the  electors  to  assemble  and  vote  for  president;  and  the  first 
Wednesday  in  March  for  commencing  proceedings  under  the  Constitution.  On 
the  latter  date,  March  4.  1789.  the  Constitution  became  legally  operative.  Owings 
v.  Speed,  5  Wheat.  420,  15  L.  Ed.  124  (1820);  though  in  fact  the  House  of 
natives  did  not  assemble,  for  want  of  a  quorum,  until  April  1,  and  the 
Senate  not  until  April  6;  and  President  Washington  was  not  inaugurated  until 
April  30. 

8  This  heading  appears  only  in  the  joint  resolution  submitting  the  first  ten 
amendments  [1   Stat.  97]. — Ed. 

In  Vol.  II  of  Amer.  Hist.  Assn.  Reports  (1S96)  is  an  elaborate  essay  by  H.  V. 
Ames  upon  Proposed  Amendments  to  U.  S.  Constitution,  1789-1SS9,  which  con- 
tains a  calendar  of  over  1,800  amendments  proposed  in  Congress  or  the  state 
nines,    with  a   history  of  the   more  important  proposals. 

•  The  first  10  amendments  were  proposed  by  Congress  on  September  25,  1789. 
when  they  passed  the  Senate  [1  Ann.  Cong.  (1st  Cong.  1st  Sess.)  88],  having 
previously  passed  the  House  on  September  24  [Id.  913].  They  appear  officially 
in  1  Stat.  97.  The  eleventh  state  (Virginia),  there  then  being  14  in  all,  ratified 
them  on   December  15,   1791  [2  Doc.  Hist.  Const.,  386-90]. 

Two  other  amendments  proposed  at  the  same  time  failed  of  ratification.  One 
of  these  concerned  the  ratio  of  representation  to  population  in  the  House,  and  the 
other  forbade  any  change  in  the  compensation  of  senators  and  representatives  to 
become  effective  until  after  an  intervening  election  of  representatives.  The  first 
was  ratified  l>v  ten  states  and  the  second  by  six  states  [2  I>or\  Hist.  Const.,  325- 
390T. 


Am.  Ait.  XI)  APPENDIX  I— U.  8.  COH8TITDTIOS  1415 

felled  in  any  criminal  ease  to  be  a  witness  against  himself,  nor  be  deprived 
of  life,  liberty,  or  property,  without  due  process  of  law;    nor  shall  private 
tj  be  taken  for  public  use,  without  just  compensation. 

[ARTICLE  VI.] 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
aiid  public  trial,  by  an  impartial  jury  of  the  State  and  district  when 
crime  shall  ha1  mmitted,  which  district  shall  have  been  previously 

i  ed  by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  ac- 
;    to  be  confronted  with  the  witnesses  against  him;    to  have  i 
sory  process  for  obtaining  .  bis  favor,  and  to  have  the  Assistance 

of  Counsel  for  his  defence. 

[ARTICLE  VII.] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
i  he  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a 
'1  be  otherwise  re-examined  in  any  Court  of  the  United  States,  than 
ding  to  the  rules  of  the  common  law. 

[ARTICLE  VIII.] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

[ARTICLE  IX.] 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  con- 
strued to  deny  or  disparage  others  retained  by  the  people. 

[ARTICLE  X.] 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to 
the  people. 

[ARTICLE  XL]8 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend 
to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the 
United  StaUs  by  Citizens  of  another  State,  or  by  Citizens  or  Subjects  of  any 
Foreign  State. 

•  The  eleventh  amendment  was  proposed  by  Congress  on  March  4.  170$,   when 
Souse  [1  Ami.  Cong.  (3rd  Cong.  1st   Sess.)  477],  having  pi 
Date  on  Jann  |.     It  appears  officially  in 

as  of  but  six  Btates  appear  among  the  official  records  printed 
in   2  Doc.  Hist.   Const  392-407.     The  fifth  of   these   (North   Carolina)    was   on 
t'ebruaiv    7.    1795.      Chrei    otl    ra   were  announced  to   Congress  iu  a  message  by 
it   Washington   on   January    B,    '.'■'"•   il    Mess,   and    Papers  ol    1' 

1   at   the  March  session   of   its  Legislature.   1701   [It.    I.   Laws 
Man  h,   1794)   32] ;   New  Hampsfa 
p    501]:  Georgia  on  November  29,  1701  [Dig.  Georgia  Laws.  1755-1800,  p.  291]; 

22,   17or,  [2  Del.  Laws  (Ed.  1707.  1199 
Carolina   was   therefore    the   twelfth   state    (there   then    beins   15   in   all)   and    the 
amendment  became  effective   on  February   7,   1795.     On  January  8,   L7M 

.dams  stated  in  a  message  to  Congress  that  the  amendment  had  been  adopt- 
ed by  three-fourths  of  the  Btates  (there  being  then  10  in  all)  and  might  now  be 
declared  a  part  of  the  Constitution  [1  Mess,  and  Papers  of  l'res.  200]. 


1416  APPENDIX  I — U.  S.  CONSTITUTION  (Aui.  Alt.  XJJ 

[ARTICLE  XII.]8 

The  Electors  shall  meet  In  their  respective  states,  and  vote  by  ballot  for 
President  and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhab- 
itant of  the  same  state  with  themselves;  they  shall  name  in  their  ballots  the 
person  voted  for  as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice-President,  and  they  shall  make  distinct  lists  of  all  persons  voted  for  as 
President,  and  of  all  persons  voted  for  as  Vice-President,  and  of  the  number 
of  votes  for  each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States,  directed  to  the  President 
of  the  Senate; — The  President  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certificates  and  the  votes 
shall  then  be  counted; — The  person  having  the  greatest  number  of  votes 
for  President,  shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  numbers  not  exceeding  three  on  the 
list  of  those  voted  for  as  President,  the  House  of  Representatives  shall  choose 
immediately,  by  ballot,  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  states,  the  representation  from  each  state  having 
one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be  neces- 
sary to  a  choice.  And  if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional  disability  of 
the  President. — The  person  having  the  greatest  number  of  votes  as  Vice-Presi- 
dent, shall  be  the  Vice-President,  if  such  number  be  a  majority  of  the  whole 

^  The  twelfth  amendment  was  proposed  by  Congress  on  December  8,  1803, 
when  it  passed  the  House  [13  Ann.  Cong.  (8th  Cong.  1st  Sess.)  775,  776],  having 
previously  passed  the  Senate  on  December  2  [Id.  209,  210].  It  appears  officially 
in  2  Stat.  306.  The  ratifications  of  but  12  states  appear  among  the  official  rec- 
ords printed  in  2  Doc.  Hist.  Const.,  411-450;  and  5  Doe.  Hist.  Const..  4S0^91; 
the  last  of  which  were  Georgia  (May  19,  1804)  and  Tennessee  (July  27,  1S04). 
In  addition,  Kentucky  ratified  on  December  27,  1S03  [3  Littell,  Ky.  Stats.  149]. 
On  June  15,  1804,  the  New  Hampshire  legislature  passed  an  act  ratifying  the 
amendment,  which  was  vetoed  by  the  governor  and  failed  to  pass  again  by  the 
two-thirds  vote  then  required  by  the  state  Constitution  for  the  enactment  of  laws 
over  a  veto.  [Transcript  of  proceedings  in  New  Hampshire  House  of  Repre- 
sentatives, June  20,  1804,  furnished  by  Secretary  of  State  Pearson  in  September, 
1913].  If  this  veto  was  ineffective  (see  Const,  art.  V ;  ante,  p.  14,  note  1 ;  and 
H.  V.  Ames  in  2  Am.  Hist.  Assn.  Rep.  [1S96]  297,  29S),  New  Hampshire  was 
the  thirteenth  state  to  ratify,  and  the  amendment  became  operative  on  June  15, 
1804.  Otherwise,  Tennessee  was  the  last  state  needed,  and  the  amendment  dates 
from  July  27,  1804.  On  September  25,  1804,  Secretary  of  State  Madison  in  a 
circular  letter  to  the  governors  of  the  states  declared  it  ratified  by  three-fourths 
of  the  states,  there  then  being  17  in  all  [2  Doc.  Hist.  Const.,  451,  note]. 

A  thirteenth  amendment  depriving  of  United  States  citizenship  any  citizen  who 
should  accept  any  title,  office,  or  emolument  from  a  foreign  power,  was  proposed 
by  Congress  on  May  1,  1810,  when  it  passed  the  House  [21  Ann.  Cong.  (11th 
Cong.  2d  Sess.)  2050],  having  previously  passed  the  Senate  on  April  27  [20 
Ann.  Cong.  (11th  Cong.  2d  Sess.)  672].  It  appears  officially  in  2  Stat.  613.  It 
failed  of  adoption,  being  ratified  bv  but  12  states  up  to  December  10.  1812  [2 
Miscell,  Amer.  State  Papers,  477-479;  2  Doc.  Hist.  Const,  454-499],  there  then 
being  18  in  all. 

Another  thirteenth  amendment,  forbidding  any  future  amendment  that  should 
empower  Congress  to  interfere  with  the  domestic  institutions  of  any  state,  was 
proposed  by  Congress  on  March  2,  1861,  when  it  passed  the  Senate  [Cong.  Globe 
(36th  Cong.  2d  Sess.)  1403],  having  previouslv  passed  the  House  on  February  2S 
[Id.  1285].  It  appears  officiallv  in  12  Stat.  251.  It  failed  of  adoption,  being 
ratified  by  but  three  states:  Ohio,  Mav  13,  1S61  [5S  Laws  Ohio,  190];  Maryland, 
January  10,  1S62  [Laws  Maryland  (1S61-62)  21];  Illinois,  February  14,  1862  [2 
Doc.  Hist.  Const.  51S]  (irregular,  because  by  convention  instead  of  by  legislature 
as  authorized  by  Congress). 


Am.  Art. XIV)       appendix  i — u.  8.  constitution  HIT 

number  of  Electors  appointed,  and  If  no  person  nave  a  majority,  then  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall  choose  the  Vice-Presi- 
dent; a  quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole  num- 
ber of  Senators,  and  a  majority  of  the  whole  number  shall  be  necessary  t<> 
a  choice.  But  no  person  constitutionally  Ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 

ARTICLE  XIII.10 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  pun- 
ishment for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to  their  jurisdii 

Section  2.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation.ii 

ARTICLE  XIV." 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States; 
nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number  of  persons 
in  each  State,  excluding  Indians  not  taxed.  But  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  President  and  Vice  President  of  the 
United  States,  Representatives  in  Congress,  the  Executive  and  Judicial  offi- 
cers of  a  State,  or  the  members  of  the  Legislature  thereof,  is  denied  to  any 
of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age.  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  participation 
in  rebellion,  or  other  crime,  the  basis  of  representation  therein  shall  be  re- 

i»  The  thirteenth  amendment  was  proposed  by  Congress  on  January  31.  1SG5. 
when  it  passed  the  House  [Cong.  Globe  (38th  Cons.  2d  Sess.)  531],  having  previ- 
ously passed  the  Senate  on  April  S,  1864  [Id.  (38th  Cong.  1st  Sess.)  1490].  It 
appears  officially  in  13  Stat.  567  under  date  of  February  1,  1S65.  The  twenty- 
seventh  state  (Georgia),  there  then  being  36  in  all,  ratified  it  on  December  t). 
1S65  [2  Doc.  Hist.  Const.,  613];  and  on  December  18,  1865,  it  was  certified  by 
Secretary  of  State  Seward  to  have  become  a  part  of  the  Constitution  |1".  Stnt. 
774].  In  making  this  and  subsequent  certificates  of  like  character  the  Secretary 
of  State  has  acted  under  the  authority  of  3  Stat.  439.  c.  SO,  §  2  (1818)  [nov, 
R.  S.  U.  S.  §  205],  which  however  attaches  no  legal  effect  to  such  certification. 

ii  In  the  original  manuscript  this  section  does  not  appear  as  a  separate  para- 
graph  [2  Doc.   Mist.  Const.  520]. 

12  The   fourteenth    amendment    was    proposed    by   Congress   on   June    13,    1SC0. 

when  it  passed  the  House  [Cong.  Globe  (39th  Cong.  1st   Sess.)  3148.  31  191.  having 

[y  passed   the   Senate  on   June  8  [Id.  3042].      It  appears  officially  in   14 

Stat.  358  under  date  Of  Juno  16.   1866.     Two  states  (Ohio  and  New  Jers.  > 

bad   ratified   it  withdrew   their  assent  before  three-quarters   of   the   states    bad   rati- 

asioaing  nave  doubt  as  to  the  validity  of  such  action.  Assuming  this 
withdrawal  to  be  ineffective,  the  twenty-eighth  state  (South  Carolina),  thi 
being  37  in  all,  ratified  on  July  9.  1868  [2  Hoc.  Hist.  Const..  7641.  If  such 
withdrawal  was  effective,  the  twenty-eighth  state  (Georgia)  ratified  on  July  21, 
iv:s  ;.-,  !>,„•.  liist.  Const.,  554-557].  On  July  20.  1868,  Secretary  of  State 
Seward  certified  that  it  had  become  a  part  of  the  Constitution  if  said  withdraw- 
als were  ineffective  [15  Stat.  7081.  On  July  21,  1868,  Congress  by  join! 
ii  n  declared  it  a  part  of  the  Constitution  and  that  it  should  be  promulgated 
as   such  by  the   Secretary   of   State   [15   Stat.    r09-10].     As   to   the   possible   legal 

r  (his,  see  ante.  p.  24,  note  2.    On  Jub    28,   1868,  Secretary  Sr« 
tified  it  as  such  without  reservation  [15  Stat.  r08— 711], 


1418  APPENDIX.  I — U.  8.' CONSTITUTION  (Alll.  Alt.  XIV 

duced  in  the  proportion  which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or 
elector  of  President  and  Vice  President,  or  hold  any  office,  civil  or  military, 
under  the-  United  States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the  United  States,  or 
as  a  member  of  any  State  legislature,  or  as  an  executive  or  judicial  officer 
of  any  State,  to  support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  com- 
fort to  the  enemies  thereof.  But  Congress  may  by  a  vote  of  two-thirds  of 
each  House,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United  States,  author- 
ized by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties 
for  services  in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt  or 
obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation,  of  any  slave;  but  all  such 
debts,  obligations  and  claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 

ARTICLE  XV.1' 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall,  not  be. 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. — 

Section  2.  The  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. — 

ARTICLE  XVI.14 

The  Congress  shall  have  power  to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  apportionment  among  the  several  States. 
and  without  regard  to  any  census  or  enumeration. 

"The  fifteenth  amendment  was  proposed  by  Congress  on  February  26,  1869, 
when  it  passed  the  Senate  [Cong.  Globe  (40th  Cong.  3d  Sess.)  1641],  having 
previously  passed  the  House  on  February  25  [Id.  1563,  1564].  It  appears  of- 
ficially in  15  Stat.  346  under  date  of  February  27.  As  in  the  case  of  the  four- 
teenth amendment  (see  note  12,  above)  one  state  (New  York)  withdrew  its  as- 
sent before  three-quarters  of  the  states  had  ratified.  If  such  withdrawal  was  in- 
effective, the  twenty-eighth  state  (Iowa),  there  then  being  37  in  all,  ratified  on 
February  3,  1870  [2  Doe.  Hist.  Const..  877].  Otherwise  the  last  state  needed 
(Nebraska)  ratified  on  February  17,  1S70  [Id.  879].  On  March  30,  1S70,  Sec- 
retary of  State  Fish  certified  that  it  had  become  a  part  of  the  Constitution  [16 
Stat  1131]. 

i*  The  sixteenth  amendment  was  proposed  by  Congress  on  July  12,  1909.  when 
it  passed  the  House  [44  Cong.  Rec.  (61st  Cong.  1st  Sp«s.)  4390,  4440.  44411. 
having  previously  passed  the  Senate  on  July  5  [Id.  4121].  It  appears  officially 
in  36  Stat.  1S4.  The  thirty-sixth  and  thirty-seventh  states  (Delaware  and  Wyo- 
ming), there  then  being  4S  in  all,  ratified  on  February  3,  1913 ;  and  on  February 
25,  1913,  Secretary  of  State  Knox  certified  that  it  had  become  a  part  of  the 
Constitution  [37   Stat.  1785]. 


Am.  Art. XV 11)      appendix  i— c.  s.  constitution  1419 

[ARTICLE  XVII.]" 

The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State,  elected  by  the  people  thereof,  for  six  years;    and  each  Senator 
shall  nave  one  vote.     The  electors  in  each  State  shall  have  the  i|ualii 
requisite  for  electors  of  the  most  numerous  branch  of  thi  llatures. 

When   vacancies  happen  in  the  representation  of  any  State  in   the 
the  executive  authority  of  such  State  shall  issue  writs  of  election  to  (ill  such 
vacancies:     Provided,  That  the  legislature  of  any  state  may  einpo 
executive  thereof  to  make  temporary  appointments  until  the  people  fill  the 
i  as  the  legislature  may  direct. 

This  amendment  shall  not  be  so  construed  as  to  affect  the  election  or  term 
of  any  Senator  chosen  before  it  becomes  valid  as  part  of  the  Constitution. 

is  The  seventeenth  amendment  was  proposed  by  Congress  on  May  13,  1912, 
when  it  passed  the  House  [48  Con?.  Rec.  (62d  Cong.  I'd  S<>ss.)  636TJ.  having 
previously  passed  the  Senate  on  June  12,  1911  [47  Cons;.  Eec.  (62d  Cong.  1st 
Sess.)  1925].  It  appears  officially  in  '■','  Stat.  646.  The  thirty-sixth  state  (Wis- 
consin), there  bein;;  4S  in  ail.  ratified  on  May  9,  1913;  and  on  May  31,  1913, 
it  was  certified  by  Secretary  of  State  Bryan  to  have  become  a  part  of  the  Con- 
stitution  [38  Stat.  — ]. 


INDEX 


[UNSTABBED    FIGURES   REFER   TO    CASES    (AT   BEGINNING    PAGE);     STARBED    FIGURES 
TO    PABTICLXA1;   PAGES   WITHIN  A  CASE;     AND   "N."   TO   NOTES] 


ADMINISTRATIVE  REGULATIONS, 

See  Police  Power;   Administrative  Tribunals. 
ADMINISTRATIVE  TRIBUNALS. 
Power  of.  to  obtain  information,  70. 

ro  act  judicially,  72-73  n.,  275  and  notes,  2S5-292  and  notes. 
To  impose  lines  and  Imprisonment,  7-4*.  200  n. 
To  exercise  mixed  powers,  86,  95-96  n.,  309,  313  n. 
Procedure  of,  see  Procedure. 
Legislative  action  of,  see  Procedure. 

ADMIRALTY  AND  MARITIME  JURISDICTION, 

So.-  interstate  Commerce. 

A I 'MISSION  TO  BAR, 

Power  of,  where  lodged,  82  n. 

Of  women,  373  n. 
ADVERTISING, 

See  Bill  Boards. 

Use  of  flag  for,  40-1  D. 

Unauthorized  use  of  personal  photograph  for,  470  n. 

AGREEMENTS  BETWEEN  STATES,  1278  n. 
ALIENS, 

1  'i  ]m  rtation  of,  for  past  misconduct,  184  n. 

Ri  .ulations  discriminating  against,  864,  369  n. 

Federal  power  to  exclude  and  deport,  978,  982  n. 

Procedure,  285-290,  981  n. 
Federal  control  of.  while  resilient  in  a  state,  982,  9S4  n. 
Persons  dealing  with  aliens  in  a  state,  982. 

ALIENATION  OF  PROPERTY, 

Restriction  of,  462  n. 
AMENDMENT  OF  CONSTITUTIONS, 

See  Making  and  Changing  Constitutions. 

AMENDMENTS  TO  UNITED   STATES   CONSTITUTION, 
See  Constitution  of  United  Suites. 

AMUSEMENT,  PLACES  OF, 

Discrimination  by,  forbidden,  485  n. 

ANIMALS, 

See  Dogs. 
Summary   killing  of  diseased,    152.  454  n. 
ANT  I -TRUST  ACT', 

See  Interstate  Commerce. 
HALL  Con-st.L.  (1421) 


122 


.-.LS, 
Grant  of,  by  legislature  from  till  judgment,  54,  57  n.,  897  a. 

BIGHT  TO  KEEP  AND  BAR, 
Political  Rights. 
IBLAGE,  RIGHT  OF, 
i'olitical  Rights. 

BAKERIES, 

Hours  of  labor  in,  414. 

BANKS  AND  BANKING, 

Residential  qualification  for,  21n. 

Classification  of,  by  average  anunt  of  deposits  made,  349  n. 

Assignment  of  wages  permitted  .  362  n. 

Exempted  from  usury  laws. 

Regulation  of,  457  and  notes. 

Requirement  of  corporate  trm  for.  Id. 
Co-insurance  of  deposits  compel  d.  509. 
Creation  of,  by  federal  governnnt,  921,  930  n. 

BARBERS, 

Sunday  laws  regarding,  358  n. 
Requirements  for  occupation  of.  ~i7  n. 

BASEBALL  PLAYERS, 

Exemption  from  Sunday  laws.    7  i  . 

BILL  BOARDS  and  STREET  ADVERTISING, 
Regulation  of  bill  boards,  400  ad  note. 
Advertising  vans,  403  n. 
MILLIARD  ROOMS. 
Prohibition  of,  398  n. 

Except  at  hotels,  363  n. 

BILLS  OF  ATTAINDER,   168  n. 

BILLS  OF  CREDIT, 

States  prohibited  to  issue.  936  n. 

BOARDS, 

See  Administrative  Tribunals. 
AEDING  HOUSi;s, 
Regulation  of,  422  n. 

AD, 

Regulation  of  weight  of.  offered  or  sale,  3S1  n.,  426*. 
Price,  481*. 

:AGE, 
ition  of  insurance,  to  thos  engaged  in  other  businesses,  464  n. 

SS   AFFECTED  BY  A  PUBIC  INTEREST  OR   USE, 
lie  Utilities. 

405,  408  n. 

JSTKX, 

:    from  10-hour  law  jr  women,  357  n. 


V-    .     ■ 

>-  :    - 


man 


to  J* 


;;■:  M 


^•er;    Rate  Regulatii;    Railroads;    and  other  specific  car- 

:   in   unhealthfulnes  of,  as  ground   for  prohibition   of,   in 
[    STATES  TERITORY,  905  n.,  971  n.,  1004*. 


EU 

Aanfc 

Aaato 

MIL, 


m>cx 

CHILDREN. 

'  "  -     -  •       -  -  •      -  _  ....         .      r  .    -_ 

Pajeatal  eoacrol  of  jute.  £»-i33  aad  mKhl 

:-.,-.  .-..        :r  iz.:      ~  --:     -    -_•  •    t       i 
Care  of  Mtaqmi  ckihtrca.  431.  433-CSa. 

."  -    -i..-         .:--     i  ." 
:•-:;:;-::.      :    -  ."  _ 

See  Race. 
CHiwtMp  of.  by  Mrtk.  133. 

:  -  ::-•-    Li:,    z    1  :.-*. 

-  -    7        '.       .    -    "  r  "  .  .  1     :        -•_-:      .    :!-;    '     ■  :  ■ 

I::..-.:    . .      :.--  :_ 
CTTIZEXSHli*. 

- 

:  :-~icatio>. 
See  Equal  Ptotecxioa  of  Lav. 

CT.KRGYM  :• 

-  -?:    ..;  _  --    -      .-      -  •_     -    -    •■•       •  :     ;•:_  z. 

COMFORT  AXD  OOXTKXIENCE,  PUBLIC; 
See  PoBee  Power. 

:  noiERcv 

See  IaxerstUe  aad  Fanaga  Cmiibi 

cojunss: 

-----._._--      -    -    ~.z --. 

COMMOX  OWXKRSHtP. 

Regalattoa  of.  53S--527.  535  a. 

COLX, 

:    .     •-:;   :'     i  -t   :'.    '-  '•     •       r--- — --:    "•■'  '  z. 

a;:::..:   u:  r     :ir-::    -■-    '         ::      ::  _.:r      ■-.---    :i 

F—ettoa  of  jadtriirr  J*  eeforciae.  1&-33. 

'F  CXTTED  STATES.  AXD  1MD 

Text  of,  and  dates  «*  s<&: ;c  •  s.  MCS-Mia. 

I-     •   -i:  -.    -  -    :    -     ;.:::    :  -  r  z 

Pleas  I  6  effect    -*.  BE  a 

■% IBWWlllMWtfS   I— X. 

Apptkatioa  to  sa:#  eva«rc»B«Bt&.  33.  216  a,  - . 

AaMBdmeflEt  XL.  see  InBHnc^y  of  Soraereissi  ircca  J*r 
CSicuaastaaees  of  adopntm.  1357*. 
Reaoactfte  effect  of.  : 
a.-         et  XIH    -—  :    erirtftaam 
AnendsoeBt   XIV.  an?  PoBtieal   Sici:.* .    Pr:- 
CUTtirai*:  Doe  FT 
Cacses  of  adcftfioa.  - 
Eaforoeseent  of.  xrtir-- 

'.-    -■-.-:-.•-•     i  -         .       _-•  : 
AnpQeatiOB  of.  to  corpwrac 

zz  zKJt&z**-  corporaOoas.  361  — 
Aatead*-  :..-■«..  R;- 

AflHadswr  -c-rriZ  Taxadoav 

A-t:  .: teat    XXII     --•,    :  :_: .  .-i .   :.  ;ii 


1424  INDEX 

CONTEMPTS, 

Legislative  control  over  judicial  power  to  punish,  76,  80-S1  a. 

CONTRACT, 

Freedom  of,  see  Due  Process  of  Law :    Police  Power. 

Impairment  of  obligations  of,  see  Obligations  of  Contracts. 
CONVICT-MADE  GOODS, 

Requiring  labeling  of,  428-429  n. 

CORPORATIONS,  MUNICIPAL, 
See  Municipal  Corporations. 

CORPORATIONS,  PRIVATE, 

Applicability   to,   of  constitutional   prohibitions  against  self-crimination, 
187*  ff.,  193  n. 

Against  unreasonable  searches  and  seizures,  190*  ff. 
Visitatorial  power  of  government  over,  190*-191. 
Citizenship  of,  140  n. 
Right  of.  to  privileges  and  immunities  of  state  citizens  in  other  states, 

200.  201  n. 
As  persons,  24S  and  notes. 

See  Equal  Protection  of  Law. 
Right  of,  to  guaranties  of  liberty,  251*  and  note. 

Of  property,  248  and  notes. 
Power  of  state  to  exclude,  251,  252,  254,  256,  261  n. 
Shares  in,  see  Shares  of  Stock. 
Compelling  industrial,  to  pay  wages  in  cash,  335*. 
Holding  stock  in  competing  companies,  46S  n. 
Taxation  of  assets  by  "unit  rule,"  551  and  notes. 
Charters  of,  as  contracts,  see  Obligations  of  Contracts. 
Creation  of.  by  federal  government,  021,  930  n. 

Right  of  foreign,  to  engage  in  interstate  commerce  in  a  state,  1148  n. 
Visitatorial  power  of  United  States  over  state,  190*-191. 
Franchises  of,  and  taxation  of  them,  see  Franchises. 
CRIMINAL  PROCEDURE, 

Constitutional  provisions  concerning,  193,  196-198  n.,  283  n.,  2S0  n. 

DAIRY  PRODUCTS, 

Price-discrimination  in  purchase  of,  473  n. 
DELEGATION  OF  POWERS  OF  GOVERNMENT,  114-127. 
By  legislature.  114-127. 

To  voters  generally,  114,  116  n. 

To  municipal  districts,  121-123  n.,  124  n.,  127  n. 

To  courts,  125*  and  note. 

To  boards  and  officers,  122  and  notes,  309  n.,  674  n.,  675  n. 

Conditional  legislation,  116*  and  note. 
By  Congress  to  state  authorities,  124  n.,  942,  953  n. 
Judicial  power,  120  n. 
British  doctrine  as  to,  127  n. 

DEPARTMENT  STORES, 

Restriction  upon  kinds  of  business  in,  462. 

DEPENDENCIES, 

See  Territories  and  Dependencies. 

DISCRETION, 

Administrative,  see  Police  Power. 
DIVORCE, 

See  Marriage  and  Divorce. 
DOGS, 

Unassessed,  deprived  of  protection  of  law,  451  n.,  535  a, 

Owners  of,  co-insurers  against  sheep-killing,  535  n. 
DOUBLE  JEOPARDY,  19S  O. 


INDEX  14U.". 

DRAINAGE, 

Compulsory  private,  of  tracts  of  land,  530-532  n. 

DRUMMERS, 

[i  it  00  train 

DUE  PROCESS  OF  LAW, 

See  Equal  Protection  of  Law ;   Procedure;    Polite  Power ;  Ta: 
Eminent  Domain;    Retroactive  Laws. 
Historical  meaning  of,  228,  231,  202,  270,  280. 
Deprivation  of  liberty  without,  meaning  of,  232,  235-2.';o  n. 

\s  appl  ed  i"  corporations,  uoi*  and  note. 
Deprivation   of   property  witnout,   application   to  corporations,   250*   and 

note. 
Exclusion  of  foreign  corporal  tate,  251,  252,  254,  250,  201  n. 

Non-procedural  protection  to  persons  accused  of  crime,  2 
Requisites  of  due  process  In  exercise  of  power  of  eminent   domain,  666- 
0?;;  and  notes. 
ELEVATED  RAILWAYS, 

As  interferences  with  rights  of  abutters  in  street,  see  Eminent  Domain 
EMINENT  domain.  660  787  and  notes. 
Nature  of  power,  660,  661  n. 

All  property  subject  to  it.  661,  *'ii\7<  and  note. 
Cannot  be  surrendered  by  state.  663  n. 
Property  already  In  public  use.  C65,  666 n. 
Subject  to  requisites  of  due  pro'  ess  of  law, 

Necessity  of  compensation.  666. 

i  ■   istltutlonal  provisioi  -.  669  d. 
:y  destroyed  in  emergenc 

Taking  river  bank  for  levee,  070. 

Widening  stream  tor  drainage,  734. 

Public  purpose,  007  n. 
Necessity  and  extent  of  taking,  a  legislative  question,  673,  675  n. 
Delegation  of  power.  674  n,  675  n. 
Fublic  use,  670-710  and   I 
In  general,  670. 

Constitutional  provisions.  077  n. 

Leveling  water-power  dams  to  drain  private  lands,  678,  683  n. 
Sale  and  lease  of  laud  to  secure  better  commercial  sites,  6S  I 

As  incidental  to  other  public  purposes,  6S5*  and  note,  6SG  n. 
Extinguishment  of  ground  rents,  060  n. 
Cemeteries,  6S6,  687  n. 

Ditches  to  Irrigate  private  land  of  single  Individuals,  6S7,  692  n. 
Private  ways.  701,  702  n. 
Spur  railway  track  to  private  plant,  690. 
ASrial  bucket  line  for  single  individuals,  091*. 
Taking  of  minority   holdings  in  railway  corporation,  G92  n. 
Development,    transmission,  sale,  and   use  of  electric   water  power. 
692  7i>i  and  notes. 

As  incidental  to  other  purposes,  690  n.,  732*-733. 

Uses  partly  public,  69S  n. 
Supplying  water  for  power  or  steam,  701  n. 
Scenic  railway,  702. 
Park  tor  scenic  use  of  railway,  701  n. 
Esthetic  purposes,  705,  707  n. 
Ki:  lit  Of  Ashing,  70s,  710  n. 

Preservation  of  battlefield,  94a 

Creation  of  private  easements,  710  n. 
What  constitutes  a  taking  of  property,  711-701  and  notes. 

Removal  of  natural   barrier,  permitting  stream  to  wash  gravel  upon 

land.  711. 
Flooding  land,  719  n.,  720. 

Various  Incidental  effects  of  legislation,  721-722  n. 
Legalization  of  nuisances,  ~-J.  '-'■'■  n  ,  T-t;  n. 
Hall  Const. L. — 90 


1426  INDEX 

EMINENT  DOMAIN— Continued, 
Fence  laws,  72G  n. 

Prohibitions  of  use  of  property,  400  and  notes. 
Interferences  with  riparian  rights. 

Enumeration  of  rights,  731*  and  note. 

Improvement  of  navigable  waters,  726  and  notes. 

Acts  not  done  to  improve  navigation,  737-739  and  notes. 

On  non-navigable  streams,  734  n. 

Improving  drainage  into  stream,  734,  736  n. 
Surface  and  underground  waters,  740  n.,  740. 
What  is  a  taking  of  rights  of  abutter  in  street,  740-764  and  notes. 
Alteration  of  street  grade,  740*  and  note,  743*-745  and  notes. 
Deprivation  of  lateral  support,  741*  and  note. 
Diversion  of  street  surface  water  upon  abutter,  740,  742  n. 
Viaducts  and  elevated  railways  in  street,  742  and  notes. 
Subways,  74S-749  n. 
Steam  railways,  750-755  and  notes. 
Street  railways,  757  and  note. 
Poles  and  wires  in  street,  757-762  and  notes. 
Pipes  in  street,  762-764  and  notes. 
Local  street  uses,  763  n.,  764. 
In  general,  764  and  note. 
Origin  of  abutter's  easements  in  street,  753*-754  and  note. 

To  what  part  of  street  confined,  755*,  756  n. 

What  advantages  included  in,  756,  757  n. 
Effect  of  -damage  clause"  in  Constitutions,  765-770  and  notes. 
Kind  of  injuries  redressed  by,  765-770  and  notes. 
Changes  of  street  grade,  768  n. 
Elevated  structures  in  street,  765. 
Railroads  in  street,  768  n. 
Physical  effects  upon  property,  76S.  769  n. 
Increased  inaccessibility  to  street  railway,  769. 
Temporary  interferences  with  enjoyment  of  property,  770  n. 
Entries  to  make  surveys,  770  n. 
Constitutional  provisions,  767-768  n. 
Compensation,  771-787  and  notes. 

Required  by  due  process  of  law,  666. 

For  damage  to  remainder,  in  partial  taking,  771  and  note. 

Separate   tract,  772-773  n. 

Separate  interests  in  tract,  773  n. 
Right  to  set  off  benefits  to  remainder, 

Against  land  taken,  773.  775. 

Against  damages  to  remainder,  779. 
Elements  of  damage  and  modes  of  valuation,  782  n.,  773  n. 
Certainty  of,  7S3-7S7  and  notes. 
Procedure  in  ascertaining,  7S7  n. 
Exercise  of,  as  between  states  and  United   States,  see  Federal  Govern- 
ment;   Intergovernmental  Relations. 

EMPLOYERS'  LIABILITY  ACT,  FEDERAL, 

See  Interstate  Commerce. 
EMPLOYMENT  AGENCIES, 

Deception  by,  penalized,  357  u. 
EQUAL  PROTECTION  OF  LAW, 

See  Due  Process  of  Law;    Procedure;    Police  Power;   Taxation. 
Applicability   to  corporations   of  prohibition   against   denial   of,    24S-254 

and  notes. 
Guaranty  of,  limited  to  persons  within  jurisdiction  of  state,  251-254  and 
notes. 
Who  are  such  persons,  Id. 
EQUITY,  COURTS  OF. 

Power  to  restrain  criminal  acts,  197-198  n. 


INDEX  141' 7 

EXECUTIVE  POWER, 

Extent  of  legislative  control  of  pardons,  82  d. 

To  appoint  officers,  59,  65  n. 

To  exorci.se  military  authority,  declare  martial  law,  and  suspend  writ  of 

habeas  corpus,  104*-105  and  note. 
Judicial  control  of,  100-112,  112-113  n. 
Necessity  for  notice  and  bearing  in  exercise  of,  309  n. 

EXPECTANT  INTERESTS, 

Alteration  of,  88H  n. 

EXPORTS, 

See  Interstate  and  Foreign  Commerce. 

EX  POST  FACTO  LAWS,  1(11-183. 
in  civil  cases,  16 i. 
Decisions  of  courts  as,  168  n. 
Changes  of  punishment,  108  and  notes. 

ige  in  number  of  jurymen,  172. 
Changes  In  procedure,  174  and  notes. 
Restoration  of  original  penalty,  179. 

Imposition  of  retroactive  qualifications  for  occupations,  180,  183-184  n. 
Cancellation  of  naturalization  certificate  for  past  fraud  in  obtaining  it. 

184  n. 
Deportation  of  alien  for  past  misconduct,  1S4  n. 

EXTRADITION,  970-971  n. 
Interstate,  see  'Rendition. 

FACTORIES, 

See  Manufacturing. 

FAITH  AND  CREDIT, 

Required  of  each  state  toward  public  acts,  etc.,  of  other  states,  1278  n. 
FARMERS, 

Exemption  from  antitrust  law,  :'.49. 

FEDERAL  COMMON  LAW, 

Existence  of.  117S*  and  note. 

FEDERAL  COURTS,  JURISDICTION  OF, 

Admiralty,  1321  n„  1261-127G  and  notes. 
Dependent  on  character  of  cause,  1321. 

Of  parties,  1321. 
limitations  upon  grunt  of,  in  Constitution,  1321-1323  and  notes. 
Territorial  application  of  judiciary  article.  1322-1323  n. 
Appellate  jurisdiction,  1323  and  notes,  1335. 

Removal  of  cases  from  state  courts,  1324*  and  note,  132S-1329n. 
Original  jurisdiction, 

Of  Supreme  Court,  1330*.  1330-1331  n.,  1400,  1402  n.,  1336  n. 

Of  lower  courts,  1330*-1331,  1335,  1402  n. 
Cases  "in  law  and  in  equity."  1325,  1329  n. 

Novel  state  remedies,  132C*  and  note. 

Mode  of  exercise  of   concurrent  jurisdiction   of  state   aud    federal 
courts,  1327',  1327-132Sn. 
"Case,"  "controversy,"  "action,"  "suit,"  "cause,"  1330*  and  note,  1329  n. 
Right  to  jury  trial,  1326 n.,  1323 n. 
Jurisdiction  of  entire  case,  1332*  and  note,  1336*. 
Must  affirmatively  appear  on  record.  1336 n. 
•■Federal  questions,"  L322  n.,  1356  n. 

Existence  ei.  1832    fl  .  1334-1335 n.,  1337  and  note. 

When  frivolous,  1332  n. 

On  writ  of  error  from  state  courts,  1332  n.,  790  and  note. 
Federal  control  of  limitation  of  actions  in  slate  courts,  1335  n. 
Present  judicial  code  and  rules  of  practice,  1338  n. 


1428  INDEX 

FEDERAL  COURTS,  JURISDICTION  OF— Continued, 
"Diverse  citizenship," 

Requisites  of,  133S,  1339  n. 

Effect  of  transfers   and  joinders   solely  for  jurisdictional  purposes, 

1339  n. 
Corporations  as  parties,  1340  and  notes. 
Wlien  fraudulent,  1344  n. 
Administration  of  state  law,  1344-1365. 

Federal  court  as  a  court  of  state  where  it  sits,  1340*  and  note. 
Unwritten  rules  of  real  property,  1315*  and  note. 
State  statutes  or  constitutions,  1344,  134S  n. 
Unwritten  rules  of  "general  jurisprudence,"  134S  and  notes. 
Of  equity  and  admiralty,  1352*  and  note. 
Of  procedure,  1352*  and  note. 
Of  local  policy,  1351,  1354  n. 
Protection  in  federal  courts  of  rights  acquired  on  faith  of  state  de- 
cisions later  overruled,  1354-1360  and  notes. 

Before  rendition   of   any    state   decisions,   later   ones   being  un- 
favorable, 1359  n.,  1361  and  note. 
On  writ  of  error  to  state  courts,  1350  n.,  384  n. 
Australian  decisions,  1365  n. 
Private  suits  against  states  and  United  States,  see  Immunity  of  Sover- 
eign from  Private  Suit. 
Suits  between  states, 

On  behalf  of  private  interests,  13S6,  13S9  n.,  1397-139S  n. 

Public  interests,  1390  n.,  1391,  1394-1395  n. 
Law  applicable  to,  1394*  and  note. 

Suits  between  individuals  acting  under  state  authority,  1394  n. 
Procedure  and  incidents  of,  1395  n. 
Enforcement  of  judgments,  1395  n. 
State  suits  against  private  parties. 

On  behalf  of  private  interests,  1397  n. 

Public  interests,  1395  and  notes. 
To  enforce  state  penal  laws,  139S. 
Suits  between  states  and  United  States,  1400  and  notes. 

States  and  foreign  nations,  1404  n. 
Federal  suits  to  enforce  private  rights,  1404  n.,  1211. 
.FEDERAL  GOVERNMENT, 

See  Foreign  Relations;    Indians;    Aliens;    Territories  and  Dependen- 
cies; States;  Federal  Taxation;  Interstate  and  Foreign  Commerce; 
Intergovernmental    Relations ;     Federal    Courts ;    Constitution    of 
United  States. 
Character  of  dual  government  established  by  Constitution,  916  and  note, 

919*-920  and  note,  952  n. 
Concurrent  and   exclusive  powers,   91S,  919  n. 
Construction  of  federal  powers,  919-937  and  notes. 
Creation  of  banking  corporations,  921,  930  n. 
"Necessary  and  proper,"  926*  ff. 
Federal  penal  code,  927*-92S. 
Legal  tender  acts,  930-937  and  notes. 
Regulation  of  value  of  foreign  coin,  936  n. 
Prohibition  of  state  bills  of  credit,  936  n. 
Fixing  standards  of  weights  and   measures,  936-937  n. 
Effect  of  preamble  of  Constitution,  938  n. 
Ungranted  national  powers  reserved  to  people  of  United  States  by  10th 

amendment,  938. 
Construction  of  limitations  on  federal  powers,  939*-940. 
Federal  eminent   domain,  661  n.,  940*. 

Condemnation  of  battlefield  for  national  park,  940. 
Conflicting  state  and  federal  rules  of  compensation,  942  n. 
Federal  military  powers,  942  n.,  101  and  notes. 
Regulation  of  federal  elections,  942,  145. 
Jurisdiction  over  federal  laud  in  a  state,  940*,  946-947  n.,  1303  n. 


INDEX  1429 

FEDERAL  GOVERNMENT— -Continued, 

Extra-territorial  effect  of  federal  legislation  for  federal  territory,  947  n., 

1  278  n. 
Protection  to  federal  officers,  prisoners,  and  property,  918,  950  n. 
Informers  and   witnesses,   950 n. 

State  disbarment  of  attorney  for   perjury   In  foreign   federal  court. 
950  n. 
Duty  of  state  courts  to  enforce  federal  civil  statutes,  950. 
Federal  administrative  proceedings,  958  a 
Penal  laws,   953  n. 
Federal  police  power,  953,  327-328  and  note,  957  and  note. 

atal  in  power  of  ta 
Limitations  upon  exercise  of  federal  powers,  955,  957  n. 
Federal  postal  powers,  957,  959  n. 
Motive  of  federal  legislation,  959,  963-964  n. 
Federal  taxation  with   regulative  effect.   959,  903-904  n. 

FEDERAL  TAXATION,  1024-1038  and  not 
Limitations  upon,  1024,  1025  n.,   1031*. 
Effect  of  federal  "licenses"  in  states,  1024. 
Regulation  incidental  to  taxation,  954-955  n. 
With  regulative  motive  and  effect,  959,  963-964  n.,  1038  a. 
What  are  "direct"  taxes,  1026-1035  and  notes. 
Income  taxation,  1026. 

As  measure  of  corporate  franchise,  1035  n. 
16th  amendment,  1035  n. 
Taxes  on  sales,  1033  n.,  1034  n. 

On  specific  articles  of  personalty,  102S*,  1034  n. 
On  real  estate,  1027*-1028. 
On  personal  property  generally,  Id..  1031*-1032. 
On  successions  generally,  1036. 
Requirement  of  "uniformity,"  1037*-1038  and  note. 
Geographical,  1037*-1038. 
"Within  the  United  states,"  9S8. 
Preferences  between  state  ports,  1038  n. 
What  are  "export"  taxes,  1034  u.,  1016  u. 
Limitation  of,  affecting  state  action,  see  Intergovernmental  Relations. 

FELLOW-SERVANT  RULE, 

Abolition  of,  on  railroads,  372. 

FENCE, 

Prohibition  of  spite,  469  and  notes. 

FERRIES,  Interstate, 

Power  to  regulate,  where  lodged,  109S,  1145  and  note,  1173*  and  note. 

FIRE. 

Destruction  of  property  to  check,  451  n. 

FLAG, 

Use  of,  for  advertising  purposes,  464  n. 

FOOD, 

Destruction  of  unwholesome,  451  n. 

FOREIGN    RELATIONS, 

Federal  treaty-making  power,  964-968  and  notes. 
Operation  of  treaty,  966  and   Dotes. 

Necessity   Of  ancillary   legislation,  967  n.,  lOOS'-lOOS. 
As  authority  for  legislation,  067  n. 
Abrogation  of  treaties,  968  n. 
Offences  against  law  of  nations,  968. 
Extradition   of  criminals,  970-071  u. 
Cession  of  territory,  971  n. 


1430  INDEX 

FRANCHISES, 

Nature  of,  618. 

Taxation  of,  618,  619  and  notes. 

As  between  states  and  United  States,  1311  and  notes,  1316. 

FREE  SPEECH  AND   PRESS, 
See  Political  Rights. 

GAMBLING, 

Regulation  of  private,  413  n. 
GAME  LAWS,  524  n. 

Rules  to  prevent  evasion  of,  381  n. 
GARBAGE, 

Compulsory   cremation   of,   having   some   value  for   other  purposes,  450, 
451  n. 
GAS  AND  GAS  WORKS, 

Regulation  of  location  of  plant,  404. 
Rates,  4S5  n.,  493  n. 

Conservation  of,  521,  1193  n. 

GRAIN  ELEVATORS, 

Classification  of,  by  location  on  railway  or  not,  356  a. 

Rate  regulation,  479,  4S5  n. 
GRAND  JURY,  198  n. 

As  a  requisite  of  due  process  of  law,  270. 

HABEAS  CORPUS, 

Power  to  suspend  writ  of,  105  n. 
HABITUAL   CRIMINALS, 

Punishment  of,  345  n. 
HARBORS, 

Establishment  of  lines  of,  321. 

Protection  of,  by  forbidding  removal  of  beaches  by  owners,  450  n. 

HEALTH,  PUBLIC. 

See  Police  Power ;   Obligations  of  Contracts. 

HEARING, 

Necessity  of,  for  due  process  of  law,  see  Procedure. 

HORSESHOEING, 

Requirements  for  occupation  of,  457  n. 

HOURS  OF  LABOR, 

For  women,  370,  372  n.,  356-357  n. 

Regulation  of  in  various  occupations,  see  Police  Power. 
HOUSES  OF  ILL-FAME, 

See  Prostitution. 

IMPORTS, 

See  Interstate  and  Foreign  Commerce. 

IMMUNITY   OF   SOVEREIGN  FROM    PRIVATE    SUIT, 
Suits  against  states, 

Before  11th  amendment,  1367*. 
Effect  of  11th  amendment,  1368*. 

Effect  of  14th  amendment  upon,  13S3*. 
Involving  federal  questions,   13(JU. 
Effect  of  consent  to  suit,  1369*-1370,  1370  n. 
History  and  principle  of  doctrine,  1370-1371  n. 

Application  to  foreign  sovereigns  in  domestic  forum,  1370  n. 
To  Hawaii,  Porto  Rico,  and  District  of  Columbia,  1371  n. 
To  subdivisions  of  state,  1371  n. 
To  appeals  from  suits  by  states,  1371  n. 
To  counterclaims  against  state  suit,   1371  n. 


INDEX  1431 

IMMUNITY  OF  SOVEREIGN  FROM   PRIVATE   SUIT— Continued, 
Suits  against  state  or  federal  officers, 

To   compel   performance   of  public   obligations,   1371,   1370  n.,  1377- 

1378  Q, 
To  divest  title  of  sovereign,  1378  and  notes,  1380. 
For  damages  for  illegal  acts,  1373*-1374  and  notes. 
For  Injunction  against  illegal  acts,  1373*-1374  and  notes,  1377-1378  n., 
13S0,   1382. 

INDIANS. 

Control  over,  of  states  and  United  States,  971-977  and  notes. 
Mode  of  government  of,  975*^976,  976  n. 
Application   of  constitutional   guaranties  to,  975- 970  a. 
Civilized   Pueblo   Indians,  978  n. 
Indian   citizens.   1,34.  977  n. 
Commerce  with  tribes  of,  1001  n.,  972*,  974*.  1201  n. 

INEBRIATES, 

Compulsory  medical  treatment  of,  441. 

INJUNCTION, 

Against  executive  action,   100-112,  112-113  n. 
Legislative  action,  113  and   notes. 

INSPECTION   LAWS,  1157  and  notes. 

INSULAR   POSSESSIONS. 

See  Territories  and  Dependencies. 

INSURANCE   AND   INSURANCE  COMPANIES. 

Compelling,  to  pay  attorney  fee  when  defeated  In  suit,  340-341  a. 
Forbidding  contracts  of,  out  of  state,  232. 

Within  state,  235 n. 
Regulation  of,  459-400  n. 

Requirement  of  corporate  form   for.  459  n. 

Fire   insurance  rates.   485  n. 
Prohibition  of  discrimination  by,  485  n. 
Forbidding  defences, 

Amount  of  fire  loss  (valued  policy).  521  n. 

Fraud  (not  causing  death  of  Insured),  521  n. 

Suicide,  521  n. 

INTERGOVERNMENTAL   RELATIONS,  1277  1320  and  notes. 
Between  states,  1277  and 

Status  of  corporations.  1277  n. 

Taxation  of  obligations  of  other  states,   1277  n. 

Of  franchises,   1277-1278a 
Rights  of  citizens  in  other  states,  see  Privileges  and  Immunities  of 

sens. 
Full  faith  and  credit  to  public  acts,  etc.,  1278 n. 
Rendition  of  fugitives  from  justice,   1278  n. 

From  service  or  labor,  1278  n. 
Interstate  agreements,    1278  a. 

Exert  Ise  of  eminent  domain  on  behalf  of  other  states,  127^  n. 
Retween  states  and  other  domestic  territory,  1278  n. 
State  taxation  affecting  functions  of  federal  government,  1279. 
On  i  by  federal  bank,  1279. 

on  doing  of  business  by,  1301*. 
On  business  done  for   1  by  private  contractor,  1284  n. 

On  obligations  of  United  States.  1284  and  note. 
On   shares  in  corporation   owning    federal  obligations,   1288. 
On  franchise  of  such  corporation.   ' 
On  succession  at  death  to  federal  obligations,  1292  n. 
On  salary  of  federal  officer,    129."*. 
L297  it. 
When   income   of,   becomes   taxable,   1297  n. 


1432  INDEX 

INTERGOVERNMENTAL    RELATIONS— Continued, 
On  property  of  federal  corporation,    1298 

Of  federal  agents  and  contractors,  1301-1302  n. 
On  property  of  United  States,  1303. 

Partial   interest  only,   1306-1307  n. 
On  bequest  to  United  States,  1308*-1300. 
On  franchises  granted  by  United  States,  1311-1312  and  notes. 

Patents  and  patented  articles,   1312  n. 
Federal  consent  to  state  taxation,  12SS*-1289,   12SS  n.,  1302  n. 
State  regulation  affecting  federal  functions, 

Exclusion  of  persons   or  corporations   employed   by   United    States, 

252*. 
Imposition  of  burdens  on  holders  of  federal  liquor  licenses,  1293  and 

notes. 
Requiring  from  federal  officers  information  acquired  officially,  1294  n. 
Use  of  oleomargarine  in  federal  soldiers'  home  in  a    state,  1294  n. 
Business  and  relations  of  national  banks,  1294  n.,  1302  n. 
Exemption  of  federal  officers,  agents,  and  witnesses  from  arrest  or 

interference  while  discharging  federal   duties,   1294  n. 
Regulation  of  local  rates  of  federal  interstate  railway,  1302  n. 
Condemnation  of  federal  land  in  a  state,  1304*. 
Of  property  of  federal  corporation,   1305  n. 
Prohibition  of  devises  to  United  States,  1309  n. 
Control  over  patents  and  patented  articles,  1312  n. 

Over  record  and  enforcement  of  federal  tax  lien  on  land,  1293*. 
Federal  taxation  affecting  functions  of  state  governments, 
On  state  obligations,  12S7  n. 

On  franchises  of  corporations  owning  state  obligations,  1292  n. 
On  salary  of  state  officers,  1295. 

On  official  bonds  or  process  required  by  state,  1297  n. 
On  state  or  municipal  property,  1305*-130G. 
On  bequests  to  state  or  its  municipalities,  130S. 
On   right  of  succession   at  death  created   by   state  law,  1309*-1310, 

1309  n. 
On  sale  of  liquor  by  state.  1312. 
On  corporate  franchises   granted   by   state,   1316. 
On  notes  of  state  bank,  1317*-1318. 

On  state  franchises  to  supply  transportation,   light,  water,  etc.,   to 
public,  1319*-1320. 
Federal  regulation  affecting  state  functions, 

Requiring  states  to  accept  federal  legal  tender  notes  for  taxes,  12S7  n. 
Forbidding  federal  officers  to  furnish  states  with  information  officially 

gained,  1294  n. 
Excluding  documents  from  evidence  in  state  courts  for  non-payment 

of  federal  stamp  tax,  1297  n. 
Condemnation  of  state  property,   1305  n. 
Control  of  state  railway  (Australia),  1316  n. 
Regulation   and   control   of   federal    property   in   a   state,   1303  n..   1304*, 
1307  n. 
Of  property  of  federal  grantees  and  corporations,  1307  n. 
State  interference  with  private  rights  derived  from  federal  sources,  1307. 

1307  n.,  130Sn. 
Federal   interference   with   private  state   rights,   1309*-1310.  1316. 
State  assistance  in  exercise  of  federal  functions,  947  n.,  953  n.,  1305  n. 
INTERSTATE  AND  FOREIGN  COMMERCE,  REGULATION   OF, 
Import  duties, 

Prohibited  to  states,  1039. 
What  are  imports,  1045  n. 
What  are  duties  on  imports,  1039,  1045  n, 
"Original  packages,"  1040,  1050  n.,  1042  n. 
Inspection  duties,  1050  n.,  1157  and  notes. 
Consent  of  Congress  to  state,  1052  n. 
Export  duties,  1045-1046  n.,  1034  n. 


INDEX  II..: 

INTERSTATE  AND  FOREIGN  COMMERCE,  REGULATION  OF— Continued, 
Tonnage  taxes,  1050-1052  and  n 
Wbal  is  commerce, 
i  ourse,  1053. 
Navigation,  1053. 

Commercial  pin-pose,  1053-1054 n.,   lSJ  c,  1234-I235n,  1247  n. 
Communication   b  -loco  and  note. 

By  correspondence  school,   1004. 
Insurance,  1007  and   note. 
Agriculture,    manufacturing,    mining,    fishing,    productive    industry, 

106S  n. 
Sales  between  parties  In  different  states,  without  shipment  of  goods. 

1067-1068  n. 
By  railway  employees,  1254-1255  n. 

Discharge  of  railway  employee  for  membership  in  labor  union,  1250. 
When  is  commerce  Interstate  or  foreign, 

Between  termini  in  different   states  or  countries,    1055*-1057. 
In  same  slate,  passing  outside  en  route,  1061  o. 
Employment  of  several  independent  agencies  In,  1069. 
Between  states  and  other  domestic  territory,  1061  u. 
Beginning  and  ending  of,  1070  and  notes. 

Period  of  federal  control  of,  1085*,  1226  n.,  121G*-1247. 
Commerce  with  Indian  tribes,  1061  n.,  074*. 
Meaning  of  "regulate,"  1057*. 
Effect  of  conflicting  state  and  federal  regulations,  1058*  ff..  1062. 

Authority    of   federal    coasting    license,    10U0*-1061,    1075    and    note, 
1144,  1145  n. 
Of  federal  import  duty,  1062. 
Excluslveness  of  power  of  Congress,  1075.  1076,  1079  n.,  1079,  10S3  n. 
State  legislation  discriminati  .itional  commerce. 

Pecuniary  exactions,  1083,  1086  n.,  1106*. 
Regulation,  1086,  10S8  n. 
Virtual  discrimination,  10S6n.,  10S6. 
Period  of  federal  protection  against,  1085*. 
Valid  discriminations,  1UVS  and  notes. 
Incidental,  1090  n. 
State  taxation  affecting  transportation  or  communication,  1090-1129  and 
notes. 
Tonnage  tax  on  carriage  of  freight,  1090. 
On  telegraph  messages,  1094  n. 

On  persons  entering  or  leaving  state  by  vessel  or  carrier,  1094  n. 
Exaction  of  percentage  of  gross  receipts  for  grant  of  railway  fran- 
chise. 1094  and  notes. 
Compensation  for  use  of  state  highways,  109S  n. 
Compensation  for  facilities  or  supervision,  1101*-1102  and  notes. 
On  interstate  ferry  business,  1098. 
On  gross  receipts  from   transportation,   1104. 

Both  termini  in  state,  goods  passing  out  en  route,  1107  n. 
Tax  on  internal  receipts,  when  separable,  1107 n. 
On  rentals  and  tolls  of  leased  railway,  1107  a. 
License  tax  on  interstate  business,  1108  and  note,  1110. 

On  internal  part  of  business,  1111*  11.,  and 
"Unit   rule"  taxation  of  corporate  assets  used  in  interstate  business. 

1113  and  note. 
On  migratory  vehicles  of  commerce,  541  and  notes. 
On  domestic  franchise  measured  by  gross  receipts,  1 1 15. 

On  property  of  business,  thus  measured,  1117-1118  n.,  1118,  1121- 
1122  n. 
Exaction,  invalid  as  a  tax,  imposed  as  condition  precedent  of  inter- 
state foreign  corporation  continuing  local  business,   11_L'-1127  and 
notes,  -.'v  281. 
On  franchise  of  cab  company  carrying  Interstate  passengers  to  local 
destinations,   1127. 


1,434  INDEX 

INTERSTATE  AND  FOREIGN  COMMERCE,  REGULATION  OF— Continued, 
On  business  of  interstate  emigrant  agent,  1128. 
Mode  of  collecting  tax  from  persons  in  interstate  business,  1129  n. 
State  taxation  affecting  sales  of  interstate  goods, 

On  unsold   goods   In   original  packages  after  arrival  In  state,  1130, 

1131  n. 
On  goods  in  transit,  1131  n. 
On  peddling  goods  in  state,  1131-1132  n. 

On  selling  by  sample  goods  to  be  later  shipped  into  state,  1132,  113S  n. 
Acts  incidental  to  sale  taking  place  after  arrival  of  goods,  1137- 
1138  n. 
On  commission  merchants,  1138,  1140  n. 
Un  packing  house  agents,  1140. 
On  automobile  agents,  1142. 
Incidentally  affecting  interstate  sales,  1143  n. 
State  regulation  of  national  commerce, 

Grant  of  exclusive  interstate  ferry  franchise,  1145  and  note. 

What  is  a  "ferry,"  1145-1146  n. 
Requirement  of  conditions  precedent  to  engaging  in  commerce,  1146 

and  note. 
Exclusion  of  foreign  corporations  engaged  in,  1148  n. 
Obstruction  of  federal  navigable  waters,  1148  and  notes. 
Application  of  acts  of  Congress,  1151  n. 
Rules  of  public  law,  1151-1152  n. 
Quarantine  regulations,  1152-1157  and  notes. 
Inspection  laws,  1157-1163  and  notes. 

What  are,  1162-1163  n. 
Separation  of  races  in  transportation,  1163,   1166  n. 
Regulation  of  rates  of  interstate  transportation,  1166  and  notes. 
Over  toll  bridge,  1172. 

Ferries,   1173*  and  note. 
By  forbidding  internal  rates  to  be  higher  than  interstate  ones, 

1172  n. 
By  the  competitive  effect  of  reduced  internal  rates,  1174. 
Where  carriage  between  termini  in  state,  passing  outside  en  route, 

1171  n. 
Internal  carriage  on  local  bill  of  lading  of  goods  on  interstate 
journey,  1171-1172  n. 
Regulation  of  rates  for  services  incidental  to  commerce,  1172  n. 
Prohibiting  consolidations  of  competing  interstate  railroads,   1172  n. 
How  far  interstate  commerce  subject  to  state  common-law  rules,  1177- 
1179  and  notes. 
Existence  of  federal  common  law,  1178*  and  note. 
Regulations  for  safe  conduct  of  commerce,  1179-1181  and  notes. 

For  convenience  of  commerce,  11S6,  1187  n. 
Affecting   liability   for   misconduct   of   business,    1182,    1185  n.,    1186, 

1187  n. 
Affecting  form  and  meaning  of  contracts,   1185  n. 
Forbidding  Sunday  freight  trains.  1187  n. 
Stoppage  of  interstate  trains,  11S7  n. 
Incidental  effects  on  commerce,  11S7  n. 
Prohibition   of  carriage  of   commercial   articles   into   a   state,   1188, 

1192  n. 
Prohibition  of  exportation  of  products  of  state,  1192-1193  n. 
Prohibition  of  use  of  highways  for  gas  pipe  lines,  1098  n. 
Prohibition  of  sale  of  articles  brought  into  a  state,  1070,  1193,  1197  n. 
Congressional   assent  to   state  action,   1197,  1201  n. 

Extent  of,  1201  n.,  1205. 
To  prevent  fraud,  1202,  1204  n. 
To  secure  enforcement  of  game  laws,  1204  n. 
Prohibition  of  solicitation  of  sales  of  liquor  to  be  shipped  into  state, 
1205. 


INDKX 


1435 


INTERSTATE  AND  FOREIGN  COMMERCE,  REGULATION'  OF— Continued, 
Power  of  Congress,  120S-1201  and  notes, 
in  general,  120S. 

Regulations  not  eonlined  to  national  commerce,  1209  and  note. 
To  assume  duty  of  keeping  interstate  highways  open,  1211. 

Enforcement  of,  by  injunction,  1212*-1213. 
To  create  corporations  to  construct  interstate  bridges  and  highways, 
1214,  1215  n. 

Delegation  of  federal  power  of  eminent  domain  to,  1214. 
Over  navigable  waters  of  United  States,  1215-1216  n. 
To  forbid  combinations  and  monopolies  in  interstate  commerce, 

Agreements  incidentally  affecting  commerce,  1210,   121!)  n. 

In  patented  articles,  1219  n. 

Corporation  holding  stock  in  competing  companies,  1220,  1223  u.. 
1225  n. 

Series  of  intrastate  dealings  designed  to  affect  Interstate  com- 
merce, 1225-1226  n. 

Cases  interpreting  federal  Anti-Trust  Act,  1226  n. 

Unreasonable  practices  in  restraint  of  trade,  1227,  1230  n. 
To  forbid  carriage  of  lottery  tickets  between  states,  1230. 

Of  women  for  immoral  purposes,  1234-1235  n. 
To  exclude  aliens  and  imports,  1235  n. 
To  regulate  commerce  by  taxation,  1235 n. 
To   exercise   visitatorial    power   over   state   corporations   engaged   In 

national  commerce,   190 '-191,   1230  n. 
To  regulate  details  of  interstate  carriage.  1236. 

Distribution  of  fuel  cars  of  railway,  1239  n. 

Bookkeeping  of  carriers,  1240. 

Interstate  Commerce  Act,  1239-1210  n. 
Federal  1'ure  Food  Act,  1244  and  notes. 

Federal  power  not  limited  by  "•original  package"  doctrine.  1240*- 
1217. 
Safety  Appliance  Act,  1247. 

Applicable  to  cars  in  all  kinds  of  traffic,  124S*,  124S-1249  n. 
Hours  of  Service  Act,  1249  n.    • 
Employers'  Liability  Act,  1250  and  notes. 

Negligent  employee  need  not  be  in  interstate  commerce,  1253*  and 
note. 

Winn  is  injured  employee  engaged  in  such  commerce,  1254-1255  n. 
To  forbid  discharge  of  interstate  railway  employee  for  membership 

in  labor  union,  1256. 
To  forbid  payment  of  advance  wages  to  seamen,  125S  n. 
When  federal  act  supersedes  all  state  acts  on  subject,  1258  and  note. 
Over  commerce  with  Indian  tribes,  1201  n. 
Federal  maritime  authority, 

What  are  navigable  waters  of  United  States,  1261-1203  and  notes. 
State's  power  to  regulate  marine  torts  within  it,  1263. 
Locality  of  admiralty  jurisdiction,  1200*-1207  and  note. 

Over  foreign  waters.  1268  n. 
Power  of  Congress  to  alter  maritime  law,  1201,  1275*. 
Power  of  state  to  alter  maritime  law, 

By  unwritten  common  law,  120S. 

By  statute,  1271,   1274. 

As  to  attuiiralty  procedure,  1271,  1271   1272  u. 

INTOXICATING  LIQUORS, 

Residential  qualification  for  license  to  sell,  212  n. 

Classification  of  places  for  sale  of,  300. 

Classification  with,  of  all  liquors  containing  malt,  3S1  n. 

Prohibition  of  sale  and  manufacture  of,  393. 

State  monopoly  of,  898  n. 

Licenses  to  sell,  restricted  to  men.  373  n. 

Women  excluded  from  wine-rooms,  373  n. 


1436  INDEX 

INTOXICATING  LIQUORS— Continued, 
Private  intoxication,  413  n. 

Forbidding  sale  of  other  goods  in  saloons,  4(54  n. 
Regulation  of  interstate  commerce  in,  107G,  11SS,  1193,  1197,  1205. 

INVOLUNTARY  SERVITUDE, 
See  Liberty  of  Person. 

JUDGMENTS, 

Power  of  legislature  to  re-open,  54,  57  n.,  SOT  n. 

JUDICIAL  POWER, 

To  decide  validity  of  constitutional  changes,  1,  17,  24  n. 

To  enjoin  submission -of  proposed  constituiional  changes  to  voters,  16 n. 

To  declare  statutes  unconstitutional,  25-53. 

Doctrines  in  other  countries,  31-33  n. 

Limitations  upon,  in  American  practice,  32,  37-38  n.,  38,  39,  42  n,,  45- 
46  n. 

For  motives  of  legislature,  36*  and  notes. 
To  render  "advisory"  opinions,  44-45  n. 
Exercise  of,  how  far  free  from  legislative  control, 

Requiring  advisory  opinions,  39,  44^15  n. 

Giant  of  new  trials  and  appeals,  54  and  notes. 

Trial  and  punishment  of  contempts,  70. 

In  equity  cases,  81  n. 

Admission  to  bar,  82  n. 

Various  incidents  of,  81-S2  n. 
What  constitutes,  54  and  notes,  70,  72-73  n.,  76  n.,  8SS*  and  note. 

Appointment  of  officers,  59. 

Assessing  and  levying  taxes,  60  n. 

Reviewing  tax  assessments,  72-73  n. 

Various  administrative  functions,  61-62  n. 

Grant  of  liquor  licenses,  84-S5  n. 

Determination  of  need  of  municipal  incorporation,  86-87  n. 

Location  of  railways,  81. 

Regulation  of  public  utilities  (rates,  etc.),  80,  96,  100  n.,  309. 
Necessity  for  hearing  and  notice  in  exercise  of.  see  Procedure. 
To  determine  lawful  legislature  or  governor,  100  n. 

Validity  of  modes  of  legislative  action,  108  m 

Validity  of  apportionment  acts,  108  n. 

Individual  political  rights,  108  n. 
To  control  political  parties,  10S-109  n. 
To  control  executive  action,  106,  109,  112-113  n. 

Legislative  action,  113  and  notes, 

JUNK  AND   JUNK   DEALERS, 
Regulation  of,  360-301  n. 

JURISDICTION, 

Necessity  of,  for  due  process  of  law,  see  Procedure;   Taxation, 
Of  federal  courts,  see  Federal  Courts. 

JURY  DUTY,  532  n. 

JURY  TRIAL, 

In  criminal  cases,   193,  196-198  n. 

In  misdemeanors,  196  n. 

Waiver  of  criminal  jury,  196  n. 

Restraint  of  criminal  acts  by  injunction,  197-19S  n. 

In  civil  cases,  275  n. 

How  far  a  privilege  secured  to  federal  citizens,  as  such,  225. 

As  a  requisite  of  due  process  of  law,  275  n. 

Equal  protection  of  law  in  constitution  of  jury,  314  and  notes. 

Guaranty  of,  in  "unincorporated"  federal  territory,  1013. 

In   "incorporated"  territories,  1015. 
In  federal  courts,  1323  n.,  1326  n. 


INDEX  1437 

LABOR  AND  SERVICES, 

Exemption  of,  from  anti-trust  law,  306  n. 

LABOR  UNIONS, 

Discharge  of  employees  for  membership  in.  4i.'>. 
Requirement  of  union  labor  in  public  buildings,  477. 

LAUNDRIES, 

.•km   of,  331!,  383.  387. 
ling  1U  hour  law  for  women  to,  357  n. 

LAW  OE    NATIONS, 

Federal  power  to  enforce,  908. 

LAWYERS, 

fast  loyalty  to  government  required  of,  184  n. 
See  Admission  to  Bar. 
LEGAL  TENDER  ACTS,  930-937  and  notes. 

LEGISLATIVE  ACTS, 

Mode  of  proof  of,  18»  and  n.  1. 

Proposal  of  constitutional  amendments,  16-18 & 

Effect  of  unconstitutionality,  44-53. 

De  facto  municipalities  and  officers,  44,  49  50  n. 
Partial  unconstitutionality,  52,  53-54  n. 

LEGISLATIVE   POWER, 

To  call  constitution;!  1  convention,  1. 

To  propose  new  constitution  or  amendments,  11,  17.  17-18  n. 

Unconstitutional  exercise  of,  when  subject  to  judicial  control,  25-43. 

Winn  independent  ot  judicial  control,  100  n.,  112  n.,  113  and  notea. 

To  grant  divorces,  58, 

What  constitntes,  see  Judicial  Power,  what  constitutes. 

To  appoint  officers,  G3*-64,  05  n. 

To  call  and  examine  witnesses,  and  to  punish  contempts,  05,  70  n. 

injunction  or  mandamus  to  control  exercise  of,  113  anil  I 

-ity  for  notice  and  hearing  in  exercise  of,  see  Procedure. 

LIBERTY  OF  PERSON,  151-163. 

Slavery,  what  constitutes,  151,  153  n. 
Involuntary  servitude, 

Of  seamen  under  voluntary  contract,  154. 

Of  apprentices.  150  n. 

Requirement  of  personal  labor  on  highways,  157  n. 

.Militia  duly,  157  n. 
Imprisonment  for  breach  of  manual  labor  contract,  158,  162  n. 
Statutory  presumption  of  fraudulent  breach,  158. 
Peonage,  101*. 
Judicial    decrees  of  specific   performance  of   personal  service   contracts, 

103  n. 
Imprisonment  for  debt,  103  n. 

LIEN, 

Citation  of,  for  claim  against  stranger,  512  n. 
For  taxes  of  stranger,  279  n. 

LIFE  CONVICTS, 

Punishment  of,  344. 

LIQUOR. 

See  intoxicating  Liquors. 

LOCAL  LEGISLATION, 

See  Special  and  Local  Legislation. 

LOCAL  OPTION, 

Validity  of,  121-123  n. 
LOCAL  SELF-GOVERNMENT, 

Validity  of,    1-1    I23n. 
Constitutional   right  of,  123 n.,  G40n. 


1438  INDEX 

LOTTERIES, 

See  Obligation  of  Contracts;    Interstate  Commerce. 

LUMBER  AND  LUMBERING, 

Combination  of  retailers  of,  467. 
Price-discrimination  in  sales  of,  473  n. 

MAKING  AND  CHANGING  CONSTITUTIONS,  1-24. 
Power  of  legislature  to  call  constitutional  convention,  1. 

To  propose  new  Constitution  or  amendments,  11,  17. 
Powers  of  constitutional  convention,  1,  7  n.,  10  n. 
Submission  to  voters  of  proposed  changes,  10  n. 

Injunctions  against,  16  n. 
Assent  of  executive,  14*  and  note. 

Judicial  power  to  decide  validity  of  changes,  1,  17,  24  n. 
Revolutionary  changes,  5  n.,  6  n.  3,  7*  ff.,  19*  ff. 
Amending  federal  Constitution,  24  n. 

MALICE, 

Prohibition  of  acts  due  to,  465,  469  and  notes. 

MANDAMUS, 

Against  executive  officers,  110*,  112-113  n. 
Legislature,  114  n. 

MANUFACTURING  AND  FACTORIES, 

Confining  10-hour  law  for  women  to,  356-357  n. 

MARGINS, 

Sales  of  stock  on,  invalidated,  460. 

MARITIME  JURISDICTION, 

See  Interstate  Commerce. 
MARRIAGE  AND  DIVORCE, 

Legislative  divorce,  58,  434. 

Control  of,  in  general,  434. 

Prohibition  of  marriage  for  physical  and  mental  defects,  437. 

MARTIAL  LAW, 

Power  to  proclaim,  104*-105  and  note. 

.  MECHANIC'S  LIENS, 

Against  sub-contractor,  512  n. 
MEDICINE,  AND  MEDICAL  PRACTICE, 
See  Physicians. 

MILITARY  AND  NAVAL  POWER, 

See  Federal  Government. 
MILITIA  DUTY,  532  n. 
.MILK  AND  MILK  DEALERS, 

Regulation  of,  334  n.,  389. 
.MILL  ACTS,  525. 
MINERAL  WATERS, 

Conservation  of,  376,  524  n. 

MINES  AND  MINING, 

Classification  of  coal,  by  number  of  employees,  348-349  n. 

Regulation  of  hours  of  labor  In,  409. 
MINORS, 

See  Children. 

MISCEGENATION, 

Prohibition  of,  439  n. 
MONEY, 

See  Federal  Government 


INDEX  l4.oi> 

MONOPOLY, 

Loti  of  in  business  dangerous  to  public  health,  4r>0.  451a, 
Pro]  see  Police  Power;    Interstate  Commerce. 

MORALS,  PUBLIC, 

See  Police  Power;   Obligations  of  Contracts. 

MORTGAGES, 

Loans  on,  exempted  from  usury  laws,  .".ti;;  n. 

MUNICIPAL  CORPORATIONS, 

Protection  afforded  to,  by  federal  Constitution,  2C1  n. 
Special  legislation  for,  329. 

See  Special  and  Local  Legislation. 
Eti  gulation  of  hours  of  labor  for,  422,  424  n. 
Liability  of,  for  mob  violence,  507. 
Application  to,  of  contract  clause  of  Constitution,  S17  n. 
Citizenship  of,  in  federal  courts,  1343  n. 

NATURALIZATION, 

See  Political  Sights. 

Cancellation  of  certificate  of,  obtained  by  prior  fraud,  lvl  n. 

NAVIGATION  AND  NAVIGABLE  WATERS, 

Public  right  to  improve,  as  against  riparian  rights,  720  and  notes. 
State  right  to  obstruct  In  federal  waters,  1148  and  notes. 
Federal  control  of,  1215-1216  n. 
Of  United  States,  1261-1263  and  notes. 

NEGROES, 

See  Race. 

NEWSPAPERS, 

Malicious  combination  of,  40.">. 

NEW  TRIALS, 

Grant  of,  by  legislature,  54,  57  n. 

NON-RESIDENTS, 

Regulations  discriminating  against,  360-367  n.,  207*  and  note,  209,  212  n„ 
380  n. 
NOTICE, 

Necessity  of,  for  due  process  of  law,  see  Procedure. 

NUISANCES, 

Classification  of,  with  regard  to  municipal  control,  400  n. 
Legislative  power  to  restrict  territorially,  398. 

OBLIGATIONS   OF  CONTRACTS,    IMPAIRMENT  OF,   BY   STATE    LAWS 
7SS-S77  and  notes. 
Prohibition  of  federal  Constitution,  I 

Limitations  upon  United   States,   788 n. 
To  what  kind  of  state  acts  applicable,  7S8  and  notes. 
Jurisdiction  of  federal  Supreme  Court  to  enforce,  on  writ  of  error 
from  state  courts.  790*,  843  n. 
To  determine  existence  and  meaning  of  contract,  792»-70">.  705  u. 
State  bankruptcy  laws, 

Subsequent  to  contract,  795*  and  note. 

Prior  to  contract  (between  citizens  of  same  state),  795-S00. 
(Between  those  of  differenl  states),  800*-805  and  notes. 
Distributing  debtor's  property  to  those  who  will  release  debts, 
805  n. 
What  constitutes  obligation  of  contract,  795,  797  n. 
Remedies  upon,  S05«-808,  809-810  n. 
Tax  laws  of  Indebted  municipalities,  805,  soon. 
Judicial  enforcement  of,  800,  809  m 


1440  INDEX 

OBLIGATIONS  OF  CONTRACTS,  IMPAIRMENT  OF,  BY  STATE  LAWS— 
Continued, 
Permissible  alterations  of  remedies,  809-810  n. 
Imprisonment  for  debt,  SOT*  and  note,  856  n. 
Exemptions  from  execution,  SOS*  and  note,  S5G  n. 
Suits  against  states,  SlOn. 
Foreign  remedies,  S10  n. 
What  are  contracts, 

Executed  grants  or  transactions,  811,  S12  n. 

eements  between  states,  814  n. 
Judgments,  815  n. 

Various  legal  incidents  affecting  property  rights,  S15  n. 
Private  corporate  charters,  S15,  825  n. 

Consideration  for,   82S  n. 
Municipal  charters,  817  n. 
Marriages,  S17  n. 
Inchoate  rights  of  dower,  S17  n. 
Public  office-holding,  S17  n. 
Exemptions    from   taxation,   S25,    S2S-S29  n. 
Grants  of  monopoly,  829  and  notes. 
Surrender  of  power  of  rate  regulation,  S29  n. 
Power  of  eminent  domain  over  irrepealable  contracts,  829  n. 
Contracts  with  public,  strict  construction  of.  830-843  and  notes. 
Illustrations,  830,  s::::-s?,4  n..  858  and  note. 
Alienability  of,  836,   841-842  n. 
Contracts  of  Indians,  837  n. 

Consolidation  of  exempt  corporations,  841*  and  note. 
Statutory  restrictions  upon,  812  and  note. 
Repeal  of  corporate  charter  under  reserved   right, 

Effect  of,  on  other  corporate  franchises,  814,  S46,  S51  n. 
On  corporate  property  generally,  S44. 
On  property  in  street,  846*  and  n. 
On  corporate  obligations  to  state.  S52  n. 
Legislative  discretion  under  power  to  repeal  or  amend  charters,  84C  n., 
851-852  n. 
Repeal  of  contract  against  discriminatory  taxation,  S52. 
Contracts  of  individuals,  how  far  alterable  by  state,  S54  and  notes. 
Contracts  of  state,  how  far  revocable. 

Affecting  public  morals.  857  and  note.  860. 
Public  health,  858,  863,  S65. 
Public  safety.  865,  869  and  note,  S71. 
Economic  welfare.  865*,  869n.,  874.  877  n. 
Various  governmental  powers,  861*  and  note,  876*-877,  1020. 
OFFICERS, 

Power  to  appoint,  where  lodged,  59,  64-65  n. 
OIL, 

See  Pipe  Lines. 
Conservation  of,  521. 
OLEOMARGARINE, 

Prohibition  of,  405.  408  n. 

In  interstate  commerce,  1202.  1204  n. 
OPIUM, 

Private  smoking  of,  413  n. 
OPTION  CONTRACTS, 

Sale  of  commodities  on,  forbidden,  462  n. 

PARENTS, 

Right  of,  to  control  of  child.  431,  433-435  n. 
How  forfeited  to  state.  431,  433-135  n. 
PARTY   WALLS    AND   FENCES, 

Compulsory,  532  n. 


INDEX 


1441 


PATENTS    AND   PATENTED   ARTICLES, 
State  control  of.  1312  d. 

Application  of  federal  anti-trust  law  to,  I'JIOn. 

PAUPERS, 

Liability  of  near  relatives  to  support.  512n. 

PAYMENT  OF  WAGES, 

Iflcatlon  of  employments  for  regulation  of.  356  n. 

Regulation  of.  41M  and  notes. 

For  coal  screened  in  mine,  4114. 
•  ire  orders,  125*.  427  n. 

Periodica]   payments,  41' 7  u. 
1'ETITION,  RIGHT  OF, 
See  Political  Rights. 

PHYSICIANS, 

Pi    i   ii. oral  character  required  of,  ISO,  1S3 n. 

Residential  qualification  for  practice,  -09.  212  n. 

Exemptions  of  certain  classes  of.  from  licensing  act,  360  n. 

Edu'-atioual  requirements  for  practice,  454,  456  n. 
Osteopaths,  466  n. 
PIPE  LINES. 

Can  private,  for  oil,  be  compelled  to  serve  public?  4S5  n. 
PLUMBERS  AND  PLUMBINQ, 
Requirements  for  occupation  of.  457  n. 

POLICE    POWER     (REQUIREMENTS    OF    DIE    PROCESS    AND    EQUAL 
PROTECTION  OF  LAW). 
General  scope  of,  31S-328  and  notes. 

Powers  of  states  and  of  United  States,  323-328  and  notes. 
Exercise  of.  by  taxation.  328  n. 

Legislative  classification  in  exercise  of,  329-379  and  notes, 
equal  Protection  of  Law. 
By  municipal  subdivisions  of  state,  329  and  note.  349  n. 
Laundries  (danger  from  fire),  332. 
Milk  dealers  (sanitation),  334  n. 
Stables  in  city  (health),  334  n. 

Railways  (payment  of  attorney  fee),  334,  338,  341. 
Insurance  companies  (same),  340-341  n. 
Industrial  corporations  (store  orders).  335*. 

Businesses  requiring  regulation  (expense  of  regulation),  342,  344  n. 
Life  convicts  (punishment  of),  344. 
Habitual  criminals  (same).  34."  n. 
Tramps  (same),  34."  n. 

Stockyards  (regulation  of  rates  of  large),  346. 
(oal  mines  (by  number  of  employees).  348-349  n. 
Workmen's  compensation  act  (same).  349  n. 
Cities  (by  population),  349  n. 
Railways  (by  length),  349  n. 

9  (by  average  amount  of  deposits),  349  n. 
Farmers  and  stockralsers  (ami  trust  law).  349. 
Various  occupations  (same).  356  n. 
(Wage  payments),  356  n. 
(10-hour  law  for  womeni.  356-357  n. 
Ball  players  (Sunday  laws),  ".."m  n. 
Barbers  (same),  35Sn. 

Workmen  (deceit  as  to  conditions  of  employment),  357  n. 
employment  agencies  (Same), 
Drummers  (soliciting  on  trains),  356. 
Sales  of  stock  on  margins  avoided,  358  n. 
Railroads  (penalized  tor  - ling  of.  wi     Is),  359. 

Sales  of  liquor  at  different  places, 
Exemptions  from  medical  licensing. 
Hall  Const.L— 91 


1442  INDEX 

POLICE    POWER    (REQUIREMENTS    OF    DUE    PROCESS    AND    EQUAL 
PROTECTION  OF  LAW)— Continued. 

Protection  of  part  of  openings  in  new  buildings,  360  n. 

Junk  dealers  (care  in  buying  property).  360-361  n. 

Where  not  providing  for  exceptional  cases,  361,  362  n. 

Recognition  of  degrees  of  evil,  362-^363  n. 

In  workmen's  compensation  law,  363,  349  n. 

Discrimination  against  aliens,  364,  365  n. 
Non-residents,  366-367  n. 

Discrimination  in  favor  of  old  soldiers,  366  n. 

Eased  upon  race,  367  and  notes. 
Sex,  370,  372-373  n. 

Minuteness  of  classification  required,  372. 

Railroads  (abolition  of  fellow  servant  rule),  372. 

Special  evils  may  be  corrected,  355-356  n..  378*-379. 

General  principles,  334,  363,  376. 

Burden  of  proving  classification  bad,  377*. 
Administrative  regulations, 

To  secure  efficient  enforcement  of  law,  379,  3S0-3S1  n. 
Pure  milk,  379. 
Sewer  connections,  3S0  n. 
Game  laws,  3S1  n. 
Prohibition  law,  3S1  n. 
Harbor  rules,  321. 
Weight  of  bread.  3S1  n. 

Presumptions  of  fact,  3S1,  3S3  n.,  158. 
Administrative  discretion, 

Abuse  of,  3S3,  387  n. 

Possibility  of  abuse,  387  n. 

Extent  of,  permissible,  387,  3S9.  393  n. 
Validity  of  legislative  object,  393-530  and  notes. 

See  Due  Process  of  Law. 
Prohibition  of  sale  and  manufacture  of  liquor,  393,  398  n. 

State  monopoly  of,  39S  n. 
Prohibition  of  sale  of  cigarettes,  39S  n. 

Billiard  rooms,  398  n. 

Operation  of  rendering  plant,  398  n. 

Annoying  businesses  in  residence  districts,  398. 
Regulation  of  height  of  bill-boards,  400  and  note. 

Street  building  lines,  402*  and  note. 

Creation  of  water  power  by  riparian  owner,  402  n. 

Tree  cutting  on  private  land,  403  n. 

Location  of  gas  works,  404. 
Prohibition  of  sale  or  manufacture  of  oleomargarine,  405,  408  n. 
General  scope  of  freedom  of  contract,  232  and  notes. 
Making  insurance  contracts  out  of  state,  232. 
Regulation  of  hours  of  labor,  409-424  and  notes. 

In  mines,  409. 

In  bakeries,  414. 

On  Sunday,  419  n. 

In  public  work,  422.  424  n„  963  n. 

In  general,  419  n. 
Regulation  of  private  conduct  injurious  principally  to  doer,  413  n. 
Manufacture  of  tobacco  in  tenement  houses.  421-422  n. 
Regulation  of  payment  of  wages,  424  and  notes. 
Regulations  to  prevent  deception, 

In  sale  of  fruit,  427. 

Convict-made  goods,  428-429  n. 
Bread.  426*  and  note. 

In  weight  and  measures,  426*,  427  n. 
Parental  control  of  state  over  children,  429—435  and  notes. 

As  against  parents,  433^35  n. 
Regulation  of  matrimonial  status,  see  Marriage  and  Dirorce. 


INIlEX 


1443 


POLICE]    POWER    (REQUIREMENTS    OP    HUE    PROCESS    AND    EQUAL 
PR(  p'n  .1   i  [ON  OF   LAW)     Continued, 
Sterilization  of  criminals,  139  n. 

f  prostitution,   I  K),   Hi  n. 
nlsory  medical  treal 
Of  inebriates,  441. 
( if  diseased  prostitutes,  1 1".  a. 
Vaccination,  4-44. 
Common  belief  as  d  basis  for  legislation,  4(7*-  n- 
Coinpelllng  landowner  to  abate  natural  nuisance,  449  and 
Pre  ervation  of  natural  servitudes  in  land,  450n. 
nation  of  garbage,  4.10,  431  n. 
,f  monopoly  In  busini  bs  dangerous  to  public  health,  4a0,  4oi  n. 
Summary  silling  of  disea  -.  i.">2,  454  n. 

Liability  for,  In  case  of  mistake,  4.",::.  454  u. 
Compulsory  disinfection  of  rags,   l">-*. 
Requirements  for  practice  of  certain  callings, 
Mi. limine  454,  456  n. 

Plumbing,  horseshoeing,  undertaking,  bartering,  457  n, 
Regulation  of  banking  ami  insurance,   107  and  notes. 

ilrement  of  corporate  form  fur,  457. 
Prohibition  of  speculative  contracts, 
Sales  of  stock  on  margin,  4G0. 
Commodity  options,  462  n. 
.    Restriction  of  alienation  of  property, 
Stork  in  trade  in  bulk, 
Assignment  of  wages,  102  n. 
102  n. 
Restriction  upon  binds  "f  business  of  department  stores.  402. 
Of  insurance  and  really  brokers,  464a 
Of  saloons.  464  n. 
Ose  of  trading  stamps,  464  n. 
Requirement  of  consent  of  local  voters  to  establishment  of  private  school. 

464  n. 
Prohibition  of  use  of  flag  for  advertisement,  404  n. 
Prohibition  of  combinations,  465,  467,   W8n. 

By  stock  ownership,  168n. 
Prohibition  of  railroad  to  carry  commodities  produced  by  It.  40S  n. 
Prohibition  of  malicious  use  of  property,  169  and  notes. 

i  if  unauthorized  use  of  photograph  as  advertisement,  4i0n. 

Prohibition  of  contracts   for  exclusive   dealings.   470. 

i  ir  price  discrimini  !'  ods,  473  n. 

In  purchases,  473  n. 

Prohibition  of  discharge  Of  employee  for  membership  in  union.  4i.i. 
Requirement  of  union  labor  on  public  buildings.  177  and  note. 
Regulation  of  business  affected  by  a  public  interest,  4,'.).  lS5n. 
~  Kinds  of  business  ■  id. 

forbidding  discrimination.  485  u. 
Mandatory  regulation.  4  s.",  n. 

See  Rate  Regulation. 
Imposition  of  liability  without  fault,  504-521  and  notes. 
Punitive  damages  for  blameless  illegality,  50' 
Criminal  liability  for  same,  506  -"07  n. 
Remote  consequences,  507  508n. 
Oompulson  co-insurance  of  business  risks, 

l'.auk  deposits,   "ill'.). 

Workmen's  compensation.  .">17-520n. 
Elective  co-insurance.  "'12,  ,"il7  n. 
Individual  liability  (workmen's  compensation),  517  n..  oiOn. 

I  Various  cases).  ."12  n. 
Public  liability  (mob  violence),  507. 

acting  out  of  liability  forbidden,  518. 
1 ,,      ription  of  crime  Indefinite,  5os  u. 


1444  INDEX 

POLICE    POWER    (REQUIREMENTS    OF    DUE    PROCESS    AND    EQUAL 
PROTECTION  OF  LAW)— Continued, 
Excessive  fines  or  damages,  508  n. 
Abridgment  of  remedies  for  tort,  516*,  516-517  n. 
Statutory  liabilities  of  insurance  companies,  521  n. 
Compulsory  conservation  of  property, 

Oil  and  gas,  521,  1193  n. 

Water,  521  n. 

Game  and  oysters,  524  n. 

Small  trees  on  wild  land,  525  n. 

Mineral  waters,  376. 
Regulation  of  conflicting  common  interests, 

Mill  acts,  525,  678,  683  n. 

Common  ownerships,  526*-527,  520  n. 
Alteration  of  expectant  interests,  S86  n. 

Trust  investments,  520-527  n. 
Compulsory  common  drainage  of  tracts  of  land,  530-532  n. 

Party  walls  and  fences,  532  n. 
Miscellaneous  property  servitudes  and  personal  obligations,  532  n. 

(Militia,  jury,  witness,  and  highway  labor  duties;    sidewalks;    levees). 
Regulation  incidental  to  power  of  prohibition,  531-535  and  notes. 

Of  corporations,  by  amendment  of  charter,  531,  534  n. 

Of  acts  or  property  generally,  535  n. 

POLITICAL  PARTIES, 

Judicial  control  of,  108-109  n. 

POLITICAL  QUESTIONS, 

What  are,  101  and  notes,  106  and  notes,  1012  n. 

Decision  of,  by  political  departments  of  government,  binds  courts,  101  and 
notes,  106  and  notes,  1012  n. 
POLITICAL  RIGHTS,  128-150. 

Of  individual,  judicial  enforcement  of,   108  n. 
Federal  citizenship,  12S  and  notes. 

Before  14th  amendment,  129*-130,  and  note  2. 

Of  free  negroes  before  14th  amendment,  133*  and  note. 

Of  tribal  Indians,  134*. 

Of  civilized  Pueblo  Indians,  978  n. 

Of  natives  of  Spanish  cessions,  140  n. 

Of  corporations.  140  n. 

Exceptions  by  rules  of  public  law,  129*-130,  133*-134,  135*-137. 
Riijlit  of  expatriation,  139*-140  and  note. 
State  citizenship,  133  n..  219*-220. 
Naturalization,  137*-139  and  notes. 

Who  may  be  naturalized,  139*  and  note. 
Suffrage  under  federal  Constitution,  140,  143,  145-147  n. 
Federal  power  to  regulate  and  protect  suffrage  in  states,  145,  149-150  n. 
Reduction  of  state  representation  for  abridgment  of  suffrage,  149  n. 
Effect  of  direct  primaries  for  federal  senators,  150  n. 
Free  speech  and  press,  150. 
Right  of  assemblage  and  petition,  150. 
Right  to  keep  and  bear  arms,  150. 

POST-OFFICE  AND  POSTAL  POWERS, 
See  Federal  Government. 

PREAMBLE  TO  UNITED  STATES  CONSTITUTION, 
Effect  of,  93Sn. 

PREFERENCES  BETWEEN  STATE  PORTS, 

United  States  forbidden  to  give,  by  regulations  of  commerce  or  revenue, 
1038  n. 

PRESUMPTIONS, 

Of  fact,  power  to  create,  381,  3S3  n„  158. 
PRIVATE  CONDUCT, 

Regulation  of,  413  n. 


INDEX  1445 

PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS, 

Of  tlio  states,  In  other  states,  107-212  and  notes. 
In  general,  19S*. 

Rights  in  common  property  of  state,  197,  200  n. 
Bights  of  corporations,  200,  209*. 
Rights  of  partnership,  201  n. 
Residents  as  citizens,  202*-203. 
Discrimination  by  individuals,  201  n. 
Right  to  a«-t  as  trustee.  204  n. 
Against  discriminatory  licensing,  204.* 

Taxation.  205  n. 
As  to  procedural  discrimination,  207*  and  note. 
As  to  iliscri  Liiin:i  I  ion   based  on  domiell.  207  n.,  209,  212  n. 
As  to  political  discrimination,  207*  and  note. 
In  insolvency  proceedings,  202,  20S*  and  note. 
Discrimination  against  deceased  citizens,  209  n. 
As  to  qualifications  for  medical  practice,  209,  212  n. 

For  liquor  licenses,  212  n. 

For  bankers,  212  n. 
Of  the  United  States,  219*-223,  225.  228  n. 

PROCEDURE  (REQUIREMENTS  OF  DUE  PROCESS  AND  EQUAL  PRO- 
TECTION OP  LAW), 
Historical  requirements,  262,  280,  290.  • 
Rational  requirements,  270-293  and  notes. 

Jurisdiction.  2S3*  and   note,   284-285  n. 
Tn   taxation.  535-573  and   notes. 

Notice,  2S3*   and  note.   285 n. 

Tn   taxation.  277*-279  and  notes. 

Hearing.   283*   and  note,  2S5-2.«(i  n.,  293-313  and  notes. 
In  taxation.  275  and   notes. 

Conduct  of  tribunal,  292*.  293  n. 

Correctness  of  decision,  291,  293-294  n.,  303*. 
Changes  in,  270,  275  n.,  4O9*-410. 
Against  governmental  revenue  collectors,  262. 
For  delinquent  taxes,  270  n„  279-2S0  n. 
In  assessment  of  taxes.  27."  and  notes,  637*-688. 
Grand  jury,  270. 
Trial  jury,  275  n. 
Self-incrimination.  2S0. 

Protection  to  persons  accused  of  crime,  270,  280,  275  n.,  283  n.,  2S0  n. 
Administrative    tribunals,    determinations    of,    285-292,    298-313. 

Questions  of  fact-,  28S  n.,  285,  291. 
Of  law,  2NS-289n. 
Of  jurisdiction,  289  11. 

Erroneous  decisions,   202-293  n. 

Fraudulent  decisions,  293  n. 

Legislative  decisions,  300,  305,  309  n.,  309. 
Summary  destruction  of  nuisances,  293  and  notes.  452.  454  u. 

Exclusion  of  aliens  and  Imports,  298,  300  n. 

Pecuniary  penalties.  288. 
Necessity  for  judicial  hearing. 

In    taxation.   'JTo   and    D 

In  deportation  or  exclusion  of  aliens,  298,  300  n. 

In  governmental  destruction  of  property,  296*  and  note. 

In    rate   regulation.   800,   809. 

Effect  of  burdensome  conditions  on  hearing,  304-305  n. 
In  legislative  action,  302*-3,  305,  309  n.,  309. 
In  executive  action,  309  n. 
Necessity  for  separation  of  powers.  313  n. 
Equal  protection  at  laws,  814,  317  :'.i0n. 

Constitution  of  Juries,  314  and  notes. 


1446  INDEX 

PROCEDURE   (REQUIREMENTS   OF  DUE   PROCESS  AND   EQUAL   PRO- 
TECTION OF  LAW)— Continued, 

Political  rights  generally,  317-31S  n. 

Basis  of  classification  for  procedural  differences,  3is-:;i:.  n. 
In  exercising  parental  control  of  state  over  children,  431. 

In  divesting  control  of  natural  parent,  433-435 n. 
In  compelling  medical  treatment,  442*  and  note,  44S*. 
PROSTITUTES   AND   PROSTITUTION, 

Medical  examination  and  treatment  of  diseased,  373  n.,  443  n. 
Association  with,  413  n. 
Regulation  of,  440,  441  n. 

Restriction  of  houses  of  ill-fame   to  certain  localities,  440. 
Federal  control  of  alien,  9S2,  98  1  n, 
In  interstate  commerce,  1234-1235  n. 
PROTECTION   TO   PERSONS   ACCUSED   OF    CRIME.    104-19(5   and   notes, 
2S3  n.,  286  n. 
See  Ex  Post  Facto  Laws;    Bills  of  Attainder;    Self-Crimination:    Search 
es  and  Seizures ;    Jury  Trial ;    Punishment;    Criminal  Procedure;    Pro 
cedure. 
PROTECTIVE  AND  REGULATIVE  POWER, 

See  Police  Power. 
PUBLIC  UTILITIES, 

See  Police  Power,  and  Rate  Regulation. 
What  are,  479,  4S5n. 
PUNISHMENT,  CRUEL  AND  UNUSUAL,  198n. 
Sterilization  of  criminals  by  vasectomy,  439  n. 

QUARANTINE,  1152  and  notes. 

RACE, 

Classification  according  to,  367  and  notes. 
Exclusion  from  juries  on  account  of.  314  and  notes. 
As  a  qualification  for  suffrage,  145-147  n. 
Separation  of  races  in  interstate  commerce,  1163,  1166  n. 
RAGS, 

Compulsory  disinfection  of,  452*. 
RAILROADS, 

See  Rate  Regulation:    Police  Power;    Interstate  Commerce. 
Compelling,  to  pay  attorney  fee  when  defeated  in  suit,  334,  338,  341. 
Classification  of,  by  length,  349  n. 
Penalized  for  sowing  weeds,  359. 

Compelling,  to  pay  expense  of  their  regulation  by  state.  342. 
Single  road  forbidden  to  use  locomotives  in  street.  35S  n. 
Abolition  of  fellow-servant  rule  on.  372,  51S. 
Reasonable  pooling  by,  forbidden,  46S  n. 
Prohibition  of  carriage  of  own  commodities  by,  468  n. 
Formation  of  corporation  to  own  stock  in  competing.  468  n. 
Liable  for  default  of  connecting  carrier,  512  n. 
Forbidden  to  contract  out  of  statutory  liability  to  employees,  518. 
RATE  REGULATION, 

Power  of,  by  courts,  see  Judicial  Power,  what  constitutes. 

By  commissions  and  boards,  300.  309  n.,  309.  313  n.,  497  n. 

By  tribunals  with  mixed  powers,  86,  95-96  n.,  309,  313  n. 
To  what  businesses  applicable,  479,  485  n. 
Limits  of  (railroads),  4S6. 
Basis  of,  4S9. 

Valuation  and  rate  of  return,  492-503  and  notes. 

Elements  of  capitalization.  492.  493  n.,  49S  n„  499. 

Apportionment  of  value  between  state  and  interstate  business  (rail- 
roads). 499,  502  n. 

For   non-governmental  service,  491  n. 


INDEX  1417 

BATE  REGULATION— Continued, 

og  doubtful  schedules,  197*-498,  IBS  n. 

Hon  of  whole  schedv  icular  rates  or  services,  498  n. 

Qdlng  turnpll  on  repair  of  road,  490  u. 

In  interstate  commerce,  1166  1179  and  notes. 

REGULATIVE  POWER. 
See  Polite  Power. 

RELIGIOUS  LIBERTY,  163  n. 

RENDERING  PLANT, 
As  a  auisj  nee,  398  n. 

RENDITION, 

Of  Interstate  fugitives  from  Justice,  1278  n. 
Berrice  ami  labor,  1278  u. 

REPUBLICAN  FORM  OP  GOVERNMENT, 

Whal  is,  a  political  question,  101  and  note. 

RBTROAGTIVB  CIVIL  LAWS, 

Avoided,  where  possible,  by  construction,  878*  and  note. 

cal  power  to  enact,  S78,  879 n.,  881  n.,  913*. 
Validating  marriages,  s?v. 

Illegal  contracts,  883  n.,  884  n. 
Abrogating  forfeitures  and  penalties, 

fences,  881  n.,  883*,  913*. 
Reviving  claims  barred  by  statute  of  limitations,  882-886  and  nob 
Changing  tenure  of  property,  886-887  n. 
■  ■'■taut  Interests,  887" n. 

.Marital  interests,  ,Ss?  n. 

Validating  defective  conveyances,  SSS*  and  note. 

Against  intervening  attachment  or  judgment  lien,  887  and  notes. 

Against  purchasers  for  value.  891  a 

Where  no  power  exists  to  convey,  891. 

In  probate  proceedings,  892,  894  n. 

In   mortgage  foreclosure,  894  n. 

In  execution  sale,  S9 !  n. 
Validating  wills.  889  n. 
Validating  Judgments,  893  n. 

Ratifying  act  of  governmental  agent,  otherwise  a  tort.  894,  896  n. 
Abrogating  claim  for  injury  to  property,  based  on  prior  statutory  consent 
of  government,  *96  n. 

Contractual  exemption  from  federal  taxation,  S96-S97n. 

Action  for  11  rial  injury,  ^97  n. 

Affecting  pending  suits.  897 n. 
Avoiding  final  Judgments,  v,.i?  B98n. 
Validating  void  tax  proceeding. 

Bi  tore  sale.  898  and  note,  901*. 

After  sale,  900,  902-901  n. 
Curative  acts  in  general,  902-90.",  n..  906  n. 

Giving  conclusive  or  presumptive  erred  to  tax  deeds,  as  to  regularity  of 
prior  proceedings,  904  and  notes. 

Changing  burden  of  proof.  905  n. 
Barring  Incurable  defects  by  short  statutes  of  limitation,  909*  and  note. 

"Petterment  laws,"  907  n. 
Changing  rules  of  evidence.  914-915  n. 
Changing  execution  exemptions,  915  n. 
Express  constitutional  prohibitions  of,  909  n. 

Effect  of,  906  91  I  and  notes. 

Application  to  changes  in  remedies  and  procedure.  910.  914-915  n. 

SAFETY,  PUBLIC, 

See  Police  Power;    Obligations  of  Contracts. 


1448  INDEX 

SALOONS. 

See  Intoxicating  Liquors. 
Onerous  conditions  upon,  535  n. 
SEARCHES  AND  SEIZURES, 

Prohibition  of  unreasonable,  1SS*  ff.,  193  n. 
Application  to  corporations,  190*  ff. 
SECTARIAN  INSTITUTIONS, 

Prohibition  of  state  aid  to,  585  n. 
SELF-CRIMINATION, 

Scope  of  constitutional  prohibition  against,  184  and  notes. 

Extent  of  immunity  necessary  to  compel  incriminating  testimony,   185*- 

187. 
Rights  of  corporations  and  corporate  officers  in  regard  to,  187*  ff.,  193  n. 
From  records  of  dissolved  corporation,  193  n. 
From  public  records  generally,  193  n. 

Right  against,  how  far  a  privilege  of  federal  citizenship,  228  n. 
How  far  a  part  of  due  process  of  law,  2S0. 
SEPARATION  OF  POWERS   OF  GOVERNMENT,  54-114. 

How  far  required  of  states  by  United  States  Constitution,  95-Ofi  n.,  290  n. 
By  state  Constitutions,  5-1-70,  70-100.  104-5  n.,  106  n..  108-8  n.,   112- 
113  n.,  113,  114  n. 
How  far  required  of  United  States.  39.  70.  94*-95.  101-112. 

SEWERS, 

Regulations  to  compel  connections  with,  380  n. 
SEX, 

Classification  according  to,  370,  372-373  n. 
SHARES  OF  STOCK, 

Sale  of,  on  margin,  invalidated,  358  n.,  400. 

SITUS  FOR  TAXATION, 
See  Taxation,  jurisdiction. 

SLAUGHTER  HOUSES, 

Monopoly  of,  451  n. 
SLAVERY, 

See  Liberty  of  Person. 
SOVEREIGNTY, 

See  Immunity  of  Sovereign  from  Private  Suit. 
Existence  of,  a  political  question,  1012  n. 
SPANISH  CESSIONS, 

See  Territories  and  Dependencies. 
SPECIAL  AND  LOCAL  LEGISLATION, 

Scope  of  constitutional  prohibitions  against,  122  n.,  332  n.,  349  n. 
STABLES, 

Regulation  of,  in  city,  334  n. 
STATES, 

See    Federal    Government;     Intergovernmental    Relations;     Federal 
Courts;    Immunity  of  Sovereign  from  Private  Suit;    Obligations  of 
Contracts. 
Admission  to  Union  of  new,  1020. 

Imposition  of  conditions  upon,  1020. 
Contracts  limiting  powers  of,  1020,  1024  n. 
STATUTES, 

See  Legislative  Acts. 
STERILIZATION. 

Of  criminals  by  vasectomy,  439  n. 

STOCK,  CORPORATE, 
See   Shares  of   Stock. 


INDEX  lH'J 

STOCK-IN-BULK  SALES, 

Problblted,  883n.,  Win. 
STOCK   RAISERS. 

Exemption  from  anti-trust  law,  349. 

STOCKYARDS, 

Regulation   of  rates  of   large,  only,  348. 
In  general,  485  n 

STREETS, 

Rights  of  abutters  Id,  see  Eminent  Domain. 

SUCCESSIONS  AT  DEATH, 

Taxation  of. 

Jurisdiction,  505  and  notes. 
Classification,  G29,   635,   637n. 
See  Federal  Taxation. 
SUFFRAGE, 

See  Political  Rights. 

SUNDAY  LAWS. 

Exemption  of  ball  players  from,  357  n. 

Application  lo  barbers,  35S  n. 

Forbidding   transportation   of  freight  on   Sunday.    1187  n. 

TAXATION   (IN   GENERAL), 

Power  of  assessment  and   levy,  where  lodged,  60*  and   note. 
Procedural  due  process  in.  see  Procedure. 
For   regulative  purposes,  328  n. 
Legislative  authority   necessary   for,  C07  n. 

Prescribed  method  of  assessment  and  collection  necessary,  607  n. 
Control   of  local  taxation.  640 n. 
By  United  States,  see  Federal  Taxation. 

By  states  and  United  States,  affecting  functions  of  each  other,  see  Inter- 
governmental Relations. 
Of  interstate  commerce,  see  Interstate  Commerce. 
TAXATION   (REQUIREMENTS    OF    DUE    PROCESS    AND    EQUAL    PRO- 
TECTION  OF  LAW). 
See  Taxation  (In  General) ;    Procedure. 
Jurisdiction,  535-573  and  notes. 
See  Due  Process  of  Law. 
Of  tangible  personalty,  535,  560  n. 

Where  migratory  (cars),  541,  543 n. 
(ships),  543-544  n. 
(other  property),  566  n. 
Of  realty.  537*-639. 

Of  intangible  personalty,  544  and  notes.  566 n. 
Of  incomes,  538  n. 

Of  corporate  assets,  under  the  "unit  rule."  551  and  notes. 
Of  franchises,  539*,  557  n. 
Of  shares  of  stock,  559,  560,  502  n. 

Mode  of  collection  at  source,  560  n. 
Of  credits  under  probate  administration,  562. 

Meld  in  trust.  565  n.    - 
Of  succession  at  death  of  owner.  565,  569  n. 
Of  making  of  contracts,  569,  570-571  n. 

To  impose  personal  obligation  to  pay  tax  on  property,  571,  573  n. 
Public  purpose,  573-005  and  notes. 

Loans  to  rebuild  burned  city.  578. 
Miscellaneous  purposes,  581-582  q. 

Loans  to  encourage  new  business  enterprises,  582,  585  n. 
Subscription  to  theatre,  585  n. 
Tax  exemptions  to  private  businesses.  585  n. 
To  church  property,  585  n. 


1450  INDEX 

TAXATION  (REQUIREMENTS  OF  DUE  PROCESS  AND  EQUAL  PROTEC- 
TION OF  LAW)— Continued, 
Bounties,  5S7*. 
Aid  to  construct  privately  owned  railroads,  5f>5,  osS  and  notes. 

Grist  mill,  590  n. 
Construction  of  works  to  irrigate  private  lands,  595. 
Buying,  renting,  and  selling  land  to  provide  homes  for  wage-earners, 

.601. 
Engaging    In   competitive   business,   and    in    "public   utilities,"   602*, 

604  n. 
Discharging  moral  obligations.  601-605  n. 
Miscellaneous  purposes,  601  n. 
Classification.  605-659  and  notes. 

See  Equal  Protection  of  Law. 
In  general,  610  n. 
Tax  on  stock  transfers,  605,  611. 

Special  mode  of  valuation  of  railway  property,  611  n. 
Constitutional  provisions  for  uniformity,  611  n..  649  n. 
Sales  of  convict-made  goods,  614  n. 

Property  of  each  race  taxed  for  its  own  schools,  614  n. 
Tax  on  sugar  refiners,  exempting  those  who  refine  their  own  prod- 
uct. 614. 

Hand  laundries  operated  by  men,  617  n. 

Corporate  franchises  and  corporations,  618,  619,  622-624  n. 
Miscellaneous  classifications.  617  n. 
Discrimination   against  foreign  corporations,  623. 
Successions  at  death,  629,  635,  637  n. 
Progressive  taxation.  634  n. 
According  to  population  of  place,  amount   of  business   there,   price 

of  admission,  corporate  income,  etc.,  634-635  n. 
Taxation  uniform  over  municipal  subdivision  of  state.  637  and  notes. 

Non-contiguous  territory,  640  n. 
Special  taxing  districts  for  limited  purposes,  640.  CHn..  652  n. 

Benefits  to  property  outside,  645-646  n. 
Special  assessments,  640-657  and  notes. 

Retroactive  levy  of,  to  correct  errors,  640,  644  n.,  655. 

General  theory  of,  646. 

Accidental  subjection  to,  646  n. 

Limited  to  special  benefits.  649,  654-657  n. 

Sidewalks  and  street  cleaning,  657  n. 
Personal  labor  on  highways,  657  n. 
Retroactive  taxation  in  general.  658  n. 

Cure  of  irregularities,  65S-659n. 
Confiscatory  taxation,  659  n„  962*-963. 

TELEGRAPHING     AND     TELEGRAPH    COMPANIES     (Including     TELE- 
PHONES), 
Classification  of,  to  forbid  limitation  of  liability,  356  n. 
Rate  regulation,  485  n. 
TELEPHONING  AND  TELEPHONE  COMPANIES, 

See  Telegraphing  and  Telegraph  Companies. 
TENEMENT  HOUSES, 

Manufacture  of  tobacco  in,  421  n. 
General  regulation  of,  422  n. 
TERRITORIES  AND  DEPENDENCIES, 

Application  of  Constitution  outside  of  federal  territory,  985,  987  n.,  1011, 
9Sln. 
To  Indian  tribal  governments,  987  n. 
Power  to  annex  territory,  999*-1002. 
Status  of  territory  annexed  by  troaty,  OSS. 

When   "incorporation"  into   United   States   takes  place,   1000*-1010, 
1015. 
Permanence  of,  990*,  1004*,  1019*. 


INDEX  1451 

TERRITORIES  ANT'  DEPENDENCIES— Continued, 

What  provisions  of  Constitution  applicable  to  "unincorporated"  ter- 
ritory. 
Revenue  clause,  o^v 

dura!  clauses,  894*,  101& 
Guam  'Tits  994*,  998*,  1018*. 

<  lltizenship,  993"  994;  l  10  n. 
What  territory  Included  in  "(  nited   States,"  988*  993,   1005*-1012. 
Stains  of  particular  acquisttioi  e  of  territory. 
Northwest  territory,  1005*. 

-us  by  North  Carolina  and  Georgia,  100G*. 
Louisiana,  1006*-1009. 
Florida,  1009*. 
Mexii  an  cession,  1009.* 
Alaska,  1009*,  1015. 
Hawaii.   1000*.  1013*-1014,  101S*-1019. 

1010*.  1013,  1019  u. 
Canal  Zone,  1019  n. 
Forms  of  federal  territorial   governments,  P00*  and  n..   122  n„   124  n. 
Source  of  federal   power  to  govern  territories.  996  -007. 

To  ad  in  Japan  and  Cuba,  985,  mil*. 
Applicability  of  federal  revenue  laws  to  territory  under  various  circum- 

stances,  1012  n. 
Sovereignty  over  anj  territory  a  political  question,  1012a 
TOP.At  !<  ( ). 

See  Cigarettes, 
Manufacture  of,  In  tenement  bouses.  -121  n. 
Contracts  for  exclusive  dealings  in.  47u. 

T<  IRTS 

Abridgement  of  remedies  for,  .To*,  516-517  n. 

TRADING  STAMPS, 

Legislation  against,  HHn. 

TRAMPS, 

Punishment  of,  B45  n. 

TREATIES, 

See  Foreign  Relations. 

TREES, 

Regulation  of  cutting  of,  on  wild  land  and  highways,  403  n.,  625  n. 

TURNPIKE  ROADS. 

Suspension  of  tolls  for  non-repair,  490  n. 
Regulation  of  rates,  490*. 

UNCONSTITUTIONALITY, 
See  Legislative  Acts. 

UNDERTAKING, 

Requirements  for  occupation  of,  457  n. 

UNITED  STATES, 

See  Federal  Government;    Immunity  of  Sovereign  from  Private  Suit. 

"UNIT  RULE"  OF  TAXATION, 
See  Taxation,  Jurisdiction. 

USURY  laws. 

Banks  and  mortgages  exempted  from,  3G3  n. 

VACCINATION, 

Compulsory,  444. 

Common  belief  in.  as  basis  for  legislation,  447*-148. 

VASECTOMY, 

Operation  to  sterilize  criminals,  439  n 


1452  INDEX 

VETERAN  SOLDIERS, 

Discrimination  in  favor  of,  under  civil  service  rules,  366  n. 

WAGES, 

See  Payment  of  Wages. 
Regulation  of  assignment  of,  462  n. 
WAIVER   OF  CONSTITUTIONAL  RIGHTS, 
Validity  of,  in  general,  196-197  n. 
Of  criminal  jury,  196  n. 
WAR, 

See  Federal  Government 
WATERS, 

See  Eminent  Domain  ;    Navigation. 
Public  rights  in,  726-740  n. 
WATER  SUPPLY  AND  WATER  COMPANIES, 

Rate  regulation,  485  n.,  489. 

WEIGHTS  AND  MEASURES, 

Regulation  of,  426*,  427  n. 

By  federal  government,  936-937  n. 
WELFARE,   PUBLIC, 
See  Police  Power. 
WHITE   SLAVE  ACT, 

See  Interstate  Commerce. 
WINE  ROOMS, 

See  Intoxicating  Liquors. 
WITNESSES, 

Testimony  compellable,  free,  532  n. 
WOMEN, 

Discriminatory  legislation,  see  Sex. 
See  Hours  of  Labor. 
WORKMEN, 

Deception  of,  as  to  conditions  of  work,  penalized,  357  n. 
WORKMEN'S  COMPENSATION  ACTS, 

Classification  of  industries  for,  by  number  of  employees,  349  n. 

Of  employers,  accordingly  as  they  accept  act  or  not,  363. 
Validity  of. 

Individual  liability,  517  n.,  520  n. 
Compulsory  co-insurance,  517-520  r 
Elective,  512,  517  n. 


VIST  PUBLI8UIMG  CO.,   PBINTEBt,   IT.  PAUL,   KIHK 


LAW  UBRARY 
UNTVEPSiTY  OF  CATIfQMM 


D     000  315  339     2 


SSscbSsES 


